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State v. Morgan

Court of Appeals of Ohio, Fifth District, Richland

July 2, 2019

STATE OF OHIO Plaintiff-Appellee
v.
VERNON MORGAN III Defendant-Appellant

          Criminal appeal from the Richland County Court of Common Pleas, Case No.2018CR579.

          For Plaintiff-Appellee JOSEPH SNYDER JOHN Assistant Prosecutor

          For Defendant-Appellant O'DONNELL III

          Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, J.

          OPINION

          Gwin, P.J.

         {¶1} Appellant Vernon Morgan, III ["Morgan"] appeals his convictions and sentences after a jury trial in the Richland County Court of Common Pleas.

         Facts and Procedural History

         {¶2} On July 16, 2018, Morgan was indicted with a two-count indictment. Count One charged Morgan with Possession of Heroin, a felony of the third degree in violation of R.C. 2925.11(A) and (C)(6)(e). Count Two charged Morgan with Aggravated Possession of Drugs [cyclopropylfentanyl], a felony of the fifth-degree in violation of R.C. 2925.11(A) and (C)(1)(a). Both Counts came with three forfeiture specifications each under R.C. 2941.1417. The following evidence was presented during Morgan's jury trial.

         {¶3} On March 4, 2018, K.B. was coming home from work. On her way, she noticed a car in her neighbor's driveway pointed towards her house that she did not recognize. After dark, K.B. and her boyfriend were alerted to sounds from outside. K.B. watched an individual grab one of the solar lights in her front yard take off the solar panel and act as he was drinking out of it. When her boyfriend told him to leave, she watched as the man began attempting to get into their neighbor's cars. K.B. then called the police. K.B. watched the individual walk up onto the porch of another house. She watched as the man attempted to break into the house. K.B. called the police again to update them on what was happening.

         {¶4} Officer Paul Webb arrived on scene shortly after the calls were made and located Morgan pounding on the front door of a home. Officer Webb had Morgan step away from the porch. Morgan then began yelling and falling down. Officer Webb noticed that Morgan had bloodshot, glassy eyes, slurred speech, and an odor of alcohol. Morgan told Officer Webb he was at the house because someone at the residence owed him money. The occupant of the house indicated to Officer Webb that he had no idea who Morgan was. It was readily apparent to Officer Webb that Morgan had no idea where he was. Due to Morgan's intoxication, Officer Webb placed him under arrest to take him to the jail to sober up.

         {¶5} After placing Morgan in his patrol car, Officer Webb noticed a vehicle parked at 659 Scholl Road that was parked at an angle with only half the car in the driveway. Given the unusual positioning of the car, Officer Webb ran the vehicle through his computer system. He discovered that the vehicle had been stopped a month earlier and that Morgan had been the driver. The license plates did not come back to Morgan but rather a third person. Officer Webb spoke with the residents at the address and they had no idea whose car it was. They indicated to Officer Webb that they wanted the car towed from their driveway. Officer Webb approached the vehicle and shined his flashlight into the car. Inside, Officer Webb saw two cellphones, a knife, money strewn about on the floor of the driver and passenger sides and what he suspected to be heroin in the center console. The money totaled $571 divided among nine or ten bundles.

         {¶6} Officer Webb then Mirandized Morgan and asked him about the car and the drugs. Morgan told Officer Webb that the car was his, the cellphones were his, the money was his, but the drugs were not his. Morgan told Officer Webb that a male named "Martel" had been driving but he did not know what his last name was or where he had gone. As the vehicle was to be towed, Officer Webb completed an inventory of the vehicle. During the inventory search, Officer Webb located a name badge for Morgan from his place of employment.

         {¶7} The substance that was removed from the center console of Morgan's car was tested. It was found to be 5.26 grams of cyclopropylfentanyl and heroin. A separate weight for the heroin and the cyclopropylfentanyl was not possible. 2T. at 217-218.[1] The package of heroin contained five individual packages of heroin. Each "chuck" of heroin appeared to be equal in size to one another. Presuming each chunk of heroin was worth $30, the entirety of the heroin found in Morgan's vehicle would be worth $600.

         {¶8} The jury found Morgan guilty of both counts and one forfeiture specification on each count. The remaining forfeiture specifications were dismissed by the state. The trial court sentenced Morgan to thirty-six months on Count One and twelve months on Court Two, consecutive to one another.

         Assignments of Error

         {¶9} Morgan raises three Assignments of Error, {¶10} "I. THE TRIAL COURT ERRED TO DEFENDANT/APPELLANT'S PREJUDICE BY FAILING TO MERGE SENTENCES OF HEROIN AND FENTANYL.

         {¶11} "II. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

         {¶12} "III. DEFENDANT/APPELLANT WAS UNFAIRLY PREJUDICED BY THE TRIAL COURT ADMITTING QUESTIONING BY THE STATE INFERRING THAT HE

         I.

         {¶13} In his First Assignment of Error, Morgan argues the offenses of Possession of Heroin and Aggravated Possession of Drugs [cyclopropylfentanyl], should have merged because both drugs were in the same bag and the lab provided only their combined weight.[2] Morgan did not raise this issue in the trial court.

         STANDARD OF APPELLATE REVIEW.

         {¶14} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the Court held,

An accused's failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice. Accordingly, an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; absent that showing, the accused cannot demonstrate that the trial court's failure to inquire whether the convictions merge for purposes of sentencing was plain error.

143 Ohio St.3d 385, ¶ 3. The Court in Rogers reaffirmed that even if an accused shows the trial court committed plain error affecting the outcome of the proceeding, the appellate court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:

[W]e have "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

Rogers at ¶ 23.

         ISSUE FOR APPEAL.

         Whether the trial court committed plain error affecting the outcome of the proceedings resulting in a manifest miscarriage of justice by failing to merge the offenses in Morgan's case.

         {¶15} 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.

         {¶16} 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 ...

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