{¶ 2} Ohio State Highway Patrol Trooper Terri Mikesh stopped Lewis for executing a left turn from a one-way street into the far right lane of another one-way street, in violation of R.C.
{¶ 3} The Scioto County Grand Jury indicted Lewis on one count of trafficking in cocaine, in violation of R.C.
{¶ 4} The case proceeded to trial, and a jury found Lewis guilty on all counts. The trial court sentenced Lewis to 10 years for the trafficking count, 10 years for the possession count, and five years for the conspiracy count. The court ordered Lewis to serve the trafficking and possession sentences consecutively. The court ordered Lewis to serve the conspiracy sentence concurrently. Overall, the court ordered Lewis to serve 20 years in prison.
{¶ 5} Lewis timely appealed her conviction and assigns two errors for our review:
The trial court erred in sentencing Ms. Lewis for trafficking in crack cocaine, in violation of R.C.
2925.03 (A)(2), and possession of crack cocaine, in violation of R.C.2925.11 (A).The trial court erred when it overruled Ms. Lewis'[s] motion to suppress the initial traffic stop.
{¶ 6} In her first assignment of error, Lewis contends that the trial court erred in sentencing her for both trafficking in crack cocaine, in violation of R.C.
{¶ 7} R.C.
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 8} The Supreme Court of Ohio established a two-step analysis for determining whether R.C.
{¶ 9} In Cabrales, the Supreme Court of Ohio rejected a "`strict textual comparison' of the elements in considering whether trafficking in a controlled substance under R.C.
To be guilty of possession under R.C.
2925.11 (A), the offender must "knowingly obtain, possess, or use a controlled substance." To be guilty of trafficking under R.C.2925.03 (A)(2), the offender must knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, knowing, or having reason to know, that the substance is intended for sale. In order to ship a controlled substance, deliver it, distribute it, or prepare it for shipping, etc., the offender must "hav[e] control over" it. R.C.2925.01 (K) (defining "possession").
Cabrales at ¶ 30. The Court concluded that the offenses were allied offenses of similar import because the "commission of the first offensenecessarily results in commission of the second." Id. Proceeding to the second step, the Court determined that based on the facts of the case, Cabrales committed the offenses with the same animus, i.e. to sell the drugs, within the meaning of R.C.
{¶ 10} In this case, the jury convicted Lewis of possession of crack cocaine, in violation of R.C.
{¶ 11} Lewis asks that we make this determination or remand this matter to the trial court. The State concedes that this matter should be remanded. Because the trial court did not consider whether the offenses were committed separately or with a separate animus, we agree that this matter should be remanded to the trial court. Accordingly, we sustain Lewis's first assignment of error.
{¶ 12} In her second assignment of error, Lewis contends that the trial court erred *5 by not granting her motion to suppress evidence obtained during the traffic stop.
{¶ 13} Our review of a trial court's decision regarding a motion to suppress presents a mixed question of law and fact. State v.Burnside,
{¶ 14} The
{¶ 15} The Supreme Court of Ohio has observed that "[authorities seem to be split as to whether a traffic stop is reasonable when supported merely by reasonable suspicion, or whether the heightened standard of probable cause must underlie the stop." City of Bowling Green v.Godwin,
{¶ 16} To meet the reasonable suspicion standard, law enforcement must demonstrate "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio (1968),
{¶ 17} "Probable cause is a stricter standard than reasonable and articulable suspicion." Id. at ¶ 23, citing State v. Evans (1993),
{¶ 18} Trooper Mikesh stopped Lewis for violating R.C.
(A) The driver of a vehicle intending to turn at an intersection shall be governed by the following rules: * * * (3) At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection *7 the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane of the roadway being entered lawfully available to traffic moving in that lane.
{¶ 19} At the suppression hearing, Trooper Mikesh testified that Lewis's vehicle was immediately ahead of hers as both traveled southbound on U.S. 23, at a location where traffic is restricted to one direction. Lewis executed a left-hand turn onto U.S. 52 eastbound, at a location where traffic is also restricted to one direction. Mikesh observed Lewis make "the turn from the far left lane of U.S. 23 southbound to the right side, the far side of U.S. 52 eastbound, which is a violation." Trooper Mikesh testified that she "immediately initiated a traffic stop based on the violation."
{¶ 20} Lewis contends that her actions in this case — making a left turn from the far left lane of a one-way road to the far right lane of another one-way road — are not enough to constitute a violation of R.C.
{¶ 21} Initially, we note that Trooper Mikesh made no such admission. Rather, Mikesh stated that she made the traffic stop immediately after the violation, not the turn. Mikesh did not testify regarding how long she observed Lewis after the turn before *8 initiating the stop. We now examine whether the State had to offer specific testimony that Lewis's turn was not made "as nearly as practicable" to the far left lane on U.S. 52 in order to establish that Trooper Mikesh had a reasonable and articulable suspicion to initiate the stop.
{¶ 22} In State v. Mays, the Supreme Court of Ohio faced a similar argument regarding the constitutionality of a traffic stop pursuant to R.C.
{¶ 23} Like the statute at issue in Mays, R.C.
{¶ 24} Although the trial court did not make findings of fact, given its denial of Lewis's motion to suppress, the court appears to have accepted Trooper Mikesh's testimony that she observed Lewis execute a left turn from a one-way street into the far right lane of another one-way street. In denying Lewis's motion to suppress, the trial court did not indicate whether it was applying a standard of probable cause or reasonable suspicion. Based on the evidence before us, we conclude that Trooper Mikesh had, at the very least, a reasonable and articulable suspicion that Lewis violated R.C.
{¶ 25} In conclusion, we overrule Lewis's second assignment of error, but we sustain her first assignment of error. Accordingly, we affirm in part and reverse in part the judgment of the Scioto County Court of Common Pleas, and, for the reasons noted above, we remand this matter to the trial court for further proceedings consistent with this opinion and applicable law.
*10JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND THE CAUSE REMANDED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
*1Kline, J. McFarland, J.: Concur in Judgment and Opinion.