[Cite as State v. Bennett, 2015-Ohio-3560.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 14-COA-029
                                               :
KIRK A. BENNETT                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Ashland County Court
                                                   of Common Pleas, Case No. 14-CRI-
                                                   075



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            August 27, 2015




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

CHRISTOPHER R. TUNNELL                             CHRISTINA I. REIHELD
ASHLAND CO. PROSECUTOR                             P.O. Box 532
PAUL T. LANGE                                      Danville, OH 43014
110 Cottage St., 3rd Floor
Ashland, OH 44805
Ashland County, Case No. 14-COA-029                                                         2

Delaney, J.

       {¶1} Appellant Kirk A. Bennett appeals from the October 1, 2014 Judgment

Entry - Sentencing of the Ashland County Court of Common Pleas. Appellee is the

state of Ohio.

                               FACTS AND PROCEDURAL HISTORY

       {¶2} This appeal arises from a negotiated plea. The underlying facts are taken

from the pre-sentence investigation (P.S.I.), which has been made part of the record for

our review.

       {¶3} A detective with the Ashland Police Department received reliable

information that appellant was selling marijuana from his father's residence at 802

Cottage Street, Ashland. The detective surveilled the residence and observed people

with "criminal histor[ies] for marijuana use or trafficking" coming and going from the

house for short periods of time.

       {¶4} Investigators obtained a search warrant for the residence which was

executed on May 6, 2014. Marijuana was found in appellant's bedroom and appellant

told officers "Anything illegal you find in [the house] is mine." Officers found cash, digital

scales, baggies, and a paper ledger documenting sales. Regarding the quantity of

marijuana found, the P.S.I. contains the following statement by the detective:

                 * * * *.

                            I weighed the marijuana and it weighed 2.70 pounds, the

                 baggie that was laying outside of the bag weighed only .70 pounds.

                 This means there was a little over 1/4 pound missing. The other 2

                 baggies weighed exactly 1 pound.        It's obvious [appellant] was
Ashland County, Case No. 14-COA-029                                                   3


             selling the marijuana, from the amount he had, the digital scales,

             paper ledger, multiple baggies and the short term traffic I saw in

             and out of his house.

             * * * *.

             (P.S.I., 6).

      {¶5} Appellant was charged by indictment with one count of possession of

marijuana in violation of R.C. 2925.11(A), a felony of the third degree [Count I]; one

count of trafficking in marijuana in the vicinity of a school pursuant to R.C.

2925.03(A)(1), a felony of the fourth degree [Count II]; one count of trafficking in

marijuana pursuant to R.C. 2925.03(A)(2), a felony of the second degree [Count III]; and

one count of possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a

misdemeanor of the fourth degree [Count IV]. Counts I, II, and III include a forfeiture

specification pursuant to R.C. sections 2981.04 and 2941.1417 related to $797 cash

and a Samsung cell phone.

      {¶6} Count I of the indictment references an amount of marijuana in excess of

1000 grams but less than 5000 grams possessed by appellant on May 6, 2014. Count

II addresses trafficking marijuana in the vicinity of a school between May 1 and May 6,

2014. Count III applies to trafficking marijuana in an amount exceeding 1000 grams but

less than 5000 grams in the vicinity of a school between March 25, 2014 and May 6,

2014. Finally, Count IV references baggies, pipes, digital scales, and/or rolling papers

possessed by appellant on May 6, 2014.
Ashland County, Case No. 14-COA-029                                                    4


       {¶7} On August 6, 2014, appellant entered negotiated pleas of guilty to Counts

I and II and the accompanying forfeiture specifications. Appellee dismissed Counts III

and IV. The trial court set the matter for sentencing pending a P.S.I.

       {¶8} On October 1, 2014, the trial court sentenced appellant to a prison term of

36 months on Count I to be served concurrently with a term of 15 months on Count II.

       {¶9} Appellant now appeals from the judgment entries of his convictions and

sentences.

       {¶10} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶11} "I.   THE TRIAL COURT ERRED WHEN IT DID NOT MERGE THE

POSSESSION AND TRAFFICKING COUNTS FOR PURPOSES OF SENTENCING."

       {¶12} "II. THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO THE

MAXIMUM SENTENCE IN PART BASED UPON THE REQUEST OF THE LOCAL

MUNICIPAL JUDGE TO MAKE AN EXAMPLE OF APPELLANT IN ORDER TO

PREVENT FUTURE OFFENDERS FROM COMMITTING MISDEMEANORS AFTER

FELONY SENTENCING, IN EFFECT ASKING THE TRIAL COURT TO SENTENCE

APPELLANT BASED UPON THE MUNICIPAL JUDGE'S BELIEF THAT HE COULD

NOT ADEQUATELY PUNISH THE APPELLANT FOR A MISDEMEANOR IN A

SEPARATE CASE."
Ashland County, Case No. 14-COA-029                                                     5


                                         ANALYSIS

                                            I.

      {¶13} In his first assignment of error, appellant argues the trial court should have

merged the possession offense of Count I and the trafficking offense of Count II for

sentencing purposes. We disagree.

      {¶14} At the sentencing hearing, defense trial counsel argued Counts I and II

should merge but appellee objected, noting Count I related to marijuana found during

execution of the search warrant on May 6, 2014 and Count II related to sales of

marijuana in the vicinity of a school observed between May 1 and May 6, 2014.

      {¶15} R.C. 2941.25 states as follows:

                    (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.

      {¶16} Appellant entered guilty pleas to the following offenses:
Ashland County, Case No. 14-COA-029                                                6


           I. Count I, possession of marijuana in an amount greater than

           or equal to one thousand grams but less than five thousand

           grams pursuant to R.C. 2925.11(A) and (C)(3)(d):

                 No person shall knowingly obtain, possess, or use a

           controlled substance or a controlled substance analog.

                 If the drug involved in the violation is marihuana or a

           compound,    mixture,   preparation,      or   substance   containing

           marihuana other than hashish, whoever violates division (A) of this

           section is guilty of possession of marihuana. The penalty for the

           offense shall be determined as follows:

                 If the amount of the drug involved equals or exceeds one

           thousand grams but is less than five thousand grams, possession

           of marihuana is a felony of the third degree, and division (C) of

           section 2929.13 of the Revised Code applies in determining

           whether to impose a prison term on the offender.

           II. Count II, trafficking marijuana in the vicinity of a school

           pursuant to R.C. 2925.03(A)(1) and (C)(3)(b):

                 No person shall knowingly * * * [s]ell or offer to sell a controlled

           substance or a controlled substance analog[.]

                 If the drug involved in the violation is marihuana or a

           compound,    mixture,   preparation,      or   substance   containing

           marihuana other than hashish, whoever violates division (A) of this
Ashland County, Case No. 14-COA-029                                                     7


             section is guilty of trafficking in marihuana. The penalty for the

             offense shall be determined as follows:

                    Except as otherwise provided in division (C)(3)(c), (d), (e),

             (f), (g), or (h) of this section, if the offense was committed in the

             vicinity of a school or in the vicinity of a juvenile, trafficking in

             marihuana is a felony of the fourth degree, and division (B) of

             section 2929.13 of the Revised Code applies in determining

             whether to impose a prison term on the offender.

       {¶17} The question of whether offenses merge for sentencing depends upon the

subjective facts of the case in addition to the elements of the offenses charged. In a

plurality opinion, the Ohio Supreme Court modified the test for determining whether

offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St.3d 1405,

2010–Ohio–6314. The Court directed us to look at the elements of the offenses in

question and determine whether or not it is possible to commit one offense and commit

the other with the same conduct. If the answer to such question is in the affirmative, the

court must then determine whether or not the offenses were committed by the same

conduct. If the answer to the above two questions is yes, then the offenses are allied

offenses of similar import and will be merged. If, however, the court determines that

commission of one offense will never result in the commission of the other, or if there is

a separate animus for each offense, then the offenses will not merge according to

Johnson, supra.

       {¶18} The Court has recently spoken again on merger issues and offers a

framework for our analysis:
Ashland County, Case No. 14-COA-029                                                 8


                     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.

              State v. Ruff, ---Ohio St.3d---, 2015-Ohio-995, ---N.E.3d---, ¶ 31.

       {¶19} While objectively marijuana possession and marijuana trafficking may

sometimes be allied offenses of similar import, in the instant case they are not. The

offenses are dissimilar in import and significance: possession of marijuana at the

residence versus sale transactions performed in the vicinity of a school. The offenses

were committed separately: the search warrant resulting in the marijuana found [Count

I] was based upon the transactions observed in Count II. The offenses were committed

with a separate animus1 or motivation: the "managerial" necessities of marijuana

dealing including storing the product versus the actual selling thereof.




1
  “R.C. 2941.25(B), by its use of the term ‘animus,’ requires [courts] to examine the
defendant's mental state in determining whether two or more offenses may be chiseled
from the same criminal conduct. In this sense, * * * the General Assembly intended the
term ‘animus' to mean purpose or, more properly, immediate motive. Like all mental
states, animus is often difficult to prove directly, but must be inferred from the
surrounding circumstances.” State v. Sydnor, 4th Dist. Scioto No. 10CA3359, 2011-
Ohio-3922, ¶ 39, citing State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979)
(citations omitted).
Ashland County, Case No. 14-COA-029                                                    9


       {¶20} We thus agree with appellee that the instant case shares many similarities

with State v. Williams, 5th Dist. Licking No. 2012-CA-34, 2012-Ohio-4708, in which the

counts of possession and trafficking related to separate and distinct occurrences: "This

is not a case where the trafficking and possession counts arose from delivery of the

same amount of drugs that was possessed by [appellant]. After [appellant] 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." Id. at ¶ 23. See also, State v. Montoya,

12th Dist. Clermont No. 2012-02-015, 2013-Ohio-3312, ¶ 64, appeal allowed, 137 Ohio

St.3d 1410, 2013-Ohio-5096, 998 N.E.2d 510, and aff'd, 138 Ohio St.3d 345, 2014-

Ohio-848, 6 N.E.3d 1172 [appellant sold only a portion of narcotics on each occasion

and possessed the remainder, "constituting a separate act with a different animus"]. IN

the case sub judice, as set forth in Counts I and II, the possession is separate from the

trafficking.

       {¶21} We therefore conclude Counts I and II are not allied offenses of similar

import and the trial court properly did not merge the offenses for sentencing.

Appellant's first assignment of error is overruled.

                                                 II.

       {¶22} In his second assignment of error, appellant argues the trial court should

not have relied upon an email from the municipal judge advising it of problems appellant

caused at the jail while awaiting felony sentencing. We disagree.

       {¶23} First, we note the trial court "may consider any other factors that are

relevant to achieving those purposes and principles of sentencing" in addition to the

statutory factors it is required to consider. R.C. 2919.12(A). We thus disagree with
Ashland County, Case No. 14-COA-029                                                     10


appellant's underlying premise that the trial court could not take the email from the

municipal court judge into account when fashioning appellant's sentence.

       {¶24} More significantly in this case, however, we agree with appellee there is

no evidence in the record the trial court took the email into account at all. The record of

the sentencing hearing establishes only that the trial court "received and reviewed a

[P.S.I.] supplemented by some information from Judge Good of the Ashland Municipal

Court, and that material has been reviewed by the Court and made available for

Counsel and Counsel's review as well."       (T. 3).   In comparison, the trial court did

specifically note it took into account appellant's prior felonies.     (T. 7).   The P.S.I.

contains a lengthy criminal history including offenses of violence and multiple drug-

related offenses, including possession and trafficking of marijuana.

       {¶25} We find no evidence the trial court took any impermissible factor in

account in fashioning appellant's sentence. Appellant's second assignment of error is

therefore overruled.
Ashland County, Case No. 14-COA-029                                            11


                                  CONCLUSION

      {¶26} Appellant's two assignments of error are overruled and the judgment of

the Ashland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Wise, J., concur.
