[Cite as State v. McDonald, 2018-Ohio-484.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105276



                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               JAMIL H. MCDONALD
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                  AFFIRMED IN PART, REVERSED IN PART,
                            AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-602642-A

        BEFORE: Boyle, J., McCormack, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 8, 2018
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant,      Jamil       McDonald   (“McDonald”),    appeals   his

convictions.   He raises two assignments of error for our review:

       1. The case lacked sufficient evidence.

       2. It was error not to merge the counts.

       {¶2} Finding merit in part to his second assignment of error, we reverse in part

and remand for resentencing in order for the state to elect which allied offense to pursue

for purposes of sentencing.

I. Procedural History and Factual Background

       {¶3} In January 2016, McDonald and his brother, Johnathan McDonald

(“Johnathan”), were indicted in the same case on six counts.    McDonald was indicted on

five of them: one count of drug trafficking (heroin) in violation of R.C. 2925.03(A)(2), a

third-degree felony; two counts of drug possession in violation of R.C. 2925.11(A), a

third-degree felony (heroin) and a fifth-degree felony (alpha-PVP); possessing criminal

tools in violation of R.C. 2923.24(A), a fifth-degree felony because it contained a

furthermore clause that McDonald intended to use the tools to commit a felony; and one

count of having a weapon while under disability in violation of R.C. 2923.13(A)(3), a

third-degree felony.   The trafficking and third-degree possession counts carried one-year

firearm specifications, and all of the counts carried one or more forfeiture specifications

for various items, including a gun, six cell phones, two tablets, four digital scales, money

($379), three hydraulic presses, and packaging material.       McDonald and his brother
entered pleas of not guilty to all charges and were tried together before a jury, where the

following evidence was presented.

       {¶4} Michael Griffis, a detective for the Solon Police Department, testified that

he is currently assigned to the Southeast Area Law Enforcement Narcotics Task Force

(“SEALE”).    Detective Griffis explained that SEALE is a “multi-jurisdictional drug task

force” covering seven cities in the southeast portion of Cuyahoga County.        Detective

Griffis had been a police officer for approximately 12 years and had been assigned to the

SEALE task force for almost five years.

       {¶5} Detective Griffis testified that in July 2015, he received a phone call from

the commander of the Westshore Enforcement Bureau (“WEB”), which is “another

multi-jurisdictional drug task force” similar to SEALE, but on the “west side.”

Detective Griffis received information from the WEB commander that McDonald was

trafficking heroin out of his home in Maple Heights. Detective Griffis explained that

after receiving that information, he began the process of corroborating the information.

       {¶6} Detective Griffis ran McDonald’s name and address in the police

department’s computer system to find out if McDonald lived at the address, which he did.

 Detective Griffis and his partner, Detective Mark Witkiewicz, then began “periodic

surveillance” of the home.    Detective Griffis stated that while surveying McDonald’s

home, they saw him leaving his house in a rental car, which corroborated the information

he received from the WEB commander.           Detective Griffis explained that the “vast

majority” of drug traffickers use rental cars for two reasons: to avoid being detected by
police and to avoid forfeiture laws.

       {¶7} Detective Griffis testified that on September 24, 2015, he “executed a trash

pull” at McDonald’s house.          He explained that a “trash pull” means collecting

someone’s trash to look for “illegal activity.”   In this case, he was searching for “signs

of drug trafficking.” Detective Griffis found mail in the trash addressed to McDonald,

which confirmed he had the right trash. He also found mail addressed to Beverly Bell at

the same address.

       {¶8} Detective Griffis also found the remains of “six plastic baggies” in

McDonald’s trash that police call “tear offs.”      Detective Griffis explained that “tear

offs” are the“discarded portions of plastic” bags that drug traffickers throw away after

they have packaged the drugs in smaller “street-sale quantities.”   He said that “tear offs”

are “one of the biggest things” they look for “as far as the signs somebody is selling

narcotics.”    The contents of the “trash pull” were shown to the jury, including the six

“tear offs.”

       {¶9} After the “trash pull,” Detective Griffis prepared and obtained a search

warrant from Garfield Heights Municipal Court to search McDonald’s house, which

police executed on September 29, 2015.        Detectives Griffis and Witkiewicz decided to

wait until they saw McDonald leave the residence and then have Officer Kyle French, a

Maple Heights police officer, conduct a traffic stop of McDonald, where they would then

inform him of the search warrant.      Detectives Griffis and Witkiewicz were present when

Officer French stopped McDonald in his rental car.      Detectives Griffis and Witkiewicz
asked McDonald to exit the vehicle to inform him of the search warrant.        Detectives

Griffis stated that because McDonald’s driver’s license was suspended, they conducted an

inventory search of the car and towed his vehicle.   They found 0.23 grams of “Molly,” a

“street name” for ecstasy, which is a “substituted cathinone” also known as “MDMA”

and “alpha-PVP.”

       {¶10} McDonald remained with         Officer French, and detectives Griffis and

Witkiewicz went back to McDonald’s house to conduct the search with the help of

several other officers from various jurisdictions, including Detective Brian Sara from the

Bedford Police Department.      The officers “knocked and announced” their presence two

or three times when they noticed a male looking out from an upstairs window. At that

point, they entered the home.    The officers immediately secured the male, who turned

out to be McDonald’s brother, Johnathan. They placed Johnathan in handcuffs and

proceeded to “clear the house” and search it.

       {¶11} Detectives Griffis searched the master bedroom.     He found a Raven Arms

.25 caliber pistol in a box near a night stand. Detectives Griffis also found $55 in the

room as well. There were two other bedrooms in the house, but the officers did not find

any contraband in them.

       {¶12} Detective Sara searched the kitchen of the home.         He found a white

powdery substance in separate drawers in the kitchen that turned out to be 5.05 grams and

2.4 grams of heroin.   He also found several items from the kitchen, including a coffee

grinder with “massive amounts” of white powder residue in it, “tear offs,” a pie tin with
white powder residue inside, three hydraulic presses, vinyl gloves, a “McDonald’s

spoon,” playing cards (some with the white powder residue on them), sandwich bags, and

smaller “baggies.”     Detective Sara explained that all of these items are commonly used

in drug trafficking.

       {¶13} Detective Witkiewicz searched the living room and found $56 and four

digital scales, as well as six cell phones and two tablets. He stated that there was white

powder on “almost every single one of them.”       Detective Witkiewicz also “bagged” the

evidence from the other officers and created the inventory list from the search warrant.

       {¶14} Detectives Griffis and Sara testified that heroin can be “cut” with other

materials to “stretch” or increase the amount of profits.   When people “cut” heroin, they

will throw it in a coffee grinder to grind it up with another substance. They will then

put the combined substance “into a press,” and then “press it back down” into a “rock” so

they can sell it.   They further explained that playing cards are used in drug trafficking to

cut and mix drugs with other agents and to “divvy it out into packages.” And they also

described another tool used by traffickers, which was a “McDonald’s coffee spoon.”

The spoon is a small spoon that people use to stir cream in coffee.     Drug traffickers use

the spoon to measure approximately “a half a gram of heroin.”

       {¶15} Detective Griffis further explained that six cell phones and two tablets were

also retrieved from the house, which he said drug traffickers use to make drug deals.

Detective Griffis stated that in his experience, it is “normal” to find “larger quantities of

electronics” when people are trafficking drugs because they are trying to hide their
identity.   He said that he finds multiple electronics “99 percent of the time.”

       {¶16} A forensic scientist from the Ohio Bureau of Criminal Investigation testified

that the substances found in the kitchen contained heroin and the substance found in

McDonald’s car contained alpha-PVP.

       {¶17} At the close of the state’s case, McDonald moved for a Crim.R. 29 acquittal

that the trial court denied.

       {¶18} Tamillya Netters testified for the defense.        She said that she has two

children; McDonald is the father of one of them. She stated that when police searched

the home, she had just recently moved into McDonald’s home. She and McDonald

shared the upstairs master bedroom, and the two children slept in the other two bedrooms

on the second floor of the home. Netters testified that the gun found in the master

bedroom was hers, and neither McDonald nor his brother knew about the gun.          There

was paperwork inside the gun box stating that Netters purchased the gun.

       {¶19} Netters further testified that Johnathan only lived with McDonald for a

couple of months and only moved in with him because his mother’s house burned down.

She said that Johnathan slept on a couch in a back room on the first floor that was behind

the kitchen.   Netters explained that Johnathan had always intended to move back in with

his mother when she got a new house.

