State v. Thomas

[Cite as State v. Thomas, 2012-Ohio-5577.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-11-25

v.

GARY E. THOMAS, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-11-26

v.

GARY E. THOMAS, OPINION

DEFENDANT-APPELLANT.

Appeals from Allen County Common Pleas Court
Trial Court Nos. CR2011 0064 and CR2010 0241

Judgments Affirmed

Date of Decision: December 3, 2012
Case No. 1-11-25 and 1-11-26

APPEARANCES:

James H. Banks for Appellant

Jana E. Emerick for Appellee

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Gary E. Thomas (“Thomas” or “Appellant”),

appeals the judgmentmof the Allen County Court of Common Pleas, sentencing

him to prison after a jury found him guilty of multiple counts of trafficking in

crack cocaine and other related offenses. On appeal, Thomas contends that: the

trial court erred in denying his motion to suppress; he was unduly prejudiced by

the consolidation of two cases for trial; the evidence does not support his

conviction on some of the counts; the trial court erred in admitting hearsay and in

other rulings; and, the sentence consisting of maximum, consecutive sentences

was contrary to law. For the reasons set forth below, the judgment is affirmed.

{¶2} In January of 2009, officers from the West Central Ohio Crime Task

Force (WCOCTF) received information that Thomas was selling crack cocaine.

They were able to cultivate an informant and buy crack cocaine from Thomas

multiple times. Because of the amount of crack that Thomas was selling, officers

considered him to be a large-scale dealer and they began to perform additional

surveillance on Thomas. A second informant advised the officers of an upcoming

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drug shipment that Thomas was due to receive. Officers obtained search warrants

for a storage unit Thomas used, and discovered 720.3 grams of cocaine, $20,945

in cash and a 9mm Lugar inside the storage unit, as well as paperwork belonging

to Thomas. After discovering this contraband, additional search warrants were

obtained for several of the residences that Thomas had been observed using.

Additional amounts of cocaine, cash and another weapon were found.

{¶3} On September 16, 2010, the Allen County Grand Jury returned an

eight-count indictment against Thomas in case number CR2010 0241 (“the 2010

case” or “the first case”). He was charged as follows: count one: trafficking in

crack cocaine (25-100 grams), in violation of R.C. 2925.03(A)(1) & (C)(4)(f), a

felony of the first degree; counts two, three and four: trafficking in crack cocaine

(10-25 grams), in violation of R.C. 2925.03(A) & (C)(4)(e), felonies of the second

degree; count five: possession of cocaine (500-1000 grams), a felony of the first

degree; counts six and nine: having a weapon while under disability, felonies of

the third degree; count seven: possession of cocaine (25-100 grams), a felony of

the third degree; count eight: possession of crack cocaine (25-100 grams), a

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felony of the first degree.1

{¶4} Thomas was arraigned in September of 2010. He entered not-guilty

pleas to all of the counts and was released on bond. On January 20, 2011, the trial

court revoked Thomas’ bond after Thomas was arrested on a new allegation of

trafficking in crack cocaine. Various pre-trial motions were filed by Thomas,

including a motion to suppress. The trial court denied the motion to suppress,

after holding a hearing on the matter.

{¶5} On February 17, 2011, the Allen County Grand Jury returned a new

indictment against Thomas, in case number CR2011 0064 (“the 2011 case” or “the

second case”), wherein he was charged as follows: count one: trafficking in crack

cocaine (25-100 grams), with a school specification, in violation of R.C.

2925.03(A)(1) & (C)(4)(f), a felony of the first degree and with a forfeiture

specification alleging that $6,532 was a proceed of criminal activity;2 and count

two: engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1)

& (B)(1), a felony of the first degree.

{¶6} Thomas also entered not-guilty pleas to the counts in the 2011 case.

Additional pre-trial motions were filed, including a motion by the State to

1
Several of the counts also contained a forfeiture specification, alleging that certain items were used in the
transaction or were a proceed of the criminal activity. Counts one, two, three and four had a forfeiture
specification for a 2006 Dodge Charger, but this specification was dismissed when the State amended the
indictment prior to submission of the case to the jury. Count five had a forfeiture specification for $20,945
in U.S. currency; and Counts seven and eight had a forfeiture specification for $16,110 in U.S. currency.
2
Prior to submission to the jury, the State amended this count to reduce the amount of crack cocaine to an
amount equal to or exceeding ten grams but not exceeding twenty-five grams, and it dismissed the
specification for being in the vicinity of a school.

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consolidate the two indictments for trial. The trial court granted the motion to

consolidate and a jury trial was held starting on April 19, 2011.

{¶7} After four days of testimony, the jury convicted Thomas on all

counts and all specifications except for count one of the second case. On count

one of the second case, the jury convicted Thomas of trafficking in crack cocaine

but with no agreement as to the amount, making the offense a felony of the fifth

degree.

{¶8} The trial court then immediately proceeded to sentence Thomas on

the various convictions, with sentences ranging from twelve months to ten years.

All sentences were to be served consecutively to each other for an aggregate total

of seventy-three years in prison, of which fifty-two years were mandatory. It is

from this judgment that Thomas appeals, raising the following five assignments of

error.

First Assignment of Error

The trial court erred in denying [Thomas’] motion to suppress
evidence.

Second Assignment of Error

[Thomas] was unduly prejudiced by the consolidation of the
cases for trial such that his convictions must be reversed.

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Third Assignment of Error

The evidence at trial does not support a conviction on Counts V
and VII of the Indictment as to the items found in the storage
unit.

Fourth Assignment of Error

The trial court’s rulings at trial regarding hearsay, confidential
informants, jury instructions and forfeiture substantially
prejudiced [Thomas] such that his convictions must be reversed.

Fifth Assignment of Error

The trial court erred in convicting and sentencing [Thomas].

First Assignment of Error

{¶9} Thomas argues that the trial court erred in denying the motion to

suppress, claiming that there was no probable cause for issuance of a search

warrant for the storage unit. Thomas contends that the information the

investigator gave to the judge in order to obtain the warrant was “false or

unsupported by any evidence,” so there can be no good faith exception to the

probable cause requirement. (Appellant’s Brief, p. 16.) Because Thomas

contends that this initial search was invalid, he asserts that the State should not

have been permitted to utilize “the fruits of the poisonous tree” to obtain the

warrants for the other locations, and therefore, all evidence resulting from these

searches should have been suppressed.

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{¶10} The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution guarantee “[t]he right of the people

to be secure in their persons, houses, papers, and possessions, against

unreasonable searches and seizures.” Accordingly, the State is prohibited from

making unreasonable intrusions into areas where people have legitimate

expectations of privacy without a search warrant. United States v. Chadwick

(1977), 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538, overruled on other grounds

in California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619.

{¶11} For a search or seizure to be reasonable under the Fourth

Amendment, it must be based upon probable cause and executed pursuant to a

warrant. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19

L.Ed.2d 576, 585; State v. Brown (1992), 63 Ohio St.3d 349, 350, 588 N.E.2d 113,

114. This requires a two-step analysis. State v. Moore, 90 Ohio St.3d 47, 49,

2000-Ohio-10, 734 N.E.2d 804. First, there must be probable cause. If probable

cause exists, then a search warrant must be obtained unless an exception to the

warrant requirement applies. Id. If the state fails to satisfy either step, the

evidence seized in the unreasonable search must be suppressed. Id.; Mapp v. Ohio

(1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

{¶12} When a trial court considers a motion to suppress evidence obtained

through the use of a search warrant, it must make both factual and legal

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determinations. State v. Voorhis, 3d Dist. No. 8-07-23, 2008-Ohio-3224, ¶ 76,

citing Ornelas v. U.S. (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d

911, 920. When an appellate court reviews a trial court's decision on a motion to

suppress, we apply the law, de novo, to the facts as determined by the trial court.

Id. At a suppression hearing, the trial court assumes the role of trier of fact and is

therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses. State v. Carter (1995), 72 Ohio St.3d 545, 552, 651

N.E.2d 965, 1995-Ohio-104; State v. Mills (1992), 62 Ohio St.3d 357, 366, 582

N.E.2d 972. An appellate court must uphold the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Dunlap (1995), 73

Ohio St.3d 308, 314, 652 N.E.2d 988, 1995-Ohio-243. We must defer to “the trial

court's findings of fact and rely on its ability to evaluate the credibility of

witnesses[,]” and then independently review whether the trial court applied the

correct legal standard. State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654

N.E.2d 1034.

{¶13} When “reviewing the sufficiency of probable cause in an affidavit

submitted in support of a search warrant issued by a [judge or] magistrate, neither

a trial court nor an appellate court should substitute its judgment for that of the

judge or magistrate by conducting a de novo determination as to whether the

affidavit contains sufficient probable cause upon which that court would issue the

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search warrant.” State v. Bressler, 3rd Dist. No. 15-05-13, 2006-Ohio-611 at ¶13;

State v. George (1989), 45 Ohio St.3d 325, 544, 544 N.E.2d 640, N.E.2d 640;

Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Rather,

the duty of a reviewing court is simply to ensure that the judge or magistrate had a

substantial basis for concluding that probable cause existed. In conducting any

after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial

and appellate courts should accord great deference to the judge’s or magistrate's

determination of probable cause, and doubtful or marginal cases in this area

should be resolved in favor of upholding the warrant. George, 45 Ohio St.3d 325,

544 N.E.2d 640, at the syllabus. Probable cause exists when a reasonably prudent

person would believe that there is a fair probability that the place to be searched

contains evidence of a crime. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d

527. In determining whether probable cause exists in order to issue a warrant,

judges are entitled to draw common sense conclusions about human behavior.

Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed 2d 502.

{¶14} Thomas’ argument that the search warrant was issued based upon

“stale” information is not accurate. Although some of the reasons given for the

search warrant were from prior years, they were part of a continuing and ongoing

investigation of Thomas. Furthermore, the information from the confidential

informant was received just a few days earlier and Investigator Johnson’s

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observation of Thomas at the storage unit occurred the same day the warrant was

issued.

{¶15} The trial court heard testimony from Investigator Johnson, and Judge

Warren (who issued the search warrants) that there was probable cause for this

warrant because (1) there had been a long-term investigation of Thomas; (2) there

was information that he was a “middle to upper level cocaine dealer”; (3) Thomas

was observed at a storage facility by another investigator in 2009 (although it was

a different facility); (4) investigators had information from a confidential

informant that a drug shipment would be coming to Lima very soon; and, (5)

Investigator Johnson saw Thomas placing a small package from his trunk into the

storage unit on the day that the search warrant was requested. Based on the

testimony at the hearing, the affidavits utilized to obtain the search warrants, and

the other exhibits and evidence, the trial court found that there was no evidence

that Judge Warren was misled by information in an affidavit that Investigator

Johnson knew was false, nor was there any evidence Judge Warren was not neutral

and detached or that he had abandoned his judicial role. (Feb. 7, 2011 J.E. on

Motion to Suppress, p. 8, 10.)

{¶16} The argument that there was no nexus between the places searched

and Thomas’ criminal activity also fails. The relevant question is whether or not

the issuing judge had a substantial basis for concluding that there was a fair

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probability that contraband or evidence of a crime will be found at the place to be

searched. Illinois v. Gates, supra, at 238. It is not necessary that a crime have

been committed at the location; just that evidence of a crime may potentially be

found at the location.

{¶17} We do not find any error in the trial court’s denial of the motion to

suppress. The first assignment of error is overruled.

Second Assignment of Error

{¶18} In the second assignment of error, Thomas claims that he was

unduly prejudiced by the consolidation of the two cases for trial. He maintains

that the joinder was prejudicial because the offenses were unrelated, occurred in

different years, and the evidence was weak. He asserts that the “cumulative

effect” of hearing about all of Thomas’ “other bad acts” was inflammatory to the

jury.

{¶19} Crim.R. 13 governs the joinder of indictments and provides, in

relevant part: “The court may order two or more indictments * * * to be tried

together, if the offenses * * * could have been joined in a single indictment * * *.”

Crim.R. 14 governs relief from prejudicial joinder and provides: “If it appears that

a defendant or the state is prejudiced by * * * such joinder for trial together of

indictments * * * the court shall order an election or separate trial * * * or provide

such other relief as justice requires.”

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{¶20} The Ohio Supreme court has often held that “joinder and the

avoidance of multiple trials is favored for many reasons, among which are

conserving time and expense, diminishing the inconvenience to witnesses and

minimizing the possibility of incongruous results in successive trials before

different juries.” The burden to show prejudice from joinder is upon the defendant

who claims the error. State v. Brooks (1989), 44 Ohio St.3d 185, 193, 542 N.E.2d

636. The Ohio Supreme Court has held that “[a] defendant claiming error in the

trial court's refusal to allow separate trials of multiple charges under Crim.R. 14

has the burden of affirmatively showing that his rights were prejudiced; he must

furnish the trial court with sufficient information that it can weigh the

considerations favoring joinder against the defendant's right to a fair trial, and he

must demonstrate that the court abused its discretion in refusing to separate the

charges for trial.” State v. Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288, at

the syllabus; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶

166.

{¶21} When a defendant claims that he was prejudiced by the joinder of

multiple offenses, a court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed, and (2) if not, whether the

evidence of each crime is simple and distinct. State v. Schaim (1992), 65 Ohio

St.3d 51, 59, 600 N.E.2d 661, 668. If the evidence of other crimes would be

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admissible at separate trials, any “prejudice that might result from the jury's

hearing the evidence of the other crime in a joint trial would be no different from

that possible in separate trials,” and a court need not inquire further. Id, quoting

Drew v. United States (1964), 331 F.2d 85, 90.

{¶22} Thomas was indicted in September, 2010 for four counts of drug

trafficking, three counts of drug possession, and two counts of having a weapon

while under disability. In February, 2011, he was again indicted for one count of

drug trafficking and one count of engaging in a pattern of corrupt activity. During

the drug trafficking offense in the 2011 case, Thomas made statements about the

charges in the 2010 case which were recorded and could have been used as

evidence in both cases had they been tried separately. (See State’s Ex. 57.)

Additionally, the engaging in a pattern of corrupt activity count in the 2011 case

encompassed the dates of violations of the drug activities alleged in the 2010 case

and those allegations were some of the predicate acts for the engaging charge. As

such, the evidence of drug activity in the 2010 case could have been presented as

evidence of the engaging in a pattern of corrupt activity charge in the 2011 case.

{¶23} Inasmuch as the evidence in both cases could have been presented at

separate trials on the indictments, it was admissible at a single, consolidated trial.

Also, the evidence of each crime in each indictment was simple and distinct,

involving controlled drug buys of certain amounts of crack cocaine on certain

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days, drug possessions of certain amounts on certain days, and weapons

possessions of certain weapons on certain days. Cases of this nature and with

similar types of evidence have been found to be properly joined. See, e.g., Torres,

supra.

{¶24} Furthermore, the cases and their individual counts were presented to

the jury as simple and distinct counts. The trial court instructed the jury to

consider each count in each indictment as a “separate and distinct matter” and to

do so uninfluenced by any of the other counts. (Trial Tr. Vol. 5, pp. 593-594,

614.)

{¶25} Thomas has not demonstrated that the trial court abused its

discretion when it permitted the joinder of the two cases. The second assignment

of error is overruled.

Third Assignment of Error

{¶26} In the third assignment of error, Thomas argues that the evidence

presented at trial did not support a conviction as to the items found in the storage

unit, specifically the cocaine, the cash, and the weapon.3 He asserts that there was

“simply no evidence” to support a finding that Thomas possessed the items in the

storage unit and that the jury “lost its way” when it convicted him. Thomas’

arguments are based on the assertion that he was not the lessor of the storage unit,

3
Thomas’ assignment of error specifies “Counts V and VII,” however, his arguments pertaining to the
cocaine , cash and weapon found in the storage unit and the weapon are actually applicable to Count V and
Count VI. Count VII involves the possession of a lesser amount of cocaine on a different date.

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that he had “less than two minutes access” to the unit, and that there were

documents belonging to other persons that were found in the storage unit.

{¶27} The assignment of error argues both that the verdicts pertaining to

two of the counts were against the manifest weight of the evidence and also that

there was insufficient evidence to support those verdicts. The Ohio Supreme

Court has addressed the differences in the two standards:

The criminal manifest-weight-of-the-evidence standard was
explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 678
N.E.2d 541. In Thompkins, the court distinguished between
sufficiency of the evidence and manifest weight of the evidence,
finding that these concepts differ both qualitatively and
quantitatively. Id. at 386, 678 N.E.2d 541. The court held that
sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law,
but weight of the evidence addresses the evidence's effect of
inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a
reviewing court asks whose evidence is more persuasive-the state's
or the defendant's? We went on to hold that although there may be
sufficient evidence to support a judgment, it could nevertheless be
against the manifest weight of the evidence. Id. at 387, 678 N.E.2d
541. “When a court of appeals reverses a judgment of a trial court on
the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” Id. at 387, 678
N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652.

