[Cite as State v. Edwards, 2012-Ohio-901.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25679

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JAMMOT L. EDWARDS                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 10 03 0820

                                 DECISION AND JOURNAL ENTRY

Dated: March 7, 2012



        CARR, Judge.

        {¶1}     Appellant, Jammot Edwards, appeals his conviction and sentence in the Summit

County Court of Common Pleas. This Court affirms, in part, and reverses, in part.

                                                I.

        {¶2}     Edwards was indicted on nine counts and various specifications.          At the

conclusion of trial, the jury found him guilty of one count each of receiving stolen property,

possession of marijuana, illegal use or possession of drug paraphernalia, and possessing criminal

tools. The trial court imposed a term of incarceration but suspended it on the condition that

Edwards successfully complete two years of community control. In addition, the trial court

imposed nine enumerated sanctions, including orders that Edwards repay the county for attorney

fees incurred in the case, with such to be taxed as court costs; and that Edwards pay the attorney

fees and costs of the prosecution. Edwards appealed, raising seven assignments of error for

review. This Court consolidates some assignments of error to facilitate review.
                                                 2


                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT SENTENCED MR. EDWARDS FOR POSSESSING CRIMINAL
       TOOLS AND RECEIVING STOLEN PROPERTY AS THEY WERE ALLIED
       OFFENSES OF SIMILAR IMPORT SUBJECT TO MERGER UNDER R.C.
       2941.25 FOR PURPOSES OF SENTENCING.

                                 ASSIGNMENT OF ERROR II

       MR. EDWARDS WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO ARGUE THAT POSSESSING CRIMINAL TOOLS
       AND RECEIVING STOLEN PROPERTY WERE ALLIED OFFENSES OF
       SIMILAR IMPORT SUBJECT TO MERGER UNDER R.C. 2941.25 FOR
       PURPOSES OF SENTENCING.

       {¶3}    In his first assignment of error, Edwards argues that the trial court erred when it

sentenced him on both possessing criminal tools and receiving stolen property because the two

crimes are allied offenses of similar import. In his second assignment of error, he argues that his

trial counsel was ineffective for failing to argue that the two crimes are allied offenses of similar

import which must be merged for purposes of sentencing.

       {¶4}    After Edwards was sentenced in this case, the Ohio Supreme Court announced a

new test for determining whether multiple offenses constitute allied offenses for sentencing

purposes. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus. The Johnson court

held that “[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. Because

Johnson was decided after the trial court sentenced Edwards, it did not have the opportunity to

apply the test enunciated in Johnson to determine whether the offenses at issue were allied.

Moreover, if so, the State did not have the opportunity to elect on which offense it wished to

proceed for sentencing. Since the high court’s decision in Johnson, this Court has consistently
                                                 3


remanded similar cases for further proceedings to allow the trial court to apply Johnson and

make this determination in the first instance.       See, e.g., State v. Cleland, 9th Dist. No.

09CA0070-M, 2011-Ohio-6786; State v. Creel, 9th Dist. No. 25476, 2011-Ohio-5893; State v.

Vitt, 9th Dist. No. 10CA0016-M, 2011-Ohio-1448. Accordingly, Edwards’ first assignment of

error is sustained. We reverse Edwards’ sentence, and remand this case to the trial court for

further proceedings consistent with this opinion. In light of our resolution of the first assignment

of error, we decline to address the second assignment of error as it has been rendered moot. See

App.R. 12(A)(1)(c).

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       OVERRULED MR. EDWARDS’ CRIM. R. 29(A) MOTION FOR JUDGMENT
       OF ACQUITTAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
       SUPPORT A CONVICTION FOR ILLEGAL USE OR POSSESSION OF
       DRUG PARAPHERNALIA.

       {¶5}    Edwards argues that the trial court erred by denying his motion for acquittal

pursuant to Crim.R. 29, because the State presented insufficient evidence to sustain a conviction

for illegal use or possession of drug paraphernalia. This Court disagrees.

       {¶6}    Crim.R. 29 provides, in relevant part:

       The court on motion of a defendant or on its own motion, after the evidence on
       either side is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment, information, or complaint, if the
       evidence is insufficient to sustain a conviction of such offense or offenses. The
       court may not reserve ruling on a motion for judgment of acquittal made at the
       close of the state’s case.