       {¶20} Netters also testified that McDonald had been in an accident at the

beginning of July 2015, and his car was totaled. She said that is why he was driving

rental cars around at the time of his arrest.
       {¶21} The jury found McDonald not guilty of having a weapon while under

disability, but guilty of drug trafficking (heroin), both counts of drug possession (heroin

and alpha-PVP), and possessing criminal tools. With respect to the one-year firearm

specifications, the jury found that McDonald did not have a firearm on or about his

person or under his control while committing the offenses. With respect to the forfeiture

specifications, the jury found that the cash, cell phones, tablets, and gun were not subject

to forfeiture, but that the scales, hydraulic presses, and packing materials were subject to

forfeiture. The jury found Johnathan not guilty of all charges.

       {¶22} The trial court sentenced McDonald to a total of nine months in prison: nine

months for drug trafficking (heroin), nine months for drug possession (heroin), six

months for drug possession of alpha-PVP, and six months for possessing criminal tools,

all to run concurrent to each other.   The trial court further notified McDonald that he

would be subject to a discretionary period of three years of postrelease control.      It is

from this judgment that McDonald appeals.

II. Sufficiency of the Evidence

       {¶23} In his first assignment of error, McDonald argues that his drug trafficking

convictions were not supported by sufficient evidence.

       {¶24} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black’s Law Dictionary 1433 (6th
Ed.1990). When an appellate court reviews a record upon a sufficiency challenge, “the

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶25} McDonald challenges his convictions for drug trafficking and possessing

criminal tools. Drug trafficking under R.C. 2925.03(A)(2) provides that “[n]o person

shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for

distribution[.]” Possessing criminal tools under R.C. 2923.24(A) provides that “[n]o

person shall possess or have under the person’s control any substance, device, instrument,

or article, with purpose to use it criminally.”

       {¶26} McDonald argues that the state failed to present sufficient evidence that he

committed the offenses because (1) there was no evidence that police properly

corroborated the anonymous tip and even if the “trash pull” could be considered

corroboration, there were no photos to prove the contents of the “trash pull,” (2) there was

no evidence establishing who the “real dealer” was because other people lived in the

house, (3) there was no evidence of how pure the heroin was, (4) police failed to test the

various “criminal tools” for DNA or fingerprints, and (5) police failed to obtain cell

phone records from the cell phones that were found to determine if McDonald was

trafficking drugs. We disagree with all of McDonald’s arguments.

       {¶27} The state presented evidence that when police received the information that
McDonald was selling heroin out of his house and driving rental cars, they corroborated

that information before obtaining a search warrant.    First, Detective Griffis testified that

drug dealers use rental cars to avoid detection by police and to avoid forfeiture laws.

Police surveyed McDonald’s house and observed him using two rental cars over a period

of almost three months.     They conducted a “trash pull” and discovered “tear offs,” which

both Detectives Griffis and Sara testified are indicative of breaking down larger bags of

drugs into “street-size” quantities. Police also found mail belonging to McDonald in the

contents of the trash. Although McDonald maintains that there were no photos of the

“trash pull” to prove its contents, the actual contents of the trash pull were admitted into

evidence.

         {¶28} Although there was not direct evidence that McDonald was the “real

dealer,” there was certainly substantial circumstantial evidence.   The heroin and criminal

tools were found in the kitchen of the home. Although three adults lived in the home at

the time of the search, the state only charged McDonald and his brother.              Netters

testified that she knew nothing about heroin or any drugs ever being in the home, let alone

being sold from the home. Netters further explained that Johnathan had only lived with

McDonald for a short time and that it was a temporary situation. This is sufficient

evidence for a reasonable factfinder to find that Netters and Jonathan had nothing to do

with trafficking heroin and to find McDonald guilty of trafficking beyond a reasonable

doubt.

         {¶29} Regarding the state not proving the purity of the heroin, it did not have to.
See State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419 (held that the

entire “‘compound, mixture, preparation, or substance,’ including any fillers that are part

of the usable drug, must be considered for the purpose of determining the appropriate

penalty for cocaine possession”). Although Gonzales dealt with cocaine, it is equally

applicable to heroin.   The state established through the testimony of a forensic scientist

at the Ohio Bureau of Criminal Investigation that the substances found in the kitchen

contained heroin.    This was sufficient evidence that the substances were heroin. See id.

