[Cite as State v. Lawrence, 2018-Ohio-3844.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2017-T-0107 - vs - :
MICHAEL A. LAWRENCE, JR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR 00656.
Judgment: Affirmed in part, reversed in part, and remanded.
Dennis Watkins, Trumbull County Prosecutor, Charles L. Morrow, Assistant Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Joseph J. Jacobs, Jr., The Jacobs Legal Group, 15614 Detroit Avenue, Lakewood, OH 44107 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Michael A. Lawrence, Jr., appeals his convictions following his
no contest plea to illegal cultivation of marijuana and possession of marijuana, third-
degree felonies. We affirm in part, reverse in part, and remand for resentencing.
{¶2} Lawrence raises four assignments of error: {¶3} “[1.] The trial court erred in denying defendant’s motion to suppress after
police made a warrantless entry into defendant’s home without consent based on a 911
hangup call from a cell phone whose location was mistaken by police using only GPS to
estimate its location.
{¶4} “[2.] The trial court erred in denying defendant’s motion for additional
hearing after the suppression hearing when defendant presented newly discovered
evidence from witnesses and the officer’s own dispatch records indicating that the officers
waited more than an hour to enter the home, instead of entering almost immediately as
the officer testified.
{¶5} “[3.] The trial court erred in failing to dismiss the case based on the
prejudicial delay of the state to indict and serve defendant when during that time the state
destroyed police dispatch records that were exculpatory and critical to defendant’s
defense.
{¶6} “[4.] The trial court erred in failing to merge the two offenses for purposes
of sentencing as agreed by the state and defendant.”
{¶7} Appellant’s first assignment urges reversible error based on the trial court’s
failure to grant his motion to suppress evidence found via the search of his home.
{¶8} The state’s sole witness at the suppression hearing was Officer David
Rankin. He explained that in August of 2015, Liberty Township police were dispatched
to Lawrence’s residence following a hang up 911 call during which dispatch heard a male
and female yelling.
{¶9} Upon arrival, Rankin knocked on the door, but did not hear anything. When
Lawrence answered his door, he looked “distraught, upset[, and h]is chest [was] going up
2 and down. [Rankin] could see that [Lawrence] had, like fresh scrapes on his hands and
looked like he had just engaged in an altercation. He was * * * wiping his hands off on
his jeans to get the sweat off. Visibly nervous.” Rankin asked Lawrence why he appeared
upset and what caused the scratches, but Lawrence did not have an answer for either.
{¶10} The officers asked to search the home after explaining that there was a 911
call that was indicative of domestic violence, but Lawrence declined. Rankin did not hear
the 911 call but was instead advised by his dispatcher that two people could be heard
fighting in the background of the call. The operator called the number back, but no one
answered. Rankin was told by dispatch that the call originated from Lawrence’s address.
Rankin recalls telling Lawrence that they needed to search his home to ensure that there
was no one injured or dead inside.
{¶11} Rankin’s sergeant canvassed the neighbors, who told him that a woman
lived in the home with Lawrence and that she drove a red Volvo. There was a red Volvo
in the garage, but Lawrence told the officers his girlfriend was working. After Lawrence
momentarily went inside to secure his dog, he locked the front door behind him. The
officers eventually contacted the fire department to break down the door, but before they
breached the door, Lawrence retrieved his spare key from the garage and let them in.
They did not find anyone inside but found a “moderately sized” marijuana grow operation.
{¶12} Rankin recalls Lawrence’s girlfriend showing up after they searched the
home, not before.
{¶13} Lawrence and his girlfriend, Kelly Bobersky, testified for the defense.
Lawrence recalls answering the door half asleep and denies being nervous or sweaty.
He described himself as disoriented. Lawrence recalls telling the officers that the
3 scratches on his hand were from working on his car a few days prior. Lawrence said that
Rankin told him that the 911 call sounded “very dire” and that a woman could be heard
screaming before the call ended. Lawrence advised the officers that the call could not
have come from his home because he does not have a landline.
{¶14} Lawrence produced his phone to the officers to show them that the call was
not made from his phone. He also called his girlfriend several times, who was working at
the time. When he finally reached her, he said he gave his phone to the officers to prove
that she was not inside his house, but this did not satisfy their request to enter. She
eventually came home to show the officers that she was okay.
{¶15} Lawrence testified that she came home and left again before officers
entered his home. He says he was not arrested at that point, but instead, was being
detained in the backseat of the police car. The officers told him that someone else could
still be inside and in need of assistance.
{¶16} He was arrested for obstruction of justice before he allowed the police to
enter his home, and explained that he only permitted them to enter to avoid a broken front
door. The obstruction charge against him was eventually dismissed.
{¶17} When Lawrence finally allowed the officers inside, they found marijuana in
plain view and he was arrested. He says this was several hours after they first arrived.
Lawrence eventually learned that the 911 call came from his neighbor’s cellular phone.
{¶18} Bobersky testified that Lawrence called her a little after 9 p.m. stating that
the police wanted to ask her a few questions. An officer got on the phone and asked her
to identify herself and if she was hurt. He also asked whether she was Lawrence’s
girlfriend. She was told that everything was fine and that she did not need to come home.
4 {¶19} Bobersky called him back a few times and when Lawrence finally answered,
he told her to come home. Upon her return, she recalls that Lawrence was in a police car
being held for obstruction of official business. The officers did not allow her to speak with
him and told her to leave. She recalls being home from approximately 10 to 10:30 p.m.
and states that her home had not yet been searched.
{¶20} The Fourth Amendment to the United States Constitution generally prohibits
warrantless searches and seizures. However, there are several exceptions to the rule,
including the “emergency-aid exception” or the “exigent-circumstance exception.” State
v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶13-15.
{¶21} “[I]n Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410
(2009), the [U.S. Supreme C]ourt upheld an officer’s warrantless entry into the
defendant’s residence as reasonable when the police officers who were responding to a
call regarding a disturbance observed a tumultuous situation when they arrived at the
home, including blood on a damaged vehicle parked in the driveway and witnesses
reporting that the defendant was ‘going crazy’ inside. * * * The Fisher court noted that
‘[o]fficers do not need ironclad proof of “a likely serious, life-threatening” injury to invoke
the emergency aid exception.’ * * * Rather, ‘[a]n action is “reasonable” under the Fourth
Amendment, regardless of the individual officer's state of mind, “as long as the
circumstances, viewed objectively, justify [the] action.”’ (Emphasis added in Stuart.)
Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006),
quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).
{¶22} “Because police officers are duty-bound to provide emergency services to
those who are in danger of physical harm, * * * courts must frequently consider the
5 reasonableness of an officer's actions in situations, such as the one at bar, where a
person's life is in jeopardy. In State v. Applegate, 68 Ohio St.3d 348, 626 N.E.2d 942
(1994), [the Ohio Supreme Court] upheld a warrantless entry into a residence by police
officers who, while responding to a report of domestic violence, heard sounds coming
from inside the residence indicative of violence. * * * [It] held that the warrantless entry
was certainly justified by the officers' reasonable belief that entering the residence was
necessary to investigate an emergency threatening life and limb. Id. at 349–350, 626
N.E.2d 942.” Id. at ¶19-20.
{¶23} Once an exception is applicable, “[a] warrantless search must be ‘strictly
circumscribed by the exigencies which justify its initiation.’ Terry v. Ohio (1968), 392 U.S.
1, 26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889, 908.” State v. Applegate, 68 Ohio St.3d 348,
350, 626 N.E.2d 942 (1994).
