      [Cite as State v. Love , 2011-Ohio-4147.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 GALLIA COUNTY

STATE OF OHIO,                                    :
                                                  :
      Plaintiff-Appellee,                         :   Case No. 10CA7
                                                  :
      vs.                                         :   Released: July 28, 2011
                                                  :
LARRY W. LOVE,                                    :   DECISION AND JUDGMENT
                                                  :   ENTRY
      Defendant-Appellant.                        :

                                         APPEARANCES:

Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Assistant State
Public Defender, Columbus, Ohio, for Appellant.

C. Jeffrey Adkins, Gallia County Prosecutor, and Eric R. Mulford, Gallia County
Assistant Prosecutor, Gallipolis, Ohio, for Appellee.


McFarland, J.:

      {¶1} Appellant Larry W. Love appeals his conviction in the Gallia County

Court of Common Pleas after a jury found him guilty of seven counts: two counts

of trafficking in drugs, felonies of the fourth degree in violation of R.C.

2925.03(A)(2); three counts of possession of drugs, felonies of the fourth and fifth

degree in violation of R.C. 2925.11(A); one count of trafficking in drugs, a felony

of the fifth degree in violation of R.C. 2925.03(A)(1); and receiving stolen

property, a felony of the fourth degree in violation of R.C. 2913.51(A). On appeal,

Appellant raises two assignments of error, arguing that 1) the trial court denied him
Gallia App. No. 10CA7                                                          2


the right to confront witnesses against him when it admitted out-of-court

statements made by a confidential informant; and 2) the trial court erred by not

merging counts five and six of his conviction as allied offenses of similar import.

Having reviewed the record, we find the trial court erred by admitting the

confidential informant’s out-of-court statements, but the error was harmless. We

do find, however, the trial court failed to merge two allied offenses of similar

import and sustain Appellant’s second assignment of error. As such, we affirm in

part the trial court’s judgment, reverse in part, and remand the cause for further

proceedings.

                                       FACTS

      {¶2} In February 2010, Gallia County Sheriff Deputies Nathan Harvey

(“Dep. Harvey”) and Fred Workman (“Dep. Workman”) were in contact with a

confidential informant (“CI”). The CI claimed to know Appellant and stated

Appellant would soon be in Gallipolis, Ohio to sell drugs.

      {¶3} Based upon this information, Dep. Harvey and Dep. Workman devised

a plan to execute a controlled buy between the CI and Appellant. The CI would

call Appellant and establish a time and place to buy drugs from Appellant. The CI

would then wear an electronic audio recording device during the transaction, while

the deputies monitored the audio recording and surveilled the area via video
Gallia App. No. 10CA7                                                        3


camera. The deputies also enlisted the aid of Sergeant Robert Jacks (“Sgt. Jacks”)

of the Ohio State Highway Patrol.

      {¶4} On February 9, 2010, the CI placed a recorded phone call to Appellant.

The CI asked when Appellant would be arriving, and Appellant indicated it would

be some time because he was driving from West Virginia and the roads were in

poor condition. Appellant informed the CI he was out of the “hard” (crack

cocaine), but he had the “boy” (heroin). Appellant also had “cane” (powder

cocaine). Appellant told the CI he would contact her when he was closer to

Gallipolis.

      {¶5} Dep. Harvey then conducted a pre-buy interview with the CI, which he

recorded. The CI confirmed what drugs she was going to purchase and the price.

The CI then confirmed Dep. Harvey had searched her and given her $200 of

marked money.

      {¶6} Later that evening, Appellant met the CI at a Speedway gas station in

Gallipolis. The CI entered the rear of Appellant’s vehicle, which Appellant was

driving, and which contained a passenger, Appellant’s co-defendant Maryam

Johnson (“Johnson”). From this point, Appellant’s version of the events conflicts

with Johnson’s.

      {¶7} According to Johnson, Appellant had both the heroin and powder

cocaine, and he gave a portion of each to the CI in exchange for $200. After a
Gallia App. No. 10CA7                                                           4


brief conversation, the CI exited the vehicle and Appellant began driving again.

Shortly thereafter, a police cruiser appeared behind Appellant’s vehicle. Johnson

claimed Appellant threw the remaining cocaine into her lap. Johnson did not know

what to do with the cocaine, so she placed it in her pant pocket.

      {¶8} Appellant pulled into a nearby driveway and the cruiser pulled in

behind him. Sgt. Jacks ordered Appellant out of the vehicle and handcuffed him.

The remaining heroin was in a bag on Appellant’s car seat and Johnson claims

Appellant yelled at her to hide it. Johnson did not touch the heroin, but once she

was handcuffed, she removed the cocaine from her pocket and placed it down the

front of her pants.

      {¶9} Appellant, conversely, contended the powder cocaine was Johnson’s.

When the CI entered Appellant’s vehicle, Johnson put a small amount of powder

cocaine into a plastic bag and placed it on the center console. Appellant handed

the cocaine and the heroin to the CI and Johnson placed the remaining cocaine

down the front of her pants. When Appellant exited the Speedway parking lot, he

intended to place the remaining heroin into his pocket, but because he was high

from smoking copious amounts of “cush” marijuana, he accidentally placed the

heroin next to his thigh on the car seat. When Sgt. Jacks’ cruiser was behind

Appellant, he tried to find the heroin, but could not. As Sgt. Jacks was handcuffing
Gallia App. No. 10CA7                                                           5


Appellant, Appellant saw the heroin on his car seat and shook his head, realizing

his mistake.

      {¶10} After the transaction, Dep. Harvey met with the CI and conducted a

recorded post-buy interview, where the CI confirmed that Appellant had personally

handed her the drugs. The CI identified the bagged substances as black tar heroin

and cocaine and confirmed she had no additional narcotics on her person.

      {¶11} Subsequently, the state indicted Appellant for multiples counts of

trafficking in drugs and possession of drugs, regarding both the heroin and cocaine;

tampering with evidence for allegedly asking Johnson to conceal the cocaine on

her person; and receiving stolen property, because Appellant had taken the vehicle

he was driving without the owner’s permission.

      {¶12} At the jury trial, the state sought to introduce the audio recording of

the pre-buy interview containing the CI’s statements. Appellant objected, claiming

the CI was not subject to cross examination and claiming the state had yet to

disclose the CI’s identity. The trial court overruled Appellant’s objection and

permitted the jury to listen to the pre-buy interview. The state also introduced the

recording of the post-buy interview, which contained additional out-of-court

statements by the CI. The jury ultimately convicted Appellant of three counts of

trafficking in drugs, three counts of possession of drugs, and one count of receiving

stolen property.
Gallia App. No. 10CA7                                                           6


      {¶13} Appellant now appeals his conviction.

                           ASSIGNMENTS OF ERROR

I.    “THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO
      INTRODUCE TESTIMONIAL HEARSAY STATEMENTS OF A
      CONFIDENTIAL INFORMANT, WHOM MR. LOVE WAS NOT
      PERMITTED TO CROSS-EXAMINE, IN VIOLATION OF THE SIXTH
      AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
      CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE
      OHIO CONSTITUTION.

II.   “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.”

                        FIRST ASSIGNMENT OF ERROR

                                 Pre-Buy Interview

      {¶14} In his first assignment of error, Appellant argues that the trial court

erred when it permitted the state to introduce testimony and audio recordings

containing the CI’s out-of-court statements during the pre-buy and post-buy

interviews. Specifically, Appellant contends this violated his right to confront

witnesses against him under the Sixth and Fourteenth Amendments of the United

States Constitution and Sections 10 and 16, Article I of the Ohio Constitution. We

disagree.

      {¶15} “[T]he admission or exclusion of evidence generally rests in the trial

court’s sound discretion.” State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672,

at ¶ 17, citing State v. Sage (1987), 31 Ohio St.3d 173, 51 N.E.2d 343. “However,
Gallia App. No. 10CA7                                                            7


questions concerning evidentiary issues that also involve constitutional protections,

including confrontation clause issues, should be reviewed de novo.” Jeffers at ¶

17, citing State v. Hardison, 9th Dist. No. 23050, 2007-Ohio-366.

         {¶16} The Sixth Amendment to the United States Constitution provides,

“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him.” The Supreme Court of the United

States has “held that this bedrock procedural guarantee applies to both federal and

state prosecutions.” Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177, citing Pointer v. Texas (1965), 380 U.S. 400, 406, 85 S.Ct. 1065,

13 L.Ed.2d 923. Likewise, Section 10, Article I of the Ohio Constitution provides,

“[i]n any trial, in any court, the party accused shall be allowed * * * to meet the

witnesses face to face.” Before its admission, “[w]here testimonial evidence is at

issue * * * the Sixth Amendment demands what the common law required:

unavailability and a prior opportunity for cross examination.” Crawford, 541 U.S.

at 68.

         {¶17} “The text of the Confrontation Clause * * * applies to ‘witnesses’

against the accused – in other words, those who ‘bear testimony.’ 2 N. Webster,

An American Dictionary of the English Language (1828). ‘Testimony,’ in turn, is

typically ‘[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.’ Ibid. An accuser who makes a formal
Gallia App. No. 10CA7                                                           8


statement to government officers bears testimony in a sense that a person who

makes a casual remark to an acquaintance does not.” Crawford at 51. Thus, the

threshold question is whether the subject statements are testimonial.

      {¶18} Ohio employs two tests to determine whether a statement is

testimonial, dependent upon the status of the recipient. When statements are made

to non-law enforcement, Ohio has adopted the “objective witness” test, whereby “a

testimonial statement includes one made ‘under circumstances which would lead

an objective witness reasonably to believe that the statement would be available for

use at a later trial.’” State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855

N.E.2d 834, at ¶ 36, quoting Crawford at 52.

      {¶19} Conversely, when statements are made to law-enforcement officers or

their agents, Ohio employs “the primary-purpose test”: “‘Statements are

nontestimonial when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the interrogation

is to enable police assistance to meet an ongoing emergency. They are testimonial

when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or

prove past events potentially relevant to later criminal prosecution.’” State v. Siler,

116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, at ¶ 24, quoting Davis v.

Washington (2006), 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (holding
Gallia App. No. 10CA7                                                            9


a recorded phone call made to a 911 dispatcher was non-testimonial because the

primary purpose was to resolve an ongoing emergency). As the CI made her

statements during the pre-buy interview to Dep. Harvey, a law enforcement officer,

we employ the primary-purpose test to determine whether the CI’s statements are

testimonial.

      {¶20} Here, the CI’s statements were testimonial. First, there was no

objective ongoing emergency during the pre-buy interview. Second, the CI’s

statements were not regarding contemporaneous facts. Her statements pertained to

what she and Appellant had discussed during a previous phone call and the

impending controlled buy, none of which was contemporaneous. Third, the CI’s

statements were neither intended nor necessary to resolve an ongoing emergency,

as none existed. Finally, there was a level of formality to the recorded pre-buy

interview and the interview was prearranged, unlike the non-testimonial 911 call in

Davis that was frantic and spontaneous. Overall, the primary purpose of the CI’s

statements was to establish or prove past events potentially relevant to later

criminal prosecution, rendering her statements testimonial. See State v. Arnold,

126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, at ¶ 35.

      {¶21} The state argues, however, the CI’s statements are not hearsay, based

upon our decision in State v. Jones, 4th Dist. No. 09CA1, 2010-Ohio-865, and thus

there was no error. Yet our discussion of the Confrontation Clause in Jones was
Gallia App. No. 10CA7                                                            10


dicta. The appellant in Jones did not raise the confrontation issue with the trial

court and waived the issue for our review upon appeal. Jones at ¶ 20.

      {¶22} Moreover, the state’s alternative argument that the CI’s statements

qualify as present sense impressions under Evid.R. 803(1) is without merit.

Whether statements would be admissible under a hearsay exception is immaterial

to the threshold issue of whether they violate the Confrontation Clause. Crawford

was clear: whether out-of-court statements are admissible under the Sixth

Amendment turns on whether they are testimonial, not whether they are hearsay.

“[E]x parte communications might sometimes be admissible under modern hearsay

rules, but the Framers certainly would not have condoned them.” Crawford at 51.

“Where testimonial statements are involved, we do not think the Framers meant to

leave the Sixth Amendment’s protection to the vagaries of the rules of evidence. *

* * To be sure, the [Confrontation] Clause’s ultimate goal is to ensure reliability

of evidence, but it is a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be assessed in a

particular manner: by testing it in the crucible of cross-examination.” (Emphasis

added.) Crawford at 61. “Where testimonial statements are at issue, the only

indicium of reliability sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation.” Crawford at 68-69.

“Involvement of government officers in the production of testimony with an eye
Gallia App. No. 10CA7                                                          11


toward trial presents unique potential for prosecutorial abuse – a fact borne out

time and again throughout a history with which the Framers were keenly familiar.

This consideration does not evaporate when testimony happens to fall within some

broad, modern hearsay exception, even if that exception might be justifiable in

other circumstances.” Crawford at 56, fn. 7.

      {¶23} Even before Crawford, it was clear the Confrontation Clause and the

hearsay exceptions were separate and distinct considerations. “Although we have

recognized that hearsay rules and the Confrontation Clause are generally designed

to protect similar values, we have also been careful not to equate the Confrontation

Clause’s prohibitions with the general rule prohibiting the admission of hearsay

statements. The Confrontation Clause, in other words, bars the admission of some

evidence that would otherwise be admissible under an exception to the hearsay

rule.” (Internal citations omitted.) Idaho v. Wright (1990), 497 U.S. 805, 814, 110

S.Ct. 3139, 111 L.Ed.2d 638. To adopt the state’s argument would ignore

Crawford’s mandate and revert to the rule of Ohio v. Roberts (1980), 448 U.S. 56,

100 S.Ct. 2531, 65 L.Ed.2d 597 (focusing on hearsay and permitting out-of-court

statements that were admissible under a firmly rooted hearsay exception or a

particularized guarantee of trustworthiness), which the U.S. Supreme Court

explicitly overruled. We decline to adopt such a position.
Gallia App. No. 10CA7                                                         12


      {¶24} As we have determined, the CI’s statements are testimonial. The state

did not demonstrate the CI was unavailable to testify or that Appellant had a prior

opportunity to cross-examine her. Without these showings, the trial court should

have excluded the CI’s testimony because Appellant was not afforded the right to

confront and cross examine her. We hold the trial court erred in admitting the pre-

buy interview into evidence. Thus, we turn to whether this error was harmless.

      {¶25} “A constitutional error can be held harmless if we determine that it

was harmless beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214,

2006-Ohio-791, 842 N.E.2d 996, at ¶ 78, citing Chapman v. California (1967), 386

U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. “Whether a Sixth Amendment error

was harmless beyond a reasonable doubt is not simply an inquiry into the

sufficiency of the remaining evidence. Instead, the question is whether there is a

reasonable possibility that the evidence complained of might have contributed to

the conviction.” Id., citing Chapman at 23 and State v. Madrigal (2000), 87 Ohio

St.3d 378, 388, 721 N.E.2d 52. See, also, Crawford at 42, fn. 1.

      {¶26} In Chapman, the improperly admitted evidence essentially covered

the entire commission of the crime and was not harmless, warranting a reversal of

the defendant’s conviction and remand. In contrast, the Court in Harrington v.

California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, found the

improper admission of testimonial statements by co-defendants to be harmless.
Gallia App. No. 10CA7                                                       13


The Supreme Court stated the standard announced in Chapman did not mean it had

to reverse a conviction if it could “imagine a single juror” whose mind might have

been made up or changed by the improper evidence. Rather, the Court’s

“judgment must be based on our own reading of the record and on what seems to

us to have been the probable impact of the [improper evidence] on the minds of an

average jury.” Harrington at 254. Despite the Court’s admonishment in Chapman

not to place too much weight on the “overwhelming evidence” of guilt found in the

remaining evidence, Harrington found the remaining evidence overwhelming and

the error harmless. Id.

      {¶27} Similarly, the Supreme Court of Ohio found the improperly admitted

evidence in Conway had little impact on the jury because it was largely cumulative

of the remaining evidence. Conway at ¶ 79. Additionally, the Court found the

case in Conway was not close: there was significant evidence of the defendant’s

guilt, including his own testimony. Conway at ¶ 82. Thus, the improper admission

of evidence in Conway was harmless beyond a reasonable doubt. Conway at ¶ 83.

See, also, United States v. Torres (C.A.6, 1995), 63 F.3d 476 (holding improperly

admitted hearsay testimony about whether defendant was known to carry a gun

while performing drug transactions was harmless error; defendant made a written

statement that he had a gun at the relevant time).
Gallia App. No. 10CA7                                                           14


      {¶28} Here, the trial court’s error in admitting the pre-buy interview into

evidence was harmless beyond a reasonable doubt. The pre-buy interview was

cumulative of the remaining evidence and its probable impact on the mind of an

average jury was very little. The only fact the pre-buy interview established that

was not found in the remaining evidence was the breakdown of how the CI was

going to spend the $200 in marked bills: $100 worth of heroin and $100 worth of

cocaine. (Pre-Buy Tr. at 7.) We cannot say admission of this fact contributed to

Appellant’s conviction and warrants reversal.

      {¶29} Accordingly, we find the trial court’s improper admission of the pre-

buy interview into evidence was harmless error.

                                 Post-Buy Interview

      {¶30} Appellant also contested the introduction of the post-buy interview,

but he failed to object to its admission during the trial and waived all but plain

error. Under Crim.R. 52(B), “the defendant bears the burden of demonstrating that

a plain error affected his substantial rights.” State v. Perry, 101 Ohio St.3d 118,

2004-Ohio-297, 802 N.E.2d 643, at ¶ 14, citing United States v. Olano (1993), 507

U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508. “Even if the defendant satisfies

this burden, an appellate court has discretion to disregard the error and should

correct it only to ‘prevent a manifest miscarriage of justice.’” (Internal quotation

omitted.) Id., quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d
Gallia App. No. 10CA7                                                          15


1240, quoting State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at

paragraph three of the syllabus. Further, to find plain error we must be able to say

that, but for the error, the outcome of the trial clearly would have been otherwise.

Id. at paragraph two of the syllabus; State v. McCausland, 124 Ohio St.3d 8, 2009-

Ohio-5933, 918 N.E.2d 507, at ¶ 15; State v. Braden, 98 Ohio St.3d 354, 2003-

Ohio-1325, 785 N.E.2d 439, at ¶ 50; State v. Sanders (2001), 92 Ohio St.3d 245,

263, 750 N.E.2d 90.

      {¶31} Here, we find the introduction of the post-buy interview did not

constitute plain error. While it may have been error for the trial court to admit the

interview in contravention to Appellant’s right to confrontation, as with the pre-

buy interview, the facts elicited during the post-buy interview are cumulative of the

properly admitted evidence. The post-buy interview established the following: the

CI believed the substances she obtained to be black tar heroin and cocaine; she

paid Appellant $200 for the substances, which was the same $200 Dep. Harvey had

given her; the CI had no other contraband on her; and Appellant was the one who

engaged in the hand-to-hand transaction with the CI. Yet all of this information

was established through other, properly admitted, evidence. Given the cumulative

nature of the post-buy interview, we cannot say the trial clearly would have been

different, but for its erroneous introduction. Thus, Appellant suffered no prejudice

and we find no plain error.
Gallia App. No. 10CA7                                                          16


      {¶32} Accordingly, we overrule Appellant’s first assignment of error.

                        SECOND ASSIGNMENT OF ERROR

      {¶33} In his second assignment of error, Appellant argues counts five and

six of his indictment should have merged when the trial court sentenced him.

Count five alleged Appellant trafficked 0.6 grams of heroin, while count six

alleged he possessed the same 0.6 grams of heroin. The trial court held these

counts did not merge and sentenced Appellant to 12 months for both counts, to be

served consecutively. As we find these offenses should have merged as allied

offenses, we sustain Appellant’s second assignment of error.

      {¶34} When determining whether multiple offenses should have merged

under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta (Nov.

12, 1996), 4th Dist. No. 96 CA 3. See, also, Coleman v. Davis, 4th Dist. No.

10CA5, 2011-Ohio-506, at ¶ 16 (“We review questions of law de novo.”), quoting

State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶ 12, quoting Cuyahoga

Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d

330, at ¶ 23.

      {¶35} 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
Gallia App. No. 10CA7                                                           17


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.”

        {¶36} As the Supreme Court explained in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the court must

determine prior to sentencing whether the offenses were committed by the same

conduct.” Johnson at ¶ 47. The initial question is whether it is possible to commit

the two offenses with the same conduct. Johnson at ¶ 48. If so, we must then look

to the facts of the case and determine whether the two offenses actually were

committed by the same conduct, “i.e., ‘a single act, committed with a single state

of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50. “If the answer to both questions is yes, then

the offenses are allied offenses of similar import and will be merged.” Johnson at

¶ 50.

        {¶37} “Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are
Gallia App. No. 10CA7                                                                                         18


committed separately, or if the defendant has separate animus for each offense,

then, according to R.C. 2941.25(B), the offenses will not merge.” Johnson at ¶ 51.

         {¶38} Here, the trial court stated in its judgment entry, “Counts Five & Six

are not allied offenses of similar import under Cabrales because the trafficking

charge was a sale or offer to sell as opposed to it being a mere transport or delivery

of the drug.”1 The flaw with the trial court’s analysis is State v. Cabrales, 118

Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, applied State v. Rance (1999), 85

Ohio St.3d 632, 710 N.E.2d 699; but the Supreme Court has since overruled

Rance.2 Johnson at syllabus.

         {¶39} Johnson dictates a different conclusion. First, the subject 0.6 grams of

heroin is the heroin Dep. Harvey recovered from the CI immediately after the

controlled buy. Looking to the initial question in Johnson, it is possible to both

sell and possess heroin with the same conduct. That is, when a person engages in

an actual sale of heroin and physically gives the heroin to the purchaser, the seller

necessarily possessed the heroin, too.

         {¶40} We then look to whether the possession and trafficking were actually

committed by the same conduct, “a single act, committed with a single state of

mind” and in our view, they were. Appellant admitted to physically possessing a


         1
             Contrary to the state’s position, the trial court did not state the two crimes were committed with separate
animi.
         2
          We recognize that Johnson was not yet decided when the trial court performed its analysis and the court
could not have foreseen the impending shift in the Supreme Court’s jurisprudence.
Gallia App. No. 10CA7                                                             19


larger quantity of heroin and selling 0.6 grams of it to the CI. As Appellant sold

the heroin to the CI, Appellant also possessed the heroin. These were neither

separate acts, nor did Appellant possess a separate animus for both crimes. The

two crimes arise from the same conduct and under the facts of this case must

merge as allied offenses of similar import.

      {¶41} Accordingly, we sustain Appellant’s second assignment of error and

reverse the trial court’s judgment of conviction and remand for sentencing. State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 25. We note

“[t]he state * * * retains the right to elect which allied offense to pursue on

sentencing on a remand to the trial court after an appeal.” Whitfield at ¶ 21. See,

also, State v. Murphy, 4th Dist. No. 09CA3311, 2010-Ohio-5031, at ¶ 97.

                   JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                      AND THE CAUSE REMANDED FOR PROCEEDINGS
                                 CONSISTENT WITH THIS OPINION.
Gallia App. No. 10CA7                                                            20


                                  JUDGMENT ENTRY

        It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED
IN PART AND THE CAUSE REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION and that the Appellee and the Appellant
split 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
Gallia County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

Kline, J. and Abele, J.: Concur in Judgment and Opinion.

                                               For the Court,


                                          BY: _________________________
                                                 Matthew W. McFarland, Judge
                               NOTICE TO COUNSEL
             Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
