      [Cite as State v. Williams, 2012-Ohio-4693.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 SCIOTO COUNTY

STATE OF OHIO,                                 :
                                               :
      Plaintiff-Appellee,                      : Case No. 11CA3408
                                               :
      vs.                                      : Released: September 25, 2012
                                               :
MAURICE H. WILLIAMS,                           : DECISION AND JUDGMENT
                                               : ENTRY
      Defendant-Appellant.                     :
                                         APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Assistant Scioto County
Prosecutor, Portsmouth, Ohio, for Appellee.


McFarland, J.:

      {¶1} Appellant, Maurice H. Williams, appeals his conviction in the Scioto

County Court of Common Pleas after a jury found him guilty of trafficking in

drugs, possession of drugs, possession of criminal tools, possession of marihuana,

and conspiracy to traffic in drugs. The charges included major drug offender

specifications and within the vicinity of a school specifications. Williams raises

five assignments of error, arguing 1) there was insufficient evidence to convict him

and his convictions were against the manifest weight of the evidence; 2) the trial

court erred in overruling his motion to suppress the evidence; 3) the trial court

erred by denying him the ability to call his co-defendant to the stand; 4) the verdict
Scioto App. No. 11CA3408                                                                 2


forms do not support his convictions; and 5) the trial court erred in convicting and

sentencing him.

      {¶2} Having reviewed the record, we have identified another sentencing

issue, which we raise sua sponte, related to the trial court’s characterization of the

sentence imposed in connection with Appellant’s status as a major drug offender.

Specifically, the trial court incorrectly stated a portion of Williams’ sentence was

mandatory, when it was not. Accordingly, we sua sponte notice plain error with

regard to this sentencing error and hereby reverse this portion of the sentence and

remand the case for proceedings consistent with this opinion.

      Next, we find there was substantial evidence upon which the jury could have

found Williams was guilty of the charged offenses beyond a reasonable doubt, and

his convictions are not against the manifest weight, nor was the evidence

insufficient. However, with respect to Williams’ argument that the trial court erred

when it entered a judgment of conviction on count 10, the conspiracy charge,

because the trial court merged count 10 with counts 1 and 2, Williams was not

actually sentenced on that count and, therefore, no conviction resulted on that

count. Thus, we overrule Williams’ fourth assignment of error.

      {¶3} Since Williams failed to demonstrate he had standing to challenge the

search of the residence, we conclude that the trial court correctly overruled his

motion to suppress the evidence and we overrule his second assignment of error.
Scioto App. No. 11CA3408                                                                 3


      {¶4} The trial court properly refused to call Williams’ co-defendant to testify

because he intended to only assert his Fifth Amendment right against self-

incrimination. Thus, we overrule Williams’ third assignment of error.

      {¶5} Regarding the verdict forms, we find there were several deficiencies

that require us to vacate Williams’ convictions for multiple counts and remand the

case to the trial court to enter a judgment of conviction for the correct level of the

offenses and sentence Williams accordingly. Thus, we affirm Williams’ fourth

assignment of error in part, and overrule it in part.

      {¶6} Finally, we find the trial court did not err in sentencing Williams and

overrule his fifth assignment of error.

      {¶7} Therefore, we affirm in part and reverse in part the trial court’s

judgment and remand the case for proceedings consistent with this opinion.

                                          FACTS

      {¶8} On October 25, 2010, Officer Steve Timberlake was unloading items

from his vehicle when an unknown male approached him. The male knew

Timberlake by name and told him there were men from Detroit selling drugs out of

Katherine Lansing’s residence at 616 Sixth Street in Portsmouth, Ohio. The next

morning, Timberlake found an anonymous note on his vehicle’s windshield,

addressed to him, indicating there were “D-boys” at the house on Sixth Street, and

illegal activity was occurring at another location in Portsmouth.
Scioto App. No. 11CA3408                                                             4


      {¶9} Timberlake viewed the Scioto County Court of Common Pleas’

website and determined Lansing was on probation. Timberlake contacted Nick

Ferrara, the court’s chief probation officer, and discussed the tip about Lansing.

Ferrara noted Lansing’s listed address was not on Sixth Street, but she had not

been reporting to her probation officer and had an outstanding warrant for her

arrest. Ferrara determined the 616 Sixth Street address was incorrect, as the

probation department was located on Sixth Street, and 616 would have been an

alleyway.

      {¶10} As a result of this conversation, Timberlake began checking the police

department’s records for mention of Lansing. One month earlier, on September

22, 2010, a caller telephoned the police to report a burglary at 518 Sixth Street,

Portsmouth, Ohio. The report identified the caller as “Catherine Lansing,” the

resident.

      {¶11} Based upon this new information that placed Lansing at 518 Sixth

Street only one month earlier, Ferrara decided it would be prudent to visit the

residence and arrest Lansing. Because of Timberlake’s tip that there may be as

many as five additional persons present, who were allegedly selling drugs, Ferrara

requested Timberlake and other officers from the Portsmouth Police Department

assist with the home search for safety reasons. Timberlake and two other officers

accompanied Ferrara and two probation officers to the residence.
Scioto App. No. 11CA3408                                                              5


      {¶12} Upon arriving at the residence, part of the group went to the front

door, while the others covered the rear. One of the probation officers at the front

door knocked and announced his presence. The officers heard scuffling inside, but

no verbal response, and no one answered the door. The officers at the back then

noticed one to two males approaching the second story window in a manner that

indicated they were attempting to exit the window. The officers shouted this

information to the others at the front of the house. At that point, Ferrara ordered

one of the probation officers to breach the door.

      {¶13} Upon entering the residence, the officers saw Williams descending the

stairs. They escorted him to the living room without incident. Law enforcement

found Daniel Pippen in the upstairs restroom and Tyrone Dixon, Evan Howard,

and Eric Durr in a small upstairs bedroom. The bedroom had a dresser and a

mattress in it, along with a pile of money on the floor. The money totaled $3,090.

      {¶14} Probation officers were unable to locate Lansing within the house, but

they did find mail addressed to her at the residence, as well as a photo of her on the

refrigerator. With evidence the house was Lansing’s residence, the officers

conducted a search for contraband.

      {¶15} Law enforcement found a total of $16,803, 1,824 oxycodone pills,

cocaine, heroin, marihuana, and two digital scales. Some of the pills and money

were in a sock underneath a cushion on the couch. Other drugs and money were in
Scioto App. No. 11CA3408                                                                 6


a plastic Walmart bag by the door to the basement. Most of the marihuana was

behind the dresser in the upstairs bedroom. There was additional money under the

mattress in the same room. There was even money inside of a woman’s shoe.

Officers found the digital scales in the kitchen. After the search, Tyrone Dixon

attempted to claim all of the contraband as his, but when officers asked him asked

what was his, Dixon was unable to identify all of the contraband the officers found.

      {¶16} The grand jury indicted Williams and the others within the house for

trafficking in drugs, possession of drugs, trafficking in cocaine, possession of

cocaine, possession of criminal tools, possession of marihuana, and conspiracy to

traffic in drugs, many of which included aggravating specifications. During the

jury trial, the trial court dismissed the counts relating to the cocaine, and the jury

convicted Williams of the remaining counts and found the money recovered was

subject to forfeiture. The verdict forms read:

      Count 1:      “Trafficking in Drugs/Oxycodone/Vicinity of a School/Major

                    Drug Offender.” The jury found the amount equaled or

                    exceeded 100 times the bulk amount and was within 1,000 feet

                    of a school.