         {¶30} McDonald’s final two arguments, that his convictions were not supported by

sufficient evidence because police failed to test the various “criminal tools” for DNA or

fingerprints and failed to obtain cell phone records, are also without merit.     Detective

Griffis testified that he did not test for fingerprints or DNA or obtain cell phone records

because he believed they had enough evidence against McDonald without doing so.         We

agree.

         {¶31} Circumstantial evidence and direct evidence possess the same probative

value, and therefore circumstantial evidence, like direct evidence, can support a finding of

proof beyond a reasonable doubt if the trier of fact so finds. State v. Jenks, 61 Ohio

St.3d 259, 272, 574 N.E.2d 492 (1991). Circumstantial evidence is proof of a fact

from which the existence of other facts reasonably may be inferred.       Id.   Moreover, a

conviction based solely on circumstantial evidence is no less sound than one based on

direct evidence. State v. Begley, 12th Dist. Butler No. CA92-05-076, 1992 Ohio App.

LEXIS 6457, 6 (Dec. 21, 1992), citing State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d
394 (1987).   Indeed, a conviction based upon purely circumstantial evidence may be just

as reliable as a conviction based on direct evidence, if not more so.         Michalic v.

Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960), citing

Rogers v. Missouri Pacific RR. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

      {¶32} In this case, there was substantial circumstantial evidence that McDonald

committed the offenses beyond a reasonable doubt.      Again, police found “tear offs” in

the trash as well as in the kitchen. They found 6.65 grams of heroin in the kitchen,

along with a coffee grinder with a white powdery residue in it, hydraulic presses, smaller

“street-size baggies,” playing cards, a pie pan, three hydraulic presses, and a

“McDonald’s spoon,” which measures out approximately a half a gram of heroin.         The

detectives thoroughly explained how drug traffickers use each item, including the process

of “cutting” and “stretching” heroin with other substances to make more profit from it.

      {¶33} McDonald also raises several arguments about the gun that was found in

the master bedroom of the home, but jury found McDonald not guilty of having a weapon

while under disability and further found that he did not have a firearm on or about his

person or under his control while committing the offenses. Thus, we need not address

McDonald’s arguments about the gun.

      {¶34} Accordingly, we find that the state presented sufficient evidence that

McDonald was trafficking heroin and that he used and possessed criminal tools for

trafficking heroin. McDonald’s first assignment of error is overruled.

III. Allied Offenses
       {¶35} In his second assignment of error, McDonald argues that the trial court erred

when it did not merge all of his trafficking, possession, and criminal tools convictions

because they were all allied offenses of similar import.   We agree, and the state concedes

that the trial court erred by not merging the offenses of trafficking heroin and possessing

heroin, but we find no error with respect to McDonald’s remaining arguments.

       {¶36} An appellate court should apply a de novo standard of review in reviewing

whether two offenses are allied offenses of similar import. State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. McDonald failed to object to the

imposition of multiple punishments. Nonetheless, the Ohio Supreme Court has held that

the imposition of multiple sentences for allied offenses of similar import is plain error.

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State

v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845.

       {¶37} The Double Jeopardy Clauses of the Fifth Amendment to the United States

Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant against

a second prosecution for the same offense after acquittal, a second prosecution for the

same offense after conviction, and multiple punishments for the same offense. State v.

Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7; North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). But the Double

Jeopardy Clause “does no more than prevent the sentencing court from prescribing

greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359,

366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the dispositive issue is “whether the
General Assembly intended to permit multiple punishments for the offenses at issue.”

State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).

      {¶38} In Ohio, this constitutional protection is codified in R.C. 2941.25. “R.C.

2941.25 essentially codified the judicial merger doctrine.” State v. Cabrales, 118 Ohio

St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 23.          The Ohio Supreme Court has

explained that “[m]erger is ‘the penal philosophy that a major crime often includes as

inherent therein the component elements of other crimes and that these component

elements, in legal effect, are merged in the major crime.’” Id. at ¶ 23, fn. 3, quoting

Maumee v. Geiger, 45 Ohio St.2d 238, 243-244, 344 N.E.2d 133 (1976).

