[Cite as State v. Warren, 2019-Ohio-2927.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :      JUDGES:
                                             :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :      Hon. John W. Wise, J.
                                             :      Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
MATTHEW WARREN                               :      Case No. 18-CA-42
                                             :
        Defendant - Appellant                :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County
                                                    Court of Common Pleas, Case No.
                                                    2017 CR 00798




JUDGMENT:                                           Affirmed in part, reversed and
                                                    remanded in part


DATE OF JUDGMENT:                                   July 17, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

R. KYLE WITT                                        JAMES A. ANZELMO
Fairfield County Prosecutor                         446 Howland Drive
                                                    Gahanna, Ohio 43230
By: CHRISTOPHER A. REAMER
Assistant Prosecuting Attorney
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 18-CA-42                                                2

Baldwin, J.

      {¶1}    Defendant-appellant Matthew Warren appeals his conviction and sentence

from the Fairfield County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

      {¶2}    On June 14, 2017, Detective Alex Sinewe of the Lancaster Police

Department was dispatched to an address in Fairfield County to respond to a call that an

unresponsive male named Matt had overdosed. When he arrived at the scene at around

5:00 p.m., he entered a home and found appellant in a chair unconscious “with a female

standing over top of him slapping his face and chest telling him to wake up.” Trial

transcript at 57-58. The Detective called for the medics. He testified that he did not see

any kind of drug paraphernalia in the house.

      {¶3}    While Detective Sinewe was in the house, the medics administered Narcan

to appellant who continued fading in and out of consciousness. The Detective discovered

that appellant had an outstanding warrant for his arrest and testified that he intended to

place appellant under arrest after appellant received medical treatment at the hospital.

Prior to the ambulance leaving to take appellant to the hospital, Detective Sinewe

checked appellant’s pockets and waistband “and anywhere where that (sic) he would

possibly be able to conceal something.” Trial Transcript at 66. He testified that he found

“a small purple screw top container which we found contained a couple of unknown

powders and white pills” along with car keys and other items. Trial Transcript at 68. The

powder was in two baggies. At the time of the search, appellant was not conscious.

      {¶4}    There was testimony at trial that when appellant was in a state of

consciousness, he told the medics that he had taken Heroin and Xanax. Appellant was
Fairfield County, Case No. 18-CA-42                                                   3


strapped in a gurney in the ambulance which was pursuant to standard medical protocol

to ensure appellant’s safety. While in the ambulance, appellant got out of the restraints

and attempted to run. Appellant scuffled with the medics and it took three people to get

appellant under control. One of the medics, Ruth Shahan, yelled to appellant that he was

trying to run because he knew that the police were behind the ambulance. Appellant had

indicated that he did not know that he had an outstanding warrant for his arrest. Appellant

was then transported to the hospital.

       {¶5}   At trial, Keith Taggart, a forensic scientist testified that he tested the items

found in appellant’s pockets and that one of the items, an off-white powder weighing less

than 09.1 grams, was found to contain fentanyl and carfentanil. He further testified that

the other plastic baggie contained gabapentin, which is not a controlled substance. When

asked if he was able to distinguish how much fentanyl and how much carfentanil was

located in the one baggie, Taggart testified that their laboratory “does not quantitate how

much substance is present.” Trial transcript at 131. He testified that he did not know

whether carfentanil is an analog to fentanyl. On redirect, he testified that the two are

identified as separate and distinct Schedule II narcotics.

       {¶6}   Tyson Nye, a firefighter/paramedic, testified that appellant admitted to using

heroin. He testified that when they got appellant out of the house, police informed them

that appellant had an outstanding warrant for his arrest and that no one communicated

that to appellant. Nye testified that he opened the back of the ambulance and was

charged by appellant who hit Nye and almost knocked him backwards onto the pavement

below. Nye testified that he could have been killed if he had hit his head on the pavement.

There also was testimony that William Gibson, a firefighter, had a cut on his left elbow
Fairfield County, Case No. 18-CA-42                                              4


and Ruth Shahan suffered leg and hand injuries due to appellant’s continued struggle

inside the ambulance. Gibson testified that he never informed appellant that there was

an outstanding warrant and the he did not hear anyone convey that information to

appellant. Photographs of the injuries were admitted at trial.

       {¶7}   On December 7, 2017, appellant was indicted on two counts of aggravated

possession of drugs in violation of R.C. 2925.11(A) AND (C)(1)(a), felonies of the fifth

degree, and one count of selling, purchasing, distributing or delivering dangerous drugs

in violation of R.C. 4729.51(EW)(1)(c) and 4729.99, a misdemeanor of the first degree.

At his arraignment on December 15, 2017, appellant entered a plea of not guilty to the

charges. Appellant was appointed counsel at state expense. A superseding indictment

was filed on January 25, 2018 that added three counts of assault in violation of R.C.

2903.13(a) and (C)(5), felonies of the fourth degree.

       {¶8}   On February 2, 2018, appellant filed a Motion to Suppress the drugs found

in his pocket, arguing that they were found during an unconstitutional search. At his

arraignment on February 5, 2018, appellant entered a plea of not guilty to the charges

contained in the superseding indictment.

       {¶9}   Following a hearing held on February 28, 2018, the trial court denied

appellant’s Motion to Suppress. The trial court, in its April 26, 2018 Entry, found that

Detective Sinewe’s search of appellant’s person was justified by probable cause and

made incident to a valid arrest.

       {¶10} Thereafter, a jury trial commenced on July 24, 2018.       The jury found

appellant guilty of the drug charges and guilty of assaulting Tyson Nye and Ruth Shahan,

but not guilty of assaulting William Gibson.
Fairfield County, Case No. 18-CA-42                                                5


        {¶11} As memorialized in a Judgment Entry filed on August 10, 2018, appellant

was sentenced to an aggregate prison sentence of four (4) years and seven (7) months.

The trial court also ordered appellant to pay fines in the total amount of $6,450.00, but

suspended the fines, and ordered appellant to pay court costs.

        {¶12} Appellant now raises the following assignments of error on appeal:

        {¶13} “I. THE TRIAL COURT ERRED BY DENYING WARREN’S MOTION TO

SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS RIGHT

AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE

FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14,

ARTICLE I OF THE OHIO CONSTITUTION.”

        {¶14} “II. THE TRIAL COURT ERRED BY NOT HOLDING A TRIAL ON THE

ASSAULT CHARGES SEPARATE FROM THE DRUG POSSESSION CHARGES, IN

VIOLATION OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH,

SIXTH     AND     FOURTEENTH        AMENDMENTS         TO    THE    UNITED      STATES

CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”

        {¶15} “III. MATTHEW WARREN’S CONVICTIONS FOR AGGRAVATED DRUG

POSSESSION AND ASSAULT ARE BASED ON INSUFFICIENT EVIDENCE, IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16,

ARTICLE I OF THE OHIO CONSTITUTION.”

        {¶16} “IV. MATTHEW WARREN’S CONVICTIONS ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS

CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
Fairfield County, Case No. 18-CA-42                                                    6


STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO

CONSTITUTION.”

       {¶17} “V. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE WARREN’S

AGGRAVATED DRUG POSSESSION OFFENSES, IN VIOLATION OF THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.”

       {¶18} “VI. WARREN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

                                               I

       {¶19} Appellant, in his first assignment of error, argues that the trial court erred in

denying his Motion to Suppress.

       {¶20} Appellate review of a trial court's decision to grant or deny a motion to

suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328,

713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 1996-Ohio-134, 661

N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State
Fairfield County, Case No. 18-CA-42                                                     7

v. Williams, 86 Ohio App.3d 37,42, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other

grounds.

       {¶21} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. State v. Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93, 620 N.E.2d 906 (8th Dist. 1994).

       {¶22} Appellant specifically contends that the trial court erred in concluding that

the Detective had reasonable suspicion of appellant’s criminal activity and in concluding

that the search was incident to an arrest.

