[Cite as State v. Painter,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2014-03-022

: OPINION - vs - 11/10/2014 :

AARON PAINTER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 08 CR 00855

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

Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Aaron Painter, appeals his convictions and sentence in

the Clermont County Court of Common Pleas on multiple counts of drug trafficking and

possession.

{¶ 2} Painter was arrested after he sold narcotics to undercover agents on multiple

occasions and was later found in possession of various narcotics through a search of his Clermont CA2014-03-022

home and car. Painter was indicted on 15 separate counts related to his trafficking and

possession charges. Most of the counts also included a specification that Painter's criminal

activity occurred within the vicinity of a juvenile.

{¶ 3} Counts 1 through 5 charged Painter with aggravated trafficking for two

instances where Painter sold Oxycontin or Tylox to undercover agents on February 5, 2008.1

Count 1 alleged that Painter sold eight Oxycontin tablets, which were 80mg each. Count 2

alleged that Painter sold six Oxycontin tablets, which were 40mg each. Painter sold the eight

80mg tablets and the six 40mg tablets to the same narcotics agent in a single transaction for

$400. Count 3 alleged that Painter sold seven Oxycontin tablets, which were 20mg each for

$100. Count 4 alleged that Painter sold one Tylox tablet for $15 and gave one Tylox tablet to

the agent as a sample. Counts 3 and 4 occurred on the same day as Counts 1 and 2, but

were later in the day and were conducted in a different location than where Painter sold the

Oxycontin tablets earlier in the day for $400. Count 5 alleged that Painter agreed to sell 100

Oxycontin tablets, each 40mg, for $3,000.

{¶ 4} Counts 6 through 8 charged Painter with aggravated trafficking for sales of

Oxycontin and Percocet to undercover agents on February 7, 2008. Count 6 alleged that

Painter sold three Oxycontin tables, which were 80mg each. Count 7 alleged that Painter

sold six Oxycontin pills, which were 40mg each. The tablets Painter sold to a "narcotic

agent" as charged in Counts 6 and 7 were sold in a single transaction for $400. Count 8

alleged that Painter sold five Percocet, each weighing 30mg, for $100 to an "undercover

agent" on the same day that he sold the Oxycontin in Counts 6 and 7.

{¶ 5} Counts 9 through 12 charged Painter with aggravated possession of Oxycontin

1. The record interchangeably uses Oxycontin and Oxycodone to refer to the tablets Painter sold. We will, for consistency sake, use Oxycontin to refer to the controlled substance that Painter sold. Also, Tylox is essentially the same as Oxycontin, but we will refer to Painter selling Tylox when the record specifies as such. -2- Clermont CA2014-03-022

and codeine, with such possession occurring on February 16, 2008. Count 9 alleged that

Painter's home contained 17 Oxycontin tablets, each weighing 20mg. Counts 10-12 were

each specific to police also finding seven 40mg tablets (Count 10), one 80mg tablet (Count

11), and eight codeine tablets (Count 12).

{¶ 6} Counts 13-15 charged Painter with aggravated possession of Oxycontin on

February 19, 2008, where police pulled Painter over and discovered various Oxycontin

tablets in his car. Count 13 alleged that Painter had twelve 20mg tablets, Count 14 alleged

that Painter had five 40mg tablets, and Count 15 alleged that Painter had three 80mg tablets

in his possession.

{¶ 7} After negotiations, the state agreed to dismiss Counts 5, 10, 11, 12, 14, and 15,

and also dismissed the juvenile specification in return for Painter pleading guilty to Counts 1

through 4, 6 through 9, and count 13. The trial court accepted Painter's guilty plea, and

ordered a presentence investigation. After the investigation was complete, the trial court

sentenced Painter to an aggregate 109-month sentence, but reserved the sentence and

placed Painter on community control. Painter did not appeal his convictions or the trial

court's sentence.

{¶ 8} Painter later violated the terms of his community control, and the trial court held

a hearing at which Painter's community control was revoked. The trial court reinstated the

109-month sentence as a result of Painter's violations, but failed to advise Painter of his

appellate rights. Painter later filed a motion for a delayed appeal from the trial court's

revocation of his community control, and argued that he was never given his appellate rights.

This court granted Painter's motion for a delayed appeal specific to the trial court's entry

revoking community control. However, on appeal, Painter argued that his convictions and

sentence were void because the trial court should have merged some of the counts as allied

offenses. This court determined that Painter could not collaterally attack his convictions and -3- Clermont CA2014-03-022

sentence because his delayed appeal was limited only to a challenge of the trial court's

revocation of community control. State v. Painter, 12th Dist. Clermont No. CA2012-04-031,

. We affirmed the trial court's revocation of community control and its

imposition of the reserved sentence.

{¶ 9} Painter subsequently filed another motion for delayed appeal, asking this court

to consider an appeal challenging his original convictions and sentence. We granted

Painter's motion for a second delayed appeal, and will now consider Painter's challenge to

his convictions and sentence as raised by the following assignments of error. Because the

assignments of error are interrelated, we will address them together.

{¶ 10} Assignment of Error No. 1:

{¶ 11} PAINTER'S INDICTMENT FAILED TO STATE AN OFFENSE.

{¶ 12} Assignment of Error No. 2:

{¶ 13} THE TRAFFICKING COUNTS WERE ALLIED OFFENSES UNDER R.C.

2921.45 AND DOUBLE JEOPARDY.

{¶ 14} Painter argues in his first assignment of error that his indictment did not list

valid offenses because such indictment charged each crime differently based upon the

strength of each tablet sold, and in his second, that his convictions should have merged

because they are allied offenses.

{¶ 15} At the onset, we recognize that the state has conceded that Counts 1 and 2

should be merged together, Counts 3 and 4 should be merged together, and that Counts 6

and 7 should merge together. The state asserts that Counts 1/2, 3/4, 6/7, as well as Count 8,

should not merge any further, as each transaction or possession occurred with a separate

animus. The state also asserts that the charges were valid as indicted, and that such valid

charges do not lose their validity simply because they turn out to be allied offenses of similar

import. -4- Clermont CA2014-03-022

{¶ 16} Ohio's allied offenses statute, R.C. 2941.25, very clearly provides that "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." R.C. 2941.25(A). (Emphasis added.) The fact

that the indictment ineffectually parceled out the various offenses based upon the strength of

the tablets did not render the individual charges legally-invalid or "non-existent," as asserted

by Painter.

{¶ 17} Even if we were to view the indictment as being multiplicitous, as suggested in

Painter's reply brief, the remedy for a multiplicitous indictment is to analyze the charges

according to the allied offenses statute, R.C. 2941.25. State v. Childs,

(2000). See also State v. Lewis, 11th Dist. Lake No. 2012-L-074,

(noting that "even if counts are multiplicitous * * * merging them for purposes of

sentencing, pursuant to R.C. 2941.25, will cure any threat of double jeopardy"). Here, the

trial court was obligated to merge certain counts contained in the plea, as the state construed

Painters' same conduct as constituting two or more allied offenses on more than one

occasion.

{¶ 18} The Ohio Supreme Court has set forth a test to determine whether offenses are

allied offenses of similar import pursuant to R.C. 2941.25. State v. Johnson,

,

. Pursuant to the Johnson test, courts must first determine "whether it

is possible to commit one offense and commit the other with the same conduct." Id. at ¶ 48.

(Emphasis sic.) It is not necessary that the commission of one offense will always result in

the commission of the other, only that it is possible for both offenses to be committed by the

same conduct. Id.

{¶ 19} If it is possible to commit both offenses with the same conduct, courts must

next determine whether the offenses were in fact committed by the same conduct, or a single -5- Clermont CA2014-03-022

act performed with a single state of mind. Id. at ¶ 49. If the answer to both prongs of the test

is yes, then the offenses are allied offenses of similar import and must be merged. Id. at ¶

50. Conversely, if the offenses are committed separately or with a separate animus, the

offenses will not merge. Id. at ¶ 51.

{¶ 20} 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,

, 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,

, ¶ 14.

{¶ 21} After reviewing the record, we agree with the state's contention that Counts 1

and 2 should be merged together, Counts 3 and 4 should be merged together, and that

Counts 6 and 7 should merge together. Despite Painter's argument that Counts 1, 2, 3, and

4 should all merge, the facts indicate that Painter acted with a separate animus when he

committed the crimes that constituted Counts 1 and 2 as opposed to Counts 3 and 4.

{¶ 22} The record indicates that Painter committed Counts 1 and 2 by selling

Oxycontin tablets to an agent on February 5, 2008. Because Painter sold these tablets in a

single transaction, regardless of their milligram strength, with the same animus and conduct,

the charges are allied offenses. Painter committed Counts 3 and 4 by selling Oxycontin and

Tylox, which is essentially the same as Oxycontin, to a different agent later in the day on

February 5, 2008. Again, because Painter sold these tablets in a single transaction,

regardless of their milligram strength, with the same animus and conduct, the charges are

allied offenses. However, once Counts 1 and 2 are merged and Counts 3 and 4 are merged,

the surviving counts will not merge into each other, as Painter had a separate animus and

committed the crimes by separate conduct by selling to two different agents and at different

times during the day. -6- Clermont CA2014-03-022

{¶ 23} Regarding Counts 6 and 7, we find that those two charges are allied offenses

as well. Painter committed Counts 6 and 7 on February 7, 2008 by selling Oxycontin to a

narcotics agent. While Painter argues that Count 8 should also be merged with Counts 6

and 7, he has failed to demonstrate that he acted with the same conduct or the same animus

when he sold Percocet to a different officer. The record indicates that Count 8 is specific to

Painter selling Percocet to a different "undercover" agent after he had subsequently sold the

Oxycontin in Counts 6 and 7 to the narcotics agent.

{¶ 24} During the plea hearing, the state presented the facts supporting the charges,

and stated that Counts 6 and 7 were specific to Painter selling different strengths of

Oxycontin tablets to a "narcotics agent working with the Clermont County Narcotics Unit."

The state went on to provide the facts supporting Count 8, and stated that Painter sold "five

30 milligram Percocet tablets for $100 to an undercover agent working for the Clermont

County Narcotics Department." These facts indicate that Painter sold one agent Oxycontin

and then sold the Percocet tablets to a different agent.

{¶ 25} The trial court permitted Painter the opportunity to clarify the facts or to object to

them, and Painter clarified other portions of the state's reading of the facts. However, Painter

did not challenge the state's facts in regard to there being two separate officers involved in

Counts 6/7 and 8. Additionally, Painter has not pointed to any indication in the record that

Counts 6 through 8 occurred at the same moment, involved the same agent, or were one

single transaction. Therefore, we find that Painter committed Counts 6/7 with a separate

animus and different conduct than he did with Count 8.

{¶ 26} While Painter does not challenge the other offenses as being allied, we

nonetheless note for purposes of resentencing that the remaining charges are not allied

offenses. Count 9 was specific to Painter's possession of Oxycontin at his house, and was

committed on February 16, 2008. Count 13 was also a possession charge, but that charge -7- Clermont CA2014-03-022

was specific to Painter possessing Oxycontin in his car, and was committed on February 19,

2008. Therefore, the possession charges were committed with separate conduct and a

different animus and consequently do not merge.

{¶ 27} The state's decision to charge Painter for selling a multitude of controlled

substances did not result in the "non-existence" of charges prohibited by the Ohio Revised

Code. As such, we overrule Painter's first assignment of error. However, we sustain

Painter's second assignment of error, having found that several of Painter's charges were

allied offenses of similar import. Upon remand, the state will choose which charges to

proceed upon, and the trial court will resentence Painter accordingly and consistent with this 2 opinion.

{¶ 28} Judgment reversed, and the cause is remanded for further proceedings.

HENDRICKSON, P.J., and M. POWELL, J., concur.

2. "The General Assembly has made clear that it is the state that chooses which of the allied offenses to pursue at sentencing, and it may choose any of the allied offenses." State v. Whitfield,

, 2010- Ohio-2, ¶ 20. -8-