[Cite as State v. Warren, 2019-Ohio-2927.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : MATTHEW WARREN : Case No. 18-CA-42 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2017 CR 00798
JUDGMENT: Affirmed in part, reversed and remanded in part
DATE OF JUDGMENT: July 17, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT JAMES A. ANZELMO Fairfield County Prosecutor 446 Howland Drive Gahanna, Ohio 43230 By: CHRISTOPHER A. REAMER Assistant Prosecuting Attorney 239 West Main Street, Suite 101 Lancaster, Ohio 43130 Fairfield County, Case No. 18-CA-42 2
Baldwin, J.
{¶1} Defendant-appellant Matthew Warren appeals his conviction and sentence
from the Fairfield County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 14, 2017, Detective Alex Sinewe of the Lancaster Police
Department was dispatched to an address in Fairfield County to respond to a call that an
unresponsive male named Matt had overdosed. When he arrived at the scene at around
5:00 p.m., he entered a home and found appellant in a chair unconscious “with a female
standing over top of him slapping his face and chest telling him to wake up.” Trial
transcript at 57-58. The Detective called for the medics. He testified that he did not see
any kind of drug paraphernalia in the house.
{¶3} While Detective Sinewe was in the house, the medics administered Narcan
to appellant who continued fading in and out of consciousness. The Detective discovered
that appellant had an outstanding warrant for his arrest and testified that he intended to
place appellant under arrest after appellant received medical treatment at the hospital.
Prior to the ambulance leaving to take appellant to the hospital, Detective Sinewe
checked appellant’s pockets and waistband “and anywhere where that (sic) he would
possibly be able to conceal something.” Trial Transcript at 66. He testified that he found
“a small purple screw top container which we found contained a couple of unknown
powders and white pills” along with car keys and other items. Trial Transcript at 68. The
powder was in two baggies. At the time of the search, appellant was not conscious.
{¶4} There was testimony at trial that when appellant was in a state of
consciousness, he told the medics that he had taken Heroin and Xanax. Appellant was Fairfield County, Case No. 18-CA-42 3
strapped in a gurney in the ambulance which was pursuant to standard medical protocol
to ensure appellant’s safety. While in the ambulance, appellant got out of the restraints
and attempted to run. Appellant scuffled with the medics and it took three people to get
appellant under control. One of the medics, Ruth Shahan, yelled to appellant that he was
trying to run because he knew that the police were behind the ambulance. Appellant had
indicated that he did not know that he had an outstanding warrant for his arrest. Appellant
was then transported to the hospital.
{¶5} At trial, Keith Taggart, a forensic scientist testified that he tested the items
found in appellant’s pockets and that one of the items, an off-white powder weighing less
than 09.1 grams, was found to contain fentanyl and carfentanil. He further testified that
the other plastic baggie contained gabapentin, which is not a controlled substance. When
asked if he was able to distinguish how much fentanyl and how much carfentanil was
located in the one baggie, Taggart testified that their laboratory “does not quantitate how
much substance is present.” Trial transcript at 131. He testified that he did not know
whether carfentanil is an analog to fentanyl. On redirect, he testified that the two are
identified as separate and distinct Schedule II narcotics.
{¶6} Tyson Nye, a firefighter/paramedic, testified that appellant admitted to using
heroin. He testified that when they got appellant out of the house, police informed them
that appellant had an outstanding warrant for his arrest and that no one communicated
that to appellant. Nye testified that he opened the back of the ambulance and was
charged by appellant who hit Nye and almost knocked him backwards onto the pavement
below. Nye testified that he could have been killed if he had hit his head on the pavement.
There also was testimony that William Gibson, a firefighter, had a cut on his left elbow Fairfield County, Case No. 18-CA-42 4
and Ruth Shahan suffered leg and hand injuries due to appellant’s continued struggle
inside the ambulance. Gibson testified that he never informed appellant that there was
an outstanding warrant and the he did not hear anyone convey that information to
appellant. Photographs of the injuries were admitted at trial.
