[Cite as State v. Woods, 2016-Ohio-4830.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 15-COA-036
SHEENA M. WOODS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Case No. 15-CRI-048
JUDGMENT: Affirmed in part, Reversed in part, and
Remanded
DATE OF JUDGMENT ENTRY: July 5, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNEL ERIN N. POPLAR
Ashland County Prosecutor DANIEL D. MASON
110 Cottage Street, Third Floor Poplar & Mason, LLC
Ashland, Ohio 44805 103 Milan Ave., Suite 6
Amherst, Ohio 44001
EMILY M. BATES
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 15-COA-036 2
Hoffman, J.
{¶1} Defendant-appellant Sheena M. Woods appeals her conviction and
sentence entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is
the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Robert "John" Pleus, Jr. testified at trial he lived at 637 Cottage Street in
Ashland. He and Appellant were in a relationship wherein they resided together at the
Cottage Street residence. Appellant had a history of involvement with drugs. During the
parties’ relationship, Pleus came to have suspicions she was using again. Appellant
would often leave for periods of extended time. Appellant entered treatment for drug
abuse with ACCADA (Ashland County Counsel and Drug Abuse).
{¶3} In August of 2014, Pleus was sentenced to prison for committing domestic
violence against Appellant. He was sentenced to a term of 180 days, with a two year
period of probation. He served ninety days from November 14, 2014, until January 21,
2015, and was granted work release privileges.
{¶4} Pleus testified he and Appellant resumed their relationship after he was
released. At one point Appellant left for a few days, and Pleus did not know where she
was staying. Eventually, she called him to retrieve her from Newark, Ohio. Pleus learned
she was using drugs
{¶5} In the beginning of March 2015, Pleus contacted the Ashland Police
Department to report his van missing. While making the police report, Pleus reported
other items missing, including checks, a gun, a tv and a computer. He then told the police
of his suspicion of there being a meth lab in his basement. He stated he had suspicion
Ashland County, Case No. 15-COA-036 3
for a couple of days, and indicated he found items consistent with a meth lab, while
“poking around in the basement” and making sure he didn’t have anything illegal in the
house due to his probation status.
{¶6} On March 13, 2015, Officer Craig Kiley inspected the area and observed a
lithium battery, a bag, cold packs and a two liter bottle. Officer Kiley testified, based on
his experience and training, those items were used in the use and manufacture of
methamphetamine.
{¶7} During their investigation, officers learned Appellant purchased
pseudoephedrine on December 15, 2014, from a local Discount Drug Mart pharmacy.
Two accomplices made similar purchases on the same date.
{¶8} It was determined Appellant and her accomplices attempted to make
methamphetamine in the attic of Appellant's home at 637 Cottage Street, Ashland, Ohio.
{¶9} Following the jury trial, the trial court convicted Appellant of the charges via
Judgment Entry entered July 23, 2015. The trial court accepted the verdict of the jury
and entered a finding of guilty as to Count One, illegal assembly or possession of
chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the
second degree; and Count Two, illegal manufacture of drugs, in violation of R.C.
2925.04(A), a felony of the first degree.
{¶10} The trial court conducted a sentencing hearing on September 28, 2015. The
trial court sentenced Appellant to four years in prison on Count One, illegal assembly or
possession of chemical for the manufacture of drugs or complicity to the same, in violation
of R.C. 2925.04(A)(1), a felony of the second degree. On Count Two, manufacture of
drugs or complicity to the same, in violation of R.C. 2925.04(A), a felony of the first
Ashland County, Case No. 15-COA-036 4
degree, the trial court sentenced Appellant to five years in prison. The court imposed the
sentences concurrently for a total aggregate prison term of five years. With regard to
Count One, two of the four years, were imposed mandatorily, and with regard to Count
Two, three of the five years were ordered mandatory. The trial court further imposed a
fine of $7,500 on Count One and $10,000 on Count Two.
{¶11} On September 29, 2015, the trial court conducted a resentencing hearing.
The trial court resentenced Appellant to a minimum mandatory term of three years on
Count One pursuant to R.C. 2925.041(C)(2), and a minimum mandatory term of four
years on Count Two. The trial court again ran the sentences concurrently for a total
mandatory term of five years. The trial court memorialized the sentence via Judgment
Entry entered September 30, 2015.
{¶12} Appellant appeals, assigning as error:
{¶13} “I. THE TRIAL COURT COMMITTED PLAIN ERROR AND ERRED TO THE
SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN IT SENTENCED
APPELLANT TO TWO SENTENCES FOR TWO ALLIED OFFENSES OF THE SAME
IMPORT.
{¶14} “II. THE CONVICTION AGAINST THE APPELLANT FOR RECKLESSLY
COMMITTING THE OFFENSES HEREIN WITHIN THE VICINITY OF A SCHOOL IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OR IS BASED ON
INSUFFICIENT EVIDENCE.
{¶15} “III. THE APPELLANT'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL WAS VIOLATED TO HER SUBSTANTIAL PREJUDICE.”
Ashland County, Case No. 15-COA-036 5
I.
{¶16} In her first assignment of error, Appellant maintains the trial court committed
plain error in convicting her of both illegal assembly or possession of chemicals for the
manufacture of drugs or complicity to the same and for the illegal manufacture of drugs
or complicity to the same as the counts are allied offenses of similar import.
{¶17} Appellant maintains the trial court committed plain error in failing to merge
the counts as allied offenses of similar import as there was no separate animus and no
separate motivation.
{¶18} R.C. 2941.25, Multiple counts, states:
(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.
{¶19} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the
Ohio Supreme Court revised its allied-offense jurisprudence,
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors-the conduct, the animus, and the import.
Ashland County, Case No. 15-COA-036 6
2. Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense is
separate and identifiable.
{¶20} The Court further explained,
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following is
true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in import or
significance—in other words, each offense caused separate, identifiable
harm, (2) the offenses were committed separately, and (3) the offenses
were 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.
{¶21} Appellant was convicted of one count of illegal manufacture of drugs in
violation of R.C. 2924.04,
(A) No person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a
controlled substance.
Ashland County, Case No. 15-COA-036 7
{¶22} Appellant was also convicted of one count of illegal assembly or possession
of chemicals used to manufacture controlled substance with intent to manufacture
controlled substance in violation of R.C. 2925.041,
(A) No person shall knowingly assemble or possess one or more
chemicals that may be used to manufacture a controlled substance in
schedule I or II with the intent to manufacture a controlled substance in
schedule I or II in violation of section 2925.04 of the Revised Code.
{¶23} In State v. Carr, Perry App. No. 15CA00007, 2016-Ohio-9, this Court
addressed the issue raised by Appellant herein,
In the case at bar, it was clear when the police entered the home that
methamphetamine had been manufactured inside the home. Carr admitted
to manufacturing methamphetamine.
Plastic tubing, baggies, envelopes, plastic bottles, batteries, cold
compact bags, aquarium rocks and coffee filters are not “chemicals” as
required under R.C. 2925.041. None of the active ingredient such as
pseudoephedrine[Footnote omitted] was found; rather, only the discarded
boxes were recovered from the trash. In his statement to the police, Carr
stated that other parties provided the necessary ingredients.
Just as a baker would need flour to “assemble” or “manufacture” a
cake, it is scientifically impossible to manufacture methamphetamine
without the raw chemical ingredients, such as pseudoephedrine. In other
words, every time a person commences a “cook” he or she must necessarily
possess the requisite raw chemical ingredients necessary to manufacture
Ashland County, Case No. 15-COA-036 8
the end product of crystal methamphetamine. Thus, a defendant must
always “knowingly assemble or possess one or more chemicals that may
be used to manufacture” methamphetamine with the “intent to
manufacture.”
If the police had entered the home and found, for example, 50 boxes
of pseudoephedrine and nothing more, a case could be made for illegal
assembly. It is not illegal to possess pseudoephedrine, but the unexplained
possession of such a large amount would be circumstantial evidence. If the
state can establish the mens rea of “with the intent to manufacture” a
defendant can be convicted of assembly or possession in violation of R.C.
2925.041.
Applying the facts and viewing Carr's conduct in this case, illegal
manufacture of drugs in violation of R.C. 2924.04 and illegal assembly or
possession of chemicals used to manufacture controlled substance with
intent to manufacture controlled substance in violation of R.C. 2925.041 did
not cause separate, identifiable harm. Carr did not commit the offenses
separately nor were the two offenses committed with separate animus or
motivation. Carr's motivation and animus for obtaining and/or assembling
the chemicals was to manufacture methamphetamine.
Accordingly, we find the assembly or possession of the chemicals
and the manufacture of methamphetamine are allied offenses. Accord,
State v. Coleman, 5th Dist. Richland No. 14–CA–82, 2015–Ohio–3907, ¶
52; See, State v. Davidson, 5th Dist. Perry No. 12 CA 7, 2013–Ohio–194, ¶
Ashland County, Case No. 15-COA-036 9
47(applying the pre-Ruff allied offenses test set forth in State v. Johnson,
128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314); State v.
Stevenson, 5th Dist. Perry No. 09CA16, 2010–Ohio–2060, ¶ 32 (applying
the pre-Ruff allied offenses test set forth in State v. Cabrales, 118 Ohio
St.3d 54, 886 N.E.2d 181, 2008–Ohio–1625 and finding the possession of
chemicals and the engagement in any part of the production of drugs are
allied offenses that do not have a separate animus); State v. Collins, 12th
Dist. Clinton Nos. CA2010–12–021, CA2010–12–022, 2012–Ohio–430
(applying the pre-Ruff allied offenses test set forth in State v. Johnson, 128
Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314).
***
On the record in the case at bar, we find that Carr has demonstrated
that he was convicted of allied offenses of similar import committed with the
same conduct and with the same animus.
{¶24} The State concedes, pursuant to Carr, Appellant’s sentences should merge
in accordance with State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E. 2d 892.
{¶25} Accordingly, Appellant’s first assignment of error is sustained.
II.
{¶26} In the second assignment of error, Appellant maintains her conviction on
the specification for committing the charges in the vicinity of a school is against the
manifest weight and sufficiency of the evidence as the state erred in adding the mens rea
element of “recklessly” to the indictment.
Ashland County, Case No. 15-COA-036 10
{¶27} Appellant was convicted on both counts including the specification of
committing the offenses within the vicinity of a school. The statute reads,
(P) An offense is “committed in the vicinity of a school” if the offender
commits the offense on school premises, in a school building, or within one
thousand feet of the boundaries of any school premises, regardless of
whether the offender knows the offense is being committed on school
premises, in a school building, or within one thousand feet of the boundaries
of any school premises.
{¶28} The State mistakenly added the mens rea of recklessly to the indictment on
both charges. However, we find such error to be harmless, as the specification provides
for strict liability if the offense is committed within one thousand feet of the boundaries of
any school premises, regardless of whether the offender knows the offense is being
committed within one thousand feet of a school. The evidence set forth at trial
demonstrates the counts were committed less than 700 feet from a school, and the
evidence was not contradicted.
{¶29} Appellant’s second assignment of error is overruled.
III.
{¶30} In the third assignment of error, Appellant argues she was denied the
effective assistance of trial counsel as her trial counsel failed to object at sentencing to
the imposition of sentences where the counts were allied offenses of similar import.
Appellant further argues her counsel was ineffective in failing to object to her conviction
of being in the vicinity of a school specification.
Ashland County, Case No. 15-COA-036 11
{¶31} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955).
{¶32} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶33} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶34} Based upon our analysis and disposition of Appellant’s first assigned error,
we find Appellant’s argument with regard to counsel’s failure to argue allied offenses
moot.
{¶35} With regard to our analysis and disposition of Appellant’s second
assignment of error, we find Appellant has not demonstrated prejudice as a result of the
alleged error.
Ashland County, Case No. 15-COA-036 12
{¶36} Appellant argues, “…Appellant’s court-appointed counsel failed to move the
Trial Court for an acquittal on that part of the indictment that sought to prove that the
Appellant acted recklessly in committing her offenses in the vicinity of a school.” Having
previously determined the offense is a strict liability offense, we find Appellant cannot
demonstrate prong two of Strickland.
{¶37} Appellant’s third assignment of error is overruled.
{¶38} The judgment of the Ashland County Court of Common Pleas is affirmed in
part, reversed in part, and remanded for resentencing in accordance with the law and this
opinion.
By: Hoffman, J.
Farmer, P.J. and
Wise, J. concur
State v. Woods
Combined Opinion