[Cite as State v. Keese, 2024-Ohio-5075.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240020 TRIAL NO. B-2105883-B Plaintiff-Appellee, : O P I N I O N. vs. :
BRYANT KEESE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: October 23, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Bryant Keese appeals his convictions following a
jury trial for various drugs and weapons offenses. More specifically, Keese challenges
the trial court’s decision denying his motion to suppress evidence seized by police
following a suspected drug transaction, as well as evidence taken from an apartment
belonging to his girlfriend after police executed a search warrant. Keese also raises as
error the trial court’s imposition of separate prison terms for two counts of trafficking.
Finally, Keese asserts that he received ineffective assistance of counsel at trial.
{¶2} We agree with Keese that the trial court should have merged the
trafficking counts for sentencing and sustain his assignment of error in that regard.
But, having considered the totality of the circumstances surrounding both the search
of his person and the search warrant affidavit for his girlfriend’s apartment, we find
no constitutional error in the trial court’s denial of Keese’s motion to suppress. We
accordingly affirm the trial court’s judgment in part, reverse it in part, as to the
sentences imposed on Counts 4 and 5, and remand the matter for the limited purpose
of resentencing Keese on those counts.
Factual and Procedural Background
{¶3} On November 17, 2021, Keese was arrested after an encounter with
police outside of his girlfriend’s apartment building. Seven days later, he was charged
in a nine-count indictment with: (1) Counts 1 and 2, possession of a fentanyl-related
compound in violation of R.C. 2925.11(A), both felonies of the second degree; (2)
Count 3, possession of cocaine in violation of R.C. 2925.11(A), a felony of the first
degree; (3) Counts 4 and 5, trafficking in a fentanyl-related compound in violation of
R.C. 2925.03(A)(2), both felonies of the second degree; (4) Count 6, trafficking in
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cocaine in violation of R.C. 2925.03(A)(2), a felony of the first degree; (5) Count 7,
carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth
degree; (6) Count 8, having a weapon while under disability in violation of R.C.
2923.13(A)(3), both felonies of the third degree; and (7) Count 9, one count of
improperly handling a firearm in a motor vehicle in violation of R.C. 2923.16(B), a
felony of the fourth degree.
{¶4} On February 12, 2023, Keese filed a motion to suppress. The motion
sought to exclude all evidence found on Keese’s person, in his vehicle, and in
Apartment 6, a residence belonging to his girlfriend that was searched the day Keese
was arrested.
{¶5} On March 10, 2023, the trial court conducted an evidentiary hearing on
Keese’s motion to suppress. At the hearing, Keese testified as to his standing to
challenge the search of the apartment. To that end, Keese testified that his girlfriend
lived in Apartment 6 in the Clifton neighborhood of Cincinnati and that he had spent
the two days leading up to his arrest with her there. While Keese admitted that his
actual residence was with his uncle in Madisonville, Keese explained that he spent the
night with his girlfriend at Apartment 6 approximately two to three times a week,
particularly when his uncle had romantic visitors over to the Madisonville residence.
Keese further stated that he kept personal items and clothing at his girlfriend’s
apartment and had a key to let himself in. He testified that he had spent the night at
Apartment 6 the night before his arrest.
{¶6} The State then called Officer Kevin Broering, an undercover officer
assigned to Cincinnati Police Department’s (“CPD”) Crime Gun Intelligence Unit.
Broering testified that on November 17, 2021, he conducted covert surveillance at a
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residential building containing Apartment 6. The target of the operation was an
unrelated individual, not Keese or his girlfriend, who had outstanding felony warrants
and had previously fled from the police. As Broering explained, while conducting
surveillance for this person, he witnessed Keese drive a black Infiniti and pull into a
parking spot at the apartment building. Broering ran the plates of the Infiniti and
determined that it belonged to Keese.