{¶7} On December 7, 2017, appellant was indicted on two counts of aggravated
possession of drugs in violation of R.C. 2925.11(A) AND (C)(1)(a), felonies of the fifth
degree, and one count of selling, purchasing, distributing or delivering dangerous drugs
in violation of R.C. 4729.51(EW)(1)(c) and 4729.99, a misdemeanor of the first degree.
At his arraignment on December 15, 2017, appellant entered a plea of not guilty to the
charges. Appellant was appointed counsel at state expense. A superseding indictment
was filed on January 25, 2018 that added three counts of assault in violation of R.C.
2903.13(a) and (C)(5), felonies of the fourth degree.
{¶8} On February 2, 2018, appellant filed a Motion to Suppress the drugs found
in his pocket, arguing that they were found during an unconstitutional search. At his
arraignment on February 5, 2018, appellant entered a plea of not guilty to the charges
contained in the superseding indictment.
{¶9} Following a hearing held on February 28, 2018, the trial court denied
appellant’s Motion to Suppress. The trial court, in its April 26, 2018 Entry, found that
Detective Sinewe’s search of appellant’s person was justified by probable cause and
made incident to a valid arrest.
{¶10} Thereafter, a jury trial commenced on July 24, 2018. The jury found
appellant guilty of the drug charges and guilty of assaulting Tyson Nye and Ruth Shahan,
but not guilty of assaulting William Gibson. Fairfield County, Case No. 18-CA-42 5
{¶11} As memorialized in a Judgment Entry filed on August 10, 2018, appellant
was sentenced to an aggregate prison sentence of four (4) years and seven (7) months.
The trial court also ordered appellant to pay fines in the total amount of $6,450.00, but
suspended the fines, and ordered appellant to pay court costs.
{¶12} Appellant now raises the following assignments of error on appeal:
{¶13} “I. THE TRIAL COURT ERRED BY DENYING WARREN’S MOTION TO
SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14,
ARTICLE I OF THE OHIO CONSTITUTION.”
{¶14} “II. THE TRIAL COURT ERRED BY NOT HOLDING A TRIAL ON THE
ASSAULT CHARGES SEPARATE FROM THE DRUG POSSESSION CHARGES, IN
VIOLATION OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶15} “III. MATTHEW WARREN’S CONVICTIONS FOR AGGRAVATED DRUG
POSSESSION AND ASSAULT ARE BASED ON INSUFFICIENT EVIDENCE, IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16,
{¶16} “IV. MATTHEW WARREN’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED Fairfield County, Case No. 18-CA-42 6
STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO
CONSTITUTION.”
{¶17} “V. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE WARREN’S
AGGRAVATED DRUG POSSESSION OFFENSES, IN VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES
{¶18} “VI. WARREN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I
{¶19} Appellant, in his first assignment of error, argues that the trial court erred in
denying his Motion to Suppress.
{¶20} Appellate review of a trial court's decision to grant or deny a motion to
suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328,
713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 1996-Ohio-134, 661
N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they
are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State Fairfield County, Case No. 18-CA-42 7
v. Williams, 86 Ohio App.3d 37,42, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other
grounds.
{¶21} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. State v. Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court's conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 620 N.E.2d 906 (8th Dist. 1994).
{¶22} Appellant specifically contends that the trial court erred in concluding that
the Detective had reasonable suspicion of appellant’s criminal activity and in concluding
that the search was incident to an arrest.
{¶23} At the suppression hearing, Detective Alex Sinewe testified that he was
familiar with appellant because he had had a “couple of dealings with [appellant] on
different types of calls, suspicious person type calls.” Transcript of Suppression hearing
at 22. He tested that he was on a SWAT team that had dealings with appellant when they
raided a house for drug trafficking. The house was a known drug residence according Fairfield County, Case No. 18-CA-42 8
to the Detective. The Detective further testified that it was normal routine to check any
individual who was overdosing for any outstanding warrants through dispatch and that
such an individual would have medical treatment prior to be arrested. Detective Sinewe
further testified that when they were transporting an individual who was overdosing in an
ambulance, there were safety concerns because drugs and weapons typically went hand
in hand and that it was standard procedure to check any individual for weapons or other
items that could cause injury to the EMT’s.
{¶24} During the suppression hearing, Detective Sinewe testified that the house
where appellant was located was known to law enforcement as a drug house where
trafficking occurred. Appellant’s girlfriend, who was in the house, was a known drug user.
Detective Sinewe testified that he believed that appellant stated that he had taken heroin
and that he ran appellant for outstanding warrants and learned that appellant had an
outstanding warrant for his arrest. He testified that appellant was going to be arrested
after he received medical treatment and that another individual in the house approached
him and told him that appellant had drugs in his pocket.
{¶25} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibits the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio , 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d
1271 (1991). [A] full search of the person incident to a lawful custodial arrest is not only
an exception to the warrant requirement of the Fourth Amendment but is also a
‘reasonable’ search under that amendment.” State v. Mathews, 46 Ohio St.2d 72, 74, 346
N.E.2d 151 (1976), citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 Fairfield County, Case No. 18-CA-42 9
L.E.2d 427 (1973). Moreover, “[w]here the police officer has probable cause to arrest
independent of the items obtained in the search, but does not arrest until shortly after the
search, the search is not offensive to the Fourth Amendment to the United States
Constitution.” State v. Bing, 134 Ohio App.3d 444, 447–48, 731 N.E.2d 266 (9th
Dist.1999), citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d
633, 645-646 (1980).
{¶26} In order to justify a search as one incident to arrest, there must be probable
cause to arrest. State v. Robinson, 9th Dist. Wayne No. 10CA0022, 2012-Ohio-2428.
The test for probable cause to arrest without a warrant is whether “the facts and
circumstances known to the officer warrant a prudent man in believing the offense has
been committed.” State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009–Ohio–6179,
¶ 73, quoting Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134
(1959).
{¶27} In the case sub judice, Detective Sinewe searched appellant’s person
before he was arrested. While appellant was unconscious at the time:
A search of one found in an unconscious condition is both legally
permissible and highly necessary. There is a positive need to see if the
person is carrying some indication of a medical history, the rapid discovery
of which may save his life; there is also a need to identify persons so found
in order to notify relatives or friends. That the cause of appellant's being
unconscious was not known in no way impaired but rather enhanced the
need and inherent power to search appellant. Fairfield County, Case No. 18-CA-42 10
State v. Paidousis, 10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1, 2001) at
4, citing to Vauss v. United States, 370 F.2d 250 (C.A.D.C.1966).
{¶28} In the case sub judice, there was testimony at the suppression hearing that
Detective Sinew knew that appellant had an outstanding warrant for his arrest and that
appellant was going to be taken into custody after receiving medical treatment. The
Detective had probable cause to arrest appellant before searching him based on the
outstanding warrant, the fact that appellant was a known drug user in a known drug house
and was overdosing. Moreover, Sinewe overheard appellant admit to using heroin and
Xanax and was told by another individual inside the house that appellant had drugs on
him. We concur with appellee that Detective Sinewe could have lawfully arrested
appellant for drug possession charges based on probable cause that appellant had just
ingested an illegal drug. While appellant’s need for medical treatment precluded the
Detective from arresting appellant at the time of the search, as is stated above, the search
and arrest need not be done simultaneously. As noted by the trial court, “it was not only
reasonable but in the best interests of [appellant’s] health to delay arrest.”
{¶29} Based on the foregoing, we find that the search was incident to an arrest
and that the trial court did not err in denying the Motion to Suppress.
{¶30} Appellant’s first assignment of error is, therefore, overruled.
II
{¶31} Appellant, in his second assignment of error, contends that the trial court
erred in not holding a trial on the assault charges separate from the drug possession
charges. Fairfield County, Case No. 18-CA-42 11
{¶32} In general, the law favors joining multiple offenses in a single trial if the
offenses charged “are of the same or similar character.” State v. Lott, 51 Ohio St.3d 160,
163, 555 N.E.2d 293 (1990), citing State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288
(1981). Crim.R. 8(A), regarding joining offenses, provides that two or more offenses may
be charged in the same indictment if they “are of the same or similar character, or are
based on the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of a
course of criminal conduct.” Crim.R. 13 also permits a court to “order two or more
indictments * * * to be tried together, if the offenses * * * could have been joined in a single
indictment[.]” Consequently, joinder is appropriate where the evidence is interlocking and
the jury is capable of segregating the proof required for each offense. State v. Czajka,
101 Ohio App.3d 564, 577-578, 656 N.E.2d 9 (8th Dist.1995).
{¶33} Appellant argues that severance was warranted in his case because none
of the conditions for joinder under Crim.R. 8(A) apply. Appellant notes that the assault
charges and drug possession charges are completely independent and unrelated.
{¶34} Where it appears that the defendant will be prejudiced by joinder of
offenses, the court may grant a separate trial of the counts. Crim.R. 14. Appellant
however, concedes that he failed to move to sever. Appellant, therefore, has waived any
error in the joinder of the offenses. State v. Knight, 20 Ohio App.3d. 289, 291, 485 N.E.2d
1064 (8th Dist. 1984).
{¶35} Moreover, appellant could not prevail on this issue had it been properly
preserved. To prevail on a claim to sever counts, the defendant has the burden of
demonstrating: 1) his rights were actually prejudiced; 2) at the time of the motion to sever, Fairfield County, Case No. 18-CA-42 12
the defendant provided the trial court with sufficient information so it could weigh the
considerations favoring joinder against the potential prejudice to the defendant's right to
a fair trial; and 3) given the information provided to the court, the court abused its
discretion in refusing to sever the charges. and Drew v. United States, 331 State v.
Schaim, 65 Ohio St.3d 51, 59, 1992-Ohio-31, 600 N.E.2d 661.
{¶36} An accused is not prejudiced by joinder when simple and direct evidence
exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B).
State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991).
{¶37} Appellant alleges that the trial court erred in not severing the charges
against him. However, the record demonstrates that the trial court did not abuse its
discretion where the offenses charged were connected and the evidence relating to each
of the charged crimes was simple and direct. Appellant, in his brief, notes that the drug
and possession charges were distinct.
{¶38} Appellant’s second assignment of error is, therefore, overruled.
III, IV
{¶39} Appellant, in his third assignment of error, maintains that his convictions for
aggravated drug possession and assault were based on insufficient evidence while, in his
fourth assignment of error, he argues that his convictions were against the manifest
weight of the evidence.
{¶40} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d Fairfield County, Case No. 18-CA-42 13
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held as follows: “An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶41} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387,
678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶42} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.
{¶43} Appellant, with respect to his convictions for aggravated possession of
fentanyl and carfentanil, argues that there is insufficient evidence to support these Fairfield County, Case No. 18-CA-42 14
convictions because Taggart failed to conduct tests to determine whether the carfentanil
was in fact carfentanil and not fentanyl or to determine whether the fentanyl was, in fact,
fentanyl and not carfentanil. Appellant argues that these tests were needed since
carfentanil is an analog of fentanyl.
{¶44} Both fentanyl and carfentanil are recognized under Ohio law as separate
Schedule II controlled substances. R.C. 3719.41, Schedule II, (B)(6) & (9). In the case
sub judice, at the trial, Taggart testified that these two were separate and distinct
Schedule II narcotics and the jury was instructed that fentanyl and carfentanil were
separate substances under Ohio law.
{¶45} Appellant also maintains that his convictions are against the manifest weight
of the evidence. Appellant argues that the weight of the evidence fails to support his
convictions for aggravated possession of drugs because Keith Taggart failed to conduct
tests to determine whether the carfentanil was in fact carfentanil and not fentanyl and vice
versa and because Taggart was not credible because he had been previously disciplined
for not following protocol when conducting forensic testing and had been accused of
changing test results. Taggart was questioned by appellant’s counsel during cross-
examination about a 2017 disciplinary investigation that Taggart was involved in at the
Bureau of Criminal Identification and Investigation and testified that he was disciplined
as a result and had received a thirty day suspension without pay. Taggart further testified
that his cases during that time were re-analyzed and the findings concurred with his
original findings. He testified that he and his supervisors had put in place new procedures
to insure the accuracy of all later testing and that all testing done subsequent to his
discipline had been reviewed by a peer. Taggart testified that he had testified in other Fairfield County, Case No. 18-CA-42 15
Ohio courts after this procedural break was identified and that he was recognized as
competent to testify as to drug testing. Taggart testified that carfentanil and fentanyl were
separate and distinct Schedule II narcotics and that both were specifically and
independently identified. The jury, as trier of fact, was in the best position to assess his
credibility.
{¶46} With respect to his assault convictions, appellant argues that there was no
evidence that he acted knowingly to cause physical harm to the paramedics and that,
therefore, his convictions for assault are against the manifest weight and sufficiency of
the evidence.
{¶47} Appellant was charged and convicted of assault of a peace officer in
violation of R.C. 2903.13(A) and (C)(5) which state the following:
{¶48} No person shall knowingly cause or attempt to cause physical harm to
another or to another's unborn.
{¶49} (C)(5) If the victim of the offense is a peace officer or an investigator of the
bureau of criminal identification and investigation, a firefighter, or a person performing
emergency medical service, while in the performance of their official duties, assault is a
felony of the fourth degree.
{¶50} R.C. 2901.22(B) states as follows, “A person acts knowingly, regardless of
purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When knowledge of
the existence of a particular fact is an element of an offense, such knowledge is Fairfield County, Case No. 18-CA-42 16
established if a person subjectively believes that there is a high probability of its existence
and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.”
{¶51} Although appellant may not have had the specific intent to harm the
paramedics, there was testimony that he crashed into Tyson Nye and Ruth Shahan in an
attempt to escape from the ambulance and that he continued to fight and struggle even
after being ordered to stop. Nye testified that appellant plowed into him as he was holding
onto the ambulance and that they struggled for a number of seconds. Nye further testified
that he could have been killed if appellant had knocked him out and he hit his head on
the pavement. In turn, Ruth Shahan testified, in relevant part, as follows:
{¶52} Q: At some point in time after [appellant] makes contact with Mr. Nye at the
back door area, do they come forward towards you?
{¶53} A: Yes.
{¶54} Q: Tell us about that?
{¶55} A: They turned - - well, Matthew Warren [appellant] turned, started my
direction and at that point I’m in his way, don’t know - - I mean he’s just coming at me.
You don’t know - - I don’t know what’s going to happen. Is he going after me, is he going
to tackle me, is he going to do what. So – and Tyson saw this so Tyson at that point
grabbed a hold of him and within all of this, I got pushed down onto the bench seat. My
leg got pinned, and smashed is not a good word, but pinned up against enough that it
bruised my leg - - my knee as they were headed back towards the front of the truck to the
other door.
{¶56} Q: And so you are kind of pinned in or pushed somewhere up around the
area of this right side door? Fairfield County, Case No. 18-CA-42 17
{¶57} A: Towards that door, yes.
{¶58} Trial Transcript at 264-265. She suffered leg and hand injuries.
{¶59} We find, viewing the evidence in a light most favorable to the State, that
appellant's actions are sufficient to demonstrate that he knew that his actions would
“probably cause a certain result,” i.e., an injury to the paramedics. We note that appellant
was found not guilty of assaulting William Gibson, a firefighter/paramedic. Further,
testimony established that the two paramedics suffered injury. Accordingly, appellant's
challenge to the sufficiency of the evidence presented in support of his assault is
overruled.
{¶60} Based on the foregoing, we find that appellant’s convictions are not against
the manifest weight or sufficiency of the evidence. We find that, viewing the evidence in
a light most favorable to the prosecution, any rational tier of fact could have found
appellant committed the offenses of assault and drug possession and that the jury did not
lose its way in convicting appellant.
{¶61} Appellant’s third and fourth assignments of error are, therefore, overruled.
V
{¶62} Appellant, in his fifth assignment of error, asserts that the trial court erred in
failing to merge appellant’s two aggravated drug possession offenses.
