[Cite as State v. Alhashimi,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NOS. CA2016-07-065 Plaintiff-Appellee, : CA2017-07-066

: OPINION - vs - 9/18/2017 :

JACOB H. ALHASHIMI, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 14CR30632

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

William F. Oswall, Jr., 119 East Court Street, Suite 311, Cincinnati, Ohio 45202, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Jacob H. Alhashimi, appeals his conviction and sentence

in the Warren County Court of Common Pleas.

{¶ 2} On December 18, 2014, the Warren County Grand Jury returned a ten-count

indictment charging Alhashimi with six felony counts of aggravated trafficking in drugs, three

felony counts of trafficking in cocaine, and one felony count of permitting drug use. On

December 31, 2014, the state filed a superseding indictment that was identical to the first, Warren CA2016-07-065 CA2016-07-066

except that Count 9 for aggravated trafficking in drugs included a major drug offender

specification. The first indictment was dismissed. Alhashimi waived his right to a jury and

the matter proceeded to a bench trial on June 18, 2015. The trial revealed the following

facts.

{¶ 3} On September 23, 2014, Alhashimi met with Detective A.K., an undercover

officer of the Warren County Drug Task Force, at a grocery store parking lot in Springboro,

Ohio to purchase 50 unit doses of ecstasy.1 A.K. successfully purchased 50 tablets for $300

in prerecorded money. Testing by the Miami Valley Regional Crime Lab revealed the tablets

contained ethylone and cocaine, Schedule I and II controlled substances, respectively.

Shortly after the first purchase, A.K. and Alhashimi discussed over the telephone the

purchase of another 50 unit doses of ecstasy. During this discussion, Alhashimi indicated

the tablets would be "double stacked or triple stacked", and thus, "they were more potent

than the first set."

{¶ 4} On October 6, 2014, A.K. and Alhashimi met again in the Springboro grocery

store parking lot where Alhashimi handed A.K. 50 tablets in exchange for $300 in

prerecorded money. The tablets tested positive for ethylone and cocaine. Following this

second transaction, A.K. and Alhashimi discussed over the telephone the possibility of a

larger transaction. The two agreed, and on October 17, 2014, met at a supercenter parking

lot in Lebanon, Ohio, where Alhashimi handed A.K. 100 tablets in exchange for $600 in

prerecorded money. Officers in a surveillance vehicle nearby photographed the transaction

and several juveniles in the parking lot at the time of the transaction. Officers later returned

to the parking lot to investigate the distance between parking spots using their stride as a unit

of measurement. Testing of the tablets indicated some contained ethylone, while others

1. We note that the names of the undercover officers are omitted to protect the individual officers' identities.

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contained Ibuprofen and caffeine. Following the third transaction, A.K. communicated to

Alhashimi an interest in purchasing 1,000 tablets. Alhashimi responded, "that is a big

number. He can get it, but he is not ready to go to jail yet." Alhashimi further informed A.K.

that he could also sell him heroin for a specified price.

{¶ 5} On October 27, 2014, the two further discussed the larger order. The two

discussed purchasing 1,000 tablets in exchange for $5,000, and Alhashimi indicated he did

not want to provide the tablets all at once. The two agreed to exchange the tablets over

three days in increments of 200, 200, and 500. Subsequent to this agreement, Alhashimi

informed A.K. that his partner wanted him to raise the price to $5,500 due to the quality of the

tablets. In addition to testimony regarding these conversations, the trial court permitted the

use of a text message conversation regarding the purchase to refresh a witness' recollection.

The prosecutor disclosed the text message conversation immediately upon its discovery,

which was approximately 48 hours before the start of trial.

{¶ 6} On October 29, 2014, the first of three installments in the large order occurred

at the supercenter in Lebanon, Ohio, where Alhashimi exchanged 200 tablets for $1,100 in

prerecorded money. Alhashimi indicated the tablets "contained more cocaine and that was

the reason [A.K.] was paying $5.50 instead $5 per unit." The bag exchanged between the

two contained 199 tablets, which did not test positive for any controlled substances. Officers

in a surveillance vehicle nearby photographed the transaction and several juveniles in the

parking lot at the time of the transaction.

{¶ 7} On October 30, 2014, the second installment in the large purchase occurred at

a retail store in Lebanon, Ohio. The two exchanged 300 tablets for $1,650 in prerecorded

money. The bag exchanged between the two contained 294 tablets, six of which tested

positive for ethylone. On October 31, 2014, the third installment in the large purchase

occurred at a restaurant in Lebanon, Ohio. The two exchanged 500 tablets for $2,750 in

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prerecorded money. The transaction occurred inside the restaurant. The bag exchanged

between the two contained 499 tablets, 201 of which contained ethylone. Upon leaving the

restaurant, police arrested Alhashimi. Officers in a surveillance vehicle nearby photographed

several juveniles entering the restaurant while Alhashimi and A.K. were inside.

{¶ 8} The trial court found Alhashimi guilty on all counts except Count 9 and the

major drug offender specification. The trial court found him guilty of the following offenses:

(1) Count 1 – aggravated trafficking in drugs on September 23, 2014, a second-degree

felony, (2) Count 2 – trafficking in cocaine on September 23, 2014, a fifth-degree felony, (3)

Count 3 – aggravated trafficking in drugs on October 6, 2014, a third-degree felony, (4) Count

4 – trafficking in cocaine on October 6, 2014, a fifth-degree felony, (5) Count 5 – aggravated

trafficking in drugs within the vicinity of a juvenile on October 17, 2014, a first-degree felony,

(6) Count 6 – trafficking in cocaine within the vicinity of a juvenile on October 29, 2014, a

fourth-degree felony, (7) Count 7 – aggravated trafficking in drugs on October 30, 2014, a

fourth-degree felony, (8) Count 8 – aggravated trafficking in drugs within the vicinity of a

juvenile on October 31, 2014, a first-degree felony, and (10) Count 10 – permitting drug use

from September 1, 2014 to October 31, 2014, a fifth-degree felony.

{¶ 9} The trial court sentenced Alhashimi to a mandatory five-year prison term on

Counts 1, 5, and 8, to be served concurrently with each other; to a 12-month prison term on

Counts 2 and 4, to be served concurrently with each other, but consecutively to Counts 1, 5,

and 8; to a12-month prison term on Count 3, to be served consecutive to all other sentences;

to a 12-month prison term on Counts 6 and 7, to be served concurrently with each other, but

consecutively to all other sentences. Therefore, the trial court sentenced Alhashimi to an

aggregate eight-year prison term, five years of which was mandatory. The trial court found

the consecutive sentences were necessary to punish Alhashimi and to protect the public.

The trial court found the consecutive sentences were consistent with the principles and

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purposes of sentencing and not disproportionate to Alhashimi's conduct and the danger he

poses to the public.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL [COURT] ERRED WHEN IT REFUSED TO ALLOW AN

INSPECTION OF THE GRAND JURY TRANSCRIPT.

{¶ 12} Assignment of Error No. 2:

{¶ 13} DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF COUNSEL.

{¶ 14} Alhashimi contends the trial court abused its discretion by denying his request

for an in camera review of the grand jury transcripts because he demonstrated a

particularized need for disclosing the transcripts that outweighed the state's need for secrecy

in the proceedings. In so doing, Alhashimi argues he met the requirements for disclosure

because the first indictment did not contain a major offender specification and he had

individual concerns regarding who provided testimony at the second grand jury proceeding.

Alhashimi further claims the trial court erred by denying his request without first inspecting

the transcripts to determine whether Alhashimi presented a viable issue.

{¶ 15} Crim.R. 6(E) governs the disclosure of grand jury testimony, which provides

[a] * * * prosecuting attorney * * * may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

{¶ 16} The Ohio Supreme Court stated that grand jury proceedings are secret, and

thus, a defendant has no right to inspect grand jury transcripts either before or during trial

unless the "ends of justice require it and there is a showing by the defense that a

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particularized need for disclosure exists which outweighs the need for secrecy." State v.

Greer,

(1981), paragraph two of the syllabus. A defendant establishes a

particularized need for grand jury transcripts when the circumstances reveal a probability that

"the failure to disclose the testimony will deprive the defendant of a fair adjudication of the

allegations placed in issue by the witness' trial testimony."

at paragraph three of the

syllabus.

{¶ 17} This determination is a fact question left to the sound discretion of the trial

court. State v. Widmer, 12th Dist. Warren No. CA2012-02-008,

, citing

Greer at paragraphs one and three of the syllabus. Accordingly, "[a] decision denying the

release of the grand jury transcript will not be reversed absent an abuse of discretion."

Widmer at ¶ 154, citing State v. Coley,

(2001). An abuse of

discretion is more than an error of law or judgment. Rather, it suggests the "trial court's

decision was unreasonable, arbitrary or unconscionable." State v. Perkins, 12th Dist. Clinton

No. CA2005-01-002,

. "A review under the abuse-of-discretion standard

is a deferential review." State v. Morris,

,

.

{¶ 18} The trial court denied Alhashimi's request at the close of evidence for an in

camera review of the grand jury transcripts because it was untimely pursuant to Crim.R.

12(C) and moot due to the trial court's not guilty verdict with respect to Count 9. We find the

trial court did not abuse its discretion by denying Alhashimi's request.

{¶ 19} Pursuant to Crim.R. 12(C)(2), defects in the indictment, other than failure to

show jurisdiction in the court or to charge an offense, must be raised prior to trial.

"Therefore, absent a jurisdictional question, an attack on the validity of an indictment via a

pretrial motion should be brought before the trial court as provided by Crim.R. 12." State v.

Rohde, 2d Dist. Montgomery No. 26087,

. Specifically, Crim.R. 12(D)

provides that all pretrial motions, with some specified exceptions, must be made within 35 -6- Warren CA2016-07-065 CA2016-07-066

days after arraignment or seven days before trial, whichever is earlier.

{¶ 20} Alhashimi claims his concerns with the indictment process did not arise until

trial; therefore, he could not have raised them within the parameters of Crim.R. 12.

Alhashimi's concern involves the major drug offender specification added to Count 9.

However, the addition of the specification occurred on December 31, 2014 and the trial did

not begin until June 18, 2015. Moreover, Alhashimi's counsel indicated to the trial court on

the morning before trial that he intended to request an in camera review of the grand jury

testimony. Thus, Alhashimi was aware of the addition of the specification in advance of trial.

Additionally, the trial court did not err in finding its acquittal of Alhashimi on Count 9 with the

major drug offender specification rendered Alhashimi's request moot because the scope of

Alhashimi's request was limited to Count 9. See State v. Skatzes, 2d Dist. Montgomery No.

15848,

, ¶ 414 (finding motion for disclosure of grand jury transcripts moot

where the basis for the alleged error was obviated). Accordingly, the trial court did not abuse

its discretion by finding Alhashimi's request at the close of evidence untimely and moot. The

trial court did not err in making such findings without independently reviewing the transcripts,

as the law does not require such.

{¶ 21} Furthermore, Alhashimi's request was an attempt to review the grand jury

transcripts for potential irregularities that may have aided him at trial. However, speculation

in exploring the grand jury transcripts does not meet Alhashimi's burden to demonstrate a

"particularized need." Accord State v. Neiderhelman, 12th Dist. Clermont No. CA94-10-081,

, *21 (Sept. 18, 1995) ("[a]ppellant's speculation or assertion that

a review of the grand jury testimony would reveal inconsistencies is insufficient to show the

existence of a particularized need as such an argument could be made in every case").

{¶ 22} Alhashimi further argues he was denied the effective assistance of trial

counsel because his counsel failed to timely file a motion challenging the grand jury

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proceedings in advance of the trial date. Therefore, Alhashimi contends any waiver of the

issue due to his trial counsel's failure prejudiced him.

{¶ 23} To prevail on an ineffective assistance of counsel claim, an appellant must

establish: (1) that his trial counsel's performance was deficient; and (2) that such deficiency

prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.

Washington,

,

(1984); State v. Ullman, 12th Dist.

Warren No. CA2002-10-110,

, ¶ 43. Trial counsel's performance will not be

deemed deficient unless it "fell below an objective standard of reasonableness."

. To show prejudice, a defendant must prove there exists "a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." State v. Wilson, 12th Dist. Madison No. CA2013-10-034,

.

A defendant's failure to satisfy one part of the Strickland test negates a court's need to

consider the other. State v. Hurst, 12th Dist. Brown No. CA2014-02-004,

.

{¶ 24} Even assuming deficiency by Alhashimi's trial counsel for failing to timely file a

request for an in camera review of the grand jury transcripts, Alhashimi's claim for ineffective

assistance of counsel fails because he cannot demonstrate any resulting prejudice. As

detailed above, the trial court did not abuse its discretion in denying the request as moot.

Therefore, Alhashimi cannot demonstrate that but for his trial counsel's failure to timely file

such request, the result of the proceedings would have been different, as the trial court

acquitted Alhashimi of the charge underlying his request.

{¶ 25} Accordingly, Alhashimi's first and second assignments of error are overruled.

{¶ 26} Assignment of Error No. 3:

{¶ 27} THE TRIAL COURT ERRED IN CONVICTING DEFEND[AN]T-APPELLANT

OF COUNT 6 AND ITS SPECIFICATION, COUNT 10, AND THE SPECIFICATIONS TO -8- Warren CA2016-07-065 CA2016-07-066

COUNTS 5 AND 8 FOR INSUFFICIENT EVIDENCE.

{¶ 28} Alhashimi contends his convictions for aggravated trafficking in drugs within

the vicinity of a juvenile in Count 5, trafficking in cocaine within the vicinity of a juvenile in

Count 6, aggravated trafficking in drugs within the vicinity of a juvenile in Count 8, and

permitting drug use in Count 10 are not supported by sufficient evidence.

{¶ 29} Sufficiency of the evidence is the legal standard applied to determine whether

the case may go to the jury or whether the evidence is legally sufficient to support the jury

verdict as a matter of law. State v. Thompkins,

(1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith,

(1997), citing Black's Law Dictionary (6th Ed. 1990) 1433. A conviction based on legally

insufficient evidence constitutes a denial of due process. Tibbs v. Florida,

,

(1982), citing Jackson v. Virginia,

,

(1979).

The 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,

(1991),

superseded by constitutional amendment on other grounds as stated by

.

{¶ 30} Alhashimi argues the state failed to present sufficient evidence for his

conviction for trafficking in cocaine within the vicinity of a juvenile in Count 6 because

laboratory testing did not indicate the presence of any controlled substances in the tablets

sold on October 29, 2014. Thus, Alhashimi argues a conviction pursuant to R.C.

2925.03(A)(1) must be based on the physical exchange of actual cocaine, rather than, the

intent to traffic what the accused represented as cocaine. Alhashimi further argues he did

not offer to sell cocaine to the undercover officer because the transaction only pertained to

ecstasy tablets.

{¶ 31} R.C. 2925.03(A)(1) provides "[n]o person shall knowingly * * * [s]ell or offer to -9- Warren CA2016-07-065 CA2016-07-066

sell a controlled substance * * *." Contrary to Alhashimi's claim otherwise, "[a] person can

'offer to sell a controlled substance' in violation of R.C. 2925.03(A)(1) without transferring a

controlled substance to the buyer." State v. Scott,

(1982), syllabus.

Therefore, it is immaterial whether the testing of the tablets exchanged for money between

Alhashimi and A.K. indicated any controlled substances. Rather, "[b]y using the phrase 'offer

to sell' in the disjunctive with 'sell' throughout R.C. 2925.03, the General Assembly expressly

and properly prohibited" marketing and offering to sell a controlled substance "as a form of

trafficking in drugs."

; State v. Siggers, 9th Dist. Medina No. 09CA0028-M, 2010-

Ohio-1353, ¶ 13 (stating R.C. 2925.03[I] codifies Ohio Supreme Court case law establishing

that "drug" pursuant to the statute includes any substance represented to be a drug).

{¶ 32} With respect to the details of the offer to sell a controlled substance on

October 29, 2014, A.K. testified extensively regarding multiple conversations with Alhashimi

arranging the purchase of 1,000 ecstasy tablets split between three separate installments.

During one of the conversations, Alhashimi explained an increase in purchase price from $5

to $5.50 because the tablets "contained more cocaine." Viewing this evidence in a light most

favorable to the state, a rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. Therefore, the state presented sufficient evidence

for Alhashimi's conviction for trafficking in cocaine in Count 6.

{¶ 33} Alhashimi next argues the state failed to present sufficient evidence for his

conviction for permitting drug use in Count 10 because he cannot be convicted of permitting

his vehicle to be used in a felony drug abuse offense when he was "user" of the vehicle.

{¶ 34} R.C. 2925.13(A) provides that

[n]o person who is the owner, operator, or person in charge of a locomotive, watercraft, aircraft, or other vehicle, as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit the vehicle to be used for the commission of a felony drug abuse offense.

- 10 - Warren CA2016-07-065 CA2016-07-066

The plain language of the statute does not support Alhashimi's contention that the statute

does not prohibit the use of a vehicle to carry out a drug transaction. Rather, R.C.

2925.13(A) clearly states that no operator of a vehicle shall knowingly permit the vehicle to

be used to carry out a felony drug abuse offense. The state presented testimony and

photographic evidence that Alhashimi drove the vehicle in question to transport himself and

the illegal drugs to the various drug transaction meeting points. "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). Considering

the testimony regarding several conversations to arrange the various drug transactions, the

state presented sufficient evidence that Alhashimi operated the motor vehicle cognizant that

driving to the prearranged destinations with the illegal drugs would probably cause the result

of the sale of such drugs. The evidence, viewed in a light most favorable to the state, is

legally sufficient to support the verdict as a matter of law.

{¶ 34} Next, Alhashimi argues the state failed to present sufficient evidence for the "in

the vicinity of a juvenile" specifications to Counts 5, 6, and 8. Alhashimi contends the state

failed to present evidence of the specific age of the alleged juveniles and that the alleged

juveniles were within the vicinity at the exact moment the money and drugs were exchanged.

{¶ 35} R.C. 2925.01(BB) provides

[a]n offense is 'committed in the vicinity of a juvenile' if the offender commits the offense within one hundred feet of a juvenile or within the view of a juvenile, regardless of whether the offender knows the age of the juvenile, whether the offender knows the offense is being committed within one hundred feet of or within view of the juvenile, or whether the juvenile actually views the commission of the offense.

{¶ 36} We find the state presented sufficient evidence that the transactions occurred

within 100 feet of a juvenile. Contrary to Alhashimi's claim otherwise, R.C. 2925.01(BB)

"does not require the state to prove the specific age of the alleged juvenile, but rather, that

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such individual is under the age of eighteen." State v. Creech, 12th Dist. Fayette No.

CA2006-05-019,

. Similar to Creech, the state presented testimony

that the officers personally observed juveniles within 100 feet of the area where the

transaction occurred. A.K. and additional officers in the on-site surveillance vehicle were

afforded the opportunity to observe their surroundings and the individuals present at the time,

including the individuals' physical characteristics. In addition to officer testimony, the state

presented photographic evidence of the alleged juveniles documenting their location in

proximity to area of the transactions. Viewing this evidence in a light most favorable to the

state, we find there was sufficient evidence presented to support the juvenile specifications.

See, e.g., State v. Fannin, 8th Dist. Cuyahoga No. 80014,

, ¶ 121-22 (finding

officer testimony describing observations of juveniles in the area of the transaction sufficient

to support a conviction on a juvenile specification).

{¶ 37} Alhashimi further claims the state failed to present evidence the juveniles were

within 100 feet of the transactions at the exact moment the transactions occurred. With

regards to the parking lot transactions in Counts 5 and 6, an officer from the surveillance

vehicle testified he began photographing the parking lots once the transaction began to

document any juveniles within the vicinity of the transaction area. The officer explained he

does not photograph any areas that are not within 100 feet of the transaction.

{¶ 38} With respect to the restaurant transaction in Count 8, A.K. testified the

transaction occurred within the restaurant. The officer from the surveillance van testified that

juveniles entered the restaurant while A.K. and Alhashimi were inside. The state supported

this testimony with photographic evidence. Additionally, a juvenile was simultaneously

entering the restaurant as Alhashimi was exiting. Considering the close proximity of diners

within the same restaurant, circumstantial evidence establishes juveniles were within 100 feet

of A.K. and Alhashimi at the time of the drug transaction. See State v. Douglas, 3d Dist.

- 12 - Warren CA2016-07-065 CA2016-07-066

Marion No. 9-07-58,

(finding state presented sufficient evidence to

satisfy R.C. 2925.01[BB] where the jury could find a juvenile was within 100 feet of drug

transaction when the juvenile was outside, but in close proximity to, the house where the

transaction occurred).

{¶ 39} Finally, Alhashimi contends he was denied the effective assistance of trial

counsel because his counsel failed to address the evidence insufficiency issues with respect

to Counts 6 and 10 during his Crim.R. 29 motions. Since we found Alhashimi's convictions

on Counts 6 and 10 were supported by sufficient evidence, his trial counsel was not deficient

for the lack of a motion for acquittal in regards to Counts 6 and 10.

{¶ 40} Accordingly, Alhashimi's third assignment of error is overruled.

{¶ 41} Assignment of Error No. 4:

{¶ 42} THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO MERGE

COUNTS 1 AND 2, AND IN FAILING TO MERGE COUNTS 3 AND 4, AND IN FAILING TO

MERGE COUNT 10 WITH ALL OTHER COUNTS OF THE INDICTMENT.

{¶ 43} Alhashimi argues the trial court erred by not merging as allied offenses of

similar import Counts 1 and 2, and Counts 3 and 4, because the tablets sold in those

transactions contained two different controlled substances. Thus, Alhashimi asserts that the

sale of a single tablet containing two different controlled substances can only result in one

conviction. Alhashimi further argues the trial court erred by not merging his conviction in

Count 10 with the remainder of the convictions because the offense occurred at the same

time, without a separate animus, and did not result in separate harm.

{¶ 44} "It is well-established that an appellant's failure to raise an argument with

regard to allied offenses in the trial court constitutes a waiver of that argument on appeal."

State v. Thomas, 12th Dist. Butler No. CA2006-03-041,

. Alhashimi did

not pose these arguments before the trial court; therefore, the arguments are reviewed for - 13 - Warren CA2016-07-065 CA2016-07-066

plain error. Id. at ¶ 33-35. "Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court." Crim.R. 52(B). Plain error does

not exist unless the error is obvious and but for the error, the outcome of the case would

have been different. State v. Blacker, 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-

5519, ¶ 39. Notice of plain error is taken with the utmost caution and only under exceptional

circumstances to prevent a manifest miscarriage of justice. Id.

{¶ 45} Pursuant to R.C. 2941.25, a trial court shall not impose multiple punishments

for the same criminal conduct. The statute provides:

(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.

{¶ 46} "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." State v. Ruff,

,

, paragraph one

of the syllabus. If any of the following are true, a defendant's convictions do not merge and

he or she may be sentenced for multiple offenses: "(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."

at paragraph

three of the syllabus. Two or more offenses are of dissimilar import if "the defendant's

conduct constitutes offenses involving separate victims or if the harm that results from each

offense is separate and identifiable."

at paragraph two of the syllabus.

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{¶ 47} "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. Therefore, the

analysis "may result in varying results for the same set of offenses in different cases." State

v. Johnson,

,

, abrogated in part by Ruff at ¶ 30-33.

In making this determination pursuant to R.C. 2941.25, a court must review the entire record.

State v. Washington,

,

. The burden lies with the

defendant to establish 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.

{¶ 48} R.C. 2925.03(C)(1) provides

[i]f the drug involved in the violation is any compound, mixture, preparation, or substance included in schedule I or schedule 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 trafficking in drugs.

R.C. 2925.03(C)(4) provides "[i]f the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates division (A) of this

section is guilty of trafficking in cocaine." Where a defendant is convicted of separate

trafficking offenses involving different types of drugs, each offense requires proof specific to

that drug and cannot be supported by trafficking in a different controlled substance. Accord

State v. Daniels, 12th Dist. Fayette No. CA2014-05-010,

, ¶ 17 (finding

trafficking offenses for heroin, cocaine, and methadone were not allied offenses of similar

import).

{¶ 49} Alhashimi's trafficking convictions involved two different controlled substances,

cocaine and ethylone, and thus, pursuant to R.C. 2925.01(A)(1), (C)(1), and (C)(4), each

conviction could not be supported by trafficking in the other illegal drug. Alhashimi's

- 15 - Warren CA2016-07-065 CA2016-07-066

convictions in Counts 1 and 3 pertained to the ethylone. Whereas, his convictions in Counts

2 and 4 involved the cocaine. The state charged the trafficking in cocaine offenses as fifth-

degree felonies; therefore, the offenses did not depend in any respect on the quantity of

cocaine or its combination with the ethylone to elevate the degree of the offense.

{¶ 50} Additionally, R.C. 2925.01(D)(1)(C) defines the "bulk amount" for a schedule I

controlled substance, such as ethylone, as "[a]n amount equal to or exceeding thirty grams or

ten unit doses of a compound, mixture, preparation, or substance that is or contains any

amount of a Schedule I hallucinogen * * *, or a schedule I stimulate or depressant." In turn,

R.C. 2925.01(E) defines a "unit dose" as "an amount or unit of a compound, mixture, or

preparation containing a controlled substance that is separately identifiable and in a form that

indicates that it is the amount or unit by which the controlled substance is separately

administered to or taken by an individual." Thus, the trafficking statutes contemplate the

combination of controlled substances by using the language "a compound, mixture or

preparation containing a controlled substance." Therefore, neither Counts 1 and 2 nor

Counts 3 and 4 were allied offenses of similar import because the tablets sold by Alhashimi

contained both cocaine and ethylone, and the trafficking in cocaine convictions were not

elevated in degree based on the amount sold.2

{¶ 51} With respect to Count 10, the conduct and harm of knowingly permitting the

vehicle to be used for the commission of the trafficking offenses was separate from the

conduct and harm of exchanging the controlled substances for the prerecorded money. The

2. We note the dissent in State v. Woodard raised concerns regarding separate convictions resulting from a sale of a mixture of drugs. State v. Woodard, 12th Dist. Warren No. CA2016-09-084,

(Ringland, J., concurring in part and dissenting in part) (discussing concerns regarding enhanced penalties for increased bulk weight offenses from drug mixtures and the lack of evidence the appellant knew the baggie of drugs at issue contained both heroin and fentanyl). However, unlike Woodard, these concerns are nonexistent in this case because the record contains ample evidence that Alhashimi exchanged the tablets with knowledge they contained both cocaine and ethylone, and as discussed above, Alhashimi did not face enhanced penalties based on the mixture.

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transport of Alhashimi and the controlled substances to the various meeting locations to

make the transactions was complete when the vehicle entered and parked in the parking lots.

Thus, the initial offense of permitting drug abuse was complete before the separate conduct

supporting the trafficking offenses was undertaken. See, e.g., State v. Back, 12th Dist. Butler

Nos. CA2015-03-037 and CA2015-03-038,

(holding offenses were not

allied offenses of similar import where the individual conduct supported the initial offense and

separate conduct after completion of the initial offense supported the second offense).

Therefore, Count 10 was not an allied offense of similar import to the rest of the counts.

{¶ 52} Accordingly, Alhashimi's fourth assignment of error is overruled.

{¶ 53} Assignment of Error No. 5:

{¶ 54} DEFENDANT-APPELLANT'S CONVICTION MUST BE REVERSED

BECAUSE THE TRIAL COURT PERMITTED THE STATE TO COMMIT DISCOVERY

VIOLATIONS.

{¶ 55} Alhashimi argues the trial court erred by not excluding evidence regarding the

officer's testimony that he used his stride to measure the distance between parking spots at

the supercenter parking lot because it was a scientific test the state failed to provide in

discovery in violation of Crim.R. 16. Alhashimi further asserts the trial erred by permitting the

state to use text messages between Alhashimi and A.K. to refresh a witness's recollection

that the prosecutor provided to the defense less than 48 hours before trial.

{¶ 56} Crim.R. 16 governs discovery in criminal prosecutions. State v. Wilson, 12th

Dist. Butler No. CA2012-12-254,

. Violations of Crim.R. 16 constitute

reversible error "only when there is a showing that (1) the prosecution's failure to disclose

was a willful violation of the rule, (2) foreknowledge of the information would have benefited

the accused in the preparation of his defense, and (3) the accused suffered some prejudicial

effect." State v. Joseph,

(1995). Whether to grant or deny discovery - 17 - Warren CA2016-07-065 CA2016-07-066

motions in a criminal case is left to the sound discretion of the trial court. State v. Shoop,

(3d Dist. 1993).

{¶ 57} Crim.R. 16(B)(4) provides that the state shall, upon a written demand for

discovery by the defendant, provide to the defense "results of physical or mental

examinations, experiments or scientific tests." Contrary to Alhashimi's claim otherwise, the

officer's testimony regarding his stride measurements in the parking lot does not constitute a

scientific test. See State v. Goble,

(9th Dist. 1982), paragraph two of the

syllabus (finding "common-sense" investigative work performed by an officer regarding

possible routes taken by a defendant does not constitute discoverable "scientific tests or

experiments"). Rather, the stride measurements taken by the officer constituted routine

police observations and Alhashimi had the opportunity to cross-examine the officer on the

issue. Further, Alhashimi was on notice that the state intended to present evidence

regarding juveniles within 100 feet of the area of the transaction, as discussed above.

Therefore, the trial court did not abuse its discretion in permitting testimony regarding the

officer's stride measurements.

{¶ 58} With respect to the text messages, the trial court found the prosecutor did not

willfully fail to disclose the text messages, but limited the scope of the messages use at trial

to refreshing a witness' recollection or as demonstrative aids. Assuming arguendo the

prosecutor willfully failed to disclose the text messages, Alhashimi does not assert any

resulting prejudicial effect. While Alhashimi expresses his displeasure with the timing of the

prosecutor's disclosure of the text messages, he does not demonstrate how the timing of the

disclosure prejudiced him. See State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-

Ohio-7913, ¶ 13 (finding appellant's claim pursuant to Crim.R. 16 failed because appellant

could not demonstrate any resulting prejudice); State v. Self,

(12th

Dist. 1996) ("[i]n the absence of any showing of * * * prejudice to appellant, we cannot say

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that the trial court abused its discretion in denying appellant's discovery motions").

Therefore, the trial court did not abuse its discretion in permitting the text messages to be

used in a limited capacity.

{¶ 59} Accordingly, Alhashimi's fifth assignment of error is overruled.

{¶ 60} Assignment of Error No. 6:

{¶ 61} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.

{¶ 62} Alhashimi contends the trial court erred in imposing consecutive sentences

because the record clearly did not support its findings that the harm caused by the offenses

was so great or unusual that no single prison term could adequately reflect the seriousness

of Alhashimi's conduct.

{¶ 63} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.

State v. Marcum,

,

; accord State v. Crawford, 12th

Dist. Clermont No. CA2012-12-088,

. Pursuant to R.C. 2953.08(G)(2),

when hearing an appeal of a trial court’s felony sentencing decision, “[t]he appellate court

may increase, reduce, or otherwise modify a sentence that is appealed under this section or

may vacate the sentence and remand the matter to the sentencing court for resentencing.”

{¶ 64} As explained in Marcum, "[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion."

. Rather, pursuant to

R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a

sentence * * * or may vacate the sentence and remand the matter to the sentencing court for

resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does

not support the sentencing court’s findings[,]" or "(b) [t]hat the sentence is otherwise contrary

to law." R.C. 2953.08(G)(2)(a)-(b). A sentence is not "clearly and convincingly contrary to

law where the trial court considers the principles and purposes of R.C. 2929.11, as well as

the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the - 19 - Warren CA2016-07-065 CA2016-07-066

defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No.

CA2015-06-100,

, citing State v. Moore, 12th Dist. Clermont No.

CA2014-02-016,

.

{¶ 65} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Blair,

12th Dist. Butler No. CA2014-01-023,

, ¶ 52.

First, the trial court must find the consecutive sentence is necessary to protect the public from future crime or to punish the offender. Second, the trial court must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Third, the trial court must find that at least one of the three circumstances listed in R.C. 2929.14(C)(4)(a)-(c) appl[y].

(Citations omitted.)

{¶ 66} R.C. 2929.14(C)(4)(a)-(c) provides:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 67} A trial court is not required to articulate reasons supporting its statutory

findings and need not provide a word-for-word recitation of the statutory language to satisfy

its requirement for imposing consecutive sentences. State v. Childers, 12th Dist. Warren No.

CA2014-02-034,

. "Nevertheless, the record must reflect that the trial

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court engaged in the required sentencing analysis and made the requisite findings." State v.

Moore, 12th Dist. Clermont No. CA2014-02-016,

. The trial court must

then incorporate such findings into its sentencing entry.

{¶ 68} After a thorough review of the record, we find no error in the trial court's

decision to impose consecutive sentences. The record reflects that Alhashimi's sentences

are not clearly and convincingly contrary to law because the trial court considered the

principles and purposes of R.C. 2929.11 and the factors listed in R.C. 2929.12, imposed

postrelease control, and sentenced Alhashimi within the permissible statutory range.

Furthermore, the trial court's sentencing entry explicitly reflects that the trial court:

considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under R.C. 2929.11. The Court has balanced the seriousness and recidivism factors under R.C. 2929.12 and considered the factors under R.C. 2929.13. The Court inquired if the Defendant had anything to say in mitigation regarding the sentence.

{¶ 69} Additionally, the record clearly supports the trial court's finding that the harm

caused by the offenses was so great and unusual that no single prison term adequately

reflects the seriousness of Alhashimi's conduct. Prior to sentencing Alhashimi to consecutive

sentences, the trial court discussed the seriousness of Alhashimi's conduct. The trial court

acknowledged the volume of illegal drugs involved and stated that it thought Alhashimi "knew

exactly what [he was] doing in terms of arranging [the] offenses on multiple days" to avoid the

major drug offender specification. The trial court further noted Alhashimi represented to A.K.

the drugs he sold contained controlled substances when they sometimes did not contain

such. The trial court stated, "selling people fake drugs sometimes creates more problems

and more violence than does some of the actual drugs."

{¶ 70} In light of these facts, the trial court decided to impose consecutive sentences.

The trial court noted that in imposing consecutive sentences it had considered the principles

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and purposes of R.C. 2929.11. The trial court found imposing consecutive sentences was

necessary to the protect the public and to punish Alhashimi, not disproportionate to the

seriousness of his conduct and the danger he poses to the public, and the harm caused was

so great or unusual that no single prison term would adequately reflect the seriousness of the

conduct. The trial court memorialized these findings in its sentencing entry.

{¶ 71} From the trial court's statements at the sentencing hearing and the language

utilized in the sentencing entry, it is clear the trial court complied with the dictates of R.C.

2929.14(C)(4). See State v. Philpot, 12th Dist. Clermont No. CA2013-02-009, 2013-Ohio-

4534, ¶ 15. Therefore, the trial court did not err in imposing consecutive sentences and

Alhashimi's sixth assignment of error is overruled.

{¶ 72} Judgment affirmed.

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

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