[Cite as State v. Taylor, 2011-Ohio-5080.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                 CASE NO. 13-10-49

        v.

MEGAN L. TAYLOR,                                            OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                             Trial Court No. 10CR0143

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                                        Date of Decision:




APPEARANCES:

        Randy F. Hoffman and Charles R. Hall, Jr. for Appellant

        Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-10-49


ROGERS, P.J.

        {¶1} Defendant-Appellant, Megan L. Taylor (“Taylor”), appeals the

judgment of the Court of Common Pleas of Seneca County, convicting and

sentencing her on two felony counts. On appeal, Taylor argues that the jury

verdict was against the manifest weight of the evidence; that she received

ineffective assistance of counsel; that the trial court erred in sentencing her for

both counts of aggravated trafficking as they were allied offenses; and, that the

final judgment entry and the nunc pro tunc judgment entry should be void as the

trial court cited the wrong section of the Ohio Revised Code. Finding that the

evidence supported the jury’s verdict, that Taylor has failed to establish ineffective

assistance of counsel, and that the offenses were not allied offenses, we affirm in

part the decision of the trial court. Finding that the trial court committed several

clerical errors in the judgment entry and erred in awarding restitution, we reverse

in part the judgment of the trial court.

        {¶2} On July 29, 2010, the Seneca County Grand Jury indicted Taylor on

two counts of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),

(C)(1)(b), felonies of the third degree.1 The two charges arose from a contract

between the Seneca County Drug Task Force and a confidential informant (“CI”)

which provided that the CI would execute three drug purchases in exchange for


1
  The subsection (C)(1)(b) is the additional finding that elevates aggravated trafficking of drugs from a
felony of the fourth degree to one of the third degree.

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leniency in the CI’s pending charges. An arrest warrant was issued for Taylor by

the Seneca County Common Pleas Court on August 3, 2010. On August 19, 2010,

Taylor appeared at arraignment. On September 24, 2010, Taylor entered a plea of

not guilty. On October 28, 2010, the matter proceeded to a jury trial. On count I,

the jury rendered a verdict of guilty and made the additional finding that the

offense occurred within the vicinity of a juvenile. On count II, the jury rendered a

verdict of guilty but did not make the additional finding. On November 23, 2010,

the trial court sentenced Taylor to three years in prison for count I and twelve

months in prison for count II, to be served concurrently. The trial court imposed

restitution in the amount of fifty dollars to the Seneca County Drug Task Force

METRICH Enforcement Unit.

       {¶3} At trial, the State presented five witnesses, including Detective Donald

Joseph, a detective sergeant with the Seneca County Sheriff’s Office; Scott

Dobransky, a forensic scientist for the Ohio Bureau of Criminal Identification and

Investigation; Detective Matthew Armstrong, a detective for the Fostoria Police

Department assigned to the Seneca County Drug Task Force; Rachel Eckert (“the

CI”) the confidential informant; and, Detective Charles Boyer, a unit coordinator

for the Seneca County Drug Task Force. The defense presented Appellant Taylor.

The State’s case in chief adduced the following relevant evidence.




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       {¶4} Detective Joseph testified that he was involved in a controlled buy on

November 6, 2009, the subject of which was Megan Taylor. He testified that he

received a phone call reporting that the Seneca County Drug Task Force had

arranged for a CI to buy five pills of Percocet, which contained Oxycodone, a

Schedule II controlled substance, on November 6, 2009 from Taylor. Detective

Joseph explained that the buy was to take place at Taylor’s residence in Tiffin,

Ohio. On November 6, 2009, the CI and her vehicle were searched, the CI was

provided $25.00, and was fitted with an audio transmitter and digital recorder

which allowed the CI and Detective Joseph to communicate as well as record the

transaction. Detective Joseph stated that he followed the CI to the entrance to the

mobile home park in which Taylor resided, where he parked, while the CI

continued to the residence. He testified that he could hear the CI enter Taylor’s

residence; that he could hear a conversation between the CI and Taylor; that he

could hear children talking; and, that he could hear a conversation about the

Percocet.   Detective Joseph continued that once the CI returned to the pre-

determined location, she gave the suspected Percocet to him, and he conducted a

search of the vehicle and of the CI for contraband, finding none.

       {¶5} Detective Joseph continued to testify regarding the second controlled

buy on November 7, 2009. He testified that, at the end of the operation on

November 6, 2009, the CI and Taylor arranged for Taylor to sell another five pills


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of Percocet to the CI the following day. He testified that, on November 7, 2009,

the controlled buy occurred at Taylor’s residence, but this time he instructed the

CI to stay in her vehicle and have Taylor come outside so that he could obtain a

video recording of Taylor to corroborate the audio recording. Detective Joseph

explained that he searched the CI and her vehicle for contraband, fitted her with an

audio recording device, gave her $25.00, and instructed her to wait down the road

from Taylor’s residence so as to allow enough time for Detective Boyer to set up a

video camera to record the operation. He testified that he heard the CI arrive at

Taylor’s residence; that he heard children and adults coming and going throughout

the trailer park; that he could hear Taylor get into the vehicle; that he could hear

the door open and close; and, that he could hear the conversation between the CI

and the defendant.    After leaving the trailer park, the CI gave the suspected

Percocet to the task force agents. Again he searched the CI’s person and vehicle

for contraband but found none. Lastly, he testified that the pills retrieved from the

controlled buys on November 6 and 7, 2009 were sent to the Ohio Bureau of

Criminal Identification and Investigation for testing.

       {¶6} Rachel Eckert testified that she “had gotten into some trouble” and “as

a way to resolve [her] problems,” she worked as a CI in Seneca County for about

one month. Trial Tr., p. 209.     She testified that in consideration for her efforts,

she was to receive community control and drug rehabilitation. The CI continued


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that she had known Taylor through mutual friends; that she saw Taylor at the

Tiffin hospital; that she and Taylor were talking at the hospital when Taylor

offered to sell her some Percocet for $5.00 each. She testified that she informed

the Seneca County Drug Task Force that she would be able to buy drugs from

Taylor; that she, Detective Joseph, and Detective Boyer set up the operation; that

on November 6, 2009, she and her vehicle were searched for contraband; that she

was issued $25.00 to purchase the Percocet; that she was outfitted with a recording

device; and, that she went to Taylor’s residence and made the purchase. She

testified that Taylor’s children were in the room with them while she purchased

the Percocet, and that the children were under the age of ten. The CI testified that

after she left Taylor’s residence, she returned to the pre-determined location and

gave the pills and the recording device to the officers.

       {¶7} The recording of the buy on November 6, 2009 was played for the

jury. It revealed that Taylor sold the CI five pills of Percocet for $5.00 each.

Children’s voices could be heard clearly on the audio recording.          Also, the

recording revealed that the CI and Taylor agreed to a second sale of Percocet the

following day.

       {¶8} The CI continued to testify regarding the buy on November 7, 2009.

She explained that the same procedure as the first buy was followed except that

Detective Boyer took a video recording of the operation outside of Taylor’s


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residence. The CI testified that once Detective Boyer was set-up, she drove to

Taylor’s residence but this time remained in her vehicle; that Taylor came out of

the residence followed by her son who began riding his bike; that Taylor entered

the CI’s vehicle; that Taylor sold her five pills she believed to be Percocet for

$5.00 a pill; that after the sale the CI returned to the pre-determined location to

meet with Detectives Joseph and Boyer; that she turned the pills over to them; that

they searched her person and vehicle; and, that no contraband was found as a

result of the search. The audio recording from November 7, 2009 was played for

the jury.

       {¶9} On redirect-examination, the CI testified to the discussion between her

and Taylor regarding Taylor selling her the Percocet. The CI explained that she

and Taylor had been acquainted for about two years; that, in late October or early

November of 2009, she was leaving the hospital after having undergone a

procedure; that as she was waiting for her ride, Taylor entered the hospital with

one of her children; that the CI and Taylor began talking about the reasons they

were at the hospital when Taylor said that she had Percocet to sell for $5.00 each;

and, that the two exchanged phone numbers so that she could buy Percocet from

Taylor.

       {¶10} The video recording taken by Detective Boyer on November 7, 2009

was played for the jury. It showed the CI drive to and park outside Taylor’s


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residence, Taylor and a child exit the residence, Taylor enter the CI’s vehicle, and

Taylor’s child leave to ride his bike around the trailer park.

       {¶11} The State moved to admit its exhibits, which the trial court admitted.

       {¶12} The defense then presented Taylor on direct-examination. Taylor

testified that she has known the CI for a couple of years; that they have spent time

together in the past; that they lost contact when she moved; that she ran into the CI

at the hospital; that, at the hospital, the CI was in a wheelchair as she had just

undergone a procedure; that the CI looked exhausted and said she was taking

Percocet; that she was concerned for the CI because she viewed her as a good

friend; that she said she also had Percocet for a recent procedure; that she had her

four-year old daughter with her; that a nurse was present for their entire

interaction; that she suggested they exchange phone numbers so that they could

get together; that she did not offer to sell the CI Percocet because she does not sell

drugs; that it was the CI who contacted her about buying Percocet; that it was the

CI who suggested to buy five Percocet for $25.00; that she just wanted someone to

spend time with because she does not have any friends; that she never had it in

mind to commit a criminal offense, but that she just wanted to help out a friend;

and, that the CI persuaded her to sell her drugs. Taylor also testified that, on

November 7, 2009, her son exited their residence with her and rode his bike to his




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Case No. 13-10-49


grandmother’s residence; that her daughter was already at the grandmother’s

residence; and, that there were no other minor children in the area on that date.

       {¶13} On cross-examination, Taylor testified that on November 6, 2009,

her children were in the room with her when she sold the CI the Percocet; that she

asked the CI if she was interested in a muscle relaxer; that she sold the CI five

pills on November 6, 2009 and five pills on November 7, 2009; and, that she

received $25.00 on each day.

       {¶14} The defense rested. The jury returned a verdict of guilty on count I

and count II, and found that Taylor did commit the offense within the vicinity of a

juvenile for count I, but not for count II. Further, the jury found that Taylor did

not prove the affirmative defense of unlawful entrapment for either count. The

trial court accepted the verdicts and subsequently sentenced Taylor to three years’

imprisonment for count I and twelve months’ imprisonment for count II, to be

served concurrently. The trial court also ordered restitution to be paid to the

Seneca County Drug Task Force METRICH Enforcement Unit. It is from the

conviction and the sentence that Appellant brings her appeal, assigning the

following errors for our review.

                            Assignment of Error No. I

       THE JURY VERDICT OF GUILTY WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE AS WAS THE
       JURY FINDING OF NO ENTRAPMENT


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                            Assignment of Error No. II

       THE APPELLANT WAS DENIED HER RIGHT TO A FAIR
       TRIAL BY THE INEFFECTIVE ASSISTANCE OF COUNSEL
       EVIDENCED BY COUNSEL’S OPENING REMARKS

                           Assignment of Error No. III

       THE TRIAL COURT ERRED IN SENTENCING APPELLANT
       FOR BOTH COUNTS IN THE INDICTMENT AS THE
       COUNTS WERE ALLIED OFFENSES OF SIMILAR IMPORT
       UNDER ORC 2941.25(A)

                           Assignment of Error No. IV

       THE TRIAL COURT ERRED IN ITS SENTENCING ENTRY
       OF NOVEMBER 23, 2010 AND ITS NUNC PRO TUNC
       ENTRY OF NOVEMBER 24, 2010 BY CITING THE WRONG
       OHIO REVISED CODE SECTION

                         Assignment of Error No. I

       {¶15} In her first assignment of error, Taylor alleges that the jury verdict

was against the manifest weight of the evidence due to the conflicting testimony

regarding the initiation of the contact between the CI and Taylor. Taylor also

alleges that the jury’s finding that there was no entrapment was against the

manifest weight of the evidence as the evidence established that the CI had

initiated and arranged for the purchases herself.

       {¶16} The State contends that the verdict was not against the manifest

weight of the evidence in light of the overwhelming evidence favoring Appellant’s

guilt. We agree.


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      {¶17} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on

other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E..2d 668,

1997-Ohio-335, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717.     Only in exceptional cases, where the evidence “weighs heavily

against the conviction,” should an appellate court overturn the trial court’s

judgment. Id.

      {¶18} Under a manifest weight standard, an appellate court sits as a

“thirteenth juror” and may disagree with the fact finder’s resolution of the

conflicting testimony. Id. Although the appellate court may act as a thirteenth

juror, it should give due deference to the findings made by the fact-finder.

Thompkins, 78 Ohio St.3d at 388.

      {¶19} The jury found Taylor guilty on two counts of aggravated trafficking

in drugs in violation of R.C. 2925.03(A)(1), the first with an additional finding

that the offense occurred within the vicinity of a juvenile. R.C. 2925.03(A)(1)


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provides that no person shall knowingly sell or offer to sell a controlled substance.

The additional finding in subsection (C)(1)(b) provides that if the offense was

committed in the vicinity of a juvenile, aggravated trafficking in drugs is a felony

of the third degree. “A person acts knowingly, regardless of his purpose, when he

is aware that his conduct will probably cause a certain result or will probably be of

a certain nature.” R.C. 2901.22(B).

       {¶20} The manifest weight of the evidence presented at trial clearly

established Taylor’s guilt. As Scott Dobransky, the forensic scientist with the

Ohio Bureau of Criminal Identification and Investigation, testified, the pills he

received as evidence from the two buys contained Oxycodone, which is a

Schedule II controlled substance.     For the first sale, the audio recording, the

testimony of the CI, the officers, and Taylor, and the drugs admitted as evidence

overwhelmingly support the jury verdict of guilty. The audio recording reveals

statements made by Taylor that establish that she knowingly sold the drugs to the

CI. Taylor stated that she was at first skeptical of the CI as she did not want the CI

to turn her into the police, and that she also had other drugs for sale.          The

testimony of the CI and the officers corroborated that the sale took place. Further,

Taylor herself testified that she sold drugs to the CI while her children were in the

room. For the second sale, although the audio recording does not reveal a verbal

exchange regarding the sale, it does establish that the CI and Taylor had a


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conversation about Percocet. The video recording shows Taylor entering the CI’s

vehicle. Before the sale, the CI and her vehicle were searched for contraband and

the CI was given $25.00. After the CI returned from the sale, she turned over the

five pills of Percocet. This evidence overwhelmingly established the elements of

aggravated trafficking in drugs on both counts.

       {¶21} The defense also asserts that the jury’s finding of no entrapment was

against the manifest weight of the evidence. In State v. Doran, the Supreme Court

defined the affirmative defense of entrapment as:

       The defense of entrapment is established where the criminal
       design originates with the officials of the government, and they
       implant in the mind of an innocent person the disposition to
       commit the alleged offense and induce its commission in order to
       prosecute.

State v. Doran (1983), 5 Ohio St.3d 187, 449 N.E.2d 1295, paragraph one of the

syllabus. In defining entrapment, the Supreme Court adopted a subjective test,

which focuses on the predisposition of the accused to commit the offense,

emphasizing the accused’s criminal culpability and not the culpability of the

police officer. Id. at 192. The Supreme Court held that the following matters,

although non-exhaustive, are relevant in establishing the issue of predisposition:

       (1) The accused’s previous involvement in criminal activity of
       the nature charged, (2) the accused’s ready acquiescence to the
       inducements offered by the police, (3) the accused’s expert
       knowledge in the area of the criminal activity charged, (4) the
       accused’s ready access to contraband, and (5) the accused’s
       willingness to [become involved] in criminal activity.

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Id. As entrapment is an affirmative defense, the burden of production and the

burden of proof, by a preponderance of the evidence, is on the defendant. Id.;

R.C. 2901.05(A).

       {¶22} In the present case, Taylor presented evidence through her own

testimony that the CI was the one who initiated the discussion of buying Percocet,

who followed up with her to buy the Percocet, and who arranged the first and the

second sale of the Percocet. Taylor testified that she knew the CI through mutual

acquaintances and that a few days before the sales occurred, she ran into the CI at

the hospital. Taylor explained that the CI had just had a procedure done and

needed pain medication as the doctor did not give her a prescription. Taylor

testified that she agreed to sell the CI Percocet because she had some that she was

not taking, and because she was in need of friends and saw this as an opportunity

to gain a friend.

       {¶23} Notably missing from Taylor’s testimony is any evidence regarding

her predisposition to trafficking in drugs, including any previous involvement or

lack thereof, her failure to readily acquiesce to the sale, a lack of knowledge of

drug trafficking, or her unwillingness to become involved in criminal activity.

Rather, the State presented evidence that Taylor readily sold the CI drugs and even

offered to sell her other drugs. Because the defense has failed to produce evidence

of Taylor’s lack of predisposition, it failed to establish entrapment by a

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preponderance of the evidence. Therefore, the jury’s finding of no entrapment

was not against the manifest weight of the evidence.

       {¶24} Accordingly, we overrule Taylor’s first assignment of error.

                             Assignment of Error No. II

       {¶25} In her second assignment of error, Taylor asserts that she received

ineffective assistance of counsel due to the negative statements made by her

counsel about her during his brief opening statement, voir dire, and his longer

opening statement. Taylor urges that, assuming these remarks are considered trial

strategy, they were faulty and created an insulting initial impression, without

which, the outcome at trial would have been different.

       {¶26} The State contends that counsel’s remarks did not amount to

ineffective assistance as they were clearly part of his trial strategy to cast her as a

lonely individual who was desperate for companionship.

       {¶27} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio

St.3d 136, 538 N.E.2d 373, paragraph two of syllabus. To show that a defendant

has been prejudiced by counsel’s deficient performance, the defendant must prove

that there exists a reasonable probability that, but for counsel’s errors, the outcome

at trial would have been different. Id. at paragraph three of syllabus. “Reasonable


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probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy (1992), 63 Ohio St.3d 424, 433, 588 N.E.2d 819,

superseded by constitutional amendment on other grounds as recognized by

Smith, 80 Ohio St.3d at 103.

       {¶28} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone

(Dec. 13, 1989), 2d Dist. No. 10564. “Ineffective assistance does not exist merely

because counsel failed ‘to recognize the factual or legal basis for a claim, or failed

to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray (1986),

477 U.S. 527, 535, 106 S.Ct. 2661.

       {¶29} An appellate court reviewing an ineffective assistance of counsel

claim will not second-guess counsel’s strategy. State v. Fritz, 3d Dist. No. 13-06-

39, 2007-Ohio-3138, ¶39, citing State v. Williams (2003), 99 Ohio St.3d 493, 794

N.E.2d 27, 2003-Ohio-4396; State v. Clayton (1980), 62 Ohio St.2d 45, 402

N.E.2d 1189; In re Smith, 3d Dist. No. 9-04-35, 2005-Ohio-149, ¶57, citing State

v. Manley, 3d Dist. No. 1-01-159, 2002-Ohio-5582, ¶22. Furthermore, tactical

decisions, even if debatable, generally, do not constitute a deprivation of effective

counsel. Smith, 2005-Ohio-149, at ¶57, citing Manley, 2002-Ohio-5582, at ¶22.




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       {¶30} Taylor fails to establish that her counsel’s performance was deficient

or that it was anything other than trial strategy. Further, Taylor has failed to show

that without her trial counsel’s statements, the outcome would have been different.

       {¶31} Taylor asserts ineffective assistance based on the following

statements made by her trial counsel during his mini-opening statement, voir dire,

and his opening statement:

       [Trial counsel]: Megan entertained this [CI] at Megan’s white
       trailer-trash trailer at Brook Park Estates. And Megan has a
       run – run – running mouth. A machine gun mouth.

Trial Tr., p. 18.

       [Trial counsel]: I’m going to be very blunt and very graphic and
       very explicit with you prospective jurors . . . if it is disclosed to
       you that Megan Taylor has a libido 10 times greater than
       Madonna, are you gonna (sic) hold that against her? In other
       words, she likes sex.

Trial Tr., p. 81.

       [Trial counsel]: In that interim, she was left to her own devices
       and went about living her life as a single homemaker and
       mother of two young children, struggling, in a white trailer-
       trash trailer, Brook Park Estates.

Trial Tr., p. 113.

       {¶32} A review of the entire trial transcript and audio recordings reveals

that trial counsel made the above statements as part of his trial strategy, which was

to cast Taylor as an impoverished, single mother who was struggling to raise

children on her own and who was desperate for a friend. His goal was to create

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empathy for her while also preparing the jury for what they would hear when

listening to the audio recordings. When the audio recordings were subsequently

played, the jury heard Taylor discuss the blighted conditions of her home, her lack

of social activities and friends, and her affinity for sex.

       {¶33} An often-used trial strategy is to preempt the prosecution by

introducing harmful character evidence first, thereby lessening its impact. State v.

Baskerville, 5th Dist. No. 2007 CA 00353, 2008-Ohio-3114, ¶17, citing State v.

Delgado (June 11, 1992), 8th Dist. Nos. 60587, 60588. We, therefore, cannot say

the statements made by trial counsel in his mini-opening statement, voir dire, and

opening statement were anything other than trial strategy. Accord Baskerville

(holding that trial counsel’s reference to defendant’s criminal history during

opening statements did not amount to ineffective assistance of counsel), State v.

Reed, 8th Dist. No. 93346, 2010-Ohio-1866, ¶60-64 (holding that trial counsel’s

reference to his client as a “drug dealer” during opening statements did not result

in ineffective assistance of counsel).

       {¶34} Further, Taylor has failed to establish that, absent the harmful

statements, the outcome would have been different, in light of the evidence

adduced at trial as discussed in our analysis of her first assignment of error. While

we do not dispute that these statements were crass and offensive, and would highly

suggest trial counsel find a more eloquent manner of presenting his case, we


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cannot say that Taylor received ineffective assistance of counsel due solely to

those statements.

       {¶35} Accordingly, we overrule Taylor’s second assignment of error.

                            Assignment of Error No. III

       {¶36} In her third assignment of error, Taylor argues that the trial court

erred in sentencing her for both counts in the indictment as they were allied

offenses of similar import. Specifically, Taylor asserts that since the offer to sell

drugs was made at the same time the first offense of drug trafficking was

committed, her conduct on November 6, 2009 provided the basis for the

commission of the crime for both counts. Since that conduct could result in a

conviction on both counts, Taylor claims they are allied offenses of similar import

and she can only be convicted and sentenced on one count.

       {¶37} The State contends that the trial court did not err as the two counts

are not allied offenses. Specifically, the State asserts that each count was based on

different conduct, was a separate transaction, occurred on different occasions, and

had a different operation number, and therefore the two counts do not fit the

definition of allied offenses under State v. Cabrales, 118 Ohio St.3d 54, 886

N.E.2d 181, 2008-Ohio-1625, at ¶14 quoting State v. Blankenship (1988), 38 Ohio

St.3d 116,117, 526 N.E.2d 816.




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       {¶38} We initially note that Taylor failed to raise the issue of allied

offenses in the trial court, thus waiving all but plain error on this issue. Crim.R.

52(B); State v. Ward, 3d Dist. No. 13-10-11, 2011-Ohio-254, ¶23, citing State v.

Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586, ¶18. In order to have plain

error there must be an error, the error must be an obvious defect in the trial

proceedings, and the error must have affected “substantial rights.” Ward, 2011-

Ohio-254, at ¶23, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240,

2002-Ohio-68.      Plain error is to be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. Plain error exists only in the event that it can be said that “but for the error, the

outcome of the trial would clearly have been otherwise.” Ward, 2011-Ohio-254 at

¶23, citing State v. Biros, 79 Ohio St.3d 426, 431, 678 N.E.2d 891, 1997-Ohio-

204.

       {¶39} R.C. 2941.25 governs multiple count indictments and provides as

follows:

       (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.

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      {¶40} In determining whether two or more offenses should be merged, the

intent of the General Assembly is controlling. State v. Siefer, 3d Dist. No. 5-09-

24, 2011-Ohio-1868, ¶21, citing State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d

1061, 2010–Ohio–6314, ¶46. We determine the General Assembly's intent by

applying R.C. 2941.25, which expressly instructs courts to consider the offenses at

issue in light of the defendant's conduct. Id. In so determining, the court should

conduct the following analysis:

      In determining whether offenses are allied offenses of similar
      import under R.C. 2941.25(A), the question is whether it is
      possible to commit one offense and commit the other with the
      same conduct * * * If the offenses correspond to such a degree
      that the conduct of the defendant constituting commission of one
      offense constitutes commission of the other, then the offenses are
      of similar import.

      If the multiple offenses can be committed by the same conduct,
      then the court must determine whether the offenses were
      committed by the same conduct, i.e., “a single act, committed
      with a single state of mind.” Brown, 119 Ohio St.3d 447, 2008-
      Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).

      If the answer to both questions is yes, then the offenses are allied
      offenses of similar import and will be merged.

      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.

Siefer, 2011-Ohio-1868, at ¶21-22, citing Johnson, 128 Ohio St.3d at ¶48-51.


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Case No. 13-10-49


       {¶41} Here, where Taylor was indicted for and convicted of two counts of

aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), the two

offenses were committed by the same type of conduct. They cannot be said to be

allied offenses, however, as each count stemmed from a separate transaction and

occurrence on a different date. On November 6, 2009, the CI received five pills of

Percocet from Taylor in exchange for $25.00. The next day, the CI received

another five pills of Percocet from Taylor in exchange for $25.00. Clearly there

was a separate transaction for each count and it cannot be said that the trial court

committed plain error by failing to merge the two counts. Accord Ward, 2011-

Ohio-254, at ¶29.

       {¶42} Accordingly, we overrule Taylor’s second assignment of error.

                            Assignment of Error No. IV

       {¶43} In her fourth assignment of error, Taylor argues that the sentencing

entries should be void as they list the wrong Ohio Revised Code section in

violation of R.C. 2929.19(B)(3)(b). While the trial court’s judgment entries reflect

the correct name of the convictions, aggravated trafficking in drugs, it listed the

wrong section number.

       {¶44} The State acknowledges the mistake, but asserts that the incorrect

Code sections in the sentencing entries are the result of a scrivener’s error, and as




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Case No. 13-10-49


such, the appropriate procedure is to issue a nunc pro tunc sentencing entry to

correct the errors.

         {¶45} A review of the record reveals that the indictment charged Taylor

with two counts of aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1), (C)(1)(b). The jury ultimately convicted Taylor of two counts of

aggravated trafficking in drugs. The jury found that Taylor committed the offense

within the vicinity of a child on count I, thus elevating the felony from one of the

fourth degree to one of the third degree.

         {¶46} The trial court issued a judgment entry dated November 23, 2010,

which stated that the trial court found that Taylor was convicted of “[a]ggravated

[t]rafficking in [d]rugs with specification (sic)2, in violation of Revised Code

Section 2925.02(A)(1), (C)(1)(b), both being felonies of the Third Degree”, and

also found that Taylor was convicted of “[a]ggravated [t]rafficking in [d]rugs, in




2
  The trial court incorrectly refers to the additional finding as a specification. An additional finding is an
additional element that makes an offense one of a more serious degree, or of a lesser degree. R.C.
2945.75(A); OJI-CR 425.25. As with any element of an offense, the additional finding must be proven
beyond a reasonable doubt. The necessity of an additional or special finding is determined by examining
the specific criminal statute under which the offense is charged, R.C. Chapter 2929, R.C. 2945.75(A), and
the averments of the charging document. OJI-CR 425.25 Comment. A verdict form may include the
additional finding in the general language of the offense, however, the better practice is to state the special
finding separately. For an example see OJI-CR 425.25 and its comments.

         A specification, on the other hand, typically refers to a Revised Code section separate from that of
the offense. See generally R.C. 2941.14 et seq. A specification is an additional factual question that must
be stated separately in an indictment, proven beyond a reasonable doubt, requires separate instructions to
the jury for each specification attached to a count of the indictment, and requires a separate finding in the
jury’s verdict.


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Case No. 13-10-49


violation of Revised Code Section 2925.02(A)(1), (C)(1)(b), being a felony of the

[f]ourth [d]egree.” Judgment Entry of Sentence, Docket No. 37.

       {¶47} This was erroneous for three reasons.      First, the entry erroneously

stated convictions for violations R. C. 2925.02 rather than .03. Second, on the first

count, the entry referred to the plural instead of singular form of felony. Third, for

count II, the judgment entry erroneously cited subsection (C)(1)(b), which would

indicate that Taylor had been convicted of aggravated trafficking in drugs with the

additional finding that the offense was committed in the vicinity of a juvenile. In

fact, the jury had found that the additional finding was not proven.

       {¶48} In its nunc pro tunc judgment entry entered November 24, 2010, the

trial court corrected the first count to the extent that it changed the wording from

the plural to the singular. However, the trial court failed to correct the other

errors. It should also have corrected the reference to the subsection from .02 to .03

on both counts, and also should have corrected the Revised Code Section for count

II to read R.C. 2925.03(A)(1), (C)(1), deleting the reference to (C)(1)(b), as the

jury did not make the additional finding for the enhancement.

       {¶49} Further, a review of the verdict forms reveals that these also

contained errors.

       {¶50} Both verdict forms read as follows:




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Case No. 13-10-49


       We, the jury, find the defendant, Megan L. Taylor
       *___________, of the charge of Aggravated Trafficking in
       Drugs, a felony of the Third Degree.
       (*Insert in ink: guilty or not guilty)

       We do further find that the defendant ** ____________ commit
       the offense in the vicinity of a juvenile.
       (** Insert in ink: did or did not)

       {¶51} However, aggravated trafficking is only a felony of the fourth degree

unless the jury makes an additional finding that enhances the offense to an offense

of the third degree. Therefore, the verdict forms should not have referred to

aggravated trafficking as a felony of the third degree. In count I the jury did make

the additional finding, and the conviction was enhanced to a felony of the third

degree. But in Count II, the jury did not find that the State had proven the

additional finding, so the offense remained a felony of the fourth degree.

       {¶52} Despite the innumerable errors in the verdict forms and judgment

entries, it cannot be said that Taylor incurred any prejudice, and therefore we hold

that her judgment entries are not void. A review of the trial transcript clearly

shows that the defense was aware of the charges against Taylor and prepared and

presented its defense at trial for the two offenses of aggravated trafficking in drugs

and its defense of the additional findings. It cannot be said that the errors were

anything other than clerical.

       {¶53} “The term clerical mistake refers to a mistake or omission,

mechanical in nature and apparent on the record, which does not involve a legal

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Case No. 13-10-49


decision or judgment.” State v. Gutierrez, 3d Dist. No. 5-10-14, 2011-Ohio-3126,

¶93, citing State v. Brown, 136 Ohio App.3d 816, 819-820, 2000-Ohio-1616, 737

N.E.2d 1057 (internal citations omitted). The proper action for the trial court,

when faced with a clerical error, is to issue a nunc pro tunc judgment entry that

lists the proper Revised Code sections of which Taylor was convicted. See State

v. Junod, 3d Dist. No. 2-09-03, 2009-Ohio-2817, ¶20, citing Crim.R.36, State v.

Yeaples (2009), 180 Ohio App.3d 720, 725, 907 N.E.2d 333, 2009-Ohio-184,

citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 356, 856 N.E.2d 263,

2006-Ohio-5795. According to Crim.R. 36, a clerical error may be corrected by

the court at any time. State v. Wilborn, 9th Dist. No. 25352, 2011-Ohio-1038, ¶15.

Therefore, the trial court’s judgment entry should be corrected to replace the

reference to R.C. 2925.02(A)(1), (C)(1)(b) with R.C. 2925.03(A)(1), (C)(1)(b) for

the first count and replace the reference to R.C. 2925.02(A)(1), (C)(1)(b) with

R.C. 2925.03(A)(1), (C)(1) for the second count.

       {¶54} Accordingly, we sustain her fourth assignment of error and remand

for corrective action consistent with the foregoing analysis.

       {¶55} In addition to Taylor’s assignments of error, we, sua sponte, address

plain error in her sentencing, particularly the trial court’s award of restitution to

the Seneca County Drug Task Force METRICH Enforcement Unit.                   In its

judgment entry, the trial court ordered Taylor to “pay restitution in the amount of


                                        -26-
Case No. 13-10-49


$50.00 to the Seneca County Drug Task Force METRICH Enforcement Unit, by

money order or cashiers check, through the Seneca County Common Pleas Court .

. .” Judgment Entry of Sentence, Docket No. 37. This is plain error.

       {¶56} R.C. 2929.18 governs a trial court’s ability to award restitution. The

statute provides, in pertinent part:

       * * * Financial sanctions that may be imposed pursuant to this
       section include, but are not limited to, the following:

       Restitution by the offender to the victim of the offender’s crime
       or any survivor of the victim, in an amount based on the victim’s
       economic loss. * * *

R.C. 2929.18(A)(1).

       {¶57} This Court has held that the plain language of R.C. 2929.18(A)(1)

makes restitution available only to actual victims of an offense. State v. Stewart,

3d Dist. No. 16-08-11, 2008-Ohio-5823, ¶9, citing State v. Toler, 174 Ohio

App.3d 335, 338, 2007-Ohio-6967; State v. Christy, 3d Dist. No. 16-04-04, 2004-

Ohio-6963, ¶16. “A victim of a crime is defined as the person or entity that was

the ‘object’ of the crime.” State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-

6106, ¶5, citing Black’s Law Dictionary (5th Ed.1979) 1405.             In certain

circumstances, a government entity may be considered a victim of a crime under

R.C. 2929.18(A)(1), for example, when government funds are embezzled or when

government property is vandalized. Id. However, a government entity voluntarily

advancing its own funds to pursue a drug buy through an informant is not one of

                                       -27-
Case No. 13-10-49


the scenarios contemplated by R.C. 2929.18(A)(1). See State v. Pietrangelo, 11th

Dist. No. 2003-L-125, 2005-Ohio-1686, ¶12-15; State v. Justice, 5th Dist. No. 09-

CA-66, 2010-Ohio-4781, ¶24, 30; State v. Jones, 7th Dist. Nos. 08 JE 20, 08 JE

29, 2010-Ohio-2704, ¶44; State v. Collins, 6th Dist. Nos. H-09-001, H-09-005,

2009-Ohio-6346, ¶52, State v. Frazier (Mar. 9, 2011), 4th Dist. No. 10CA15.

       {¶58} In light of this plain error, we hereby vacate the order of restitution.

       {¶59} Having found no error prejudicial to Taylor herein, in the particulars

assigned and argued in her first three assignments of error, but having found error

in the fourth assignment of error and plain error in the trial court’s award of

restitution, we affirm in part, and reverse in part, the judgment of the trial court,

and remand for further proceedings consistent with this opinion.

                                                         Judgment Affirmed in Part,
                                                              Reversed in Part and
                                                                  Cause Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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