[Cite as State v. Toland, 2011-Ohio-5150.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95322




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   RICHARD TOLAND
                                                    DEFENDANT-APPELLANT




                             JUDGMENT:
                       CONVICTIONS AFFIRMED,
                  SENTENCE REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-532150

        BEFORE: Keough, J., Boyle P.J., and Jones, J.

        RELEASED AND JOURNALIZED: October 6, 2011
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Anne McDonough
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Richard Toland (“Toland”), appeals his convictions

for drug possession, drug trafficking, having weapons while under disability, and

possessing criminal tools. For the reasons that follow, we affirm his convictions, but

reverse his sentence and remand for resentencing.

      {¶ 2} In 2010, Toland was charged with two counts of drug possession in

violation of R.C. 2925.11(A), two counts of drug trafficking in violation of R.C.

2925.03(A)(1), three counts of drug trafficking in violation of R.C. 2925.03(A)(2), one

count of having weapons while under disability in violation of R.C. 2923.13(A)(3), and

one count of possessing criminal tools in violation of R.C. 2923.24(A).     All counts
contained forfeiture specifications and one count    also contained a firearm specification.

 Toland waived his right to a jury trial and the case was tried to the court.

          {¶ 3} This case arises from a series of controlled buys involving Toland and a

confidential informant (“CI”) and a subsequent search of Toland’s residence.            On

December 7, 2009, Detective Robert McKay arranged a controlled buy between the CI

and Toland.      The CI purchased four bags of heroin from Toland at a bus stop near East

55th Street and Woodland Avenue.       After the buy, Toland walked to a residence on East

55th Street and entered the front door.

          {¶ 4} On December 8, a second controlled buy from Toland took place outside his

residence on East 74th Street.      During this buy, Detective McKay was present and

working undercover when the sale occurred. Toland exited the downstairs portion of his

residence, walked to the vehicle where both Detective McKay and the CI were seated,

and engaged in a hand-to-hand transaction of two packets of heroin with the CI.       After

the exchange, Toland went back to the downstairs portion of the residence and went

inside.

          {¶ 5} Based on these two controlled buys, Detective McKay set up surveillance of

the East 55th and East 74th Street residences.        Detective McKay witnessed Toland

engage in suspected drug transactions primarily during the day out of the East 55th Street

residence, and a few suspected transactions at night out of the East 74th Street residence.

As a result of these observations and the prior controlled buys, Detective McKay obtained

search warrants for both residences.
       {¶ 6} On December 11, the search warrants were executed.         Detective McKay

testified that upon entering the East 74th Street residence, Toland was present and was

advised of his Miranda rights.     Thereafter, Detective McKay conducted a pat-down

search of Toland’s person.    During the pat-down search, Detective McKay recovered

$630 and a “large handful of sandwich baggies” from Toland’s pockets.

       {¶ 7} Toland told Detective McKay that he had just moved into the house and that

his niece and her daughter had been evicted from their residence and were staying with

him for awhile.    During the search of the residence, Detective McKay discovered in

Toland’s bedroom closet a “blue wax paper bag” which, according to Detective McKay,

is commonly used to store heroin.     Detective McKay further testified that he saw the

jacket Toland wore during the December 7 and 8 sales hanging in the same closet where

the wax bag was found.

       {¶ 8} Detective Thomas Barnes also searched the bedroom and found marijuana

behind the dresser and a loaded gun on a shelf in Toland’s bedroom closet.            The

marijuana was packaged in eight individually-wrapped bags. After finding the items,

Detective Barnes reprimanded Toland for having the drugs and gun in the house because

there was a child who also lived there.   Toland responded, “I know, you’re right, you’re

exactly right, Detective.”

       {¶ 9} At the conclusion of the State’s case, Toland made a Crim.R. 29 motion for

judgment of acquittal. The motion was granted as to one count of drug trafficking but

denied as to all other counts. Toland also moved the trial court for a directed verdict on

the forfeiture specifications, which the court granted in part.          The trial court
subsequently found Toland guilty of the remaining counts and sentenced him to a total

prison term of one year.

        {¶ 10} Toland appeals, raising two assignments of error contending that his

convictions are not supported by sufficient evidence and are against the manifest weight

of the evidence.1

        {¶ 11} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, Cuyahoga App. No. 92266,

2009-Ohio-3598, ¶12. 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. State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 942, paragraph two of the syllabus.

        {¶ 12} A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion. State v. Thomas (1982), 70 Ohio St.2d 79, 80,

434 N.E.2d 1356. A reviewing court may reverse the judgment of conviction if it

appears that 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.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.



         At trial, defense counsel specifically argued his Crim.R. 29 motion as to only Counts 7 and 8.
        1


  However, we find that defense counsel’s statement that he was “asking for it [as to Counts 1 through
6 and 9], but I see why that could possibly be denied” was sufficient to preserve a sufficiency of the
evidence argument on appeal as to all counts. The trial court apparently considered the motion as to
all counts, stating, “I agree with [defense counsel] as [it] pertains to Counts 1 through 6 regarding the
two drug sales.” Hence, we consider Toland’s sufficiency argument regarding all counts. Morever,
the issue of waiver of a sufficiency claim has not been raised by the State on appeal.
       {¶ 13} Toland’s convictions for drug possession and drug trafficking arise from the

two controlled buys between him and the CI on December 7 and 8.

       {¶ 14} R.C. 2925.11(A), drug possession, provides that “[n]o person shall

knowingly obtain, possess, or use a controlled substance.”             R.C. 2925.03, drug

trafficking, provides that “(A) [n]o person shall knowingly * * * (1) [s]ell or offer to sell

a controlled substance; [or] “(2) [p]repare for shipment, ship, transport, deliver, prepare

for distribution, or distribute a controlled substance, when the offender knows or has

reasonable cause to believe that the controlled substance is intended for sale or resale by

the offender or another person.”   (Emphasis added.)

       {¶ 15} Regarding the December 7 buy, Detective McKay testified that he arranged

a controlled buy of heroin between Toland and a CI and that the CI purchased four bags

of heroin from Toland.     Detective McKay testified that on December 8 he arranged a

second controlled buy from Toland, and the CI purchased two packets of heroin from

Toland. This testimony was sufficient evidence of drug possession in violation of R.C.

2925.11(A) and drug trafficking pursuant to R.C. 2925.03(A)(1).

       {¶ 16} We also find that sufficient evidence was presented to support Toland’s

conviction for drug trafficking under R.C. 2925.03(A)(2). In State v. Simuel, Cuyahoga

App. No. 89022, 2008-Ohio-913, this court upheld a conviction for drug trafficking in

violation of R.C. 2925.03(A)(2) when the testimony and evidence revealed that the

defendant crossed the street to engage in a hand-to-hand drug transaction with a CI.

This court concluded that “crossing the street” was sufficient to satisfy “transport” under

R.C. 2925.03(A)(2). Id. at ¶55-57.
        {¶ 17} Regarding the drug transaction on December 7 at a bus stop near East 55th

Street and Woodland Avenue, Detective McKay testified that he and the CI called Toland

and, based on that conversation, drove to an East 55th Street residence.       When they

arrived, they observed Cleveland Metropolitan Housing Authority zone cars patrolling the

area.   Detective McKay and the CI called Toland again, and then drove to a nearby bus

stop where Toland and the CI engaged in a hand-to-hand transaction for drugs.

Detective McKay testified that Toland then “walked back to the address of 2448 East

55th and entered through the north door.” The inference from this testimony is that

Toland initially told   Detective McKay and the CI to come to the residence on East 55th

Street but after the second call, told them to go to the bus stop. After the transaction,

Toland then “walked back” to the residence on East 55th.      The circumstantial evidence

indicates that Toland traveled from the residence to the bus stop to engage in a drug

transaction.   “Circumstantial evidence and direct evidence inherently possess the same

probative value * * *.” Jenks at paragraph one of the syllabus. Accordingly, Toland’s

actions were sufficient for “deliver[y]” or “transport” under R.C. 2925.03(A)(2).      See

Simuel.

        {¶ 18} Similarly, with respect to the December 8 drug transaction outside Toland’s

residence on East 74th Street, Detective McKay observed Toland emerge from the steps

of the house, walk to the CI, engage in a hand-to-hand transaction, and then walk back

into the house. This “walking to the CI” to sell drugs is sufficient for “deliver[y]” under

R.C. 2925.03(A)(2). See Simuel.
       {¶ 19} Based on the circumstantial evidence presented at trial regarding the

December 7 transaction and the direct evidence presented regarding the December 8

transaction, we hold that sufficient evidence of drug trafficking under R.C. 2925.03(A)(2)

was presented and the trier of fact did not lose its way in finding Toland guilty of drug

possession and drug trafficking under both sections of R.C. 2925.03(A).

       {¶ 20} Toland was also convicted of having weapons while under disability, in

violation of R.C. 2923.13(A)(3). This section provides in pertinent part: “[U]nless

relieved from disability * * *, no person shall knowingly acquire, have, carry, or use any

firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been

convicted of any offense involving the illegal possession, use, sale, administration,

distribution, or trafficking in any drug of abuse * * *.”

       {¶ 21} In this case, Toland stipulated to a 1989 drug possession conviction.

Notwithstanding Toland’s argument that the State failed to present sufficient evidence

that he knew the gun was in the house, Detective Barnes testified that after he found the

gun and drugs, he reprimanded Toland for having them in the house with a child, and

Toland responded, “I know, you’re right, you’re exactly right, Detective.”   Additionally,

the gun was found in a closet containing the same jacket Toland wore during the

controlled buys with the CI.      This evidence was sufficient to establish that Toland

“ha[d]” the firearm in violation of R.C. 2923.13(A)(3) and therefore his conviction was

not against the manifest weight of the evidence.

       {¶ 22} R.C.   2923.24(A), possessing criminal tools, provides that “[n]o person

shall possess or have under the person’s control any substance, device, instrument, or
article, with purpose to use it criminally.”   The indictment alleged that Toland possessed

$630 in U.S. currency, a gun, scale, and packaging materials with the intent to use them

criminally. Although no testimony was elicited regarding the scale, Toland’s conviction

for possessing criminal tools was nonetheless supported by sufficient evidence because

evidence was presented that Toland possessed the currency, gun, and packaging materials

with the intent to use them criminally.    Specifically, Detective McKay testified that (1)

large amounts of money on a person is often indicative the person has engaged in drug

sales; (2) “sandwich baggies” are often used to package drugs for sale; and (3) “blue wax

paper bags” are often used to store heroin.     The cumulative effect of this testimony and

evidence indicates that Toland’s conviction for possessing criminal tools was not against

the manifest weight of the evidence.

       {¶ 23} Accordingly, Toland’s assignments of error are overruled.

       {¶ 24} However, sua sponte we raise the issue of merger on the counts relative to

drug possession and trafficking. In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,

922 N.E.2d 182, the Ohio Supreme Court held that offenses of drug possession and drug

trafficking are allied offenses of similar import for which multiple punishments are

barred, and that a court of appeals must reverse the judgment of conviction and remand

for a new sentencing hearing at which the State must elect which allied offense it will

pursue against the defendant.      Id. at paragraph two of the syllabus.      Accordingly,

Toland’s sentence is reversed and remanded for a new sentencing hearing at which the

State must elect which allied offense it will pursue against Toland.

       {¶ 25} Convictions affirmed, sentence reversed and remanded for resentencing.
       It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. 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.



       KATHLEEN ANN KEOUGH, JUDGE

       MARY J. BOYLE, P.J., CONCURS;
       LARRY A. JONES, J., CONCURS IN PART AND DISSENTS IN PART WITH
       SEPARATE OPINION

       LARRY A. JONES, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶ 26} Respectfully, I dissent as to the majority’s resolution of Toland’s

sufficiency of the evidence challenge of the drug trafficking convictions under R.C.

2925.03(A)(2).

       {¶ 27} R.C. 2925.03(A)(2) provides as follows:      “No person shall knowingly * *

* [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a

controlled substance, when the offender knows or has reasonable cause to believe that the

controlled substance is intended for sale or resale by the offender or another person.”

       {¶ 28} The evidence here demonstrated that, on December 7, 2009, Detective

Robert McKay arranged a controlled buy of heroin from Toland.                   An informant
purchased four bags of heroin from Toland. After the buy, Toland entered the front door

of a residence on East 55th Street.

       {¶ 29} A second controlled buy from Toland occurred the following day,

December 8, 2009.      This buy took place outside of a residence on East 74th Street.

Toland exited the downstairs portion of the residence, met the informant at McKay’s

vehicle, 2 and engaged in a hand-to-hand exchange with the informant.            After the

exchange, Toland went back into the downstairs portion of the residence.     The informant

had purchased two packets of heroin.

       {¶ 30} The majority finds that Toland’s “walking” or “traveling” to meet the

informant for the sales and then “walking” away or back to the house after the sales

constituted sufficient evidence of “delivery” or “transport” to support the drug

convictions under R.C. 2925.03(A)(2), and cites State v. Simuel, Cuyahoga App. No.

89022, 2008-Ohio-913, in support of its position. In Simuel, the defendant sold crack

cocaine to an informant. This court upheld his conviction under R.C. 2925.03(A)(2)

“because he transported the crack cocaine across the street and delivered it to the CI.”

Id. at ¶55. I disagree with the reasoning of both the majority and Simuel.

       {¶ 31} In this case and in Simuel, the evidence demonstrated that drug sales took

place. The sales constituted drug trafficking under R.C. 2925.03(A)(1), which provides

that “[n]o person shall knowingly * * * [s]ell or offer to sell a controlled substance[.]”

Under the majority and Simuel’s reasoning, nearly any time an offender trafficks in drugs



       McKay was undercover.
       2
by selling or offering to sell them, he will probably also traffick in drugs by “preparing”

them because there will usually be some type of movement, e.g., going to the sale or

leaving the sale. Would walking from room A in a house to room B to get drugs to sell

to a person in room C in the house constitute “delivery” or “transport” sufficient for

“preparation of drugs for sale?”   I do not believe the legislature intended that the type of

“movement” in this case, Simuel, or the hypothetical would constitute “transport” or

“delivery” sufficient to support a drug trafficking conviction under R.C. 2925.03(A)(2).

In my view, what occurred here and in Simuel in terms of drug trafficking were drug

sales, and nothing more.

       {¶ 32} In light of the above, I dissent as to the majority’s finding that sufficient

evidence supported the drug trafficking convictions under R.C. 2925.03(A)(2). I concur

in the remainder of the opinion.