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.
                                                4


State v. Galloway, 9th Dist. No. 19752, 2001 WL 81257 (Jan. 31, 2001) quoting State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶7}    The test for sufficiency requires a determination of whether the State has

met its burden of production at trial. State v. Walker, 9th Dist. No. 20559, 2001 WL

1581570 (Dec. 12, 2001); see, also, State v. Thompkins, 78 Ohio St.3d 380, 390 (1997)

(Cook, J., concurring).

       {¶8}    Edwards was convicted of illegal use or possession of drug paraphernalia in

violation of R.C. 2925.14(C)(1) which states: “No person shall knowingly use, or possess with

purpose to use, drug paraphernalia.” R.C. 2925.14(A) defines “drug paraphernalia” generally as

“any 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, 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.”

The code further delineates thirteen categories of items which constitute “drug paraphernalia,”

including “[a] scale or balance for weighing or measuring a controlled substance;” and “[a]n

object, instrument, or device for ingesting, inhaling, or otherwise introducing into the human

body, marihuana, cocaine, hashish, or hashish oil, such as a metal, wooden, acrylic, glass, stone,

plastic, or ceramic pipe, with or without a screen, permanent screen, hashish head, or punctured

metal bowl; water pipe; carburetion tube or device; smoking or carburetion mask; roach clip or

similar object used to hold burning material, such as a marihuana cigarette, that has become too

small or too short to be held in the hand; miniature cocaine spoon, or cocaine vial; chamber pipe;
                                                  5


carburetor pipe; electric pipe; air driver pipe; chillum; bong; or ice pipe or chiller.” R.C.

2925.14(A)(6) and (13).

       {¶9}    R.C. 2901.22(B) states:

       A person acts knowingly, regardless of his purpose, when he is aware that his
       conduct will probably cause a certain result or will probably be of a certain
       nature. A person has knowledge of circumstances when he is aware that such
       circumstances probably exist.

       {¶10} “Possess” 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). A person acts with

purpose “when it is his specific intention to cause a certain result * * *” R.C. 2901.22(A).

       {¶11} At trial, the State presented the testimony of five law enforcement officers who

testified that Edwards’ home had been under surveillance for a period of time after the police

received several complaints alleging illegal drug activity at the home. The officers testified that

they each participated on March 22, 2010, in a search of Edwards’ residence which he shared

with his girlfriend and her two minor children.

       {¶12} Detective Alan Jones of the Akron Police Department’s (“APD”) Street Narcotics

Uniform Detail testified that digital scales and 230 grams of marijuana, including 120 grams of

blunts, 70 grams of smoked blunts, and 40 grams of loose marijuana, were found at the

residence. Sergeant Jason Malick of the APD Narcotics Unit testified that two bags of loose

marijuana were found in a Crown Royal bag under a child’s sled in the back yard within one foot

of the residence. He testified that the bag was dry on a day when the ground was soggy,

indicating it had very recently been hidden.

       {¶13} Detective Michael Zimcosky of the APD testified that he found mail addressed to

Edwards at the residence, thereby establishing Edwards’ possessory interest in the property. He
                                                 6


testified that a bong, i.e., a marijuana smoking device, was found in Edwards’ bedroom, while a

marijuana pipe was found in the living room. He further identified two digital scales recovered

at the scene. The detective testified that, in his experience, drug users and traffickers use digital

scales to weigh controlled substances. Although Detective Zimcosky testified that he is a

certified marijuana tester, he admitted that he did not test the scales, bong, or pipe for marijuana

residue because there was no need to do so given that there was marijuana found at the residence.

He further admitted that it is possible for people to buy bongs and smoking pipes merely for

decorative purposes.

       {¶14} Officer Chris Carney of APD SNUD testified that he entered Edwards’ residence

with a canine (Sampson) certified to detect narcotic odors. The officer testified that Sampson

alerted during the search, indicating that he smelled narcotics inside and outside the residence.

Officer Carney testified that a couple of containers of marijuana were found in the living room,

where other items such as scales and a marijuana pipe were found.

       {¶15} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of the charge of

illegal use or possession of drug paraphernalia were proved beyond a reasonable doubt. See

Jenks, 61 Ohio St.3d at paragraph two of the syllabus.     The State presented evidence that there

was marijuana at Edwards’ residence. Moreover, Edwards does not challenge his conviction for

possession of marijuana. The State presented evidence that digital scales were found in the

living room, as opposed to the kitchen where they might reasonably have been used for cooking

purposes. Detective Zimcosky testified that digital scales are routinely used by drug users to

weigh controlled substances. Although the State presented evidence that marijuana blunts, a

type of cigarette, were found, there was also evidence that a quantity of loose marijuana was
                                                 7


found. There was evidence that the police also found a bong and pipe which were designed to be

used to smoke marijuana.     Accordingly, the State presented sufficient evidence of the crime of

illegal use or possession of drug paraphernalia. Edwards’ third assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

       MR. EDWARDS’ CONVICTION FOR ILLEGAL USE OR POSSESSION OF
       DRUG PARAPHERNALIA WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

       {¶16} Edwards argues that his conviction for illegal use or possession of drug

paraphernalia is against the weight of the evidence. This Court disagrees.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a “thirteenth
       juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.

State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶ 5.

       {¶17} This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,

78 Ohio St.3d at 387.

       {¶18} Edwards presented the testimony of his live-in girlfriend and he testified in his

own defense.

       {¶19} Dorinda Sutton testified that she and Edwards were living together at their home

which the police searched on March 22, 2010. She admitted that both she and Edwards smoke
                                                     8


marijuana and that they kept a bong and pipe in the home for the purpose of smoking marijuana.

She expressly testified that the bong found by the police was not just for decoration. Ms. Sutton

further testified that she and Edwards used one of the scales found by the police to weigh the

marijuana they bought for personal consumption to make sure that they had received the full

amount for which they paid. Ms. Sutton testified that, while she and Edwards used illegal drugs,

they did not sell illegal drugs to others.

        {¶20} Edwards testified in his own defense.             He, too, admitted that he smokes

marijuana, although he denied selling illegal drugs. Edwards admitted using the smaller scale

found in his home to weigh his “weed” to make sure he received the full amount for which he

paid. He further admitted that he used the bong and pipe found during the search to smoke

marijuana.

        {¶21} A review of the record indicates that this is not the exceptional case, where the

evidence weighs heavily in favor of Edwards. A thorough review of the record compels this

Court to find no indication that the trial court lost its way and committed a manifest miscarriage

of justice in convicting Edwards of illegal use or possession of drug paraphernalia.

        {¶22} The weight of the evidence supports the conclusion that Edwards used one of the

scales found in his home for weighing or measuring a controlled substance, specifically

marijuana, and that he used the bong and pipe found in his home for smoking marijuana. In fact,

both Edwards and his live-in girlfriend admitted that they used the scale to weigh their marijuana

and the bong and pipe to smoke it.           By his girlfriend’s testimony and his own admission, the

weight of the evidence demonstrates that Edwards knowingly used and possessed with purpose

to use a scale, bong, and pipe which all constituted drug paraphernalia. Accordingly, Edwards’
                                                9


conviction for illegal use or possession of drug paraphernalia is not against the manifest weight

of the evidence. Edwards’ fourth assignment of error is overruled.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT
       COMPLYING WITH R.C. 2947.23(A).

                                ASSIGNMENT OF ERROR VI

       DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION
       OF COURT COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE.

       {¶23} In his fifth assignment of error, Edwards argues that the trial court committed

plain error when it failed to notify him pursuant to R.C. 2947.23(A) that he could be ordered to

perform community service if he failed to pay the court costs and, if so ordered, he would

receive credit upon the judgment at a specified hourly rate. In his sixth assignment of error, he

argues that his trial counsel was ineffective for failing to argue that the trial court erred by

assessing costs without complying with R.C. 2947.23(A).

       {¶24} As a preliminary matter, we note that this issue is ripe for review notwithstanding

the fact that the record does not demonstrate that Edwards has failed to pay the imposed costs or

that the trial court has ordered him to perform community service based on such a failure. State

v. Smith, Slip Opinion No. 2012-Ohio-781, syllabus (holding “A sentencing court’s failure to

inform an offender, as required by R.C. 2947.23(A)(1), that community service could be

imposed if the offender fails to pay the costs of prosecution or court costs presents an issue ripe

for review even though the record does not show that the offender has failed to pay such costs or

that the trial court has ordered the offender to perform community service as a result of the

failure to pay.”) The Smith court did not decide whether the trial court erred when it failed to
                                                    10


provide Smith with the proper notifications but instead remanded the matter to the court of

appeals for resolution of that issue. Id. at ¶11.

       {¶25} R.C. 2947.23(A)(1) mandates that the trial court include in the sentence the costs

of prosecution, that it render judgment against the criminal defendant for such costs, and that it

notify him of both of the following:

       If the defendant fails to pay that judgment or fails to timely make payments
       towards that judgment under a payment schedule approved by the court, the court
       may order the defendant to perform community service in an amount of not more
       than forty hours per month until the judgment is paid or until the court is satisfied
       that the defendant is in compliance with the approved payment schedule.

       If the court orders the defendant to perform the community service, the defendant
       will receive credit upon the judgment at the specified hourly credit rate per hour
       of community service performed, and each hour of community service performed
       will reduce the judgment by that amount.

       {¶26} At the sentencing hearing, the trial court ordered that Edwards pay the costs of the

proceedings as part of his sentences for possession of marijuana and possession of criminal tools.

It did not, however, notify him regarding any of the provisions in R.C. 2947.23(A)(1)(a) or (b).

This Court recently addressed an identical situation in State v. Debruce, 9th Dist. No. 25574,

2012-Ohio-454, in which we held that, because the notification provisions of R.C. 2947.23(A)(1)

are mandatory, the trial court committed error when it failed to so notify the defendant. Id. at ¶

36-37. We further concluded that “the proper remedy is to reverse the trial court’s imposition of

court costs and remand for the proper imposition of court costs in accordance with the

requirements set forth in R.C. 2947.23(A)(1).”           Id. at ¶ 38.   Accordingly, Edwards’ fifth

assignment of error is sustained. We reverse the imposition of court costs and remand this case

to the trial court for further proceedings consistent with this opinion. In light of our resolution of

the fifth assignment of error, we decline to address the sixth assignment of error as it has been

rendered moot. See App.R. 12(A)(1)(c).
                                                11


                               ASSIGNMENT OF ERROR VII

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ASSESSING ATTORNEY FEES AGAINST DEFENDANT WITHOUT
       COMPLYING WITH R.C. 2941.51(D), AND NOT DOING SO IN OPEN
       COURT.

       {¶27} Edwards argues that the trial court erred when it assessed attorney fees against

him without complying with R.C. 2941.51(D). This Court agrees.

       {¶28} R.C. 2941.51(D) provides, in relevant part, that “[t]he fees and expenses approved

by the court under this section shall not be taxed as part of the costs and shall be paid by the

county. However, if the person represented has, or reasonably may be expected to have, the

means to meet some part of the cost of the services rendered to the person, the person shall pay

the county an amount that the person reasonably can be expected to pay.”

       {¶29} At the sentencing hearing, the trial court did not mention the issue of the payment

of attorney fees. In the judgment entry of conviction and sentence, the trial court ordered the

repayment of attorney fees and ordered that they be taxed as court costs.

       {¶30} This Court has held that “‘the court must make a determination that the defendant

is financially capable of paying for his appointed counsel before assessing court-appointed

attorney fees.’” State v. Malone, 9th Dist. No. 09CA009732, 2010-Ohio-5658, at ¶ 11, quoting

State v. Warner, 9th Dist. No. 96CA006534, 2001 WL 1155698 (Sept. 21, 2001).

       {¶31} The trial court failed to make an ability-to-pay finding either on the record at the

sentencing hearing or in the judgment entry of conviction and sentence. The State argues that

the trial court’s order that monies confiscated from Edwards and held by the State as evidence be

released to the defendant implicitly constituted a finding that Edwards had the ability to pay his

attorney fees. The State cites no authority for this proposition, and this Court concludes that the

trial court’s order releasing Edwards’ property does not constitute the requisite ability-to-pay
                                               12


finding. Because the trial court failed to make the requisite finding or otherwise comply with

R.C. 2941.51(D), we conclude that the trial court erred when it ordered Edwards to repay the

court-appointed attorney fees. We, therefore, reverse the trial court’s order that Edwards repay

court-appointed counsel fees and remand for the purpose of the trial court’s determination

whether he has the ability to pay such fees in accordance with the requirements set forth in R.C.

2941.51(D). Edwards’ seventh assignment of error is sustained.

                                               III.

       {¶32} Edwards’ first assignment of error is sustained and we decline to address his

second assignment of error. The third and fourth assignments of error are overruled. The fifth

and seventh assignments of error are sustained and we decline to address the sixth assignment of

error. The judgment of the Summit County Court of Common Pleas is affirmed, in part,

reversed, in part, and the cause remanded to the trial court for consideration of whether Edwards’

convictions should merge for purposes of sentencing under Johnson; for proper imposition of

court costs in accordance with the requirements set forth in R.C. 2947.23(A)(1); and for an

ability-to-pay determination pursuant to R.C. 2941.51(D) prior to ordering the repayment of

appointed counsel fees.

                                                                      Judgment affirmed, in part,
                                                                               reversed, in part,
                                                                           and cause remanded.




       There were reasonable grounds for this appeal.
                                                13


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