      Count 2:      “Possession of Drugs/Major Drug Offender.” The jury found

                    the amount equaled or exceeded 100 times the bulk amount.
Scioto App. No. 11CA3408                                                           7


      Count 3:     “Trafficking in Drugs/Heroin/Within the Vicinity of a School.”

                   The jury found the amount equaled or exceeded the bulk

                   amount, but was less than five times the bulk amount, and was

                   within 1,000 feet of a school.

      Count 4:     “Possession of Drugs/Heroin.” The jury found the amount

                   equaled or exceeded one gram, but was less than five grams.

      Count 7:     “Trafficking in Drugs/Marijuana/Within the Vicinity of a

                   School.” The jury found the amount was less than 200 grams

                   and was within 1,000 feet of a school.

      Count 8:     “Possession of Criminal Tools.” There were no findings

                   associated with this count.

      Count 9:     “Possession of Marijuana.” The jury found the amount was less

                   than the bulk amount.

      Count 10:    “Conspiracy to Traffic in Drugs, F2.”

      {¶17} The trial court sentenced Williams to 27 years in prison. Williams

now appeals.

                           ASSIGNMENTS OF ERROR

      I.    “THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO

            SUPPORT DEFENDANT’S [CONVICTION], WHICH
Scioto App. No. 11CA3408                                                            8


             CONVICTION IS MANIFESTLY AGAINST THE WEIGHT OF

             THE EVIDENCE AND MUST BE REVERSED.”

      II.    “THE TRIAL COURT ERRED IN DENYING DEFENDANT-

             APPELLANT’S MOTION TO SUPPRESS AND RENEWED

             MOTION TO SUPPRESS EVIDENCE.”

      III.   “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

             DEFENDANT WHEN THE TRIAL COURT REFUSED TO

             ALLOW THE DEFENDANT-APPELLANT [TO] CALL THE CO-

             DEFENDANT AS A WITNESS AT TRIAL AND REQUIRE THE

             DEFENDANT-APPELLANT TAKE THE WITNESS STAND AND

             ASSERT HIS FIFTH AMENDMENT RIGHTS ON THE WITNESS

             STAND.”

      IV.    “THE VERDICT FORMS DO NOT SUPPORT DEFENDANT’S

             CONVICTIONS.”

      V.     “THE TRIAL COURT ERRED IN CONVICTING AND

             SENTENCING DEFENDANT.”

                                LEGAL ANALYSIS

      {¶18} After reviewing the record, we have noted an initial threshold matter

that must be addressed related to the trial court’s characterization of Williams’

sentence imposed as a result of his major drug offender specification. As will be
Scioto App. No. 11CA3408                                                                9


more fully discussed, infra, when sentencing Williams, the trial court incorrectly

stated that this portion of Williams’ sentence was mandatory, when it was not. As

such, we have decided to sua sponte invoke the “plain error” rule. Crim.R. 52(B)

states that although a defendant may have failed to raise a timely objection to an

error affecting a substantial right, courts may notice the error.

      {¶19} For a reviewing court to find plain error: 1.) there must be an error, i.e

., “a deviation from a legal rule”; 2.) the error must be plain, i.e., “an ‘obvious'

defect in the trial proceedings”; and 3.) the error must have affected “substantial

rights,” i.e., it must have affected the outcome of the proceedings. State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Furthermore, the Supreme Court of

Ohio has admonished courts that notice of plain error under Crim.R. 52(B) is to be

taken “ ‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’ ” Id., quoting State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

      {¶20} When reviewing felony sentences, this Court follows the two-step

approach the Supreme Court of Ohio outlined in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4. See State v. Welch, 4th Dist. No.

08CA29, 2009-Ohio-2655, at ¶ 6. “First, [we] must examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence

to determine whether the sentence is clearly and convincingly contrary to law. If
Scioto App. No. 11CA3408                                                                 10


this first prong is satisfied, [that is, if the sentence complies with the law,] the trial

court’s decision shall be reviewed under an abuse-of-discretion standard.” Kalish

at ¶ 4.

          {¶21} Here, the jury convicted Williams of aggravated trafficking in drugs,

with additional aggravating factors that the amount of oxycodone involved was

more than 100 times the bulk amount, and the crime occurred within the vicinity of

a school. Aggravated trafficking in drugs is proscribed by R.C. 2925.03(C)(1).

R.C. 2925.03(C)(1)(f) provided, “[i]f the amount of the drug involved equals or

exceeds one hundred times the bulk amount and regardless of whether the offense

was committed in the vicinity of a school or in the vicinity of a juvenile,

aggravated trafficking in drugs is a felony of the first degree, the offender is a

major drug offender, and the court shall impose as a mandatory prison term the

maximum prison term prescribed for a felony of the first degree and may impose

an additional prison term prescribed for a major drug offender under division

(D)(3)(b) of section 2929.14 of the Revised Code.” The jury found the amount of

the drug exceeded 100 times the bulk amount.

          {¶22} Thus, Williams was a “major drug offender” under R.C.

2925.03(C)(1)(f) and subject to a mandatory prison term of ten years for

aggravated trafficking in drugs. The trial court also sentenced Williams to an
Scioto App. No. 11CA3408                                                                11


additional prison term of ten years for the major drug offender specification,

stating on the record that this additional ten-year term was mandatory.

      {¶23} R.C. 2929.14(D)(3)(b) provided, “[t]he court imposing a prison term

on an offender under division (D)(3)(a) of this section may impose an additional

prison term of one, two, three, four, five, six, seven, eight, nine, or ten years * *

*.”1 That is, the trial court was permitted to impose an additional prison term of

ten years for the major drug offender specification, but the statutory language did

not make the additional prison term mandatory. Thus, it was erroneous for the trial

court to label the prison term for the major drug offender specification as

“mandatory.”

      {¶24} The distinction between mandatory and nonmandatory prison terms is

important when determining whether a court may grant an offender judicial

release. R.C. 2929.20(A)(1)(a) provided only eligible offenders could apply for

judicial release, and “‘eligible offender’ means any person serving a stated prison

term of ten years or less * * *.” As Williams’ aggregate sentence was 27 years, he

was not eligible for judicial release because his aggregate sentence was greater

than ten years.

      {¶25} However, Revised Code Section 2929.20 has since been amended and

Williams will eventually be eligible for judicial release, even with a prison

      1
          R.C. 2929.14 has since been amended.
Scioto App. No. 11CA3408                                                               12


sentence of 27 years. The General Assembly amended R.C. 2929.20(A)(1)(a) to

read, “Except as provided in division (A)(1)(b) of this section, ‘eligible offender’

means any person who, on or after April 7, 2009, is serving a stated prison term

that includes one or more nonmandatory prison terms.” As 17 years of Williams’

27-year sentence are nonmandatory, Williams is an “eligible offender.”

Additionally, the newly added R.C. 2929.20(C)(5) provides, “[i]f the aggregated

nonmandatory prison term or terms is more than ten years, the eligible offender

may file the motion not earlier than the later of the date on which the offender has

served one-half of the offender’s stated prison term or the date specified in division

(C)(4) of this section.”

      {¶26} Accordingly, because the trial court incorrectly stated the ten-year

prison term for Williams’ major drug offender specification was mandatory, we

conclude that this portion of the sentence was contrary to law and an abuse of

discretion under Kalish, supra, and also constitutes plain error. Accordingly, we

hereby reverse this portion of the sentence and remand the case for proceedings

consistent with this opinion.

                           ASSIGNMENT OF ERROR I

                                A. Standard of Review

      {¶27} In his first assignment of error, Williams argues his convictions were

against the manifest weight of the evidence and based upon insufficient evidence.
Scioto App. No. 11CA3408                                                               13


We disagree. Further, with respect to Pippen’s claim that he was convicted of

conspiracy to traffic in drugs based upon insufficient evidence against the weight

of the evidence, because we find Pippen was not actually convicted on the

conspiracy count, we reject this argument also.

      {¶28} “When an appellate court concludes that the weight of the evidence

supports a defendant’s conviction, this conclusion necessarily includes a finding

that sufficient evidence supports the conviction. Thus, a determination that [a]

conviction is supported by the weight of the evidence will also be dispositive of the

issue of sufficiency. Therefore, we first consider whether [Appellant’s] conviction

[is] against the manifest weight of the evidence.” (Internal quotations, citations,

and footnote omitted.) State v. Leslie, 4th Dist. Nos. 10CA17, 10CA18, 2011-

Ohio-2727, at ¶ 15. See, also, State v. Bostwick, 4th Dist. No. 10CA3382, 2011-

Ohio-3671, at ¶ 10; State v. Kulchar, 4th Dist. No. 10CA6, 2011-Ohio-5144, at ¶

31 (per curiam).

      {¶29} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must 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.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, at ¶ 24,
Scioto App. No. 11CA3408                                                            14


citing State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. A

reviewing court “may not reverse a conviction when there is substantial evidence

upon which the [trier of fact] could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58

Ohio St.3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d

56, 526 N.E.2d 304, at paragraph two of the syllabus.

      {¶30} We must still remember that the weight to be given evidence and the

credibility to be afforded testimony are issues to be determined by the trier of fact.

State v. Frazier (1995), 73 Ohio St.3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000,

citing State v. Grant (1993), 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d

50. The trier of fact “is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984),

10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

                                  B. Legal Analysis

                                1. Trafficking Counts

       “(A) No person shall knowingly do any of the following:

      “* * *

       “(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance, when the offender knows or has reasonable
Scioto App. No. 11CA3408                                                               15


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

offender or another person.

       “* * *

       “(C) Whoever violates division (A) of this section is guilty of one of the

following:

       “(1) If the drug involved in the violation is any compound, mixture,

preparation, or substance included in schedule I or schedule II, with the exception

of marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A)

of this section is guilty of aggravated trafficking in drugs. The penalty for the

offense shall be determined as follows:

      “* * *

       “(f) If the amount of the drug involved equals or exceeds one hundred times

the bulk amount and regardless of whether the offense was committed in the

vicinity of a school * * *, aggravated trafficking in drugs is a felony of the first

degree, the offender is a major drug offender, and the court shall impose as a

mandatory prison term the maximum prison term prescribed for a felony of the

first degree.

       “* * *

       “(3) If the drug involved in the violation is marihuana or a compound,

mixture, preparation, or substance containing marihuana other than hashish,
Scioto App. No. 11CA3408                                                                16


whoever violates division (A) of this section is guilty of trafficking in marihuana.

The penalty for the offense shall be determined as follows:

       “* * *

       “(b) Except as otherwise provided in division (C)(3)(c), (d), (e), (f), (g), or

(h) of this section, if the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, trafficking in marihuana is a felony of the fourth degree, and

division (B) of section 2929.13 of the Revised Code applies in determining

whether to impose a prison term on the offender.

       “* * *

       “(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this

section is guilty of trafficking in heroin. The penalty for the offense shall be

determined as follows:

       “* * *

       “(b) Except as otherwise provided in division (C)(6)(c), (d), (e), (f), or (g)

of this section, if the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, trafficking in heroin is a felony of the fourth degree, and

division (C) of section 2929.13 of the Revised Code applies in determining

whether to impose a prison term on the offender.”
Scioto App. No. 11CA3408                                                                                          17


                                          a. Aggravated Trafficking in Drugs2

        {¶31} Here, there was substantial evidence upon which the jury could

reasonably conclude the state had proven all elements of aggravated trafficking in

drugs beyond a reasonable doubt.

        {¶32} Timberlake testified about the various controlled substances law

enforcement recovered from 518 Sixth Street. Williams was present in the house

when law enforcement recovered these.

        {¶33} Megan Snyder, a forensic chemist, testified at great length about the

chemical analyses she performed on each substance, identifying whether it was a

controlled substance, and noting the amount of each substance. Snyder testified

there were 1,824 pills that contained oxycodone (oxycodone hydrochloride). She

also testified, based upon the maximum daily dosage of 90 milligrams for

        2
            We note the names of the offenses used in several of the verdict forms are incorrect, though this did not

prejudice Williams.      For example, Count 1 was entitled “Trafficking in Drugs/Oxycodone/Vicinity of a

School/Major Drug Offender,” but should have been entitled “aggravated trafficking in drugs” and specified the

controlled substance involved was oxycodone. See R.C. 2925.03(C)(1). The offenses should have been titled

“aggravated trafficking in drugs” and “aggravated possession of drugs” (for the oxycodone), “trafficking in heroin”

and “possession of heroin,” “trafficking in marijuana” and “possession of marihuana.” The statutory scheme of R.C.

2925.03 and 2925.11 provides for separate offenses, each with distinct aggravating factors and penalties, depending

upon the controlled substance involved. We caution against the vernacular use of the phrases “trafficking in drugs”

and “possession of drugs,” as the state and the court did in this case, because these vernacular phrases are actually

specific crimes involving specific controlled substances. See R.C. 2925.03(C)(2) and 2925.11(C)(2). Instead,

parties should employ the specific statutory name of the offense based upon the controlled substance involved.
Scioto App. No. 11CA3408                                                              18


oxycodone and oxycodone’s “bulk amount” being five times the maximum daily

dosage, the pills were 121.6 times the bulk amount of oxycodone.

      {¶34} Regarding the proximity of 518 Sixth Street to a school, Melinda

Davis testified the residence was within 1000’ of a school at which she was the

principal.

      {¶35} Again, there were digital scales in plain view. There was $3,090 on

the floor of the upstairs bedroom. In total, there was $16,803 in cash within the

house, though only one of five defendants was ostensibly employed. In addition to

the 1,824 oxycodone pills, there was heroin, cocaine, and marihuana recovered

from the residence. Given the sheer quantity of the oxycodone recovered, and the

other evidence, it was reasonable for the jury to conclude Williams was involved in

preparing for shipment, shipping, transporting, delivering, preparing for

distribution, or distributing the oxycodone. It was also reasonable for the jury to

conclude Williams intended to sell or resell the oxycodone, or he knew or had

reasonable cause to believe another person intended to sell or resell the oxycodone.

      {¶36} Although the case against Williams and his co-defendants is based

entirely upon circumstantial evidence, circumstantial evidence is, by itself, a

sufficient basis for a conviction. State v. Bostwick, 4th Dist. No. 10CA3382, 2011-

Ohio-3671, at ¶ 17, quoting State v. Smith, 4th Dist. No. 09CA29, 2010-Ohio-
Scioto App. No. 11CA3408                                                               19


4507, at ¶ 44, quoting State v. Franklin (1991), 62 Ohio St.3d 118, 124, 580

N.E.2d 1.

      {¶37} Addressing Williams’ contention that the state failed to prove

possession, even constructive possession, we disagree. Possession may be actual

or constructive. State v. Butler (1989), 42 Ohio St.3d 174, 176, 538 N.E.2d 98;

State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747, ¶ 39. “Actual possession

exists when the circumstances indicate that an individual has or had an item within

his immediate physical possession. Constructive possession exists when an

individual is able to exercise dominion or control of an item, even if the individual

does not have the item within his immediate physical possession.” Fry at ¶ 39,

citing State v. Hankerson (1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus, and

State v. Wolery (1976) 46 Ohio St.2d 316, 329, 348 N.E.2d 351.

      {¶38} This court has held that, “[f]or constructive possession to exist, ‘[i]t

must also be shown that the person was conscious of the presence of the object.’”

State v. Harrington, 4th Dist. No. 05CA3038, 2006-Ohio-4388, at ¶ 15, citing

Hankerson at 91. Further, “two or more persons may have joint constructive

possession of a particular item.” State v. Cooper, 3d Dist. No. 9-06-49, 2007-

Ohio-4937, at ¶ 25, citing State v. Mann (1993), 93 Ohio App.3d 301, 308, 638

N.E.2d 585; State v. Riggs (Sept. 13, 1999), 4th Dist. No. 98CA39, 1999 WL

727952. “[T]he crucial issue is not whether the accused had actual physical
Scioto App. No. 11CA3408                                                            20


contact with the article concerned, but whether the accused was capable of

exercising dominion or control over it.” State v. Reed, 2d. Dist. No. 2002-CA-30,

2003-Ohio-5413, at ¶ 19.

      {¶39} Williams’ argument is his mere proximity to various controlled

substances does not conclusively establish he possessed them. R.C. 2925.01(K)

provides, “‘[p]ossess’ or ‘possession’ means having control over a thing or

substance, but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing

or substance is found.” That is, “a defendant’s mere presence in an area where

drugs are located does not conclusively establish constructive possession.

However, a defendant’s proximity to drugs may constitute some evidence of

constructive possession. Mere presence in the vicinity of illegal drugs, coupled

with another factor or factors probative of dominion or control over the

contraband, may establish constructive possession.” (Internal citations omitted,

emphasis added.) State v. Riggs (Sept. 13, 1999), 4th Dist. No. 98CA39.

      {¶40} In State v. Harrington, the defendant’s proximity to a quantity of

cocaine, coupled with his immediate denial of any wrongdoing and false

statements, permitted a jury to infer the defendant knew the cocaine was there.

Harrington at ¶ 18, 24. We found this evidence sufficient to establish the

defendant knew of the cocaine and he had the ability to exercise control over it,
Scioto App. No. 11CA3408                                                              21


demonstrating constructive possession. Id. at ¶ 24. We also found the defendant’s

convictions for possession and trafficking in cocaine were not against the manifest

weight of the evidence. Id. at ¶ 26.

      {¶41} In State v. New, 4th Dist. No. 08CA9, 2009-Ohio-2632, the state

presented evidence of recorded telephone conversations between the defendant and

her boyfriend that indicated she knew there were drugs in the house. During a

phone call, the defendant discussed with her boyfriend specific items in the home

the police had recovered, such as a coffee can with a false bottom that contained

cocaine, a plate with a razor blade that had cocaine residue on it, and pictures of

the defendant, her boyfriend, and a third party holding large sums of cash. New at

¶ 16, 17. Given the defendant’s presence in the house, coupled with her statements

about specific items related to controlled substances, she knew where the cocaine

was kept in the residence, and a finding that she constructively possessed the

cocaine was not against the manifest weight of the evidence. Id. at ¶ 18.

      {¶42} Likewise, in State v. Riggs, we found the defendant’s proximity to

controlled substances in the passenger compartment of a vehicle, coupled with the

vast amount of controlled substances and paraphernalia within the vehicle was

sufficient to establish constructive possession. Law enforcement recovered

cocaine in a bag behind the passenger’s seat; a cocaine straw and a plastic

container with marihuana residue beside the defendant’s seat; a mirror with
Scioto App. No. 11CA3408                                                            22


cocaine residue under the passenger’s seat; numerous marihuana roaches and

marihuana joints throughout the vehicle, many of which were in the defendant’s

plain view. Id. Thus, the defendant’s proximity, coupled with the vast amount of

drugs, some of which were in plain view, permitted the jury to find he knowingly

possessed the drugs. Id.

      {¶43} The present case is akin to Riggs. “The presence of such a vast

amount of drug evidence in the [house] supports an inference that [Williams] knew

about the presence of the drugs and that he, along with his [co-defendants],

exercised control over each of the items found.” Riggs, citing State v. Soto, 8th

Dist. No. 57301, 1990 WL145651 (Oct. 4, 1990). Here, there were drugs scattered

throughout the entire house: 1,824 oxycodone pills, over 100 grams of marihuana,

heroin, cocaine, and traces of codeine and morphine. There were digital scales in

plain view in the kitchen. There was over $16,000 cash in a house where four of

the five occupants were unemployed. Considering all of this evidence together, the

jury could properly infer Williams knew there were controlled substances in the

house and he was capable of exercising dominion or control over them,

establishing his constructive possession of the controlled substances. Thus, the

jury’s findings that Williams knowingly possessed the various controlled

substances were not against the manifest weight of the evidence.
Scioto App. No. 11CA3408                                                              23


      {¶44} Considering the totality of the evidence, there was substantial

evidence upon which the jury could reasonably conclude the state had proven all

elements of aggravated trafficking in drugs beyond a reasonable doubt. We cannot

say the jury clearly lost its way and created a manifest miscarriage of justice.

Thus, we affirm Williams’ conviction for aggravated trafficking in drugs.

                            b. Trafficking in Marihuana

      {¶45} Timberlake testified law enforcement had recovered a bag of

marihuana, which contained smaller bags of marihuana. There were also small

amounts of marihuana in other containers. Snyder testified the chemical analyses

revealed the substance was indeed marihuana and there was 113.3 grams of

marihuana total. Again, Davis’ testimony was the house was within 1,000 feet of a

school.

      {¶46} No one testified the marihuana was for personal use. Give the

quantity of the marihuana, the fact that it was stored in smaller packages, and its

presence of marihuana residue on the digital scale, it was reasonable to believe

Williams was trafficking the marihuana.

      {¶47} Considering the evidence as a whole, there was substantial evidence

upon which the jury could reasonably conclude the state had proven all elements of

trafficking in marihuana beyond a reasonable doubt. We cannot say the jury
Scioto App. No. 11CA3408                                                                                         24


clearly lost its way and created a manifest miscarriage of justice. Thus, we affirm

Williams’ conviction for trafficking in marihuana.3

                                           c. Trafficking in Heroin

         {¶48} Similarly, Timberlake testified law enforcement had recovered 2.8

grams of heroin from the residence. Snyder confirmed through chemical analysis

the substance was heroin. Snyder also testified one of the digital scales had trace

amounts of heroin on it. Again, according to Davis, the house was within 1,000

feet of a school.

         {¶49} As with the marihuana, no one testified the heroin was for personal

use. Given the heroin residue on the digital scale, it was reasonable to believe

Williams was trafficking the heroin.

         {¶50} Considering the totality of the evidence, there was substantial

evidence upon which the jury could reasonably conclude the state had proven all

elements of trafficking in heroin beyond a reasonable doubt. We cannot say the

jury clearly lost its way and created a manifest miscarriage of justice. Thus, we

affirm Williams’ conviction for trafficking in heroin.4



         3
             The jury’s finding that the marihuana was “less than bulk amount” is inconsequential because “less than

bulk amount” is not an aggravating factor; in fact the statute does not refer to a bulk amount of marihuana.
         4
             We address the finding that the heroin was “Equal to or greater than bulk amount but less than five (5)

times bulk amount,” infra.
Scioto App. No. 11CA3408                                                            25


                      2. Possession of Controlled Substances

      R.C. 2925.11 provides:

       “(A) No person shall knowingly obtain, possess, or use a controlled

substance.

       “* * *

       “(C) Whoever violates division (A) of this section is guilty of one of the

following:

       “* * *

       “(1) If the drug involved in the violation is a compound, mixture,

preparation, or substance included in schedule I or II, with the exception of

marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of

this section is guilty of aggravated possession of drugs. The penalty for the offense

shall be determined as follows:

       “(e) If the amount of the drug involved equals or exceeds one hundred times

the bulk amount, aggravated possession of drugs is a felony of the first degree, the

offender is a major drug offender, and the court shall impose as a mandatory prison

term the maximum prison term prescribed for a felony of the first degree.

       “* * *

       “(3) If the drug involved in the violation is marihuana or a compound,

mixture, preparation, or substance containing marihuana other than hashish,
Scioto App. No. 11CA3408                                                                 26


whoever violates division (A) of this section is guilty of possession of marihuana.

The penalty for the offense shall be determined as follows:

       “(a) Except as otherwise provided in division (C)(3)(b), (c), (d), (e), (f), or

(g) of this section, possession of marihuana is a minor misdemeanor.”

       “* * *

      “(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this

section is guilty of possession of heroin. The penalty for the offense shall be

determined as follows:

       “* * *

       “(b) If the amount of the drug involved equals or exceeds ten unit doses but

is less than fifty unit doses or equals or exceeds one gram but is less than five

grams, possession of heroin is a felony of the fourth degree, and division (C) of

section 2929.13 of the Revised Code applies in determining whether to impose a

prison term on the offender.”

      {¶70} When the jury found Williams trafficked in the controlled substances

(oxycodone, heroin, and marihuana) under R.C. 2925.03(A)(2), it implicitly found

he possessed the substances, too. For the same reasons Williams’ convictions for

trafficking were not against the manifest weight of the evidence, we find his

convictions for possession of the controlled substances are not against the manifest
Scioto App. No. 11CA3408                                                             27


weight of the evidence either. Thus, we affirm Williams’ convictions for

aggravated possession of drugs, possession of marihuana, and possession of

heroin.5

                                      3. Possessing Criminal Tools

      {¶51} R.C. 2923.24(A) provides, “No person shall possess or have under the

person’s control any substance, device, instrument, or article, with purpose to use it

criminally.” Whoever violates that section is guilty of possessing criminal tools.

R.C. 2923.24(C).

      {¶52} As with Williams’ convictions for possession of controlled

substances, there was substantial evidence upon which a jury could find Williams

possessed the digital scales found in the kitchen. The fact that the scales had

residue from marihuana, heroin, codeine, and morphine on them, coupled with the

vast amount of drugs recovered from the house, permitted the jury to infer

Williams had a purpose to use the scales criminally: to traffic the controlled

substances. Thus, we affirm Williams’ conviction for possessing criminal tools.

                                   4. Conspiracy to Traffic in Drugs

      R.C. 2923.01 provides:




      5
          Again, we discuss the errors with the verdict forms, infra.
Scioto App. No. 11CA3408                                                          28


       “(A) No person, with purpose to commit or to promote or facilitate the

commission of * * * a felony drug trafficking, manufacturing, processing, or

possession offense * * * shall do either of the following:

       “(1) With another person or persons, plan or aid in planning the commission

of any of the specified offenses;

       “(2) Agree with another person or persons that one or more of them will

engage in conduct that facilitates the commission of any of the specified offenses.

       “* * *

       “(M) As used in this section:

       “(1) ‘Felony drug trafficking, manufacturing, processing, or possession

offense’ means any of the following that is a felony:

       “(a) A violation of section 2925.03 * * * of the Revised Code;

       “(b) A violation of section 2925.11 of the Revised Code that is not a minor

drug possession offense.”

      {¶53} R.C. 2923.01(G) provides, “When a person is convicted of

committing * * * [a] specific offense, the person shall not be convicted of

conspiracy involving the same offense.” As such, because Williams was convicted

on the principle trafficking offense, he could not be convicted of conspiracy

involving the same offense. Contrary to Williams’ argument that he was convicted
Scioto App. No. 11CA3408                                                              29


of conspiracy to traffic in drugs, based upon the following, we conclude that

Williams was not actually convicted on the conspiracy count.

      {¶54} Here, the record reflects that although the jury did return a finding of

guilt as to the conspiracy to traffic in drugs count, count 10, the trial court “ordered

that count 10 merge with Count 1 and Count 2.” Thus, despite the jury’s finding

Williams guilty on count 10, the trial court did not impose a sentence for count 10.

“A conviction consists of a finding of guilt and a sentence.” State v. Fields, 1st

Dist. No. C-090648, 2010-Ohio-4114, ¶ 7, citing State v. Henderson, 58 Ohio

St.2d 171, 177-179, 389 N.E.2d 494 (1979); State v. Obstaint, 1st Dist. No. C-

060629, 2007-Ohio-2661, ¶ 24; accord State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, ¶ 12. As such, although the jury found Williams

guilty of count 10, the trial court did not impose a sentence for count 10 and as a

result, Williams was not convicted of count 10. Therefore, there is no conspiracy

conviction to vacate.

      {¶55} As to the other counts discussed herein, as we have found Williams’

convictions are not against the manifest weight of the evidence, we find there was

also sufficient evidence to convict him of each offense. Accordingly, we overrule

Williams’ first assignment of error.
Scioto App. No. 11CA3408                                                              30


                           ASSIGNMENT OF ERROR II

                                A. Standard of Review

      {¶56} In his second assignment of error, Williams argues the trial court erred

in overruling his motion to suppress evidence. We disagree.

      {¶57} Preliminarily, “[w]here factual issues are involved in determining a

motion, the court shall state its essential findings on the record.” Crim.R. 12(F).

