[Cite as State v. Goodson, 2011-Ohio-5820.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 94954




                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                  ROBERT GOODSON
                                              DEFENDANT-APPELLANT




                                  JUDGMENT:
                             REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-527436

        BEFORE: Kilbane, A.J., Boyle, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                    November 10, 2011
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
John P. Colan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

      {¶ 1} This appeal is before this court on remand from the Ohio Supreme Court

Ohio Supreme Court for application of State v. Johnson, 128 Ohio St.3d 153,

2010–Ohio–6314, 942 N.E.2d 1061.

      {¶ 2} In his direct appeal, this court affirmed Robert Goodson’s convictions for

possession of less than one gram of crack cocaine, in violation of R.C. 2925.11(A);

trafficking in less than one gram of cocaine, in violation of R.C. 2925.03(A)(1) (sell or

offer to sell); and trafficking in less than one gram of cocaine, in violation of R.C.

2925.03(A)(2) (prepare for distribution).   See State v. Goodson, 192 Ohio App.3d 246,

2011-Ohio-722, 948 N.E.2d 988 (“Goodson I”). Applying State v. Cabrales, 118 Ohio
St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, this court determined that defendant’s

convictions for trafficking in a controlled substance under R.C. 2925.03(A)(2) and

possession of that same controlled substance under R.C. 2925.11(A) are allied offenses of

similar import but rejected the contention that all of the offenses were allied and must be

merged into a single conviction. Following application of the decision in Johnson,

however, we conclude that the three offenses are allied and must be merged into a single

conviction.

        {¶ 3} On August 20, 2009, Goodson and codefendant, Dale Whitsett, were

indicted for possession of less than one gram of crack cocaine, in violation of

R.C. 2925.11(A); trafficking in less than one gram of cocaine, in violation of

R.C. 2925.03(A)(1) (sell or offer to sell); trafficking in less than one gram of cocaine, in

violation of R.C. 2925.03(A)(2) (prepare for distribution); and possession of criminal

tools, in violation of R.C. 2923.24, all with forfeiture specifications for the recovery of

$147.

        {¶ 4} The State’s evidence indicated that on August 9, 2005, Cleveland Police

arranged a drug sale “buy-bust” with a confidential informant in the area of East 131st

Street and Crennell Avenue. We noted:

        “The informant was searched and determined to be free of contraband.
         He was given $20 in marked currency and taken to the area at around
        12:15 a.m. Detectives Hall and Rasberry watched from the corner
        and waited for the informant to signal that a drug buy had been
        completed. Lieutenant Holmes, Detective Woyma, and Detective
        McKay waited a few blocks away in ‘takedown vehicles.’

        According to Detective Rasberry, the informant spoke with a man,
      later identified as Whitsett, who was standing at the corner of East
      131st Street and Crennell Avenue.        They had ‘a short, brief
      conversation, in which a hand-to-hand exchange was made between
      our [informant] and * * * Whitsett.’         Whitsett then walked
      approximately four houses eastward on Crennell Avenue to a location
      where the officers had made prior drug arrests and spoke with the
      defendant who was standing outside. Whitsett ‘made a hand-to-hand
      exchange with [defendant], came back and made another exchange
      with our [informant], in which our [informant] then gave the
      completed sale signal.’

      ***

      After the informant signaled that he had made a drug buy, Lieutenant
      Holmes, Detective Woyma, and Detective McKay drove to the scene
      and arrested the defendant and Whitsett. The marked currency was
      subsequently recovered from Whitsett. Two rocks of crack cocaine,
      weighing .08 grams and .06 grams respectively, were also recovered —
      one from Whitsett and one from the informant. Currency in the
      amount of $147 was recovered from the defendant.” Goodson I.

      {¶ 5} Defendant was convicted of drug possession and both charges of drug

trafficking, but acquitted of the charge of possession of criminal tools.   He was

sentenced to a total of 12 months of imprisonment.
      {¶ 6} On appeal, this court affirmed defendant’s convictions for all three

offenses. See Goodson I.      This court determined, however, that pursuant to Cabrales,

defendant’s   convictions    for   “[t]rafficking   in   a   controlled   substance   under

R.C. 2925.03(A)(2) and possession of           that same controlled substance under

R.C. 2925.11(A) are allied offenses of similar import because commission of the first

offense necessarily results in commission of the second,” but the convictions for

trafficking in a controlled substance under R.C. 2925.03(A)(1) and trafficking in a

controlled substance under R.C. 2925.03(A)(2) are not allied offenses of similar import.

This court therefore vacated the sentence and remanded the case to the trial court for

resentencing only as to the charges of trafficking in violation of R.C. 2925.03(A)(2) and

possession of that same controlled substance under R.C. 2925.11(A). Goodson I.

      {¶ 7} Defendant subsequently appealed to the Ohio Supreme Court, which

granted a discretionary appeal and remanded the matter for application of Johnson.     See

State v. Goodson, Slip Opinion No. 2011-Ohio-4729.

      {¶ 8} Defendant’s third assignment of error states:

      “The trial court erred in merging appellant’s sentences for possessing,
      transporting, and selling a single quantity of crack cocaine in violation
      of the provisions within R.C. 2941.25, the protections of the double
      jeopardy clause of the Fifth Amendment to the Constitution of the
      United States, and Section 10, Article I of the Ohio Constitution.”

      {¶ 9} Herein, defendant asserts that his convictions for possession of crack

cocaine in violation of R.C. 2925.11(A) in Count 1 are allied offenses of similar import in

relation to both the conviction for trafficking in less than one gram of cocaine, in
violation of R.C. 2925.03(A)(1) (sell or offer to sell) in Count 2 and trafficking in less

than one gram of cocaine, in violation of R.C. 2925.03(A)(2) (prepare for distribution) in

Count 3.

       {¶ 10} In Johnson, the Ohio Supreme Court established a new two-part test to

determine whether offenses are allied offenses of similar import under R.C. 2941.25. Id.

at ¶46-52. Under this new test, the first inquiry focuses on “whether it is possible to

commit one offense and commit the other with the same conduct.”             Id. at ¶48.   In

making such a determination, it is not necessary that the commission of one offense

would always result in the commission of the other, but instead, the question is whether it

is possible for both offenses to be committed with the same conduct. Id.; State v. Roy,

Butler App. No. CA2009-11-290, 2011-Ohio-1992. If the offenses correspond to such a

degree that the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of similar import. Johnson.

       {¶ 11} Next, if the multiple offenses can be committed by the same conduct, then

the court must determine whether the offenses were committed by the same conduct, i.e.,

“a single act, committed with a single state of mind.”   If the answer to both questions is

yes, then the offenses are allied offenses of similar import and will be merged.

       {¶ 12} As we noted in Goodson I, defendant was charged with possession of less

than one gram of crack cocaine, in violation of R.C. 2925.11(A); trafficking in less than

one gram of cocaine, in violation of R.C. 2925.03(A)(1) (sell or offer to sell); and

trafficking in less than one gram of cocaine, in violation of R.C. 2925.03(A)(2) (prepare
for distribution).     These charges correspond to such a degree that they can be committed

by the same conduct.       See Roy (drug trafficking in violation of R.C. 2925.03(A)(1), and

drug possession in violation of R.C. 2925.11(A)); State v. Dammons, Cuyahoga App.

Nos. 94878 and 94879, 2011-Ohio-2908 (drug trafficking in violation of R.C.

2925.03(A)(2) and drug possession (R.C. 2925.11(A)).

       {¶ 13} As to whether they were committed with the same conduct,         we note that

the charges in this matter arose in connection with defendant’s August 9, 2005 arrest

following the buy-bust.         All three charges and convictions arose from the same

transaction, involved the same amount of contraband, and were committed by a single

state of mind.       Therefore, we conclude that the three offenses are allied offenses that

must be merged into a single conviction. Johnson at ¶56; Roy. We find the third

assignment of error to be well taken, and Goodson I is modified accordingly.

       {¶ 14} The judgment of the trial court is reversed as to sentencing only, and this

matter is remanded for further proceedings according to law and consistent with this

opinion. Upon remand, the State will elect which of the allied offenses it wishes to

pursue at sentencing for which the defendant should be punished. See State v. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182.

       It is ordered that appellant recover from appellee the 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR
