[Cite as State v. Woodard, 2017-Ohio-6941.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-09-084
: OPINION - vs - 7/24/2017 :
JERRELL R. WOODARD, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 16 CR 31842
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for defendant- appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Jerrell R. Woodard, appeals from his conviction and
sentence in the Warren County Court of Common Pleas for possession of heroin and
aggravated possession of drugs.
{¶ 2} Appellant was indicted on one count of possession of heroin in violation R.C.
2925.11(A) and one count of aggravated possession of drugs in violation of R.C. 2925.11(A), Warren CA2016-09-084
both felonies of the fifth degree. The charges arose out of an incident that occurred at the
Lebanon Correctional Institution ("LCI") on September 30, 2015, when a corrections officer
observed appellant, an inmate, hand over a baggie of drugs to Deron Partee, another inmate.
The baggie contained heroin, a schedule I drug, and fentanyl, a schedule II drug.
{¶ 3} Appellant pled not guilty to the charges and a jury trial commenced on
September 15, 2016. At this time, the state presented testimony from Joshua Murray and
Dion Isome, two corrections officers at LCI, Jason T. Hall, an investigator at LCI, and Ohio
State Highway Patrol Trooper Joe Griffith. The state also introduced into evidence security
footage of the prison's gymnasium and hallway, the recovered baggie of drugs, photographs
of the baggie, and a laboratory report identifying the drugs as heroin and fentanyl.1
{¶ 4} Murray testified that at approximately 7:45 p.m. on September 30, 2015, he was
working in the recreation area of LCI. He observed appellant exit the prison's gymnasium
and enter a breezeway that separated the gymnasium from a hallway. Murray saw appellant
reach into his pocket before he made contact and handed over an item to Partee in the
breezeway. Murry was about six feet away from appellant and Partee when he observed the
hand-to-hand exchange. Murray had noticed that Partee's hands had been empty prior to
appellant making contact with Partee.
{¶ 5} After he observed the exchange, Murray kept a visual on the item in the hand of
Partee. Murray followed Partee into the hallway, stopped him, and tried to retrieve the item.
Partee, however, put the item from his hand into his mouth. Murray instructed Partee not to
swallow the item. Partee threw his elbow at Murray's face, and Murray took Partee to the
ground. Partee was eventually restrained and the item he had briefly placed in his mouth
was recovered by Corrections Officer Isome.
1. The parties stipulated that the drugs contained in the baggie were heroin and fentanyl and agreed that the lab report would be admitted into evidence. -2- Warren CA2016-09-084
{¶ 6} After Partee was restrained, Murray approached appellant and asked him what
he had given to Partee during the exchange. Appellant initially denied handing anything to
Partee, but eventually stated he handed over "just a little weed." Murray stated the baggie
recovered from Partee was examined and tested. The baggie contained an off-white
powdery substance that tested positive for heroin and fentanyl. Murray also explained that
while there are cameras in the gymnasium and hallway at the prison, there is not a camera in
the breezeway where the exchange occurred.
{¶ 7} Isome testified that when he responded to the recreational area on September
30, 2015, he saw multiple officers wresting with Partee on the ground. Partee appeared to
be trying to cover up a plastic bag. Isome collected the plastic bag, which had blood and
saliva on it.
{¶ 8} Hall and Griffith testified about their investigation into the incident, explaining
that they had viewed available security footage and had the contents of the recovered baggie
tested. Testing by the Highway Patrol Crime Lab indicated the baggie contained heroin and
fentanyl.
{¶ 9} Following the state's presentation of its case-in-chief, appellant moved for
acquittal pursuant to Crim.R. 29. His motion was denied by the trial court. Thereafter,
appellant presented testimony from Partee. Partee testified that he was incarcerated at LCI
for aggravated assault and having weapons while under disability. He claimed that he met
appellant in jail and that they "got along." He denied that appellant gave him anything on
September 30, 2015, when the two shook hands. He stated that at the time he shook hands
with appellant, he was already in possession of the baggie full of drugs. Partee claimed to
have found the baggie earlier in the day in the prison's workout area. Partee stated that after
finding the baggie, he held it in his hand so that if he got caught he could quickly "eat" the
baggie. -3- Warren CA2016-09-084
{¶ 10} After Partee testified, appellant renewed his Crim.R. 29 motion for acquittal.
The trial court denied the motion, closing arguments were held, and the case was submitted
to the jury. The jury returned guilty verdicts on both counts. The trial court determined
appellant's conviction for possession of heroin and his conviction for aggravated possession
of drugs did not merge as allied offenses of similar import. The court sentenced appellant to
nine months in prison on each count, with the terms running concurrently to one another, but
consecutively to the prison term he was already serving.
{¶ 11} Appellant appealed, raising two assignments of error. For ease of discussion,
we begin by addressing appellant's second assignment of error.
Sufficiency and Manifest Weight
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN
APPELLANT'S CONVICTIONS FOR ONE COUNT OF POSSESSION OF HEROIN, ORC
2925.11(A), A FELONY OF THE FIFTH DEGREE, AND ONE COUNT OF AGGRAVATED
POSSESSION OF DRUGS, ORC 2925.11(A), A FELONY OF THE FIFTH DEGREE.
{¶ 14} In his second assignment of error, appellant contends that his convictions for
possession of heroin and aggravated possession of drugs were not supported by sufficient
evidence and were against the manifest weight of the evidence. Appellant further argues
that there was "confusing, prejudicial, and speculative material testimony given by the
[s]tate's witnesses" and that under a structural error analysis his convictions should be
reversed.
{¶ 15} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,
194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of -4- Warren CA2016-09-084
the evidence underlying a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.
CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he 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."
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 16} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing
the evidence, an appellate court must be mindful that the jury, as the original trier of fact, was
in the best position to judge the credibility of witnesses and determine the weight to be given
to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th
Dist.). Therefore, an appellate court will overturn a conviction due to the manifest weight of
the evidence "only in the exceptional case in which the evidence weighs heavily against the
conviction." Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶ 17} Further, although the legal concepts of sufficiency of the evidence and weight
of the evidence are quantitatively and qualitatively different, "[a] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of the -5- Warren CA2016-09-084
issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶
19. See also State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43 ("a
finding that a conviction is supported by the weight of the evidence must necessarily include
a finding of sufficiency").
{¶ 18} A defendant's convictions may be based on circumstantial evidence alone.
State v. Brown, 12th Dist. Butler No. CA2014-12-257, 2015-Ohio-3407, ¶ 12. "Circumstantial
evidence is proof of certain facts and circumstances in a given case, from which the jury may
infer other, connected facts, which usually and reasonably follow according to the common
experience of mankind." State v. Stringer, 12th Dist. Butler No. CA2012-04-095, 2013-Ohio-
988, ¶ 31. Circumstantial evidence inherently possesses the same probative value as direct
evidence, and a conviction based on circumstantial evidence is no less sound than one
based on direct evidence. Brown at ¶ 12.
{¶ 19} Appellant was convicted of possession of heroin and aggravated possession of
drugs. R.C. 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog." Pursuant to R.C. 2925.11(C)(6), "[i]f
the drug involved in the violation is heroin or a compound, mixture, preparation, or substance
containing heroin, whoever violates division (A) of this section is guilty of possession of
heroin." Where the "drug involved in the violation is a compound, mixture, preparation, or
substance included in schedule I or II, with the exception of marihuana, cocaine, L.S.D.,
heroin, hashish, and controlled substance analogs, whoever violates division (A) of this
section is guilty of aggravated possession of drugs." R.C. 2925.11(C)(1).
{¶ 20} Possession is defined as "having control over a thing or substance, but may
not be inferred solely from mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is found." R.C. 2925.01(K).
Possession may be actual or constructive. State v. Fultz, 12th Dist. Butler No. CA2015-06- -6- Warren CA2016-09-084
103, 2016-Ohio-1486, ¶ 12. Absent a defendant's admission, the surrounding facts and
circumstances, including a defendant's actions, are evidence that a trier of fact may consider
in determining whether the defendant had constructive possession. State v. Graves, 12th
Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 22. "The discovery of readily
accessible drugs in close proximity to the accused constitutes circumstantial evidence that
the accused was in constructive possession of the drugs." Fultz at ¶ 13.
{¶ 21} "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." R.C. 2901.22(B). Further, "[a] person has knowledge of circumstances when the
person is aware that such circumstances probably exist." Id.
{¶ 22} After reviewing the record, weighing inferences and examining the credibility of
the witness, we find that appellant's convictions for possession of heroin and aggravated
possession of drugs are supported by sufficient evidence and are not against the weight of
the evidence. The state presented testimony and evidence from which the jury could have
found all the essential elements of the offenses proven beyond a reasonable doubt.
{¶ 23} At trial, the state introduced circumstantial evidence that appellant possessed,
or had control over, the baggie of drugs given to Partee. Appellant was observed reaching
into his pocket immediately before making contact with Partee. Corrections Officer Murray
testified Partee's hands were empty before he came into contact with appellant. However,
after Partee and appellant made contact, Partee had an item in his hands. Murray kept a
visual on the item in Partee's hands until he was able to stop Partee to retrieve the item.
After the corrections officers obtained the item from a struggling and uncooperative Partee,
they discovered it was a plastic baggie containing an off-white powdery substance which
tested positive for heroin, a schedule I substance, and fentanyl, a schedule II substance.
Further, in addition to this evidence, appellant also admitted to Murray that he possessed the -7- Warren CA2016-09-084
baggie when he confessed to handing over "just a little weed" to Partee. Although appellant
mischaracterized the controlled substance he handed over to Partee, the fact remains
appellant knowingly possessed controlled substances in violation of R.C. 2925.11(A).
{¶ 24} In finding appellant guilty of possession of heroin and aggravated possession
of drugs, the jury was entitled to discredit Partee's testimony that he found the drugs and that
appellant had not given him the drugs when they shook hands. "[I]t is well-established that
when conflicting evidence is presented at trial, a conviction is not against the manifest weight
of the evidence simply because the trier of fact believed the prosecution testimony." State v.
Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. The jury, as the trier
of fact, was "free to believe all, part, or none of the testimony of each witness who appear[ed]
before it." State v. Coleman, 12th Dist. Butler No. CA2010-12-329, 2011-Ohio-4564, ¶ 26.
Accordingly, as the inclination of the greater amount of credible evidence clearly supports
appellant's convictions for possession of heroin and aggravated possession of drugs, we
conclude that appellant's convictions are not against the manifest weight of the evidence and
are supported by sufficient evidence.
{¶ 25} In concluding appellant's convictions are supported by sufficient evidence and
are not against the manifest weight of the evidence, we reject appellant's argument that the
trial court committed plain error or structural error in permitting the testimony given by the
state's witnesses. Appellant argues in his appellate brief that "[t]he confusing, prejudicial and
speculative material testimony given by State's witnesses requires a plain or structural error
analysis." Appellant does not, however, identify what specific testimony the trial court
allegedly improperly admitted.
{¶ 26} This court has thoroughly reviewed the record, and we find no error – plain or
structural – in the admission of the state's witnesses testimonies. The state's witnesses
either testified about events they personally observed on September 30, 2015, or the results -8- Warren CA2016-09-084
of their investigation into the events that occurred on September 30, 2015. Such testimony
was relevant and probative to the charges set forth in the indictment, and it was therefore
properly admitted.
{¶ 27} Accordingly, as the arguments set forth in appellant's second assignment of
error are without merit, we hereby overrule the assignment of error.
Allied Offenses
{¶ 28} Assignment of Error No. 1:
{¶ 29} THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE
CONVICTIONS AND PRISON SENTENCES FOR ONE COUNT OF POSSESSION OF
HEROIN, ORC 2925.11(A), A FELONY OF THE FIFTH DEGREE, AND ONE COUNT OF
AGGRAVATED POSSESSION OF DRUGS, ORC 2925.11(A), A FELONY OF THE FIFTH
DEGREE.
{¶ 30} In his first assignment of error, appellant argues the trial court erred by not
merging his convictions for possession of heroin and aggravated possession of drugs as
allied offenses of similar import. Appellant contends that because the heroin and fentanyl
were found in the same baggie, his possession offenses "were not dissimilar in import or
significance; were not committed separately; and were committed with the same animus and
motivation."
{¶ 31} An appellate court applies a de novo standard of review in reviewing a trial
court's merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28;
State v. Stevens, 12th Dist. Butler No. CA2015-09-020, 2017-Ohio-498, ¶ 9.
{¶ 32} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio
App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to -9- Warren CA2016-09-084
constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 33} In determining whether offenses are allied and should be merged for
sentencing, courts are instructed to consider three separate factors – the conduct, the
animus, and the import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of
the syllabus. Offenses do not merge and a defendant may be convicted and sentenced for
multiple offenses if any of the following are true: "(1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3)
the conduct shows that the offenses were committed with separate animus." Id. at paragraph
three of the syllabus and ¶ 25. Two or more offenses of dissimilar import exist "when the
defendant's conduct constitutes offenses involving separate victims or if the harm that results
from each offense is separate and identifiable." Id. at paragraph two of the syllabus.
{¶ 34} Despite appellant's arguments to the contrary, his convictions for possession
of heroin and aggravated possession of drugs are not allied offenses of similar import. This
court and many others have held that the simultaneous possession of two types of drugs
constitutes two separate offenses that do not merge as allied offenses of similar import under
R.C. 2925.11. See, e.g., State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-
Ohio-3936, ¶ 43-44 (finding defendant's convictions for trafficking in heroin and aggravated
trafficking in drugs did not merge); State v. Daniels, 12th Dist. Fayette No. CA2014-05-010,
2015-Ohio-1346, ¶ 16-17 (finding defendant's convictions for trafficking in heroin, trafficking
in cocaine, and trafficking in methadone did not merge as "[e]ach trafficking offense required
- 10 - Warren CA2016-09-084
proof specific to that drug and could not be supported by trafficking in a different controlled
substance"); State v. Helmick, 9th Dist. Summit No. 27179, 2014-Ohio-4187, ¶ 27 (finding
defendant's convictions for aggravated possession of drugs and possession of marijuana did
not merge as allied offenses); State v. Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-
1300, ¶ 12 (finding the "simultaneous possession of heroin and cocaine, each recognized as
a separate offense under R.C. 2925.11, does not constitute allied offenses of similar import
for sentencing"); State v. Heflin, 6th Dist. Lucas No. L-11-1173, 2012-Ohio-3988, ¶ 14
(finding defendant's possession of cocaine and possession of heroin did not merge as allied
offenses of similar import as "possession of either cocaine or heroin will never support a
conviction for possession of the other").
{¶ 35} Possession of heroin and aggravated possession of drugs are two separate
offenses pursuant to R.C. 2925.11(C)(6) and (C)(1). Each possession offense required proof
as to the specific drug involved and could not be supported by possession of a different
controlled substance. See Daniels at ¶ 17; State v. Delfino, 22 Ohio St.3d 270 (1986),
syllabus.2 The possession of heroin or fentanyl will never support a conviction for possession
of the other. The fact that the two controlled substances were found in the same baggie is of
no consequence. See Heflin at ¶ 9-14. Therefore, appellant's possession offenses are not
allied offenses of similar import. Appellant's first assignment of error is overruled.
Errors in Sentencing Entry – Nunc Pro Tunc Entry
{¶ 36} In reviewing the record in the present case, this court noticed clerical errors in
the trial court's September 16, 2016 Judgment Entry of Sentence. At appellant's September
2. The dissent argues that "one weight" is used to prove both offenses. Weight is not an element of either offense. The possession of any quantity of heroin is sufficient to prove possession of heroin in accordance with R.C. 2925.11(C)(6)(a). Likewise, the possession of any quantity of fentanyl is sufficient to prove aggravated possession of drugs in accordance with R.C. 2925.11(C)(1)(a). Here, a jury found that appellant knowingly possessed two separate controlled substances and, pursuant to the allied offense framework set forth in R.C. 2941.25, the offenses of possession of heroin and aggravated possession of drugs do not merge. - 11 - Warren CA2016-09-084
15, 2016 sentencing hearing, the trial court properly sentenced appellant to concurrent nine-
month prison terms on each possession conviction, and then ran this sentence consecutive
to the prison sentence appellant was already serving. The Judgment Entry of Sentence,
however, failed to separately state the prison sentence imposed on each possession count
and failed to specify that the counts were run concurrently to one another.3 Further, although
the trial court made the necessary R.C. 2929.14(C)(4) consecutive sentence findings at the
sentencing hearing, it failed to incorporate the findings into the sentencing entry. As the
court's errors are clerical in nature, the trial court may issue a nunc pro tunc entry to correct
its mistakes so that the sentencing entry accurately reflects what the court decided at the
sentencing hearing. See State v. Goodwin, 12th Dist. Butler No. CA2016-05-099, 2017-
Ohio-2712, ¶ 45-46; State v. Fridley, 12th Dist. Clermont No. CA2016-05-030, 2017-Ohio-
4368, ¶ 52.
{¶ 37} Judgment affirmed in part, reversed in part, and the matter remanded for the
limited purpose of issuing a nunc pro tunc sentencing entry.
S. POWELL, J., concurs.
RINGLAND, J., concurs in part and dissents in part.
RINGLAND, J., concurring in part and dissenting in part.
{¶ 38} I respectfully dissent from the majority opinion because, based on the facts of
this case, I believe appellant's convictions for possession of heroin and aggravated
possession of drugs should merge.
3. Rather than stating that a nine-month prison sentence had been imposed on count one and a nine-month prison term had been imposed on count two, to run concurrently to one another but consecutively to the time appellant was already serving in prison for another conviction, the court merely listed the offenses appellant had been convicted of and stated that appellant was "ordered * * * to be sentenced to 9 months consecutive to the time he is currently serving in prison." - 12 - Warren CA2016-09-084
{¶ 39} The Fifth Amendment to the United States Constitution provides that no
person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The
Double Jeopardy Clause applies to Ohio citizens through the Fourteenth Amendment.
Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056; Ohio Constitution, Article I, Section
10. The Clause is designed to protect against three abuses: (1) "a second prosecution for
the same offense after acquittal," (2) "a second prosecution for the same offense after
conviction," and (3) "multiple punishments for the same offense." State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, ¶ 10, citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072 (1969).
{¶ 40} The present case involves the third protection: multiple punishments for the
same offense. R.C. 2941.25 codifies the double jeopardy protections for when multiple
punishments can be imposed:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 41} The Ohio Supreme Court has interpreted this statute differently over the years.
The cases led to the formation of a two-part test to compare the elements of the offense and
the defendant's conduct and animus for each offense. Ruff at ¶ 15-16. That test was
subsequently altered to require an "abstract analysis" of the offenses. State v. Rance, 85
Ohio St.3d 632, 638-639 (1999).
{¶ 42} The Supreme Court overruled the abstract analysis test in State v. Johnson,
128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44. In so doing, the court adopted a new test, which - 13 - Warren CA2016-09-084
instructs courts to consider the offenses at issue in light of the defendant's conduct. Id. at ¶
46. The Supreme Court later found that the analysis in Johnson was incomplete and formed
the current test for allied offenses. Ruff at ¶ 16. As a result, the current law states that if any
of the following occurs, a defendant may be convicted and sentenced for multiple offenses:
"(1) the offenses are dissimilar in import or significance – in other words, each offense
caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the
offenses were committed with separate animus or motivation." Id. at ¶ 25.
{¶ 43} In the present case, appellant handed over a single bag of drugs to Deron
Partee. The bag contained a mixture of heroin, a schedule I drug, and fentanyl, a schedule II
drug. The possession of either drug may constitute a criminal offense. Appellant was tried
and convicted on one count of possession of heroin and one count of aggravated possession
of drugs related to the fentanyl. The trial court found that the convictions did not merge and
the majority opinion affirms that decision. The only evidence that the majority relies on is the
crime lab evidence that the .106 grams of powder contained "+/- 0.0123" grams of heroin and
the notation "[s]ample also found to contain [f]entanyl."
{¶ 44} Though it is true that "possession of heroin or fentanyl will never support a
conviction of possession of the other," that conclusion ignores the reality of what occurred in
this case. Appellant possessed a single bag of drugs. There is no evidence that appellant
knew the bag of drugs contained both heroin and fentanyl. Without the help of science and
technology, it is not clear if a person could distinguish that the bag contained both heroin and
fentanyl. The bag was merely categorized by a corrections officer as an "off-white, talcum
powder type material."
{¶ 45} This issue is intertwined with the very serious problems associated with the
- 14 - Warren CA2016-09-084
opioid epidemic.4 Rising mortality rates due to accidental overdose are due in part to the fact
that drug dealers are spiking heroin with much more potent synthetic opioids, such as
fentanyl and carfentanil. Synthetic opioids are usually in the form of a white powder and may
be indistinguishable from other street drugs. Fentanyl and carfentanil are multiple times
more powerful than heroin and can be purchased at a lower cost. The incentive for the
dealer is simple. Adding a small amount of fentanyl or carfentanil to heroin is a low-cost way
to increase its value. The dealer may take heroin, cut it with a common filler to increase the
volume and then add a more powerful synthetic opioid to maintain high potency. The dealer
would then sell the drug to the user who may be completely unaware of the contents.
{¶ 46} That is the situation that occurred here.5 The evidence supports appellant's
guilt on a possession charge, but the charges should have been merged. Appellant
possessed a single bag containing an opioid, off-white powder. The merger doctrine is
designed to prevent punishment for the same offense under two different statutes. I have
reservations about allowing two convictions under these circumstances where there is
absolutely no evidence, either directly or circumstantially, that appellant knew the bag
contained two separate opioid drugs. Simply, the record reflects that the particular heroin
that appellant possessed was laced with fentanyl. In this case, there was a single course of
conduct. There is no evidence that the offenses were committed with separate animus or
motivation. Though heroin (an opioid) and fentanyl (a synthetic opioid) are scheduled
differently, there was no separate or identifiable harm based on these facts. Under these
circumstances, I do not see the societal benefit to convicting a drug user on two charges from
what is generally one criminal act. Moreover, I do not believe the majority decision comports
4. Centers for Disease Control and Prevention, Opioid Basics, https://www.cdc.gov/drugoverdose/opioids/ fentanyl.html (accessed July 13, 2017).
5. This analysis, of course, is limited to possession offenses. Drug traffickers, the individuals adding these highly dangerous compounds and fueling the opioid epidemic, would not be covered under such a merger analysis. - 15 - Warren CA2016-09-084
with the rationale behind the merger analysis and double jeopardy protections.
{¶ 47} The majority's decision may also pose problems for future cases involving bulk
weight controlled substances. This is problematic because the statutory scheme imposes
enhanced penalties for bulk weight offenses. In State v. Gonzalez, Slip Opinion No. 2017-
Ohio-777, the Ohio Supreme Court interpreted a similar statute involving the offense level for
cocaine possession under R.C. 2925.11(C)(4). The court held "R.C. 2925.11(C)(4)(b) * * *
penalizes an offender for the amount of cocaine possessed, and the amount of 'cocaine'
clearly encompasses the whole compound or preparation of cocaine, including fillers that are
part of the usable drug." Id. at ¶ 9.
{¶ 48} The court in Gonzalez recognized that powder cocaine, like heroin, is typically
"cut" by adding other drugs, adulterants, or other inert substances. Id. at ¶ 11. The purity
level of powder cocaine may vary considerably. Id. However, the fillers or adulterants are
not intended to be removed before consumption. Id. at ¶ 12. Therefore, the Court noted "the
fillers are an inherent part of powder cocaine." Id. As a result, the applicable offense level
for cocaine possession is determined by the total weight of the drug, including the fillers that
are part of the usable drug. Id. at ¶ 18.
{¶ 49} While Gonzalez involved the possession of cocaine, there is no reason to
believe that the rule would not similarly apply to the possession of heroin or fentanyl. A bulk
weight finding was not made in this case, but it is worth considering the effect of the
majority's decision as applied to the statutory scheme. As noted above, fentanyl is an
increasingly common adulterant in heroin. The crime lab evidence showed that appellant
possessed .106 grams of powder. The powder contained "+/- 0.0123" grams of heroin and
an unspecified amount of fentanyl. Based on the Ohio Supreme Court's decision in
Gonzalez, the filler and adulterants are part of the usable drug. Therefore, appellant
possessed both .106 grams of heroin and .106 grams of fentanyl, even though appellant only - 16 - Warren CA2016-09-084
possessed .106 grams of powder. If appellant had possessed the necessary bulk weights he
would have been sentenced in accordance with those provisions. In other words, the
majority decision permits: (1) a conviction for the possession of heroin with fentanyl
considered as adulterant material, and (2) a separate conviction for the possession of
fentanyl with heroin considered as adulterant material. Such a result does not comport with
the Double Jeopardy Clause, as it would allow two punishments for the same offense.
{¶ 50} Because appellant's conviction for possession of heroin should have been
merged with his conviction for aggravated possession of drugs, I must respectfully dissent.
Otherwise, I agree appellant's manifest weight challenge was without merit.
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