{¶24} Our standard of review is mixed. Id. We must accept the trial court’s
findings of fact as true if its findings are supported by competent, credible evidence
because “the evaluation of evidence and the credibility of witnesses are issues for the
trier of fact.” State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992), citing State
v. Fanning, 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583 (1982). Upon accepting
the trial court’s factual findings, we independently determine whether the applicable
standard has been satisfied as a matter of law. State v. Andrews, 177 Ohio App.3d 593,
2008-Ohio-3993, 895 N.E.2d 585, ¶16 (11th Dist.).
{¶25} Here, the testimony at the hearing shows that the officer’s warrantless entry
was objectively reasonable and justified based on their belief that a domestic violence
situation occurred in appellant’s home. When they arrived, Rankin described Lawrence
6 as nervous, sweaty, and described him as having fresh scratches on his hands. Officers
were also told that his girlfriend drove a red Volvo, which was parked in the garage, yet
Lawrence told them that she was working.
{¶26} Although Lawrence testified that he explained away the scrapes as a result
of working on his car and Lawrence’s girlfriend spoke to the officers in person and over
the phone to advise that there was no domestic violence situation and that she was safe,
their testimony does not eliminate the possibility that another individual could have called
for emergency assistance from Lawrence’s home.
{¶27} Lawrence directs our attention to the fact that the phone call originated from
a cell phone, not a land line associated with his residence. However, at this juncture the
officer believed the call originated from Lawrence’s home because he was acting on the
information relayed to him by dispatch. Rankin testified, “we received a radio dispatch
from Trumbull County 911 that it was a possible domestic at that address, an open line
911 call. It was a male and a female fighting in the background.” And upon Lawrence
answering the door, he looked like “he had just engaged in an altercation” and was
nervous and sweating. Rankin likewise recalls the girlfriend arriving at the home after
they searched the residence.
{¶28} The trial court found that the officers had an objective and reasonable basis
to believe that someone inside the home was at risk or in need of medical attention. It
discredited appellant’s testimony as not credible. Thus, because the trial court’s findings
are supported by competent, credible evidence we accept them as true.
{¶29} And in light of these facts, the officers’ search of Lawrence’s home upon
responding to a 911 call that came from his residence in which a woman could be heard
7 screaming is reasonable and consistent with the exigent circumstance exception to the
right to be free from unreasonable searches and seizures. Consequently, the officer’s
discovery of Lawrence’s marijuana plants in plain view found during their protective
sweep of the home was not improper.
{¶30} Lawrence’s first assigned error lacks merit and is overruled.
{¶31} Lawrence’s second assigned error contends the trial court abused its
discretion in denying his motion for a second suppression hearing.
{¶32} A trial court has discretion in deciding to reopen a suppression hearing,
which we review for an abuse of discretion. State v. Bangera, 11th Dist. Geauga No.
2015-G-0021, 2016-Ohio-4596, 70 N.E.3d 75, ¶72, appeal not allowed, 149 Ohio St.3d
1418, 2017-Ohio-4038, 75 N.E.3d 236, and cert. denied, 138 S.Ct. 672, 199 L.Ed.2d 535
(2018).
{¶33} An abuse of discretion connotes “judgment exercised by a court, which does
not comport with reason or the record.” State v. Underwood, 11th Dist. Lake No. 2008-
L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶30, citing State v. Ferranto, 112 Ohio St.
667, 676–678, 148 N.E. 362 (1925). When “‘the issue on review has been confined to
the discretion of the trial court, the mere fact that the reviewing court would have reached
a different result is not enough, without more, to find error.’ * * *.” Ivancic v. Enos, 11th
Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶70, quoting State v.
Beechler, 2d Dist. No. 09–CA–54, 2010-Ohio-1900, 2010 WL 1731784, ¶67.
{¶34} The suppression hearing was held June 2, 2017. Twenty days later,
Lawrence filed a combined motion to compel discovery and motion for an additional
suppression hearing. For cause, Lawrence asserted in part that the state’s responses to
8 discovery did not indicate the time the police entered his home and that “several
witnesses have been found that contradict the testimony of the officer at the suppression
hearing * * *.” Lawrence claims that his “new evidence” shows that there was a more
than two-hour lapse in time before the police searched his home and that this time was
more than sufficient to secure a warrant. Thus, he claims that the passage of this amount
of time does not support the application of the exigent circumstances exception.
{¶35} First, Lawrence alleges that he could have called his brother as a witness
at the suppression hearing, but he did not because Lawrence was unaware that the officer
was going to “lie” and testify that Lawrence’s home was searched before his girlfriend
arrived. And because she does not drive, Lawrence’s brother picked her up and drove
her to Lawrence’s home that night. He claims his brother would have testified that the
home was not yet searched by 10:30 p.m.
{¶36} Further, Lawrence identifies a neighbor woman, who he claims had
temporarily relocated, but who had recently returned to the area as the other witness who
would contradict Rankin’s testimony. Lawrence claims she was the person who actually
called 911. Lawrence contends this neighbor also would have testified that she witnessed
the police enter Lawrence’s home only after Bobersky returned home and then left again,
approximately one and one-half hours after the police initially arrived. Lawrence did not,
however, provide an affidavit by this individual in support.
{¶37} On July 13, 2017 and July 19, 2017, Lawrence filed the affidavit of Bobersky
and a photocopy of his brother’s affidavit in which both individuals state that the police
were not in Lawrence’s home at approximately 10:30 p.m. when they left the premises.
Bobersky also avers that no search of the house had taken place yet.
9 {¶38} However, and as the state points out, these affidavits are consistent with
Rankin’s testimony because he testified that the police first secured the inside of the home
before Bobersky arrived. Their statements are reconcilable with his testimony that the
protective sweep of the home was conducted before they arrived. Rankin describes
thereafter holding Lawrence and waiting for the search warrant to arrive, which did not
get delivered until 10 or 10:30 p.m. And because his brother and Bobersky were not
present for the protective sweep, they were not aware that it had occurred.
{¶39} The state explains that the officers did not actually obtain the warrant until
almost two hours after they arrived at the scene and at that juncture, the officers
conducted a thorough search after Lawrence’s brother and girlfriend left.
{¶40} Lawrence’s motion likewise alleges that the police “at all times” knew that
the 911 phone call was from a cellular phone, not a landline. However, there is nothing
in evidence supporting this allegation. Instead, during the time in question, Rankin was
told only that the call came from Lawrence’s home. There is no evidence to the contrary.
{¶41} The trial court did not specifically address or rule on Lawrence’s motion for
a supplemental suppression hearing before he entered his no contest plea in August of
2017. However, the foregoing exchange occurred at the July 24, 2017 pretrial regarding
his request for a supplemental hearing:
{¶42} “THE COURT: I think you had some other motions in there as well?
{¶43} “[DEFENSE COUNSEL]: * * * there’s also a motion to set a new hearing
but I will let those go and see what the Judge thinks of it once I file the brief.
{¶44} “* * *
10 {¶45} “THE COURT: And the other issue for a different hearing, I will wait and
see what your brief says –
{¶46} “* * *
{¶47} “THE COURT: -- because, frankly, keep in mind that * * * the credibility at
a preliminary hearing is with the Court and certain things that [Lawrence] testified to. I’ve
been around the block * * *, it does not seem very credible to me.”
{¶48} When the court issued its decision overruling his motion to suppress it did
not reference his request for a supplemental hearing. The trial court likewise did not
mention his request for a supplemental hearing upon announcing its intention to overrule
the motion to suppress at the final pretrial, yet Lawrence subsequently pleaded no contest
knowing his motion for a supplemental hearing remained pending. Thus, Lawrence
invited this alleged error, and under the invited-error doctrine, an appellant is not entitled
to take advantage of an error that he induced the trial court to make. State v. Neyland,
139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶243. Notwithstanding, consistent
with Rankin’s testimony, the trial court specifically finds in its decision that the initial
search occurred before 10 p.m. Thus, it functionally negated the need for a hearing as
Lawrence’s witnesses had no knowledge of the initial search of the home.
{¶49} Accordingly, Lawrence’s second assigned error lacks merit.
{¶50} Lawrence’s third assigned error asserts the trial court erred in failing to
dismiss the charges against him in light of the prejudicial delay in his indictment.
{¶51} Lawrence moved to dismiss the charges arguing the state violated his right
to due process based on its delay in serving the indictment and that he was denied access
to exculpatory dispatch recordings as a result of the delay.
11 {¶52} Lawrence’s claim that he was not served with the secret indictment for more
than a year is unchallenged. Further, that the dispatch recordings were purged is likewise
undisputed. However, the state opposed the motion to dismiss explaining that it brought
the charges as soon as feasible based on a delay and backlog in the drug analysis. It
also claimed that although the actual dispatch recordings no longer exist, Lawrence was
provided copies of the written dispatch call summary reflecting the times and substance
of each communication.
{¶53} The Due Process Clause affords an accused a meaningful opportunity to
present a complete defense, including the preservation of and access to exculpatory
evidence. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413
(1984). As alleged, the Due Process Clause protects a criminal defendant from being
convicted where the state fails to preserve materially exculpatory evidence. Id.
{¶54} “An unjustifiable delay between the commission of an offense and a
defendant's indictment * * * which results in actual prejudice to the defendant, is a violation
of the right to due process of law * * *.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d
1097 (1984), paragraph two of the syllabus; State v. Whiting, 84 Ohio St.3d 215, 217, 702
N.E.2d 1199 (1998).
{¶55} Courts employ a two-prong test to determine whether an indictment should
be dismissed due to pre-indictment delay. Luck at 157-158. First, a defendant “must
* * * establish his defense suffered actual prejudice due to the delay in indictment. * * * If
the defendant produces evidence of actual prejudice, the burden then shifts to the state
to establish a justifiable basis for the delay.” State v. Drummond, 11th Dist. Ashtabula
No. 2013-A-0055, 2015-Ohio-939, 31 N.E.3d 1216, ¶30-32, citing Luck.
12 {¶56} We review constitutional questions de novo because they are questions of
law. State v. Burgette, 4th Dist. Athens No. 13CA50, 2014-Ohio-3483, ¶10; Krusling v.
Ohio Bd. of Pharmacy, 12th Dist. Clermont No. CA2012-03-023, 2012-Ohio-5356, 981
N.E.2d 320, ¶9.
{¶57} As for the first prong, actual prejudice, Lawrence states that the dispatch
recordings were exculpatory because they would have proven that the police waited more
than an hour before entering his home, and as such, he was prejudiced as a result of the
delay. We disagree. As pointed out by the state, Lawrence had access to the dispatch
summary, which documents the time and substance of each police interaction with
dispatch.
{¶58} The state produced the written dispatch summary to Lawrence in discovery.
The summary reveals in part that the initial 911 call occurred at 20:43:33 or 8:43 p.m.
Thereafter at 21:50:44 or 9:50 p.m., the log reflects: “914 advised residence was
checked. There is no female inside of the residence.” Thus, one hour, seven minutes,
and eleven seconds passed between the hang up call to 911 and the conclusion of the
initial protective sweep of the premises. This is consistent with Rankin’s testimony that
they first entered the residence before Bobersky and Lawrence’s brother arrived.
{¶59} Because we find no prejudicial effect, the burden does not shift to the state
to establish a justifiable basis for the delay, and we need not address this issue.
{¶60} Accordingly, Lawrence’s third assigned error is lacks merit.
{¶61} His fourth and final assigned error asserts that the trial court erred in failing
to merge his convictions for sentencing purposes consistent with his agreement with the
13 state. He likewise argues that merger was required as a matter of law. The state
concedes error and agrees that resentencing is warranted.
{¶62} First Lawrence claims that the state agreed to a merger of his sentences if
he pleaded guilty to both illegal cultivation of marijuana and possession of marijuana.
{¶63} However, he ultimately pleaded no contest. Further, Lawrence’s written no
contest plea agreement does not mention an agreed merger and in fact, states that no
promises were made to obtain his plea of no contest. The plea hearing reflects that once
the trial court recognized that Lawrence changed his plea from guilty to no contest, it
advised Lawrence that it would not abide by this merger agreement. In response,
Lawrence’s counsel stated that no agreement existed. He thereafter did not object to the
lack of merger at sentencing. Thus, he has waived all but plain error.
{¶64} “It is well-settled that the failure to object to the trial court's failure to merge
charges for sentencing waives all but plain error. State v. Elmore, 111 Ohio St.3d 515,
534, 2006-Ohio-6208. As a result, we shall review appellant's challenges for plain error.
A plain error is one which affects a party's substantial rights thereby affecting the outcome
of the proceedings. See, e.g., State v. Stanley, 11th Dist. No.2007-P-0104, 2008-Ohio-
3258, at ¶ 29.” State v. Town, 11th Dist. Trumbull No. 2007-T-0120, 2008-Ohio-6878,
¶45.
{¶65} Moreover, although the state may have agreed to dismiss one of the two
charges against Lawrence upon his pleading guilty, whether charges merge is a matter
of law and not subject to agreement, which we review de novo. State v. Fortner, 7th Dist.
No. 16 BE 0007, 2017-Ohio-4004, 82 N.E.3d 60, ¶7.
{¶66} R.C. 2941.25 states:
14 {¶67} “(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.
{¶68} “(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.”
{¶69} State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶31, sets
forth a three-part test under R.C. 2941.25 to determine whether a defendant can be
convicted of multiple offenses:
{¶70} “[W]hen determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must ask three questions when the
defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import
or significance? (2) Were they committed separately? and (3) Were they committed with
separate animus or motivation?” Accord State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-
5488, 73 N.E.3d 414, ¶128, reconsideration denied, 147 Ohio St.3d 1439, 2016-Ohio-
7677, 63 N.E.3d 157, and cert. denied, 137 S.Ct. 1586, 197 L.Ed.2d 714.
{¶71} “If any of these three factors is true, the offenses are not subject to merger
pursuant to R.C. 2941.25. Ruff at ¶25.” (Emphasis sic.) State v. Armstead-Williams,
11th Dist. Portage No. 2016-P-0007, 2017-Ohio-5643, ¶29, appeal not allowed, 152 Ohio
St.3d 1407, 2018-Ohio-723, 92 N.E.3d 879.
15 {¶72} Lawrence was charged with two, third-degree felonies: illegal cultivation of
marijuana, in an amount in excess of one-thousand grams but less than five-thousand
grams, in violation of R.C. 2925.043(A)&(C)(1) & (5)(d), and possession of marijuana, in
an amount in excess of one-thousand grams but less than five-thousand grams, in
violation of R.C. 2925.11(A)&(C)(3)(d). He was convicted and sentenced for both
offenses, including 30 days in jail total, a $5,000 mandatory fine for each offense, and
upon a violation of community control, 36 months in prison on each count.
{¶73} As for the factual basis for the offenses, the prosecutor stated at sentencing,
{¶74} “the State would have proven beyond a reasonable doubt that on or about
the 28th day of August, 2015, * * * police officers were dispatched * * * because of a
domestic violence call. Officers arrived at the location and upon a search of the home
they found a marijuana grow with marijuana. The drugs were sent to BCI & * * * found to
be marijuana in excess of 1,000 grams.”
{¶75} The state concedes error and explains that the amount of marijuana in
Lawrence’s possession supports a finding of guilt on both offenses. However, the same
marijuana is used to support both findings and none of the Ruff findings are “true.”
Accordingly, merger is required under R.C. 2941.25(A). Lawrence’s fourth assigned error
has merit.
{¶76} The trial court’s decision is affirmed in part, reversed in part, and remanded
for resentencing.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents.