[Cite as State v. Lewis, 2016-Ohio-7632.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-15-1297

        Appellee                                  Trial Court No. CR0201502054

v.

John Lewis Smith, III                             DECISION AND JUDGMENT

        Appellant                                 Decided: November 4, 2016

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Dexter L. Phillips, Assistant Prosecuting Attorney, for appellee.

        Patricia Horner, for appellant.

                                            *****

        JENSEN, P.J.

        {¶ 1} Following his conviction of six counts of forgery, defendant-appellant, John

Lewis Smith, III, appeals the October 21, 2015 judgment of the Lucas County Court of

Common Pleas. For the reasons that follow, we reverse.
                                     A. Background

       {¶ 2} On June 2, 2015, Oregon police officers initiated a traffic stop of a silver

Chevy Malibu, driven by Smith, after observing that it lacked a front license plate.

During the stop, it was discovered that the plate on the vehicle was actually registered to

a blue Oldsmobile. The officers ordered the vehicle towed and conducted an inventory

search. During that search they found 50 $20 denominations of U.S. currency, all with

the same serial number.

       {¶ 3} Smith was charged with 12 counts of forgery, violations of R.C.

2913.31(A)(3) and (C)(1)(a), and one count of operating a motor vehicle with invalid

plates, a violation of R.C. 4549.08(A)(3)(c). On October 13, 2015, Smith agreed to enter

a plea of no contest to six counts of forgery in exchange for dismissal of Counts 7

through 13. The trial court sentenced Smith to 10 months in prison on Counts 1 and 2, to

be served concurrently to each other; 10 months in prison on Counts 3 and 4, to be served

concurrently with each other, but consecutively to Counts 1 and 2; and 10 months in

prison on Counts 5 and 6, to be served concurrently with each other, but consecutively to

Counts 3 and 4. His aggregate prison term was 30 months.

       {¶ 4} Smith appealed the trial court’s judgment, and he assigns the following

errors for our review:

              I. THE DOCTRINE OF MERGER APPLIED AT SENTENCING[.]




2.
              II. THE PLAIN ERROR DOCTRINE PROTECTS APPELLANT’S

       ARGUMENT ON APPEAL THAT THE TRIAL COURT’S SENTENCE

       IS UNCONSTITUTIONAL[.]

                                   B. Analysis

       {¶ 5} Simply stated, Smith argues that the trial court violated his constitutional

right not to be subjected to multiple sentences for the same offense. He insists that his

multiple convictions for possession of the counterfeit currency were identical in import,

and were committed at the same time with a single animus. Accordingly, he claims, the

six counts should have merged at sentencing, resulting in a ten-month sentence only.

       {¶ 6} The state contends that no Ohio court has addressed the question of whether

multiple forgery convictions arising out of the possession of multiple counterfeit bills

should merge at sentencing. It urges us to conclude that the convictions should not

merge. The state acknowledges, however, that at least one federal court has addressed

the issue and has determined that multiple counts of possession of counterfeit currency

could not be sustained where the possession arose from a single act at a single time in a

single location. U.S. v. Leftenant, 341 F.3d 338, 347-348 (4th Cir.2003).

       {¶ 7} In Leftenant, the defendant was charged with six separate offenses after he

was found in possession of five counterfeit $20 bills and five counterfeit $50 bills. He

was charged with six counts because the groups of bills bore six distinct serial numbers.

The Fourth Circuit vacated five of Leftenant’s convictions and resulting sentences,

reasoning that “a defendant cannot be convicted of multiple counts of possession when




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multiple items of contraband are seized on a single occasion.” Id. In support of its

decision, it cited cases where it had held that a defendant could be convicted of only a

single act of possession for the simultaneous possession of multiple packages of cocaine

(U.S. v. Bennafield, 287 F.3d 320, 323-324 (4th Cir.2002)) or of multiple firearms (U.S.

v. Dunford, 148 F.3d 385, 389-390 (4th Cir.1998)).

       {¶ 8} Although not cited by either party, we have located additional federal cases

examining the same or similar issues, some of which provide support for the state’s

position. In U.S. v. Adriatico, 637 F.Supp. 105 (N.D.Nev.1986), the defendant was

charged with ten counts of possession of counterfeit reserve notes—one for each of ten

$100 bills found in defendant’s possession in a single envelope in the cab of the truck he

was driving. The court denied the defendant’s motion to dismiss the indictment. It

applied the wording of the statute under which defendant was charged—18 U.S.C. §

472—in concluding that each note could form the basis for a separate offense. It

reasoned that “[t]he statute does not prohibit possession of counterfeit bills generally;

instead, it expressly prohibits possession of ‘any falsely made, forged, counterfeited, or

altered obligation or other security of the United States.’” The court concluded that

“[t]he inclusion of the word ‘any’ * * * expresses Congressional intent that possession of

any single counterfeit bill is an independent and divisible offense.” Id. at 106.

       {¶ 9} Similarly, in U.S. v. LeMon, 622 F.2d 1022 (10th Cir.1980), the defendant

was charged, convicted, and sentenced on a four-count indictment for counterfeiting U.S.

currency. There, the four $100 federal reserve notes at issue had been produced




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simultaneously on a press designed to process the four notes in one action. Id. at 1023.

The defendant argued that the making of the four notes constituted only one act of

counterfeiting. Id. But the trial court held that the operation of the printing machine

produced four separate and distinct counterfeit notes, each one constituting a separate

violation of the statute. Id. The Tenth Circuit affirmed. It held that the statute “prohibits

the counterfeiting of ‘any obligation or other security of the United States.’ One act of

counterfeiting cannot be included within another act of counterfeiting. It matters not

when or how the counterfeit notes are made. Each is a violation of the statute.” Id. at

1024.

        {¶ 10} And in U.S. v. Mitchell, 176 Fed.Appx. 676, 678-679 (7th Cir.2006), the

court rejected the appellant’s claim that his convictions for multiple counts of possession

of counterfeit currency should have been reversed. In Mitchell, the court found that

multiple convictions were appropriate because “possession cases generally have

permitted a defendant to be charged with multiple violations of the same statute if the

items possessed were stored separately.” Id. at 678. In Mitchell, the defendant stored

separate amounts of counterfeit currency in separate places. Id.

        {¶ 11} Most of the federal cases cited examine the offenses in terms of whether

they are “multiplicitous.” In Ohio, this examination requires application of R.C. 2941.25.

See State v. Painter, 12th Dist. Clermont No. CA2014-03-022, 2014-Ohio-5011, ¶ 17

(“[T]he remedy for a multiplicitous indictment is to analyze the charges according to the

allied offenses statute, R.C. 2941.25.”). Under R.C. 2941.25(A), “Where the same




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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.” Where, however, “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.”

         {¶ 12} In other words, a defendant charged with multiple offenses may be

convicted of and sentenced on 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. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

¶ 13, citing State v. Moss, 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).

         {¶ 13} Here, despite the federal cases reaching a contrary result, we find that the

possession of multiple counterfeit currency of the same denomination, in a single place,

on a single occasion, constitutes “allied offenses” for purposes of R.C. 2941.25, and the

convictions and resulting sentences must be merged. Like the court in Leftenant, 341

F.3d 338, we analogize the possession of counterfeit currency to firearms possession

cases.

         {¶ 14} R.C. 2913.31(A)(3) provides that “No person, with purpose to defraud, or

knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess with purpose




6.
to utter, any writing that the person knows to have been forged.” R.C. 2923.13(A)(3)—

which prohibits a person with a prior drug conviction from possessing a firearm—is

worded similarly. It provides that “no person shall knowingly acquire, have, carry, or use

any firearm or dangerous ordnance, if * * *[t]he person is under indictment for or has

been convicted of any felony offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse * * *.

       {¶ 15} In State v. Pitts, 4th Dist. Scioto Case No. 99 CA 2675, 2000 Ohio App.

LEXIS 5211, *40-41 (Nov. 6, 2000), the defendant was convicted of eight different

counts of possession for eight different weapons, but seven of those weapons were found

in the same place. Applying this statute, the court concluded that “the statutory language

does not evince an intent to make each weapon the relevant unit of prosecution rather

than the transaction of having the weapons.” Id. at *39-40. The court, therefore,

concluded that “a defendant’s simultaneous possession of several weapons in one

location at one time is a continuous, indivisible act[,] * * * [t]hus, the simultaneous,

undifferentiated possession of weapons by a person under a disability constitutes only one

offense and not separate offenses for each weapon.” (Emphasis supplied.) See also State

v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 34 (2d Dist.) (“[W]e likewise find that a

defendant can commit one offense of having weapons while under disability by the

possession of multiple weapons.”).

       {¶ 16} The state does not address this analogy, but it argues that the Leftenant

court’s comparison of possession of counterfeit currency to the possession of cocaine is




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flawed because the weight of multiple packages of drugs can be aggregated to enhance

the penalty. It contends that the same is not true where counterfeit currency is involved.

Contrary to the state’s assertion, the offense level under R.C. 2913.31 is determined by

the value of the property involved. See R.C. 2931.31(C)(1). Thus, a higher value of

counterfeit currency may result in a higher-level offense.

       {¶ 17} Finally, because Smith failed to raise the issue of allied offenses in the trial

court, we review his assignment of error under the plain-error standard. Crim.R. 52(B).

State v. Ewing, 6th Dist. Lucas No. L-14-1127, 2015-Ohio-3804, ¶ 6. The plain error

doctrine represents an exception to the usual rule that errors must first be presented to the

trial court before they can be raised on appeal. It permits an appellate court to review an

alleged error where such action is necessary to prevent a manifest miscarriage of justice.

State v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978). In order to prevail under a

plain error standard, an appellant must demonstrate that there was an obvious error in the

proceedings and, but for the error, the outcome clearly would have been otherwise. State

v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62. Here, in light of our

analysis, we find that the outcome would have been different had the issue been raised in

the trial court.

       {¶ 18} Accordingly, we find Smith’s two assignments of error well-taken.




8.
                                       Conclusion

       {¶ 19} We affirm, in part, and reverse, in part, the October 21, 2015 judgment of

the Lucas County Court of Common Pleas. Appellant’s convictions remain intact. The

sentences for Counts 2 through 6 merge with the sentence for Count 1. The state is

ordered to pay the costs of this appeal under App.R. 24.


                                                               Judgment affirmed, in part,
                                                                    and reversed, in part.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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