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

{¶28} A challenge to the sufficiency of the evidence requires us to construe

the evidence, and all reasonable inferences, in favor of the prosecution. State v.

Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. And, although the

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appellate court acts as a “thirteenth juror” in a manifest-weight review, it still must

give due deference to the findings made by the fact-finder. State v. Thompson

(1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456. The fact-finder, being the

jury, occupies a superior position in determining credibility. Id.

{¶29} Count 5 is a charge of possession of cocaine (500-1000 grams) and

count 6 is a charge of having a weapon while under disability. The cocaine and

weapon at issue in these counts were located in a storage unit located at Gossard’s

on Harding Highway. The trial court advised the jury on the legal definition of

“possession” according to the law as set forth in R.C. 2901.21(D)(1), R.C.

2925.01(K), Ohio Jury Instructions, and case law on constructive possession.

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 thing or
substance is found.

Possession is a voluntary act if the possessor knowingly procured or
received the controlled substance, or was aware of his control
thereof, for a sufficient period of time to have ended his possession.
A person has possession when he knows that he has the object on or
about his person or property or places it where it is accessible to his
use or direction and he has the ability to direct or control its use.

Possession can be either actual or constructive. Constructive
possession exists when a person is able to exercise control over the
contraband, even if that person does not physically possess it.
Constructive possession can be shown through circumstantial
evidence.

(Trial Tr. Vol. 5, 599-600.)

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{¶30} Although Thomas’ brief argues there was negligible evidence to

connect him with the storage unit, the testimony of several witnesses contradicts

this assertion. Michelle Thomas, the Appellant’s aunt (hereinafter, “the Aunt”),

testified that he asked her to rent a storage unit for him and that she did. (Trial Tr.

Vol. 4, p. 387.) She testified that the unit was located at Gossard’s on Harding

Highway. (Id. at p. 388.) The Aunt further testified that she never had any keys to

the unit, that Thomas had all the keys, and that he was the only person she knew

who used the storage unit. (Id. at pp. 389-390.) The Aunt testified that she

assumed the Appellant paid for the unit because she never received a bill, even

though her address was given to rent the unit. Id. An investigator testified that he

learned that a male matching Appellant’s description had been making the rental

payments on the storage unit. (Trial Tr. Vol. 2, p. 358.)

{¶31} Investigator Andrew Johnson testified that he had seen Thomas at

that location, using the passcode to enter the lot and then using a key to open unit

#55, where the contraband was located. (Trial Tr. Vol. 2, 356-357.) He further

testified that he observed Thomas take something out of the trunk of his vehicle,

the same vehicle that had been used in four previous drug buys, and appear to

carry a small package and place it in the storage unit, before re-locking the unit

and leaving the area. (Id. at 357.) There was also paperwork inside with Thomas’

name, and some belonging to two other relatives of Thomas (one of whom was

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deceased.) The storage unit was then immediately placed under surveillance, and

no one else was seen using the storage unit or putting anything inside. A search

warrant was obtained the same day, and the cocaine, money, and weapon were

found inside unit #55.

{¶32} Lt. Matt Treglia testified that he found keys on Thomas’ key ring

that were of the same type of key that were used with the unique type of lock

found on the storage unit. (Trial Tr. Vol. 3, pp. 6-7.) Sgt. Brian Leary testified

that the stacks of cash located in the storage unit were bundled and secured with

small black rubber bands. (Id. at p. 13.) When Thomas’ apartment on Edgewood

was searched, they also located bundles of cash with the same type of black rubber

bands around them, and a package of small black rubber bands was located in

Thomas’ bedroom. (Id. at p. 17.)

{¶33} Also, State’s Exhibit 57, the tape of the wire recording from the

January 17, 2011 buy, was admitted into evidence and played for the jury. (Trial

Tr. Vol. 4, p. 432.) On that tape, Thomas admitted that the storage unit was his

and admitted ownership of the cocaine, although he claimed he didn’t know it was

in that unit.

{¶34} All of this testimony was more than sufficient, when viewed in a

light most favorable to the prosecution, to support the findings of guilty on these

two counts. Further, this unrefuted testimony, in conjunction with the jury’s

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ability to see, hear, and evaluate the witnesses’ credibility firsthand, does not

demonstrate in any way that the jury lost its way and created such a manifest

miscarriage of justice that the convictions on those counts should be reversed.

Thomas’ third assignment of error is overruled.

Fourth Assignment of Error

{¶35} In the fourth assignment of error, Thomas cites to several of the trial

court’s rulings that he claims were in error and caused such substantial prejudice

that his convictions should be overturned. Specifically, he complains that: (1) the

trial court permitted repeated hearsay testimony concerning various alleged drug

activities that was prejudicial; (2) the trial court refused to provide identities

and/or records of confidential informants; (3) the trial court did not use Thomas’

requested corrupt activity jury instruction; (4) the trial court failed to give a

Howard instruction when the jury appeared to be deadlocked; and, (5) he claims

he was prejudiced by the trial court’s failure to return the Dodge Charger to him,

despite the dismissal of the criminal forfeiture charges. We shall address each

issue separately below.

{¶36} (1) Alleged Hearsay Admissions. Thomas points to several places in

the trial transcript where he argues a witness was allowed to testify to inadmissible

hearsay. The majority of the references refer to the testimony of Investigator

Johnson and his responses regarding what the confidential informants told him.

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The State argued that the statements were offered to show why the officers did

what they did, and that they were not hearsay because they were not being offered

for the truth of the matter. The trial court overruled Thomas’ attorney’s

objections.

{¶37} “‘Hearsay’ is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Evid.R. 801(C). Generally, hearsay is not admissible unless one

of several exceptions to the hearsay rule is applicable. See Evid.R. 802–807. Also,

Evid.R. 801(D) specifies certain statements which are not considered hearsay.

{¶38} While we agree that the officer’s statements concerning what the

confidential informants said during the drug buys were offered in the context of

describing what occurred, we find that the testimony exceeded what was necessary

to explain the officer’s actions and included what was being said by the

informants. The officer’s reiteration of what the confidential informants said went

beyond what was necessary to factually describe what occurred during the drug

buys and, therefore, it constituted hearsay.

{¶39} On appeal, the State argues that the testimony should be admissible

because the informants testified at the trial on the matter and were available to be

cross-examined. Evid.R. 801(D)(1) does provide that a statement is not hearsay

“if (1) the declarant testifies at trial or hearing and is subject to cross examination

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concerning the statement * * *.” However, this exception is not applicable here

because, in addition to the above requirement, the second part of this hearsay

exclusion requires that one of three additional conditions must be met: the

statements must pertain to prior inconsistent statements, Evid.R. 801(D)(1)(a); the

statements must pertain to prior consistent statements, Evid.R. 801(D)(1)(b); or,

the statements pertain to identification, Evid.R. 801(D)(1)(c).4 These factors were

not applicable to the testimony in question in this trial. Furthermore, the

circumstances giving rise to testimony under factors (a) or (b) would ordinarily

only be permitted on rebuttal, after the declarant’s testimony has come under

attack.

{¶40} However, the improper admission of evidence is harmless error

where the remaining evidence constitutes overwhelming proof of a defendant’s

guilt, beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 555, 2001-

Ohio-112, quoting State v. Williams, 6 Ohio St.3d 281 (1983), paragraph six of the

syllabus. In making a Crim.R. 52(A) harmless error analysis, any error will be

deemed harmless if it did not affect the accused's “substantial rights.” An error is

4
The entire text of Evid.R. 801(D) states: “A statement is not hearsay if: (1) Prior statement by witness.
The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and
the statement is (a) inconsistent with declarant's testimony, and was given under oath subject to cross-
examination by the party against whom the statement is offered and subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in a deposition, or (b) consistent with declarant's testimony and is
offered to rebut an express or implied charge against declarant of recent fabrication or improper influence
or motive, or (c) one of identification of a person soon after perceiving the person, if the circumstances
demonstrate the reliability of the prior identification.”

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Case No. 1-11-25 and 1-11-26

harmless where there is no reasonable probability that the error contributed to the

outcome of the trial. State v. Brown, 65 Ohio St.3d 483, 485, 1992-Ohio-61.

{¶41} In this case there was overwhelming evidence to support Thomas’

convictions, even without any of the hearsay testimony. The exclusion of the

hearsay testimony would not have affected the trial’s outcome in any way. The

State offered thirty witnesses and more than sixty exhibits in proving its cases

against Thomas. There were numerous photographs; there was the testimony of

the confidential informants; the tapes of the wires that the informants wore during

the drug buys were played for the jury; the officers testified as to what they saw

and heard during the drug buys; and there was the evidence, including drugs and

money, which was found in the storage unit and at Thomas’ apartment. Based on

all of the facts in the record, the admission of the hearsay testimony in this case

was harmless error.

{¶42} (2) Disclosure of Confidential Informants’ Identities. Thomas

asserts that he was “ambushed” at trial and was unable to properly investigate

issues relating to the confidential informants because the State “intentionally

withheld” this information until trial and all discovery was sealed or “for counsel

only.” He argues that the trial court should have granted a continuance in order to

investigate these witnesses. (Appellant’s Br., p. 23.)

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Case No. 1-11-25 and 1-11-26

{¶43} While the State acknowledges that information relating to the

identification of the confidential informants in this case was designated as

“counsel only” when provided in discovery, the record shows that the parties

agreed to a resolution that permitted Thomas to review the evidence with his

attorney, including the photographs and the recordings from the wires the

informants were wearing. (Feb. 4, 2011 Hearing Tr. at pp. 6-8.) This agreement

was deemed satisfactory to Thomas at that time and his counsel informed the court

that “we have resolved those issues regarding the discovery [with regard to the

“counsel only” designation motion]. (Id. at p. 6.)

{¶44} The State discussed the agreement on the record, stating:

I indicated to [Appellant’s counsel] that I did not have an objection
to him showing those photographs and/or playing those wires on the
controlled buys to his client. My concern is, and always has been,
the distribution of those materials, or the duplication of those
materials and making their way into the community.

So again, I told him [I had no] problem with him sitting down with
his client and playing those or showing those, although I just want to
be clear, they still shouldn’t be duplicated and no copies should be
provided to the defendant, but I have no problem with him seeing
those or listening to those.

(Id. at p. 7.)

{¶45} Appellant’s counsel again replied, “That resolves the problem, your

honor, it does.” (Id.) Furthermore, there was information obtained from the wire

that Thomas knew who the confidential informants were prior to this February 4,

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Case No. 1-11-25 and 1-11-26

2011 agreement. (See State’s Ex. 57.) The record disproves Thomas’ claim that

he suffered any prejudice based upon his access to the State’s evidence.

{¶46} (3) Jury Instruction pertaining to corrupt activity. Next, Thomas

argues that the trial court erred by not giving his requested instruction on the

definition of an enterprise for purposes of engaging in a pattern of corrupt activity.

This Court has previously stated that:

It is well settled that a criminal defendant is entitled to a complete
and accurate jury instruction on all issues raised by the evidence.
However, the precise language of a jury instruction is within the trial
court’s discretion and will not be disturbed absent an abuse of
discretion. * * * Viewing the instructions in their totality, if the law
is clearly and fairly expressed, a reviewing court should not reverse
a judgment based upon an error in a portion of a charge.
Furthermore, there is a strong presumption in favor of the adequacy
of jury instructions. Instructions which, in their totality, are
sufficiently clear to permit the jury to understand the relevant law
shall not be the cause of a reversal upon appeal.

(Internal citations omitted.) State v. Wegmann, 3d Dist. No. 1-06-98, 2008-Ohio-

622, ¶¶ 103-104.

{¶47} The jury instructions in question were based upon the Ohio Jury

Instructions, Section 523.32, which cites to R.C. 2923.31(C). Further, the

instruction requested by Thomas did not accurately state the law in Ohio, but

rather came from a federal case interpreting the federal corrupt activity statute. As

the trial judge pointed out, the law in Ohio is that “if a defendant has engaged in

two or more acts constituting a predicate offense, he or she is engaging in a pattern

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Case No. 1-11-25 and 1-11-26

of corrupt activity and may be found guilty of a RICO violation.” (Trial Tr. Vol.

5, p., 552, citing State v. Schlosser (1997), 79 Ohio St.3d 329, 335.)

{¶48} R.C. 2923.31 states, in pertinent part:

(C) “Enterprise” includes any individual, sole proprietorship,
partnership, limited partnership, corporation, trust, union,
government agency, or other legal entity, or any organization,
association, or group of persons associated in fact although not a
legal entity. “Enterprise” includes illicit as well as licit enterprises.

***

(E) “Pattern of corrupt activity” means two or more incidents of
corrupt activity, * * * that are related to the affairs of the same
enterprise, are not isolated, and are not so closely related to each
other and connected in time and place that they constitute a single
event.

{¶49} The trial court’s jury instruction definitions for “enterprise” and

“pattern of corrupt activity” followed the language in R.C. 2923.31 exactly, word-

for-word. (Trial Tr. Vol. 5, pp. 602-603.) Moreover, this Court has previously

found instructions very similar to those given in the present case to be without

error. See, State v. Lightner, 3d Dist. No. 6-08-15, 2009-Ohio-2307. We find no

abuse of discretion in the trial court’s choice of jury instructions.

{¶50} (4) No “Howard” instruction to jury. Thomas next argues that the

trial court erred by failing to give a Howard charge to the jury, pursuant to State v.

Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188, paragraph two of the syllabus,

after the jury sent a note to the trial court inquiring what their options were if they

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Case No. 1-11-25 and 1-11-26

did not agree. The note read as follows: “If we do not agree on count 1 of [the

2011 case], what are our options? Additional time would not change decision.”

(Trial Tr. Vol. 5, Court’s Ex. 5.)

{¶51} The trial court did not give a Howard instruction to the jury, but

instead gave them an amended verdict form. Thomas asserts that submitting the

revised verdict form to the jury created an inference that the trial court “assumed

that the jury had found the Defendant guilty and that their deadlock was over the

specifications on the verdict form and not on the determination of guilt or

innocence.” (Appellant’s Br., p. 24.)

{¶52} The trial court discussed how to respond to the jurors’ question with

both attorneys in detail. (Trial Tr. Vol. 5, pp. 631-637.) The court determined that

the jury’s question demonstrated ambiguity and did not, at that point in time,

warrant a Howard charge. The count in question included three parts, (1) guilt or

innocence, (2) the amount of cocaine, and (3) the specification. The jury’s

question did not indicate what part or parts of count one in the 2011 case they

could not agree upon. Therefore, the trial court prepared an amended verdict form

that was divided into three separate parts, so that each part could be considered

separately. It was identical to the original form except there were signature lines

after each part. (Id. at p. 636.) Shortly thereafter, the jury reached a verdict,

finding Thomas guilty of possession of cocaine, but not reaching any consensus on

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Case No. 1-11-25 and 1-11-26

the part specifying the amount, thereby making the offense a felony of the fifth

degree.

{¶53} The instruction formulated by State v. Howard is to be given to a

jury when it has been determined that the jury is deadlocked in its decision. State

v. Gary, 3d Dist. No. 5-99-51, 2000-Ohio-1679, citing State v. Minnis (Feb. 11,

1992), Franklin County App. No. 91AP-844. There is no bright line rule that may

be used to determine when a jury is deadlocked and when the supplemental charge

should be read to the jury. Id. The decision on whether to give a Howard charge

is reviewed under an abuse of discretion standard. State v. Shepard, 10th Dist. No.

07AP-223, 2007-Ohio-5405, ¶ 11. See, also, State v. Gapen, 104 Ohio St.3d 358,

2004-Ohio-6548, 819 N.E.2d 1047, ¶¶ 127-128.

{¶54} In this case, the trial court determined that the jury’s question was

ambiguous because it was asking what to do “if” they could not reach a decision.

The court believed the jury may have had some confusion about the mutli-part

count. Rather than immediately give a Howard charge, the trial court, in its

discretion, attempted to clarify the matter for the jury. The amended verdict form

given to the jury was an appropriate statement of the law and merely simplified the

issues the jury had to consider. We do not find that the trial court’s decision was

unreasonable, arbitrary, or unconscionable in any way, nor did Appellant

demonstrate any prejudice.

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Case No. 1-11-25 and 1-11-26

{¶55} (5) Forfeiture Specification as to the 2006 Dodge Charger. The

State dismissed the criminal forfeiture specifications pertinent to this vehicle. The

issue was moot because the vehicle had already been forfeited pursuant to a civil

forfeiture action. Thomas does not specify how this dismissal was prejudicial to

his conviction, nor do we find any merit in the argument.

{¶56} Based on all of the above, we do not find any errors in the multiple

decisions of the trial court that Thomas has challenged in this assignment of error.

Therefore, the fourth assignment of error is overruled.

Fifth Assignment of Error

{¶57} In the final assignment of error, Thomas claims that the trial court

erred in sentencing him because he claims that he was improperly convicted and

sentenced on multiple counts for the same act. He also asserts that the imposition

of consecutive sentences was improper because Thomas was not granted a

continuance in the sentencing in order to allow him to present mitigating evidence.

He claims that his sentence was unduly harsh and contrary to law. And finally, he

claims that the effect of the recently enacted House Bill 86 should require

resentencing because the penalties for crack cocaine convictions have changed, as

well as the standards for the imposition of mandatory sentences.

{¶58} In his first argument, Thomas asserts that he should not have been

sentenced on the corrupt activity count in addition to the underlying counts for

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Case No. 1-11-25 and 1-11-26

trafficking that constituted the basis for the corrupt activity charge. He asserts that

this can be construed as sentencing him on multiple counts for the same act, i.e.,

allied offenses of similar import, and that he could only be convicted of one. He

maintains that he “has been subjected to double jeopardy by the multiple

convictions.” (Appellant’s Reply Br., p. 8.)

{¶59} This Court has previously addressed this very same issue and has

held that convictions for engaging in a pattern of corrupt activity as well as

possessions of cocaine (where the possessions were the incidents of corrupt

activity utilized to establish an essential element of engaging in a pattern of

corrupt behavior), could not be construed to constitute two or more allied offenses

of similar import and did not violate the double jeopardy clause. See State v.

Caudill, 3d. Dist. No. 5-97-35, 1998 WL 833729 (Dec. 2, 1998). Since that

decision, the Ohio Supreme Court has modified the test to determine whether

offenses are allied offenses of similar import. See State v. Johnson, 128 Ohio

St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061. The Twelfth District Court of

Appeals has recently considered a case under the newer standard and found that

convictions for trafficking in a controlled substance (marijuana) and also for

engaging in a pattern of corrupt behavior were not allied offenses. See State v.

Dodson, 12th Dist. No. 2009-07-1147, 2011-Ohio-6222, ¶¶ 64-69.

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Case No. 1-11-25 and 1-11-26

{¶60} In State v. Johnson, supra, the Ohio Supreme Court established a

two-part test to determine whether offenses are allied offenses of similar import.

Under this test, courts must first determine “whether it is possible to commit one

offense and commit the other with the same conduct.” Johnson at ¶ 48. In making

this determination, it is not necessary that the commission of one offense would

always result in the commission of the other, but instead, the question is simply

whether it is possible for both offenses to be committed by the same conduct. Id.

If it is found that the offenses can be committed by the same conduct, courts must

then determine whether the offenses actually were committed by the same

conduct. Id. at ¶ 49. If both questions are answered in the affirmative, the

offenses are allied offenses of similar import. Id. at ¶ 50. However, if 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 the offenses are not allied offenses of similar import subject to

merger. Id. at ¶ 51. The statute, R.C. 2941.25(B), requires a court to examine a

defendant’s conduct, which is an inherently subjective determination. Id. at ¶ 52.

{¶61} In applying the Johnson analysis to the case at bar, we agree that it is

possible to commit both offenses with the same conduct. However, although

possible, under the facts of this case, we find Thomas committed the acts of

trafficking in cocaine and engaging in a pattern of corrupt activity with a separate

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Case No. 1-11-25 and 1-11-26

animus. Engaging in a pattern of corrupt activity requires an additional state of

mind from trafficking in drugs to form an enterprise. See, Dodson at ¶ 67.

Thomas possessed the intent to traffic in drugs, which does not require him to

form an enterprise. Thomas formed a relationship with different suppliers and,

over a period of time spanning several years, continued to operate his enterprise of

bringing drugs into Lima, and distributing them. Furthermore,

[W]hen looking at the intent of the General Assembly, the enactment
of R.C. 2923.32 was to criminalize the pattern of criminal activity,
not the underlying predicate acts. State v. Dudas, 2009–Ohio–1001
at ¶ 47. This intent is further reinforced by the purpose articulated in
the federal RICO statute, which R.C. 2923.31 et seq. is patterned
after. State v. Thrower (1989), 62 Ohio App.3d 359, 369. The
purpose of the federal RICO statute includes “providing enhanced
sanctions and new remedies to deal with the unlawful activities of
those engaged in organized crime.” Id. at 377 [citation omitted.] If
the purpose of the statute is to provide enhanced sanctions, this
purpose is furthered by not merging trafficking in [drugs] and
engaging in a pattern of corrupt activity in order to provide an
enhanced sanction.

Dodson at ¶ 68. See, also, State v. Dudas, 2009-Ohio-1001, at ¶ 48. Considering

Thomas’ separate animus for trafficking in cocaine and engaging in a pattern of

corrupt activity, and considering the intent of the General Assembly in the

enactment of R.C. 2923.32, we do not find that his separate offenses are subject to

merger.

{¶62} Furthermore, courts that have reviewed whether double jeopardy is

applicable in circumstances such as this have consistently found that it is not. See,

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Case No. 1-11-25 and 1-11-26

e.g., State v. Caudill; State v. Dodson, ¶¶ 27-34; State v. Dudas, ¶ 48 (“Relying on

the purpose of RICO and principles of double jeopardy, numerous federal courts

have held that double jeopardy does not bar a RICO conviction and a separate

conviction and sentence on the predicate offense.”)

{¶63} In the next sentencing issue raised by Thomas, he asserts that the

imposition of consecutive sentences was unduly harsh and that he was denied the

opportunity to present mitigating evidence.

{¶64} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, “trial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to

make findings or give their reasons for imposing maximum, consecutive, or more

than the minimum sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-

855, 846 N.E.2d 1, ¶37. Courts, nevertheless, are still required to comply with the

sentencing laws unaffected by Foster, such as R.C. 2929.11 and 2929.12, which

require consideration of the purposes and principles of felony sentencing and the

seriousness and recidivism factors. Mathis at ¶38. However, a sentencing court

does not have to make any specific findings to demonstrate its consideration of

those general guidance statutes. Foster at ¶42.

{¶65} In State v. Bates, the Ohio Supreme Court recognized that the

decision in Foster left no specific statute in place to govern the imposition of

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Case No. 1-11-25 and 1-11-26

consecutive sentences beyond the basic statutes regarding the “purposes and

principles of sentencing.” 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328,

¶18. The Court held that common-law sentencing presumptions were reinstated,

giving trial judges “the discretion and inherent authority to determine whether a

prison sentence within the statutory range shall run consecutively or

concurrently.” Id. at ¶18–19; State v. Hodge, 128 Ohio St.3d 1, 4, 2010-Ohio-

6320, 941 N.E.2d 768, 772, ¶12.

{¶66} In State v. Hodge, the Ohio Supreme Court restated its previous

holdings concerning a trial court’s discretion to impose consecutive or maximum

sentences:

We reaffirmed Foster and Bates in State v. Elmore, 122 Ohio St.3d
472, 2009-Ohio-3478, 912 N.E.2d 582, holding that a trial court has
the discretion to impose consecutive sentences in the wake of those
decisions and that despite the severance of the statutory
presumptions, a trial court is not required by the rule of lenity to
impose minimum or concurrent sentences. Id. at paragraph two of
the syllabus and at ¶36–41.

In reliance on these decisions, many defendants in Ohio have been
sentenced by trial judges who have exercised their discretion to
impose consecutive sentences without applying any of the statutes
severed in Foster, including those regarding consecutive sentencing.

Hodge, at ¶¶13-14.

{¶67} In the case at bar, a review of the record indicates that the trial court

followed the procedures set forth in R.C. 2929.19 and considered the statutory

guidelines in sentencing Thomas. Although the trial court was not required to set

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Case No. 1-11-25 and 1-11-26

forth its specific findings, the record establishes that the trial court did indeed

consider the relevant factors from R.C. 2929.11 R.C. 2929.12 in sentencing

Thomas. The trial court found that the offenses were committed as part of an

organized criminal activity or for hire; that the recidivism factors showed that he

had a previous history of convictions as an adult; that Thomas has not been

rehabilitated to a satisfactory degree; and that he has not responded favorably to

sanctions previously imposed. (Trial Tr. Vol. 5, pp. 654-655.)

{¶68} The trial court exercised its discretion and declined to postpone

sentencing until the following week for several reasons: a pre-sentence

investigation was not needed because many of the counts required mandatory

prison time and community control was not an option; anyone who wanted to be

there knew the that the potential existed for a jury verdict that day and had the

opportunity to be present; there had been disruptions in the court during the trial;

and Thomas was given the opportunity to speak on his own behalf and be heard,

but he declined. (Trial Tr. Vol. 5, pp. 650-654.) We do not find that there was

any error in the sentencing hearing nor was the imposition of consecutive

sentences contrary to law.

{¶69} And finally, Thomas argues that his sentence was unduly harsh and

that he should be resentenced because of changes in Ohio’s sentencing statutes as

a result of recently enacted House Bill 86.

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Case No. 1-11-25 and 1-11-26

{¶70} The recent changes to felony sentencing in Ohio as a result of H.B.

86 became effective September 30, 2011. Thomas was convicted prior to the

effective date of that law and his judgment entry of sentencing was filed April 25,

2011. Therefore, he is not eligible to any modified sentence on the basis of H.B.

86. See State v. Fields, 5th Dist. No. CT11-0037, 2011-Ohio-6044, ¶¶ 10-13.

The provisions of sections 2925.01, 2925.03, 2925.05, and 2925.11
of the Revised Code, and of division (W) of section 2929.01 of the
Revised Code, in existence prior to the effective date of this act shall
apply to a person upon whom a court imposed sentence prior to the
effective date of this act for an offense involving marihuana,
cocaine, or hashish. The amendments to sections 2925.01, 2925.03,
2925.05, and 2925.11 of the Revised Code, and to division (W) of
section 2929.01 of the Revised Code, that are made in this act do not
apply to a person upon whom a court imposed sentence prior to the
effective date of this act for an offense involving marihuana,
cocaine, or hashish.

(Emphasis added.) Am.Sub.H.B. No. 86, Section 3. Based upon the express

language of the legislation, the statutory modifications are not applicable to a

defendant “upon whom a court imposed sentence prior to the effective date of this

act for an offense involving * * * cocaine * * *.” Therefore, any changes in the

sentencing statutes are not applicable to Thomas. Based on all of the above, we

find that the trial court did not err in sentencing Thomas. The fifth assignment of

error is overruled.

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{¶71} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr

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