STATE OF OHIO, Plaintiff-Appellee, v. JOQUAN JOSEPH, Defendant-Appellant.
Nos. 111276; 111277 and 111278
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 8, 2022
2022-Ohio-4404
FRANK DANIEL CELEBREZZE, III, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-21-664770-A, CR-21-661109-A, and CR-20-655148-B
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: December 8, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Sarah J. Denney, Assistant Prosecuting Attorney, for appellee.
The Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
{¶ 1} Appellant Joquan Joseph (“appellant“) appeals his conviction and sentence from the Cuyahoga County Court of Common Pleas. After a thorough review of the applicable law and facts, we affirm in part, reverse in part, and remand
I. Factual and Procedural History
{¶ 2} In January 2021, the Cleveland Police Department‘s Neighborhood Impact Community Engagement Unit (“NICE“) attempted to execute a search warrant at 381 East 123rd Street, Cleveland, Ohio, which was the home of appellant. The purpose of the search warrant was to locate firearms that police believed that appellant was illegally keeping inside the residence. Because firearms were involved, the SWAT unit was also present.
{¶ 3} Officers arrived at the residence at approximately 7:00 a.m. and knocked and announced themselves. Appellant then fired two or three shots out of the house. After 45 minutes, several of the occupants of the residence came out. They were later identified as appellant‘s brothers, his girlfriend, and his two-year-old child. The occupants told officers they did not know where appellant was.
{¶ 4} Police deployed a drone into the house and then a search dog to try to locate appellant, but both were unsuccessful. Police then entered the house to search for the firearms. Three different firearms, along with ammunition, were located inside, including the firearm that was later determined to be the one used to fire at officers earlier. The firearms had been hidden behind an access panel in the child‘s bedroom that led into the bathroom. The guns were located inside the wall under the tub area of the bathroom.
{¶ 6} When appellant spoke with police later, he admitted to firing the shots at them and also admitted that “all” of the drugs and the firearms found in the residence were his.
{¶ 7} Appellant was indicted on the following charges in Cuyahoga C.P. No. CR-21-664770-A: felonious assault (Counts 1-14), felonies of the first degree, with accompanying one-, three-, and seven-year firearm specifications; felonious assault (Counts 15-16), felonies of the second degree, with accompanying one-, three-, and seven-year firearm specifications; drug trafficking (Count 17), a felony of the first degree, along with a one-year firearm specification and a major drug offender specification; drug possession (Count 18), a felony of the first degree, with accompanying one-year firearm specification and major drug offender specification; drug trafficking (Count 19), a felony of the first degree, with a one-year firearm specification; drug possession (Count 20), a felony of the first degree, with a one-year firearm specification; having weapons while under disability (Counts 21-22), felonies of the third degree; receiving stolen property (Count 23), a felony of the fourth degree; tampering with evidence (Count 24), a felony of the third degree;
{¶ 8} Appellant filed a motion to suppress and for the return of illegally seized property. Appellant sought suppression of all evidence seized from the search of the residence. Prior to trial, the parties presented brief oral arguments on the motion, which was then denied by the court.
{¶ 9} A jury trial was held on all charges with the exception of Counts 21 and 22, which were bifurcated to the judge. Counts 15, 16, 17, 19, and 23 were dismissed after
{¶ 10} Appellant was sentenced to 11 years on Count 18, plus one-year firearm specification; ten years on Count 20, plus one-year firearm specification; and 36 months each on Counts 21, 22, 24, 25, and 27. All time was to run concurrently for a total of 12 years.
{¶ 11} Appellant had also been charged in Cuyahoga C.P. No. CR-21-661109-A with counts of burglary, kidnapping, extortion, grand theft, and receiving stolen property, along with notice of prior conviction and repeat violent offender specifications. He pled guilty to kidnapping and receiving stolen property and all
{¶ 12} In addition, in Cuyahoga C.P. No. CR-20-655148-B, appellant had been charged with one count of receiving stolen property. He pled guilty to the charge and was sentenced to 18 months in prison.
{¶ 13} Appellant‘s sentence in CR-21-664770-A was ordered to run consecutive to the sentence in CR-21-661109-A. His sentence in CR-20-655148-B was ordered to run concurrently with the other two sentences, for a total prison sentence of 21 years.
{¶ 14} Appellant filed the instant appeal, raising seven assignments of error for our review:
- Appellant‘s convictions must be reversed as the state of Ohio failed to present sufficient evidence in support thereof.
- Appellant‘s convictions are against the manifest weight of the evidence.
- Appellant‘s trial counsel was ineffective and prejudiced appellant in violation of the Sixth and Fourteenth Amendments to the United States Constitution when it failed to object to the jury instructions for fentanyl mixed with green plant material and the instructions given were otherwise plain error.
- The trial court erred when it declined to suppress the admission of evidence at trial.
- The trial court erred when it failed to merge for sentencing the weapons while under disability convictions for the same incident.
- The trial court erred and denied appellant due process of law when it admitted known false testimony and denied appellant‘s motion for a mistrial amounting to prosecutorial misconduct.
The trial court erred when it imposed consecutive sentences where such sentence is not supported by the record.
II. Law and Analysis
{¶ 15} For ease of discussion, we will address appellant‘s assignments of error out of order.
A. Suppression of Evidence
{¶ 16} In his fourth assignment of error, appellant argues that the trial court erred in denying his motion to suppress.
{¶ 17} In the motion, appellant argued that the warrant was issued without probable cause and was defective. He asserted that while executing the warrant, the police entered the premises and conducted a “general and exploratory search.” Further, he contends that the seizure of money and personal property were made without probable cause and were further in violation of the “plain view” doctrine.
{¶ 18} Prior to trial, the court heard arguments from both sides on the motion. Neither appellant nor the state presented any witnesses.
{¶ 19} The trial court denied the motion, finding that based upon its review of the search warrant and photos submitted as Exhibits A and B, the warrant contained sufficient probable cause for entry of the premises at 381 East 123rd Street, Cleveland.
{¶ 20} Appellant argues that the police searched areas of the home and vehicles where they knew firearms could not be found. He also contends that police
{¶ 21} The
{¶ 22} Appellate review of a motion to suppress “presents a mixed question of law and fact; we accept the trial court‘s findings of fact if they are supported by competent, credible evidence but must independently determine whether the facts satisfy the applicable legal standard.” Cleveland v. Jones, 8th Dist. Cuyahoga No. 107257, 2019-Ohio-1525, ¶ 8, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[W]hen there is substantial evidence to support the factual findings of the trial court, the decision on the motion to suppress will not be disturbed on appeal absent an error of law.” Id., quoting State v. Bates, 8th Dist. Cuyahoga No. 92323, 2009-Ohio-5819, ¶ 36, citing State v. Depew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988).
So in regards to probable cause on the warrant, when looking at the four corners of the warrant, the state feels that there is probable cause for a search warrant at that residence, that being 381 East 123rd Street. When reviewing the warrant, the affidavit, and the attached photographs, it is clear to the state that Mr. Joseph was residing at that house. The state does not feel that the burden is that he owned or leased or anything like that to the property, but that he was staying at the property and that it was a property where police might reasonably find firearms. I believe that is sufficiently affirmed in the affidavit in multiple ways.
First, as mentioned by this court, that there was an incident report from November 26th of 2020 where it was listed as his residence.
Further, his mother was at the residence. It is the same residence seen in photographs posted by Mr. Joseph on his social media account, he is posting in the residence with firearms. I think that would give police a strong indication that they might find firearms belonging to him at that residence.
Further, they were able to match his Instagram using his OHLEG. They conducted surveillance to be certain, your Honor, that that was the residence that Mr. Joseph was using on separate occasions. Both occasions they saw him coming from — coming or going to the residence.
And further, Mr. Joseph is prohibited from having firearms at the time that the warrant was signed — lawfully signed by a judge of this common pleas court.
Further, as the Court took notice of, Mr. Joseph at the time also did have a warrant out — a valid warrant out for his arrest, which would allow police anyway to go to the residence in search of him.
{¶ 24} Appellant argued that there was nothing connecting him to the home and that the state cannot demonstrate that the social media photographs were of the same residence.
Well, counsel, you make the argument that the social media is determinative as to all the circumstances, and the Court finds that there is sufficient evidence, probable cause, most importantly that there‘s an outstanding warrant on two occasions, one out of the probation department and one out of domestic violence for Cleveland charge there.
The Court also finds that the observations under surveillance, the postings on Instagram, et cetera, all taken together create sufficient probable cause to execute a warrant. * * *
{¶ 26} Appellant chose to rest on his brief and not present evidence at a hearing in support of his motion. Accordingly, the trial court could only consider the arguments in the briefs and at the hearing, the contents of the warrant, and the photographs attached to the brief, and determined that sufficient probable cause existed. Without any contradicting evidence, we also find that the photographs and statements in the affidavit created sufficient probable cause for the issuance of the warrant.
{¶ 27} Appellant has not demonstrated that the trial court erred in denying his motion to suppress, and his fourth assignment of error is overruled.
B. Sufficiency of the Evidence
{¶ 28} In appellant‘s first assignment of error, he argues that his convictions were not supported by sufficient evidence.
{¶ 29} Where a party challenges the sufficiency of the evidence supporting a conviction, a determination of whether the state has met its burden of production at trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An
1. Drug Possession – Fentanyl
{¶ 30} Appellant was convicted under
If the amount of the drug involved equals or exceeds one thousand unit doses or equals or exceeds one hundred grams, possession of a fentanyl-related compound is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
{¶ 31} The state presented the testimony of Edgar Andrus, a forensic scientist at the Cuyahoga County Regional Forensic Science Laboratory. Andrus conducted testing on the drugs found as a result of the search of appellant‘s residence. Item 1 (state‘s exhibit No. 165) was a plastic bag containing green plant material and
{¶ 32} Item 2 (state‘s exhibit No. 164) was a plastic bag containing 12 off-white fragments and small particles and was determined to be 35.09 grams of cocaine. Item 3 (state‘s exhibit No. 166) was a plastic bag containing nine tan fragments and small particles and was determined to be 15.75 grams of fentanyl and 4-ANPP. Item 4 (state‘s exhibit No. 163) was a plastic bag with two tan fragments and small particles and was determined to be 31.23 grams of fentanyl and 4-ANPP.
{¶ 33} Because the drugs found constituted a mixture containing fentanyl, two further sections of the
(9) If the drug involved in the violation is a compound, mixture, preparation, or substance that is a combination of a fentanyl-related compound and marihuana, one of the following applies:
(a) Except as otherwise provided in division (C)(9)(b) of this section, the offender is guilty of possession of marihuana and shall be punished as provided in division (C)(3) of this section. Except as otherwise provided in division (C)(9)(b) of this section, the offender is not guilty of possession of a fentanyl-related compound under division (C)(11) of this section and shall not be charged with, convicted of, or punished under division (C)(11) of this section for possession of a fentanyl-related compound.
(b) If the offender knows or has reason to know that the compound, mixture, preparation, or substance that is the drug involved contains a fentanyl-related compound, the offender is guilty of possession of a fentanyl-related compound and shall be punished under division (C)(11) of this section.
(10) If the drug involved in the violation is a compound, mixture, preparation, or substance that is a combination of a fentanyl-related compound and any schedule III, schedule IV, or schedule V controlled substance that is not a fentanyl-related compound, one of the following applies:
(a) Except as otherwise provided in division (C)(10)(b) of this section, the offender is guilty of possession of drugs and shall be punished as provided in division (C)(2) of this section. Except as otherwise provided in division (C)(10)(b) of this section, the offender is not guilty of possession of a fentanyl-related compound under division (C)(11) of this section and shall not be charged with, convicted of, or punished under division (C)(11) of this section for possession of a fentanyl-related compound.
(b) If the offender knows or has reason to know that the compound, mixture, preparation, or substance that is the drug involved contains a fentanyl-related compound, the offender is guilty of possession of a fentanyl-related compound and shall be punished under division (C)(11) of this section.
{¶ 34} Appellant argues that the state was required to prove that the additional green plant material that was found in Item 1 was not marijuana or a schedule III, IV, or V substance, but it did not. He contends that the state therefore failed to present evidence demonstrating that neither
{¶ 35} The state asserts that the evidence demonstrated that appellant was aware that the mixture contained fentanyl, particularly considering that all of the mixtures contained fentanyl and 4-ANPP, which is a substance used to create fentanyl. The state therefore argues that even if the green plant material was marijuana or a schedule III, IV, or V drug, the evidence shows that appellant knew the mixture contained fentanyl, which triggered sections
{¶ 36} “A person has knowledge of circumstances when the person is aware that such circumstances probably exist.”
2. Possession of Fentanyl and Cocaine
{¶ 37} Appellant argues that there was insufficient evidence to convict him of possession of Items 3 and 4 because those items were located in a bedroom other than his and in a vehicle parked on the property. He contends that because he was not the only individual in the home or with access to it, there was insufficient evidence to show that he constructively possessed the drugs.
{¶ 38} Appellant‘s argument regarding constructive possession lacks merit because appellant admitted that “all” of the drugs were his. Detective Quintana, who was present for the search and subsequent interview of appellant, testified that during the interview, appellant stated that all of the drugs were his. Appellant did not present any contradictory evidence, and his counsel even stated the following in his closing argument:
And from his own testimony — not his testimony but [what] was introduced as evidence in this case, he admitted possession of the drugs. He admitted possession of the firearms. We‘re not running away from that. That‘s what he had, and that‘s what he admitted to.
{¶ 39} Appellant‘s uncontroverted admissions constituted sufficient evidence to find that he was guilty of possession of fentanyl and cocaine.
3. Firearm Specification for Drug-Possession Charges
{¶ 40} Appellant argues that there was insufficient evidence to convict him of the firearm specifications on the drug-possession charges.
{¶ 41} Again, appellant admitted during his police interview that the guns were his and that he alone had hidden them. Further, appellant admitted to firing the shots. A firearm specification applies when “the offender had a firearm on or about the offender‘s person or under the offender‘s control while committing the offense.”
4. Having Weapons While Under Disability
{¶ 43} Appellant contends that because he was acquitted of the felonious-assault charges arising from the shooting out of the house, he could not be convicted of having weapons while under disability.
{¶ 44} As above, we note that appellant admitted in his police interview that the firearms were his. Because appellant had a prior conviction, any time that he possessed a firearm since that conviction, he had the animus to violate
{¶ 45} Appellant‘s other conviction for having weapons while under disability was under
5. Tampering With Evidence
{¶ 47} Appellant argues that there was insufficient evidence to convict him of tampering with evidence when he was unaware that the police were coming to search and investigate his possession of weapons. He asserts that since he was unaware of any police investigation, he could not have tampered with evidence.
{¶ 48} Appellant‘s assertion of his lack of knowledge is without merit. The evidence demonstrates that the SWAT team knocked and announced their presence and officers made repeated announcements over the PA system of their vehicles. Appellant concealed himself in the box springs along with drugs and money. Thus, there was sufficient evidence to support appellant‘s conviction for tampering with evidence.
{¶ 49} Viewing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence to support appellant‘s convictions. Appellant‘s first assignment of error is overruled.
C. Manifest Weight of the Evidence
{¶ 50} In appellant‘s second assignment of error, appellant argues that his convictions were against the manifest weight of the evidence.
{¶ 51} A reviewing court “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
{¶ 52} Appellant argues that his convictions were against the manifest weight of the evidence because the state presented the testimony of Detective Zarefoss, who stated that he was present for appellant‘s entire interview and testified as to statements made during appellant‘s interview. Appellant contends that this was perjured testimony because Detective Zarefoss was only present for the beginning of his interview.
{¶ 53} Appellant did not cross-examine Detective Zarefoss or present any evidence supporting his assertion regarding the detective‘s testimony but moved for a mistrial based upon this testimony. The video showing the interview was not presented at trial. In response to the motion for mistrial, the state recalled Detective Quintana, who was present for appellant‘s interview, and he testified as to appellant‘s statements therein. Specifically, Detective Quintana testified that appellant had admitted that all of the drugs found were his. Appellant does not dispute that Detective Quintana was present for the interview and could properly testify as to appellant‘s statements made therein. Accordingly, we cannot find that Detective Zarefoss‘s erroneous testimony rendered appellant‘s convictions against the manifest weight of the evidence.
D. Ineffective Assistance of Counsel/Plain Error
{¶ 55} In his third assignment of error, appellant argues that his counsel was ineffective by failing to object to the jury instruction regarding fentanyl. He further contends that giving the erroneous instruction constituted plain error.
{¶ 56} In a claim of ineffective assistance of counsel, the burden is on the defendant to establish that counsel‘s performance fell below an objective standard
{¶ 57} In Ohio, a properly licensed attorney is presumed competent. Vaughn v. Maxwell, 2 Ohio St.2d 299, 301, 209 N.E.2d 164 (1965). In evaluating whether a petitioner has been denied the effective assistance of counsel, the Supreme Court of Ohio held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.
{¶ 58} When making that evaluation, a court must determine whether there has been a substantial violation of any of defense counsel‘s essential duties to his client and whether the defense was prejudiced by counsel‘s ineffectiveness. State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976); State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). To show that a defendant has been prejudiced, the defendant must prove that there exists a reasonable probability that, were it not for
{¶ 59} The court gave the following instruction for the possession of fentanyl charge:
The defendant, Joquan Joseph, is charged with drug possession, in violation of 2925.11(A), in Count 18 of the indictment. Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about January 26th and in Cuyahoga County, Ohio, the defendant did knowingly obtain, possess, or use a controlled substance, and the drug involved in the violation was a combination of a fentanyl-related compound and any other controlled substance, and the amount of the drug involved equaled or exceeded 100 grams.
The term “knowingly” has been previously defined for you in Counts 1 through 14, and the same definition applies herein.
Possess.
Possess means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the things or substance is found.
If you find that the state proved beyond a reasonable doubt all of the essential elements of the offense of drug possession as charged in Count 18 of the indictment, your verdict must be guilty, according to your findings. You will then indicate your finding on the verdict form.
If you find that the state failed to prove beyond a reasonable doubt any one of the essential elements of the offense of drug possession as charged in Count 18 of the indictment, your verdict must be not guilty, according to your findings. And you will then indicate your finding on the verdict form.
Count 18. Further finding as to weight. If you find the defendant guilty in Count 18, it is your duty to deliberate further and to decide whether the weight of the fentanyl-related compound does or does not equal or exceed 100 grams. If you find the defendant not guilty in Count 18, you will not consider or decide the additional question.
E. Mistrial
{¶ 61} In his sixth assignment of error, appellant argues that the trial court erred when it admitted false testimony and denied his motion for mistrial based upon prosecutorial misconduct. Appellant contends that a mistrial was warranted because Detective Zarefoss committed perjury by stating that he was present for appellant‘s entire interview when he was only there for the beginning and testified to statements made by appellant during the interview after Detective Zarefoss had left. We determined in appellant‘s third assignment of error that the presentation of Detective Zarefoss‘s erroneous testimony regarding his presence at appellant‘s entire interview did not render appellant‘s convictions against the manifest weight of the evidence, but we will analyze it now in the context of a motion for mistrial.
{¶ 62} In response to appellant‘s motion for a mistrial, the state recalled Detective Quintana, who was present for appellant‘s interview. Detective Quintana acknowledged that Detective Zarefoss left after some of the interview. Detective Quintana testified as to the same statements made by appellant that Detective
{¶ 63} The decision to grant or deny a motion for mistrial lies within the sound discretion of the trial court. State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 36, citing State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 (1995). We will not disturb that “exercise of discretion absent a showing that the accused has suffered material prejudice.” Id., citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A mistrial is only warranted when “the ends of justice so require and ‘a fair trial is no longer possible.‘” Id., quoting State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).
{¶ 64} The relevant question in reviewing a claim of prosecutorial misconduct is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.‘” State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d 1198, ¶ 114, quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In answering that question, the reviewing court considers “whether the conduct was improper and, if so, whether it prejudicially affected the defendant‘s substantial rights.” Id., citing State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 243. In evaluating prejudice, the court considers “the effect that the
{¶ 65} In the instant matter, it cannot be said that a fair trial was no longer possible after Detective Zarefoss‘s testimony. The detective was present at the start of the interview but apparently misremembered that he did not stay for the entire interrogation. Regardless, the jury heard the same testimony regarding appellant‘s admissions during the interview from Detective Quintana. As noted by the trial court, appellant had the opportunity to cross-examine and impeach the witnesses regarding the inconsistency but did not do so.
{¶ 66} Appellant contends that the state had an obligation to rectify the false testimony. The state accomplished this by presenting the testimony of Detective Quintana, who testified that Detective Zarefoss was not present for the entire interview. It is within the province of the jury whether to believe or disbelieve the detective‘s testimony. State v. Smith, 8th Dist. Cuyahoga No. 108415, 2020-Ohio-573, ¶ 22, citing State v. Royal, 8th Dist. Cuyahoga No. 93903, 2010-Ohio-5235, ¶ 22.
{¶ 67} We cannot say that Detective Zarefoss‘s misstatement resulted in material prejudice to appellant. His sixth assignment of error is therefore overruled.
F. Merger
{¶ 68} In his fifth assignment of error, appellant argues that the trial court erred by failing to merge his two convictions for having weapons while under disability that arose from the same incident.
[a]n accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.
State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. “The law require[s] [the defendant] to demonstrate a reasonable probability that his convictions constituted allied offenses of similar import.” Id. at ¶ 29.
[A]bsent the accused‘s showing that there was a reasonable probability that the convictions are in fact for allied offenses of similar import committed with the same conduct and without a separate animus, “the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes of sentencing was plain error.”
State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 25, quoting Rogers at ¶ 3.
{¶ 70}
[I]f the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.
(Emphasis deleted.) Id. at ¶ 51.
{¶ 71} The court later clarified that
[a]s a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must 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? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶ 72} In State v. Rogers, 2013-Ohio-3235, 994 N.E.2d 499, ¶ 27 (8th Dist.), this court, en banc, held that the trial court has a duty to conduct an allied offense analysis when multiple charges facially present a question of merger under
{¶ 73} Appellant argues that both convictions arose from the same act with no separate animus. Appellant was convicted under
{¶ 75} While the state argues that appellant‘s possession of a firearm prior to police arriving at his residence constituted the crime of having weapons while under disability, the indictment states that the date of the offenses for the two charges was on or about January 26, 2021, which was the date the search warrant was executed. Accordingly, the offenses were arguably committed at the same time while appellant was both a person with a prior felony conviction and a fugitive from justice. Based on the facts of this matter, we find that the multiple charges facially present a question of merger and the trial court plainly erred by failing to conduct an allied offense analysis prior to sentencing appellant.
{¶ 76} Appellant‘s fifth assignment of error is sustained. This matter will be remanded to the trial court solely for a hearing on merger and for resentencing consistent with the requirements of
{¶ 77} In his final assignment of error, appellant argues that the trial court erred in sentencing him to consecutive sentences. He contends that the court failed to make the requisite findings to support consecutive sentences under
{¶ 78} We review felony sentences under the standard set forth in
{¶ 79}
(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 postrelease 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.
{¶ 80} At the sentencing hearing, the court stated as follows:
Now, the Court imposes these prison terms as to each case consecutively, finding that the consecutive service is necessary to protect the public from future crimes or punish the Defendant, and the consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and to the danger Defendant posed to the public, and that the Defendant committed one or more of the multiple offenses while the Defendant was awaiting trial or sentencing or was under community control — he was under community control. We‘ll deal with those cases in just a moment — or under post-release control for a prior offense. I would just note Mr. Joseph was on community control in Cases 632039, 631035, 628036.
{¶ 81} The court reiterated the same findings in its sentencing entry.
{¶ 82} Appellant acknowledges that the court stated its findings under the statute, but he contends that it did not actually consider that he accepted responsibility and entered a guilty plea in the kidnapping case and that he was not the main offender in that incident.
{¶ 83} Conformity with
{¶ 84} The record reflects that the court made the requisite findings to support consecutive sentences in this matter. Appellant‘s seventh assignment of error is overruled.
III. Conclusion
{¶ 85} The trial court did not err in denying appellant‘s motion to suppress or his motion for mistrial. Further, his convictions were not against the manifest weight of the evidence and there was sufficient evidence to support them. Appellant‘s counsel was not ineffective, and the court did not err in imposing consecutive sentences. Appellant‘s first, second, third, fourth, sixth, and seventh assignments of error are overruled.
{¶ 86} The trial court did err in failing to conduct an allied offense analysis for the having-weapons-while-under-disability charges prior to sentencing. Appellant‘s fifth assignment of error is sustained, and this matter is remanded to the trial court solely for a hearing on merger and for resentencing consistent with the requirements of
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
CORNELIUS J. O‘SULLIVAN, JR., J., CONCUR