[Cite as State v. Woods, 2016-Ohio-4830.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 15-COA-036
SHEENA M. WOODS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Ashland County Court of
                                              Common Pleas, Case No. 15-CRI-048


JUDGMENT:                                     Affirmed in part, Reversed in part, and
                                              Remanded

DATE OF JUDGMENT ENTRY:                        July 5, 2016

APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

CHRISTOPHER R. TUNNEL                         ERIN N. POPLAR
Ashland County Prosecutor                     DANIEL D. MASON
110 Cottage Street, Third Floor               Poplar & Mason, LLC
Ashland, Ohio 44805                           103 Milan Ave., Suite 6
                                              Amherst, Ohio 44001
EMILY M. BATES
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 15-COA-036                                                      2

Hoffman, J.


       {¶1}   Defendant-appellant Sheena M. Woods appeals her conviction and

sentence entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is

the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   Robert "John" Pleus, Jr. testified at trial he lived at 637 Cottage Street in

Ashland. He and Appellant were in a relationship wherein they resided together at the

Cottage Street residence. Appellant had a history of involvement with drugs. During the

parties’ relationship, Pleus came to have suspicions she was using again. Appellant

would often leave for periods of extended time. Appellant entered treatment for drug

abuse with ACCADA (Ashland County Counsel and Drug Abuse).

       {¶3}   In August of 2014, Pleus was sentenced to prison for committing domestic

violence against Appellant. He was sentenced to a term of 180 days, with a two year

period of probation. He served ninety days from November 14, 2014, until January 21,

2015, and was granted work release privileges.

       {¶4}   Pleus testified he and Appellant resumed their relationship after he was

released. At one point Appellant left for a few days, and Pleus did not know where she

was staying. Eventually, she called him to retrieve her from Newark, Ohio. Pleus learned

she was using drugs

       {¶5}   In the beginning of March 2015, Pleus contacted the Ashland Police

Department to report his van missing. While making the police report, Pleus reported

other items missing, including checks, a gun, a tv and a computer. He then told the police

of his suspicion of there being a meth lab in his basement. He stated he had suspicion
Ashland County, Case No. 15-COA-036                                                         3


for a couple of days, and indicated he found items consistent with a meth lab, while

“poking around in the basement” and making sure he didn’t have anything illegal in the

house due to his probation status.

       {¶6}   On March 13, 2015, Officer Craig Kiley inspected the area and observed a

lithium battery, a bag, cold packs and a two liter bottle. Officer Kiley testified, based on

his experience and training, those items were used in the use and manufacture of

methamphetamine.

       {¶7}   During   their   investigation,   officers   learned   Appellant    purchased

pseudoephedrine on December 15, 2014, from a local Discount Drug Mart pharmacy.

Two accomplices made similar purchases on the same date.

       {¶8}   It was determined Appellant and her accomplices attempted to make

methamphetamine in the attic of Appellant's home at 637 Cottage Street, Ashland, Ohio.

       {¶9}   Following the jury trial, the trial court convicted Appellant of the charges via

Judgment Entry entered July 23, 2015. The trial court accepted the verdict of the jury

and entered a finding of guilty as to Count One, illegal assembly or possession of

chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the

second degree; and Count Two, illegal manufacture of drugs, in violation of R.C.

2925.04(A), a felony of the first degree.

       {¶10} The trial court conducted a sentencing hearing on September 28, 2015. The

trial court sentenced Appellant to four years in prison on Count One, illegal assembly or

possession of chemical for the manufacture of drugs or complicity to the same, in violation

of R.C. 2925.04(A)(1), a felony of the second degree. On Count Two, manufacture of

drugs or complicity to the same, in violation of R.C. 2925.04(A), a felony of the first
Ashland County, Case No. 15-COA-036                                                     4


degree, the trial court sentenced Appellant to five years in prison. The court imposed the

sentences concurrently for a total aggregate prison term of five years. With regard to

Count One, two of the four years, were imposed mandatorily, and with regard to Count

Two, three of the five years were ordered mandatory. The trial court further imposed a

fine of $7,500 on Count One and $10,000 on Count Two.

      {¶11} On September 29, 2015, the trial court conducted a resentencing hearing.

The trial court resentenced Appellant to a minimum mandatory term of three years on

Count One pursuant to R.C. 2925.041(C)(2), and a minimum mandatory term of four

years on Count Two. The trial court again ran the sentences concurrently for a total

mandatory term of five years. The trial court memorialized the sentence via Judgment

Entry entered September 30, 2015.

      {¶12} Appellant appeals, assigning as error:

      {¶13} “I. THE TRIAL COURT COMMITTED PLAIN ERROR AND ERRED TO THE

SUBSTANTIAL       PREJUDICE      OF    THE    APPELLANT      WHEN      IT   SENTENCED

APPELLANT TO TWO SENTENCES FOR TWO ALLIED OFFENSES OF THE SAME

IMPORT.

      {¶14} “II. THE CONVICTION AGAINST THE APPELLANT FOR RECKLESSLY

COMMITTING THE OFFENSES HEREIN WITHIN THE VICINITY OF A SCHOOL IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OR IS BASED ON

INSUFFICIENT EVIDENCE.

      {¶15} “III. THE APPELLANT'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL WAS VIOLATED TO HER SUBSTANTIAL PREJUDICE.”
Ashland County, Case No. 15-COA-036                                                       5


                                                I.

       {¶16} In her first assignment of error, Appellant maintains the trial court committed

plain error in convicting her of both illegal assembly or possession of chemicals for the

manufacture of drugs or complicity to the same and for the illegal manufacture of drugs

or complicity to the same as the counts are allied offenses of similar import.

       {¶17} Appellant maintains the trial court committed plain error in failing to merge

the counts as allied offenses of similar import as there was no separate animus and no

separate motivation.

       {¶18} R.C. 2941.25, Multiple counts, states:

              (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.

       {¶19} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the

Ohio Supreme Court revised its allied-offense jurisprudence,

              1. In determining whether offenses are allied offenses of similar

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

       separate factors-the conduct, the animus, and the import.
Ashland County, Case No. 15-COA-036                                                   6


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

      of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

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

      separate and identifiable.

      {¶20} The Court further explained,

             A trial court and the reviewing court on appeal when considering

      whether there are allied offenses that merge into a single conviction under

      R.C. 2941.25(A) must first take into account the conduct of the defendant.

      In other words, how were the offenses committed? If any of the following is

      true, the offenses cannot merge and the defendant may be convicted and

      sentenced for multiple offenses: (1) the offenses are dissimilar in import or

      significance—in other words, each offense caused separate, identifiable

      harm, (2) the offenses were committed separately, and (3) the offenses

      were committed with separate animus or motivation.

             ***

             An affirmative answer to any of the above will permit separate

      convictions. The conduct, the animus, and the import must all be

      considered.

      {¶21} Appellant was convicted of one count of illegal manufacture of drugs in

violation of R.C. 2924.04,

             (A) No person shall knowingly cultivate marihuana or knowingly

      manufacture or otherwise engage in any part of the production of a

      controlled substance.
Ashland County, Case No. 15-COA-036                                                   7


      {¶22} Appellant was also convicted of one count of illegal assembly or possession

of chemicals used to manufacture controlled substance with intent to manufacture

controlled substance in violation of R.C. 2925.041,

             (A) No person shall knowingly assemble or possess one or more

      chemicals that may be used to manufacture a controlled substance in

      schedule I or II with the intent to manufacture a controlled substance in

      schedule I or II in violation of section 2925.04 of the Revised Code.

      {¶23} In State v. Carr, Perry App. No. 15CA00007, 2016-Ohio-9, this Court

addressed the issue raised by Appellant herein,

             In the case at bar, it was clear when the police entered the home that

      methamphetamine had been manufactured inside the home. Carr admitted

      to manufacturing methamphetamine.

             Plastic tubing, baggies, envelopes, plastic bottles, batteries, cold

      compact bags, aquarium rocks and coffee filters are not “chemicals” as

      required under R.C. 2925.041. None of the active ingredient such as

      pseudoephedrine[Footnote omitted] was found; rather, only the discarded

      boxes were recovered from the trash. In his statement to the police, Carr

      stated that other parties provided the necessary ingredients.

             Just as a baker would need flour to “assemble” or “manufacture” a

      cake, it is scientifically impossible to manufacture methamphetamine

      without the raw chemical ingredients, such as pseudoephedrine. In other

      words, every time a person commences a “cook” he or she must necessarily

      possess the requisite raw chemical ingredients necessary to manufacture
Ashland County, Case No. 15-COA-036                                                 8


     the end product of crystal methamphetamine. Thus, a defendant must

     always “knowingly assemble or possess one or more chemicals that may

     be used to manufacture” methamphetamine with the “intent to

     manufacture.”

           If the police had entered the home and found, for example, 50 boxes

     of pseudoephedrine and nothing more, a case could be made for illegal

     assembly. It is not illegal to possess pseudoephedrine, but the unexplained

     possession of such a large amount would be circumstantial evidence. If the

     state can establish the mens rea of “with the intent to manufacture” a

     defendant can be convicted of assembly or possession in violation of R.C.

     2925.041.

           Applying the facts and viewing Carr's conduct in this case, illegal

     manufacture of drugs in violation of R.C. 2924.04 and illegal assembly or

     possession of chemicals used to manufacture controlled substance with

     intent to manufacture controlled substance in violation of R.C. 2925.041 did

     not cause separate, identifiable harm. Carr did not commit the offenses

     separately nor were the two offenses committed with separate animus or

     motivation. Carr's motivation and animus for obtaining and/or assembling

     the chemicals was to manufacture methamphetamine.

           Accordingly, we find the assembly or possession of the chemicals

     and the manufacture of methamphetamine are allied offenses. Accord,

     State v. Coleman, 5th Dist. Richland No. 14–CA–82, 2015–Ohio–3907, ¶

     52; See, State v. Davidson, 5th Dist. Perry No. 12 CA 7, 2013–Ohio–194, ¶
Ashland County, Case No. 15-COA-036                                                     9

       47(applying the pre-Ruff allied offenses test set forth in State v. Johnson,

       128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314); State v.

       Stevenson, 5th Dist. Perry No. 09CA16, 2010–Ohio–2060, ¶ 32 (applying

       the pre-Ruff allied offenses test set forth in State v. Cabrales, 118 Ohio

       St.3d 54, 886 N.E.2d 181, 2008–Ohio–1625 and finding the possession of

       chemicals and the engagement in any part of the production of drugs are

       allied offenses that do not have a separate animus); State v. Collins, 12th

       Dist. Clinton Nos. CA2010–12–021, CA2010–12–022, 2012–Ohio–430

       (applying the pre-Ruff allied offenses test set forth in State v. Johnson, 128

       Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314).

              ***

              On the record in the case at bar, we find that Carr has demonstrated

       that he was convicted of allied offenses of similar import committed with the

       same conduct and with the same animus.

       {¶24} The State concedes, pursuant to Carr, Appellant’s sentences should merge

in accordance with State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E. 2d 892.

       {¶25} Accordingly, Appellant’s first assignment of error is sustained.

                                                II.

       {¶26} In the second assignment of error, Appellant maintains her conviction on

the specification for committing the charges in the vicinity of a school is against the

manifest weight and sufficiency of the evidence as the state erred in adding the mens rea

element of “recklessly” to the indictment.
Ashland County, Case No. 15-COA-036                                                        10


       {¶27} Appellant was convicted on both counts including the specification of

committing the offenses within the vicinity of a school. The statute reads,

              (P) An offense is “committed in the vicinity of a school” if the offender

       commits the offense on school premises, in a school building, or within one

       thousand feet of the boundaries of any school premises, regardless of

       whether the offender knows the offense is being committed on school

       premises, in a school building, or within one thousand feet of the boundaries

       of any school premises.

       {¶28} The State mistakenly added the mens rea of recklessly to the indictment on

both charges. However, we find such error to be harmless, as the specification provides

for strict liability if the offense is committed within one thousand feet of the boundaries of

any school premises, regardless of whether the offender knows the offense is being

committed within one thousand feet of a school.            The evidence set forth at trial

demonstrates the counts were committed less than 700 feet from a school, and the

evidence was not contradicted.

       {¶29} Appellant’s second assignment of error is overruled.

                                                  III.

       {¶30} In the third assignment of error, Appellant argues she was denied the

effective assistance of trial counsel as her trial counsel failed to object at sentencing to

the imposition of sentences where the counts were allied offenses of similar import.

Appellant further argues her counsel was ineffective in failing to object to her conviction

of being in the vicinity of a school specification.
Ashland County, Case No. 15-COA-036                                                     11


        {¶31} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955).

        {¶32} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

        {¶33} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

        {¶34} Based upon our analysis and disposition of Appellant’s first assigned error,

we find Appellant’s argument with regard to counsel’s failure to argue allied offenses

moot.

        {¶35} With regard to our analysis and disposition of Appellant’s second

assignment of error, we find Appellant has not demonstrated prejudice as a result of the

alleged error.
Ashland County, Case No. 15-COA-036                                                    12


      {¶36} Appellant argues, “…Appellant’s court-appointed counsel failed to move the

Trial Court for an acquittal on that part of the indictment that sought to prove that the

Appellant acted recklessly in committing her offenses in the vicinity of a school.” Having

previously determined the offense is a strict liability offense, we find Appellant cannot

demonstrate prong two of Strickland.

      {¶37} Appellant’s third assignment of error is overruled.

      {¶38} The judgment of the Ashland County Court of Common Pleas is affirmed in

part, reversed in part, and remanded for resentencing in accordance with the law and this

opinion.



By: Hoffman, J.

Farmer, P.J. and

Wise, J. concur