While the trial court made no explicit factual findings when it denied Williams’

motion to suppress, “[t]he extensive record of the suppression hearing is ‘sufficient

to allow full review of the suppression issues.’” State v. Sapp, 105 Ohio St.3d 104,

822 N.E.2d 1239, 2004-Ohio-7008, at ¶96, quoting State v. Waddy (1992), 63 Ohio

St.3d 424, 443, 588 N.E.2d 819; citing State v. Brewer (1990), 48 Ohio St.3d 50,

60, 549 N.E.2d 491.

      {¶58} Generally, “‘[a]ppellate review of a motion to suppress presents a

mixed question of law and fact. When considering a motion to suppress, the trial

court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.’” State v. Roberts, 110

Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100, quoting State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8, citing State

v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. “Accordingly, we defer

to the trial court’s findings of fact if they are supported by competent, credible
Scioto App. No. 11CA3408                                                              31


evidence.” State v. Westbrook, 4th Dist. No. 09CA3277, 2010-Ohio-2692, at ¶16,

citing State v. Landrum (2000), 137 Ohio App.3d 718, 722, 739 N.E.2d 1159.

“Accepting those facts as true, we must independently determine whether the trial

court reached the correct legal conclusion in analyzing the facts of the case.”

Westbrook at ¶16, citing Roberts at ¶100, citing Burnside at ¶8.

                                 B. Legal Analysis

      {¶59} After reviewing the record, we conclude that Williams did not

establish he had standing to assert a Fourth Amendment violation. “The rule

followed by courts today with regard to standing is whether the defendant had an

expectation of privacy * * * that society is prepared to recognize as reasonable.

The burden is upon the defendant to prove facts sufficient to establish such an

expectation.” State v. Williams, 73 Ohio St.3d 153, 166, 652 N.E.2d 721 (1995),

citing Rakas v. Illinois, 439 U.S. 128, 131, 99 S.Ct. 421, 58 L.Ed.2d 387, at fn. 1

(1978) and State v. Steele, 2 Ohio App.3d 105, 107, 440 N.E.2d 1353 (8th Dist.

1981). See, also, State v. Corbin, 6th Dist. No. WD-10-013, 2011-Ohio-3491, at ¶

24.

      {¶60} Here, although Williams argued that he had standing to challenge the

search of the residence and the items within it, he provided no evidence or

testimony in support of his argument. Williams did not own the residence or state

he lived there. Nor did Williams establish he was an overnight guest who could
Scioto App. No. 11CA3408                                                              32


invoke the aegis of Minnesota v. Olson (1990), 495 U.S. 91, 110 S.Ct. 1684, 109

L.Ed.2d 85, and claim he had an expectation of privacy within Lansing’s

residence. Consequently, Williams failed to establish he had standing to assert a

Fourth Amendment violation and the trial court was right to deny his motion.

      {¶61} Accordingly, we overrule Williams’ second assignment of error.

                           ASSIGNMENT OF ERROR III

                               A. Standard of Review

      {¶62} In his third assignment of error, Williams argues the trial court erred

when it denied his request to question Tyrone Dixon, a co-defendant, on the

witness stand. Williams believes he should have, at least, been permitted to call

Dixon to the stand so the jury could watch him invoke his Fifth Amendment right

to silence. We disagree.

      {¶63} “‘The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.’” State v. Abdi, 4th Dist. No. 09CA35, at ¶ 62,

quoting State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two

of the syllabus. “‘The term “abuse of discretion” connotes more than an error of

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” (Citations omitted.) Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d

151, 157, 404 N.E.2d 144. “Under this highly deferential standard of review, we
Scioto App. No. 11CA3408                                                                33


may not simply substitute our judgment for that of the trial court.” Woody at ¶35,

citing In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181.

“Rather, we are limited to determining whether considering the totality of the

circumstances, the trial court acted unreasonably, arbitrarily or unconscionably.”

Id., citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222, 459 N.E.2d 896,

citing Blakemore, 5 Ohio St.3d at 218-220.

                                  B. Legal Analysis

      {¶64} “[A] trial court may exclude a person from appearing as a witness on

behalf of a criminal defendant at trial if the court determines that the witness will

not offer any testimony, but merely intends to assert the Fifth Amendment

privilege against self-incrimination.” State v. Kirk (1995), 72 Ohio St.3d 564, 569,

651 N.E.2d 981.

      {¶65} Here, the jury was excused from the courtroom when the discussion of

Dixon’s testimony occurred. (Tr. at 794, 798.) Dixon’s counsel indicated Dixon

would be asserting his Fifth Amendment right against self-incrimination. (Tr. at

799.) After the court advised Dixon of his Fifth Amendment right not to testify,

Dixon personally exercised his right to remain silent. (Tr. at 799-800.) The court

then denied Williams’ request to call Dixon as a witness and refused to permit
Scioto App. No. 11CA3408                                                                                             34


Williams to proffer a letter he alleged Dixon had written that inculpated Dixon and

exculpated Williams.6

          {¶66} The record clearly demonstrates had the trial court permitted Williams

to call Dixon to testify, Dixon merely would have invoked his Fifth Amendment

right to silence. Per Kirk, the trial court was justified in excluding Dixon as a

witness because he would not have offered any testimony, but instead merely

asserted his Fifth Amendment privilege against self-incrimination. Accordingly,

the trial court did not err and we overrule Williams’ third assignment of error.

                                     ASSIGNMENT OF ERROR IV

                                           A. Standard of Review

          {¶67} In his fourth assignment of error, Williams argues his convictions

should be vacated because they do not contain the degree of the offenses or the




          6       The trial court’s denial of Williams’ request to proffer the letter for appellate review was patently

wrong. Prohibiting an evidentiary proffer prohibits this Court from reviewing the trial court’s ruling and interferes

with a party’s ability to maintain an effective appeal. See, State v. Rhodes (1903), 68 Ohio St. 500, 505, 68 N.E. 7

(“When the court sustained objections to such inquiries, no statement was made of what the expected proof would

be, and, as it occurred during the examination in chief, the ruling of the court is not reviewable in the absence of

such statement. The rule requires a proffer of the desired evidence, in order that a reviewing court can determine

whether or not the action of the trial court was prejudicial.”) While the trial court has the discretion to admit certain

evidence, it has no discretion or authority whatsoever to deny a party the right to proffer evidence for appellate

review.
Scioto App. No. 11CA3408                                                                35


statutory sections pertaining to the various crimes. We agree in part, though

vacating Williams’ sentences is not the proper remedy.

      R.C. 2945.75 provides:

       “(A) When the presence of one or more additional elements makes an

offense one of more serious degree:

      ***

       (2) A guilty verdict shall state either the degree of the offense of which the

offender is found guilty, or that such additional element or elements are present.

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the

offense charged.”

      {¶68} The Supreme Court of Ohio has adopted a plain reading of this

statute. See State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735,

at ¶ 14. Moreover, “[a]lthough [an appellant] failed to object to the verdict forms

in the trial court, we have previously noted that a defendant’s failure to ‘raise the

inadequacy of the verdict form’ does not forfeit this argument on appeal.” New at

¶ 24, citing State v. Huckleberry, 4th Dist. No. 07CA3142, 2008-Ohio-1007, ¶ 18,

citing Pelfrey at ¶ 14.

                                  B. Legal Analysis

      {¶69} Here, none of the counts listed the degree of the offense, except for

Count 10, Conspiracy to Traffic in Drugs. While the majority of the counts did not
Scioto App. No. 11CA3408                                                            36


list the degree of the offense, they did contain specific findings regarding

aggravating factors. Thus, those counts comply with R.C. 2945.75(A)(2) and

Pelfrey and we affirm the trial court’s judgment as it pertains to Count 1, Count 4,

and Count 7.

      {¶70} Regarding the remaining counts, Count 2 did not specify the

controlled substance involved; Count 3, Count 8, and Count 9 did not contain the

degree of the offense or proper findings regarding aggravating factors.

Accordingly, we must sustain Williams’ assignment of error on these counts and

remand the case to the trial court to reduce the degree of those offenses.

      {¶71} However, as will be explained in more detail, infra, because counts 2

and 9 were merged with counts 1 and 7, respectively, we conclude Williams was

not actually convicted on these counts. As such, there are no convictions on counts

2 and 9 to vacate. Thus, any error related to the verdict forms for counts 2 and 9 is

harmless. Nevertheless, as set forth above, on remand, the trial court is instructed

to reduce the degree of offense on counts 2 and 9.

                           1. Count 2: Possession of Drugs

      {¶72} “[T]his Court has ruled that when a jury verdict fails to specify the

drug involved, the convictions must be treated as being associated with the least

serious drug for possession/trafficking (usually marijuana).” State v. Jones, 4th
Scioto App. No. 11CA3408                                                              37


Dist. No. 09CA1, 2010-Ohio-865, at fn. 3, citing New at ¶ 26, fn. 3; Huckleberry at

¶ 24.

        {¶73} As the verdict form for Count 2 fails to specify the drug possessed, we

must treat it as a finding of guilt regarding possession of the least serious drug,

marihuana. Since there is no “bulk amount” for marihuana, the finding of that

additional element of “Equal [sic] or exceeds one hundred (100) times bulk

amount” is meaningless. See R.C. 2925.01(D)(1) (excluding marihuana from the

definition of “bulk amount”); R.C. 29295.11(C)(3) (delineating the penalties for

possession of marihuana and enhancing the degree of the offense based upon gram

weight, not bulk amount).

        {¶74} Consequently, the jury found Williams guilty of possession of

marihuana, which is a minor misdemeanor, not a first degree felony. R.C.

2925.11(C)(3)(a). As such, we sustain Williams’ assignment of error in this

regard. However, as indicated above, because count 2 was merged with count 1,

Williams was not sentenced on count 2. “A conviction consists of a finding of

guilt and a sentence.” State v. Fields, 1st Dist. No. C-090648, 2010-Ohio-4114, ¶

7, citing State v. Henderson, 58 Ohio St.2d 171, 177-179, 389 N.E.2d 494 (1979);

State v. Obstaint, 1st Dist. No. C-060629, 2007-Ohio-2661, ¶ 24; accord State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12. Because

Williams was not sentenced on count 2, there is no conviction on count 2 to vacate.
Scioto App. No. 11CA3408                                                              38


Thus, any error related to the verdict form is harmless. Nevertheless, because this

matter is already being remanded on several other issues, the trial court is

instructed to reduce the degree of offense on count 2 consistent with this opinion.

                           2. Count 3: Trafficking in Heroin

      {¶75} In count three, the jury made a finding of “Equal to or greater than

bulk amount but less than five (5) times bulk amount” and “Within 1000 feet of a

School.” Yet R.C. 2925.01(D)(1), which defines “bulk amount,” specifically

excludes heroin from that definition. Moreover, R.C. 2925.03(C)(6), the statute

proscribing trafficking in heroin, does not enhance the degree of the offense based

upon “bulk amount.” Rather, R.C. 2925.03(C)(6) enhances the degree of the

offense based upon a finding of the number of unit doses or the gram weight of the

heroin. Thus, the jury’s finding of one to five times the bulk amount of heroin is

meaningless.

      {¶76} Consequently, the jury found Williams trafficked in heroin, with the

aggravating factor of having done so within 1,000 feet of a school. Accordingly,

his conviction for trafficking in heroin should be a felony of the fourth degree, not

a felony of the third degree. R.C. 2925.03(C)(6)(b). We sustain Williams’

assignment of error in this regard and vacate his conviction for Count 3.
Scioto App. No. 11CA3408                                                             39


                       3. Count 8: Possessing Criminal Tools

      {¶77} R.C. 2923.24(A) provides, “No person shall possess or have under the

person’s control any substance, device, instrument, or article, with purpose to use it

criminally.” Whoever violates that section is guilty of possessing criminal tools.

R.C. 2923.24(C). Possessing criminal tools is a misdemeanor of the first degree

unless the circumstances indicate the item involved was intended for use in the

commission of a felony; then possessing criminal tools is a felony of the fifth

degree. Id.

      {¶78} Here, the jury made no finding of the aggravating factor that the

scales, the criminal tools, were intended for use in the commission of a felony.

Thus, the verdict form was devoid of the level of the offense findings or

aggravating factors and constitutes a finding of guilt of the least degree of the

offense charged: a first degree misdemeanor. We sustain Williams’ assignment of

error in this regard and vacate his conviction for Count 8.

                        4. Count 9: Possession of Marihuana

      {¶79} The verdict form for Count 9 stated the jury had found Williams

guilty of “Count 9 Possession of Marijuana,” and made the specific finding of

“Less than bulk amount.” There is, however, no bulk amount for marihuana. See

R.C. 2925.01(D)(1) (excluding marihuana from the definition of “bulk amount”).

Further, when determining the appropriate penalty for possession of marihuana,
Scioto App. No. 11CA3408                                                            40


R.C. 2925.11(C)(3) refers to the gram weight of the substance involved, not a bulk

amount. Thus, the jury’s finding that Williams was guilty of possession of

marihuana constitutes a finding of the least degree of the offense; a minor

misdemeanor. As such, we sustain Williams’ assignment of error in this regard.

However, as we concluded in our analysis of count 2, because count 9 was merged

with 7, Williams was not sentenced on count 9 and thus, there is no conviction to

vacate. Obstaint, supra, at ¶ 24.

      {¶80} Accordingly, we remand the case to the trial court to 1) impose

convictions for the correct level of these offenses as to counts 3 and 8; 2) to reduce

the degree of offenses as to counts 2 and 9, which were merged with counts 1 and

7 for purposes of sentences: and 3) to sentence Williams accordingly.

                           ASSIGNMENT OF ERROR V

      {¶81} In his fifth assignment of error, Williams argues his convictions and

sentences are erroneous. First, he contends all of the trafficking and possession of

controlled substances charges should merge, as the state failed to prove he engaged

in separate conduct for each offense. Second, Williams believes the sentences the

trial court imposed were simply too harsh. We disagree.

                            A. Merger of Allied Offenses

      {¶82} When determining whether multiple offenses should have merged

under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta (Nov.
Scioto App. No. 11CA3408                                                           41


12, 1996), 4th Dist. No. 96 CA 3. See, also, Coleman v. Davis, 4th Dist. No.

10CA5, 2011-Ohio-506, at ¶ 16 (“We review questions of law de novo.”), quoting

State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶ 12, quoting Cuyahoga

Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d

330, at ¶ 23.

       R.C. 2941.25 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 as to each, the

indictment or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.”

       {¶83} As the Supreme Court explained in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the court must

determine prior to sentencing whether the offenses were committed by the same

conduct.” Johnson at ¶ 47. The initial question is whether it is possible to commit

the two offenses with the same conduct. Johnson at ¶ 48. If so, we must then look
Scioto App. No. 11CA3408                                                             42


to the facts of the case and determine whether the two offenses actually were

committed by the same conduct, “i.e., ‘a single act, committed with a single state

of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50. “If the answer to both questions is yes, then

the offenses are allied offenses of similar import and will be merged.” Johnson at

¶ 50.

        {¶84} “Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are

committed separately, or if the defendant has separate animus for each offense,

then, according to R.C. 2941.25(B), the offenses will not merge.” Johnson at ¶ 51.

        {¶85} Here, Williams’ various crimes relating to different controlled

substances are of dissimilar import and do no not merge. State v. Jones (1985), 18

Ohio St.3d 116, 480 N.E.2d 408, discussed the issue of whether a defendant could

be convicted of multiple counts of aggravated vehicular homicide resulting from a

single collision. The relevant inquiry is “whether the legislature intended the

relevant statute[s] to authorize multiple convictions.” Jones at 117. Having

reviewed the legislative intent of R.C. 2925.11, “[t]he Supreme Court of Ohio has

held that the simultaneous possession of different types of controlled substances

can constitute multiple offenses under R.C. 2925.11.” State v. Westbrook, 4th Dist.

No. 09CA3277, 2010-Ohio-2692, at ¶ 42, citing State Delfino (1986), 22 Ohio
Scioto App. No. 11CA3408                                                               43


St.3d 270, 490 N.E.2d 884, at syllabus. The same holds true for trafficking in

multiple controlled substances. Westbrook at ¶ 46.

       {¶86} Here, Williams’ convictions for trafficking in oxycodone, heroin, and

marihuana do not merge with one another. Likewise, Williams’ convictions for

possession of controlled substances do not merge with one another. The import of

each offense is dissimilar and does not merge under R.C. 2941.25(A). See R.C.

2941.25(B). Accordingly, we overrule this portion of Williams’ fifth assignment

of error.

                               B. Length of Sentences

       {¶87} In the second portion of his fifth assignment of error, Williams argues

his sentences are too harsh. Specifically, Williams contends the trial court failed to

consider R.C. 2929.14 and, per Blakely v. Washington (2004), 524 U.S. 296, 124

S.Ct. 2531, 159 L.Ed.2d 403, the jury was required to make specific findings

before the trial court imposed the harshest sentence. We disagree.

       {¶88} First, Williams’ contention that the trial court erred by failing to

consider R.C. 2929.14(B) is meritless. The Supreme Court of Ohio held in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, portions of Ohio’s

sentencing statutes were unconstitutional to the extent they required judicial fact-

finding the imposition of sentences above the minimum term. R.C. 2929.14(B)
Scioto App. No. 11CA3408                                                                 44


was one of the offending portions. We decline to remand the case to the trial court

to consider an unconstitutional statute.

       {¶89} Regarding Williams’ argument that his sentence was unduly harsh and

contrary to law, this argument is also unpersuasive. First, Williams fails to specify

how his sentence is too harsh, he fails to specify what law it contravenes, and he

fails to cite to any law to support this portion of his argument. These deficiencies

alone permit us to overrule this portion of his assignment of error.

       {¶90} When reviewing felony sentences, this Court follows the two-step

approach the Supreme Court of Ohio outlined in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4. See State v. Welch, 4th Dist. No.

08CA29, 2009-Ohio-2655, at ¶ 6. “First, [we] must examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence

to determine whether the sentence is clearly and convincingly contrary to law. If

this first prong is satisfied, [that is, if the sentence complies with the law,] the trial

court’s decision shall be reviewed under an abuse-of-discretion standard.” Kalish

at ¶ 4. “As to the first step, the Kalish court did not clearly specify what ‘pertinent

laws’ we are to consider to ensure that the sentence ‘clearly and convincingly’

adheres to Ohio law. The only specific guideline is that the sentence must be

within the statutory range * * *.” State v. Ross, 4th Dist. No. 08CA872, 2009-

Ohio-877, at ¶ 10.
Scioto App. No. 11CA3408                                                              45


      {¶91} “[T]rial courts have full discretion to impose sentences within the

statutory range and determine whether a sentence satisfies the overriding purposes

of Ohio’s sentencing statutes.” Welch at ¶ 11. “‘[I]n order for there to be an abuse

of discretion, the trial court’s decision must be “* * * so palpably and grossly

violative of fact or logic that it evidences not the exercise of will, but perversity of

will; not the exercise of judgment, but defiance of judgment; and not the exercise

of reason, but, instead, passion or bias.’” Welch at ¶ 12, quoting Nakoff v.

Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1.

      {¶92} Here, Williams cites no law of which his sentences run afoul. Nor do

we, upon our own review of his sentences, find them to be contrary to law. The

deficiencies in the verdict forms aside, Williams’ sentences were within the

permitted statutory ranges.

      {¶93} Nor did the trial court abuse its discretion when sentencing Williams.

Count 1 carried a mandatory maximum sentence, and a major drug offender

specification, which also permitted Williams to serve an additional prison term.

None of the prison terms imposed against Williams demonstrated a perversity of

will, a defiance of judgment, or the exercise of passion or bias.

      {¶94} Williams had a previous criminal history related to controlled

substances. In this case, the jury convicted Williams of possessing and trafficking

in multiple types of controlled substances, which included a massive amount of
Scioto App. No. 11CA3408                                                             46


oxycodone. We cannot find the trial court abused its discretion when it sentenced

Williams to a total term of incarceration of 27 years.

      {¶95} Accordingly we overrule Williams’ fifth assignment of error.

            JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
                                           CAUSE REMANDED.


      Kline, J., dissenting, in part.

      {¶96} I concur in judgment only with the following exceptions. First, I

would not vacate Count 8. Here, the trial court instructed the jury as follows:

“Before you can find the individual Defendant[] * * * guilty, you must find beyond

a reasonable doubt that * * * the individual Defendant * * * had under his control a

device or instrument, to wit, digital scales, with purpose to use it criminally for the

commission of a felony.” (Emphasis added.) Transcript at 923. Therefore, based

on the presumption that the jury followed the trial court’s instruction, I would not

recognize plain error as to Count 8. See State v. Eafford, 132 Ohio St.3d 159,

2012-Ohio-2224, 970 N.E.2d 891, ¶¶ 11, 17. Furthermore, I believe that Counts 2

and 9 are moot. Therefore, I would not address these counts.

      {¶97} Accordingly, I respectfully dissent as to Counts 2, 8, and 9. I

respectfully concur in judgment only with the rest of the opinion.
Scioto App. No. 11CA3408                                                                    47


                                      JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART, AND CAUSE REMANDED and that the Appellee and Appellant split costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents in Part with Opinion as to A/E’s 2, 8, & 9 and with the remainder of
Opinion Concurs in Judgment Only.

                                    For the Court,

                                    BY:    _________________________
                                           Matthew W. McFarland, Judge

                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
