[Cite as State v. Olmstead, 2018-Ohio-5301.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. John W. Wise, P.J.
        Plaintiff-Appellee                     :     Hon. Patricia A. Delaney, J.
                                               :     Hon. Earle E. Wise, Jr., J.
-vs-                                           :
                                               :
DAVID E. BRANDON OLMSTEAD                      :     Case No. 18-COA-016
                                               :
        Defendant-Appellant                    :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 17-CR-039




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    December 26, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER R. TUNNELL                               RUTH R. FISCHBEIN-COHEN
Prosecuting Attorney                                 3552 Severn Road No. 613
By: VICTOR R. PEREZ                                  Cleveland, OH 44118
Assistant Prosecutor
110 Cottage Street
Ashland, OH 44805
Ashland County, Case No. 18-COA-016                                                     2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant David E. Brandon Olmstead appeals the January 12,

2018 judgment of conviction and sentence of the Court of Common Pleas of Ashland

County, Ohio. Plaintiff-Appellee is the State of Ohio.

                     Factual Background and Procedural History

       {¶ 2} On October 26, 2016, Ashland Police Detective Brian Evans received a

phone call from confidential informant (CI) Andrew Lentz. Lentz advised Evans that he

could buy marihuana from appellant. Evans met with Lentz, equipped Lentz with audio

and video recording devices, and provided him with $50 buy money.

       {¶ 3} Lentz then placed a phone call to appellant to make arrangements. Evans

recorded the call. Then, as Evans kept visual surveillance, Lentz proceeded to appellant's

home as directed by appellant. Once there, Lentz gave appellant the buy money, and

appellant stated he needed to go around the corner to another residence to acquire

Lentz's marihuana. Lentz waited at appellant's home 10 or 15 minutes before appellant

returned with one eighth ounce of marihuana. Appellant offered to smoke with Lentz, but

Lentz declined and left. Lentz then returned to the Ashland Police Department and turned

the marihuana and recording equipment over to Evans. The marihuana was not sent for

testing, but had the appearance, consistency and odor of marihuana.

       {¶ 4} On March 17, 2017, Lentz again advised Evans the he could make a

marihuana purchase from appellant. The same procedures were followed for this

controlled buy, and Lentz was provided $70 in buy money. Appellant told Lentz to meet

him in a Save-a-Lot parking lot in Ashland. When appellant arrived, he was a passenger

in a gray Chrysler Town and Country van. Appellant got out of the van and into the
Ashland County, Case No. 18-COA-016                                                   3


passenger seat of Lentz's car. Lentz handed appellant the buy money and appellant

handed Lentz one quarter ounce of marihuana. Then, as directed by Evans, Lentz asked

appellant if he could get "ice cream," which is a street term for methamphetamine.

Appellant stated he could get it later. Lentz then returned to the Ashland Police

Department and surrendered the marihuana and recording equipment to Evans. This

marihuana was also not tested, but had the appearance, consistency, and odor of

marihuana. This buy as well as the October 26, 2016 buy were successfully captured on

video.

         {¶ 5} On March 21, 2017, CI Bobbie Burdette texted Evans to tell him appellant

had reached out to her stating he had methamphetamine to sell. Evans met with Burdette,

equipped her with audio and video recording devices and provided her with $50 in buy

money. Burdette than made arrangements with appellant who directed her to a home on

Liberty Street. Evans had received complaints from neighbors of this residence about

high, short term traffic in and out of the home indicative of drug trafficking.

         {¶ 6} Evans dropped Burdette off close to the home and maintained visual

surveillance as Burdette walked the remaining distance. He noticed the same gray van

he had observed during Lentz's second buy in the driveway. He observed a white male

exiting the van and noted a woman known to him as Jennifer Campbell driving.

         {¶ 7} Burdette and the white male entered the home and Evans listened as

Burdette and appellant discussed the buy. Appellant produced a silver box containing the

methamphetamine and a scale and weighed out half a gram. Burdette handed appellant

the $50. Appellant handed Burdette the methamphetamine, but then suspecting she was

serving as a CI, appellant began pushing Burdette to smoke the meth with him to prove
Ashland County, Case No. 18-COA-016                                                        4


she was not. Burdette eventually convinced appellant that she could not because she

was on her way to see her children, but would be back later. Appellant took his drugs

back and handed Burdette the buy money. Burdette returned to where Evans was waiting

and returned the recording devices. The devices successfully captured appellant's offer

to sell Burdette methamphetamine.

       {¶ 8} Because Evans had observed the gray van at two different buys, as well as

gathered other intelligence on the vehicle, he obtained a warrant to place a GPS tracking

device on the van. The device was placed on March 23, 2017, and Evans began

monitoring its movements.

       {¶ 9} The same day, Evans noted the van traveling north toward Akron. This

caught Evans' attention as he had gathered intelligence indicating appellant and his

associates were acquiring methamphetamine from the Akron area. He watched as the

van went through Summit County, into Portage County, made a short stop, and then

returned to Ashland. As the van drew near an area where Evans had positioned himself

on Route 250 East, he contacted Ashland Police Sergeant Craig Kiley to conduct a traffic

stop of the van.

       {¶ 10} When contacted by Evans, Kiley was on patrol with his canine partner Felo

and his trainee Officer Kara Pearce. Kiley waited on Route 250 for the van to pass by.

When it did, he pulled out behind it and a short time later initiated a traffic stop based on

an equipment violation.

       {¶ 11} Kiley found appellant behind the wheel, Jennifer Campbell in the passenger

seat and Kayla Odom in the back driver's side seat. As he discussed the equipment

violation with appellant, he noted appellant was breathing heavily, shaking, and would not
Ashland County, Case No. 18-COA-016                                                       5


make eye contact. The women were also acting nervous. Odom wanted to do most of the

talking and kept asking if she could go urinate. Based on Evans' GPS monitoring, all three

lied about where they had been. Kiley advised appellant that he was going to run Felo

around the car. When he did, Felo indicated on the driver's side rear passenger door

where Odom was seated.

       {¶ 12} The three were removed from the vehicle while it was searched. The search

turned up 4 cell phones, 2 of which belonged to appellant, but nothing more. Due to Felo's

alert, Kiley and Pearce followed up with questioning. Odom then admitted she had a bag

of methamphetamine in her pants and surrendered the same. All three suspects were

transported to the Ashland Police Station and a search warrant was obtained for

appellant's residence.

       {¶ 13} At appellant's residence, officers discovered the silver box seen on the

video obtained during Burdette's buy. The box contained two scales, a ziplock bag

containing marihuana, a bowl for smoking marihuana, a straw, rolling papers, a butane

torch, and a spoon. The bag of suspected methamphetamine surrendered by Odom was

sent to the Mansfield Police Laboratory where is was confirmed to be 7.58 grams of

methamphetamine.

       {¶ 14} As a result of these events, in April, 2017, the Ashland County Grand Jury

returned an indictment charging appellant as follows:

Count 1 - Trafficking in marihuana in violation of R.C. 2925.03(A)(1) a felony of the fifth

degree, alleged to have occurred on October 26, 2016

Count 2 – Trafficking in marihuana in violation of R.C. 2925.03(A)(1), a felony of the fifth

degree, alleged to have occurred on March 17, 2017.
Ashland County, Case No. 18-COA-016                                                         6


Count 3 – Aggravated trafficking in drugs (methamphetamine) in violation of R.C.

2925.03(A)(1), a felony of the fifth degree, alleged to have occurred on March 21, 2017.

Count 4 – Complicity to aggravated possession of drugs (methamphetamine equal of

exceeding the bulk amount, but less than five times the bulk amount) in violation of R.C.

2923.03(A)(2) and R.C. 2925.11(A), a felony of the third degree, alleged to have occurred

on March 23, 2017.

Count 5 – Complicity to aggravated trafficking in drugs (methamphetamine equal or

exceeding the bulk amount, but less than five times the bulk amount) in violation of R.C.

2923.03(A)(2) and R.C. 2925.11(A), a felony of the third degree, alleged to have occurred

on March 23, 2017.

Count 6 – Possessing criminal tools in violation of R.C. 2923.24(A), a felony of the fifth

degree, alleged to have occurred as a continuing course of conduct from October 26,

2016 and March 23, 2017.

       {¶ 15} Appellant pled not guilty to the charges and elected to proceed to a jury trial.

After hearing all the evidence and deliberating, the jury found appellant guilty as charged.

The trial court delayed sentencing in order to obtain a pre-sentence investigation.

       {¶ 16} Sentencing took place on January 8, 2018. Appellant was sentenced as

follows:

       Count 1, trafficking in marihuana, felony 5 – 11 months

       Count 2, trafficking in marihuana, felony 5 – 11 months

       Count 3, aggravated trafficking in drugs, felony 5 – 11 months

       Count 4, complicity to aggravated possession of drugs, felony 4 – 9 months

       Count 5, complicity to aggravated trafficking in drugs, felony 3 – 30 months
Ashland County, Case No. 18-COA-016                                                       7


      Count 6, possession of criminal tools, felony 5 – 11 months

      {¶ 17} The trial court ordered appellant to serve counts 1, 2, and 6 concurrently

with each other and counts 3, 4, and 5 consecutive to all other counts for an aggregate

total of 61 months incarceration.

      {¶ 18} Appellant now brings this appeal raising the following assignments of error:

                                                 I

      {¶ 19} "THE    COURT      ERRED      IN    NOT   MERGING       THE    COUNTS      AT

SENTENCING, SINCE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT."

                                                 II

      {¶ 20} "THE TRIAL COURT ERRED BY SENTENCING BRANDON OLMSTEAD

TO AN EXCESSIVE PRISON TERM OF SIXTY ONE MONTHS, DUE TO THE

CONSECUTIVE NATURE OF THE SENTENCES."

                                             I

      {¶ 21} In his first assignment of error, appellant claims the trial court erred in not

merging offenses for sentencing purposes in violation of R.C. 2941.25. We agree in part.

      {¶ 22} We review an allied offenses argument de novo. State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

      {¶ 23} R.C. 2941.25 governs multiple counts and states the following:



             (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.
Ashland County, Case No. 18-COA-016                                                     8


             (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.



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

syllabus, the Supreme Court of Ohio held the following:



             1. In determining whether offenses are allied offenses of similar import

             within the meaning of R.C. 2941.25, courts must evaluate three separate

             factors—the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning of R.C.

             2941.25(B) when the defendant's conduct constitutes offenses involving

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

             and identifiable.

             3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple

             offenses may be convicted of all the offenses if any one of the following is

             true: (1) the conduct constitutes offenses of dissimilar import, (2) the

             conduct shows that the offenses were committed separately, or (3) the

             conduct shows that the offenses were committed with separate animus.



      {¶ 25} The Ruff court explained at ¶ 26:
Ashland County, Case No. 18-COA-016                                                        9




                At its heart, the allied-offense analysis is dependent upon the facts

                of a case because R.C. 2941.25 focuses on the defendant's conduct.

                The evidence at trial or during a plea or sentencing hearing will reveal

                whether the offenses have similar import. When a defendant's

                conduct victimizes more than one person, the harm for each person

                is separate and distinct, and therefore, the defendant can be

                convicted of multiple counts. Also, a defendant's conduct that

                constitutes two or more offenses against a single victim can support

                multiple convictions if the harm that results from each offense is

                separate and identifiable from the harm of the other offense. We

                therefore hold that two or more offenses of dissimilar import exist

                within the meaning of R.C. 2941.25(B) when the defendant's conduct

                constitutes offenses involving separate victims or if the harm that

                results from each offense is separate and identifiable.



      {¶ 26} Appellant argues his criminal tools conviction should have merged with a

trafficking or possession conviction. According to appellant, the cell phone and van were

used to accomplish these crimes and thus should merge. He sets forth four alternative

arguments as to how he believes his convictions should have merged as follows:

      1) Count one, trafficking in marihuana and count six possession of criminal tools,

          or,
Ashland County, Case No. 18-COA-016                                                     10


      2) Count four, complicity to aggravated possession of methamphetamine, count

          five, complicity to aggravated trafficking in methamphetamine, and count six

          possession of criminal tools, or,

      3) Count four, complicity to aggravated possession of methamphetamine and

          count six possession of criminal tools, or

      4) Count five complicity to aggravated trafficking and count six possession of

          criminal tools.

      {¶ 27} But possession of criminal tools is not an allied offense of either possession

of a controlled substance or trafficking. In State v. Dammons, 8th Dist. Cuyahoga No.

94878, 2011-Ohio-2908, the Eighth District Court of Appeals determined that possession

of criminal tools, in that matter a cell phone, and trafficking in drugs were not allied

offenses. Dammons at ¶ 24. The court reasoned,



      Here, defendant was charged with possessing money and a cell phone “with

      purpose to use it criminally in the commission of a felony.” Accordingly, it

      was not possible for defendant's possession of these items alone to result

      in a conviction for either drug trafficking or drug possession. Similarly, his

      possession of drugs did not establish a possession of criminal tools charge;

      despite his convictions for drug trafficking and drug possession. E.g., State

      v. Byers, Cuyahoga App. No. 94922, 2011-Ohio-342, ¶9 (“The

      ubiquitousness of cell phones is such that the mere possession of a cell

      phone is not ipso facto proof that it was used in drug trafficking.”)
Ashland County, Case No. 18-COA-016                                                    11

         {¶ 28} Accord State v. McDonald, 8th Dist. Cuyahoga No. 105276, 2018-Ohio-484,

¶ 43 (possession of criminal tools is not the same conduct as trafficking or possessing

drugs); State v. Brownlee, 8th Dist. No. 2018-Ohio-3308 ¶ 13 (The drugs Brownlee sold

were not the basis for the possession of criminal tools counts) State v. Hurley, 3d Dist.

Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 65, citing State v. Dammons, 8th Dist. Cuyahoga

Nos. 94878, 2011-Ohio-2908, ¶ 24.

         {¶ 29} The conduct underlying the possession of criminal tools was, therefore,

separate from the conduct underlying the sale and possession of drugs for the purposes

of the Ruff analysis and we reject appellant's arguments regarding possession of criminal

tools.

         {¶ 30} Appellant's first assignment of error is overruled.

                                               II

         {¶ 31} In his second assignment of error, appellant makes three arguments. He

first argues the trial court failed to comply with the mandates of R.C. 2929.14(C)(4) in

imposing consecutive sentences. He next argues his sentences are unfair,

disproportionate, and a strain on government resources. Finally, he contends his

sentence constitutes cruel and unusual punishment. We disagree.

                                     Standard of Review

         {¶ 32} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
Ashland County, Case No. 18-COA-016                                                         12


only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

                                 Consecutive Sentences

       {¶ 33} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry.” State v. Bonnell, 140 Ohio St. 3d

209, 2014-Ohio-3177, ¶ 37.

       {¶ 34} R.C. 2929.14(C)(4) requires a sentencing court to engage in a three-step

analysis and make certain findings before imposing consecutive sentences. Specifically,

the trial court must find that (1) the consecutive sentence is necessary to protect the public

from future crime or to punish the offender, (2) consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and (3) one of the following applies:



              (a) The offender committed one or more of the multiple offenses

              while the offender was awaiting trial or sentencing, was under a

              sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18

              of the Revised Code, or was under post-release control for a prior

              offense.

              (b) At least two of the multiple offenses were committed as part of

              one or more courses of conduct, and the harm caused by two or

              more of the multiple offenses so committed was so great or unusual

              that no single prison term for any of the offenses committed as part
Ashland County, Case No. 18-COA-016                                                    13


             of any of the courses of conduct adequately reflects the seriousness

             of the offender's conduct.

             (c) The offender's history of criminal conduct demonstrates that

             consecutive sentences are necessary to protect the public from

             future crime by the offender.



      {¶ 35} Without pinpointing any specific failing other than perceived unfairness and

excessiveness, appellant complains the trial court failed to make the appropriate findings

pursuant to R.C. 2929.14(C)(4). We have examined the sentencing transcript in this

matter and note that the trial court meticulously complied with the requirements of R.C.

2929.14(C)(4) in imposing consecutive sentences.

      {¶ 36} Having heard the evidence presented at trial, and further having a pre-

sentence investigation report to rely upon, the trial court found appellant committed one

or more of the offenses as a course of conduct, the harm of which was so great that no

single commitment adequately reflected the nature of the crime and the severity. The

court further found that consecutive sentences are necessary to protect the public from

future crime, were not disproportionate to appellant's conduct and the danger he poses

to the public. The trial court additionally found appellant's lengthy history of criminal

conduct and failure to respond favorably to previously imposed community control

sanctions warranted consecutive sentences. Transcript of Sentencing at 17-20. We

therefore reject appellant's consecutive sentences complaint.
Ashland County, Case No. 18-COA-016                                                      14


                        Excessive, Disproportionate Sentence

       {¶ 37} Next, appellant argues the consecutive nature of his sentences renders his

sentence excessive and disproportionate. We disagree.

       {¶ 38} The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences. See State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus.

However, the trial court must comply with all applicable rules and statutes, including R.C.

2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, ¶ 37. A sentence is not contrary to law when it is within the authorized statutory

range and the trial court states that it has considered the principles and purposes of

sentencing and the seriousness and recidivism factors. State v. Smith, 2d Dist.

Montgomery No. 26307, 2016-Ohio-1269, ¶ 25.

       {¶ 39} Appellant does not dispute that his individual sentences are each within the

statutory range. The record shows that the trial court properly considered the principles

and purposes of sentencing contained in R.C. 2929.11 and the seriousness and

recidivism factors contained in R.C. 2929.12, and sentenced appellant within the

permissible range for each offense. Transcript of Sentencing 16-18.

       {¶ 40} In light of the foregoing, we find the record supports the trial court's

sentencing determination. Appellant's sentence is neither excessive nor disproportionate

to his conduct.
Ashland County, Case No. 18-COA-016                                                      15


                            Cruel and Unusual Punishment

       {¶ 41} Last, as to appellant's Eighth Amendment argument, appellant's sentence

is not shocking to the sense of justice in the community considering appellant is a repeat

offender and has failed to respond favorably to previously imposed sanctions. As noted

above, the terms of this sentence are within the statutory range. “As a general rule, a

sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual

punishment.” McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964).

“[P]unishments which are prohibited by the Eighth Amendment are limited to torture or

other barbarous punishments, degrading punishments unknown at common law, and

punishments which are so disproportionate to the offense as to shock the moral sense of

the community.” Id. “Cruel and unusual punishments are ‘rare’ and are limited to sanctions

that under the circumstances would be shocking to any reasonable person.” State v.

Koch, 5th Dist. Knox No. 16-CA-16, 2016-Ohio-7926, ¶ 24, citing State v. Blankenship,

145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 526, ¶ 32. Appellant's sentence under

these circumstances, and based on our review of the record, is lawful, reasonable, and

appropriate.

       {¶ 42} Appellant's second assignment of error is overruled.
Ashland County, Case No. 18-COA-016                                             16


      {¶ 43} The judgement of the Ashland County Court of Common Pleas is affirmed.



By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.




EEW/rw
[Cite as State v. Olmstead, 2018-Ohio-5301.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
DAVID E. BRANDON OLMSTEAD                      :
                                               :
        Defendant-Appellant                    :       CASE NO. 18-COA-016


        For the reasons stated in our accompanying Memorandum-Opinion, the judgment

of the Court of Common Pleas of Ashland County, Ohio is affirmed. Costs to appellant.