       {¶23} At the suppression hearing, Detective Alex Sinewe testified that he was

familiar with appellant because he had had a “couple of dealings with [appellant] on

different types of calls, suspicious person type calls.” Transcript of Suppression hearing

at 22. He tested that he was on a SWAT team that had dealings with appellant when they

raided a house for drug trafficking. The house was a known drug residence according
Fairfield County, Case No. 18-CA-42                                                 8


to the Detective. The Detective further testified that it was normal routine to check any

individual who was overdosing for any outstanding warrants through dispatch and that

such an individual would have medical treatment prior to be arrested. Detective Sinewe

further testified that when they were transporting an individual who was overdosing in an

ambulance, there were safety concerns because drugs and weapons typically went hand

in hand and that it was standard procedure to check any individual for weapons or other

items that could cause injury to the EMT’s.

       {¶24} During the suppression hearing, Detective Sinewe testified that the house

where appellant was located was known to law enforcement as a drug house where

trafficking occurred. Appellant’s girlfriend, who was in the house, was a known drug user.

Detective Sinewe testified that he believed that appellant stated that he had taken heroin

and that he ran appellant for outstanding warrants and learned that appellant had an

outstanding warrant for his arrest. He testified that appellant was going to be arrested

after he received medical treatment and that another individual in the house approached

him and told him that appellant had drugs in his pocket.

       {¶25} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibits the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio , 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d

1271 (1991). [A] full search of the person incident to a lawful custodial arrest is not only

an exception to the warrant requirement of the Fourth Amendment but is also a

‘reasonable’ search under that amendment.” State v. Mathews, 46 Ohio St.2d 72, 74, 346

N.E.2d 151 (1976), citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38
Fairfield County, Case No. 18-CA-42                                                    9


L.E.2d 427 (1973). Moreover, “[w]here the police officer has probable cause to arrest

independent of the items obtained in the search, but does not arrest until shortly after the

search, the search is not offensive to the Fourth Amendment to the United States

Constitution.” State v. Bing, 134 Ohio App.3d 444, 447–48, 731 N.E.2d 266 (9th

Dist.1999), citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d

633, 645-646 (1980).

       {¶26} In order to justify a search as one incident to arrest, there must be probable

cause to arrest. State v. Robinson, 9th Dist. Wayne No. 10CA0022, 2012-Ohio-2428.

The test for probable cause to arrest without a warrant is whether “the facts and

circumstances known to the officer warrant a prudent man in believing the offense has

been committed.” State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009–Ohio–6179,

¶ 73, quoting Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134

(1959).

       {¶27} In the case sub judice, Detective Sinewe searched appellant’s person

before he was arrested. While appellant was unconscious at the time:

              A search of one found in an unconscious condition is both legally

       permissible and highly necessary. There is a positive need to see if the

       person is carrying some indication of a medical history, the rapid discovery

       of which may save his life; there is also a need to identify persons so found

       in order to notify relatives or friends. That the cause of appellant's being

       unconscious was not known in no way impaired but rather enhanced the

       need and inherent power to search appellant.
Fairfield County, Case No. 18-CA-42                                                 10

State v. Paidousis, 10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1, 2001) at

4, citing to Vauss v. United States, 370 F.2d 250 (C.A.D.C.1966).

       {¶28} In the case sub judice, there was testimony at the suppression hearing that

Detective Sinew knew that appellant had an outstanding warrant for his arrest and that

appellant was going to be taken into custody after receiving medical treatment. The

Detective had probable cause to arrest appellant before searching him based on the

outstanding warrant, the fact that appellant was a known drug user in a known drug house

and was overdosing. Moreover, Sinewe overheard appellant admit to using heroin and

Xanax and was told by another individual inside the house that appellant had drugs on

him. We concur with appellee that Detective Sinewe could have lawfully arrested

appellant for drug possession charges based on probable cause that appellant had just

ingested an illegal drug. While appellant’s need for medical treatment precluded the

Detective from arresting appellant at the time of the search, as is stated above, the search

and arrest need not be done simultaneously. As noted by the trial court, “it was not only

reasonable but in the best interests of [appellant’s] health to delay arrest.”

       {¶29} Based on the foregoing, we find that the search was incident to an arrest

and that the trial court did not err in denying the Motion to Suppress.

       {¶30} Appellant’s first assignment of error is, therefore, overruled.

                                              II

       {¶31} Appellant, in his second assignment of error, contends that the trial court

erred in not holding a trial on the assault charges separate from the drug possession

charges.
Fairfield County, Case No. 18-CA-42                                                     11


       {¶32} In general, the law favors joining multiple offenses in a single trial if the

offenses charged “are of the same or similar character.” State v. Lott, 51 Ohio St.3d 160,

163, 555 N.E.2d 293 (1990), citing State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288

(1981). Crim.R. 8(A), regarding joining offenses, provides that two or more offenses may

be charged in the same indictment if they “are of the same or similar character, or are

based on the same act or transaction, or are based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan, or are part of a

course of criminal conduct.” Crim.R. 13 also permits a court to “order two or more

indictments * * * to be tried together, if the offenses * * * could have been joined in a single

indictment[.]” Consequently, joinder is appropriate where the evidence is interlocking and

the jury is capable of segregating the proof required for each offense. State v. Czajka,

101 Ohio App.3d 564, 577-578, 656 N.E.2d 9 (8th Dist.1995).

       {¶33} Appellant argues that severance was warranted in his case because none

of the conditions for joinder under Crim.R. 8(A) apply. Appellant notes that the assault

charges and drug possession charges are completely independent and unrelated.

       {¶34} Where it appears that the defendant will be prejudiced by joinder of

offenses, the court may grant a separate trial of the counts. Crim.R. 14. Appellant

however, concedes that he failed to move to sever. Appellant, therefore, has waived any

error in the joinder of the offenses. State v. Knight, 20 Ohio App.3d. 289, 291, 485 N.E.2d

1064 (8th Dist. 1984).

       {¶35} Moreover, appellant could not prevail on this issue had it been properly

preserved. To prevail on a claim to sever counts, the defendant has the burden of

demonstrating: 1) his rights were actually prejudiced; 2) at the time of the motion to sever,
Fairfield County, Case No. 18-CA-42                                                 12


the defendant provided the trial court with sufficient information so it could weigh the

considerations favoring joinder against the potential prejudice to the defendant's right to

a fair trial; and 3) given the information provided to the court, the court abused its

discretion in refusing to sever the charges. and Drew v. United States, 331 State v.

Schaim, 65 Ohio St.3d 51, 59, 1992-Ohio-31, 600 N.E.2d 661.

       {¶36} An accused is not prejudiced by joinder when simple and direct evidence

exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B).

State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991).

       {¶37} Appellant alleges that the trial court erred in not severing the charges

against him. However, the record demonstrates that the trial court did not abuse its

discretion where the offenses charged were connected and the evidence relating to each

of the charged crimes was simple and direct. Appellant, in his brief, notes that the drug

and possession charges were distinct.

       {¶38} Appellant’s second assignment of error is, therefore, overruled.

                                           III, IV

       {¶39} Appellant, in his third assignment of error, maintains that his convictions for

aggravated drug possession and assault were based on insufficient evidence while, in his

fourth assignment of error, he argues that his convictions were against the manifest

weight of the evidence.

       {¶40} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d
Fairfield County, Case No. 18-CA-42                                                  13


259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held as follows: “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

       {¶41} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

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

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387,

678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶42} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

       {¶43} Appellant, with respect to his convictions for aggravated possession of

fentanyl and carfentanil, argues that there is insufficient evidence to support these
Fairfield County, Case No. 18-CA-42                                                 14


convictions because Taggart failed to conduct tests to determine whether the carfentanil

was in fact carfentanil and not fentanyl or to determine whether the fentanyl was, in fact,

fentanyl and not carfentanil.    Appellant argues that these tests were needed since

carfentanil is an analog of fentanyl.

       {¶44} Both fentanyl and carfentanil are recognized under Ohio law as separate

Schedule II controlled substances. R.C. 3719.41, Schedule II, (B)(6) & (9). In the case

sub judice, at the trial, Taggart testified that these two were separate and distinct

Schedule II narcotics and the jury was instructed that fentanyl and carfentanil were

separate substances under Ohio law.

       {¶45} Appellant also maintains that his convictions are against the manifest weight

of the evidence. Appellant argues that the weight of the evidence fails to support his

convictions for aggravated possession of drugs because Keith Taggart failed to conduct

tests to determine whether the carfentanil was in fact carfentanil and not fentanyl and vice

versa and because Taggart was not credible because he had been previously disciplined

for not following protocol when conducting forensic testing and had been accused of

changing test results. Taggart was questioned by appellant’s counsel during cross-

examination about a 2017 disciplinary investigation that Taggart was involved in at the

Bureau of Criminal Identification and Investigation and testified that he was disciplined

as a result and had received a thirty day suspension without pay. Taggart further testified

that his cases during that time were re-analyzed and the findings concurred with his

original findings. He testified that he and his supervisors had put in place new procedures

to insure the accuracy of all later testing and that all testing done subsequent to his

discipline had been reviewed by a peer. Taggart testified that he had testified in other
Fairfield County, Case No. 18-CA-42                                                   15


Ohio courts after this procedural break was identified and that he was recognized as

competent to testify as to drug testing. Taggart testified that carfentanil and fentanyl were

separate and distinct Schedule II narcotics and that both were specifically and

independently identified. The jury, as trier of fact, was in the best position to assess his

credibility.

        {¶46} With respect to his assault convictions, appellant argues that there was no

evidence that he acted knowingly to cause physical harm to the paramedics and that,

therefore, his convictions for assault are against the manifest weight and sufficiency of

the evidence.

        {¶47} Appellant was charged and convicted of assault of a peace officer in

violation of R.C. 2903.13(A) and (C)(5) which state the following:

        {¶48} No person shall knowingly cause or attempt to cause physical harm to

another or to another's unborn.

        {¶49} (C)(5) If the victim of the offense is a peace officer or an investigator of the

bureau of criminal identification and investigation, a firefighter, or a person performing

emergency medical service, while in the performance of their official duties, assault is a

felony of the fourth degree.

        {¶50} R.C. 2901.22(B) states as follows, “A person acts knowingly, regardless of

purpose, when the person is aware that the person's conduct will probably cause a certain

result or will probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When knowledge of

the existence of a particular fact is an element of an offense, such knowledge is
Fairfield County, Case No. 18-CA-42                                                    16


established if a person subjectively believes that there is a high probability of its existence

and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.”

       {¶51} Although appellant may not have had the specific intent to harm the

paramedics, there was testimony that he crashed into Tyson Nye and Ruth Shahan in an

attempt to escape from the ambulance and that he continued to fight and struggle even

after being ordered to stop. Nye testified that appellant plowed into him as he was holding

onto the ambulance and that they struggled for a number of seconds. Nye further testified

that he could have been killed if appellant had knocked him out and he hit his head on

the pavement. In turn, Ruth Shahan testified, in relevant part, as follows:

       {¶52} Q: At some point in time after [appellant] makes contact with Mr. Nye at the

back door area, do they come forward towards you?

       {¶53} A: Yes.

       {¶54} Q: Tell us about that?

       {¶55} A: They turned - - well, Matthew Warren [appellant] turned, started my

direction and at that point I’m in his way, don’t know - - I mean he’s just coming at me.

You don’t know - - I don’t know what’s going to happen. Is he going after me, is he going

to tackle me, is he going to do what. So – and Tyson saw this so Tyson at that point

grabbed a hold of him and within all of this, I got pushed down onto the bench seat. My

leg got pinned, and smashed is not a good word, but pinned up against enough that it

bruised my leg - - my knee as they were headed back towards the front of the truck to the

other door.

       {¶56} Q: And so you are kind of pinned in or pushed somewhere up around the

area of this right side door?
Fairfield County, Case No. 18-CA-42                                                    17


       {¶57} A: Towards that door, yes.

       {¶58} Trial Transcript at 264-265. She suffered leg and hand injuries.

       {¶59} We find, viewing the evidence in a light most favorable to the State, that

appellant's actions are sufficient to demonstrate that he knew that his actions would

“probably cause a certain result,” i.e., an injury to the paramedics. We note that appellant

was found not guilty of assaulting William Gibson, a firefighter/paramedic. Further,

testimony established that the two paramedics suffered injury. Accordingly, appellant's

challenge to the sufficiency of the evidence presented in support of his assault is

overruled.

       {¶60} Based on the foregoing, we find that appellant’s convictions are not against

the manifest weight or sufficiency of the evidence. We find that, viewing the evidence in

a light most favorable to the prosecution, any rational tier of fact could have found

appellant committed the offenses of assault and drug possession and that the jury did not

lose its way in convicting appellant.

       {¶61} Appellant’s third and fourth assignments of error are, therefore, overruled.

                                              V

       {¶62} Appellant, in his fifth assignment of error, asserts that the trial court erred in

failing to merge appellant’s two aggravated drug possession offenses.

       {¶63} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” The Court held in

State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860:
Fairfield County, Case No. 18-CA-42                                                           18


                An accused's failure to raise the issue of allied offenses of similar

       import in the trial court forfeits all but plain error, and a forfeited error is not

       reversible error unless it affected the outcome of the proceeding and

       reversal is necessary to correct a manifest miscarriage of justice.

       Accordingly, an accused has the burden to demonstrate a reasonable

       probability that the convictions are for allied offenses of similar import

       committed with the same conduct and without a separate animus; absent

       that showing, the accused cannot demonstrate that the trial court's failure

       to inquire whether the convictions merge for purposes of sentencing was

       plain error.

       {¶64} 2015–Ohio–2459, ¶ 3, 143 Ohio St.3d 385. The Court in Rogers reaffirmed

that even if an accused shows the trial court committed plain error affecting the outcome

of the proceeding, the appellate court is not required to correct it. Id. at ¶ 23. The Supreme

Court stated:

       {¶65} [W]e have “admonish[ed] courts to notice plain error ‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.’ ” (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240, quoting

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶66} Rogers at ¶ 23.

       {¶67} Because appellant did not raise the merger issue at trial, the plain-error

standard applies.

       {¶68} R.C. 2941.25 governs multiple counts and states the following:
Fairfield County, Case No. 18-CA-42                                                19


       {¶69} (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.

       {¶70} (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.

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

syllabus, the Supreme Court of Ohio held the following:

       {¶72} 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.

       {¶73} 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.

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

offenses may be convicted of all the offenses if any one of the following is true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses

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

with separate animus.

       {¶75} The Ruff court explained at ¶ 26:
Fairfield County, Case No. 18-CA-42                                                  20


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

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

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

      the offenses have similar import. When a defendant's conduct victimizes

      more than one person, the harm for each person is separate and distinct,

      and therefore, the defendant can be convicted of multiple counts. Also, a

      defendant's conduct that constitutes two or more offenses against a single

      victim can support multiple convictions if the harm that results from each

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

      therefore hold that two or more offenses of dissimilar import exist within the

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

      offenses involving separate victims or if the harm that results from each

      offense is separate and identifiable.

      {¶76} In this case, appellant was convicted of possession of carfentanil and

fentanyl. It is elementary that “[t]he simultaneous possession of different types of

controlled substances can constitute multiple offenses under R.C. 2925.11.” State v.

Delfino, 22 Ohio St.3d 270, 490 N.E.2d 884 (1986), syllabus; e.g., State v. Rice, 5th Dist.

Licking No. 16-CA-87, 2017-Ohio-1504, 2017 WL 1436378, ¶ 12, quoting State v.

Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 25,

quoting Houston v. Erdos, S.D.Ohio No. 1:14–CV–956, 2016 WL 126896, *12 (Jan. 12,

2016) (citations omitted) (noting that Ohio courts have agreed the legislature clearly

intended possession of different drugs to constitute separate offenses, and thus, if
Fairfield County, Case No. 18-CA-42                                                 21


different drugs and different bulk amounts are involved, “[m]erger as allied offenses is

simply not correct * * *”).

       {¶77} Thus, the trial court did not commit plain error in not merging appellant's

convictions for possession of carfentanil and fentanyl.

       {¶78} Appellant’s fifth assignment of error is, therefore, overruled.

                                            VI

       {¶79} Appellant, in his sixth and final assignment of error, claims that he received

ineffective assistance of trial counsel.

       {¶80} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶81} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

1998-Ohio-343, 693 N.E.2d 267. In addition, the United States Supreme Court and the
Fairfield County, Case No. 18-CA-42                                                     22


Ohio Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, quoting Strickland at 697. Even

debatable trial tactics and strategies do not constitute ineffective assistance of counsel.

State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

       {¶82} Appellant argues that his trial counsel was ineffective because trial counsel

failed to move for a waiver of fines and court costs and because trial counsel failed to

move for merger of the aggravated drug possession convictions.

       {¶83} First, as to appellant's argument regarding merger, as previously discussed,

we found that the two aggravated drug possession convictions do not merge. Appellant

cannot, therefore, demonstrate prejudice.

       {¶84} As to appellant's court costs argument, in State v. Harris, 5th Dist.

Muskingum No. CT2018-0005, 2018-Ohio-2257, ¶ 47, this court reviewed this exact issue

and determined the following:

              We find no merit in Appellant's allegation that he received ineffective

       assistance of counsel as a result of his attorney failing to request that the

       trial court waive court costs. Because R.C. § 2947.23(C) grants Appellant

       the ability to seek waiver of costs at any time, including after sentencing,

       Appellant has not been prejudiced by the failure of his counsel to request a

       waiver at sentencing.

       {¶85} Finally, appellant argues that his trial counsel was ineffective in failing to

ask the trial court to waive fines due to indigency. We note that appellant filed an affidavit

of indigency on December 20, 2017. At the sentencing hearing, the trial court imposed
Fairfield County, Case No. 18-CA-42                                                    23


$6,450.00 in fines, but suspended the fines due to appellant’s indigency and stated that

it was going to give appellant time to pay the fines.

       {¶86} R.C. 2929.18(A)(3) states, in relevant part, as follows:

       {¶87} (3) Except as provided in division (B)(1), (3), or (4) of this section, a fine

payable by the offender to the state, to a political subdivision when appropriate for a

felony, or as described in division (B)(2) of this section to one or more law enforcement

agencies, in the following amount:

       {¶88} (a) For a felony of the first degree, not more than twenty thousand dollars;

       {¶89} (b) For a felony of the second degree, not more than fifteen thousand

dollars;

       {¶90} (c) For a felony of the third degree, not more than ten thousand dollars;

       {¶91} (d) For a felony of the fourth degree, not more than five thousand dollars;

       {¶92} (e) For a felony of the fifth degree, not more than two thousand five hundred

dollars.

       {¶93} In State v. Webb, 5th Dist. Richland No. 14–CA–85, 2015–Ohio–3318, 2015

WL 4899511, this Court held:

              Further, Ohio law does not prohibit a court from imposing a fine on

       an “indigent” defendant. That is, the filing of an affidavit of indigency does

       not automatically entitle a defendant to a waiver of a mandatory fine. State

       v. Knox, 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013-Ohio-1662, [2013

       WL 1791391], ¶ 36. Under Ohio law, a trial court must impose a mandatory

       fine unless (1) the offender files an affidavit of indigency prior to sentencing,

       and (2) “the trial court finds that the offender is an indigent person and is
Fairfield County, Case No. 18-CA-42                                                      24

       unable to pay the mandatory fines.” State v. Gipson, 80 Ohio St.3d 626,

       634, 687 N.E.2d 750 (1998). In making its indigency determination, the

       court must consider both the offender's present and future ability to pay the

       fine. R.C. § 2929.19(B)(5).

              Additionally, the trial court need not make an “affirmative finding that

       an offender is able to pay a mandatory fine.” Id. at 635 [687 N.E.2d 750].

       Instead, “the burden is upon the offender to affirmatively demonstrate that

       he or she is indigent and is unable to pay the mandatory fine.” Id. We review

       the trial court's decision to impose a fine on an indigent defendant for an

       abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-

       Ohio-3002, [2013 WL 3583030], ¶ 5.

5th Dist. Richland No. 14–CA–85, 2015–Ohio–3318, ¶ 23-¶ 24.

       {¶94} R.C. § 2929.19(B)(5) reads,

       {¶95} (B)(5) Before imposing a financial sanction under section 2929.18 of the

Revised Code or a fine under section 2929.32 of the Revised Code, the court shall

consider the offender's present and future ability to pay the amount of the sanction or fine.

       {¶96} The Ohio Supreme Court, however, has held that even if an affidavit of

indigency is timely and properly filed, a defendant “is not automatically entitled to waiver

of that fine.” State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750.

There must be a showing that a defendant is unable to pay the fines, and there is no

affirmative duty on the trial court to make a finding that a defendant is able to pay. Id., see

syllabus.
Fairfield County, Case No. 18-CA-42                                                   25


       {¶97} When a criminal defendant can show that his counsel's performance was

deficient and that the deficient performance was prejudicial to his case, there is

constitutional error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674, 693 (1984). Thus, even if the trial court did not err in imposing the fine,

we must consider whether counsel's failure to file an affidavit caused a prejudicial result.

A number of Ohio courts have recognized that failure to file an affidavit of indigency, under

the right circumstances, can constitute prejudicial error. E.g., State v. Mendoza, 6th Dist.

Lucas App. No. L-94-242, 1995 WL 413143, at 3 (July 14, 1995); State v. Joy, 4th Dit.

Lawrence App. Nos. 92 CA 24, 92 CA 30, 1993 WL 491325, at 3 (Nov. 24, 1993); State

v. Creech, 4th Dist. Scioto App. No. 92 CA 2053, 1993 WL 235566 at 6 (June 29, 1993).

       {¶98} In State v. Sheffield, 2nd Dist. Montgomery App. No. 20029, 2004-Ohio-

3099, at ¶ 13, the court stated at paragraph 14:

              The failure to file an affidavit of indigency prior to sentencing may

       constitute ineffective assistance of counsel if the record shows a reasonable

       probability that the trial court would have found Defendant indigent and

       relieved him of the obligation to pay the fine had the affidavit been filed.

       State v. Cochran (June 5, 1998), Clark App. No. 97CA50; State v. Stearns

       (Oct. 9, 1997), Cuyahoga App. No. 71851; State v. Gilmer (April 26, 2002),

       Ottawa App. No. OT-01-015, 2002-Ohio-2045; State v. McDowell (Sept. 30,

       2003), Portage App. No.2001-P-0149, 2003-Ohio-5352; State v. Powell

       (1992), 78 Ohio App.3d 784, 787, 605 N.E.2d 1337; State v. Williams

       (1995), 105 Ohio App.3d 471, 482, 664 N.E.2d 576.
Fairfield County, Case No. 18-CA-42                                                     26


       {¶99} In reviewing trial counsel's failure to file an affidavit of indigency, ineffective

assistance may be found if the record reveals a reasonable probability that the trial court

would have found the defendant indigent and unable to pay the fine. See State v.

Williams, 105 Ohio App.3d 471, 482, 664 N.E.2d 576 (8th Dist, 1995); State v. Stearns

(Oct. 9, 1997), Cuyahoga App. No. 71851, 1997 WL 626024 at 3 (Oct. 9, 1997). Because

information regarding an appellant's finances would most often lie outside the record on

direct appeal, the appropriate place to pursue this question will generally be in a hearing

for post-conviction relief under R.C. 2953.21. See State v. Booker, 63 Ohio App.3d 459,

466, 579 N.E.2d 264 (2nd Dist. 1989).

       {¶100}         We note that appellant was represented by appointed counsel. Thus,

there was necessarily a determination made that he was indigent under Chapter 120 of

the Revised Code. While we recognize that there is a difference between indigency for

the purposes of receiving appointed counsel and inability to pay a mandatory fine (See

Powell, 78 Ohio App.3d at 789, 605 N.E.2d 1337), we note that the affidavit that was filed

on December 20, 2017 indicated that appellant was unemployed, homeless and had no

income. While the presentence investigation report does not contain any information

about appellant’s medical or work history, it details appellant’s extensive criminal history.

       {¶101}         Based on these facts and circumstances, we conclude that a

reasonable probability exists that the trial court would have found Defendant indigent had

his trial counsel filed an affidavit of indigency prior to sentencing and the trial counsel was

ineffective in failing to move for waiver of the fines.

       {¶102}         Appellant’s sixth assignment of error is, therefore, sustained.
Fairfield County, Case No. 18-CA-42                                               27


      {¶103}        Accordingly, the judgment of the Fairfield County Court of Common

Pleas is affirmed in part and reversed and remanded in part. This matter is remanded to

the trial court for a hearing in order to determine whether appellant is indigent for the

purpose of avoiding the mandatory fines imposed by statute.

By Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur
