State v. Workman

2017 Ohio 2802

• Court: Ohio Court of Appeals
• Decided: May 15, 2017
• Docket: CA2016-10-065, CA2016-10-066
• Status: Published

Opinion

[Cite as State v. Workman, 2017-Ohio-2802.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NOS. CA2016-10-065 Plaintiff-Appellee, : CA2016-10-066

: OPINION - vs - 5/15/2017 :

PERRY J. WORKMAN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015CR00609

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Brian T. Goldberg, 2662 Madison Road, Cincinnati, Ohio 45208, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Perry Workman, appeals his convictions in the Clermont

County Court of Common Pleas after pleading no contest to trafficking in drugs within the

vicinity of a juvenile and corrupting another with drugs.

{¶ 2} Union Township police began to investigate Workman's stepson on suspicion of

participating in a 24-hour crime spree that included breaking and entering, criminal

damaging, obstruction, and pandering obscenity to a juvenile. The stepson lived in Clermont CA2016-10-065 CA2016-10-066

Workman's home, and police executed a search warrant there looking for items associated

with the stepson's alleged crimes, including clothing, cellphones, and cigarette packages.

During the search, police located drugs throughout the house, including marijuana and pills in

the bedroom Workman shared with his wife, Amanda Lilly.

{¶ 3} Workman was indicted for trafficking in drugs, corrupting another with drugs,

and two counts of possession of drugs. Workman moved to suppress the evidence, claiming

that the police's search exceeded the scope of the search warrant. The trial court held a

hearing on the matter, and denied Workman's motion to suppress. Workman then agreed to

plead no contest to the trafficking and corrupting charges, and the two possession charges

were dismissed. The trial court accepted Workman's pleas as validly made, and sentenced

Workman to five years on the trafficking charge, and one year on the corrupting charge. The

trial court ordered the sentences to be served consecutively, for an aggregate prison term of

six years. Workman now appeals his convictions and sentence, raising the following

assignments of error.

{¶ 4} Assignment of Error No. 1:

{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. WORKMAN IN

DENYING HIS MOTION TO SUPPRESS.

{¶ 6} Workman argues in his first assignment of error that this motion to suppress

should have been granted because officers exceeded the scope of the warrant when

searching his bedroom.

{¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353.

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and

evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are -2- Clermont CA2016-10-065 CA2016-10-066

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Cochran at ¶ 12.

{¶ 8} The permissible scope of a search is governed by the terms set forth in the

search warrant. State v. Simmons, 12th Dist. Warren No. CA2004-11-138, 2005-Ohio-7036.

If the search's scope exceeds that permitted by the terms of the search warrant, the

subsequent seizure is unconstitutional unless a recognized exception applies. Id. "A lawful

search of fixed premises generally extends to the entire area in which the object of the

search may be found and is not limited by the possibility that separate acts of entry or

opening may be required to complete the search." United States v. Ross, 456 U.S. 798, 820-

821, 102 S.Ct. 2157 (1982).

{¶ 9} According to the terms of the search warrant, police were authorized to search

Workman's house for evidence relating to crimes being investigated by police and alleged to

have been perpetrated by Workman's stepson who lived in the home. The warrant expressly

authorized the search for

Cell phone(s) utilized by Amanda Lilly, to be held pending additional search warrant for analysis.

Gym Shoes worn by [Workman's stepson], for later trace examination for glass fragments.

Clothing worn by [Workman's stepson], to include a two tone blue pair of shorts and a black t-shirt, as shown in Exhibit "A."

Clermont County Juvenile Probation Alcohol Monitor, removed from [Workman's stepson].

Cell Phones, tablets, computers or other multimedia devices used by [Workman's stepson].

-3- Clermont CA2016-10-065 CA2016-10-066

Multimedia Memory Storage devices to include, SD cards, thumb drives, external hard drives, compact disks or any other multimedia storage device.

Cigarette packages and/or cellophane packaging containing tax stamp identification.

Any other item located in violation of the Ohio Revised Code.

{¶ 10} In executing the search, officers searched for these items believed to be

evidence tying Workman's stepson to the crime spree. Officers were assigned to different

rooms of the home and tasked with logging items found in each room. Detective Ken Mullis

of the Union Township Police Department testified at the motion to suppress hearing that the

search of Workman's home was intended to locate "small items," such as cigarette packs,

cellophane wrappers, multimedia devices, and cell phones that would implicate involvement

of Workman's stepson in the burglaries and related crimes that occurred during the spree.

Detective Mullis testified that police had reason to believe that the items were "in the

possession of that residence," making reference to Workman's home.

{¶ 11} While Detective Mullis did not know which of the home's four bedrooms

belonged to Workman's stepson, his testimony demonstrates that the some of the objects

specified in the warrant were seized from several locations throughout the home, such as

clothing, gym shoes, and a cell phone. While looking for the various items specified in the

warrant, officers also located marijuana, hash, and large sums of cash in multiple locations

throughout the home. Detective Mullis testified that when police searched a bedroom, later

revealed to be the bedroom shared by Workman and Lilley, officers found marijuana and pills

stacked within a clothing pile in or near the closet of the bedroom.

{¶ 12} After reviewing the record, we find that the police properly seized the evidence

and that the search was executed within the scope of the warrant. The warrant authorized a

search of Workman's house, including places where the items could be located. The items,

-4- Clermont CA2016-10-065 CA2016-10-066

such as cigarette packages and cell phones, are small enough that they could have been

located in a multitude of spaces throughout the home, including those that were ultimately

searched.

{¶ 13} Additionally, the warrant permitted a search for clothing, and Detective Mullis

testified that the drugs were found in a clothing pile. Thus, the officers were operating within

the proper scope of the warrant by searching for clothes in a pile of laundry near the closet.

Moreover, and regardless of whether Detective Mullis knew the bedroom belonged to

Workman rather than his stepson, the warrant specifically authorized a search for cell phones

utilized by Amanda Lilly, who shared Workman's bedroom. Thus, the scope was not

exceeded.

{¶ 14} Workman also challenges the search of a safe as being beyond the scope of

the warrant. During the search, officers located a safe, and found hash therein. However,

the search warrant specifically authorized the search of "all containers or safes (locked or

unlocked) as well as vehicles and outbuildings located within the curtilage of" Workman's

home. As such, the search of the safe was expressly within the scope of the warrant. This is

especially true where smaller instrumentalities of the crime spree, such as cell phones and

cigarette packs, could have been hidden in the safe.

{¶ 15} After a full review of the record, we find that the trial court properly denied

Workman's motion to suppress because the officers did not exceed the scope of the warrant

during the search. Thus, Workman's first assignment of error is overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. WORKMAN BY

FAILING TO MERGE THE DRUG TRAFFICKING OFFENSE WITH THE CORRUPTING

ANOTHER WITH DRUGS.

{¶ 18} Workman argues in his second assignment of error that the trial court should -5- Clermont CA2016-10-065 CA2016-10-066

have merged his convictions as allied offenses.

{¶ 19} Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the imposition of

multiple punishments for the same criminal conduct is prohibited. State v. Rodriguez, 12th

Dist. Butler No. CA2015-02-024, 2016-Ohio-452. If any of the following occurs, the

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." State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, ¶ 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 ¶ 23.

{¶ 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." Id. at ¶ 26. An appellate court

applies a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger

determination. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28. "The defendant

bears the burden of establishing his entitlement to the protection provided by R.C. 2941.25

against multiple punishments for a single criminal act." State v. Lewis, 12th Dist. Clinton No.

CA2008-10-045, 2012-Ohio-885, ¶ 14.

{¶ 21} Workman was convicted of trafficking marijuana in violation of R.C.

2925.03(A)(2), which forbids a person to, "Prepare for shipment, ship, transport, deliver,

prepare for distribution, or distribute a controlled substance or a controlled substance analog,

when the offender knows * * * that the controlled substance * * * is intended for sale or resale

by the offender or another person." This conviction was elevated from a felony of the third

degree to a felony of the second degree because the act was done within the vicinity of a

juvenile. Workman was also convicted of corrupting another with drugs in violation of R.C. -6- Clermont CA2016-10-065 CA2016-10-066

2925.02(A)(4)(c), which provides that no person shall knowingly and by any means, "induce

or cause a juvenile who is at least two years the offender’s junior to commit a felony drug

abuse offense, when the offender knows the age of the juvenile or is reckless in that regard."

{¶ 22} After reviewing the record, we find that the trial court properly determined that

the offenses were not allied. Under the facts of this case, the offenses of trafficking and

corrupting another with drugs caused separate, identifiable harm, and so were of dissimilar

import, and the offenses were committed with a separate animus and conduct.

{¶ 23} The record indicates that the victim of the trafficking was the public at large,

and the victim involved in the corruption charge was Workman's stepson. Even though the

presence of Workman's stepson elevated the trafficking offense to a second-degree felony,

such presence did nothing to change the victim of the trafficking offense from being the

general public.

{¶ 24} Moreover, the harm associated with drug trafficking within the vicinity of a

juvenile is still different than corrupting a juvenile with drugs. Dealing drugs is inherently

dangerous, where violence is a common side effect, so that the Ohio legislature made

trafficking drugs in the vicinity of a juvenile an enhanced crime. Conversely, the harm of

corrupting another with drugs, which occurred here because Workman had his stepson

participate in selling drugs and a use-quantity of drugs was found in the stepson's bedroom,

had the direct result only on the stepson by subjecting him to potential violence associated

with trafficking and even criminal prosecution for drug possession.

{¶ 25} We also find that the conduct and animus is different for the crimes.

Corrupting the stepson did not require Workman to prepare drugs for distribution, as does a

charge of trafficking. The specific act that led the state to charge Workman with trafficking

was the discovery of three pounds of marijuana, which had been prepared for distribution, in

Workman's bedroom. The specific act that led the state to charge Workman with corrupting -7- Clermont CA2016-10-065 CA2016-10-066

the stepson was the fact that Workman induced his stepson into selling drugs, including hash

and traces of marijuana found in the stepson's bedroom. Moreover, Workman's money was

kept separate from his stepson's, thus indicating that their endeavors constituted separate

conduct from each other.

{¶ 26} Having found that the offenses were of dissimilar import and were committed

with a different animus and conduct, the trial court properly determined that the crimes were

not allied offenses. As such, Workman's second assignment of error is overruled.

{¶ 27} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.

-8-