      {¶39} R.C. 2941.25 provides:

      (A) Where the same conduct by defendant can be construed to constitute
      two or more allied offenses of similar import, the indictment or information
      may contain counts for all such offenses, but the defendant may be
      convicted of only one.

      (B) Where the defendant’s conduct constitutes two or more offenses of
      dissimilar import, or where his conduct results in two or more offenses of
      the same or similar kind committed separately or with a separate animus as
      to each, the indictment or information may contain counts for all such
      offenses, and the defendant may be convicted of all of them.

      {¶40} The Ohio Supreme Court set forth the test to determine if two offenses are

allied offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892. It explained:

             Rather than compare the elements of two offenses to determine
      whether they are allied offenses of similar import, the analysis must focus
      on the defendant’s conduct to determine whether one or more convictions
      may result because an offense may be committed in a variety of ways and
      the offenses committed may have different import. No bright-line rule can
       govern every situation.

              As a practical matter, when determining whether offenses are allied
       offenses of similar import within the meaning of R.C. 2941.25, courts must
       ask three questions when defendant’s conduct supports multiple offenses:
       (1) Were the offenses dissimilar in import or significance? (2) Were they
       committed separately? and (3) Were they committed with separate animus
       or motivation? An affirmative answer to any of the above will permit
       separate convictions. The conduct, the animus, and the import must all be
       considered.

Id. at ¶ 30-31.

       {¶41} Whether trafficking and possession are allied offenses, however, was

answered by the Ohio Supreme Court in State v. Cabrales, 118 Ohio St.3d 54,

2008-Ohio-1625, 886 N.E.2d 181. At paragraph two of the syllabus, the court held that:

“Trafficking in a controlled substance under R.C. 2925.03(A)(2) and possession of that

same controlled substance under R.C. 2925.11(A) are allied offenses of similar import

under R.C. 2941.25(A), because commission of the first offense necessarily results in

commission of the second.”       Here, McDonald was convicted of trafficking heroin under

R.C. 2925.03(A)(2) and possessing heroin under R.C. 2925.11(A).             Accordingly, the

trial court erred by not merging them.

       {¶42} McDonald’s remaining arguments, however, are without merit.            He was

also convicted of possessing alpha-PVP and criminal tools. These offenses are not

allied offenses to each other or trafficking heroin or possessing heroin.

       {¶43} When looking at McDonald’s conduct in this case, it is clear that he did not

commit these offenses with the same conduct. The officers found the alpha-PVP in

McDonald’s car when he was stopped by police just before they executed the search
warrant on his house.     The heroin was found in the kitchen, where the “criminal tools”

were also found. Possessing heroin is not the same conduct as possessing alpha-PVP.

Possessing criminal tools is not the same conduct as trafficking or possessing drugs.

Thus, besides trafficking and possessing heroin, which are allied offenses, the remaining

offenses were committed separately and, thus, are not allied offenses of similar import.

        {¶44} McDonald’s second assignment of error is overruled in part and sustained in

part.

        {¶45} Judgment affirmed in part, reversed in part, and remanded for resentencing

in order for the state to elect which allied offense to pursue for purposes of sentencing.

        It is ordered that appellee and appellant share the costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
TIM McCORMACK, P.J., CONCURS IN JUDGMENT
ONLY WITH SEPARATE OPINION



TIM McCORMACK, P.J., CONCURRING IN JUDGMENT ONLY:
       {¶46} I agree with the majority’s disposition of both of McDonald’s assignments

of error.   I disagree, though, with the treatment of McDonald’s argument that the case

lacked sufficient evidence to find that he was the “real dealer.”

       {¶47} Specifically, I believe it is essentially unfounded for this court to determine

that there was sufficient evidence for a reasonable factfinder to find that the other two

persons living in the same house with McDonald, in close quarters, had nothing to do

with trafficking heroin.   It would be unfair and inaccurate for this court to state that

there was sufficient evidence for a reasonable factfinder to find that the other two were

involved to some degree in trafficking heroin.    It is equally unfounded and inaccurate to

find that they “had nothing to do with trafficking heroin.” Further, such a conclusion is

an unnecessary step in determining that there was sufficient evidence to convict

McDonald.     For that reason, I would have excluded the speculative discussion of

McDonald’s guilt as it related to the other household members.
