[Cite as State v. Fairfield, 2014-Ohio-3417.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100538



                                            STATE OF OHIO


                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                      MATTHEW FAIRFIELD

                                                         DEFENDANT-APPELLANT



                                                JUDGMENT:
                                                 AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-10-543012

        BEFORE:            Stewart, J., Boyle, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                          August 7, 2014
ATTORNEY FOR APPELLANT

Marcus S. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square, Suite 1900
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Christopher D. Schroeder
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} Defendant-appellant Matthew Fairfield was found guilty of various

counts of illegally harboring explosive devices in his home. In his first appeal, he

argued in part that the trial court erred in failing to merge allied offenses when

sentencing him. We reversed the judgment of the trial court on this issue and

remanded the matter for resentencing. In this appeal, Fairfield argues that the trial

court again erred by failing to follow our mandate and properly merge all of his

convictions into a single offense at sentencing. For the reasons that follow, we

find no error and affirm the judgment of the trial court.

      {¶2} In 2010, Fairfield’s estranged wife, acting as a confidential informant,

gave police information that Fairfield was harboring explosive devices and weapons

in the marital home and at another property. Fairfield presumably had stolen the

devices and weapons while he was in the military. The police obtained a search

warrant, seized the items, and arrested Fairfield.

      {¶3} Fairfield was indicted on 97 counts of unlawful possession of dangerous

ordnance, receipt of stolen property, possession of criminal tools, failure to secure

dangerous ordnance, perjury, and pandering obscenity involving child pornography.

 Fairfield filed a motion to suppress the evidence found at both locations. He

argued that his wife was not a credible informant, spousal privilege prevented his
wife from giving information to the police, and the search warrant was based on

false and misleading evidence. The trial court denied the motion. Fairfield later

entered a plea of no contest to 14 of the counts, and the state dismissed the

remaining counts. The trial court found Fairfield guilty and merged several of the

counts finding that they were allied offenses. He was sentenced to 16 years in

prison.

      {¶4} Fairfield appealed his conviction in State v. Fairfield, 8th Dist.

Cuyahoga No. 97466, 2012-Ohio-5060 (“Fairfield I”). In three assignments of

error, he argued that the trial court improperly denied his motion to suppress, that

the court erred by imposing consecutive sentences, and that the court failed to

merge all of the allied offenses for purposes of sentencing. We found merit to

Fairfield’s third assigned error relating to allied offenses, vacated his sentence, and

remanded the case for resentencing.

      {¶5} At the sentencing hearing, the trial court merged all counts of

possession of dangerous ordnance, possession of criminal tools, and receiving

stolen property relating to each type of explosive device. Nine of the 14 counts

Fairfield was convicted of were run consecutively. He was sentenced to a total of

nine years in prison.

      {¶6} In this appeal, Fairfield argues that on remand the trial court failed to

comply with the mandate of this court in Fairfield I. In particular, he argues that
the court improperly sentenced him to nine consecutive sentences when, with the

exception of a jar of napalm, all the explosive devices were contained in one of two

Pelican cases or containers found at the two properties. Fairfield argues that all the

convictions for possession reflecting the devices found within the two containers

are allied offenses, and therefore the trial court should have only sentenced him

once for these convictions.

      {¶7} When a case is remanded, a lower court must “carry the mandate of the

upper court into execution and not consider the questions which the mandate laid at

rest.” State v. Falkenstein, 8th Dist. Cuyahoga No. 99670, 2013-Ohio-5315,  12,

citing State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16; see

Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184

(1939). When the mandate leaves nothing to decide, the lower court is bound to

execute it. Carlisle, citing Sprague.

      {¶8} In Fairfield I, we held that while the trial court properly merged the

category of offenses for the items that were the same (for example, the court

properly merged all counts of possession of a dangerous ordnance relating to four

detonation cords), we found error where the court sentenced Fairfield for

possession of a dangerous ordnance, possession of criminal tools, and receiving

stolen property regarding these same counts.        We determined that Fairfield’s

receiving the stolen property also resulted in his unlawfully possessing a dangerous
ordnance and possessing a criminal tool. Id. at  26. With this analysis, we

reversed and vacated Fairfield’s sentence as to those similar charges and remanded

the matter for resentencing.

      {¶9} 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 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.

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

1061, ¶ 43, the Ohio Supreme Court determined:

      The purpose of merging allied offenses of similar import is as follows:
       It has been consistently recognized that the purpose of R.C. 2941.25
      is to prevent shotgun convictions, that is, multiple findings of guilt and
      corresponding punishments heaped on a defendant for closely related
      offenses arising from the same occurrence. This is a broad purpose
      and ought not to be watered down with artificial and academic
      equivocation regarding the similarities of the crimes. When in
      substance and effect but one offense has been committed, a defendant
      may be convicted of only one offense.
       {¶11} Pursuant to Johnson, there is a two-part test focusing on the

defendant’s conduct in order to determine whether offenses are allied offenses of

similar import under R.C. 2941.25. The first portion of the analysis focuses on

“whether it is possible to commit one offense and commit the other with the same

conduct * * *.” Id. at ¶ 48. It is not required that the commission of one offense

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

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

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

the other offense, the offenses will not merge. Id. at ¶ 51.

       {¶12} In support of his argument for merger into a single count for all the

devices found in both containers, Fairfield points to the following statements made

by this court in Fairfield I:

       Here, there is no indication that Fairfield was acquiring the materials
       for separate purposes, or had a separate intent or motive in having the
       materials. Therefore, the offenses were all committed with the same
       animus.

       ***

       [W]e find that under the facts of this case, possession of a dangerous
       ordnance, possession of criminal tools, and receiving stolen property
       are allied offenses of similar import that must be merged.
       Accordingly, we reverse and vacate Fairfield’s sentence as to those
       charges and remand for a new sentencing hearing on the offense that
       remains after the state selects which allied offense to pursue.
       (Citation omitted.)
Fairfield I at  28-29.

      {¶13} These statements from Fairfield I are taken out of context. The

statements pertained only to the charges of receipt of stolen property and

possession of criminal tools as being allied to the possession of dangerous ordnance

charge for each particular type of explosive device found in each of the containers.

Nowhere in the language of Fairfield I did we determine that each one of the

explosive devices found at the locations should merge into a single offense.

      {¶14} Reviewing courts have rejected similar arguments relating to multiple

count indictments for possession of dangerous ordnance. In State v. Lewis, 2d

Dist. Greene No. 96 CA 12, 1997 Ohio App. LEXIS 1316 (Apr. 4, 1997), the

Second District found unpersuasive the defendant’s argument that his two

convictions for unlawful possession of a dangerous ordnance in violation of R.C.

2923.17 should have merged because in the statute, the term “ordnance” is plural.

The court looked to R.C. 2923.11(K) defining dangerous ordnance and found that

because this definition describes numerous single items that the legislature has

denoted as dangerous ordnance, the term “ordnance” potentially could describe

several items as well as a single item. Therefore, the term “ordnance” relating to

more than one item does not equate to a finding that the defendant may only be

convicted of possessing one. Id. at ¶ 12.
      {¶15} This case is analogous to cases where the defendant was sentenced on

multiple counts of drug possession for different types of drugs in the same container

or found at the same location. In State v. Heflin, 6th Dist. Lucas No. L-11-1173,

2012-Ohio-3988, the defendant was found guilty of one count of possessing

cocaine and one count of possessing heroin. The convictions arose from a single

incident where the defendant offered to sell drugs to an undercover police officer.

The defendant appealed his convictions stating he was improperly sentenced on

both offenses where the heroin and the cocaine were found in the same plastic bag

at the time of his arrest. Id. at  9. The Sixth District affirmed the trial court’s

judgment and held that “convictions for simultaneous possession of cocaine and

heroin are not subject to merger as allied offenses of similar import under R.C.

2941.25.” Id. at ¶ 14. See also State v. Huber, 2d Dist. Clark No. 2010-CA-83,

2011-Ohio-6175 (defendant’s multiple convictions arising from possession of the

methadone, hydrocodone, oxycodone, acetaminophen with codeine, and fentanyl

found in the same suitcase were not found to be allied offenses).

      {¶16} Fairfield’s argument for merger of all convictions relating to each

different type of explosive device into one conviction is unpersuasive. We find the

trial court properly carried out the mandate of Fairfield I.

      {¶17} Judgment affirmed.

      It is ordered that appellee recover of appellant its 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

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


________________________________________
MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