{¶63} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The Court held in
State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860: Fairfield County, Case No. 18-CA-42 18
An accused's failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error, and a forfeited error is not
reversible error unless it affected the outcome of the proceeding and
reversal is necessary to correct a manifest miscarriage of justice.
Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus; absent
that showing, the accused cannot demonstrate that the trial court's failure
to inquire whether the convictions merge for purposes of sentencing was
plain error.
{¶64} 2015–Ohio–2459, ¶ 3, 143 Ohio St.3d 385. The Court in Rogers reaffirmed
that even if an accused shows the trial court committed plain error affecting the outcome
of the proceeding, the appellate court is not required to correct it. Id. at ¶ 23. The Supreme
Court stated:
{¶65} [W]e have “admonish[ed] courts to notice plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’ ” (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240, quoting
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶66} Rogers at ¶ 23.
{¶67} Because appellant did not raise the merger issue at trial, the plain-error
standard applies.
{¶68} R.C. 2941.25 governs multiple counts and states the following: Fairfield County, Case No. 18-CA-42 19
{¶69} (A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶70} (B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be convicted
of all of them.
{¶71} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
{¶72} 1. In determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the
conduct, the animus, and the import.
{¶73} 2. Two or more offenses of dissimilar import exist within the meaning of R.C.
2941.25(B) when the defendant's conduct constitutes offenses involving separate victims
or if the harm that results from each offense is separate and identifiable.
{¶74} 3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses
were committed separately, or (3) the conduct shows that the offenses were committed
with separate animus.
{¶75} The Ruff court explained at ¶ 26: Fairfield County, Case No. 18-CA-42 20
At its heart, the allied-offense analysis is dependent upon the facts
of a case because R.C. 2941.25 focuses on the defendant's conduct. The
evidence at trial or during a plea or sentencing hearing will reveal whether
the offenses have similar import. When a defendant's conduct victimizes
more than one person, the harm for each person is separate and distinct,
and therefore, the defendant can be convicted of multiple counts. Also, a
defendant's conduct that constitutes two or more offenses against a single
victim can support multiple convictions if the harm that results from each
offense is separate and identifiable from the harm of the other offense. We
therefore hold that two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct constitutes
offenses involving separate victims or if the harm that results from each
offense is separate and identifiable.
{¶76} In this case, appellant was convicted of possession of carfentanil and
fentanyl. It is elementary that “[t]he simultaneous possession of different types of
controlled substances can constitute multiple offenses under R.C. 2925.11.” State v.
Delfino, 22 Ohio St.3d 270, 490 N.E.2d 884 (1986), syllabus; e.g., State v. Rice, 5th Dist.
Licking No. 16-CA-87, 2017-Ohio-1504, 2017 WL 1436378, ¶ 12, quoting State v.
Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 25,
quoting Houston v. Erdos, S.D.Ohio No. 1:14–CV–956, 2016 WL 126896, *12 (Jan. 12,
2016) (citations omitted) (noting that Ohio courts have agreed the legislature clearly
intended possession of different drugs to constitute separate offenses, and thus, if Fairfield County, Case No. 18-CA-42 21
different drugs and different bulk amounts are involved, “[m]erger as allied offenses is
simply not correct * * *”).
{¶77} Thus, the trial court did not commit plain error in not merging appellant's
convictions for possession of carfentanil and fentanyl.
{¶78} Appellant’s fifth assignment of error is, therefore, overruled.
VI
{¶79} Appellant, in his sixth and final assignment of error, claims that he received
ineffective assistance of trial counsel.
{¶80} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio
adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective
assistance of counsel. First, we must determine whether counsel's assistance was
ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
client. If we find ineffective assistance of counsel, we must then determine whether or not
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id.
{¶81} Trial counsel is entitled to a strong presumption all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,
1998-Ohio-343, 693 N.E.2d 267. In addition, the United States Supreme Court and the Fairfield County, Case No. 18-CA-42 22
Ohio Supreme Court have held a reviewing court “need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies.” Bradley at 143, quoting Strickland at 697. Even
debatable trial tactics and strategies do not constitute ineffective assistance of counsel.
