[Cite as State v. Maffei, 2013-Ohio-5787.]


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

STATE OF OHIO                                        C.A. No.    26686

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JAMES G. MAFFEI                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 11 12 3468

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2013



        BELFANCE, Presiding Judge.

        {¶1}     James Maffei appeals his convictions from the Summit County Court of Common

Pleas. For the reasons set forth below, we affirm.

                                               I.

        {¶2}     Mr. Maffei crashed his motorcycle in early August 2011. He woke up in the

hospital to find Michelle Murphy in his room. She explained that she was looking for a place to

live and offered to take care of Mr. Maffei during his recovery if she could stay in his house.

Mr. Maffei agreed, and Ms. Murphy moved in.

        {¶3}     Ms. Murphy lived with Mr. Maffei until late November 2011 before getting her

own place. Nevertheless, she would come over often to help Mr. Maffei dress and to otherwise

help Mr. Maffei around his house. One of those times was December 10, 2011, a Saturday. Late

that night or in the early morning of December 11, Ms. Murphy was cooking in the kitchen while

Mr. Maffei sat at the dining room table with Glenn Lambert and Carissa Blouir, both of whom
                                                  2


Ms. Murphy knew. A fourth person, a man identified only as RP, also sat at the dining table. A

heated argument erupted between Mr. Lambert and Mr. Maffei, and Mr. Maffei fired a shot into

the floor. Mr. Lambert left at that time, and there was a dispute at trial as to whether Mr. Maffei

fired at him while he left. Mr. Maffei left with RP soon after Mr. Lambert left while Ms. Blouir

and Ms. Murphy stayed at the house.

       {¶4}    The following Monday evening, Ms. Blouir contacted the Summit County

Sheriff’s Department to report that she had been kidnapped by Mr. Maffei. Deputy Larry Brown

interviewed Ms. Blouir; he also contacted Mr. Lambert after hearing Ms. Blouir’s version of the

events from a few nights earlier. Mr. Lambert corroborated Ms. Blouir’s account, and Deputy

Brown sought a warrant for Mr. Maffei’s arrest.

       {¶5}    On Tuesday, December 13, 2011, the Sheriff Department SWAT team staged an

early morning raid on Mr. Maffei’s house. The SWAT team detonated two flashbangs prior to

breaching the house and then entered, yelling that they were the Sheriff’s Department. After

clearing the downstairs of Mr. Maffei’s home, the SWAT team proceeded up the stairwell. As

Deputies Richard Wright and Mark Adams approached the top of the stairs, they heard a

gunshot. Quickly moving to the top of the stairs, they found Mr. Maffei reaching into his closet.

The deputies subdued Mr. Maffei and discovered Ms. Murphy hiding under the bed. They also

discovered a firearm in the closet where Mr. Maffei had been and a spent casing nearby.

       {¶6}    Deputy Brown interviewed Ms. Murphy after the raid, and she told him that Mr.

Maffei had driven her over to a house on Cormany Drive, which was nearby, and dumped trash

bags into a dumpster behind the house. Ms. Murphy showed Deputy Brown the home, and he

found two silver trash bags in the dumpster behind the house. Deputy Susan Barker came to the

scene because Deputy Brown believed the trash bags to contain the remnants of a
                                                3


methamphetamine lab.      Deputy Barker examined the contents of the bags and discovered

muriatic acid, batteries that had had the lithium removed, tubes, needles, mason jars, and bottles

containing what she believed to be waste from a methamphetamine cook. Deputy Barker also

found an empty Aleve cold medicine box and a receipt from Walgreens for the medicine.

Deputy Barker went to Walgreens and looked at the database of people who had purchased the

Aleve and similar products. Her research revealed that Mr. Maffei had purchased the Aleve cold

medicine in question.      A search of Mr. Maffei’s house also uncovered two boxes of

pseudoephedrine, which can also be used in manufacturing methamphetamine, in the rafters of

the basement.

       {¶7}     Mr. Maffei was indicted for kidnapping, felonious assault, illegal manufacture of

drugs, illegal assembly or possession of chemicals for the manufacture of drugs, having weapons

while under disability, tampering with evidence, possessing criminal tools, and obstructing

official business. The kidnapping and felonious assault charges all had firearm specifications as

well, and a supplemental indictment added a peace-officer specification to one of the felonious

assault counts.1 A jury found Mr. Maffei not guilty of kidnapping, illegal manufacture of drugs,

and obstructing official business but found him guilty of the remaining counts and their

specifications. The trial court sentenced Mr. Maffei to an aggregate term of 27 years in prison.

       {¶8}     Mr. Maffei has appealed, raising five assignments of error for our review. For

ease of discussion, we address his assignments of error out of order.




       1
       The supplemental indictment also included forfeiture specifications related to the
methamphetamine production, but those specifications were later dismissed.
                                                4


                                              II.

                                ASSIGNMENT OF ERROR II

       THE JURY’S VERDICT ON FELONIOUS ASSAULT UNDER R.C. 2903.11
       (COUNT 3) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
       P[U]RSUANT TO THE OHIO CONSTITUTION, ARTICLE IV, SECTION III.

       {¶9}   Mr. Maffei argues in his second assignment of error that his conviction for

felonious assault against Mr. Lambert is against the manifest weight of the evidence. We

disagree.

       {¶10} In reviewing a challenge to the weight of the evidence, the appellate court

       [m]ust 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).

       {¶11} Mr. Maffei was found guilty of violating R.C. 2903.11(A)(2), which provides that

“[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by

means of a deadly weapon or dangerous ordnance.” “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.” R.C. 2901.22(B).

       {¶12} All of the witnesses agreed that Mr. Lambert, Ms. Blouir, and Mr. Maffei were

sitting at his dining room table with a man identified only as RP. Ms. Murphy testified that she

was in the kitchen while the other people were sitting at the table. Ms. Murphy, Ms. Blouir, and

Mr. Lambert all testified that an argument occurred between Mr. Lambert and Mr. Maffei about

money, although there was some disagreement amongst the witnesses as to whom was supposed
                                                5


to owe the other. In any case, the argument escalated, and Mr. Maffei fired a shot underneath the

table. Mr. Lambert testified that he jumped up from the table and ran out of the house. Ms.

Blouir also testified that Mr. Lambert ran out of the house but added that, as he did so, Mr.

Maffei fired at least one more shot at Mr. Lambert. Ms. Murphy also testified that she heard two

shots that night.

        {¶13} Mr. Maffei testified that the argument that night was between Mr. Lambert and

RP over a failed attempt to cook methamphetamine. Mr. Maffei also testified that Ms. Blouir

was yelling at Mr. Lambert for not bringing her the methamphetamine he had promised to give

her. According to Mr. Maffei, Ms. Blouir, Mr. Lambert, and RP were all talking over each other,

arguing, and getting louder. RP turned to Mr. Maffei and said he was going to beat up Mr.

Lambert. Mr. Maffei testified that he was tired of the arguments and was worried RP would hurt

Mr. Lambert, so he pulled out his gun and shot a round into the floor to quiet everyone. After he

had everyone’s attention, Mr. Maffei reached out and touched the mason jar containing the waste

from the production of methamphetamine that Mr. Lambert and RP were talking about and

tapped it with the gun, saying that he was upset that they had brought it into his house.

According to Mr. Maffei, when he tapped the mason jar, it broke, spilling the liquid over his

table. Everyone at the table pushed away, and it was at that point that Mr. Lambert left. Mr.

Maffei testified that Mr. Lambert did not rush out of the house because he had to stop at the door

and undo two sets of locks before leaving. Mr. Maffei denied ever firing a shot at Mr. Lambert.

        {¶14} Mr. Maffei argues that his conviction for felonious assault is against the manifest

weight of the evidence because the evidence does not support the conclusion that Mr. Maffei

caused or attempted to cause Mr. Lambert harm. He points to the fact that, while the police

found the bullet Mr. Maffei fired into the floor, they never discovered a second bullet to
                                                  6


corroborate Ms. Murphy and Ms. Blouir’s testimony about a second shot. Therefore, according

to Mr. Maffei, it is more likely that his version of events, i.e. that he only fired the shot into the

floor, is accurate. Furthermore, Mr. Maffei argues, if he had actually intended to harm Mr.

Lambert, he could have easily done so since the men were mere feet apart from each other sitting

at the table, making it unlikely that he would have waited until Mr. Lambert was trying to leave

before firing a shot intended to harm him.

       {¶15} Essentially, Mr. Maffei is arguing that the jury should have believed his testimony

rather than that of Ms. Blouir and Ms. Murphy. However, a jury’s verdict is not against the

manifest weight of the evidence merely because it believed the State’s witnesses rather than

those of the defense. State v. Brown, 9th Dist. Summit No. 26490, 2013-Ohio-5112, ¶ 20. While

it is true that Mr. Lambert, Ms. Blouir, and Ms. Murphy all admitted to regularly using

methamphetamine around December 10, 2011, Mr. Maffei admitted to abusing prescription

painkillers, and as this Court has often noted, the trier of fact is in the best position to judge

credibility. See, e.g., State v. Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28.

Furthermore, although the police never recovered evidence of the second bullet described by Ms.

Blouir and Ms. Murphy, Ms. Blouir’s testimony was that Mr. Maffei fired at Mr. Lambert while

Mr. Lambert was running out the door, meaning the bullet could have easily gone through the

doorway.

       {¶16} Thus, after a thorough review of the record, we cannot conclude that the jury lost

its way when it determined that Mr. Maffei had attempted to harm Mr. Lambert with his firearm

and, therefore, committed felonious assault against Mr. Lambert. Accordingly, Mr. Maffei’s

second assignment of error is overruled.
                                                  7


                                  ASSIGNMENT OF ERROR III

       THE JURY’S VERDICT ON TAMPERING WITH EVIDENCE UNDER R.C.
       2921.12 (COUNT 7) WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE P[U]RSUANT TO THE OHIO CONSTITUTION, ARTICLE IV
       SECTION III.

       {¶17} In Mr. Maffei’s third assignment of error, he argues that his conviction for

tampering with evidence is against the manifest weight of the evidence. We disagree.

       {¶18} “No person, knowing that an official proceeding or investigation is in progress, or

is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any record,

document, or thing, with purpose to impair its value or availability as evidence in such

proceeding or investigation[.]” R.C. 2921.12(A)(1). “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.” R.C. 2901.22(B).

       {¶19} We initially note that the State presented alternative theories about which of Mr.

Maffei’s actions constituted tampering with evidence. The State’s theory at the beginning of

trial was that Mr. Maffei had tampered with evidence by disposing of the waste from the

methamphetamine lab that Deputies Brown and Barker discovered in the dumpster behind the

house on Cormany Drive, and Mr. Maffei’s arguments on appeal focus solely on that theory.

However, Mr. Maffei testified at trial that, after the incident with Mr. Lambert, he took his gun to

RP’s garage. The State argued during closing that Mr. Lambert’s moving of the gun from the

house also constituted tampering with evidence. Indeed, Mr. Maffei testified that he went to

RP’s garage to hide the gun there so the police would not find it when they responded to the

sound of gunfire. Although RP brought the gun back to Mr. Maffei’s house a short while later,

Mr. Maffei still admitted during his testimony that he assumed there would be an investigation
                                                  8


and removed the firearm from his house, intending to impair its availability as evidence in the

investigation. Thus, Mr. Maffei admitted to tampering with evidence.

       {¶20} Accordingly, in light of Mr. Maffei’s admission, we cannot conclude that the jury

lost its way in finding that Mr. Maffei had committed tampering with evidence. His third

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR I

       THE JURY’S GUILTY VERDICT ON FELONIOUS ASSAULT UNDER R.C.
       2903.11 (COUNT 2) WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE P[U]RSUANT TO THE OHIO CONSTITUTION, ARTICLE IV,
       SECTION III.

       {¶21} Mr. Maffei argues in his first assignment of error that his conviction for felonious

assault against Deputy Wright or Deputy Adams is against the manifest weight of the evidence

because he did not intend to fire the gun at the officers.

       {¶22} As with his other felonious assault conviction, Mr. Maffei was found guilty of

violating R.C. 2903.11(A)(2), which provides that “[n]o person shall knowingly * * * [c]ause or

attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.”

       {¶23} The incident that formed the basis for this felonious assault conviction occurred

on the morning of December 13, 2011. The night before, Deputy Brown of the Summit County

Sheriff’s Department Detective Bureau spoke with Ms. Blouir, who reported having been

kidnapped by Mr. Maffei. She told him to speak to Mr. Lambert, which he did, and, according to

Deputy Brown, Mr. Lambert corroborated much of Ms. Blouir’s story. Based on the information

he had received, Deputy Brown sought and received a warrant for Mr. Maffei’s arrest. Deputy

Brown decided, based on his understanding that Mr. Maffei was armed and had apparently shot
                                               9


at Mr. Lambert a few days earlier, that it would be prudent to utilize the Sheriff Department’s

SWAT team, of which he was also a member.

       {¶24} Early in the morning of December 13, 2011, the SWAT team gathered near Mr.

Maffei’s home. Because they believed there was a potential methamphetamine lab inside, the

SWAT team detonated two flashbang grenades outside, rather than inside, the house immediately

prior to breaching. The main entry team entered through the back door of Mr. Maffei’s home,

announcing that they were the Sheriff’s Department, and cleared the downstairs.

       {¶25} After clearing the first floor, the team lined up by the steps leading to the second

floor. Deputy Richard Wright testified that he was leading the team up the steps when he heard a

gunshot, causing him to pause to make sure another SWAT member was behind him. He then

continued to the top of the stairs and proceeded to the right. He saw a bathroom in front of him

and saw a person in his peripheral vision, who turned out to be Mr. Maffei. Mr. Maffei appeared

to be reaching into a closet.

       {¶26} Deputy Mark Adams also testified that he was a member of the SWAT team that

entered Mr. Maffei’s home and that the officers entered Mr. Maffei’s home and announced their

presence. After clearing the downstairs, Deputy Wright and Deputy Adams started going up the

stairs. When he was on the steps, Deputy Adams heard a gunshot. He and Deputy Wright

proceeded to the top of the stairs and turned right. They observed Mr. Maffei pulling his hand

out of his bedroom closet. When they ordered Mr. Maffei to get on the ground, he did not

comply, but he did open his hands to show that they were empty. Deputy Adams took him to the

ground and held him. Deputy Adams observed a firearm in the closet and a shotgun in the

bedroom. The SWAT team also found Ms. Murphy hiding under the bed.
                                                 10


       {¶27} According to Ms. Murphy, she heard the SWAT team approaching the house and

woke up Mr. Maffei. She heard a big bang and people yelling “‘Sheriffs[.]” Ms. Murphy

testified that, after she heard the men announce that they were the Sheriff’s Department, Mr.

Maffei grabbed his pistol, which was on an end table by the bed, and shot at the SWAT team

while they were walking up the stairs.

       {¶28} Detective Jason Kline testified that the Sheriff’s Department recovered a spent 9

mm casing from the bathroom in Mr. Maffei’s house. He also testified that a gunshot residue

test came back positive for a sample taken from Mr. Maffei’s hands. Following the shooting in

Mr. Maffei’s house, Detective Kline discovered a hole in the stairwell wall that appeared to have

been fresh. The hole was at shoulder height for a person ascending the stairs, and Detective

Kline believed that it was the hole made by the bullet fired during the SWAT raid. However,

despite the tearing out the wall to search for the bullet, no bullet was ever recovered.

       {¶29} Mr. Maffei does not dispute that a shot was fired during the SWAT team raid on

December 13, 2011.        However, Mr. Maffei testified that it was completely accidental.

According to Mr. Maffei, he woke up to Ms. Murphy screaming and described the house as

shaking. He jumped out of his bed and grabbed the pistol from his nightstand. The gun fired,

and Mr. Maffei fell because he had not grabbed his cane. Mr. Maffei asserted that the gun had

gone off because he had fumbled it due to just waking up, having taken pain pills, and his

physical condition. Mr. Maffei testified that, once he heard someone yell “‘Shots fired[,]’” he

realized that it was the police. Mr. Maffei asserted that he had fallen at the foot of his bed and

was pulling himself up on to his bed when the police entered the bedroom. He denied that he

had put the gun in the closet.
                                               11


       {¶30} Mr. Maffei argues that the jury lost its way in determining that he had

intentionally shot at the SWAT team. However, Ms. Murphy testified that she saw Mr. Maffei

intentionally shoot at the officers after they had announced that they were the Sheriff’s

Department. Furthermore, Mr. Maffei testified that he dropped the gun as he fell to the floor and

that he had no idea where the gun went. However, Deputies Wright and Adams testified that

they found Mr. Maffei reaching into the closet where they eventually found the gun, not lifting

himself up at the end of the bed as he had testified. Additionally, while Mr. Maffei talked at

great lengths about the injuries he had suffered in the motorcycle accident, he admitted at trial

that he had managed to successfully fire the gun just a few days earlier, which could have been

seen by the jury as undermining Mr. Maffei’s claims that he accidentally fired the gun.

       {¶31} After a thorough review of the record, we cannot conclude that the jury lost its

way and committed a manifest miscarriage of justice when it found Mr. Maffei guilty of

knowingly attempting to harm police officers with a firearm. Mr. Maffei’s first assignment of

error is overruled.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT VIOLATED MR. MAFFEI’S DOUBLE JEOPARDY
       RIGHT AS PROTECTED BY THE FIFTH AMENDMENT TO THE UNITED
       STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,
       SECTION X WHEN IT FAILED TO MERGE THE ALLIED OFFENSES OF
       COUNTS 2 AND 6 PURSUANT TO R.C. 2941.25 AND SENTENCED MR.
       MAFFEI ON EACH OFFENSE.

       {¶32} Mr. Maffei argues in his fourth assignment of error that his convictions for

felonious assault and having a weapon under disability should merge for purposes of sentencing

because they are allied offenses of similar import. We disagree.

       {¶33} R.C. 2941.25 provides,
                                               12


       (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.

“Thus, two or more offenses arising from the same conduct and similar import only may result in

one conviction.” State v. Hayes, 9th Dist. Summit No. 26388, 2013-Ohio-2429, ¶ 31. “Two or

more offenses may result in multiple convictions, however, if: (1) they are offenses of dissimilar

import; (2) they are separately committed; or (3) the defendant possesses a separate animus as to

each.” Id.

       {¶34} Whether an offender’s sentences should merge is a two-part test. “The first prong

looks to the import of the offenses and requires a comparison of their elements.”         State v.

Washington, Slip Opinion No. 2013-Ohio-4982, ¶ 13, citing State v. Mitchell, 6 Ohio St.3d 416,

418 (1983). “When 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.” State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus. A plurality of the Court in Johnson set

forth the standard as being “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[,]”

(Emphasis original.) id. at ¶ 48, while Justice O’Connor asserted in her concurring opinion that

offenses are allied “when their elements align to such a degree that commission of one offense

would probably result in the commission of the other offense.” Id. at ¶ 66 (O’Connor, J.,

concurring in judgment.). If the offenses are of similar import, then “a court must review the

entire record, including arguments and information presented at the sentencing hearing, to
                                                13


determine whether the offenses were committed separately or with a separate animus.”

Washington at syllabus. “If the offenses were committed by the same conduct and with a single

animus, the offenses merge.” Id. at ¶ 13, citing State v. Mitchell, 6 Ohio St.3d 416, 418 (1983).

       {¶35} The jury found Mr. Maffei guilty of violating R.C. 2923.13(A)(2)/(A)(3) by

having weapons while under disability and R.C. 2903.11 by committing felonious assault. R.C.

2923.13(A)(2), (3) provides,

       Unless relieved from disability as provided in section 2923.14 of the Revised
       Code, 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 felony offense of violence or * * * [t]he person is under
       indictment for or has been convicted of any felony offense involving the illegal
       possession, use, sale, administration, distribution, or trafficking in any drug of
       abuse * * *.

R.C. 2903.11(A)(2) provides that “[n]o person shall knowingly * * * [c]ause or attempt to cause

physical harm to another or to another’s unborn by means of a deadly weapon or dangerous

ordnance.” It is certainly true that an offender could commit felonious assault under R.C.

2903.11(A)(2) and have a weapon while under disability pursuant to R.C. 2923.13(A)(2) or (3)

with the same action. Thus, the question is whether Mr. Maffei actually did commit both crimes

with the same conduct and animus.

       {¶36} Ms. Murphy and Mr. Maffei both testified that he had kept the gun at issue in his

house for a significant period of time. Ms. Murphy testified that he would often have the gun on

him when he was in the house. Mr. Maffei and Ms. Murphy also testified that, on the morning of

the police raid, Mr. Maffei had the gun nearby where he was sleeping. While Mr. Maffei argues

that, only when he picked the gun up to fire at the officers, did he violate R.C. 2923.13(A)(2) or

(3), it is clear from his testimony and that of Ms. Murphy that he had “acquire[d], ha[d] [or]

carr[ied]” the gun prior to the police entering his home. R.C. 2923.13(A). Given the length of
                                                 14


time Mr. Maffei had owned the firearm and that there is no indication that he intended to use it to

harm the police prior to them entering his home, we cannot conclude that his animus for

violating R.C. 2923.13(A)(2) or (3) was the same as the animus he displayed when he actually

fired the gun at the officers. Compare with State v. Fairman, 2d Dist. Montgomery No. 24299,

2011-Ohio-6489, ¶ 67 (concluding that the offender’s convictions for having a weapon under

disability and felonious assault merged when the same weapon was used to commit both and

there was evidence that the offender had “obtained the gun with the immediate intent of

shooting” the victim).

         {¶37} Furthermore, in addition to the handgun used in the felonious assault, Mr. Maffei

also had a shotgun in his home, the possession of which violated R.C. 2923.13(A)(2) and (3) as

well. Assuming the shotgun formed the basis of the jury’s determination that Mr. Maffei had a

weapon under disability, since the shotgun was not used in the felonious assault, the convictions

would not be allied. See Fairman at ¶ 67. Accordingly, Mr. Maffei’s convictions for felonious

assault and having a weapon under disability are not allied offenses of similar import and do not

merge.

         {¶38} Mr. Maffei’s fourth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR V

         THE TRIAL COURT VIOLATED MR. MAFFEI’S DOUBLE JEOPARDY
         RIGHT AS PROTECTED BY THE FIFTH AMENDMENT TO THE UNITED
         STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,
         SECTION X WHEN IT FAILED TO MERGE THE ALLIED OFFENSES OF
         COUNTS 5 AND 8 PURSUANT TO R.C. 2941.25 AND SENTENCED MR.
         MAFFEI ON EACH OFFENSE.

         {¶39} In Mr. Maffei’s fifth assignment of error, he argues that his convictions for illegal

possession of chemicals and possession of criminal tools should merge for purposes of

sentencing. We disagree.
                                                15


       {¶40} R.C 2925.041(A) provides that “[n]o person shall knowingly assemble or possess

one or more chemicals that may be used to manufacture a controlled substance in schedule I or II

with the intent to manufacture a controlled substance in schedule I or II in violation of section

2925.04 of the Revised Code.” R.C. 2923.24(A) 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.” As noted above, the first prong in the allied offense analysis is whether the offenses

could be committed with the same conduct. We conclude that R.C. 2925.041(A) and R.C.

2923.24(A) could be committed with the same product since a person could possess a chemical,

which would be a substance under R.C. 2923.24, with the purpose to use it for the manufacture

of a controlled schedule I or schedule II substance. Thus, the question again is whether Mr.

Maffei actually did commit both crimes with the same conduct and the same animus.

       {¶41} There was extensive evidence that, if believed, supported a finding that Mr.

Maffei possessed criminal tools and had committed illegal assembly. Ms. Murphy testified that

Mr. Maffei had taken trash bags to a dumpster behind a nearby home on Cormany Drive.

Deputy Brown testified that Ms. Murphy showed him where the dumpster was and he discovered

trash bags inside. Deputy Brown showed Deputy Barker the two trash bags he had found in the

dumpster. Deputy Barker testified that she discovered a muriatic acid bottle and a bottle she

recognized as having been used to actually cook the methamphetamine in the dumpster. At the

bottom of the bottle, she saw waste from the production of methamphetamine. Deputy Barker

also observed empty packaging for Aleve cold medicine, mason jars, needles, and batteries that

had had lithium removed. According to Deputy Barker, the items she observed in the dumpster

were evidence of a methamphetamine lab.
                                                16


       {¶42} Deputy Barker also found a receipt for the Aleve cold medicine in the trash bags.

Upon investigation, Deputy Barker learned that Mr. Maffei had purchased the cold medicine.

Detective Kline testified that a second search of Mr. Maffei’s house uncovered two packages of

pseudoephedrine, which could be used in the production of methamphetamine, hidden behind the

insulation in the rafters of Mr. Maffei’s basement.

       {¶43} Mr. Maffei argues that he committed both offenses with the same conduct. “‘In

addition to the requirement of similar import of the crimes committed, the defendant, in order to

obtain the protection of R.C. 2941.25(A), must show that the prosecution has relied upon the

same conduct to support both offenses charged.’” (Emphasis added in Cooper.) State v. Cooper,

104 Ohio St.3d 293, 2004-Ohio-6553, ¶ 17, quoting State v. Logan, 60 Ohio St.2d 126, 128

(1979). The State presented evidence of separate conduct with respect to the charged offenses,

i.e. possession of the materials found in the dumpster and the possession of the pseudoephedrine

found in the basement. From this, the jury could have concluded that the items in the dumpster

constituted the criminal tools while Mr. Maffei’s possession of the pseudoephedrine in the

basement constituted the conduct satisfying the illegal assembly/possession of chemicals under

R.C. 2925.041(A).      However, Mr. Maffei does not explain how the possession of the

pseudoephedrine in the basement and his previous possession of the methamphetamine lab and

materials would be subject to merger; instead, he bases his argument on the incorrect premise

that the jury had to use either the pseudoephedrine in the basement as the basis for both findings

of guilt or that it had used the items found in the dumpster as the basis of finding him guilty of

illegal assembly and possession of criminal tools. Thus, given the evidence at trial and Mr.

Maffei’s limited appellate arguments, we cannot conclude that the State used the same conduct

to support both offenses charged. See Cooper at ¶ 17, ¶ 28.
                                                  17


       {¶44} Accordingly, Mr. Maffei’s fifth assignment of error is overruled.

                                                III.

       {¶45} Mr. Maffei’s assignments of error are overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       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 to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.
                                            18


APPEARANCES:

LORI CURD, Appellate Review Office, School of Law, The University of Akron, for Appellant.

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