[Cite as State v. Rice,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : VICKEY L. RICE : Case No. 16-CA-87 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2016 CR 00085

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 24, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CLIFFORD J. MURPHY ROBERT C. BANNERMAN 20 North Second Street P.O. Box 77466 4th Floor Columbus, OH 43207-0098 Newark, OH 43055 Licking County, Case No. 16-CA-87 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Vickey Rice, appeals the October 4, 2016 judgment

entry of the Court of Common Pleas of Licking County, Ohio, sentencing her to a term

of seventy-eight months in prison. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 11, 2016, the Licking County Grand Jury indicted appellant

on two counts of aggravated trafficking in drugs (methamphetamine) in violation of R.C.

2925.03, two counts of aggravated possession of drugs (methamphetamine and

Hydrocodone) in violation of R.C. 2925.11, and one count of possession of drugs

(Zolpidem) in violation of R.C. 2925.11.

{¶ 3} On October 4, 2016, appellant pled guilty as charged. By judgment entry

filed same date, the trial court sentenced appellant to fifteen months each on the

trafficking counts, thirty months on the aggravated possession of methamphetamine

count, nine months on the aggravated possession of Hydrocodone count, and nine

months on the possession of Zolpidem count, to be serve consecutively, for a total term

of seventy-eight months in prison.

{¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 5} "FAILURE TO MERGE APPELLANT'S THREE CONVICTIONS FOR

DRUG POSSESSION VIOLATED THE PROTECTIONS EMBODIED IN OHIO'S

ALLIED OFFENSE STATUTE R.C. § 2941.25." Licking County, Case No. 16-CA-87 3

I

{¶ 6} In her sole assignment of error, appellant claims the trial court erred in not

merging her three drug possession convictions in violation of R.C. 2941.25. We

disagree.

{¶ 7} R.C. 2941.25 governs multiple counts and states the following:

(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.

{¶ 8} In State v. Ruff,

,

,

,

syllabus, the Supreme Court of Ohio held the following:

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. Licking County, Case No. 16-CA-87 4

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.

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.

{¶ 9} The Ruff court explained at ¶ 26:

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 Licking County, Case No. 16-CA-87 5

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.

{¶ 10} In this case, appellant pled guilty to three possession counts: two counts

of aggravated possession of drugs (methamphetamine and Hydrocodone) and one

count of possession of drugs (Zolpidem), all in violation of R.C. 2925.11. She received

thirty months for the methamphetamine, and nine months each for the Hydrocodone

and Zolpidem.

{¶ 11} Pursuant to the indictment filed on February 11, 2016 and the bill of

particulars filed on July 1, 2016, appellant possessed all the aforementioned drugs on

December 8, 2015.

{¶ 12} In State v. Hughes, 5th Dist. Coshocton No. 15CA0008,

,

this court reviewed this exact issue. In Hughes, the defendant was convicted of four

counts of possession for possessing heroin, cocaine, Alprazolam, and Buprenorphrine,

all discovered in a safe pursuant to a search warrant on July 2, 2014. This court noted

at ¶ 24, "pursuant to R.C. 2925.11, each of the controlled substances at issue in the

instant case is classified and penalized differently based upon its type and quantity. It

would thus defeat the legislature’s intent to merge the drug possession offenses into a

single offense for purposes of sentencing." The Hughes court concluded the counts

were not allied offenses of similar import and did not merge for sentencing, stating the

following at ¶ 25: Licking County, Case No. 16-CA-87 6

Other courts have agreed the legislature clearly intended

possession of different drug groups constitutes different offenses, thus if

different drugs and different bulk amounts are involved, "[m]erger as allied

offenses is simply not correct * * *." Houston v. Erdos, S.D.Ohio No. 1:14-

CV-956,

, *12 (Jan. 12, 2016), citing Delfino, supra, 22

Ohio St.3d at 274 and Westbrook, supra,

at ¶ 43. See

also, State v. Santiago, 8th Dist. Cuyahoga No. 101601,

,

¶ 12 [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. Johnson, 6th Dist. Ottawa No.

OT-13-022,

[simultaneous possession of heroin, cocaine,

and oxycodone did not constitute allied offenses of similar import for

sentencing because simultaneous possession of different types of

controlled substances can constitute multiple offenses under R.C.

2925.11]; State v. Huber, 2nd Dist. Clark No. 2010-CA-83, 2011-Ohio-

6175 [convictions for possession of methadone, hydrocodone, oxycodone,

and fentanyl did not merge because legislature intended possession of

different drug groups constitutes different offenses under R.C. 2925.11];

State v. Heflin, 6th Dist. Lucas No. L-11-113,

[convictions

for simultaneous possession of cocaine and heroin are not subject to

merger as allied offenses of similar import under R.C. 2941.25]; State v.

Helmick, 9th Dist. Summit No. 27179,

[possession of Licking County, Case No. 16-CA-87 7

methamphetamine and marijuana are not allied and not subject to

merger].

{¶ 13} Based on this court's decision in Hughes, we find the trial court in this

case did not err in not merging the three drug possession convictions.

{¶ 14} The sole assignment of error is denied.

{¶ 15} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Hoffman, J. concur.

EEW/sg 413