State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
{¶82} Appellant argues that his trial counsel was ineffective because trial counsel
failed to move for a waiver of fines and court costs and because trial counsel failed to
move for merger of the aggravated drug possession convictions.
{¶83} First, as to appellant's argument regarding merger, as previously discussed,
we found that the two aggravated drug possession convictions do not merge. Appellant
cannot, therefore, demonstrate prejudice.
{¶84} As to appellant's court costs argument, in State v. Harris, 5th Dist.
Muskingum No. CT2018-0005, 2018-Ohio-2257, ¶ 47, this court reviewed this exact issue
and determined the following:
We find no merit in Appellant's allegation that he received ineffective
assistance of counsel as a result of his attorney failing to request that the
trial court waive court costs. Because R.C. § 2947.23(C) grants Appellant
the ability to seek waiver of costs at any time, including after sentencing,
Appellant has not been prejudiced by the failure of his counsel to request a
waiver at sentencing.
{¶85} Finally, appellant argues that his trial counsel was ineffective in failing to
ask the trial court to waive fines due to indigency. We note that appellant filed an affidavit
of indigency on December 20, 2017. At the sentencing hearing, the trial court imposed Fairfield County, Case No. 18-CA-42 23
$6,450.00 in fines, but suspended the fines due to appellant’s indigency and stated that
it was going to give appellant time to pay the fines.
{¶86} R.C. 2929.18(A)(3) states, in relevant part, as follows:
{¶87} (3) Except as provided in division (B)(1), (3), or (4) of this section, a fine
payable by the offender to the state, to a political subdivision when appropriate for a
felony, or as described in division (B)(2) of this section to one or more law enforcement
agencies, in the following amount:
{¶88} (a) For a felony of the first degree, not more than twenty thousand dollars;
{¶89} (b) For a felony of the second degree, not more than fifteen thousand
dollars;
{¶90} (c) For a felony of the third degree, not more than ten thousand dollars;
{¶91} (d) For a felony of the fourth degree, not more than five thousand dollars;
{¶92} (e) For a felony of the fifth degree, not more than two thousand five hundred
dollars.
{¶93} In State v. Webb, 5th Dist. Richland No. 14–CA–85, 2015–Ohio–3318, 2015
WL 4899511, this Court held:
Further, Ohio law does not prohibit a court from imposing a fine on
an “indigent” defendant. That is, the filing of an affidavit of indigency does
not automatically entitle a defendant to a waiver of a mandatory fine. State
v. Knox, 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013-Ohio-1662, [2013
WL 1791391], ¶ 36. Under Ohio law, a trial court must impose a mandatory
fine unless (1) the offender files an affidavit of indigency prior to sentencing,
and (2) “the trial court finds that the offender is an indigent person and is Fairfield County, Case No. 18-CA-42 24
unable to pay the mandatory fines.” State v. Gipson, 80 Ohio St.3d 626,
634, 687 N.E.2d 750 (1998). In making its indigency determination, the
court must consider both the offender's present and future ability to pay the
fine. R.C. § 2929.19(B)(5).
Additionally, the trial court need not make an “affirmative finding that
an offender is able to pay a mandatory fine.” Id. at 635 [687 N.E.2d 750].
Instead, “the burden is upon the offender to affirmatively demonstrate that
he or she is indigent and is unable to pay the mandatory fine.” Id. We review
the trial court's decision to impose a fine on an indigent defendant for an
abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-
Ohio-3002, [2013 WL 3583030], ¶ 5.
5th Dist. Richland No. 14–CA–85, 2015–Ohio–3318, ¶ 23-¶ 24.
{¶94} R.C. § 2929.19(B)(5) reads,
{¶95} (B)(5) Before imposing a financial sanction under section 2929.18 of the
Revised Code or a fine under section 2929.32 of the Revised Code, the court shall
consider the offender's present and future ability to pay the amount of the sanction or fine.
{¶96} The Ohio Supreme Court, however, has held that even if an affidavit of
indigency is timely and properly filed, a defendant “is not automatically entitled to waiver
of that fine.” State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750.
There must be a showing that a defendant is unable to pay the fines, and there is no
affirmative duty on the trial court to make a finding that a defendant is able to pay. Id., see
syllabus. Fairfield County, Case No. 18-CA-42 25
{¶97} When a criminal defendant can show that his counsel's performance was
deficient and that the deficient performance was prejudicial to his case, there is
constitutional error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 693 (1984). Thus, even if the trial court did not err in imposing the fine,
we must consider whether counsel's failure to file an affidavit caused a prejudicial result.
A number of Ohio courts have recognized that failure to file an affidavit of indigency, under
the right circumstances, can constitute prejudicial error. E.g., State v. Mendoza, 6th Dist.
Lucas App. No. L-94-242, 1995 WL 413143, at 3 (July 14, 1995); State v. Joy, 4th Dit.
Lawrence App. Nos. 92 CA 24, 92 CA 30, 1993 WL 491325, at 3 (Nov. 24, 1993); State
v. Creech, 4th Dist. Scioto App. No. 92 CA 2053, 1993 WL 235566 at 6 (June 29, 1993).
{¶98} In State v. Sheffield, 2nd Dist. Montgomery App. No. 20029, 2004-Ohio-
3099, at ¶ 13, the court stated at paragraph 14:
The failure to file an affidavit of indigency prior to sentencing may
constitute ineffective assistance of counsel if the record shows a reasonable
probability that the trial court would have found Defendant indigent and
relieved him of the obligation to pay the fine had the affidavit been filed.
State v. Cochran (June 5, 1998), Clark App. No. 97CA50; State v. Stearns
(Oct. 9, 1997), Cuyahoga App. No. 71851; State v. Gilmer (April 26, 2002),
Ottawa App. No. OT-01-015, 2002-Ohio-2045; State v. McDowell (Sept. 30,
2003), Portage App. No.2001-P-0149, 2003-Ohio-5352; State v. Powell
(1992), 78 Ohio App.3d 784, 787, 605 N.E.2d 1337; State v. Williams
(1995), 105 Ohio App.3d 471, 482, 664 N.E.2d 576. Fairfield County, Case No. 18-CA-42 26
{¶99} In reviewing trial counsel's failure to file an affidavit of indigency, ineffective
assistance may be found if the record reveals a reasonable probability that the trial court
would have found the defendant indigent and unable to pay the fine. See State v.
Williams, 105 Ohio App.3d 471, 482, 664 N.E.2d 576 (8th Dist, 1995); State v. Stearns
(Oct. 9, 1997), Cuyahoga App. No. 71851, 1997 WL 626024 at 3 (Oct. 9, 1997). Because
information regarding an appellant's finances would most often lie outside the record on
direct appeal, the appropriate place to pursue this question will generally be in a hearing
for post-conviction relief under R.C. 2953.21. See State v. Booker, 63 Ohio App.3d 459,
466, 579 N.E.2d 264 (2nd Dist. 1989).
{¶100} We note that appellant was represented by appointed counsel. Thus,
there was necessarily a determination made that he was indigent under Chapter 120 of
the Revised Code. While we recognize that there is a difference between indigency for
the purposes of receiving appointed counsel and inability to pay a mandatory fine (See
Powell, 78 Ohio App.3d at 789, 605 N.E.2d 1337), we note that the affidavit that was filed
on December 20, 2017 indicated that appellant was unemployed, homeless and had no
income. While the presentence investigation report does not contain any information
about appellant’s medical or work history, it details appellant’s extensive criminal history.
{¶101} Based on these facts and circumstances, we conclude that a
reasonable probability exists that the trial court would have found Defendant indigent had
his trial counsel filed an affidavit of indigency prior to sentencing and the trial counsel was
ineffective in failing to move for waiver of the fines.
{¶102} Appellant’s sixth assignment of error is, therefore, sustained. Fairfield County, Case No. 18-CA-42 27
{¶103} Accordingly, the judgment of the Fairfield County Court of Common
Pleas is affirmed in part and reversed and remanded in part. This matter is remanded to
the trial court for a hearing in order to determine whether appellant is indigent for the
purpose of avoiding the mandatory fines imposed by statute.
By Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur