[Cite as State v. Bowen,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2017-0103 : CHRISTOPHER A. BOWEN : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0118

JUDGMENT: AFFIRMED IN PART; REMANDED IN PART FOR RESENTENCING

DATE OF JUDGMENT ENTRY: October 15, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

D. MICHAEL HADDOX JAMES A. ANZELMO MUSKINGUM COUNTY PROSECUTOR 446 Howland Drive Gahanna, OH 43230 GERALD V. ANDERSON II 27 North Fifth Street, P.O. Box 189 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2017-0103 2

Delaney, J.

{¶1} Defendant-Appellant Christopher A. Bowen appeals the November 30,

2017 sentencing entry of the Muskingum County Court of Common Pleas. Plaintiff-

Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} Detective Matt Wilhite, with the Muskingum County Sheriff’s Office and

assigned to the Central Ohio Drug Enforcement Task Force, was part of a drug

investigation into Michael Brandon, Ronald Brandon, and April Jones. Based on the

investigation, the task force obtained four search warrants for residences linked to those

individuals. Ronald Brandon’s residence was located at 1040-A Lindsay Avenue, within

1000 feet of an elementary school.

{¶3} On the morning on May 26, 2016, the task force was going to execute the

search warrants simultaneously. Det. Wilhite observed a green Chevy Avalanche truck

parked on the street in front of 1040-A Lindsay Avenue. As part of his investigation, Det.

Wilhite had previously observed the truck and knew it was owned and driven by

Defendant-Appellant Christopher A. Bowen. Det. Wilhite saw Ronald Brandon and Bowen

together on numerous occasions during the investigation.

{¶4} Det. Wilhite instructed Detective Tanner Vogelmeier to deploy his K-9,

Salsa, to conduct a free air sniff of the Chevy Avalanche. The K-9 conducted the sniff of

the truck and alerted to the presence of narcotics. The vehicle was towed and impounded

at the Muskingum County Sheriff’s Office.

{¶5} The task force obtained a search warrant to search the inside of the truck.

The detectives first found a shoe box that contained a one-gallon Ziplock bag containing Muskingum County, Case No. CT2017-0103 3

marijuana. Next, a bag from a clothing store named “Jimmy Jazz” was located on top of

the shoe box. Inside the clothing bag was a backpack, a leather case, a Crown Royal

liquor bag, and a receipt for Jimmy Jazz clothing dated May 14, 2016. Inside the backpack

was a one-gallon Ziplock bag containing marijuana, mason jars containing marijuana, a

package of marijuana gummies, and paperwork from the Ohio Bureau of Motor Vehicles

in Bowen’s name. The leather case held digital scales and a small bag containing 1.29

grams of methamphetamine. The Crown Royal purple liquor bag contained three large

bags of methamphetamine (167.25 grams total). The detectives also found a baggie of

jeweler’s bag and a baggie of rubber bands located near the shoe box and clothing bag.

Finally, the detectives found Bowen’s payroll checks, work clothing, and a hard hat. The

hard hat was labeled in the name of Bowen. The items found in the vehicle were

photographed.

{¶6} The drugs found in Bowen’s vehicle were submitted to BCI for testing and

were confirmed to be marijuana and methamphetamine. BCI also located Bowen’s

fingerprints on the small bag of methamphetamine.

{¶7} The detectives reviewed surveillance video from the Jimmy Jazz clothing

store on May 14, 2016. Bowen is seen purchasing items from the Jimmy Jazz store and

leaving with a Jimmy Jazz clothing bag identical to the one found in the Chevy Avalanche.

{¶8} Bowen was indicted by the Muskingum County Grand Jury on March 22,

2017. He was indicted on four counts: 1) Possession of drugs (methamphetamine) with

a forfeiture specification, a first-degree felony in violation of R.C. 2925.11(A) and

2941.1417; 2) Trafficking in drugs (marijuana) with a juvenile/school specification and

forfeiture specification, a third-degree felony in violation of R.C. 2925.03(A)(2) and Muskingum County, Case No. CT2017-0103 4

2941.1417; 3) Possession of drugs (marijuana) with a forfeiture specification, a fifth-

degree felony in violation of R.C. 2925.11(A) and 2941.1417; and 4) Possession of drugs

(Delta 9 – Tetrahydrocannabinol), a fifth-degree felony in violation of R.C. 2925.11(A).

{¶9} Bowen filed a motion to suppress evidence obtained from the Chevy

Avalanche. He argued the evidence was obtained based on an unlawful seizure of the

vehicle without a warrant. The trial court held a hearing and denied the motion via

judgment entry on August 21, 2017.

{¶10} The matter came on for jury trial on October 24, 2017. Bowen objected to

the State’s peremptory challenge of Juror No. 4 under Batson. The trial court found the

State established a non-discriminatory basis for the challenge. At the close of the

defense’s case, Bowen moved to allow the jury to consider whether Bowen was guilty of

possession of methamphetamine in an amount less than 50 times the bulk amount

because the evidence showed Bowen’s fingerprint was found on one bag of

methamphetamine containing less than the bulk amount. The trial court denied the

motion.

{¶11} The jury found Bowen guilty of all charges and specifications. The trial court

held a sentencing hearing on November 27, 2017 and issued its sentencing entry on

November 30, 2017. The trial court sentenced Bowen to a concurrent prison term of ten

years on Count One, 30 months on Count Two, 12 months on Count Three, and 12

months on Count Four. Bowen was ordered to pay a $15,000 fine and court costs. The

trial court further ordered Bowen’s 2002 Chevy Avalanche seized and forfeited to the

Muskingum County Sheriff’s Office.

{¶12} It is from the November 30, 2017 sentencing entry Bowen now appeals. Muskingum County, Case No. CT2017-0103 5

ASSIGNMENTS OF ERROR

{¶13} Bowen raises six Assignments of Error:

{¶14} “I. THE TRIAL COURT ERRED BY DENYING BOWEN’S MOTION TO

SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS RIGHT

AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE

FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14,

ARTICLE I OF THE OHIO CONSTITUTION.

{¶15} “II. THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON A

LESSER INCLUDED OFFENSE OF FIRST-DEGREE FELONY POSSESSION OF

METHAMPHETAMINE.

{¶16} “III. THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION

TO REMOVE THE ONLY NON-CAUCASIAN ON THE JURY PANEL IN VIOLATION OF

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

{¶17} “IV. BOWEN’S CONVICTIONS ARE BASED ON INSUFFICIENT

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶18} “V. BOWEN’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH Muskingum County, Case No. CT2017-0103 6

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16, ARTICLE 1 OF THE OHIO CONSTITUTION.

{¶19} “VI. BOWEN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

ANALYSIS

I. Motion to Suppress

{¶20} Bowen argues in his first Assignment of Error that the trial court erred when

it denied his motion to suppress. He states law enforcement had no constitutional basis

to seize the Chevy Avalanche without a warrant. We disagree.

{¶21} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long,

,

(4th Dist. 1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks,

,

(1996). A reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Medcalf,

,

(4th Dist. 1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams,

,

(4th Dist. 1993), overruled on other

grounds. Muskingum County, Case No. CT2017-0103 7

{¶22} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning,

,

(1982); State v. Klein,

,

(4th Dist. 1991). Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this 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 any given case. State v. Curry,

,

(8th Dist. 1994).

{¶23} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio,

,

,

(1968); State v. Andrews,

,

(1991).

{¶24} On May 26, 2016, Det. Wilhite observed a Chevy Avalanche parked on

Lindsay Street, in front of the residence of Ronald Brandon. Because of his investigation

into Ronald Brandon, Det. Wilhite knew Bowen was an associate of Ronald Brandon. Det.

Wilhite observed Bowen driving the Chevy Avalanche during the investigation. On May

26, 2016, while the search warrants were being executed as to the residences, Det. Muskingum County, Case No. CT2017-0103 8

Wilhite requested Salsa, a trained narcotics dog, conduct a free air sniff of the Chevy

Avalanche parked on Lindsay Street. The use of a trained narcotics dog to sniff an

automobile does not constitute a “search” under the Fourth Amendment. State v. Cook,

5th Dist. Muskingum Nos. 2010-CA-40, 2010-CA-41,

, ¶ 56 citing Illinois

v. Caballes,

,

,

(2005). Salsa alerted to the

odor of drugs from the Chevy Avalanche. Based on Salsa’s alert to the odor of drugs from

the Chevy Avalanche and that the truck was parked on a public roadway, Det. Wilhite had

the truck towed to the Muskingum County Sheriff’s Office. Det. Wilhite obtained a search

warrant to search the interior of the truck.

{¶25} The trial court found the automobile exception to the search warrant

requirement applied to the facts of the case. One of the exceptions to the warrant

requirement is the automobile exception, which “allows police to conduct a warrantless

search of a vehicle if there is probable cause to believe that the vehicle contains

contraband and exigent circumstances necessitate a search or seizure.” State v. Perdue,

2nd Dist. Montgomery No. 27499,

, ¶ 23 quoting State v. Mills,

,

(1992), citing Chambers v. Maroney,

,

,

(1970). (Other citation omitted.) The mobility of automobiles

often creates exigent circumstance and is the traditional justification for this exception to

the Fourth Amendment's warrant requirement. California v. Carney,

,

,

(1985). “If a car is readily mobile and probable cause

exists to believe that it contains contraband, the Fourth Amendment thus permits police

to search the vehicle without more.” Pennsylvania v. Labron,

,

,

(1996). A warrantless search is justified where there is imminent Muskingum County, Case No. CT2017-0103 9

danger that evidence will be lost or destroyed if a search is not immediately conducted.

State v. Moore,

,

(2000), citing Ker v. California,

,

,

(1963) (exigent circumstances justified the

warrantless search of an apartment for drugs when officers feared destruction of

evidence). “Because marijuana and other narcotics are easily and quickly hidden or

destroyed, a warrantless search may be justified to preserve evidence.”

; see

United States v. Gaitan-Acevedo,

(6th Cir. 1998).

{¶26} Bowen argues the State cannot rely upon the mobility of the Chevy

Avalanche to support its argument for the application of the automobile exception

because at the time of the seizure, the truck was parked on a public roadway. It has been

held that “[t]he absence of a traffic stop does not prevent application of the automobile

exception, as it does not detract from the automobile's inherent mobility or affect the

officer's belief that the vehicle contains contraband.” State v. Acoff, 1st Dist. No. C-

160867,

,

, ¶ 24 citing State v. Bazrawi, 10th Dist. Franklin

No. 12AP-1043,

,

, ¶ 27. See State v. Friedman,

,

,

(9th Dist.) (the warrantless

search of a parked vehicle alerted on by a police drug dog was permissible under the

automobile exception because “no meaningful distinction” exists between a search

conducted pursuant to a traffic stop and the search of a locked car parked in a public

area).

{¶27} In this case, Det. Wilhite requested a canine free air sniff of the Chevy

Avalanche because it was parked in front of the residence of Ronald Brandon, the subject

of a criminal investigation. Det. Wilhite knew Bowen drove the truck and was an associate Muskingum County, Case No. CT2017-0103 10

of Ronald Brandon. The canine free air sniff of the parked Chevy Avalanche alerted Det.

Wilhite to the presence of drugs. If a trained narcotics dog alerts to the odor of drugs from

a lawfully stopped and detained vehicle, an officer has probable cause to search the

vehicle for contraband. State v. McCray, 2nd Dist. Montgomery No. 26519, 2015-Ohio-

3049, ¶ 17 citing State v. Heard, 2d Dist. Montgomery No. 19323,

, ¶ 17.

Based on the alert from the trained narcotics dog, Det. Wilhite had probable cause to

seize the truck based on the automobile exception. After the truck was seized, the task

force obtained a search warrant to search the interior of the truck.

{¶28} We do not find the trial court erred in denying the motion to suppress.

Bowen’s first Assignment of Error is overruled.

II. Lesser Included Offense

{¶29} Bowen contends in the second Assignment of Error that the trial court erred

when it denied his request to instruct the jury on a lesser included offense for possession

of methamphetamine.

{¶30} “[A]fter arguments are completed, a trial court must fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh the

evidence and discharge its duty as the fact finder.” State v. Comen,

,

(1990), paragraph two of the syllabus. Bowen was charged with

Possession of Methamphetamine (in an amount exceeding 50 times the bulk amount but

less than 100 times the bulk amount), a first-degree felony in violation of R.C. 2925.11(A).

Before jury deliberations, Bowen moved to allow the jury to consider whether Bowen was

guilty of possession of methamphetamine in an amount less than 50 times the bulk

amount. In his appeal, Bowen argues the trial court should have allowed the instruction Muskingum County, Case No. CT2017-0103 11

on the lesser included offense because Bowen’s fingerprint was only found on the small

bag of methamphetamine found in the Jimmy Jazz clothing bag in the Chevy Avalanche.

{¶31} “Even though an offense may be statutorily defined as a lesser included

offense of another, a charge on such lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense.” State v. Moore, 5th Dist.

Coshocton No. 14CA0028,

, ¶ 91 quoting State v. Conway,

, 2006–Ohio–791,

, ¶ 133, citing State v. Thomas,

,

, paragraph two of the syllabus. In making this determination, the court

must view the evidence in a light most favorable to defendant.

2006–Ohio–791 at ¶

34, citing State v. Smith,

,

(2000) and State v.

Wilkins,

,

,

(1980). Nevertheless,

an instruction is not warranted every time any evidence is presented on a lesser included

offense. There must be “sufficient evidence” to “allow a jury to reasonably reject the

greater offense and find the defendant guilty on a lesser included (or inferior-degree)

offense.” (Emphasis sic.)

citing State v. Shane, 63 Ohio St.3d at 632–633,

.

{¶32} The facts of each case determine the necessity of instructing the jury on

lesser crimes or lesser included offenses. State v. Kidder,

,

(1987); State v. Loudermill,

,

(1965). The

degree of the offense of possession of drugs, however, is determined by the amount of

drugs involved. See R.C. 2925.11(C). “When the severity of the offense is determined by

the amount of controlled substance involved, the amount becomes an essential element Muskingum County, Case No. CT2017-0103 12

of the offense. In order to obtain a conviction, the prosecution must prove that element,

and the jury must so find, beyond a reasonable doubt.” State v. Cargile, 8th Dist.

Cuyahoga No. 89964,

,

, ¶ 13 citing State v. Chamblin,

4th Dist. No. 02CA753,

, citing State v. Smith (1983),

,

.

{¶33} In this case, Bowen was charged with possession of methamphetamine in

an amount exceeding 50 times the bulk amount but less than 100 times the bulk amount.

The charge was based on four bags of methamphetamine found inside the Chevy

Avalanche, which in total weight exceeded 50 times the bulk amount but less than 100

times the bulk amount. The task force’s search of the interior of the truck resulted in the

discovery of a Jimmy Jazz clothing bag. Inside the Jimmy Jazz clothing bag was a small

bag of methamphetamine and a Crown Royal liquor bag containing three large bags of

methamphetamine. Evidence was presented in the form of a receipt found in the clothing

bag and security video that Bowen purchased items from the Jimmy Jazz clothing store.

Det. Wilhite testified he observed Bowen driving the Chevy Avalanche during his

investigation. The jury could have concluded the evidence showed Bowen possessed a

bulk amount exceeding 50 times the bulk mount by less than 100 times the bulk amount.

{¶34} The evidence presented at trial did not warrant an instruction on a lesser

included offense. Bowen’s second Assignment of Error is overruled.

III. Batson Challenge

{¶35} Bowen argues in his third Assignment of Error that the trial court erred in

permitting the State to exercise a peremptory challenge against a non-Caucasian juror

pursuant to the Supreme Court's ruling in Batson v. Kentucky,

, 106 S.Ct. Muskingum County, Case No. CT2017-0103 13

1712,

(1986). Bowen is African-American and argues Juror No. 4 was the

only non-Caucasian juror on the panel.

{¶36} Whenever a party opposes a peremptory challenge by claiming racial

discrimination “[a] judge should make clear, on the record, that he or she understands

and has applied the precise Batson test when racial discrimination has been alleged in

opposition to a peremptory challenge.” Hicks v. Westinghouse Materials Co.,

, 1997–Ohio–227,

.

{¶37} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:

First, a party opposing a peremptory challenge must demonstrate a prima-

facie case of racial discrimination in the use of the strike .[ ]. To establish a

prima-facie case, a litigant must show he or she is a member of a cognizable

racial group and that the peremptory challenge will remove a member of the

litigant's race from the venire. The peremptory-challenge opponent is

entitled to rely on the fact that the strike is an inherently ‘discriminating’

device, permitting ‘those to discriminate who are of a mind to discriminate’

.[ ]. The litigant must then show an inference of racial discrimination by the

striking party. The trial court should consider all relevant circumstances in

determining whether a prima-facie case exists, including all statements by

counsel exercising the peremptory challenge, counsel's questions during

voir dire, and whether a pattern of strikes against minority venire members

is present. [ ]. Assuming a prima-facie case exists, the striking party must

then articulate a race-neutral explanation ‘related to the particular case to

be tried.’ [ ]. A simple affirmation of general good faith will not suffice. Muskingum County, Case No. CT2017-0103 14

However, the explanation ‘need not rise to the level justifying exercise of a

challenge for cause.’ [ ]. The critical issue is whether a discriminatory intent

is inherent in counsel's explanation for use of the strike; intent is present if

the explanation is merely pretext for exclusion based on race. [ ]. (Internal

citations omitted.) Hicks v. Westinghouse Materials Co.,

,

98–99, 1997–Ohio–227,

.

{¶38} Although the striking party must present a comprehensible reason, “[t]he

second step of this process does not demand an explanation that is persuasive or even

plausible;” so long as the reason is not inherently discriminatory, it suffices. Purkett v.

Elem,

, 767–768,

,

(1995) (per curiam); Rice

v. Collins,

,

, 973–74,

(2006).

{¶39} Finally, the trial court must determine whether the party opposing the

peremptory strike has proved purposeful discrimination.

514 U.S. at 766–

768. It is at this stage that the persuasiveness, and credibility, of the justification offered

by the striking party becomes relevant.

. The critical question, which the trial

judge must resolve, is whether counsel's race-neutral explanation should be believed.

Hernandez v. New York,

,

,

(1991);

State v. Nash, 5th Dist. Stark No. 1995CA00024,

, 2 (August 14, 1995).

This final step involves considering “the persuasiveness of the justification” proffered by

the striking party, but “the ultimate burden of persuasion regarding racial motivation rests

with, and never shifts from, the opponent of the strike.”

.

{¶40} Counsel and the trial court had the following discussion regarding the

State’s peremptory challenge to Juror No. 4: Muskingum County, Case No. CT2017-0103 15

THE COURT: I’m not even positive. I believe she was the only – I think

she’s a minority, and I believe she was the only person on the original panel

of twelve. So there’s – you asked for Batson. Basis.

***

MS. TAMILARASAN: I think – well, we would challenge the peremptory

based on Batson. This is the only minority on the initial panel and to strike

her would –

***

MR. WELCH: First, Your Honor, I was not certain she was a minority. I do

not know that. But the reason that she was excused is she hesitated a little

bit, had some difficulty with the one witness information, and primarily

because she’s provided legal advice to individuals. The first juror that was

dismissed was dismissed because she is a paralegal for a law firm and

provides legal information to individuals.

THE COURT: All right. I’m going to allow the peremptory challenge, but we

needed to put on the record your basis.

(T. 159-160).

{¶41} The record in this case supports the State’s race-neutral explanation for the

peremptory challenge. Bowen was charged with trafficking in marijuana and possession

of marijuana. When asked how she felt about the legalization of marijuana, Juror No. 4

stated marijuana was no worse than alcohol. (T. 74-75). Juror No. 4 did state she could

find Bowen guilty of trafficking or possession if proven guilty. (T. 75). The State asked the

potential panel if the State called just one witness to testify, would the jurors be able to Muskingum County, Case No. CT2017-0103 16

sign a verdict form of guilty if the jurors believed the witness and the testimony covered

everything it was supposed to cover. (T. 95). Juror No. 4 responded she would struggle

with one witness and would prefer physical evidence to corroborate the witness’s

statement. (T. 97-98). Finally, Juror No. 4 testified she was once employed as a

governmental civil rights specialist, which required her to instruct individuals how to file a

discrimination complaint. (T. 143-144).

{¶42} The State provided the trial court with a clear and specific explanation of its

legitimate reasons for exercising the challenge. The record in this case supports the

State’s race-neutral explanation and the trial court did not err in finding the State met its

burden.

{¶43} Bowen’s third Assignment of Error is overruled.

IV. and V. Sufficiency and Weight of the Evidence

{¶44} Bowen argues in his fourth and fifth Assignments of Error that his

convictions are against the sufficiency and manifest weight of the evidence. We disagree.

{¶45} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins,

,

,

, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

,

(1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the Muskingum County, Case No. CT2017-0103 17

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.”

{¶46} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶47} Bowen contends the evidence in this case did not support his convictions

for drug possession and drug trafficking. Of the contents found in the Chevy Avalanche,

he states BCI could only determine Bowen’s fingerprint was on one small bag of

methamphetamine. While marijuana was found within the truck, it was contained in a shoe

box for shoes sized 8.5. Evidence was presented that Bowen wore a size 10 shoe.

{¶48} The evidence in this case showed that during his investigation, Det. Wilhite

observed Bowen driving the Chevy Avalanche truck. Det. Wilhite testified Bowen was a

known associate of Ronald Brandon, the subject of Det. Wilhite’s drug activity

investigation. On the day the search warrants were executed as part of the drug

investigation, the Chevy Avalanche was parked in front of Ronald Brandon’s residence.

A free air sniff by a trained narcotics dog alerted to the odor of drugs coming from the

truck. A search of the truck based on a warrant revealed methamphetamine and Muskingum County, Case No. CT2017-0103 18

marijuana contained in bags and mason jars. Accoutrements were also found, such as a

digital scale, rubber bands, and jeweler bags, that Det. Wilhite testified are used in drug

trafficking. Some of the drugs were contained in a Jimmy Jazz clothing bag, which

contained a receipt dated May 14, 2016. Security video from the Jimmy Jazz clothing

store showed Bowen making a purchase on that date. Documents and equipment with

Bowen’s name were found in the truck.

{¶49} Based on this evidence, viewed in a light most favorable to the prosecution,

a rational trier of fact could have found beyond a reasonable doubt that Bowen was guilty

of drug possession and drug trafficking. The record contains sufficient evidence to support

Bowen’s conviction. We further cannot conclude the jury lost its way and created a

manifest miscarriage of justice when it found Bowen guilty of all the charges. We cannot

find that Bowen’s convictions are against the manifest weight of the evidence.

{¶50} Bowen’s fourth and fifth Assignments of Error are overruled.

VI. Ineffective Assistance of Counsel

{¶51} In his final Assignment of Error, Bowen contends he received ineffective

assistance of defense trial counsel because his counsel failed to move for the merger of

the offenses of trafficking in marijuana and possession of marijuana as allied offenses.

He also argues defense trial counsel was ineffective because she failed to request the

trial court waive court costs and fines because Bowen was indigent.

{¶52} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See

Strickland v. Washington,

,

(1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide Muskingum County, Case No. CT2017-0103 19

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ”

, citing Michel v. Louisiana,

,

(1955).

{¶53} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland,

. The question is whether counsel acted “outside the

wide range of professionally competent assistance.”

.

{¶54} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland,

.

A. Allied Offenses

{¶55} We first address Bowen’s argument that trial counsel was ineffective for

failing to move for the merger of the offenses of trafficking in marijuana and possession

of marijuana. A defendant may be indicted and tried for allied offenses of similar import,

but may be sentenced on only one of the allied offenses. State v. Carr, 5th Dist., 2016-

Ohio-9,

, ¶ 42, citing State v. Brown,

,

,

. R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information Muskingum County, Case No. CT2017-0103 20

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.

{¶56} The question of whether offenses merge for sentencing depends upon the

subjective facts of the case in addition to the elements of the offenses charged. State v.

Hughes, 5th Dist. Coshocton No. 15CA0008,

,

, ¶ 21. In a

plurality opinion, the Ohio Supreme Court modified the test for determining whether

offenses are allied offenses of similar import. State v. Johnson,

, 2010-

Ohio-6314,

. The Court directed us to look at the elements of the

offenses in question and determine whether or not it is possible to commit one offense

and commit the other with the same conduct. Id. at ¶ 48. If the answer to such question

is in the affirmative, the court must then determine whether or not the offenses were

committed by the same conduct. Id. at ¶ 49. If the answer to the above two questions is

yes, then the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50.

If, however, the court determines that commission of one offense will never result in the

commission of the other, or if there is a separate animus for each offense, then the

offenses will not merge. Id. at ¶ 51.

{¶57} Johnson's rationale has been described by the Court as “incomplete.” State

v. Earley,

,

,

, ¶ 11. The Court has Muskingum County, Case No. CT2017-0103 21

further instructed us to ask three questions when a defendant's conduct supports multiple

offenses: (1) were the offenses dissimilar in import or significance? (2) were they

committed separately? and (3) were they committed with separate animus or motivation?

State v. Ruff,

,

,

. An affirmative

answer to any of the above will permit separate convictions.

The conduct, the animus,

and the import must all be considered.

{¶58} Bowen 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.” Bowen was also convicted of

possessing marijuana in violation of R.C. 2925.11(A), which provides, “No person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.”

{¶59} Bowen’s convictions for trafficking and possession were based on the same

marijuana found in the Chevy Avalanche. Focusing on Bowen’s conduct pursuant to

the offenses of trafficking and possession have similar import, committed with the

same animus, and were not committed separately. See State v. Bradley, 2015-Ohio-

5421,

, ¶ 42 (8th Dist.). In this case, we find Bowen’s defense trial counsel

was ineffective for her failure to move for the merger of the offenses of trafficking in

marijuana and possession of marijuana. Bowen was prejudiced by counsel’s failure to

raise the issue of merger before the trial court. Muskingum County, Case No. CT2017-0103 22

{¶60} The case is remanded to the trial court for appropriate merger and

resentencing after the State elects under which count it wishes to proceed to sentencing

under.

B. Indigency

{¶61} Bowen maintains that he filed an affidavit of indigency with the trial court

and was thereafter appointed defense counsel. He contends that said counsel was

subsequently ineffective for failing to request a waiver of fines and court costs on his

behalf, based on his indigent status. See R.C. 2947.23(C).

{¶62} In support of the waiver of court costs, he cites State v. Springer, 8th Dist.

Cuyahoga No. 104649,

. Springer is in conflict with our decision in State

v. Davis, 5th Dist. Licking No. 17-CA-55,

, and that the present issue has

been accepted for review by the Supreme Court of Ohio upon our certification of a conflict.

See State v. Ramsey, 5th Dist. Licking No. 17-CA-76,

. We held in

Ramsey that “[u]nless a decision is rendered on the issue to the contrary in the future,

this Court will continue to abide by its decision in Davis.”

{¶63} Accordingly, in conformity with Ramsey, we hold Bowen was not deprived

of the effective assistance of trial counsel in violation of his rights under the Sixth and

Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Ohio

Constitution.

{¶64} As to the imposition of mandatory fines, we do not find Bowen’s counsel

was ineffective for failing to raise the issue of indigency. R.C. § 2929.18(B)(1) provides:

(B)(1) For a first, second, or third degree felony violation of any provision of

Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court Muskingum County, Case No. CT2017-0103 23

shall impose upon the offender a mandatory fine of at least one-half of, but

not more than, the maximum statutory fine amount authorized for the level

of the offense pursuant to division (A)(3) of this section. If an offender

alleges in an affidavit filed with the court prior to sentencing that the offender

is indigent and unable to pay the mandatory fine and if the court determines

the offender is an indigent person and is unable to pay the mandatory fine

described in this division, the court shall not impose the mandatory fine

upon the offender.

{¶65} In State v. Webb, Richland No. 14–CA–85, 2015–Ohio–3318,

, this Court held:

Further, Ohio law does not prohibit a court from imposing a fine on an

“indigent” defendant. That is, the filing of an affidavit of indigency does not

automatically entitle a defendant to a waiver of a mandatory fine. State v.

Knox, 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013–Ohio–1662 [

], ¶ 36. *509 Under Ohio law, a trial court must impose a

mandatory fine unless (1) the offender files an affidavit of indigency prior to

sentencing, and (2) “the trial court finds that the offender is an indigent

person and is unable to pay the mandatory fines.” State v. Gipson,

,

(1998). In making its indigency

determination, the court must consider both the offender's present and

future ability to pay the fine. R.C. § 2929.19(B)(5). Muskingum County, Case No. CT2017-0103 24

Additionally, the trial court need not make an “affirmative finding that an

offender is able to pay a mandatory fine.” Id. at 635 [

].

Instead, “the burden is upon the offender to affirmatively demonstrate that

he or she is indigent and is unable to pay the mandatory fine.”

We review

the trial court's decision to impose a fine on an indigent defendant for an

abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013–

Ohio–3002 [

], ¶ 5. An abuse of discretion implies that the

trial court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore,

,

(1983).

{¶66} R.C. § 2929.19(B)(5) reads,

(B)(5) Before imposing a financial sanction under section 2929.18 of the

Revised Code or a fine under section 2929.32 of the Revised Code, the

court shall consider the offender's present and future ability to pay the

amount of the sanction or fine.

{¶67} Upon review of Bowen’s affidavit of indigency, the same does not provide

sufficient information to support a finding of indigency with respect to the mandatory fine

or court costs. Rather, the affidavit refers to indigency with respect to the appointment of

counsel. Under these circumstances, we find the trial court did not abuse its discretion in

imposing the mandatory fine and/or court costs in this matter. See State v. Harris, 5th

Dist. Muskingum No. CT2018-0005,

,

, ¶¶ 37-42.

{¶68} Accordingly, we sustain Bowen’s sixth Assignment of Error in part and

overrule it in part. The case is remanded to the trial court for appropriate merger and Muskingum County, Case No. CT2017-0103 25

resentencing after the State elects under which count it wishes to proceed to sentencing

under.

CONCLUSION

{¶69} The judgment of the Muskingum County Court of Common Pleas is affirmed

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

opinion and law.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.