[Cite as State v. Davidson,

.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 12 CA 7 SCOTT DAVIDSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 07 CR 0067

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: January 17, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT ANDREW T. SANDERSON PROSECUTING ATTORNEY BURKETT & SANDERSON, INC. 111 North High Street, P. O. Box 569 21 West Church Street New Lexington, Ohio 43764-0569 Newark, Ohio 43055 Perry County, Case No. 12 CA 7 2

Wise, J.

{¶1} Appellant Scott Davidson appeals from his convictions, in the Court of

Common Pleas, Perry County, on one count each of conspiracy, illegal assembly or

possession of chemicals for the manufacture of drugs, and illegal manufacture of drugs.

The relevant facts leading to this appeal are as follows.

{¶2} On October 21, 2007, Sergeant Lee Hawks of the Perry County Sheriff’s

Office was on patrol on S.R. 204 in the northern part of the county. At about 3:00 AM,

Sergeant Hawks observed an individual standing outside a residence, illuminated by the

porch light. The sergeant turned around and drove past the house again, at which point

the individual fled into the soybean fields behind the house. The sergeant circled back

and turned into the house’s driveway. As soon as he exited his cruiser, Sergeant Hawks

smelled a strong odor of anhydrous ammonia and ether, consistent with the

manufacturing process for methamphetamine.

{¶3} After Sergeant Hawks obtained backup, appellant and another individual,

a female, were directed to exit the residence, at which time they were taken into

custody, given their Miranda rights, and placed in separate cruisers. Hawks also made a

cursory sweep of the inside of the house to check for other individuals. Eventually,

appellant and the female individual were transported to the Perry County Sheriff’s

Office. Appellant was taken to an interview room, where he stated, after a few minutes,

that he would not talk until he had an opportunity to speak with an attorney. However,

as further analyzed infra, appellant subsequently agreed to waive his right to counsel

and speak to the officers. Furthermore, a search warrant was obtained by about 7:30 Perry County, Case No. 12 CA 7 3

AM, following which Hawks and two other officers searched the house, outbuildings,

and vehicles on the property.

{¶4} On November 13, 2007, appellant was indicted by the Perry County Grand

Jury on one count of conspiracy (specifically based on facilitating the other offenses by

purchasing pseudoephedrine), one count of illegal assembly or possession of chemicals

for the manufacture of drugs, and one count of illegal manufacture of drugs, as further

detailed infra. Appellant appeared before the court with counsel on December 7, 2007

and entered pleas of not guilty to each count.

{¶5} On February 22, 2008, appellant filed a motion to suppress, inter alia,

statements he made to sheriff’s officials during his interrogation. The matter was heard

on April 8 and April 22, 2008. The trial court issued a judgment entry denying the motion

to suppress on May 8, 2008.

{¶6} The case proceeded to a jury trial on May 27 and 28, 2008. Appellant was

found guilty on the three counts as charged in the indictment.

{¶7} Appellant was thereafter sentenced to one year in prison on Count I

(Conspiracy); two years in prison on Count II (Illegal Assembly or Possession of

Chemicals for the Manufacture of Drugs); and, three years on Count III (Illegal

Manufacture of Drugs). Each sentence was ordered to be served consecutive to the

others, for an aggregate term of six years in prison.

{¶8} Appellant thereafter filed a request for leave to file a delayed appeal. We

granted the request, and the present appeal now follows.1

1 Appellant's brief fails to include or attach a copy of the suppression and sentencing judgment entries under appeal. See Loc.App.R. 9(A). We have reviewed the original trial court judgment entries in the record. Perry County, Case No. 12 CA 7 4

{¶9} Appellant herein raises the following two Assignments of Error:

{¶10} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING

THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE.

{¶11} “II. THE IMPOSITION OF CONSECUTIVE SENTENCES FOR ALLIED

OFFENSES OF SIMILAR IMPORT WAS IMPROPER.”

I.

{¶12} In his First Assignment of Error, appellant contends the trial court erred in

overruling his motion to suppress statements he made to law enforcement officers while

detained at the sheriff’s office. We disagree.

{¶13} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. State v. Curry (1994),

,

; State v. Claytor (1993),

,

; State

v. Guysinger (1993),

,

.

{¶14} In Miranda v. Arizona (1966),

,

,

,

the United States Supreme Court held that the Fifth Amendment to the United States

Constitution prevents the admission at trial of statements made by a defendant during

custodial interrogation when the defendant has not been advised of certain rights. “A Perry County, Case No. 12 CA 7 5

suspect's decision to waive his Fifth Amendment privilege is made voluntarily absent

evidence that his will was overborne and his capacity for self-determination was

critically impaired because of coercive police conduct.” State v. Collins, Richland

App.No. 2003–CA–0073, 2005–Ohio–1642, ¶ 141, citing Colorado v. Spring (1987),

,

,

. A “totality of the circumstances test” is

applied to this question. See, e.g., State v. Burgett, Marion App No. 9-09-14, 2009-

Ohio-5278, ¶ 39. “Once a criminal defendant invokes his right to counsel during a

custodial police interrogation, the police must cease all questioning.” State v. Salinas

(1997),

,

, citing Miranda at 444-445; Edwards

v. Arizona (1981),

, 484–485,

, 1884–1885,

,

385–387. “The questioning may not resume until the defendant has had the opportunity

to consult with counsel who is present for any further interrogation or the defendant

himself reinitiates discussions with police.”

emphasis added.

{¶15} The record in the case sub judice reveals that appellant, after a few

minutes in the interview room, requested the opportunity to speak with a lawyer and that

he refused to answer additional questions until he had consulted with a lawyer.

Appellant had received his Miranda rights at the scene, and was asked again at the

beginning of the interview if he understood his rights. There is no dispute that appellant

was in custody during the interrogation in question. The trial court, in reaching its

decision to deny appellant’s suppression motion, appears to have accepted that

appellant had changed his mind about speaking with counsel and had thereupon

voluntarily spoken with the deputies. See Suppression Judgment Entry at 2. Appellant

contends this finding was simply an assumption, as the trial court apparently determined Perry County, Case No. 12 CA 7 6

that appellant’s recanting of his Miranda assertion took place at a point when the video

camera had been paused or turned off. Our review of the videotape of the interrogation

indeed indicates that Sergeant Hawks and another sergeant spoke with appellant in the

interview room for about fifteen minutes, at which time appellant asserted his right to

counsel. See State’s Exhibit 3. The officers then brought another suspect into the

interview room and spoke with her.

After her interview was completed, the videotape

shows an empty interview room for about twenty minutes, but male voices can be heard

off-camera.

The tape then shows that appellant was brought back into the interview

room, where he was re-Mirandized and given time to write out a statement, followed by

further discussion with Sergeant Hawks.

{¶16} Despite the off-camera gaps in the interview, however, the trial court ran a

lengthy suppression hearing in the case sub judice, during which Sergeant Hawks

clearly testified that appellant, having been provided with a telephone to contact an

attorney, subsequently initiated contact with the deputies away from the video. Tr., April

22, 2008, at 16-18. Hawks also recalled that appellant was re-Mirandized prior to any

further questioning. Id. at 24-29, 38.

{¶17} It is well-recognized that the trier of fact is in a far better position to

observe the witnesses' demeanor and weigh their credibility. See State v. DeHass

(1967),

,

. Upon review of the record, including the

videotape of the interrogation, we hold the trial court did not err in denying the motion to

suppress appellant’s statements under the facts and circumstances of this case.

{¶18} Appellant's First Assignment of Error is overruled. Perry County, Case No. 12 CA 7 7

II.

{¶19} In his Second Assignment of Error, appellant argues, on the basis of allied

offenses of similar import, that the trial court erred in imposing consecutive sentences.

We agree.

{¶20} R.C. 2941.25 protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions. See State v. Jackson,

Montgomery App.No. 24430, 2012–Ohio–2335, ¶ 133, citing State v. Johnson,

,

, 2010–Ohio–6314, ¶ 45. The statute reads as follows:

{¶21} “(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.

{¶22} “(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.”

{¶23} For approximately the first decade of this century, law interpreting R.C.

2941.25 was based on State v. Rance,

,

, 1999–

Ohio–291, wherein the Ohio Supreme Court had held that offenses are of similar import

if the offenses “correspond to such a degree that the commission of one crime will result

in the commission of the other.”

The Rance court further held that courts should

compare the statutory elements in the abstract.

Perry County, Case No. 12 CA 7 8

{¶24} However, the Ohio Supreme Court, in State v.

specifically

overruled the 1999 Rance decision. The Court held: “When determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the

conduct of the accused must be considered.”

at the syllabus. As recited in State v.

Nickel, Ottawa App.No. OT–10–004, 2011–Ohio–1550, ¶ 5, the new test in Johnson for

determining whether offenses are subject to merger under R.C. 2921.25 is two-fold:

“First, the court must determine whether the offenses are allied and of similar import. In

so doing, the pertinent question is ‘whether it is possible to commit one offense and

commit the other offense with the same conduct, not whether it is possible to commit

one without committing the other.’ (Emphasis sic.) Id. at ¶ 48. Second, ‘the court must

determine whether the offenses were committed by the same conduct, i.e., “a single act,

committed with a single state of mind.” ’ d. at ¶ 49, quoting State v. Brown,

, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in judgment). If both

questions are answered in the affirmative, then the offenses are allied offenses of

similar import and will be merged. Johnson, at ¶ 50.”

{¶25} Appellant herein was sentenced in the case sub judice to one year in

prison on Count I, Conspiracy; two years in prison on Count II, Illegal Assembly or

Possession of Chemicals for the Manufacture of Drugs; and, three years on Count III,

Illegal Manufacture of Drugs. The sentences were ordered to be served consecutively to

each other, for an aggregate term of six years in prison. We will accordingly review and

compare the elements of these offenses. Perry County, Case No. 12 CA 7 9

{¶26} Conspiracy/Illegal Assembly or Possession of Chemicals

{¶27} The offense of conspiracy as charged in the case sub judice is set forth in

R.C. 2923.01(A)(2) as follows:

{¶28} “No person, with purpose to commit or to promote or facilitate the

commission of *** a felony drug trafficking, manufacturing, processing, or possession

offense *** shall *** [a]gree with another person or persons that one or more of them will

engage in conduct that facilitates the commission of any of the specified offenses.”

{¶29} The offense of illegal assembly or possession of chemicals for the

manufacture of drugs, as charged in the present case under R.C. 2925.041, is set forth

as follows:

{¶30} “(A) No person shall knowingly assemble or possess one or more

chemicals that may be used to manufacture a controlled substance in schedule I or II

with the intent to manufacture a controlled substance in schedule I or II in violation of

section 2925.04 of the Revised Code.

{¶31} “ ***

{¶32} “(C) Whoever violates this section is guilty of illegal assembly or

possession of chemicals for the manufacture of drugs. Except as otherwise provided in

this division, illegal assembly or possession of chemicals for the manufacture of drugs is

a felony of the third degree, and, except as otherwise provided in division (C)(1) or (2) of

this section, division (C) of section 2929.13 of the Revised Code applies in determining

whether to impose a prison term on the offender. If the offense was committed in the

vicinity of a juvenile or in the vicinity of a school, illegal assembly or possession of

chemicals for the manufacture of drugs is a felony of the second degree, and, except as Perry County, Case No. 12 CA 7 10

otherwise provided in division (C)(1) or (2) of this section, division (C) of section

2929.13 of the Revised Code applies in determining whether to impose a prison term on

the offender. If the violation of division (A) of this section is a felony of the third degree

under this division and if the chemical or chemicals assembled or possessed in violation

of division (A) of this section may be used to manufacture methamphetamine, there

either is a presumption for a prison term for the offense or the court shall impose a

mandatory prison term on the offender, determined as follows:

{¶33} “(1) Except as otherwise provided in this division, there is a presumption

for a prison term for the offense. If the offender two or more times previously has been

convicted of or pleaded guilty to a felony drug abuse offense, except as otherwise

provided in this division, the court shall impose as a mandatory prison term one of the

prison terms prescribed for a felony of the third degree that is not less than two years. If

the offender two or more times previously has been convicted of or pleaded guilty to a

felony drug abuse offense and if at least one of those previous convictions or guilty

pleas was to a violation of division (A) of this section, a violation of division (B)(6) of

section 2919.22 of the Revised Code, or a violation of division (A) of section 2925.04 of

the Revised Code, the court shall impose as a mandatory prison term one of the prison

terms prescribed for a felony of the third degree that is not less than five years.

{¶34} “(2) If the violation of division (A) of this section is a felony of the second

degree under division (C) of this section and the chemical or chemicals assembled or

possessed in committing the violation may be used to manufacture methamphetamine,

the court shall impose as a mandatory prison term one of the prison terms prescribed

for a felony of the second degree that is not less than three years. If the violation of Perry County, Case No. 12 CA 7 11

division (A) of this section is a felony of the second degree under division (C) of this

section, if the chemical or chemicals assembled or possessed in committing the

violation may be used to manufacture methamphetamine, and if the offender previously

has been convicted of or pleaded guilty to a violation of division (A) of this section, a

violation of division (B)(6) of section 2919. 22 of the Revised Code, or a violation of

division (A) of section 2925.04 of the Revised Code, the court shall impose as a

mandatory prison term one of the prison terms prescribed for a felony of the second

degree that is not less than five years.”

{¶35} In the case sub judice, our review leads us to initially conclude that the

first question under Johnson, i.e., whether it is possible, with the same conduct, to

engage in conspiracy and knowingly assemble or possess chemicals that may be used

to manufacture a controlled substance (schedule I or II), with the intent to manufacture,

would be answered in the affirmative under the circumstances.

{¶36} We thus proceed to an examination of the second question under

Johnson. The indictment states that the two offenses in question were alleged to have

occurred “on or about October 20, 2007 to October 21, 2007.” Upon review, we are

persuaded that appellant’s illegal acts in furtherance of the methamphetamine

processing as charged were part of the same conduct. We therefore find the trial court

erred in convicting and sentencing appellant on both of the aforesaid counts.

{¶37} Conspiracy / Illegal Manufacture of Drugs

{¶38} Again, the offense of conspiracy as charged in the case sub judice is set

forth in R.C. 2923.01(A)(2): Perry County, Case No. 12 CA 7 12

{¶39} “No person, with purpose to commit or to promote or facilitate the

commission of *** a felony drug trafficking, manufacturing, processing, or possession

offense ***shall *** [a]gree with another person or persons that one or more of them will

engage in conduct that facilitates the commission of any of the specified offenses.”

{¶40} The offense of illegal manufacture of drugs under R.C. 2925.04, as

charged herein, is set forth as follows:

{¶41} “(A) No person shall knowingly cultivate marihuana or knowingly

manufacture or otherwise engage in any part of the production of a controlled

substance.

{¶42} “***

{¶43} “(C)(3) If the drug involved in the violation of division (A) of this section is

methamphetamine, the penalty for the violation shall be determined as follows: (a)

Except as otherwise provided in division (C)(3)(b) of this section, if the drug involved in

the violation is methamphetamine, illegal manufacture of drugs is a felony of the second

degree, and, subject to division (E) of this section, the court shall impose a mandatory

prison term on the offender determined in accordance with this division. Except as

otherwise provided in this division, the court shall impose as a mandatory prison term

one of the prison terms prescribed for a felony of the second degree that is not less than

three years. If the offender previously has been convicted of or pleaded guilty to a

violation of division (A) of this section, a violation of division (B)(6) of section 2919.22 of

the Revised Code, or a violation of division (A) of section 2925.041 of the Revised

Code, the court shall impose as a mandatory prison term one of the prison terms

prescribed for a felony of the second degree that is not less than five years. Perry County, Case No. 12 CA 7 13

{¶44} “ ***”

{¶45} Upon review, we reach the same conclusion as we did above in regard to

the comparison of conspiracy and the illegal assembly or possession of chemicals for

the manufacture of drugs. We therefore find the trial court erred in convicting and

sentencing appellant on both of the counts of conspiracy and the illegal manufacture of

drugs.

{¶46} Illegal Assembly or Possession of Chemicals / Illegal Manufacture of

Drugs

{¶47} Applying a Johnson analysis to the “illegal assembly/possession of

chemicals” and “illegal manufacture of drugs” as charged in the case sub judice, we find

it is possible to commit both offenses with the same conduct, and appellant’s acts of

supplying the pseudoephedrine used in the methamphetamine production in this

instance were indeed part of the same conduct. We therefore find the trial court erred in

convicting and sentencing appellant on both of the aforesaid counts. Perry County, Case No. 12 CA 7 14

{¶48} Appellant's Second Assignment of Error is therefore sustained.

{¶49} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Perry County, Ohio, is hereby affirmed in part, reversed in part, and

remanded for a new sentencing hearing at which the State must elect which allied

offense it will pursue for sentencing.

By: Wise, J.

Gwin, P. J., concurs.

Edwards, J., concurs in part and dissents in part.

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___________________________________

___________________________________

JUDGES JWW/d 1109 Perry County, Case No. 12 CA 7 15

EDWARDS, J., CONCURRING IN PART AND DISSENTING IN PART OPINION

{¶50} I respectfully concur with the majority’s analysis and disposition of

appellant’s first assignment of error.

{¶51} With respect to appellant’s second assignment of error, I concur with the

majority that the offenses of illegal assembly or possession of chemicals for the

manufacture of drugs (Second Count) and illegal manufacture of drugs (Third Count)

are allied offenses of similar import. However, I disagree with the majority’s conclusion

that the offense of conspiracy to commit or to promote or facilitate the commission of

these offenses is an allied offense of similar import. I find that the conspiracy offense

was committed with a separate animus. With respect to the First Count, I find that the

intention to agree with another person or persons to engage in conduct that facilitates

the commission of such offense by purchasing pseudoephedrine is separate from the

intention to possess and or manufacture drugs. I would find, therefore, that the trial

court did not err in convicting and sentencing appellant with respect to both offenses.

________________________________

Judge Julie A. Edwards Perry County, Case No. 12 CA 7 16

IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : SCOTT DAVIDSON : : Defendant-Appellant : Case No. 12 CA 7

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed in part,

reversed in part and remanded for further proceedings consistent with this opinion.

Costs to be split between Appellant and the State of Ohio.

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JUDGES