[Cite as State v. Dammons, 2011-Ohio-2908.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                               Nos. 94878 and 94879



                                   STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.

                              DEMOND DAMMONS
                                              DEFENDANT-APPELLANT




                      JUDGMENT:
        AFFIRMED IN PART, VACATED IN PART, AND
                      REMANDED


                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case Nos. CR-531013 and CR-523498
      BEFORE:       Sweeney, J., Boyle, P.J., and Keough, J.

      RELEASED AND JOURNALIZED:               June 16, 2011


ATTORNEY FOR APPELLANT

Margaret Amer Robey, Esq.
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Maxwell M. Martin, Esq.
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant Demond Dammons appeals his sentence and

the denial of his motion to suppress. For the reasons that follow, we affirm in

part, vacate in part and remand for resentencing.

      {¶ 2} In CR-523498, defendant was charged with drug trafficking, drug

possession, and possession of criminal tools, which allegedly took place on or

about April 11, 2009.    All counts included forfeiture specifications.    The

criminal tools were identified as being money and/or cell phone and the
indictment alleged that defendant possessed or had under his control “with

purpose to use it criminally in the commission of a felony.”

      {¶ 3} On September 15, 2009, the trial court held a hearing on

defendant’s motion to suppress evidence. The trial court denied that motion

the same day. Subsequently, defendant entered a plea of no contest to all

counts of the indictment, which involved two fourth degree felonies and one

felony of the fifth degree.       He also pled no contest to the forfeiture

specifications relating to $287 in U.S. currency and a cell phone.

      {¶ 4} In addition to facts elicited at the suppression hearing, the state

set forth the factual basis of the allegations as follows: police received an

anonymous tip regarding a male who had a stash of drugs in a Honda bearing

a specific license plate number. Police received a second anonymous tip in

person that provided the same information. Police later observed defendant

leaning on the subject Honda. Upon observing the officers, defendant opened

his door, tossed an item inside, then shut and locked the door.           Det.

McCandless was able to observe a bag of crack cocaine on the front passenger

seat of the car, which later tested positive as 3.82 grams of crack. Defendant

was arrested and charged with trafficking “in that it was allegedly prepared

for shipment or sale and as well as drug possession and possession of criminal

tools, because he had $287 and a cell phone on him.”

      {¶ 5} The trial court found defendant guilty and referred the matter for
a pre-sentence investigation report. On October 14, 2009, the trial court held

a sentencing hearing where defendant personally accepted “full responsibility

of [his] charges” and said he said he was guilty. Defendant asked the trial

court to impose probation.    The defense acknowledged that defendant has

sold drugs and emphasized defendant’s acceptance of responsibility. The trial

court imposed fines, costs, and 18 month prison terms on the felonies of the

fourth degree along with a 12 month prison term for the fifth degree felony; all

terms to be served consecutively. However, the court suspended the sentence

and imposed a two year term of community control sanctions, among other

non-prison penalties. The trial court advised defendant that if he violated

community control sanctions, it would order the suspended consecutive prison

sentence into effect.

      {¶ 6} In November 2009, defendant was indicted in case number

CR-531013 and charged with drug trafficking, drug possession, possession of

criminal tools and domestic violence.         Each count carried forfeiture

specifications relating to $3,000.00 in U.S. currency and a cell phone allegedly

used in the commission of the offenses. On February 24, 2010, defendant pled

guilty to an amended drug trafficking charge that deleted a schoolyard

specification and rendered it a third degree felony. Defendant further agreed

to the forfeiture of property and acknowledged that the guilty plea would

constitute a violation of his community control sanctions in CR-523498. In
exchange, the remaining charges were dismissed. The trial court imposed a

three year prison term, suspended defendant’s driver’s license and ordered

forfeiture of the cell phone and currency. The court found defendant in

violation of his community control sanctions in CR-523498 and terminated it.

Defendant’s suspended sentence was ordered into execution.         The court

ordered defendant to serve the sentence in each case consecutively, which

resulted in a total prison term of seven years.

      {¶ 7} Defendant maintains that the facts of case number CR-531013 are

not pertinent to this appeal.

      {¶ 8} Defendant commenced an appeal in each case on March 24, 2010

and the matters were consolidated for appeal.       Defendant presents four

assignments of error for our review:

      {¶ 9} The First Assignment of Error: “The trial court erred and violated

appellant’s Fifth Amendment right to be free from double jeopardy when it

ordered consecutive service for allied offenses.”

      {¶ 10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, the Ohio Supreme Court established the current analysis for

assessing whether multiple offenses are allied and of similar import such that

they should be merged for purposes of sentencing:

      {¶ 11} “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, not whether it is

possible to commit one without committing the other. [State v.]Blankenship [

(1988) ], 38 Ohio St.3d [116] at 119 (Whiteside, J., concurring) (‘It is not

necessary that both crimes are always committed by the same conduct but,

rather, it is sufficient if both offenses can be committed by the same conduct.

It is a matter of possibility, rather than certainty, that the same conduct will

constitute commission of both offenses.’ [Emphasis sic] ). 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.

      {¶ 12} “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.’ [State

v.] Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶50 (Lanzinger, J.,

dissenting).” Id. at ¶48-49.

      {¶ 13} Defendant argues that all of his convictions in CR-523498

constitute allied offenses of similar import, which include convictions for drug

trafficking in violation of R.C. 2925.03(A)(2), drug possession in violation of

R.C. 2925.11(A), and possession of criminal tools in violation of R.C.

2923.24(A). The state generally responds that defendant waived this issue

and, alternatively maintains that possessing criminal tools is not an allied
offense to the possession and trafficking offenses and, therefore, it believes the

trial court did not abuse its discretion in sentencing defendant on all counts.

      {¶ 14} The Ohio Supreme Court has held that a trial court commits plain

error when it imposes multiple sentences for allied offenses of similar import.

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶31.

Therefore, we find that despite defendant’s failure to object in the court below,

this issue survives under a plain error analysis.

      {¶ 15} In this case, defendant was convicted of both drug trafficking (R.C.

2925.03(A)(2)) and drug possession (R.C. 2925.11(A)); which the Ohio Supreme

Court has previously declared to be allied offense of similar import. State v.

Cabrales, 118 Ohio St.3d 206, 2008-Ohio-1625, 553 N.E.2d 181, paragraph two

 of the syllabus.     To the extent Johnson overruled the analysis the Court

employed in Cabrales, we still find defendant’s convictions of these offenses

constitute allied offenses of similar import under the new test enunciated in

Johnson. Both convictions arose out of the same transaction, involved the

same amount of contraband, and were committed by a single state of mind.

However, we cannot reach the same conclusion with respect to defendant’s

conviction for possessing criminal tools.

      {¶ 16} The elements of defendant’s drug trafficking conviction provide:

      {¶ 17} “(A) No person shall knowingly do any of the following:

      {¶ 18} “* * *
      {¶ 19} “(2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance, when the offender knows or

has reasonable cause to believe that the controlled substance is intended for

sale or resale by the offender or another person.”

      {¶ 20} The elements of drug possession are:

      {¶ 21} “(A) No person shall knowingly obtain, possess, or use a controlled

substance.”

      {¶ 22} And, the elements of possessing criminal tools provide:

      {¶ 23} “(A) No person shall possess or have under the person’s control

any substance, device, instrument, or article, with purpose to use it

criminally.”

      {¶ 24} Here, defendant was charged with possessing money and a cell

phone “with purpose to use it criminally in the commission of a felony.”

Accordingly, it was not possible for defendant’s possession of these items alone

to result in a conviction for either drug trafficking or drug possession.

Similarly, his possession of drugs did not establish a possession of criminal

tools charge; despite his convictions for drug trafficking and drug possession.

E.g., State v. Byers, Cuyahoga App. No. 94922, 2011-Ohio-342, ¶9 (“The

ubiquitousness of cell phones is such that the mere possession of a cell phone

is not ipso facto proof that it was used in drug trafficking.”) Defendant pled

no contest to each charge. “A plea of no contest constitutes an admission of
the facts alleged in an indictment, as well as the facts set forth by the state in

its explanation of the circumstances surrounding the charge, but does not

admit that those facts lead to a legal conclusion of guilt.”         State v. Perry

(1998), 83 Ohio St.3d 41, 697 N.E.2d 624. Defendant admitted that he was

trafficking in drugs, in possession of drugs, and that he possessed the money

and cell phone with a purpose to use them criminally.