{¶7} Broering testified that he witnessed an unknown person walk up to
Keese’s vehicle with money in his hand, approach the window, and walk away with a
plastic bag that Broering believed contained drugs. Following the transaction,
Broering observed Keese pull out of the parking spot, drive around the building, and
park again in the same parking spot. After witnessing these events, Broering radioed
for additional officers. Broering then saw Keese’s girlfriend get out of the Infiniti with
groceries in her hand, but she was detained by officers who had arrived on the scene,
as was Keese when he got out of the car.
{¶8} Broering testified that when Keese was detained, he told the police he
was in possession of a weapon. As a result, Keese was patted down, and a gun was
found on his person. Broering also testified that Keese was in possession of a key to
Apartment 6 and that a black sock containing fentanyl, cocaine, and a digital scale was
found under the driver’s seat of the Infiniti. Keese and his girlfriend were taken into
custody.
{¶9} Broering added that after Keese and his girlfriend were arrested, Keese
made a statement that he would confess to possessing whatever contraband was found
in the apartment. Broering learned this information from a fellow officer.
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{¶10} According to Broering, based on information gathered from the scene,
he obtained a search warrant to search Apartment 6. As Broering explained, officers
conducting the search uncovered additional quantities of drugs from various locations
in the apartment.
{¶11} On October 13, 2023, the trial court denied Keese’s motion to suppress
in a written entry. Before that, it made specific findings on the record in support of its
ruling. With regard to the basis to stop Keese when he got out of his car, the trial court
found that Broering’s observation of a hand-to-hand transaction created probable
cause for an arrest. With regard to Keese’s standing to challenge the search warrant
for Apartment 6, the trial court found that:
the defendant did have keys but stayed there irregularly. Some of his
mail and the keys is not enough and does not convince the Court that
the defendant did have standing to object. However, even if it’s found
that he had standing to object, the Court nevertheless finds that there
was enough probable cause not only to search the person but also the
property.
{¶12} Keese’s jury trial began on October 16, 2023. At trial, the State called
six witnesses: (1) Officer Mark Bode; (2) Officer Orkies; (3) Officer Taylor Howard;
(4) Laura Kimble; (5) Douglass Wimsatt; and (6) Broering.
{¶13} Bode, a CPD officer assigned to the Crime Gun Intelligence Center
(“CGIC”), was working undercover near Apartment 6 on the day of the incident. As he
explained in his testimony, he witnessed an unidentified male exit from a vehicle
containing out-of-state plates and walk to Keese’s vehicle, where Keese and the person
made a quick exchange before the male walked back to his vehicle and left. Bode
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testified that Keese then pulled out of his parking spot, and Bode followed. According
to Bode, he stopped following Keese once he saw other uniformed officers enter the
apartment complex. Bode identified Keese in the courtroom as the person he saw in
the vehicle in the parking lot.
{¶14} Broering testified that, on the day of the incident, he observed what he
believed to be a drug transaction take place between Keese and an unknown
individual. After observing this transaction, he radioed for uniformed officers.
Broering testified to overhearing Keese tell officers that he did not live at his
girlfriend’s apartment, but instead lived in Madisonville. Broering admitted, however,
that he had seen Keese at the apartment several times while conducting surveillance
of the apartments.
{¶15} Broering further explained that he obtained a search warrant for
Apartment 6 based on information obtained at the scene, and that officers then
conducted a search of the residence. According to Broering, police recovered a Ruger
handgun, bullets, inositol powder, 22 separate baggies of crack cocaine, and a holster
from Apartment 6.
{¶16} Orkies, also a CPD officer assigned to CGIC, was working in uniform on
November 17, 2021. He explained that he responded to a radio transmission from
Broering after Broering witnessed a hand-to-hand drug transaction involving a black
Infiniti. Orkies testified that Keese was detained after he got out of his car and that a
search of Keese’s person revealed a gun. The State played Orkies’s body-worn camera
footage during his testimony.
{¶17} Howard, another uniformed CPD officer and member of the CGIC,
testified that he also responded to the scene. He explained that he conducted the
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search of Keese and that Keese told him that he had a gun. Howard also recovered a
sock that contained narcotics and a scale from Keese’s person.
{¶18} Kimble testified that she was the senior drug chemist at the Hamilton
County Crime Laboratory. She testified as to the test results of the narcotics that were
recovered from Keese’s person and from Apartment 6. Kimble explained that the
items that were recovered and tested came back positive for various quantities of
cocaine, fluorofentanyl, and fentanyl.
{¶19} Wimsatt testified that he was a forensic drug chemist with the Hamilton
County Coroner’s Office and Crime Laboratory. He testified that he conducted a test
on the digital scale Taylor recovered from Keese that showed a positive result for
cocaine.
{¶20} Keese’s girlfriend was called to testify, but asserted her Fifth
Amendment privilege in response to all questions she was asked. The trial court
therefore excluded her as a witness.
{¶21} On October 18, 2023, the jury returned guilty verdicts against Keese on
all nine counts.
{¶22} On December 12, 2023, the trial court sentenced Keese. It merged
Counts 1 and 4 and imposed a sentence of five to seven-and-a-half years in prison. It
also merged Counts 2 and 5 and imposed a prison sentence of five years. It imposed
an identical sentence with respect to Counts 3 and 6. It similarly merged Counts 7 and
9 and imposed a 12-month term of incarceration. As to Count 8, Keese was sentenced
to two years in prison. The trial court ordered the sentences in Counts 8 and 9 to be
served concurrently and the sentences in Counts 4, 5, and 6 to be served consecutively
to one another and consecutively to the sentences in Counts 8 and 9. Keese was
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therefore sentenced to an aggregate term of 17 to 19-and-a-half years in the Ohio
Department of Rehabilitation and Correction. The trial court further imposed two to
five years of post release control on Count 6, 18 months to three years of post release
control on Counts 4 and 5, and two years of post-release control on Counts 8 and 9.
The trial court credited 55 days that Keese spent in jail towards his prison time and
remitted court costs and fines.
{¶23} Keese now appeals.
Analysis
{¶24} On appeal, Keese raises four assignments of error. First, Keese argues
that the trial court erred in denying his motion to suppress the firearm and controlled
substances recovered from his person. Second, he argues that the trial court erred by
denying his motion to suppress the items seized from his girlfriend’s apartment.
Third, he argues that the trial court violated double-jeopardy principles by sentencing
him to separate prison sentences on Counts 4 and 5. Lastly, he argues that he received
ineffective assistance of counsel in violation of the Sixth Amendment.
Suppression of Items Recovered from Keese
{¶25} In his first assignment of error, Keese argues that he was forcibly
stopped and searched in violation of his Fourth Amendment right against
unreasonable search and seizure. More specifically, Keese contends that officers
lacked reasonable suspicion to stop and detain him when he got out of his car. He
argues that this lack of reasonable suspicion undercut officers’ ability to search his
person for weapons.
{¶26} We review a motion to suppress under a blended standard of review.
See In re J.T., 2023-Ohio-2695, ¶ 15-16 (1st Dist.). Under this standard, we accept the
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trial court’s findings of fact if they are supported by competent, credible evidence. Id.
at ¶ 15. We then review de novo whether the facts meet the applicable legal standard.
Id.
{¶27} The trial court analyzed the legality of Keese’s detention under a
probable cause standard, apparently believing, without expressly saying so, that Keese
was under arrest when he got out of his car. See State v. Jordan, 2021-Ohio-3922, ¶
19-20 (explaining probable cause standard for warrantless arrests). It determined that
officers had probable cause to arrest Keese based on their observation of a hand-to-
hand transaction. On appeal, Keese argues that officers lacked reasonable suspicion
to detain him—a lesser standard than probable cause—thereby implicitly conceding
that he was not actually arrested at the moment that he got out of his car. After
reviewing the record, we agree with Keese that he was merely detained, rather than
subject to arrest, when officers approached him at his car.
{¶28} Under Terry v. Ohio, 392 U.S. 1 (1968), the police may temporarily
detain an individual for the purpose of investigation, without violating the Fourth
Amendment, when the stop is justified by reasonable suspicion. While “reasonable
suspicion” has no fixed legal meaning, it is something more than a hunch. State v.
Rogers, 2022-Ohio-4535, ¶ 23 (1st Dist.). Instead, considering the totality of the
circumstances, officers must have a particularized and objective basis for suspecting
that the person they stopped was engaged in criminal activity. Id. at ¶ 22-23, citing
United States v. Cortez, 449 U.S. 411, 417-418 (1981).
{¶29} Once a person has been lawfully stopped on the basis of reasonable
suspicion, an officer may conduct a limited protective search for weapons if the officer
has a justified belief that the person may be armed. In re J.T., 2023-Ohio-2695, at ¶
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16 (1st Dist.). A Terry stop and a protective search for weapons therefore require
separate justifications. Id. A Terry stop must be supported by reasonable suspicion,
and a protective search must be supported by a justified belief that the person
possesses a weapon. Id.; Rogers at ¶ 23.
{¶30} The officers’ decision to stop and detain Keese when he got out of his
car was supported by reasonable suspicion. Both Broering and Bode testified that they
witnessed Keese engage in what they believed to be a hand-to-hand drug transaction.
Broering specifically described observing a man walk up to Keese’s vehicle with cash
in his hand and walk away without the cash but with a plastic bag appearing to contain
drugs. Broering then witnessed Keese pull away but return seconds later to park his
vehicle in the same location. From these facts and his experience, Broering concluded
that he had likely witnessed a drug transaction. Bode recounted a similar version of
events and reached a similar conclusion.
{¶31} Considering the totality of the circumstances, we hold that the officers
had reasonable suspicion to stop Keese for the purpose of investigating his activities
minutes later when he got out of his car. Both Broering and Bode observed a
transaction that contained indicia of an unlawful drug sale: the exchange of cash for
a baggie and a quick departure from the scene. This was more than a mere hunch that
criminal activity had taken place. Rather, officers had good reason to suspect that
Keese sold drugs to a customer.
{¶32} Arguing otherwise, Keese relies on cases that are factually inapposite to
his: State v. Pettegrew, 2009-Ohio-4981 (8th Dist.), and State v. Ward, 2017-Ohio-
8141 (1st Dist.). In Pettegrew, the Eighth District reversed the trial court’s denial of
the defendant’s motion to suppress on the basis that a person reached into a vehicle
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rather than engaging in an exchange with the driver. Pettegrew at ¶ 16. In Ward, an
officer observed an individual lean into the defendant’s vehicle, which was located in
an area known for crime. Ward at ¶ 4. We reversed the decision of the trial court
denying the motion to suppress, holding these facts insufficient to establish reasonable
suspicion. Id. at ¶ 26.
{¶33} This case is distinguishable from both Pettegrew and Ward. Unlike the
defendants in those cases, Keese was witnessed engaging in an actual transaction of
what appeared to Broering to be drugs. Numerous courts considering similar fact
patterns have held that an officer’s observation of a suspected hand-to-hand drug
transaction gives rise to reasonable suspicion for a Terry stop. See, e.g., State v.
Partin, 2023-Ohio-4056, ¶ 18-19 (2d Dist.). We conclude no differently here.
{¶34} Because Keese was lawfully stopped, officers were permitted to conduct
a protective sweep of his person, so long as they reasonably believed Keese presented
a danger. See State v. Henson, 2022-Ohio-1571, ¶ 15-16 (1st Dist.). According to
Howard, Keese admitted to possessing a weapon when he was detained at his car.
Officers were therefore justified in patting Keese down for the purpose of their own
safety. See State v. Shalash, 2021-Ohio-1034, ¶ 21-22 (10th Dist.) (finding protective
sweep of car to be justified where police had knowledge of defendant’s gun
possession).
{¶35} We accordingly overrule Keese’s first assignment of error.
Suppression of Items Recovered from Apartment 6
{¶36} In his second assignment of error, Keese raises two issues. First, he
argues that the trial court erred in determining that he did not have standing to
challenge the warrant obtained to search Hall’s apartment. Second, he argues that the
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affidavit supporting the search warrant did not show a fair probability that contraband
would be found in the residence.
A. Standing to Challenge the Search Warrant
{¶37} To have standing to challenge a search under the Fourth Amendment, a
defendant must have a reasonable expectation of privacy in the object of the search.
State v. Emerson, 2012-Ohio-5047, ¶ 16. With regard to visitors to a home, an
overnight guest may reasonably expect that belongings stored in the home will remain
private, whereas a person who is merely present with the consent of the homeowner
may not have such an expectation. Minnesota v. Carter, 525 U.S. 83, 90 (1998); State
v. Brown, 2013-Ohio-2720, ¶ 12 (1st Dist.). Thus, it is beyond dispute that overnight
guests have standing to challenge a search of a residence. State v. Dozier, 2015-Ohio-
2175, ¶ 7 (2d Dist.). The defendant bears the burden of establishing the status of an
overnight guest with a reasonable expectation of privacy in the home. Id.
{¶38} In determining whether an overnight guest has standing to challenge a
search, courts have highlighted certain key facts that are indicative of the status of an
overnight guest. These include how often a person stays at the residence in question,
how recently the person stayed there before the search, whether the person has a key
or other method of access to the home, and whether the person stores belongings
there. For example, in State v. Winston, 2012-Ohio-4743, ¶ 17 (2d Dist.), the Second
District held that the trial court erred when it found that the defendant did not have
standing as an overnight guest to challenge the search of his girlfriend’s apartment. In
that case, the evidence showed that the defendant occasionally stayed at the
apartment, had clothing at the apartment, and spent the night at the apartment the
day before the incident. Id.
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{¶39} Similarly, in State v. Keith, 2008-Ohio-6122, ¶ 13, 18 (10th Dist.), the
Tenth District held that the trial court erred when it found that the defendant did not
have standing to challenge the search of another person’s apartment after testimony
established that the defendant had stayed at the apartment two to three nights
preceding his arrest, had keys to the apartment, had a room in the apartment, and
could stay there whenever he pleased.
{¶40} Here, as the trial court found, Keese testified that he spent the night at
Apartment 6 two to three times a week and had done so the night before his arrest. He
kept belongings at the apartment and had a key to come and go. Even Broering
admitted that he had seen Keese at the apartment complex in the past when Broering
had conducted undercover surveillance. These facts suggest that Keese was an
overnight guest, and overnight guests plainly have standing. See Dozier, 2015-Ohio-
2175, at ¶ 7 (2nd Dist.). Therefore, similar to the defendants in Winston and Keith, we
conclude that Keese had standing to challenge the search of Apartment 6.
B. Whether the Warrant was Supported by Probable Cause
{¶41} Keese next asserts that the affidavit that supported the search warrant
for Apartment 6 did not demonstrate probable cause and, more specifically, did not
create a nexus between the suspected crime and the place being searched. The
affidavit makes clear that officers were searching Apartment 6 based on the suspected
drug transaction they witnessed between Keese and an unknown person in the parking
lot. But no witness testified that Apartment 6 was Keese’s residence. Thus, the
question Keese raises is whether officers’ suspicion that he was engaged in drug
activity was sufficient to search Apartment 6.
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{¶42} Probable cause for a search warrant is established where the affidavit in
support of the warrant contains sufficient information that evidence is likely to be
found at the place to be searched. State v. Martin, 2021-Ohio-2599, ¶ 11 (1st Dist.).
This inquiry is heavily fact-intensive. State v. Johnson, 2024-Ohio-1147, ¶ 15 (1st
Dist.). To pass Fourth Amendment muster, the affidavit must establish a nexus
between the place being searched and the evidence being sought. Id. In determining
whether an affidavit accomplishes this task, the judicial officer issuing a search
warrant must make a practical, common-sense decision as to whether, given the
totality of the circumstances, there is a fair probability that evidence of a crime will be
found in the place that is the subject of the proposed search warrant. State v. George,
45 Ohio St.3d 325 (1989), paragraph one of the syllabus.
{¶43} With regard to a search of a residence based on drug activity occurring
outside the home, “[a] nexus exists between a known drug dealer’s criminal activity
and the dealer’s residence when some reliable evidence exists connecting the criminal
activity with the residence.” State v. Phillips, 2016-Ohio-5944, ¶ 16 (10th Dist.). When
the nexus is borderline, “we are obligated to accord great deference to the probable
cause determination made by the magistrate or judge who issues the search warrant
and resolve any doubtful or marginal case in favor of upholding the search warrant[.]”
State v. Rieves, 2018-Ohio-955, ¶ 36 (8th Dist.).
{¶44} The affidavit permitting officers to search Apartment 6 presents such a
scenario, in that it establishes a minimal but legally sufficient nexus between Keese’s
drug activity outside the apartment and the probability that evidence would be found
inside it. To be sure, the affidavit clearly recounts that Keese participated in drug
activity. In the affidavit, Broering recounts the hand-to-hand transaction he witnessed
14 OHIO FIRST DISTRICT COURT OF APPEALS
in the apartment parking lot and that a gun, drugs, and scale were found shortly
thereafter. The affidavit also summarizes Broering’s professional experience as a
police officer who has worked in the field of narcotics apprehension. It therefore
establishes probable cause to believe that Keese was engaged in drug activity.
{¶45} But the affidavit is somewhat sparse as to concrete facts specifically
connecting Keese’s drug activity to the apartment. To this end, the only fact
connecting Keese to the apartment is that he had a key to get in. This alone is
insufficient to establish probable cause, as mere access to a building does not support
an inference that a person stores contraband there. Nor does the affidavit indicate, for
example, that Keese himself came from the apartment before engaging in the hand-
to-hand transaction or that Keese was approaching the apartment afterwards, facts
courts have held to support probable cause in other cases. See, e.g., State v. Young,
2019-Ohio-4639, ¶ 21 (10th Dist.) (upholding search warrant for residence based on
defendant’s movements to and from the home in the time immediately preceding the
transaction); State v. Lackey, 2023-Ohio-3720, ¶ 16-17 (1st Dist.) (upholding search
where warrantless inspections of a defendant’s trash revealed evidence of drug
trafficking). In fact, only Keese’s girlfriend was leaving the vehicle in the direction of
the apartment, and only she was carrying groceries. The affidavit is therefore short on
facts directly connecting Keese to Apartment 6.
{¶46} The affidavit, does, however, document statements by both Keese and
his girlfriend upon which a reasonable person could rely in believing that evidence of
Keese’s drug activity would be found in Apartment 6. In that regard, the affidavit notes
that, when Keese’s girlfriend was stopped carrying groceries from the car to the
apartment building, she initially said she was going to Apartment 5. The girlfriend
15 OHIO FIRST DISTRICT COURT OF APPEALS
later admitted she lived in Apartment 6, not Apartment 5 as she first stated. This
statement by the girlfriend could reasonably be interpreted as an effort to divert the
police away from Apartment 6. The affidavit also indicates that “Keese later stated he
would tell police that anything in the apartment was his, which he directed at [the
girlfriend].” This could also be taken as a tacit admission by Keese that contraband
was in the apartment. Finally, the affidavit notes that both the girlfriend and Keese
had keys to Apartment 6.
{¶47} For guidance as to whether these allegations in Broering’s affidavit
establish probable cause, we look to Johnson, 2024-Ohio-1147 (1st Dist.). In Johnson,
the defendant was placed under surveillance by police officers after being suspected of
drug trafficking. Id. at ¶ 2. Using a confidential informant, the police conducted two
controlled drug buys from the defendant. Id. Police then obtained a search warrant
for a residence they believed to be associated with the defendant. Id. at ¶ 4, 9. The
affidavit in support of the warrant contained information regarding the two controlled
buys and a related a cell phone ping and described events of another day when the
defendant fled from police. Id. at ¶ 5-8. This court held that the affidavit lacked a
nexus between the defendant’s drug trafficking and the residence. Id. at ¶ 21. In so
doing, we emphasized that the affidavit did not include details about the defendant’s
movement before or after the two buys, nor did it suggest that the defendant’s drug
activity occurred “in or near” the searched residence. Id. at ¶ 17, 21. Rather, the
affidavit merely established that the defendant was a suspected drug dealer and lived
at the place to be searched in the weeks after he was observed selling drugs. Id. at ¶
18. In holding that the trial court erred by not granting the defendant’s motion to
suppress, we noted that this was not a “doubtful or marginal case.” Id. at ¶ 17.
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{¶48} Several facts specific to Keese separate this case from Johnson. For one,
both Keese and his girlfriend made statements implying the presence of contraband
in Apartment 6, in essence corroborating officers’ belief that evidence of crime would
be located in the apartment. For another, Keese’s drug activity occurred on the
grounds of the apartment building, adjacent to the residence to be searched.
Particularly given that we are to defer to the validity of the search warrant in marginal
cases, we hold that this information was sufficient to establish probable cause to
search Apartment 6. See Rieves, 2018-Ohio-955, at ¶ 36 (8th Dist.).
C. Fruit of the Poisonous Tree
{¶49} Keese’s final argument with regard to the motion to suppress is that the
trial court committed plain error in not suppressing the fruit of the poisonous tree.
More specifically, Keese contends that the trial court should have excised his
statement about the apartment and the items seized from his person from the search
warrant affidavit because this evidence was obtained in violation of his Fourth
Amendment rights.
{¶50} Keese’s argument fails because, as discussed above, Keese’s detention
and the officer’s pat-down of his person were supported by reasonable suspicion. With
regard to his statement, Keese raises no assignment of error challenging the
admissibility of his statement to police. In the absence of such an argument, we lack
a basis for excluding the statement from the search warrant affidavit. See App.R.
12(A). Keese’s fruit-of-the-poisonous-tree argument is accordingly without merit.
{¶51} We therefore overrule Keese’s second assignment of error.
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Sentencing
{¶52} In his third assignment of error, Keese argues that the trial court erred
in imposing separate prison sentences on Counts 4 and 5, both of which allege that
Keese trafficked a fentanyl-related drug compound. He raises this argument under
the Double Jeopardy Clauses of the United States and Ohio Constitutions. Keese did
not object to the imposition of separate sentences on Counts 4 and 5 before the trial
court.
{¶53} For its part, the State concedes that the convictions in Counts 4 and 5
were allied offenses of similar import and that they thus should have merged for
purposes of sentencing. Nonetheless, because Keese failed to object to the lack of
merger, we review this issue for plain error.
{¶54} To reverse on plain error, we must find that (1) there was an error, (2)
the error was plain, i.e., an obvious defect in the trial court proceedings, and (3) the
error affected substantial rights, i.e., it affected the outcome. State v. Merz, 2021-
Ohio-2093, ¶ 7 (1st Dist.). The requirement that allied offenses be merged is
mandatory, and thus the failure to correctly merge convictions necessarily affects a
substantial right and amounts to plain error. Id.
{¶55} In Counts 4 and 5, the jury convicted Keese of trafficking more than ten
but less than 20 grams of fentanyl and flourofentanyl. To reach this amount, the State
aggregated two separate drug quantities, each containing a mixture of fentanyl and
flourofentanyl. One package contained just over three grams of the mixture, while the
second contained just over nine grams. Together, they weighed slightly more than 12
grams. The State did not separate the amount of fentanyl and the amount of
flourofentanyl in each quantity. Thus, based on the specific weights involved, it was
18 OHIO FIRST DISTRICT COURT OF APPEALS
impossible for Keese to have trafficking both between ten and 20 grams of fentanyl
and between ten and 20 grams of flourofentanyl when the entire weight of the mixture
was just over 12 grams.
{¶56} In State v. Pendleton, 2020-Ohio-6833, ¶ 19-20, the Ohio Supreme
Court held that R.C. 2925.03 does not allow separate punishments for multiple drug-
trafficking convictions when the factual basis of the convictions is trafficking a mixture
of heroin and fentanyl. Counts 4 and 5 suffer from the same problem, in that they rely
upon a mixture to meet the gram requirement in the charged statute.
{¶57} Keese’s third assignment of error is therefore sustained. The trial court
should have merged Counts 4 and 5, as the State concedes. We accordingly reverse
the trial court’s sentences with respect to Counts 4 and 5 and remand the cause for
resentencing as to those counts so that the State may choose which offense to pursue.
Ineffective Assistance of Counsel
{¶58} In his final assignment of error, Keese argues that his trial attorneys
represented him ineffectively in violation of his Sixth Amendment right to counsel. He
raises three issues to support his contention. First, Keese argues that his counsel was
ineffective in failing to object when the trial court sentenced him to multiple
punishments for the same offense. Second, he argues that his counsel was ineffective
in failing to argue that evidence unlawfully obtained from the November 17, 2021
search of Keese and his car should have been excised from the consideration of
whether probable cause supported the search warrant for Apartment 6 under the fruit-
of-the-poisonous-tree doctrine. Third, Keese argues that he received ineffective
assistance of counsel because his counsel failed to argue against the good-faith
exception to the exclusionary rule.
19 OHIO FIRST DISTRICT COURT OF APPEALS
{¶59} To succeed on a claim of ineffective assistance of counsel, Keese must
show that (1) trial counsel’s performance was deficient, and (2) the deficient
performance deprived him of a fair trial. State v. Akins, 2024-Ohio-1491, ¶ 45 (1st
Dist.). An appellant’s “failure to satisfy one prong of the Strickland test negates a
court's need to consider the other.” Id. “[T]o show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, were it not for counsel’s errors, the result of the
trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 143 (1989).
A. Sentencing
{¶60} Keese argues that his counsel was ineffective by failing to object to the
imposition of separate punishments on Counts 4 and 5. Our disposition of his third
assignment of error renders this issue moot, and we decline to address it.
B. Fruit of the Poisonous Tree
{¶61} Keese next argues that defense counsel was ineffective by not arguing
that parts of the search warrant affidavit derived from the search of Keese’s person
and car should have been excised as fruit of the poisonous tree. This argument relies
upon the assumption that police acted in violation of the Fourth Amendment in
stopping Keese at his car on November 17, 2021, and in searching him for weapons.
We have held with regard to Keese’s first assignment of error, however, that both
actions were constitutionally justified. As a result, Keese cannot demonstrate that his
counsel acted deficiently in failing to advance a nonmeritorious argument. See, e.g.,
State v. C.W., 2018-Ohio-1479, ¶ 53 (10th Dist.) (“The failure to raise nonmeritorious
objections is not deficient performance.”). Nor can he demonstrate that he was
prejudiced, given that the outcome of his case would not have been different had his
20 OHIO FIRST DISTRICT COURT OF APPEALS
attorney argued the fruit-of-the-poisonous-tree doctrine. We accordingly reject this
portion of Keese’s argument.
C. Exclusionary Rule
{¶62} Keese’s final argument is that defense counsel was ineffective for failing
to anticipate and argue against the good-faith exception to the exclusionary rule. This
argument fails, as we have concluded that the warrant was supported by probable
cause. Keese’s counsel did not perform deficiently by failing to raise a nonmeritorious
argument. See id. at ¶ 53.
{¶63} We overrule Keese’s fourth assignment of error.
Conclusion
{¶64} For the forgoing reasons, we reverse the sentence of the trial court as to
Counts 4 and 5 and remand the cause for the limited purpose of resentencing Keese
on those counts so that the State may choose which count to pursue. We affirm the
judgment of the trial court as to the remaining assignments of error raised by Keese in
this appeal.
Judgment affirmed in part, reversed in part, and cause remanded.
CROUSE, P.J., and WINKLER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.