[Cite as State v. Dean, 2024-Ohio-2385.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2023-CA-31 : v. : Trial Court Case No. 2023 CR 089 : BRANDON MICHAEL DEAN : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on June 21, 2024
APRIL F. CAMPBELL, Attorney for Appellant
SAMANTHA B. WHETHERHOLT, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Brandon Michael Dean appeals from a judgment of the
Champaign County Common Pleas Court, which convicted him, following his guilty pleas,
of one count each of aggravated trafficking in drugs, aggravated possession of drugs,
possession of dangerous drugs, and possessing criminal tools and sentenced him to a -2-
total of five years in prison. Dean contends that the trial court should have merged his
convictions for trafficking in drugs and possessing criminal tools because they were allied
offenses of similar import. For the following reasons, we will affirm the judgment of the
trial court.
I. Facts and Course of Proceedings
{¶ 2} On June 5, 2023, a Champaign County grand jury indicted Dean on three
counts of aggravated trafficking in drugs, third-degree felonies in violation of R.C.
2925.03(A); two counts of aggravated possession of drugs, fifth-degree felonies in
violation of R.C. 2925.11(A); two counts of possession of dangerous drugs, fifth-degree
felonies in violation of R.C. 4729.51; and one count of possessing criminal tools, a fifth-
degree felony in violation of R.C. 2923.24(A).
{¶ 3} Dean subsequently entered into a plea agreement with the State. On July
19, 2023, Dean pled guilty to counts one (aggravated trafficking in drugs), five
(aggravated possession of drugs), six (possession of dangerous drugs), and eight
(possessing criminal tools). In exchange for his guilty pleas, the State dismissed the
remaining counts of the indictment and jointly recommended an aggregate prison term of
five years. Dean also agreed to forfeit certain property and to pay courts costs.
{¶ 4} The trial court accepted Dean’s guilty pleas and found him guilty as charged
on the four counts. Following a sentencing hearing, the trial court sentenced Dean to 36
months in prison on count one, 24 months in prison on count five, 12 months in prison on
count six, and 12 months in prison on count eight. The trial court ordered that the -3-
sentences imposed on counts five, six, and eight be served concurrently to one another
but consecutively to the sentence imposed in count one, resulting in an aggregate prison
sentence of five years. Dean filed a timely notice of appeal from the trial court’s
judgment.
II. The Trial Court Did Not Commit Plain Error by Failing to Merge Dean’s
Convictions on Counts One and Eight
{¶ 5} Dean raises the following sole assignment of error:
The trial court erred in failing to merge Count eight with Count one,
because these offenses together [sic] because he had one animus, and
Dean engaged in one continuing course of conduct.
{¶ 6} Dean argues that his offenses of aggravated trafficking in drugs and
possessing criminal tools were closely related offenses arising from the same occurrence,
there was no separate victim, the offenses were not committed separately, and the
offenses were not prolonged. Appellant’s Brief, p. 4. According to Dean, “when looking
at the ‘heart’ of [his] offenses,” they involved one course of conduct and should have been
merged. Id.
{¶ 7} The State responds that Dean bore the burden to prove entitlement to merger
of the offenses. Appellee’s Brief, p. 5, citing State v. Jackson, 2d Dist. Montgomery No.
24430, 2012-Ohio-2335, ¶ 134. According to the State, “Appellant’s crimes were clearly
committed with separate conduct as the drugs he sold were not the basis of his criminal
tools offense. * * * Furthermore, Appellant’s trafficking conduct occurred over an -4-
almost three-month time period, while his possessing criminal tools conduct only occurred
on a single day” when the search warrant was executed. Id. at 7.
{¶ 8} Normally, we apply a de novo standard of review in reviewing a trial court’s
merger determination. State v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d
858, ¶ 6, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245,
¶ 1, 28. However, Dean failed to object at sentencing to the trial court’s failure to merge
any of his convictions, which means he has waived all but plain error for purposes of this
appeal. Id. at ¶ 7, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 28. “Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice.” Id. at ¶ 8, citing
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
To prevail under the plain-error doctrine, Dean must establish that “an error occurred, that
the error was obvious, and that there is ‘a reasonable probability that the error resulted in
prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis sic;
citations omitted.) Id. “The elements of the plain-error doctrine are conjunctive: all three
must apply to justify an appellate court’s intervention.” Id. at ¶ 9, citing State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Because we conclude that the trial court
did not commit an error, we need not address whether Dean met the second and third
elements of the plain-error doctrine.
{¶ 9} The starting point for determining whether two convictions should be merged
at sentencing as allied offense of similar import is R.C. 2941.25, which states the
following: -5-
(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.
{¶ 10} The Ohio Supreme Court has held that, “[i]n 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.” State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus.
“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.” Id. at paragraph two
of the syllabus. “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
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[Cite as State v. Dean, 2024-Ohio-2385.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2023-CA-31 : v. : Trial Court Case No. 2023 CR 089 : BRANDON MICHAEL DEAN : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on June 21, 2024
APRIL F. CAMPBELL, Attorney for Appellant
SAMANTHA B. WHETHERHOLT, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Brandon Michael Dean appeals from a judgment of the
Champaign County Common Pleas Court, which convicted him, following his guilty pleas,
of one count each of aggravated trafficking in drugs, aggravated possession of drugs,
possession of dangerous drugs, and possessing criminal tools and sentenced him to a -2-
total of five years in prison. Dean contends that the trial court should have merged his
convictions for trafficking in drugs and possessing criminal tools because they were allied
offenses of similar import. For the following reasons, we will affirm the judgment of the
trial court.
I. Facts and Course of Proceedings
{¶ 2} On June 5, 2023, a Champaign County grand jury indicted Dean on three
counts of aggravated trafficking in drugs, third-degree felonies in violation of R.C.
2925.03(A); two counts of aggravated possession of drugs, fifth-degree felonies in
violation of R.C. 2925.11(A); two counts of possession of dangerous drugs, fifth-degree
felonies in violation of R.C. 4729.51; and one count of possessing criminal tools, a fifth-
degree felony in violation of R.C. 2923.24(A).
{¶ 3} Dean subsequently entered into a plea agreement with the State. On July
19, 2023, Dean pled guilty to counts one (aggravated trafficking in drugs), five
(aggravated possession of drugs), six (possession of dangerous drugs), and eight
(possessing criminal tools). In exchange for his guilty pleas, the State dismissed the
remaining counts of the indictment and jointly recommended an aggregate prison term of
five years. Dean also agreed to forfeit certain property and to pay courts costs.
{¶ 4} The trial court accepted Dean’s guilty pleas and found him guilty as charged
on the four counts. Following a sentencing hearing, the trial court sentenced Dean to 36
months in prison on count one, 24 months in prison on count five, 12 months in prison on
count six, and 12 months in prison on count eight. The trial court ordered that the -3-
sentences imposed on counts five, six, and eight be served concurrently to one another
but consecutively to the sentence imposed in count one, resulting in an aggregate prison
sentence of five years. Dean filed a timely notice of appeal from the trial court’s
judgment.
II. The Trial Court Did Not Commit Plain Error by Failing to Merge Dean’s
Convictions on Counts One and Eight
{¶ 5} Dean raises the following sole assignment of error:
The trial court erred in failing to merge Count eight with Count one,
because these offenses together [sic] because he had one animus, and
Dean engaged in one continuing course of conduct.
{¶ 6} Dean argues that his offenses of aggravated trafficking in drugs and
possessing criminal tools were closely related offenses arising from the same occurrence,
there was no separate victim, the offenses were not committed separately, and the
offenses were not prolonged. Appellant’s Brief, p. 4. According to Dean, “when looking
at the ‘heart’ of [his] offenses,” they involved one course of conduct and should have been
merged. Id.
{¶ 7} The State responds that Dean bore the burden to prove entitlement to merger
of the offenses. Appellee’s Brief, p. 5, citing State v. Jackson, 2d Dist. Montgomery No.
24430, 2012-Ohio-2335, ¶ 134. According to the State, “Appellant’s crimes were clearly
committed with separate conduct as the drugs he sold were not the basis of his criminal
tools offense. * * * Furthermore, Appellant’s trafficking conduct occurred over an -4-
almost three-month time period, while his possessing criminal tools conduct only occurred
on a single day” when the search warrant was executed. Id. at 7.
{¶ 8} Normally, we apply a de novo standard of review in reviewing a trial court’s
merger determination. State v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d
858, ¶ 6, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245,
¶ 1, 28. However, Dean failed to object at sentencing to the trial court’s failure to merge
any of his convictions, which means he has waived all but plain error for purposes of this
appeal. Id. at ¶ 7, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 28. “Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice.” Id. at ¶ 8, citing
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
To prevail under the plain-error doctrine, Dean must establish that “an error occurred, that
the error was obvious, and that there is ‘a reasonable probability that the error resulted in
prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis sic;
citations omitted.) Id. “The elements of the plain-error doctrine are conjunctive: all three
must apply to justify an appellate court’s intervention.” Id. at ¶ 9, citing State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Because we conclude that the trial court
did not commit an error, we need not address whether Dean met the second and third
elements of the plain-error doctrine.
{¶ 9} The starting point for determining whether two convictions should be merged
at sentencing as allied offense of similar import is R.C. 2941.25, which states the
following: -5-
(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.
{¶ 10} The Ohio Supreme Court has held that, “[i]n 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.” State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus.
“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.” Id. at paragraph two
of the syllabus. “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.” Id. at paragraph three of the syllabus.
{¶ 11} Ohio’s prohibition against aggravated trafficking in drugs provides that no -6-
person shall knowingly do any of the following: “(1) Sell or offer to sell a controlled
substance or a controlled substance analog; (2) Prepare for shipment, ship, transport,
deliver, prepare for distribution, or distribute a controlled substance or a controlled
substance analog, when the offender knows or has reasonable cause to believe that the
controlled substance or a controlled substance analog is intended for sale or resale by
the offender or another person.” R.C. 2925.03(A)(1)-(2). Ohio’s prohibition against
possessing criminal tools provides that “[n]o person shall possess or have under the
person's control any substance, device, instrument, or article, with purpose to use it
criminally.” R.C. 2923.24(A).
{¶ 12} Due to the fact Dean pled guilty to the two offenses at issue in this appeal,
the record before us contains only limited details about the underlying conduct that led to
his indictment. However, the indictment states that the aggravated trafficking in drugs
count was based on Dean’s knowingly selling or offering to sell Methamphetamine “on or
about March 1, 2023 through May 22, 2023,” while the indictment states that the
possession of criminal tools count was based on Dean’s possessing a ledger “on or about
May 22, 2023.”
{¶ 13} We, along with several other districts, have previously held that the conduct
underlying a possessing criminal tools offense is separate from the conduct underlying a
trafficking in drugs offense. As a result, we and other districts have held that these two
offenses are not allied offenses of similar import. State v. Jarrett, 2d Dist. Champaign
No. 2019-CA-20, 2020-Ohio-393, ¶ 14; State v. Myles, 3d Dist. Marion No. 9-19-74, 2020-
Ohio-3323, ¶ 63 (possessing criminal tools is not an allied offense of either possession -7-
of a controlled substance or trafficking); State v. Olmstead, 5th Dist. Ashland No. 18-
COA-016, 2018-Ohio-5301, ¶ 27; State v. Brownlee, 8th Dist. Cuyahoga No. 106395,
2018-Ohio-3308, ¶ 11 (trafficking cocaine and possessing criminal tools were inherently
committed with separate conduct).
{¶ 14} In State v. Dammons, 8th Dist. Cuyahoga No. 94878, 2011-Ohio-2908, the
court explained why possessing criminal tools (a cell phone) and trafficking in drugs were
not allied offenses of similar import:
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.”).
Id. at ¶ 24.
{¶ 15} We agree with the reasoning expressed in Dammons and the plethora of
previous cases that have concluded convictions for possessing criminal tools and
trafficking in drugs should not be merged. Therefore, the trial court did not commit an
error, let alone plain error, by failing to merge Dean’s convictions for aggravated trafficking -8-
in drugs and possessing criminal tools.
{¶ 16} The sole assignment of error is overruled.
III. Conclusion
{¶ 17} Having overruled Dean’s sole assignment of error, we will affirm the
judgment of the trial court.
WELBAUM, J. and HUFFMAN, J., concur.