[Cite as State v. Mitchell, 2014-Ohio-5070.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                                :

        Plaintiff-Appellee                                   :    C.A. CASE NO.    25976

v.                                                           :    T.C. NO.   12CR1055/1

LAYRUE MITCHELL JR.                                          :     (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                     :

                                                             :

                                               ..........

                                               OPINION

            Rendered on the            14th         day of       November      , 2014.

                                               ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

WILLIAM F. OSWALL JR., Atty. Reg. No. 0080597, 810 Sycamore Street, Fifth Floor,
Cincinnati, Ohio 45202
       Attorney for Defendant-Appellant

                                               ..........
                                                                                            2



DONOVAN, J.

         {¶ 1}   Defendant-appellant Layrue Mitchell, Jr. appeals his conviction and sentence

for one count of possession of heroin, one count of misdemeanor possession of drugs, one

count of possession of criminal tools, and three counts of having weapons while under

disability. Mitchell filed a timely notice of appeal with this Court on October 28, 2013.

         {¶ 2}   In late 2011, Detective Gregory Stout of the Kettering Police Department in

Montgomery County, Ohio, received information from patrol police officers who suspected

that illegal drug sales were being conducted out of a residence located at 1515 Moler

Avenue. Det. Stout contacted a confidential informant (CI) who informed him that Mitchell

lived at the residence with his girlfriend, Kristi Curtis. After investigating further and

verifying that Mitchell and Curtis did in fact live at the residence, Det. Stout arranged

controlled buys on two separate occasions utilizing the CI. On both occasions, the CI

purchased varying amounts of heroin from Mitchell which were then turned over to Det.

Stout.

         {¶ 3}   As a result of the investigation and controlled buys, Det. Stout obtained a

search warrant for the person and residence of Mitchell, and for the white 2000 Chevy

Blazer that he drove.1 The warrant was executed on January 6, 2012. Accompanied by

other officers, Det. Stout took Mitchell into custody behind a restaurant named Jimmy’s

Italian located at 3002 Woodman Drive in Dayton, Ohio, where Curtis worked. The search



           1
           Det. Stout testified that the Chevy Blazer driven by Mitchell was registered to
   Virginia Ruth Mitchell.
                                                                                             3

of the Chevy Blazer failed to turn up any incriminating evidence. Upon searching Mitchell,

however, police found approximately $2,299.00 in cash, a cell phone, and keys to the

residence at 1515 Moler Avenue. During the subsequent search of the residence, the police

located illegal drugs, three guns, and various drug paraphernalia. Specifically, in the master

bedroom closet, the police found a loaded 9mm handgun on a shelf placed next to a small

safe. Beneath the safe, the police found a .22 long rifle and a Mossberg 12 gauge shotgun

leaning on the wall. Once the police were able to force open the safe, they discovered 1.81

grams of a tan powdery substance that was later identified as heroin. A single orange pill

was also found in the safe that was later identified as buprenorphine, a Schedule III

controlled substance for which Mitchell did not have a prescription. Inside a dresser located

on the opposite side of the room, the police found a digital scale covered with heroin and

cocaine residue. After obtaining a search warrant for the cell phone seized from Mitchell,

its contents were examined at the Miami Valley Regional Computer Forensics Lab. Two

photographs taken from the cell phone depicted Mitchell standing in the master bedroom of

1515 Moler Avenue brandishing the 9mm handgun found in the closet next to the safe.

       {¶ 4}    Upon being interviewed by police, Mitchell acknowledged that he resided at

1515 Moler Avenue with Curtis.         When informed that he might face potential drug

trafficking charges, Mitchell stated that he had been using three grams of heroin daily for the

last six to eight months.

       {¶ 5}    On June 13, 2012, Mitchell was indicted for one count one count of

trafficking in heroin, one count of possession of heroin, one count of possession of criminal

tools, one count of misdemeanor possession of drugs, and three counts of having weapons
                                                                                              4

while under disability. Mitchell pled not guilty, and subsequently filed a motion to suppress

evidence, based on a claim that the affidavit supporting the warrant contained material

misstatements and omissions, and violated Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct.

2674, 57 L.Ed.2d 667 (1978). The trial court granted Mitchell’s motion to suppress the

evidence obtained from the search of his residence, and the State appealed the decision to

this Court.

       {¶ 6}    In State v. Mitchell, 2d Dist. Montgomery No. 25402, 2013-Ohio-622

(hereinafter “Mitchell I”), we concluded that the trial court erred by granting Mitchell’s

motion to suppress. Specifically, we found that the affidavit provided a substantial basis

upon which the issuing judge could find a fair probability that a crime had been committed

and that evidence would be found within the place to be searched. Id. at ¶ 2. We reversed

the decision granting the suppression motion and remanded the case to the trial court. Id.

       {¶ 7}    The case proceeded to trial on September 5, 2013. After the close of the

State’s case, the trial court sustained Mitchell’s Crim. R. 29 motion for acquittal with respect

to the first count in the indictment for trafficking in heroin. Mitchell did not call any

witnesses on his behalf. The jury found Mitchell guilty of the remaining six charges. At

his sentencing hearing on September 25, 2013, the trial court imposed an aggregate sentence

of fifty months in prison.

       {¶ 8}    It is from this judgment that Mitchell now appeals.

       {¶ 9}    Mitchell’s first assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ERRED WHEN IT PERMITTED THE STATE TO

AMEND COUNT 2 OF THE INDICTMENT.”
                                                                                            5

       {¶ 11} In his first assignment, Mitchell contends that the trial court erred when it

permitted the State to amend Count II of the indictment prior to trial. Originally, Mitchell

was charged in Count II with possession of heroin in an amount less than one gram, a felony

of the fifth degree. Before trial, the State moved to amend the indictment to reflect that the

amount of heroin Mitchell was alleged to possess was “more than one gram but less than

five grams.” In its decision granting the motion, the trial court specifically found that “the

proposed amendment does not change either the name or identity of the crime.” The trial

court also acknowledged that as a result of the amendment, the degree of the possession

charge changed from a felony of the fifth degree to a felony of the fourth degree. We note

that Mitchell did not file a memorandum in opposition to the State’s motion, nor did he

object to the amendment of the indictment at trial.

       {¶ 12} Crim. R. 7(D) provides in part:

               The court may at any time before, during, or after a trial amend the

       indictment, information, complaint, or bill of particulars, in respect to any

       defect, imperfection, or omission in form or substance, or of any variance

       with the evidence, provided no change is made in the name or identity of the

       crime charged.

       {¶ 13} Because amendment is allowed under Crim. R. 7(D) in the court’s

discretion, our review is for abuse of discretion. State v. Madding, 2d Dist. Montgomery No.

24412, 2011-Ohio-3865, ¶ 11. “Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83,

87, 482 N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of
                                                                                              6

discretion will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

       {¶ 14} A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result. AAAA Enterprises,

Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

       {¶ 15} Mitchell did not oppose or object to the amendment of the indictment, so all

but plain error has been forfeited. State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293

(1990). For plain error to exist, the defect in the trial proceedings must be obvious and must

have affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

873 N.E.2d 306, ¶ 16. “Notice of plain error ‘is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108, quoting State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶ 16} Mitchell asserts, and the State concedes, that the trial court erred in

permitting an amendment to the indictment. To support this argument, Mitchell cites State

v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609. In Davis, the trial court

amended an aggravated drug trafficking charge, finding that the amount of oxycontin found

in the defendant’s possession was more than five times the bulk amount. Id. at ¶ 2. This

amendment changed the degree of the charged offense from a felony of the fourth degree, to
                                                                                            7

a felony of the second degree. Id. at ¶ 3. While the Court in Davis recognized that an

amendment is proper if it does not change the penalty or the degree of the offense, it held

that an amendment that does alter the penalty or degree implicitly alters the identity of the

offense and is not permitted under Crim. R. 7(D). Id. at ¶ 13.

       {¶ 17} While the State concedes that it was error for the trial court to permit the

amendment of the indictment from a felony of the fifth degree to a felony of the fourth

degree, it argues that the error was harmless because the judgment entry of conviction

reflects that Mitchell was convicted of possession of heroin, a felony of the fifth degree, as

stated in the original indictment.     Moreover, the State points out that Mitchell was

sentenced to ten months in prison on the heroin possession charge, which is within the

sentencing range for a fifth degree felony conviction.

       {¶ 18} Significantly, however, the verdict forms clearly state that the jury found

Mitchell guilty of possession of heroin in an amount more than one gram but less than five

grams, a felony of the fourth degree.      Thus, the verdict form is inconsistent with the

judgment entry of conviction as to the level of the offense (i.e., the quantity of drugs).

Moreover, the fact that Mitchell received a sentence that was within the applicable statutory

range for a fifth degree felony is irrelevant. Because the trial court permitted the State to

improperly amend Count II of the indictment, Mitchell was convicted of an offense

“essentially different from that found by the grand jury.” Davis, at ¶ 12, citing State v.

Headley, 6 Ohio St.3d 475, 479, 453 N.E.2d 716 (1983).

       {¶ 19} The amendment ultimately changed the offense of possession of heroin from

a fifth degree felony to a fourth degree felony. The increase in severity of the offense
                                                                                          8

changes the identity of the offense and is expressly forbidden by Crim. R. 7(D). Davis, at ¶

25. Thus, the trial court plainly erred by permitting the State to amend the indictment. An

amendment which changes the name or identity of the offense alleged, being expressly

forbidden by Crim. R. 7(D), is reversible error regardless of whether a defendant can

demonstrate prejudice as a result of the amendment. State v. Gilleland, 2d Dist. Champaign

No. 2004 CA 1, 2005-Ohio-659, ¶ 15.

       {¶ 20} Mitchell’s first assignment of error is sustained.

       {¶ 21} Mitchell’s second assignment of error is as follows:

       {¶ 22} “THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS FIVE

THROUGH SEVEN.”

       {¶ 23} In his second assignment, Mitchell argues that the trial court erred when it

failed to merge his convictions in Counts V, VI, and VII for having weapons while under

disability. 2 Specifically, Mitchell asserts that the convictions for having weapons while

under disability should have merged because all three firearms that were found during the

search of his residence were located in the same place. We note that Mitchell failed to

object to the trial court’s failure to merge the offenses, so all but plain error has been

forfeited. Lott, 51 Ohio St.3d 160, 167.

       {¶ 24} R.C. 2941.25, concerning allied offenses of similar import, provides:

               (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or


          2
            In its merit brief, the State concedes that the trial court erred when it
   failed to merge all three of Mitchell’s convictions for having weapons while under
   disability.
                                                                                         9

       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.

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

1061, the Ohio Supreme Court announced a new test for determining when offenses are

allied offenses of similar import. Pursuant to Johnson, “[w]hen 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.” Id. at ¶ 44. The Court further noted that:

                In determining whether offenses are allied offenses of similar import

       under R.C. 2941.25(A), the question is whether it is possible to commit one

       offense and commit the other with the same conduct, not whether it is

       possible to commit one without committing the other. * * * If the offenses

       correspond to such a degree that the conduct of the defendant constituting

       commission of one offense constitutes commission of the other, then the

       offenses are of similar import.

                If the multiple offenses can be committed by the same conduct, then

       the court must determine whether the offenses were committed by the same

       conduct, i.e., “a single act, committed with a single state of mind.” * * *
                                                                                          10

              If the answer to both questions is yes, then the offenses are allied

       offenses of similar import and will be merged.

              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

       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.

(Citations and quotations omitted.) Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, at ¶ 48-51.

       {¶ 26} In support of his argument that the offenses should have been merged by the

trial court, Mitchell directs our attention to State v. King, 2d Dist. Clark No. 2012-CA-25,

2012-CA-26, 2013-Ohio-2021, wherein we stated the following:

              R.C. 2923.13 prohibits individuals under certain legal disabilities

       from acquiring, having, carrying or using any firearm or dangerous ordnance.

        Several appellate districts have commented that the legislature’s use of the

       word “any” created an ambiguity as to whether each individual weapon was

       the “unit of prosecution,” rather than the “transaction of having the weapons.”

        E.g., State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000 WL 1678020, *13

       (Nov. 6, 2000); see also State v. English, 1st Dist. Hamilton No. C-080872,

       2010-Ohio-1759, ¶ 43. These courts have held that “the simultaneous,

       undifferentiated possession of weapons by a person under a disability

       constitutes only one offense and not separate offenses for each weapon.”

       (Emphasis in original.) Pitts at *13; see also, e.g., State v. Creech, 188 Ohio
                                                                                         11

        App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶ 24 (4th Dist.); English at

        ¶ 43; State v. Long, 9th Dist. Summit No. 26441, 2013-Ohio-251.

Id. at ¶ 32.

        {¶ 27} In King, the defendant was apprehended after he crashed his vehicle into a

telephone pole and attempted to flee from the scene. Id. at ¶ 38. After the defendant’s

apprehension, the police located a gun in his vehicle. Id. The defendant was taken to a

hospital and to the police department before he was moved to the jail, where he produced a

second gun from his jacket. Id. The record in King did not establish whether the defendant

initially acquired the guns at different times. Id. at ¶ 38. However, from the facts in the

record, it is apparent that the defendant had both guns in his possession while he fled from

officers in his vehicle. Id. Thus, we found that while the defendant was fleeing in his car,

he had simultaneous, undifferentiated possession of both weapons, and the trial court erred

when it failed to merge the defednant’s two counts of having weapons while under disability

as allied offenses of similar import. Id. at 41.

        {¶ 28} In the instant case, all three guns were located together in the closet in

Mitchell’s master bedroom.       No evidence was presented at trial that established when

Mitchell acquired any of the three weapons.        Accordingly, we find that Mitchell had

simultaneous, undifferentiated possession of all three weapons, and the trial court erred

when it failed to merge the three counts of having weapons while under disability as allied

offenses of similar import.

        {¶ 29} Mitchell’s second assignment of error is sustained.

        {¶ 30} Mitchell’s third assignment of error is as follows:
                                                                                            12

        {¶ 31} “THE TRIAL COURT ERRED IN ENTERING A JUDGMENT OF

GUILTY            OF   POSSESSING      CRIMINAL      TOOLS      AND      FOR        SENTENCING

DEFENDANT-APPELLANT FOR THAT OFFENSE.”

        {¶ 32} In his third assignment, Mitchell argues that the digital scale and Sentry box

safe that he was convicted of possessing are actually “drug paraphernalia” rather than

criminal tools. Therefore, Mitchell asserts that he should have been convicted of possession

of drug paraphernalia, in violation of R.C. 2925.14, a misdemeanor of the fourth degree,

instead of possession of criminal tools, in violation of R.C. 2923.24, a fifth degree felony.3

We note that Mitchell failed to object or otherwise raise this issue before the trial court.

Therefore, we review this assignment under a plain error analysis.

        {¶ 33} In support of his contention, Mitchell cites to our recent holding in State v.

Griffin, 2d Dist. Montgomery No. 24001, 2013-Ohio-2230; reversed on other grounds, State

v. Griffin,            Ohio St.3d         , Slip Opinion No. 2014-Ohio-4767. In Griffin, we

held that the trial court erred in sentencing the defendant for possession of items that are

properly classified as drug paraphernalia rather than criminal tools. Id. at ¶ 3.

        {¶ 34} R.C. 2925.14 (C)(1) prohibits any person from knowingly using or

possessing with purpose to use, drug paraphernalia.            Under R.C. 2925.14(A) “drug

paraphernalia” is defined as:

                   [A]ny equipment, product, or material of any kind that is used by the

        offender, intended by the offender for use, or designed for use, in

        propagating, cultivating, growing, harvesting, manufacturing, compounding,


              3
              The State concedes error in regards to this assignment.
                                                                                            13

       converting, producing, processing, preparing, testing, analyzing, packaging,

       repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or

       otherwise introducing into the human body, a controlled substance in

       violation of this chapter.

       {¶ 35} R.C. 2925.14(A)(1)-(13) also provides a non-exclusive list of various

equipment, products or materials that could be classified as drug paraphernalia. This list

includes items like kits for cultivating controlled substances, scales or balances for weighing

or measuring controlled substances, testing equipment for identifying the strength of

controlled substances, hypodermic syringes, separation gins for removing twigs and seeds

from marijuana, and so forth. In addition, the list includes these items:

               (6) A scale or balance for weighing or measuring a controlled

       substance.

               ***

               (11) A container or device for storing or concealing a controlled

       substance.

       {¶ 36} In Griffin, we found that it is possible to commit both offenses (possession

of criminal tools and possession of drug paraphernalia) with the same conduct.

               R.C. 2923.24 is a very broad statute, and covers the possession of

       “any substance, device, instrument, or article, with purpose to use it

       criminally.” R.C. 2925.14 is more specific, but it also covers possession,

       with intent to use drug paraphernalia. As we pointed out in Susser II, this is

       a “subcategory” of “criminal tool.” Susser II, 2d Dist. Montgomery No.
                                                                                           14

        12745, 1992 WL 41834, *4 (March 2, 1992). The offenses in this case were

        also committed by the same conduct, being a single act, and were committed

        with a single state of mind. All that occurred here, to form the offense, was

        simple possession of a forbidden object.

Id. at ¶ 64.

        {¶ 37} In Griffin, the defendant used a razor and plate (which contained drug

residue) to prepare and cut the drugs, and the gel capsules and baggies were used for

packaging and storing the drugs. Id. at ¶ 69. Under the definitions provided in R.C.

2925.14(A), we found that the items in question were drug paraphernalia, rather than

criminal tools.

        {¶ 38} R.C. 2925.14(C)(1) prohibits any person from knowingly using or

possessing with purpose to use, drug paraphernalia. In the instant case, “[a] scale or balance

for weighing or measuring a controlled substance” is specifically enumerated as a type of

equipment used as “drug paraphernalia.” R.C. 2925.14(A)(6). Therefore, the digital scale

(which contained drug residue) located in Mitchell’s dresser clearly qualifies as “drug

paraphernalia” as contemplated under R.C. 2925.14. Additionally, the small Sentry box

safe Mitchell used to store and conceal his heroin also falls within the definition of “drug

paraphernalia” as defined under R.C. 2925.14(A)(11). Accordingly, the instant case falls

squarely under our holding in Griffin, and Mitchell should have been sentenced for

possession of drug paraphernalia, a violation of R.C. 2925.14(C)(1), rather than for

possession of criminal tools.

        {¶ 39} Mitchell’s third assignment of error is sustained.
                                                                                         15

       {¶ 40} Mitchell’s fourth assignment of error is as follows:

       {¶ 41} “DEFENDANT-APPELLANT’S CONVICTIONS MUST BE REVERSED

DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.”

       {¶ 42} In his fourth assignment, Mitchell argues that he received ineffective

assistance when his trial counsel failed to object to Det. Stout’s testimony relating to the

underlying reasons for the issuance of the search warrant. Mitchell also asserts that his

counsel was deficient for failing to object to the admission of the search warrant and its

supporting affidavit. Specifically, Mitchell argues that portions of Det. Stout’s testimony

and the search warrant and affidavit constituted inadmissible hearsay that should have been

excluded.

       {¶ 43} As this Court noted in Strickland v. Washington, 466 U.S. 668,104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), “the proper standard for attorney performance is that of

reasonably effective assistance. * * *.”      Id., 687.   “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment. * * *.” Id., 691. “It is not enough

for the defendant to show that the errors had some conceivable effect on the outcome of the

proceeding. * * *.” Id., 693. The Strickland Court further noted, “[o]n the other hand, we

believe that a defendant need not show that counsel’s deficient conduct more likely than not

altered the outcome in the case.”    Id.    “The result of a proceeding can be rendered

unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be

shown by a preponderance of the evidence to have determined the outcome.” Id., 694.

Finally, the Court in Strickland determined that to establish ineffective assistance, “[t]he
                                                                                           16

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

       {¶ 44} We note that the State elicited the following testimony from Det. Stout

which clearly constituted inadmissible hearsay statements (which the State concedes): 1) that

Det. Stout had been advised by patrol officers that there was potential drug activity at 1515

Moler Avenue; 2) that he had spoken with a CI who provided him with information

regarding Mitchell; 3) that the CI told him that Mitchell and Curtis recently had a domestic

dispute at the address in question; and 4) that two controlled drug transactions occurred

between Mitchell and the CI at 1515 Moler Avenue. It is clear from the record that Det.

Stout was not present when the controlled drug buys occurred. Det. Stout merely related

back in his own testimony what the CI told him regarding the drug transactions.

       {¶ 45} All of the aforementioned testimony was clearly inadmissible hearsay which

should have been excluded. Furthermore, the testimony was substantially more prejudicial

than probative under Evid. R. 403. Upon review, we cannot deduce any strategic reason for

trial counsel not to have objected to the hearsay testimony of Det. Stout. Additionally,

counsel failed to object to the admission into evidence of the search warrant and supporting

affidavit, which relied heavily on the information provided by the CI to Det. Stout. This

allowed the jury a second opportunity to review inadmissible and prejudicial hearsay

evidence.

       {¶ 46} Trial counsel’s failure to object to the admission of Det. Stout’s testimony

regarding the pre-warrant controlled buys and the admission of the search warrant clearly fell
                                                                                             17

below an objective standard of reasonableness. On the record before us, however, we

conclude that the remaining admissible evidence adduced by the State supports Mitchell’s

conviction on all counts beyond a reasonable doubt. Mitchell admitted to Det. Stout that he

lived at 1515 Moler Avenue with his girlfriend, Curtis. Mitchell had keys to the residence

and was observed by Det. Stout arriving at and leaving the residence shortly before the

search warrant was executed. The small Sentry box safe wherein the heroin powder and the

buprenorphine pill were found contained several prescription bottles with Mitchell’s name

on them.    The safe was found directly next to a 9mm handgun that Mitchell is seen

brandishing in a photograph that was retrieved from his cell phone. It is was also apparent

that the photograph of Mitchell holding the handgun was taken in the master bedroom of the

residence at 1515 Moler Avenue. The shotgun and rifle were located directly beneath the

small box safe in the closet in the bedroom. Furthermore, Mitchell admitted to Det. Stout in

an interview that he had been using three grams of heroin a day for several months.

       {¶ 47} Irrespective of the inadmissible hearsay testimony to which defense counsel

failed to object, the State adduced sufficient admissible testimony at trial to support

Mitchell’s conviction for the charged offenses. Simply put, Mitchell has failed to establish

that but for counsel’s deficient performance, the result of the trial would have been different.

       {¶ 48} Mitchell’s fourth assignment of error is overruled.

       {¶ 49} Mitchell’s fifth assignment of error is as follows:

       {¶ 50} “DEFENDANT-APPELLANT’S CONVICTIONS WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶ 51} In his fifth assignment, Mitchell contends that his convictions are not
                                                                                               18

supported by the manifest weight of the evidence.

       {¶ 52} “When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact ‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” State v.

Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being

against the manifest weight of the evidence ‘only in the exceptional case in which the

evidence weighs heavily against the conviction.’ ” Id., quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 53} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a

judgment is against the manifest weight of the evidence requires that substantial deference

be extended to the factfinder’s determinations of credibility. The decision whether, and to

what extent, to credit the testimony of particular witnesses is within the peculiar competence

of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.

Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

       {¶ 54} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
                                                                                             19

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997).

       {¶ 55} We initially note that the jurors had the opportunity to hear and observe all

of the witnesses, and they clearly believed the State’s version of events, and we defer to their

assessment of credibility. We also note that Mitchell did not call any witnesses during his

case in chief, nor did he present any additional evidence. As we discussed in the preceding

assignment, ample admissible evidence was adduced by the State which supports Mitchell’s

conviction on all counts beyond a reasonable doubt. The trial court did not lose its way

simply because it chose to believe the testimony of the State’s witnesses. Having reviewed

the entire record, we cannot clearly find that the evidence weighs heavily against a

conviction, or that a manifest miscarriage of justice has occurred.

       {¶ 56} Mitchell’s fifth assignment of error is overruled.

       {¶ 57} Mitchell’s sixth and final assignment of error is as follows:

       {¶ 58} “THE        TRIAL COURT         ERRED      IN    IMPOSING       CONSECUTIVE

SENTENCES.”

       {¶ 59} In his final assignment, Mitchell argues that the trial court erred when it

imposed consecutive sentences. Specifically, Mitchell asserts that the trial court did not

make the requisite findings pursuant to R.C. 2929.14(C)(4) to support the imposition of

consecutive sentences. For its part, the State concedes the alleged error and acknowledges

that a remand is necessary. We agree.

       {¶ 60} Before imposing the partially consecutive sentences, the trial court was

required to find: (1) “consecutive service is necessary to protect the public from future crime
                                                                                          20

or to punish the offender”; (2) “consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public”;

and (3) any of the following:

       (a) The offender committed one or more of the multiple offenses while the

       offender was awaiting trial or sentencing, was under a sanction imposed

       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was

       under post-release control for a prior offense.(b) At least two of the multiple

       offenses were committed as part of one or more courses of conduct, and the

       harm caused by two or more of the multiple offenses so committed was so

       great or unusual that no single prison term for any of the offenses committed

       as part of any of the courses of conduct adequately reflects the seriousness of

       the offender’s conduct.(c) The offender’s history of criminal conduct

       demonstrates that consecutive sentences are necessary to protect the public

       from future crime by the offender.

R.C. 2929.14(C)(4)(a)-(c).

       {¶ 61} The trial court did not make any of the foregoing findings. (Tr. Vol. II at

454-458). Accordingly, the matter is remanded for the trial court to consider whether

consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to enter the

necessary findings on the record.

       {¶ 62} Mitchell’s sixth and final assignment of error is sustained.

       {¶ 63} Mitchell’s first, second, third, and sixth assignments of error having been

sustained, the judgment of the trial court is reversed with respect to those assignments, and
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this matter is remanded for proceedings consistent with this opinion. The trial court’s

judgment            is     affirmed         in        all        other        respects.



                                      ..........

FAIN, J. and WELBAUM, J., concur.



Copies mailed to:

Andrew T. French
William F. Oswall Jr.
Hon. Barbara P. Gorman
