[Cite as State v. Redden, 2020-Ohio-878.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 19-COA-026
                                                :
 JAMES F. REDDEN                                :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Ashland County Court
                                                    of Common Pleas, Case No. 18-CRI-
                                                    195



JUDGMENT:                                           AFFIRMED IN PART, REVERSED IN
                                                    PART, SENTENCE VACATED AND
                                                    REMANDED



DATE OF JUDGMENT ENTRY:                             March 6, 2020




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 CHRISTOPHER R. TUNNELL                             MATTHEW J. MALONE
 ASHLAND CO. PROSECUTOR                             10 East Main St.
 COLE F. OBERLI                                     Ashland, OH 44805
 110 Cottage St.
 Ashland, OH 44805
Ashland County, Case No. 19-COA-026                                                    2


Delaney, J.

      {¶1} Appellant James F. Redden appeals from the June 27, 2019 judgment entry

of sentence of the Ashland County Court of Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} This case arose in September 2018 when Detective Brian Evans received

a complaint that methamphetamine was manufactured at 506 W. Tenth Street, Ashland,

by appellant.

      {¶3} Evans’ first step was to contact METRICH, an inter-agency narcotics

investigation unit, for information about purchases of Sudafed and similar cold medicine.

Evans accessed NPlex, a law enforcement database cross-referencing purchases of

Sudafed and cold medicines containing Pseudoephedrine, a component in the

manufacture of methamphetamine. Evans found two purchases by appellant, both at

area Wal-Mart locations, on September 15 and October 13.

      {¶4} Evans launched an investigation of appellant, his associates, and the

address where appellant was staying: 506 W. Tenth Street. Evans learned Rhonda

Shanks was a frequent visitor to the address, and running her name through NPlex

yielded several purchases of Pseudoephedrine on October 3. Evans observed “Skip”

Shenberger, another of appellant’s associates, with appellant at a local Wal-Mart on

October 27. The same day, NPlex revealed Shenberger purchased Pseudoephedrine.

Surveillance at 506 W. Tenth Street indicated Barbara Baker also stopped by and

dropped off a small bag to appellant.

      {¶5} During this surveillance, police observed appellant walk to the abandoned

house next door—502 W. Tenth Street--with its owner, Donald Bratton. Bratton testified
Ashland County, Case No. 19-COA-026                                                           3


at trial that appellant approached him about buying the property, even though it was not

for sale and was in a state of “major disrepair.” Nevertheless, appellant was interested in

buying it, and agreed to pay Bratton $2500 on land contract. Bratton had placed a padlock

on the door of the house. On the day they were observed by police, Bratton brought

appellant over to the property to point out various issues.

       {¶6} Based upon his investigation into the meth operation, Evans prepared an

affidavit for a search warrant to search 506 W. Tenth Street including appellant’s vehicle,

boat, cell phone, and person. Police intended to serve the search warrant on October 29,

2018, but extra caution was required due to the hazardous nature of chemicals used in

methamphetamine preparation. As police watched the house, they noticed appellant go

next door with Bratton and decided to wait to serve the warrant until the next day.

       {¶7} While in the neighborhood the next day, Evans unexpectedly encountered

appellant walking a few blocks away from the residence. Evans and another detective

stopped appellant, spoke to him, and advised they had a search warrant for his residence.

Appellant and Evans spoke briefly. Appellant agreed to accompany detectives back to

the residence and the search warrant was executed.

       {¶8} The search of 506 W. Tenth Street--the residence where appellant lived

with Eugene Milkey--yielded aluminum foil, Pseudoephedrine pills, a digital scale, a

funnel, filters, Ziploc baggies, gloves, suspected narcotics, lithium strips, lithium batteries,

and cold packs.      Evans testified these items are consistent with the “cooking” of

methamphetamine.

       {¶9} With Britton’s permission, police also searched the abandoned property at

502 W. Tenth Street. Before they could search, Britton realized the padlock on the
Ashland County, Case No. 19-COA-026                                                  4


property was not his. Police spoke to appellant and learned he had placed his own

padlock on the property. At 502 W. Tenth Street, police found a Rite-Aid receipt with

appellant’s name on it, a cold-pack box, a Pseudoephedrine blister pack, an aluminum

casing for a lithium battery, a lithium strip, blue rubber gloves, and two lighter-fuel

containers.   Evans testified these items are also consistent with the “cooking” of

methamphetamine.

       {¶10} Detective Richard Clapp of the Mansfield Police Department was called in

to assist in cleanup of hazardous materials found at 502 and 506 W. Tenth Street. Clapp

testified the materials are consistent with the preparation and manufacture of

methamphetamine by the “shake and bake” method in which methamphetamine is

prepared in a container such as a Gatorade bottle.

       {¶11} Appellee called several of appellant’s accomplices as trial witnesses.

Rhonda Shanks testified she has known appellant for a few years and he asked her to

help him find a place to live where he could “cook.” Shanks connected appellant with

Eugene Milkey, who permitted appellant to live in a bedroom in his residence at 506 W.

Tenth Street. Appellant provided Shanks and Milkey with methamphetamine to smoke.

Shanks testified appellant asked her to purchase Pseudoephedrine for him and she

agreed to do so in exchange for meth. Shanks testified she bought Sudafed at Wal-Mart,

Rite-Aid, and CVS in October 2018. Shanks also testified that appellant once asked her

to hold a bottle with a hose attached.

       {¶12} Milkey testified appellant provided him with a white substance which he

smoked through aluminum foil.
Ashland County, Case No. 19-COA-026                                                         5


       {¶13} “Skip” Shenberger testified he met appellant at Milkey’s house and got high

with him. Appellant provided Shenberger with an unknown yellow substance; Shenberger

didn’t know what it was but asked to buy $100 more of it. Shenberger also purchased

Sudafed from Wal-Mart for appellant.

       {¶14} Barbara Baker is familiar with appellant and occasionally allowed him to

borrow her vehicle. She purchased Claritin-D for appellant at Wal-Mart and CVS.

       {¶15} A Wal-Mart witness provided security videotape of several of the

transactions in which Pseudoephedrine was purchased by Shanks on September 17, by

Baker on October 13, by Shenberger on October 27, 2018, and by an unknown male on

September 15.

       {¶16} A B.C.I. forensic scientist testified that appellee’s Exhibit 1, a plastic baggie

containing residue, tested positive as methamphetamine.

       {¶17} Appellant called one witness on his behalf, Detective Wayne Liggett of the

Richland County Sheriff’s Office. Liggett was not involved in the investigation but assisted

in the cleanup of hazardous materials generated by the preparation of methamphetamine.

Liggett acknowledged that a report he prepared misidentified appellant as James Story,

which Liggett explained as a clerical error.

       {¶18} Appellant was charged by indictment with one count of illegal manufacture

of drugs [methamphetamine] pursuant to R.C. 2925.04(A), a felony of the second degree

[Count I]; illegal assembly or possession of chemicals for manufacture of drugs pursuant

to R.C. 2925.041(A), a felony of the third degree [Count II]; and one count of aggravated

trafficking in drugs [methamphetamine] pursuant to R.C. 2925.03(A)(1), a felony of the

fourth degree [Count III]. Appellant entered pleas of not guilty.
Ashland County, Case No. 19-COA-026                                                    6


       {¶19} On December 21, 2018, appellant filed a motion to suppress his statements

“as a result of un-mirandized custodial interrogation.”     Appellee responded with a

memorandum in opposition. The matter proceeded to an evidentiary hearing on January

28, 2019, and the trial court gave the parties an opportunity to file post-hearing

memoranda. By Judgment Entry filed March 1, 2019, the trial court granted the motion

to suppress in part and overruled it in part. Appellant’s statements to Evans when he was

stopped on the street were suppressed; appellant’s later statements at the residence and

at the Ashland County Jail were not suppressed.

       {¶20} The matter proceeded to trial by jury on April 30, 2019, concluding May 2,

2019, and appellant was found guilty as charged. Sentencing was deferred pending a

pre-sentence investigation (P.S.I), which has been filed under seal for our review.

       {¶21} Appellant appeared for sentencing on June 24, 2019.          The trial court

imposed a prison term of 5 years upon Count I, 2 years upon Count II, and 18 months

upon Count III. The trial court further noted appellant committed the instant offenses

while on post-release control, thus an additional 12-month sentence was imposed for the

P.R.C. violation. The prison terms are to be served consecutively for a total aggregate

sentence of nine and a half years.

       {¶22} Appellant now appeals from the trial court’s June 27, 2019 Judgment

Entry—Sentencing.

       {¶23} Appellant raises three assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶24} “I.    THE TRIAL COURT ERRED IN ITS DETERMINATION OF

APPELLANT’S MOTION TO SUPPRESS.”
Ashland County, Case No. 19-COA-026                                                      7


       {¶25} “II.   APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL.”

       {¶26} “III. THE TRIAL COURT ERRED BY SENTENCING APPELLANT ON

COUNTS WHICH WERE ALLIED OFFENSES OF SIMILAR IMPORT WHICH SHOULD

HAVE MERGED FOR SENTENCING PURPOSES.”

                                       ANALYSIS

                                            I.

       {¶27} In his first assignment of error, appellant argues the trial court erred in

overruling his motion to suppress. We disagree.

       {¶28} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,

675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court’s

conclusion, whether the trial court’s decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

       {¶29} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
Ashland County, Case No. 19-COA-026                                                           8


reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See, Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court’s conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

       {¶30} In the instant case, appellant argues the trial court incorrectly decided the

ultimate issue posed by the motion to suppress, to wit, that Evans’ purported “two-step

interrogation process” thwarted appellant’s right to remain silent.          Evidence at the

suppression hearing established that Evans questioned appellant during three “phases”

of the investigation: first, when Evans encountered appellant on Cottage Street; second,

when appellant returned to the residence with Evans while the search warrant was

executed; and third, while appellant was held at the Ashland County Jail.                Evans

Mirandized appellant after “phase one.” Appellant stated that he understood. While he

waited with Evans at the residence during “phase two,” he willingly spoke to the detective

and did not invoke his right to remain silent. This conversation occurred approximately

25 minutes after Evans had Mirandized appellant a few blocks away on Cottage Street.

The search took several hours, after which appellant was arrested and transported to the
Ashland County, Case No. 19-COA-026                                                        9


Ashland County Jail. On October 31, 2018, Evans spoke with appellant at the Jail (“phase

three”) without re-Mirandizing him, but appellant was still aware of his rights because he

asked Evans about the implications of making a statement “off the record.”

       {¶31} The trial court ultimately suppressed appellant’s statements during “phase

one” but found the post-Miranda statements during phases two and three admissible.

       {¶32} Appellant now argues that all of his statements should have been excluded

because they were an extension of his conversation with Evans in “phase one.” The

record established, though, “that the Miranda warning was effectively communicated to

and understood by [appellant].” Judgment Entry, 2. The Fifth Amendment to the United

States Constitution guarantees that “‘[n]o person * * * shall be compelled in any criminal

case to be a witness against himself,’ and that ‘the accused shall * * * have the Assistance

of Counsel.’” (Ellipses sic.) Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966). In light of the inherent coercion involved in custodial interrogation,

Miranda established “a set of prophylactic measures” to safeguard the constitutional

privilege against self-incrimination. Id. In broad terms, Miranda held that the state may

not use a defendant's statements from custodial interrogation “unless it demonstrates the

use of procedural safeguards effective to secure the privilege against self-incrimination.”

Miranda at 444. Prior to questioning, the police must warn the suspect “that he has a right

to remain silent, that any statement he does make may be used as evidence against him,

and that he has a right to the presence of an attorney, either retained or appointed.” Id.

The Supreme Court recognized the importance of a suspect's “real understanding” of his

rights and his intelligent decision whether to exercise them. Id. at 469, 86 S.Ct. 1602.
Ashland County, Case No. 19-COA-026                                                      10


       {¶33} Miranda conditioned the admissibility at trial of any custodial confession on

warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver

of rights before custodial questioning generally requires exclusion of any statements

obtained. Missouri v. Seibert, 542 U.S. 600, 608, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

       {¶34} Appellant argues Evans’ successive questioning constitutes a “Seibert

violation.” In Seibert, supra, the United States Supreme Court addressed the issue of

whether the technique of successive interrogations, the first before Miranda warnings and

the other(s) after, violated a defendant's Miranda rights. The suspect was taken to the

police station for questioning after a fire at her home resulted in the death of one of the

residents. She was questioned about the incident without first being provided her Miranda

warnings and she made incriminating statements. The suspect was then issued her

Miranda warnings and was confronted with the statements she had made before she was

provided such warnings; she then confirmed her previous statements.

       {¶35} The Court was troubled by the adherence to litigating the question of

voluntariness where Miranda warnings were not given until after law enforcement had

obtained a confession. 542 U.S. at 609. The Court held that the following factors should

be considered in determining whether Miranda warnings delivered midstream could be

effective enough to accomplish their object: “the completeness and detail of the questions

and answers in the first round of interrogation, the overlapping content of the two

statements, the timing and setting of the first and the second, the continuity of police

personnel, and the degree to which the interrogator's questions treated the second round

as continuous with the first.” Id. at 615; see, State v. Bonnell, 5th Dist. Delaware No. 07
Ashland County, Case No. 19-COA-026                                                     11


CAA 01 0006, 2008–Ohio–28, ¶ 37; State v. Furniss, 5th Dist. Fairfield No. 12-CA-41,

2013-Ohio-2064, ¶ 22.

        {¶36} As noted by the Ohio Supreme Court in State v. Farris, 109 Ohio St.3d 519,

2006–Ohio–3255, 849 N.E.2d 985, “Seibert points out that in ‘question first’ scenarios

when the circumstances of the given case show that the Miranda warning could not

reasonably be found effective, the post warning statements are inadmissible because ‘the

earlier and later statements are realistically seen as parts of a single, unwarned sequence

of questioning.’ Id. at 612, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643, fn. 4.” Farris,

¶ 21.

        {¶37} We find no such “single, unwarned sequence” in the instant case. Phase

one of Evans’ questioning of appellant took approximately 10 minutes at the side of the

road. Statements made during that phase, pre-Miranda warnings, were suppressed. The

trial court further found that Seibert is inapplicable to appellant’s statements in phases

two and three because there was no lengthy, exhaustive interrogation prior to Evans’

Miranda warning and we agree. This case is factually distinguishable from Seibert and

its rationale does not apply.

        {¶38} Upon our review of the record, we find that the trial court was correct in

granting appellant’s motion to suppress his statements in phase one, and correct in

overruling the motion as to phases two and three. Given the length of time and difference

of places between the two statements, the connection between the two statements “was

sufficiently attenuated as to dissipate the taint of his suppressed statements.” Furniss,

supra, 2013-Ohio-2064, at ¶ 22. We agree with the trial court that the instant case is

distinguishable from Seibert in that the first round of interrogation was neither complete
Ashland County, Case No. 19-COA-026                                                        12


nor detailed, nor did the phases overlap to the extent that they might be deemed

“continuous.” The evidence also indicates that during phase three at the jail, appellant

remained sufficiently aware of his rights to the extent that he suggested making a

statement “off the record.”

       {¶39} We conclude, therefore, that the trial court did not err in overruling the

motion to suppress in part and granting it in part. Appellant’s first assignment of error is

overruled.

                                                 II.

       {¶40} In his second assignment of error, appellant argues defense trial counsel

was ineffective in failing both to file an affidavit of indigence and to move to waive

mandatory fines. In light of the Ohio Supreme Court’s recent decision in State v. Davis,

Slip Opinion No. 2020-Ohio-309, --N.E.3d--, on the record of the instant case, we agree.

       {¶41} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

       {¶42} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same
Ashland County, Case No. 19-COA-026                                                         13


way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶43} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶44} R.C. 2929.19(B)(5) states, “Before imposing a financial sanction under

section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised

Code, the court shall consider the offender's present and future ability to pay the amount

of the sanction or fine.” The Ohio Supreme Court has held that even if an affidavit of

indigency is timely and properly filed, a defendant “is not automatically entitled to waiver

of that fine.” State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750.

There must be a showing that a defendant is unable to pay the fines, and there is no

affirmative duty on the trial court to make a finding that a defendant is able to pay. Id.,

syllabus.

       {¶45} Appellant argues defense trial counsel was ineffective in failing to file an

affidavit of indigence and to move to waive the mandatory fines. We note appellant did

file an affidavit of indigency at the first hearing before the trial court, and he was found to

be indigent at both the bond hearing on November 2, 2019 and at sentencing on June

24, 2019.

       {¶46} When a criminal defendant can show that his counsel's performance was

deficient and that the deficient performance was prejudicial to his case, there is
Ashland County, Case No. 19-COA-026                                                       14


constitutional error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674, 693 (1984). Thus, even if the trial court did not err in imposing the fine,

we must consider whether counsel's failure to file an affidavit caused a prejudicial result.

A number of Ohio courts have recognized that failure to file an affidavit of indigency, under

the right circumstances, can constitute prejudicial error. E.g., State v. Mendoza, 6th Dist.

Lucas App. No. L-94-242, 1995 WL 413143, at 3 (July 14, 1995); State v. Joy, 4th Dist.

Lawrence App. Nos. 92 CA 24, 92 CA 30, 1993 WL 491325, at 3 (Nov. 24, 1993); State

v. Creech, 4th Dist. Scioto App. No. 92 CA 2053, 1993 WL 235566 at 6 (June 29, 1993).

       {¶47} In State v. Sheffield, 2nd Dist. Montgomery App. No. 20029, 2004-Ohio-

3099, at ¶ 13, the court stated at paragraph 14:

                     The failure to file an affidavit of indigency prior to sentencing

              may constitute ineffective assistance of counsel if the record shows

              a reasonable probability that the trial court would have found

              Defendant indigent and relieved him of the obligation to pay the fine

              had the affidavit been filed. State v. Cochran (June 5, 1998), Clark

              App. No. 97CA50; State v. Stearns (Oct. 9, 1997), Cuyahoga App.

              No. 71851; State v. Gilmer (April 26, 2002), Ottawa App. No. OT-01-

              015, 2002-Ohio-2045; State v. McDowell (Sept. 30, 2003), Portage

              App. No.2001-P-0149, 2003-Ohio-5352; State v. Powell (1992), 78

              Ohio App.3d 784, 787, 605 N.E.2d 1337; State v. Williams (1995),

              105 Ohio App.3d 471, 482, 664 N.E.2d 576.

       {¶48} While we have previously rejected appellant’s argument, State v. Shaw, 5th

Dist. Muskingum No. CT2018-0054, 2019-Ohio-2387, ¶ 21, the Ohio Supreme Court
Ashland County, Case No. 19-COA-026                                                      15


recently held that “[t]he court of appeals * * * must look at all the circumstances that the

defendant sets forth in attempting to demonstrate prejudice and determine whether there

is a reasonable probability that the trial court would have granted a motion to waive costs

had one been made.” State v. Davis, Slip Opinion No. 2020-Ohio-309, --N.E.3d--, ¶ 16.

       {¶49} We have previously noted that where an appellant is represented by

appointed counsel, and there was thus necessarily a determination made that he was

indigent under Chapter 120 of the Revised Code, a reasonable probability exists that the

trial court would have found appellant indigent had his trial counsel filed an affidavit of

indigency prior to sentencing and the trial counsel was ineffective in failing to move for

waiver of the fines. State v. Warren, 5th Dist. Fairfield No. 18-CA-42, 2019-Ohio-2927, ¶

102. In the instant case, we find a reasonable probability exists that the trial court would

have found appellant indigent had an affidavit been filed prior to sentencing and that the

fines may have been waived. We note the P.S.I. indicates appellant was unemployed

with no assets prior to sentencing.

       {¶50} Accordingly, appellant’s second assignment of error is sustained and this

matter is remanded to the trial court for a hearing in order to determine whether appellant

is indigent for the purpose of avoiding the mandatory fines imposed by statute. Warren,

supra, 2019-Ohio-2927 at ¶ 103.

                                                III.

       {¶51} In his third assignment of error, appellant argues his convictions upon

Counts I and II are allied offense of similar import which should have merged for purposes

of sentencing. Under the circumstances of this case, we agree.
Ashland County, Case No. 19-COA-026                                                           16


       {¶52} R.C. 2941.25, Ohio's allied offense statute, 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 to each, the indictment or information may

              contain counts for all such offenses, and the defendant may be

              convicted of all of them.

       {¶53} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Supreme Court of Ohio explained that “the same conduct can be separately punished if

that conduct constitutes offenses of dissimilar import.” Id. at ¶ 20, citing R.C. 2941.25(B).

Offenses are dissimilar in import “when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is separate and

identifiable.” Ruff at paragraph two of the syllabus.

       {¶54} Appellee points out that appellant did not argue the offenses should merge

at the trial level. In State v. Rogers, 143 Ohio St.3d 385, the Ohio Supreme Court held

that where a defendant fails to seek the merger of his convictions as allied offenses of

similar import in the trial court, he forfeits any allied offenses claim, except to the extent it

constitutes plain error. Rogers at ¶ 21–25, citing State v. Quarterman, 140 Ohio St.3d

464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15–16. “Crim.R. 52(B) affords appellate courts
Ashland County, Case No. 19-COA-026                                                          17


discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding

the accused's failure to meet his obligation to bring those errors to the attention of the trial

court.” Rogers at ¶ 22. The defendant “bears the burden of proof to demonstrate plain

error on the record.” Id., citing Quarterman at ¶ 16. To demonstrate plain error, the

defendant must show “‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an

“obvious” defect in the trial proceedings’” and that the error affected a substantial right,

i.e., the defendant must demonstrate a “reasonable probability” that the error resulted in

prejudice, affecting the outcome of the trial. Rogers at ¶ 22, quoting State v. Barnes, 94

Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “We recognize plain error ‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.’” Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, 2015 WL

3899130, ¶ 32, quoting State v. Landrum, 53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990).

       {¶55} We have therefore examined the record for evidence that appellant’s

conduct constituted two or more offenses of dissimilar import, or resulted in two or more

offenses of the same or similar kind committed separately or with a separate animus to

each. At the trial level, appellee argued the same conduct constituted two separate

offenses. We note the bill of particulars filed January 4, 2019 cites the same conduct in

Counts I and II in paragraphs that are effectively identical, to wit, the purchases of

Pseudoephedrine by appellant and others who provided it to appellant for the purpose of

appellant’s manufacture of methamphetamine.

       {¶56} In closing argument, appellee argued proof of Count I provided the proof of

Count II, citing the same evidence to the following extent:

                      * * * *.
Ashland County, Case No. 19-COA-026                                                    18


                    So when you add these together, and this is manufacture or

             engage in the production of methamphetamine is only but one result,

             guilty. And going back to my math equation from earlier, we have

             three counts, to Count 1, Count 2, and Count 3.

                    So I am going to do three math problems for you, 1 plus 1,

             plus 1, equals 3. Count 1 is guilty, and I have to do the same exercise

             three times, so I have to show 1 plus 1, plus 1 equals 3.

                    * * * *.

                    But you are going to hear me repeat the same thing maybe a

             few times because I have to show how each one of those go

             together.    So on Count 2, we have the Illegal Assembly or

             Possession of Chemicals for the Manufacture of Drugs, and we have

             the ID and he’s wearing the pants, and he asked Mr. Shenberger and

             Ms. Shanks and Ms. Baker to get the Sudafed, and asking him to get

             the Sudafed or Claritin D, and also have Detective Evans testify

             about the Defendant.

                    * * * *.

                    T. 369-370.

      {¶57} Upon review of the bill of particulars and the closing argument of appellee,

and applying Ruff, supra, we must conclude that Counts I and II should have merged for

purposes of sentencing. The two counts were of similar import, were committed at the

same time and were not committed with a separate animus or motivation.
Ashland County, Case No. 19-COA-026                                                      19


       {¶58} The trial court imposed a prison term of 5 years upon Count I and 2 years

upon Count II, to be served consecutively to each other and to an 18-month term upon

Count III and a 12-month sanction for revocation of post-release control. The sentences

for all counts were ordered to be served consecutively. The order of consecutive service

means that recognition of plain error would affect the length of appellant's sentence. State

v. DeGarmo, 5th Dist. Muskingum No. CT2018-0061, 2019-Ohio-4050, ¶ 32, appeal not

allowed, 157 Ohio St.3d 1562, 2020-Ohio-313, 138 N.E.3d 115. We therefore find a

manifest miscarriage of justice would occur if the counts were not merged. Id.

       {¶59} Appellant was convicted of one count of illegal manufacture of drugs in

violation of R.C. 2924.04(A), which states: “No person shall knowingly cultivate

marihuana or knowingly manufacture or otherwise engage in any part of the production

of a controlled substance.”

       {¶60} Appellant was also convicted of one count of illegal assembly or possession

of chemicals used to manufacture controlled substance with intent to manufacture

controlled substance in violation of R.C. 2925.041(A), stating: “No 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.”

       {¶61} In State v. Woods, 5th Dist. Ashland No. 15-COA-036, 2016-Ohio-4830, at

¶ 16-25, we reviewed with approval our decision in State v. Carr, 5th Dist. Perry No.

15CA00007, 2016–Ohio–9. Both Woods and Carr address the issue raised by appellant

herein, and we find both decisions significant to the instant case:
Ashland County, Case No. 19-COA-026                                                  20


                  In the case at bar, it was clear when the police entered the

           home that methamphetamine had been manufactured inside the

           home. Carr admitted to manufacturing methamphetamine.

                  Plastic tubing, baggies, envelopes, plastic bottles, batteries,

           cold compact bags, aquarium rocks and coffee filters are not

           “chemicals” as required under R.C. 2925.041. None of the active

           ingredient such as pseudoephedrine [Footnote omitted] was found;

           rather, only the discarded boxes were recovered from the trash. In

           his statement to the police, Carr stated that other parties provided

           the necessary ingredients.

                  Just as a baker would need flour to “assemble” or

           “manufacture” a cake, it is scientifically impossible to manufacture

           methamphetamine without the raw chemical ingredients, such as

           pseudoephedrine. In other words, every time a person commences

           a “cook” he or she must necessarily possess the requisite raw

           chemical ingredients necessary to manufacture the end product of

           crystal methamphetamine. Thus, a defendant must always

           “knowingly assemble or possess one or more chemicals that may be

           used to manufacture” methamphetamine with the “intent to

           manufacture.”

                  If the police had entered the home and found, for example, 50

           boxes of pseudoephedrine and nothing more, a case could be made

           for illegal assembly. It is not illegal to possess pseudoephedrine, but
Ashland County, Case No. 19-COA-026                                                21


           the unexplained possession of such a large amount would be

           circumstantial evidence. If the state can establish the mens rea of

           “with the intent to manufacture” a defendant can be convicted of

           assembly or possession in violation of R.C. 2925.041.

                 Applying the facts and viewing Carr's conduct in this case,

           illegal manufacture of drugs in violation of R.C. 2924.04 and illegal

           assembly or possession of chemicals used to manufacture controlled

           substance with intent to manufacture controlled substance in

           violation of R.C. 2925.041 did not cause separate, identifiable harm.

           Carr did not commit the offenses separately nor were the two

           offenses committed with separate animus or motivation. Carr's

           motivation and animus for obtaining and/or assembling the

           chemicals was to manufacture methamphetamine.

                 Accordingly, we find the assembly or possession of the

           chemicals and the manufacture of methamphetamine are allied

           offenses. Accord, State v. Coleman, 5th Dist. Richland No. 14–CA–

           82, 2015–Ohio–3907, ¶ 52; See, State v. Davidson, 5th Dist. Perry

           No. 12 CA 7, 2013–Ohio–194, ¶ 47(applying the pre-Ruff allied

           offenses test set forth in State v. Johnson, 128 Ohio St.3d 153, 942

           N.E.2d 1061, 2010–Ohio–6314); State v. Stevenson, 5th Dist. Perry

           No. 09CA16, 2010–Ohio–2060, ¶ 32 (applying the pre-Ruff allied

           offenses test set forth in State v. Cabrales, 118 Ohio St .3d 54, 886

           N.E.2d 181, 2008–Ohio–1625 and finding the possession of
Ashland County, Case No. 19-COA-026                                                     22


             chemicals and the engagement in any part of the production of drugs

             are allied offenses that do not have a separate animus); State v.

             Collins, 12th Dist. Clinton Nos. CA2010–12–021, CA2010–12–022,

             2012–Ohio–430 (applying the pre-Ruff allied offenses test set forth

             in State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–

             Ohio–6314).

                    * * *.

                    On the record in the case at bar, we find that Carr has

             demonstrated that he was convicted of allied offenses of similar

             import committed with the same conduct and with the same animus.

       {¶62} In Woods, the state conceded the defendant’s sentences should merge in

accord with State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892. 2016-

Ohio-4830 at 25. In the instant case, appellee argues appellant committed the offenses

separately because he still had supplies on hand for the manufacturing of meth, i.e.,

Pseudoephedrine pills. Therefore, appellee maintains, appellant did not manufacture

meth every time he possessed supplies to do so. We find, however, that appellee

essentially argued at the trial level that appellant’s conduct proved both Counts I and II.

We are unable to identify separate, identifiable harms from each offense in this case.

Appellant did not commit the offenses separately nor were the two offenses committed

with separate animus or motivation. His motivation and animus for obtaining and/or

assembling the chemicals was to manufacture methamphetamine.

       {¶63} Appellant’s third assignment of error is therefore sustained. The sentences

upon Counts I and II are vacated and the matter is remanded to the trial court for
Ashland County, Case No. 19-COA-026                                                   23


resentencing. Appellee must elect the offense for which appellant should be punished.

Carr, supra, 2016-Ohio-9 at ¶ 44, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-

Ohio-2, 922 N.E.2d 182, ¶ 25.

                                    CONCLUSION

       {¶64} Appellant’s first assignment of error is overruled. Appellant’s second and

third assignments of error are sustained. The sentences upon Counts I and II are

vacated. The judgment of the Ashland County Court of Common Pleas is therefore

affirmed in part and reversed in part, and this matter is remanded to the trial court for

further proceedings.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.
