author: ABELE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Darian J. PRIBBLE, Defendant-Appellant.
    No. 17CA1041
    Court of Appeals of Ohio, Fourth District, Adams County.
    DATE JOURNALIZED: October 30, 2017
    Timothy Young, Ohio Public Defender, and Allen Vender, Assistant Public Defender, Columbus, Ohio, for appellant.
    David C. Kelley, Adams County Prosecutor, and Kristofer Blanton, Assistant Adams County Prosecutor, West Union, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   ABELE, J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Darian J. Pribble, defendant below and appellant herein, assigns the following error for review:

ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT SENTENCED DARIAN PRIBBLE TO FIVE YEARS IN PRISON FOR ILLEGAL ASSEMBLY, BECAUSE THE MAXIMUM ALLOWABLE SENTENCE FOR THAT CRIME IS THREE YEARS IN PRISON. STATE V. CLARK , 4TH DIST. HIGHLAND NO. 14CA20, 2015-OHIO-5003 [2015 WL 7777228] ; R.C. 2929.14(A)(3)(b) ; R.C. 2901.04(A) ; TR. 361-62; FEBRUARY 6, 2017, JOURNAL ENTRY."

{¶ 2} On February 7, 2016, Manchester Village Police Officer Jason Mallott received an email from the NPLEx data system that indicated that a person with whom the department had previous contact for manufacturing methamphetamine had just purchased Sudafedrin, a component used to make methamphetamine, from a local Kroger pharmacy. After receiving further information, Officer Mallott located and stopped the car in that appellant and his two co-defendants occupied. Officer Mallott also determined that appellant had an outstanding warrant.

{¶ 3} During a subsequent search incident to arrest, Officer Mallott found a pouch in appellant's coat pocket that contained "white powder crystal residue" along with small baggies, some ties, and two spoons with white powder residue. The Bureau of Criminal Investigation (BCI) Crime Lab later identified the residue as methamphetamine. Officer Mallott also found in appellant's pocket a severed lithium battery, that Mallott later testified is typically done to extract lithium to use in the manufacture of methamphetamine. After Officer Mallott obtained consent from the driver to search the vehicle, Mallott also found Kroger-brand Sudafedrin.

{¶ 4} The Adams County Grand Jury returned an indictment that charged appellant with one count of the illegal assembly of chemicals that may be used to manufacture a controlled substance in Schedule I or II, to wit: Sudafed and lithium, with the intent to manufacture a Schedule I or II controlled substance, to wit: Methamphetamine in violation of R.C. 2925.041(A), a third-degree felony. On February 3, 2017, a jury found appellant guilty as charged. The trial court sentenced appellant to serve a mandatory prison term of five years, subject to R.C. 2929.14(A). This appeal followed.

{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred (1) in sentencing him to 60 months in prison under R.C. 2925.04(C)(1) rather than 36 months in prison under R.C. 2929.14(A)(3), and (2) in failing to follow the relevant precedent in this case, State v. Clark , 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, 2015 WL 7777228.

{¶ 6} When the trial court sentenced appellant on February 3, 2017, R.C. 2929.14(A)(3), which governs prison terms for third-degree felonies, provided:

(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.

The offenses listed in R.C. 2929.14(A)(3)(a) appear to refer to certain vehicular offenses, certain sexual offenses, and robbery and burglary. Notably, the illegal assembly of chemicals for the manufacture of drugs is not an offense listed in R.C. 2929.14(A)(3)(a). Therefore, pursuant to R.C. 2929.14(A)(3)(a) and (b), it appears that appellant's maximum sentence for violating R.C. 2925.041 is 36 months in prison.

{¶ 7} R.C. 2925.041 governs the assembly or possession of chemicals used to manufacture controlled substances and provides, in relevant part:

(C) Whoever violates this section is guilty of illegal assembly or possession of chemicals for the manufacture of drugs. Except as otherwise provided in this division, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the third degree, and * * * the court shall impose a mandatory prison term * * * as follows:
(1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. * * * If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of [R.C.] 2929.22(B)(6), or a violation of [R.C.] 2925.04(A), the court shall impose as a mandatory prison term one of the prison terms described for a felony of the third degree that is not less than five years.

{¶ 8} In the case sub judice, the record indicates that appellant has previous methamphetamine related convictions for illegal manufacturing (2009) and aggravated possession (2015). Thus, it appears that appellant has the requisite prior convictions to trigger R.C. 2925.041(C)(1), and therefore, appellant's mandatory sentence for violating R.C. 2925.041 should be 60 months (5 years) in prison. However, while the language of R.C. 2925.041(C)(1) is unambiguous in isolation, ambiguity does exist because R.C. 2929.14(A)(3)(b) requires a different result.

{¶ 9} As appellant argues, this court recently considered the conflict between these two statutes in State v. Clark , 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, 2015 WL 7777228, in which we cited the analysis in State v. Young , 2015-Ohio-1347, 31 N.E.3d 178. Young observed that R.C. 2925.041(C)(1) sets forth a specific sentencing scheme for third-degree felonies that involve felony drug abuse offenses and, thus, is specific, rather than general, in nature. Likewise, R.C. 2929.14(A)(3), which sets forth a two-tiered sentencing scheme for third-degree felonies, is specific, rather than general, in nature. However, the statutes conflict because the maximum sentence authorized for a third-degree felony drug offense under R.C. 2925.04(C)(1) is 60 months, while the maximum sentence authorized for third-degree felonies, other than those listed in R.C. 2929.14(A)(3)(a), is 36 months. Yet, R.C. 2925.041(C)(1) also incorporates by reference R.C. 2929.14 when the former states, "the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree. Young at ¶ 43.

{¶ 10} In Clark , this court also cited the Eleventh District's decision in State v. Owen , 2013-Ohio-2824, 995 N.E.2d 911, in which the Owen court emphasized that the overriding purpose of felony sentencing under H.B. 86 is to "punish the offender using the minimum sanctions that the court determines accomplish those purposes." Owen at ¶ 30. The Owen court found that the legislative intent is that sentencing courts should use the minimum sanctions available to accomplish the purposes of felony sentencing. Clark at ¶ 67.

{¶ 11} Finally, in Clark we cited Young for reliance on the rule of lenity, which applies when an ambiguity exists in a statute, or a conflict exists between two or more statutes. We held that the rule of lenity is codified in R.C. 2901.04(A), which provides in relevant part that "sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused." Clark at ¶ 67, citing Young at ¶ 48. Under the rule of lenity, "a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant where the intended scope of the statute is ambiguous." Clark at ¶ 67, citing State v. Sheets , 12th Dist. Clermont No. CA2006-04-032, 2007-Ohio-1799, 2007 WL 1121306 at ¶ 28. We further observed in Clark that we located no other cases beyond those cited that address the conflict issue that appellant raises. Today, we recognize that in 2016 the Twelfth District reaffirmed its Young holding and reemphasized the rule of lenity, importantly noting that "the General Assembly has yet to amend either statute so as to resolve the conflict." State v. Harp , 2016-Ohio-4921, 68 N.E.3d 366, ¶ 15. Thus, the Twelfth District found it "necessary to once again apply the rule of lenity to the case at bar and maintain the status quo within this district by following our prior precedent set forth in Young ." Id. at ¶ 15.

{¶ 12} In State v. Brewer , 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33, we also held that when reviewing felony sentences, we must apply the standard of review set forth in R.C. 2953.08(G)(2). See also , State v. Graham , 4th Dist. Highland No. 13CA11, 2014-Ohio-3149, 2014 WL 3540879, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds either that "the record does not support the sentencing court's findings" under the specified statutory provisions or "the sentence is otherwise contrary to law." Graham at ¶ 31. The Supreme Court of Ohio construed R.C. 2953.08(G)(2) in State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. The court held that "[i]n the final analysis, * * * R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find clear and convincing evidence that the record does not support any relevant findings under 'division (B) or (D) of section 2929.13, division (B)(2)(3) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.' "

{¶ 13} In view of the foregoing, we reluctantly reaffirm our prior holding in State v. Clark . Although we agree with the trial court's sentiment concerning the appropriate length of sentence for defendants who engage in the manufacture of illegal drugs, we also express our continued frustration with Ohio's convoluted and complex felony sentencing statutes.

{¶ 14} Therefore, based upon the foregoing reasons, we find appellant's five-year mandatory sentence under R.C. 2925.041(C) is clearly and convincingly contrary to law. Accordingly, we sustain appellant's assignment of error and remand the matter for resentencing in accordance with the law as set forth in R.C. 2929.14(A)(3)(b) and consistent with this opinion.

JUDGMENT REVERSED IN PART AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

McFarland, J. & Hoover, J.: Concur in Judgment & Opinion


source: Caselaw Access Project

author: McFarland, J. Harsha, J., concurring:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dustin A. DECKARD, Defendant-Appellant.
    No. 16CA14
    Court of Appeals of Ohio, Fourth District, Gallia County.
    Released: November 1, 2017
    Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
    Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   McFarland, J.

{¶ 1} Dustin A. Deckard appeals the judgment entry filed August 31, 2016 in the Gallia County Court of Common Pleas. Deckard was convicted by a jury on three counts: (1) illegal conveyance of drugs onto grounds of a detention facility, R.C. 2921.36(A)(2) ; (2) possession of drugs (heroin), R.C. 2925.11(A) ; and (3) possession of drugs (cocaine), R.C. 2925.11(A). On appeal, Appellant asserts three assignments of error. He first argues the trial court deprived him of his constitutional right to confrontation by admitting into evidence a chemical laboratory report without also requiring the chemist who prepared the report to be available for cross-examination. He next argues the trial court erred by failing to merge his convictions for illegal conveyance into a detention facility with the convictions for possession of drugs. He also argues there was insufficient evidence to convict him of illegal conveyance of drugs. However, we find no merit to Appellant's arguments. Accordingly, we overrule his assignments of error and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} On February 29, 2016, Dustin A. Deckard was incarcerated at the Gallia County Jail. According to the trial testimony, he was booked in around 9:00 a.m. that day. During the evening hours, Deputy Cain noticed an odor similar to burning plastic. Appellant was in a cell block with approximately 8 to 10 other inmates.

{¶ 3} During a search Deputy Cain discovered suspected drugs on Appellant's person. The substances were submitted to the Ohio Bureau of Criminal Identification and Investigation (BCI) for analysis. A written report obtained from BCI indicated the substances submitted contained heroin and cocaine.

{¶ 4} On June 16, 2016, Appellant was indicted on three counts: (1) illegal conveyance of drugs onto grounds of a detention facility, in violation of R.C. 2921.36 ; (2) possession of drugs (heroin), in violation of R.C. 2925.11 ; and (3) possession of drugs (cocaine), also in violation of R.C. 2925.11(A). The first count for illegal conveyance is a felony of the third degree. The possession counts are both fifth degree felonies. On June 23, 2016, Appellant entered not guilty pleas to all counts. Appellant was appointed legal counsel. He was scheduled for a status conference in July 2016, and for jury trial on August 29, 2016.

{¶ 5} On July 8, 2016, Appellant's counsel was granted leave to withdraw. The court appointed another attorney to represent him. On August 24, 2016, the State filed a motion to continue the jury trial on the basis of the unavailability of a witness: the chemist from the Ohio Bureau of Criminal Investigation (BCI). The trial court denied the State's request.

{¶ 6} On August 29, 2016, prior to the beginning of trial, Appellant's counsel filed a motion in limine seeking exclusion of the BCI laboratory report which identified the substances found on Appellant's person as heroin and cocaine. The trial court denied this motion. During trial, the court allowed the BCI report to be admitted into evidence. At the conclusion of trial, the jury returned guilty verdicts on all three counts.

{¶ 7} On August 31, 2016, the trial court conducted Appellant's sentencing hearing. After hearing arguments from the parties regarding the issue of merger of allied offenses, the trial court did not merge the counts and sentenced Appellant to a maximum and consecutive sentence of five years.

{¶ 8} This timely appeal followed. Additional facts will be set forth, where pertinent.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT DEPRIVED DECKARD OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION BY ADMITTING INTO EVIDENCE A LABORATORY REPORT UNDER NOTICE-AND-DEMAND STATUTE ( R.C.2925.51 )FOR THE PROSECUTION OF A CHARGE NOT WITHIN CHAPTERS 2925 OR 3719 OF THE REVISED CODE.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DECLINING TO MERGE CONVICTION FOR ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION FACILITY WITH CONVICTIONS FOR POSSESSION OF DRUGS.
III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION FACILITY."

LEGAL ANALYSIS

ASSIGNMENT OF ERROR ONE

{¶ 9} Under the first assignment of error, Appellant argues that the trial court committed reversible error by depriving him of his constitutional right to confrontation. At trial, the trial court admitted Exhibit 7, a BCI laboratory report relevant to Appellant's case, and Deputy Argabright's testimony regarding the report. The chemist who prepared the report for BCI did not testify.

STANDARD OF REVIEW

{¶ 10} The admission of evidence is within the sound discretion of the trial court. State v. Jackson , 4th Dist. Washington No. 12CA16, 2013-Ohio-2628, 2013 WL 3227539, ¶ 16 ; State v. Dixon, 4th Dist. Scioto No. 09CA3312, 2010-Ohio-5032, 2010 WL 4027749, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), at paragraph two of the syllabus. Because a trial court's decision on a motion in limine is a ruling to admit or exclude evidence, the standard of review on appeal is whether the trial court committed an abuse of discretion that amounted to prejudicial error. State v. Fowler, 2017-Ohio-438, 84 N.E.3d 269, ¶ 14 ; Gordon v. Ohio State Univ., 10th Dist. Franklin No. 10AP-1058, 2011-Ohio-5057, 2011 WL 4541342, at ¶ 82. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589 N.E.2d 24 (1992) ; Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 , 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991), citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

LEGAL ANALYSIS

{¶ 11} The transcript of Appellant's trial reveals that on the morning of trial, Appellant filed a motion in limine to exclude the laboratory report on two grounds: (1) that it was inadmissible hearsay under Evid.R. 802 ; and (2) that it was inadmissible as violative of the Confrontation Clause of the United States and Ohio Constitutions.

{¶ 12} Appellant's trial counsel argued the State had provided the lab report in discovery to Appellant's prior counsel. Trial counsel then filed a motion under R.C. 2925.51(C), requesting that the BCI analyst appear at trial. However, due to the change in attorneys, and through no fault of Appellant or his trial counsel, the request was untimely.

{¶ 13} Trial counsel argued that pursuant to the statute, the trial court had the discretion to extend the time for filing in the interest of justice. In response, the State argued that it had intended to have the BCI analyst appear at trial but she was pregnant and unable to travel. The State maintained, however, that since Appellant had not made his request within the 7-day window, and the matter was in the court's discretion, that the motion in limine should be overruled. The trial court subsequently overruled Appellant's motion in limine, recognizing that trial counsel had appeared late in the matter through no fault of his own but, nevertheless, finding the report to be admissible as a business record.

{¶ 14} We recently discussed a Confrontation Clause argument in State v. Smith, 70 N.E.3d 150, 2016-Ohio-5062 (4th Dist.). "The Sixth Amendment's Confrontation Clause provides, 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.' " Smith, supra, at ¶75, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The Confrontation Clause of the Sixth Amendment is made applicable to the states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001). Consequently, this constitutional right applies to both federal and state prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.

{¶ 15} "The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out-of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness." Smith, supra, at ¶76, quoting Maxwell at ¶ 34, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford did not define the word "testimonial" but stated generally that the core class of statements implicated by the Confrontation Clause includes statements " 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " 541 U.S. at 52, 124 S.Ct. 1354, quoting the amicus brief of the National Association of Criminal Defense Lawyers.

{¶ 16} In Ohio, R.C. 2925.51 permits the State to submit a BCI laboratory report as evidence in drug cases and requires the State to serve a copy of the report on the accused. R.C. 2925.51(A) and (B). State v. Judy, 4th Dist. Highland No. 08CA3013, 2008-Ohio-5551, 2008 WL 4695982, at ¶ 12. BCI reports will serve as prima facie evidence of the identity and weight of the controlled substance unless the defendant, within seven days of receiving the State's notice of intent to submit the report, demands the testimony of the person who signed the report. R.C. 2925.51(C). State v. O'Connor, 12th Dist. Fayette No. CA2007-01-005, 2008-Ohio-2415, 2008 WL 2102356, at ¶ 24.

{¶ 17} At trial during Deputy Argabright's testimony, trial counsel approached the bench and renewed his objection to the admission of the BCI laboratory report. The trial court again overruled the objection. Deputy Argabright then identified Exhibit 7, the BCI chemist's laboratory report, and testified that the report was a true and accurate copy of the original, kept in the regular course of business activity conducted at Ohio BCI. Argabright proceeded to testify that the laboratory report listed the suspected drugs submitted to Ohio BCI as follows: Item One was found to contain .49 grams of heroin and Item Two was found to contain .33 grams of cocaine. Argabright also testified Jessica Kaiser was the BCI technician who signed the report and reached the scientific conclusions contained in the report.

{¶ 18} In Judy , the appellant contended that she was deprived of her right of confrontation by the improper admission of testimonial evidence. Specifically, Judy questioned whether a BCI lab report may be admitted as evidence in the absence of expert in-court testimony from the lab analyst. Judy relied on Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and State v. Smith, 3rd Dist. Allen No. 1-05-39, 2006-Ohio-1661, 2006 WL 846342, in support of her contention that such lab reports are testimonial in nature. However, as a result of Judy's failure to object to the admission of the report on Confrontation Clause grounds, it was necessary for us to determine only whether the admission of the report amounted to plain error. We ultimately concluded that the trial court's admission of the BCI report did not constitute error, plain or otherwise.

{¶ 19} In Judy , we cited a Twelfth District Court which held that a drug analysis report completed by BCI does not constitute "testimonial" evidence under Crawford and therefore, the defendant's Confrontation Clause rights under Crawford were not violated by the report's admission into evidence. Id. at ¶17. See State v. Malott, 12th Dist. Butler Nos. CA2007-02-006, CA2007-02-007, CA2007-02-008, 2008-Ohio-2114, 2008 WL 1932428, ¶ 15. The Malott court cited the Supreme Court of Ohio's decision in State v. Crager , 116 Ohio St.3d 369, 2007-Ohio-6840, 879 N.E.2d 745, that the admission of DNA reports without the testimony of the analyst who prepared the report did not violate the defendant's Confrontation Clause rights under Crawford since the reports fell within the business records exception to the hearsay rule of Evid.R. 803(6), and thus were not "testimonial" evidence under Crawford . Malott at ¶ 13. In Judy , we concluded that BCI lab reports are nontestimonial in nature and their admission does not violate the right of confrontation.

{20} Judy was decided by our court in 2008. Subsequently, it was held that the contents of a laboratory report is testimonial in nature when its conclusion is prima facie evidence of an element of the offense. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ; Bullcoming v. New Mexico, 564 U.S. 647, 663-664, 131 S.Ct. 2705, 2716, 180 L.Ed.2d 610 (2011). See State v. Hartman, 64 N.E.3d 519, 2016-Ohio-2883, at ¶ 82 (2nd Dist.). On the basis of Melendez-Diaz, the United States Supreme Court vacated, but did not reverse, the Crager decision.

{¶ 21} In this case, at the conclusion of trial when the State rested, Appellant's trial counsel made a Crim.R. 29 motion for acquittal and after hearing argument, the trial court denied the motion. The State then moved to admit the State's 7 exhibits presented and defense counsel posed no objection to admission of any of the exhibits, including the BCI laboratory report.

{¶ 22} We reiterate that counsel originally objected to admission of the laboratory report via a motion in limine. "A motion in limine is a means of raising objection to an area of inquiry to prevent prejudicial questions and statements until the admissibility of the questionable evidence can be determined during the course of the trial." Mender v. Chauncey, 41 N.E.3d 1289, 2015-Ohio-4105 (4th Dist.), ¶ 14, quoting Independent State Bank of Ohio v. Hartzell, 4th Dist. Washington App. No. 90CA02, 1991 WL 2197, *2 (Jan. 7, 1991). The purpose of a motion in limine is to avoid injection into the trial of matters which are irrelevant, inadmissible and prejudicial. State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). And, "Ohio law is clear * * * that a ruling on a motion in limine may not be appealed and that objections to the introduction of testimony or statements of counsel must be made during the trial to preserve evidentiary rulings for appellate review." State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, 2015 WL 4549872, at ¶ 22 ; Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34 ; State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523 (1988), paragraph three of the syllabus ("A denial of a motion in limine does not preserve error for review. A proper objection must be raised at trial to preserve error"); State v. Hambrick, 4th Dist. Ross No. 11CA3294, 2012-Ohio-5139, 2012 WL 5392097, ¶ 12.

{¶ 23} While we observe that Appellant filed the motion in limine and renewed his objection at trial, another factor to be considered in our analysis herein is that Appellant did not object to the admission of the report at the time exhibits were admitted. "Generally, when a party fails to renew an objection at the time exhibits are admitted into evidence, that party waives the ability to raise the admission as error on appeal, unless plain error is shown." In re.S.L., 56 N.E.3d 1026, 2016-Ohio-5000 (3rd Dist.), at ¶ 37, quoting Odita v. Phillips, 10th Dist. Franklin No. 09AP-1172, 2010-Ohio-4321, 2010 WL 3554285, ¶ 56, citing Nicula v. Nicula, 8th Dist. Cuyahoga No. 84049, 2009-Ohio-2114, 2009 WL 1244170. Notice of plain of error under Crim.R. 52 may be taken if, upon review of the record, the record reveals that such error resulted in a manifest miscarriage of justice." State v. Layne, 4th Dist. Highland No. 11CA17, 2012-Ohio-1627, 2012 WL 1247209, ¶ 7, quoting State v. Thrower , 62 Ohio App.3d 359, 376, 575 N.E.2d 863 (1989) ; citing State v. Adams, 62 Ohio St.2d 151, 154-154, 404 N.E.2d 144 (1980).

{¶ 24} "[F]or a reviewing court to find plain error: (1) there must be an error, i.e., 'a deviation from a legal rule;' (2) the error must be plain, i.e., 'an "obvious" defect in the trial proceedings;' and (3) the error must have affected 'substantial rights,' i.e., it must have affected the outcome of the proceedings." Layne, supra, at ¶8,, quoting State v. Spires , 4th Dist. Gallia No. 10CA10, 2011-Ohio-3661, 2011 WL 3107736, at ¶ 14 ; citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The Supreme Court of Ohio has admonished courts that notice of plain error under Crim.R. 52(B) is to be taken "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id., quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus.

{¶ 25} We do not find that error, plain or otherwise, occurred here. Appellant's request was not timely filed and the court, in its discretion, did not extend the time to allow for a late filing. Furthermore, Appellant apparently conceded the drugs found on his person were cocaine and heroin, and he abandoned his argument regarding the possession counts. The trial transcript reveals Appellant's trial counsel made these comments during his closing argument:

"The burden is on the State here to prove each and every element of this case and yes, from the beginning I stated they had a strong case for the possession. And in fact I think we caught Mr. Deckard red-handed with, with the drugs on him. That's, that's the case. But the third charge, Count 1, which is the illegal conveyance into a detention facility, the only evidence they have is the possession. The possession of drugs. * * *
As I stated, this whole case is built on assumptions. We've got to assume that because he had drugs, he's the one, he's the only one that could have brought them in after we've heard testimony that there's all these other people.* * *
Look at the pictures, look at how big the Pay...Pay Day wrapper was and the other drugs that were found in that besides the heroin and cocaine. There's, there's multiple items here. * * *
As I stated from the beginning, we're not, we're not trying to play hide the ball. Mr. Deckard had the drugs on him red-handed. We're just asking you to come back with a not guilty verdict for the illegal conveyance because there is a lack of evidence and the State will not be, meet its burden beyond a reasonable doubt."

{¶ 26} In fact, during closing rebuttal, the State began:

"So from what I take from the defense's closing statement is that the State of Ohio has um, presented enough evidence, even in the defense counsel's mind that you should convict and find guilty on Count 2 as well as guilty on Count 3 for possession of cocaine and heroin. So with those two out of the way now, we move onto, to Count 1."

{¶ 27} Appellant's counsel made no objection to this characterization of his closing argument. Given Appellant's apparent decision to concede he possessed cocaine and heroin and to contest only the illegal conveyance count, we do not find that admission of the BCI laboratory report constituted plain error. For the foregoing reasons, we find no merit to Appellant's first assignment of error and it is hereby overruled.

ASSIGNMENT OF ERROR THREE

{¶ 28} For ease of analysis, we next consider Appellant's third and final assignment of error. Appellant was convicted of Count 1, illegal conveyance of drugs into a detention facility. Appellant, however, contends that there was no evidence of the material element, "conveyance," presented at his trial. For the following reasons, we disagree.

STANDARD OF REVIEW

{¶ 29} A claim of insufficient evidence invokes a due process concern and raises the question of whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Dunn, 4th Dist. Jackson No. 15CA1, 2017-Ohio-518, 2017 WL 587317, ¶ 13 ; State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, 2015 WL 4113316, at ¶ 22 ; State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring).

{¶ 30} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. Dunn, supra, at ¶14 ; Wickersham, supra, at ¶23 ; State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996) ; State v. Grant , 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001) ; State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

LEGAL ANALYSIS

{¶ 31} In support of his argument that there was insufficient evidence that he conveyed drugs into the Gallia County Jail, Appellant points out that while he was found to be in possession of certain substances, there were 8-10 other inmates housed in the same area. Appellant argues there is no investigatory evidence regarding the other inmates, and no investigatory evidence regarding visitors the other inmates may have received. Appellant further asserts there is no evidence regarding the circumstances of his arrest which would provide him with the opportunity to conceal substances for future conveyance.

{¶ 32} R.C. 2921.36(A)(2) provides: "No person shall knowingly convey, or attempt to convey, onto the grounds of a detention facility * * * (2) Any drug of abuse, as defined in section 3719.011 of the Revised Code." Appellant was indicted for possession of heroin, a Schedule I controlled substance, in violation of R.C. 2925.11(A), and also for possession of cocaine, a Schedule II controlled substance, in violation of R.C. 2925.11(A). Appellant did not contest the finding that the Gallia County Jail constituted a detention facility or that the drugs alleged in the indictment constituted drugs of abuse as defined by the Revised Code.

{¶ 33} We begin by setting forth the relevant testimony. Nicholas Cain, a corrections officer at the Gallia County Jail, testified he reported to work at 4:00 p.m. on February 29, 2016. Appellant had been booked into the jail at 9:00 a.m. on February 29th. To Officer Cain's knowledge, an anal cavity search warrant was not requested or conducted at the time Appellant was booked.

{¶ 34} While Officer Cain was performing routine duties, he noticed an odor of burning plastic in B-Block. There were approximately 8 other inmates housed in B-Block on that date. He and another corrections officer, Debra Smith, handcuffed the inmates to bars for the officers' own safety, and searched each inmate individually. Officer Cain's searches of the inmates yielded nothing until he came to Appellant.

{¶ 35} Officer Cain testified he performed an initial pat-down on Appellant and felt something. He retrieved a baggie with an unknown substance from Appellant's buttocks. Officer Cain handed the baggie through the bars to Officer Smith, who preserved it as evidence and turned it over to Sergeant Jason Brown. Sgt. Brown then preserved the chain of custody and eventually forwarded the baggie to the BCI Task Force technician. Officer Cain identified Appellant in court and Exhibit 1, the baggie.

{¶ 36} He further testified once they finished the search, other officers arrived to assist. The officers searched the B-Block and found no other drugs or weapons there. Officer Cain took no further part in the investigation.

{¶ 37} On cross-examination, Officer Cain testified every inmate is initially patted down and then strip-searched when they are booked into the jail. He acknowledged the Gallia County Jail has video cameras above the toilets and showers. He admitted there was no video evidence against Appellant, and that no lighter was recovered. Officer Cain also admitted that his report did not list the names of the other inmates or witnesses involved in the incident and he did not check the visitor's log pertaining to the other inmates. He acknowledged there had been issues and ongoing investigations with items smuggled into the jail on food trays.

{¶ 38} On redirect, Officer Cain clarified that the camera systems in the toilet and shower areas do not tape inmates as they shower or use the restroom. The camera systems do not preserve evidence of the inmates performing these personal functions. He also clarified that the reason he did not name other inmates in B-Block in his report was because Appellant was the only person on which drugs were found. To his knowledge, the defense did not request video evidence or visitor log evidence.

{¶ 39} Officer Debra Smith next testified that whenever inmates are booked into the jail, they are strip-searched and given jail clothing and necessary toiletries. She was working on February 29, 2016, and there were approximately 8-10 inmates housed in B-Block. She also testified during her shift she smelled burning plastic. They handcuffed each inmate to the cell bars. Officer Cain went into the block himself and patted down the inmates and searched them from behind the bars while Officer Smith remained in front of the inmates.

{¶ 40} Officer Smith testified that when Officer Cain searched Appellant, he "pulled Dustin Deckard back, pulled the back of his pants out and he really had a funny look on his face. Um, he looked down, he reached into his pants and he pulled out a big plastic bag. Uh, he found this between Mr. Deckard's butt cheeks." Officer Smith verified that Officer Cain handed the baggie to her and Officer Cain then proceeded to finish the search of the last inmate. She testified after she and Officer Cain opened the baggie, they contacted other officers and turned the evidence and the matter over to Sgt. Brown.

{¶ 41} Officer Smith also testified that on numerous occasions, inmates bring contraband inside the anal or vaginal cavities. Gallia county officers are only allowed to do general patdown searches. They are required to get a search warrant and transport inmates to the hospital to do body cavity searches. Officer Smith's cross-examination testimony mirrored Officer Cain's. She acknowledged that the Prosecutor's Office, to her knowledge, did not request video evidence. She testified the food trays are searched upon arrival. On redirect, Officer Smith acknowledged that any item brought into the jail through an inmate's anal cavity would be unbeknownst to the officers until it was outside of the body cavity.

{¶ 42} Deputy Jason Brown testified he is an evening shift patrol supervisor with the Gallia County Sheriff's Office. On February 29, 2016, he was working regular patrol when he received information from jail staff about an issue in the jail. When he arrived at the jail, Officers Cain and Smith relayed the details of the incident and the discovery of the baggie on Appellant's person. At that point, Deputy Brown took custody of the evidence and secured it in the evidence room. On cross-examination, Deputy Brown admitted that to his knowledge, no interviews of the other inmates were conducted.

{¶ 43} Here, the evidence regarding the material element of "conveyance" is clearly only circumstantial. However, "[D]irect evidence of a fact is not required. Circumstantial evidence * * * may * * * be more certain, satisfying, and persuasive than direct evidence." Dunn, supra, at ¶25, quoting State v. Grube , 2013-Ohio-692, 987 N.E.2d 287 (4th Dist.), ¶ 30, quoting State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), citing Michalic v. Cleveland Tankers, Inc. , 364 U.S. 325, 330, 81 S.Ct. 6, 10, 5 L.Ed.2d 20 (1960), citing Rogers v. Missouri Pacific RR Co, 352 U.S. 500-508, fn. 17, 77 S.Ct. 443, 449, fn. 17, 1 L.Ed.2d 493 (1957). Even murder convictions and death sentences can rest solely on circumstantial evidence. Grube, supra, citing State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987) ; State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239 (1988). While the evidence of Appellant's "conveyance" is circumstantial, we find the evidence, if believed, reasonably supports a finding of guilty beyond a reasonable doubt.

{¶ 44} The guilty verdict here is based on direct and circumstantial evidence. Both Officers Cain and Smith testified that Appellant would have been patted down and searched upon booking on February 29th at 9:00 a.m. and both officers further testified that although strip-searches are also performed, they are not allowed to do body cavity searches without a warrant. Appellant's anal cavity was not searched. Later in the day, Officers Cain and Smith investigated a burning smell, searched 8-10 inmates, and found a baggie containing cocaine and heroin located only on Appellant's person, in his buttocks. From this testimony, the jury obviously inferred circumstantial evidence that Appellant knowingly conveyed the drugs into the jail via his anal cavity, and that he evaded detection of the drugs during the booking process.

{¶ 45} For the foregoing reasons, after reviewing the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution, any rational trier of fact could have found the essential element of "conveyance" of drugs into a detention facility proven beyond a reasonable doubt. As such, we find no merit to Appellant's third assignment of error and it is hereby overruled.

ASSIGNMENT OF ERROR TWO

{¶ 46} Lastly, we consider Appellant's second assignment of error. Appellant contends he was subjected to Double Jeopardy by the imposition of multiple punishments upon him for a single act. Appellant argues that the trial court committed reversible error by declining to merge the illegal conveyance violation with the drug possession violations.

STANDARD OF REVIEW

{¶ 47} Appellate courts conduct a de novo review of a trial court's R.C. 2941.25 merger determination. State v. Pickett, 4th Dist. Athens No. 15CA13, 2016-Ohio-4593, 2016 WL 3483653, ¶ 53. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28 ; accord State v. Neal, 2016-Ohio-64, 57 N.E.3d 272, ¶ 52. We therefore afford no deference to the trial court's legal conclusion, but instead, independently determine whether the established facts satisfy the applicable legal standard. Williams at ¶¶ 25-27 (explaining de novo standard in merger context and stating that fact-finder determines facts and appellate court determines whether facts satisfy applicable legal standard).

LEGAL ANALYSIS

{¶ 48} Appellant contends, assuming for argument that he conveyed drugs within himself into the Gallia County Jail, his conduct was a single act, committed with a single state of mind. However, he asserts that to punish him for both possession and illegal conveyance amounts to imposing multiple punishments upon him for one act and is contrary to protection from Double Jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," and this protection applies to Ohio citizens through the Fourteenth Amendment and is additionally guaranteed by Article I, Section 10 of the Ohio Constitution. State v. Neal , 57 N.E.3d 272, 2016-Ohio-64 (4th Dist.), at ¶ 50. This constitutional protection prohibits multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

{¶ 49} " R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments for the same offense." Pickett, supra, at ¶54, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23 ; accord State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603 ; State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 11. R.C. 2941.25 provides:

"(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."

{¶ 50} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio instructed that courts conduct a three-part inquiry to determine whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25 : "(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? Pickett, supra, at ¶55. An affirmative answer to any of the above will permit separate convictions. Id. The conduct, the animus, and the import must all be considered." Id. quoting State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, citing State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31 and paragraphs one, two, and three of the syllabus.

{¶ 51} Offenses are of dissimilar import "if they are not alike in their significance and their resulting harm." Pickett, at ¶56, quoting Ruff at ¶ 21. Thus, "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." Id. at ¶ 23. We further note that the defendant bears the burden to establish that R.C. 2941.25 prohibits multiple punishments. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). In this case, the trial court stated as follows:

"Further as to the offenses being committed separately the Court finds that the offenses of possession were committed separately from the offense of illegal conveyance. Mr. Deckard had to have committed the possession offenses prior to the offense of uh, illegally conveying them into the jail. Also as to the separate possession offenses one involved heroin and the other one involved cocaine. As such, the animus for one was the possession of heroin and the animus for the other was the possession of cocaine. Based on the above the Court finds that the offenses of illegal conveyance of drugs onto a detention facility, possession of drugs, the heroin and possession of drugs, the cocaine do not merge for purposes of sentencing."

{¶ 52} At sentencing and on appeal, Appellant's counsel argued the conduct constituting the possession charges and conveyance did occur at the same time and place. We agree with the trial court's conclusion that the separate possession convictions, one for heroin and one for cocaine, do not merge for purposes of sentencing. Contemplating the third question set forth in Ruff, the possession convictions were committed with a separate animus. Therefore, they are not allied offenses of similar import. We need not consider the other questions posed by Ruff. The legislature clearly intended that possession of different drug groups constitutes different offenses. State v. Rice, 5th Dist. Licking No. 16CA87, 2017-Ohio-1504, 2017 WL 1436378, ¶ 12, quoting State v. Westbrook, 4th Dist. Scioto No. 09CA3277, 2010-Ohio-2692, 2010 WL 2354018, ¶ 43. However, the trial court viewed the possession conduct as separate conduct having occurred prior to the offense of illegally conveying them into the jail. Given the circumstantial evidence presented at trial, from which the jury inferred that Appellant conveyed the drugs into the jail via his anal cavity, we find this reasoning to be correct.

{¶ 53} Merriam Webster's Online Dictionary defines "convey" in several ways: "* * * [T]o bear from one place to another; to move: to carry away secretly: to transfer or deliver: to cause to pass from one place or person to another * * *." www.merriam-webster.com. 2017 Merriam Webster, Inc. The inference arising at trial was that Appellant possessed the two distinct drugs outside of the jail. His "conveyance" or "movement" of the drugs into the jail facility constituted a separate and distinct action. In this way, the conveyance offense was committed separately and with a separate animus, affirmative answers to both the second and third questions prescribed by Ruff.

{¶ 54} Our research did not yield other cases in which the failure to merge a possession conviction into an illegal conveyance conviction was challenged. In reviewing cases involving appeal of other illegal conveyance convictions, we observe the State provided evidence in many cases that upon booking, defendants were questioned as to whether they were carrying contraband and further, advised if they were later found to be carrying contraband, they would be subject to prosecution for the offense of illegal conveyance. In this manner, a distinct and separate break in the conduct would be obvious. However, the fact that the record herein does not contain evidence of such questioning, or evidence of further advisal to Appellant of a potential additional charge for any conveyance of contraband, does not change the result.

{¶ 55} For the foregoing reasons, we find neither of Appellant's possession convictions must be merged into the illegal conveyance conviction as allied offenses for purposes of sentencing. As such, we find no merit to Appellant's second assignment of error and it is hereby overruled. Accordingly, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.

Abele, J.: Concurs in Judgment and Opinion.

Harsha, J.: Concurs with Concurring Opinion.

Harsha, J., concurring:

{¶ 56} Because the revised principal opinion incorporates the gist of my tentative concurring opinion, I now concur in judgment and opinion.

      Appellant's first court-appointed counsel was permitted to withdraw from representation.

      Evid.R. 103(A)(1) provides that a claim of error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected and, if the ruling is one admitting the evidence, the opponent of the evidence raises a timely objection to the evidence, stating the specific ground of objection, unless the ground of objection is apparent from context. Id., at ¶15. Cf. State v. Smith, 3rd Dist. Allen No. 1-05-39, 2006-Ohio-1661, 2006 WL 846342, at ¶ 8 (while defendant did not demand the testimony of laboratory technicians who prepared report, he did raise an objection at trial to the report's admission on Confrontation Clause grounds). See State v. Urbina, Defiance App. No. 4-06-21, 2008-Ohio-1013, 2008 WL 623944, ¶ 19, 35 (Third Appellate District finding that failure to object at trial to the admission of a laboratory report on Confrontation Clause grounds waived all but plain error).

      See Crager v. Ohio, 557 U.S. 930, 129 S.Ct. 2856, 174 L.Ed.2d 598 (2009). The United States Supreme Court ordered that Crager be reconsidered in light of Melendez-Diaz.

      At sentencing, the trial court referenced State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The lead opinion in Johnson stated that R.C. 2941.25(A) requires the sentencing court to first determine "whether it is possible to commit one offense and commit the other with the same conduct." (Emphasis sic.) Id. at ¶ 48. If the defendant's conduct constituting commission of one offense constitutes commission of the other, then the offenses are of similar import. Id. The court must then determine whether the offenses were committed by the same conduct. Id. at ¶ 49. "If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged." Id. at ¶ 50. However, in State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, the Supreme Court of Ohio stated at ¶ 127: "More recent decisions of this court, including the decision in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, 'have rendered the analysis of the Johnson lead opinion largely obsolete.' State v. Earley , 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11."


author: Cynthia Westcott Rice, P.J.

text:
    BOARD OF TRUMBULL COUNTY COMMISSIONERS, et al., Plaintiffs-Appellees, v. Robert GATTI, Defendant-Appellant.
    NO. 2017-T-0027
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided November 13, 2017
    Matthew J. Blair, Blair & Latell Co., L.P.A., 724 Youngstown Road, Suite 12, Niles, OH 44446 (For Plaintiffs-Appellees).
    David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For Defendant-Appellant).
   Cynthia Westcott Rice, P.J.

{¶ 1} Appellant, Robert Gatti, appeals from the entry of summary judgment by the Trumbull County Court of Common Pleas in favor of appellees, Board of Trumbull County Commissioners, et al. At issue is whether the trial court possessed subject matter jurisdiction over the underlying complaint and, if so, whether the trial court erred in concluding there were no genuine issues of material fact for trial and, as such, appellees were entitled to judgment as a matter of law. We affirm.

{¶ 2} Appellant, an employee of the Trumbull County Engineer's Office, was involved in an accident on October 20, 2008, while working for the Engineer's Office. Appellant was a member of the AFSCME Local 11/AFL-CIO ("AFSCME"), which is the representative of the bargaining unit employees of the Engineer's office. AFSCME entered into a Collective Bargaining Agreement ("CBA") for the period of April 20, 2007 through April 19, 2013, on behalf of the employees of the Engineer's Office.

{¶ 3} As a result of his accident, appellant was on various leaves from October 2008 through February 14, 2011. During his leaves, appellant collected workers' compensation benefits. The CBA requires unit members to share in the cost of hospitalization-insurance benefits while on workers' compensation after the employee has been receiving workers'-compensation benefits for a certain period of time.

{¶ 4} Consistent with the terms of the CBA, the Engineer's office continued to provide hospitalization benefits to appellant during his periods of leave. Pursuant to the CBA, appellant was required to pay appellees a total of $10,500.64 as his proportionate share of the advanced hospitalization-insurance premiums. Appellant made one payment toward the premiums of $185.05 in 2009. The outstanding balance of $10,315.59 remained due. Appellees requested appellant to pay the unpaid balance, but appellant did not do so.

{¶ 5} On December 15, 2015, appellees filed a complaint against appellant asserting claims of breach of contract and unjust enrichment. The complaint sought $10,315.59 reimbursement for appellant's portion of accrued hospitalization insurance-benefit premiums while appellant was on workers' compensation leave. Appellant filed an answer and counterclaim against appellee, Randy L. Smith, Trumbull County Engineer. The counterclaim was ultimately dismissed, after which appellant moved the trial court for judgment on the pleadings.

{¶ 6} In his motion, appellant claimed the trial court lacked subject-matter jurisdiction over appellees' claims relating to the reimbursement of his portion of the premiums. He maintained the claims fell under the exclusive jurisdiction of the State Employee Relations Board ("SERB"), pursuant to R.C. Chapter 4117, as they arise from or are dependent upon rights created by the CBA. In response, appellees argued the trial court possessed subject-matter jurisdiction over the case because R.C. Chapter 4117 does not provide a procedure for SERB to intervene in a dispute regarding an employee's breach of a contractual obligation for contribution under the terms of a CBA; and, because the claim does not involve or allege an unfair labor practice under the statute, the court of common pleas possessed jurisdiction to proceed. The trial court agreed with appellees and denied appellant's motion.

{¶ 7} On June 27, 2016, appellees served a request for admissions, to be answered within 28 days, upon appellant and filed a notice of discovery on June 29, 2016. Appellant did not respond to the request for admissions and, on August 5, 2016, appellees moved to have the requests deemed admitted. Appellant did not respond to this motion and, on August 24, 2016, the trial court deemed the requests admitted.

{¶ 8} Appellees filed a motion for summary judgment to which appellant responded, again asserting his jurisdictional arguments. On February 27, 2017, the trial court granted appellees' motion and awarded them judgment in the amount of $10,315.59. Appellant now appeals and assigns two errors for our review. His first assignment of error provides:

{¶ 9} "The trial court lacked subject matter jurisdiction over this lawsuit."

{¶ 10} Subject-matter jurisdiction is the power conferred upon a court, either by constitutional provision or by statute, to decide a particular matter or issue on its merits. State ex rel. Jones v. Suster , 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). SERB is a state agency created by R.C. Chapter 4117. R.C. 4117.02(A) ; see also State ex rel. Brecksville Edn. Assn., OEA/NEA v. State Emp. Relations Bd. , 74 Ohio St.3d 665, 666, 660 N.E.2d 1199 (1996). As a state agency and a creation of statute, SERB is limited to the authority and jurisdiction conferred on it by statute. State ex rel. Ohio Civ. Serv. Emp. Assn. v. State , 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 51 ; see also Penn Cent. Transp. Co. v. Pub. Util. Comm. , 35 Ohio St.2d 97, 298 N.E.2d 587 (1973), paragraph one of the syllabus. "When the General Assembly intends to vest an administrative agency with exclusive jurisdiction, it does so by appropriate statutory language." State ex rel. OCSEA, supra , at ¶ 52 citing State ex rel. Banc One Corp. v. Walker , 86 Ohio St.3d 169, 171-172, 712 N.E.2d 742 (1999).

{¶ 11} "Exclusive jurisdiction to resolve unfair labor practice charges is vested in SERB in two general areas: (1) where one of the parties filed charges with SERB alleging an unfair labor practice under R.C. 4117.11 and (2) where a complaint brought before the common pleas court alleges conduct that constitutes an unfair labor practice specifically enumerated in R.C. 4117.11." State ex rel. Ohio Dept. of Mental Health v. Nadel , 98 Ohio St.3d 405, 2003-Ohio-1632, 786 N.E.2d 49, ¶ 23 ; E. Cleveland v. E. Cleveland Firefighters Local 500, I.A.F.F. , 70 Ohio St.3d 125, 127-128, 637 N.E.2d 878 (1994). "Nowhere in R.C. Chapter 4117 does the General Assembly assign SERB exclusive jurisdiction over all issues touching on that chapter's provisions. Instead, the General Assembly targeted specific issues for SERB to address in the first instance." State ex rel. OCSEA, supra. Indeed, the Supreme Court has "expressly acknowledged * * * that a plaintiff may raise in the common pleas courts rights that exist independently of R.C. Chapter 4117, " 'even though they may touch on the collective bargaining relationships.' " Id. at ¶ 54 quoting Franklin Co. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 , 59 Ohio St.3d 167, 172, 572 N.E.2d 87 (1991). Accordingly, "if a party asserts rights that are independent of R.C. Chapter 4117, the party's complaint may properly be heard in common pleas court." Id. at paragraph one of the syllabus. If, however, the party advances claims that "arise from or depend on the collective bargaining rights created by R.C. Chapter 4117," SERB has exclusive, original jurisdiction. Id. at paragraph two of the syllabus.

{¶ 12} Appellant cites State ex rel. Fraternal Order of Police, Ohio Labor Council, Inc. v. Court of Common Pleas of Franklin County , 76 Ohio St.3d 287, 667 N.E.2d 929 (1996), in support of his position that SERB has exclusive jurisdiction over appellees' claims. Appellant emphasizes the Court's observation that "any claim which is independent of R.C. Chapter 4117, such as breach of contract or enforcement, still falls solely within the jurisdiction of SERB if the asserted claim arises from or is dependent on the collective bargaining rights created by R.C. Chapter 4117." State ex rel. FOP/OLC , supra , at 290, 667 N.E.2d 929 citing State ex rel. Cleveland City School Dist. Bd. Of Education v. Pokorny , 105 Ohio App.3d 108, 110, 663 N.E.2d 719 (8th Dist.1995). The Supreme Court, however, found the court of common pleas patently and unambiguously lacked jurisdiction to proceed because the basis of the respondent's claims were premised upon unfair labor practices as set forth under R.C. 4117.11.

{¶ 13} Similarly, appellant cites Franklin Co. Law Enforcement Assn. , supra , for the proposition that a court of common pleas lacks jurisdiction to decide "claims [that] were dependent on the framework established in R.C. Chapter 4117." Id. at 171, 572 N.E.2d 87. While this statement is accurate, the plaintiffs in Franklin Co. Law Enforcement Assn. were also asserting collective bargaining rights created by R.C. Chapter 4117, including unfair labor practices under R.C. 4117.11(B) ; interference with their right to vote, under R.C. 4117.07 ; and a third claim that was derivative of R.C. 4117.19(C).

{¶ 14} Appellant additionally cites State ex rel. City of Cleveland v. Su tula , 127 Ohio St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88, for the blank proposition that " 'SERB has exclusive jurisdiction over matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor practices claims.' " Id. quoting Assn. of Cleveland Fire Fighters, Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland , 156 Ohio App.3d 368, 2004-Ohio-994, 806 N.E.2d 170, ¶ 12 (8th Dist.) Again, Sutula dealt with claims that fell squarely within R.C. Chapter 4117, to wit: various unfair labor practice claims under R.C. 4117.11(A).

{¶ 15} The instant facts are distinguishable from the foregoing cases. Here, neither party made an allegation relating to an unfair labor practice; rather, appellees sought remuneration for appellant's failure to pay his proportional share of the hospitalization-insurance premium. Although appellant's duty to pay his share and appellees' right to reimbursement arise out of the CBA, there is no provision under R.C. Chapter 4117 that creates such rights or obligations. And appellant does not direct this court to any provision of R.C. Chapter 4117 under which the instant breach of contract and/or unjust enrichment claims might arguably fall. In our view, therefore, appellees' right to reimbursement is independent of the rights created by R.C. Chapter 4117 and, pursuant to, inter alia, State ex rel. OCSEA , supra , the court of common pleas properly exercised jurisdiction over the case. See also R.C. 4117.09(B)(1) ("A party to the agreement may bring suits for violation of agreements or the enforcement of an award by an arbitrator in the court of common pleas of any county wherein a party resides or transacts business.")

{¶ 16} Notwithstanding his claim that SERB possesses exclusive jurisdiction, appellant alternatively argues that, because the CBA contains a binding grievance and arbitration provision, arbitration is the exclusive means of resolving the underlying dispute. Article 8, Section 2 of the CBA, however, makes it clear that "[t]he word 'grievance' as used in this Agreement refers to an alleged failure of the Employer to comply with the provisions of this Agreement or the law." (Emphasis added.) In this case, appellee, the employer, is bringing suit for breach of the CBA against an employee. Accordingly, by definition, the underlying claims do not constitute a "grievance" under the CBA.

{¶ 17} Appellant's first assignment of error lacks merit.

{¶ 18} Appellant's second assignment of error provides:

{¶ 19} "The evidence in the record now before this honorable court does not resolve all issues of material fact."

{¶ 20} Summary judgment is a procedural tool that terminates litigation and thus should be entered with caution. Davis v. Loopco Industries, Inc. , 66 Ohio St.3d 64, 66, 609 N.E.2d 144 (1993). Summary judgment is proper where (1) there is no genuine issue of material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion favors the movant. See, e.g., Civ.R. 56(C).

{¶ 21} When evaluating a motion for summary judgment, the trial court may not weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal Co. , 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980). Instead, all questions must be resolved in the nonmoving party's favor. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 359, 604 N.E.2d 138 (1992). Hence, a trial court must overrule a motion for summary judgment where conflicting evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork Southern Corp. , 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, 2003 WL 22931361, ¶ 36. In short, the central issue on summary judgment is, "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An appellate court reviews a trial court's entry of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

{¶ 22} In June of 2016, appellees served various requests for admissions on appellant. Among these requests were (a) whether appellant admitted he owed $10,500.64 in unpaid contributions for health-insurance premiums; (b) whether, pursuant to his obligation to contribute, appellant made a payment of $185.05 towards the amount owed; and (c) whether the calculations were true and accurate. Appellant failed to timely respond and appellees moved that the requests be deemed admitted. On August 24, 2016, without objection, the trial court deemed the requests admitted facts of record.

{¶ 23} Appellees filed their motion for summary judgment and attached the affidavit of Nicole A. Klingeman, Fiscal Officer at the Trumbull County Engineer's Office. Ms. Klingeman's affidavit recited the background facts in support of the alleged breach of contract/unjust enrichment claims. Specifically, Ms. Klingeman averred appellant was absent from employment and receiving applicable sick leave and Workers' Compensation benefits for a period extending from October 20, 2008 through February 14, 2011; that appellant is a union employee and was provided hospitalization/insurance benefits pursuant to two CBAs, which were applicable during the period of his absence; and that, pursuant to the CBAs, appellant was required to pay a proportionate share of the cost of hospitalization insurance benefits during his absence for a work-related injury.

{¶ 24} Ms. Klingeman detailed the relevant portions of the CBAs, and itemized the proportional amount for which appellant was responsible. She averred the financial records of the Trumbull County Engineer's Office indicated appellant failed to pay a total of $10,315.59 of what he owed, pursuant to the agreement. In effect, the affidavit substantiated, in greater detail, the facts and figures which were deemed admitted by the trial court.

{¶ 25} Appellant maintains that, notwithstanding the foregoing uncontested facts, there remain material issues of fact to be resolved because they do not address a precept that appellant designates the "law-of-the-shop" doctrine. According to appellant, this principle requires an employer to apply provisions of a CBA not simply by the letter of the contract, but also in the context of the customs of the plant or office in which the CBA is being applied. In support, appellant cites United Steelworkers of America v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 579-580, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). In that case, the United States Supreme Court observed:

{¶ 26} "[I]t is not unqualifiedly true that a collective-bargaining agreement is simply a document by which the union and employees have imposed upon management limited, express restrictions of its otherwise absolute right to manage the enterprise, so that an employee's claim must fail unless he can point to a specific contract provision upon which the claim is founded. There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties. One cannot reduce all the rules governing a community like an industrial plant to fifteen or even fifty pages. Within the sphere of collective bargaining, the institutional characteristics and the governmental nature of the collective-bargaining process demand a common law of the shop which implements and furnishes the context of the agreement. We must assume that intelligent negotiators acknowledged so plain a need unless they stated a contrary rule in plain words." (Citation omitted) Id.

{¶ 27} Appellant maintains the foregoing, in light of an affidavit he attached to his memorandum in opposition, which indicated the Engineer's Office had previously failed to require a separate employee to pay premiums, creates a genuine issue of material fact. We do not agree.

{¶ 28} Preliminarily, appellant did not directly raise the "law-of-the-shop" issue in his memorandum in opposition. The affidavit of Judene Ainsley, attached to appellant's memorandum, averred that the Engineer's Office did not pursue insurance premium contribution payments from a separate employee injured on the job. This averment, however, represents an isolated instance and cannot be viewed as a so-called "law of the shop." Because the issue was not directly raised below, appellant has waived the issue on appeal.

{¶ 29} Even if appellant preserved the issue, it would still lack merit. The CBA in the instant case sets forth in a plain, yet detailed, manner, an employee's duty to reimburse the employer for express percentages of advanced health-insurance premiums during workers'-compensation leave. Even assuming the Engineer's Office failed to demand payment from a previous employee, this does not affect appellant's duty to pay his premiums in the instant case. The failure to make a demand in an isolated case does not establish an institutional custom. Moreover, the quoted portion of the foregoing case suggests the "law-of-the-shop" doctrine applies to a union's and/or employees' ability to place certain restraints upon employers, not simply by recourse to a CBA, but by reference to the context and customs of the occupational institution. This does not imply an employee can avoid his or her obligations, to which he or she agreed, under an unambiguous provision of a CBA.

{¶ 30} Appellees established appellant owed them $10,315.59 in unpaid hospitalization insurance premiums. Appellant failed to create a genuine issue of material fact relating to his obligation to pay this amount. We therefore hold appellees were entitled to judgment on their claim of breach of contract as a matter of law.

{¶ 31} Appellant's second assignment of error lacks merit.

{¶ 32} For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

{¶ 33} I respectfully dissent and would reverse the trial court, recognizing the SERB's exclusive jurisdiction over the Commissioners' claims that Gatti has violated the Collective Bargaining Agreement. Contrary to the majority's position, the SERB's exclusive jurisdiction has been interpreted by the Ohio Supreme Court to encompass more than concrete violations of R.C. Chapter 4117. Rather, that jurisdiction extends to "matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor practice claims." (Citation omitted.) State ex rel. Cleveland v. Sutula , 127 Ohio St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88, ¶ 20.

{¶ 34} The Ohio Supreme Court re-affirmed its position in State ex rel. Ohio Civ. Serv. Emps. Assn. v. State , 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, stating that, "if a party asserts claims that arise from or depend on the collective bargaining rights created by R.C. Chapter 4117, the remedies provided in that chapter are exclusive." (Citation omitted.) Id. at ¶ 63 ; State ex rel. Fraternal Order of Police v. Franklin Cty. Court of Common Pleas , 76 Ohio St.3d 287, 290, 667 N.E.2d 929 (1996) ("[a]ny claim which is independent of R.C. Chapter 4117, such as a breach of contract or enforcement, still falls solely within the jurisdiction of SERB if the asserted claim arises from or is dependent on the collective bargaining rights created by R.C. Chapter 4117").

{¶ 35} The Commissioners' claims in the present case arise from Article 12, Section 12 of the Collective Bargaining Agreement, captioned Hospitalization and Workers' Compensation Leave of Absence. Pursuant to R.C. 4117.08(A), benefits such as hospitalization are mandatory subjects of collective bargaining: "All matters pertaining to wages, hours, or terms and other conditions of employment * * * are subject to collective bargaining between the public employer and the exclusive representative * * *." See also R.C. 4117.10(A) ("[a]n agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement").

{¶ 36} Since the Commissioners' claims concern the wages and terms of Gatti's employment necessarily subject to the Collective Bargaining Agreement, the SERB has exclusive jurisdiction of the claims. Couch v. Ohio Civ. Serv. Emps. Assn. , 3d Dist. Allen No. 1-10-45, 2010-Ohio-6258, 2010 WL 5296935, ¶ 25 ("[t]he trial court correctly recognized that Appellants' claims are a seniority dispute governed by the terms and conditions of employment established in a CBA between the parties, and that it did not have subject matter jurisdiction pursuant to R.C. 4117"); Carter v. Trotwood-Madison City Bd. of Edn. , 181 Ohio App.3d 764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 65 (2d Dist.) ("[b]ecause the matters alleged in the present case [denial of requests for retirement incentives] arise from, or depend upon, the collective bargaining agreement, we conclude that SERB has exclusive jurisdiction over Carter and Toney's claims"); State ex rel. Cleveland City School Dist. Bd. of Edn. v. Pokorny , 105 Ohio App.3d 108, 111, 663 N.E.2d 719 (8th Dist.1995) ( "[t]he ability of Taylor to receive assault leave benefits is related directly to the past and present collective bargaining agreements and as such must be addressed through the remedies provided by R.C. Chapter 4117").

{¶ 37} For the foregoing reasons, I respectfully dissent and would reverse the decision of the trial court.

      Admittedly, appellant's counsel did not "direct this court to any provision of R.C. Chapter 4117 under which the instant breach of contract action and/or unjust enrichment claims might arguably fall." Supra at ¶15. A court's subject matter jurisdiction, however, is not determined by the arguments put forth by the litigants. Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19.