        {¶ 25} This assignment of error is sustained in part and overruled in

part.       Defendant’s convictions for drug trafficking and drug possession are

allied offenses and the trial court erred by failing to merge them at sentencing.

 On remand, the state will elect which of these offenses to pursue against

defendant at sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,

922 N.E.2d 182. Defendant’s conviction for possessing criminal tools is not an

allied offense of similar import and the trial court did not err by imposing a

separate sentence on this count. Our disposition of this assignment of error

requires resentencing and therefore renders the second assignment of error

moot.1

        {¶ 26} The Third Assignment of Error: “The Appellant was denied his



        The Second Assignment of Error provides: “The trial court erred and abused
        1

its discretion by imposing a disproportionately harsh sentence that was grossly
inconsistent with sentences imposed on similar offenders for similar crimes, and that
was also unreasonable in that it was not supported by the record.”
right under the Sixth and Fourteenth Amendments to the effective assistance

of counsel when the defense attorneys failed to protect his rights at either

sentencing hearing.”

      {¶ 27} “To substantiate a claim of ineffective assistance of counsel, a

defendant must demonstrate that (1) the performance of defense counsel was

seriously flawed and deficient, and (2) the result of defendant’s trial or legal

proceeding would have been different had defense counsel provided proper

representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407. In

State v. Bradley, the Ohio Supreme Court truncated this standard, holding

that reviewing courts need not examine counsel’s performance if the defendant

fails to prove the second prong of prejudicial effect. State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373. “The object of an ineffectiveness claim is

not to grade counsel’s performance.” Id. at 143, 538 N.E.2d 373.

      {¶ 28} Defendant contends his trial attorneys were ineffective for failing

to object to the imposition of consecutive sentences at his original sentence

and then later when the sentence was imposed upon his probation violation.

Because defendant will be resentenced pursuant to the first assignment of

error, this assignment of error is moot.

      {¶ 29} Fourth Assignment of Error: “The trial court both denied

Appellant a full and fair suppression hearing and erred and abused its
discretion in denying Appellant’s Motion to Suppress.”

      {¶ 30} Defendant did not timely appeal the denial of his suppression

motion following the final judgment in CR-523498.         For that reason, this

assignment of error is not properly before us. However, even if it was timely

raised, we would find the trial court did not err.

      {¶ 31} “Appellate review of a trial court’s ruling on a motion to suppress

presents mixed questions of law and fact. An appellate court is to accept the

trial court’s factual findings unless they are clearly erroneous. We are

therefore required to accept the factual determinations of a trial court if they

are supported by competent and credible evidence. The application of the law

to those facts, however, is subject to de novo review.” State v. Polk, Cuyahoga

App. No. 84361, 2005-Ohio-774, at ¶ 2 (internal citations omitted).

      {¶ 32} The trial court conducted an evidentiary hearing on defendant’s

motion to suppress and the record does not support defendant’s contention

that he did not receive a full and fair hearing.     Also, the record does not

support his contention that the trial court’s findings were an abuse of

discretion.

      {¶ 33} Warrantless searches are presumptively unconstitutional, subject

to a limited number of specific exceptions.      The plain view doctrine is an

exception to the warrant requirement.        Further, the state maintains that

defendant was not stopped nor did they conduct an investigatory stop but
rather pursued a “consensual encounter” when they observed defendant

leaning against the car and appear to throw something inside of it. See State

v. Petty, Cuyahoga App. No. 93234, 2010-Ohio-4107, ¶36 (“Consensual

encounters are those that involve no coercion or restraint on liberty.”) Id.,

citing, State v. Morris (1988), 48 Ohio App.3d 137, 138, 548 N.E.2d 969.

      {¶ 34} In this case, Officer Martin testified that they received a telephone

tip that a male was keeping a stash of drugs in a Honda parked in the lot of a

bar. The caller wished to remain anonymous. The caller provided a license

plate number for the vehicle.    Another officer was stopped by a female who

reported the same information.      The officers went to the parking lot and

noticed the subject vehicle, which was unoccupied.         The officers left and

returned later to find defendant leaning against the trunk of the Honda.

When defendant saw the officers, he opened the driver door and threw

something inside. He then locked the vehicle.

      {¶ 35} The officers parked and Det. McCandless walked to the passenger

side of the vehicle. Officer Martin has participated in over a thousand drug

arrests.   Det. McCandless notified Officer Martin that he had observed

something in the car. Defendant was arrested and the officers recovered the

drugs that had been observed in plain view on the passenger seat. The drugs,

which were suspected crack cocaine, were logged into evidence by Det.

McCandless. Officer Martin testified that they “had been receiving multiple
calls in connection with that parking lot, in connection with drug sales.” In

his experience that particular lot is known for people drinking in their cars,

“there are drug users who approach the parking lot, buy their drugs and leave,

people coming in and out of the bar.”    Due to defendant’s actions, Officer

Martin “believed very strongly” that defendant tossed something into the

Honda.     When defendant was searched incident to his arrest, police found

$278.00.

     {¶ 36} Det. McCandless confirmed receipt of a phone call reporting a

male stashing drugs inside a Honda in the parking lot of Johnny and

Company Bar and Grill. At that time, Sgt. Purcell received information from

a female reporting the same information. They saw the Honda in the lot and

later saw defendant on the hood of the vehicle. He was the only person they

saw outside. The officers matched the Honda license plate numbers to the

plate reported by the citizen complainants. Det. McCandless approached the

car, looked inside and saw a plastic bag on the passenger seat containing some

white objects that he immediately recognized as cocaine. Det. McCandless

had a flashlight with him, which was his habit. The drugs were in plain view

on the seat. Det. McCandless testified that the drugs were visible to anyone

passing by. Before that time, the officers had not detained defendant and he

had been free to leave.   However, upon observing the contraband in plain

view inside defendant’s car, he was arrested. After defendant was arrested,
the cocaine was recovered from inside the car.

      {¶ 37} Defendant testified at the suppression hearing.   He arrived at the

bar around 10:30 p.m.      While inside having drinks, he observed officers

conducting their liquor inspection. He recognized them as law enforcement

officers because he saw their identification. After the officers left, defendant

went outside to have a cigarette and was leaning against his car. According

to him, four or five other people were outside when the officers entered the

bar’s parking lot. The officers took his keys, unlocked his car door, and went

inside. Defendant claimed this was done without any communication among

them. The other people just watched as the officers went through defendant’s

vehicle and trunk.    Still nothing was said to the defendant.      Drugs were

found in the car. According to defendant, the tint on the Honda’s windows

are such that “you can’t see through them at all.” Defendant maintained that

the detectives were lying.       Defendant conceded that on at least one

photograph he took of the Honda you can see inside the vehicle from outside.

The pictures were taken on the same night of the incident and without the aid

of a flashlight. Defendant denied throwing anything in the car that night.

He did not know where the officers found the drugs in the car. Defendant

admits that he did lock the car. Defendant then said he was getting out of his

car when police arrived in the parking lot.          Contradicting his earlier

testimony, defendant later said that the officers told him to “get up against the
car” before they took the keys.

      {¶ 38} Defendant also presented the testimony of Tomiko Grant.          She

saw defendant come outside and smoke a cigarette outside of the car on the

night in question. Grant was sitting in her car and could not hear anything.

Defendant grabbed the cigarette from inside his vehicle.         Grant observed

defendant’s friend and another female also present. Grant saw two vice cars

pull up in the parking lot and approach defendant. The officers searched

defendant and his car. The lighting in the parking lot was good enough for her

to be able to see the incident pretty clearly from a distance of three to four car

lengths.   However, she wasn’t paying close enough attention to be able to

describe the officers. Defendant is Grant’s friend.

      {¶ 39} The   trial court found that a citizen informant provided

information to police concerning a Honda involved in drug activity.          It is

irrelevant to the suppression analysis that the two complainants reported that

the male was “stashing” drugs in the Honda rather than selling them. Either

is unlawful criminal activity. The court found that the police were given a

specific license plate, that they identified the car, and saw defendant open the

door and throw something inside. Based on the totality of the circumstances,

the police approached the vehicle and saw a bag of crack cocaine in plain view.

 Based on the record evidence, we cannot say that the trial court abused its

discretion in its findings or by denying defendant’s motion to suppress. This
assignment of error is overruled.

      Convictions affirmed, sentence vacated in CR-523498 and the matter is

remanded for resentencing.

      It is ordered that appellee and appellant split the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.



      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
