[Cite as State v. Williams, 2012-Ohio-4708.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 2012-CA-34
ERNEST WILLIAMS, III.                          :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Court of Common Pleas, Case No.
                                                   11CR00446

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            October 9, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CHRISTOPER REAMER                                  VALERIE KUNZE
Assistant Licking County Prosecutor                Assistant State Public Defender
Administration Building                            250 East Broad Street, Ste. 1400
20 South Second Street                             Columbus, OH 43215
Newark, OH 54055
[Cite as State v. Williams, 2012-Ohio-4708.]


Gwin, P.J.

        {¶1}      Appellant Ernest Williams, III [“Williams”] appeals his convictions after a

bench trial of two counts of trafficking in heroin in an amount equal to or exceeding ten

unit doses but less that 50 unit doses within the vicinity of a school; one count of

possession of heroin in an amount equal to or exceeding ten unit doses but less that 50

unit doses and one count of tampering with evidence. The appellee is the State of Ohio.

                                   FACTS AND PROCEDURAL HISTORY

        {¶2}      At trial, Amanda Davis, a confidential informant for the Central Ohio Drug

Enforcement Task Force [“CODE”], testified that she purchased heroin from Williams on

August 31 and September 6, 2011. Detective Thomas testified that Ms. Davis

purchased 10 doses of heroin on August 31 and 5 doses of heroin on September 6 with

marked money from CODE. After the September 6, 2011 purchase, Officer Keene

stopped Williams. Keene testified that prior to making the arrest, he observed Williams

toss a baggy from his right hand. Surveillance Officer Boerstler also testified that

Williams "tossed the bag on the ground." T., March 13, 2012 at 54. The bag contained

28 doses of heroin. Id. at 144.

        {¶3}      On March 13, 2012, the court held a bench trial at which Williams

represented himself. Williams was convicted on all counts. The court ordered that

Williams serve 30 months on Count 1, 15 months on Count 2, 15 months on Count 3,

and 12 months on Count 4 to run consecutively. Williams did not raise the issue of

merger of counts two and three at the time of sentencing.1

                                          ASSIGNMENTS OF ERROR

        {¶4}      Williams raises one assignment of error,
        1
            Williams has not challenged his convictions for Counts One and Four in this appeal.
Licking County, Case No. 2012-CA-34                                                   3


      {¶5}   “I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED

TO MERGE THE OFFENSES OF TRAFFICKING IN HEROIN AND POSSESSION OF

HEROIN, CONTRARY TO R.C. 2941.25.”

                                                I.

      {¶6}   In his sole assignment of error Williams contends that Counts 2 and 3 are

allied offenses of similar import and must be merged for sentencing. Williams argues in

order to complete a drug sale, the seller must possess drugs. On September 6, 2011,

Williams possessed drugs in order to sell drugs.

      {¶7}   Because appellant did not raise the merger issue at trial, the plain-error

standard applies. See State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 127; Crim.R. 52(B). Plain error exists when a trial court was required to,

but did not, merge a defendant's offenses because the defendant suffers prejudice by

having more convictions than authorized by law. State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. A sentence that contains an allied-offenses

error is contrary to law. R.C. 2953.08(A)(4). See also State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26.

      {¶8}   R.C. 2941.25, Multiple counts states:

             (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
Licking County, Case No. 2012-CA-34                                                  4


      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.

      {¶9}    In State v. Cabrales, 118 Ohio St.3d 54, 2008–Ohio–1625, the Supreme

Court of Ohio explained the following:

              We begin by comparing the elements of possessing a controlled

      substance under R.C. 2925.11(A) and trafficking in a controlled substance

      under R.C. 2925.03(A)(1). To be guilty of possession under R.C.

      2925.11(A), the offender must ‘knowingly obtain, possess, or use a

      controlled substance.’ To be guilty of trafficking under R.C. 2925.03(A)(1),

      the offender must knowingly sell or offer to sell a controlled substance.

      Trafficking under R.C. 2925.03(A)(1) requires an intent to sell, but the

      offender need not possess the controlled substance in order to offer to sell

      it. Conversely, possession requires no intent to sell. Therefore, possession

      under R.C. 2925.11(A) and trafficking under R.C. 2925.03(A)(1) are not

      allied offenses of similar import, because commission of one offense does

      not necessarily result in the commission of the other.

      Cabrales, 118 Ohio St.3d 54, ¶ 29.

      {¶10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson

court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699(1999), “to the extent

that it calls for a comparison of statutory elements solely in the abstract under R.C.
Licking County, Case No. 2012-CA-34                                                    5


2941.25.” The Court was unanimous in its judgment and the syllabus, “When

determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered. State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not

agree on how the courts should apply that syllabus holding. The Johnson case lacks a

majority opinion, containing instead two plurality opinions, and a separate concurrence

in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-

1147, ¶71 (DeGenaro, J., concurring in part and dissenting in part).

      {¶11} Justice Brown’s plurality opinion sets forth a new two-part test for

determining whether offenses are allied offenses of similar import under R.C. 2941.25.

The first inquiry focuses on whether it is possible to commit both offenses with the same

conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one

offense will always result in the commission of the other. Id. Rather, the question is

whether it is possible for both offenses to be committed by the same conduct. Id.,

quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816(1988).

Conversely, if the commission of one offense will never result in the commission of the

other, the offenses will not merge. Johnson at ¶ 51.

      {¶12} If it is possible to commit both offenses with the same conduct, the court

must next determine whether the offenses were in fact committed by a single act,

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in

judgment only). If so, the offenses are allied offenses of similar import and must be
Licking County, Case No. 2012-CA-34                                                    6

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately

or with a separate animus, the offenses will not merge. Id. at ¶ 51.

       {¶13} Under Justice Brown’s plurality opinion in Johnson, “the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather,

the court simply must ask whether the defendant committed the offenses by the same

conduct. Id.

       {¶14} Justice O'Connor's plurality opinion advocates that the proper inquiry

under R.C. 2941.25(A) is not whether the two offenses can be committed with the same

conduct, but whether the convictions “arose from the same conduct that involves similar

criminal wrongs and similar resulting harm.” Johnson at ¶ 70 (O'Connor, J., concurring

in judgment.) The O'Connor plurality also notes that this determination should be aided

by a review of the evidence adduced at trial. Id. at ¶ 68–69, 942 N.E.2d 1061. State v.

Helms, 2012-Ohio-11467, ¶ 79.

       {¶15} Justice O'Donnell's separate concurrence, joined by Justice Lundberg

Stratton, sets forth a slightly different analysis,

               [T]he proper inquiry is not whether the elements align in the

       abstract as stated in Rance but, rather, whether the defendant's conduct,

       i.e., the actions and behavior of the defendant, results in the commission

       of two or more offenses of similar or dissimilar import or two or more

       offenses of the same or similar kind committed separately or with a

       separate animus as to each. See Black's Law Dictionary (9th Ed.2009)
Licking County, Case No. 2012-CA-34                                                 7


      336 (“conduct” defined as “[p]ersonal behavior, whether by action or

      inaction”).

Johnson at ¶ 78 (O'Donnell, J., separately concurring.) State v. Helms, 2012-Ohio-

11467, ¶ 80-81.

      {¶16} As Judge DeGenaro from the Seventh District Court of Appeals has noted,

             While all three opinions focus on the conduct of the defendant,

      there are notable distinctions between them. The Brown plurality is still

      somewhat hypothetical in nature. The determination of “whether it is

      possible to commit one offense and commit the other with the same

      conduct,” still appears to require an abstract comparison. Johnson at ¶ 48

      (emphasis added). The O'Connor plurality directs the focus of the analysis

      back to the evidence adduced at trial, while also leaving open the

      possibility for some comparison of the elements of the offenses: “Rance,

      inasmuch as it requires a comparison of the elements of the offenses

      solely in the abstract, should be overruled.” Johnson at ¶ 68–69, 942

      N.E.2d 1061 (emphasis added). Justice O'Connor also returns to the

      language of the statute, parsing out the meaning of several key terms:

      “allied offenses” and “of similar import.” Id. at ¶ 65–68, 942 N.E.2d 1061.

      The O'Donnell concurrence emphasizes the importance of removing

      abstract comparisons from the merger analysis and shifts the focus of the

      test onto whether the two offenses were committed separately or with a

      separate animus. Johnson at ¶ 78–83, 942 N.E.2d 1061.
Licking County, Case No. 2012-CA-34                                                    8

State v. Helms, 2012-Ohio-11467, ¶ 82 (DeGenaro, J., concurring in part and dissenting

in part).

       {¶17} R.C. 2925.11(A), provides that, “no person shall knowingly obtain,

possess, or use a controlled substance.”

       {¶18} R.C. 2925.03 provides that “[n]o person shall knowingly (1) Sell or offer to

sell a controlled substance.”

       {¶19} A person acts knowingly, regardless of his or her purpose, when that

person is aware that his or her conduct will probably cause a certain result or will

probably be of a certain nature. R.C. 2901.22(B). It is necessary to look at all the

attendant facts and circumstances in order to determine if a defendant knowingly

possessed a controlled substance. State v. Teamer, 82 Ohio St.3d 490, 492, 696

N.E.2d 1049(1998).

       {¶20} Possession “means having control over a thing or substance, but may not

be inferred solely from mere access to the thing or substance through ownership or

occupation of the premises upon which the thing or substance is found.” R.C.

2925.01(K). Interpreting the meaning of the term “possession,” Ohio courts have held

possession may be actual or constructive. See State v. Wolery, 46 Ohio St.2d 316, 329,

348 N.E.2d 351(1976); State v. Hankerson, 70 Ohio St.2d 87, 90-1, 434 N.E.2d 1362;

State v. Boyd, 63 Ohio App.3d 790, 580 N.E.2d 443(1989). To establish constructive

possession, the state must prove the defendant was able to exercise dominion or

control over the object, even though that object may not be within his immediate

physical possession. Boyd, supra, at 796, 580 N.E.2d 443. Further, it must also be
Licking County, Case No. 2012-CA-34                                                   9

shown that the person was “conscious of the presence of the object.” Hankerson, supra,

at 91, 434 N.E.2d 1362.

      {¶21} In the case at bar, the September 6, 2011, counts of possession and

trafficking related to separate and distinct occurrences committed with separate

animuses.

      {¶22} Concerning the September 6, 2011 transaction, the confidential informant

ordered “five bindles” of heroin from Williams by telephone. (T. 30; 80; 107). Williams

arrived at the pre-determined meeting place on foot. (T. 53). After completing the sale,

Williams walked back down the alley between Woods and 10th Street and around the

corner when he was observed to toss a baggie from his right hand. That baggie

contained 28 unit doses of heroin. (T. at 53-54; 63-64; 66; 148; 151; 152-153).

Accordingly, the September 6, 2011, counts of possession and trafficking related to

separate and distinct occurrences. Williams actually “possessed” 32 unit doses of

heroin from which he “sold” five of those unit doses to the undercover informant.

Williams knew in advance that the confidential informant requested only five unit doses

of heroin, yet he had an additional 28 unit doses in his possession.

      {¶23} This is not a case where the trafficking and possession counts arouse

from delivery of the same amount of drugs that was possessed by Williams. After

Williams sold the five unit doses to the undercover informant, he walked away. At that

point, he continued to possess an additional 28 unit doses of heroin.
Licking County, Case No. 2012-CA-34                                              10


      {¶24} Williams’ sole assignment of error is overruled, and the judgment of the

Licking County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur




                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          _________________________________
                                          HON. SHEILA G. FARMER




WSG:clw 0917
[Cite as State v. Williams, 2012-Ohio-4708.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ERNEST WILLIAMS, III.                             :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-34




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment

 of the Licking County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER
