The opinion
[Cite as State v. Johnson, 2025-Ohio-1009.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-23-82
PLAINTIFF-APPELLEE,
v.
MYRON WITHERS JOHNSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 21-CR-451
Judgment Affirmed
Date of Decision: March 24, 2025
APPEARANCES:
April F. Campbell for Appellant
Allison M. Kesler for Appellee
Case No. 9-23-82
MILLER, J.
{¶1} Defendant-appellant, Myron W. Johnson (“Johnson”), appeals the
November 29, 2023 judgment of sentence of the Marion County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On October 13, 2021, the Marion County Grand Jury indicted Johnson
on six counts. The first three counts were drug trafficking offenses: Count One of
trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4), a first-degree
felony; Count Two of trafficking in heroin in violation of R.C. 2925.03(A)(2),
(C)(6), a fourth-degree felony; and Count Three of trafficking in a fentanyl-related
compound in violation of R.C. 2925.03(A)(2), (C)(11), a fifth-degree felony. Each
drug trafficking charge had a corresponding drug possession charge: Count Four of
possession of cocaine in violation of R.C. 2925.11(A)(4), (C), a first-degree felony;
Count Five of possession of heroin in violation of R.C. 2925.11(A), (C)(6), a fourth-
degree felony; and Count Six of possession of fentanyl-related compound in
violation of R.C. 2925.11(A), (C)(11), a fifth-degree felony.
{¶3} Johnson appeared for arraignment on October 18, 2021 and entered a
plea of not guilty. On February 7, 2022, Johnson filed a motion to suppress
evidence. A hearing was held on this motion on October 14, 2022, and a judgment
entry denying the motion to suppress was filed on November 4, 2022.
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{¶4} On October 25, 2023, Johnson appeared for trial. At the
commencement of trial, Johnson made a motion to dismiss the case on the basis that
his right to a speedy trial was violated.1 The trial court denied Johnson’s motion
and proceeded to trial.
{¶5} At trial, Officer Matthew Creps (“Officer Creps”), a member of
MARMET, a combined task force that investigates and handles drug-related crimes
in Marion County, testified that, on October 6, 2021, he and other members of
MARMET executed a drug search warrant at 407 Latourette Street in Marion,
Marion County, Ohio. (Oct. 25, 2023 Tr. at 108-109). Officer Creps located
Johnson in an upstairs bedroom at the residence sitting on the edge of a bed. (Id. at
109). Officer Creps instructed Johnson to stand and he was secured in handcuffs.
(Id. at 110). After advising Johnson of his Miranda rights, Johnson denied having
drugs on his person. (Id.).
{¶6} According to Officer Creps, when he attempted to search Johnson
incident to arrest, he was able to check Johnson’s waistband for weapons and
contraband. Officer Creps testified that it is typical practice for officers to pat down
the arrestee’s groin area for weapons or contraband because that area is a common
hiding spot for such items. (Id. at 110). Officer Creps removed $744 in cash from
Johnson’s waistband, but when he asked Johnson to spread his legs, Johnson spread
1
That same day, Johnson filed a written motion to dismiss on the grounds that his right to a speedy trial had
been violated. (Doc. No. 138).
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his legs “just a few inches,” and Officer Creps was unable to check his groin area
for weapons or contraband. (Id. at 110-111). Officer Creps stated that he and
another officer on the scene asked Johnson several more times to spread his legs,
but, again, Johnson refused to comply. (Id. at 111).
{¶7} Officer Rob Gery (“Officer Gery”), an officer with the Marion Police
Department, testified that he assisted MARMET in executing the search warrant on
407 Latourette Street on October 6, 2021. (Oct. 25, 2023 Tr. at 80-81). Officer
Gery testified that he transported Johnson to the Multi County Correctional Center
(“MCCC”). (Id. at 83, 89-91). Officer Gery, stated that as he arrived at the sally
port at MCCC, Johnson told Officer Gery that he wanted to speak to him because
“he had some stuff on him.” (Id. at 83). Officer Gery’s body-worn camera footage
was introduced as State’s Exhibit 6. (Id. at 89-90). In that video, Johnson admits
to having drugs on his person. (State’s Ex. 6). When Officer Gery asked Johnson
where they were located, he replied “under my nuts.” (State’s Ex. 6).
{¶8} Lieutenant Steven Aiken (“Lieutenant Aiken”), who is now the director
of MCCC, testified that on October 6, 2021, he arrived in the sally port to assist with
Johnson’s arrival and search. (Oct. 25, 2023 Tr. at 101-103). After learning that
Johnson admitted to having drugs on him, he escorted Johnson to a private dressing
area to perform a strip search of him. (Id. at 103-104). Lieutenant Aiken testified
that, at the beginning of the search, Johnson reached into the front of his pants,
pulled out a bag full of white substance, and handed that bag to him. (Id.).
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Lieutenant Aiken recalled that Johnson told him that the bag contained “cocaine,
fentanyl, and heroin.” (Id. at 104). After Lieutenant Aiken and another officer
completed the search of Johnson, Lieutenant Aiken exited the dressing area and
handed the bag to Officer Gery who entered it into evidence. (Id. at 105, 113);
(State’s Ex. 6).
{¶9} Anthony Tambasco (“Tambasco”), a forensic scientist and the Director
of the Mansfield Police Department forensic laboratory, was qualified as an expert
witness and testified regarding the analysis he performed on the suspected drugs.
(Oct. 25, 2023 Tr. at 121, 123, 125); (State’s Ex. 7). Tambasco identified State’s
Exhibit 2 as 57.39 grams of cocaine, State’s Exhibit 3 as 0.18 grams of a mixture
containing cocaine and para-fluorofentanyl, and State’s Exhibit 4 as 2.37 grams of
a mixture containing cocaine, fentanyl, and heroin. (Oct. 25, 2023 Tr. at 131-132);
(State’s Ex. 7).
{¶10} Officer Creps testified that he has dealt with drug cases for his “entire
career” and that, in his experience, individual drug users usually possess a smaller
amount of drugs. (Oct. 25, 2023 Tr. at 114-115). Officer Creps testified that the
market value of cocaine is approximately $100 per gram, so the quantity of cocaine
found on Johnson would be valued at approximately $6,500. (Id. at 115). Officer
Creps attested that a typical user does not possess the amount of drugs found on
Johnson. (Id.). He stated that most people do not have access to $6,500 to spend
on drugs and that most users would “use it too fast.” (Id.). Accordingly, Officer
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Creps opined that the amount of cocaine found on Johnson is more consistent with
distribution or sale than personal use. (Id.).
{¶11} The jury returned guilty verdicts to all of the counts. The trial court
accepted the jury’s verdicts, found Johnson guilty, and continued the matter for
sentencing.
{¶12} At the sentencing hearing on November 27, 2023, the trial court found
that Counts One and Four, Counts Two and Five, and Counts Three and Six were
allied offenses of similar import, and merged those counts for sentencing. The State
elected to proceed to sentencing on Count One (trafficking in cocaine), Count Two
(trafficking in heroin), and Count Three (trafficking in a fentanyl-related
compound). The trial court sentenced Johnson to an indefinite term of 11 years to
16 1/2 years in prison on Count One, 18 months in prison on Count Two, and 12
months in prison on Count Three. Further, the court ordered the sentences to be
served consecutively for an aggregate term of 13 1/2 to 19 years in prison. The trial
court also imposed a mandatory drug fine of $10,000 on Count One and ordered the
forfeiture of the $744 in U.S. currency. The trial court filed its judgment entry of
sentence on November 29, 2023.
{¶13} On December 21, 2023, Johnson filed his notice of appeal. He raises
four assignments of error for our review.
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First Assignment of Error
Johnson’s right to a speedy trial was violated.
{¶14} In his first assignment of error, Johnson argues that his right to a
speedy trial was violated. Specifically, he argues that the trial court should have
granted his motion to dismiss on the basis that he was not brought to trial within the
statutory timeframe. For the reasons that follow, we disagree.
Standard of Review
{¶15} “[S]peedy trial issues present mixed questions of law and fact.” State
v. Marr, 2018-Ohio-5061, ¶ 15 (3d Dist.). “[W]e apply a de novo standard of review
to the legal issues but give deference to any factual findings made by the trial court.”
Id.
Applicable Law
{¶16} “‘An accused is guaranteed the constitutional right to a speedy trial
pursuant to the Sixth and Fourteenth Amendments of the United States Constitution
and Ohio Constitution, Article I, Section 10.’” State v. Irish, 2019-Ohio-2765, ¶ 11
(3d Dist.), quoting State v. Dahms, 2017-Ohio-4221, ¶ 102 (3d Dist.). “‘The proper
standard of review in speedy trial cases is to simply count the number of days
passed, while determining to which party the time is chargeable, as directed in R.C.
2945.71 and 2945.72.’” Dahms at ¶ 102, quoting State v. Ferguson, 2016-Ohio-
8537, ¶ 12 (10th Dist.).
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{¶17} “R.C. 2945.71 provides the timeframe for a defendant’s right to a
speedy trial based on the level of offense.” State v. Matland, 2010-Ohio-6585, ¶ 19
(7th Dist.). R.C. 2945.71 provides that “[a] person against whom a charge of felony
is pending . . . [s]hall be brought to trial within two hundred seventy days after the
person’s arrest.” R.C. 2945.71(C)(2). “This 270-day period may be extended for
one or more of the reasons listed in R.C. 2945.72(A)-(I).” Irish at ¶ 12. Absent any
such extension, failure to bring a defendant to trial within the 270-day period
subjects the case to dismissal upon motion of the defendant. Id., citing R.C.
2945.73(B). “The date of the arrest is not included for the purpose of calculating
time under the statutes for a speedy trial.” State v. Taylor, 2014-Ohio-1793, ¶ 27
(3d Dist.). “However, each day the defendant spends in jail solely on the pending
criminal charge counts as three days.” Matland at ¶ 19, citing R.C. 2945.71(E).
{¶18} “R.C. 2945.72 allows for an extension of time that the accused must
be brought to trial under certain circumstances.” Taylor at ¶ 28. Excluded from the
speedy trial calculation is “[a]ny period of delay necessitated by reason of a plea in
bar or abatement, motion, proceeding, or action made or instituted by the accused.”
R.C. 2945.72(E). Also excluded from the speedy-trial calculation is “[t]he period
of any continuance granted on the accused’s own motion, and the period of any
reasonable continuance granted other than upon the accused’s own motion.” R.C.
2945.72(H).
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Analysis
{¶19} After reviewing the record, we do not find the trial court erred by
denying Johnson’s motion to dismiss on the basis of a violation of his constitutional
right to a speedy trial.
The record indicates as follows:
• Johnson was arrested on the instant case on October 6, 2021. On October
18, 2021, Johnson posted bond. Because Johnson was incarcerated between
October 6, 2021 and October 18, 2021, each one of those days counted as
three days. Accordingly, 12 days passed which equated to 36 days of speedy
trial time.
• On October 19, 2021 Johnson filed a demand for discovery and a request for
a bill of particulars. This constituted one additional day of speedy trial time.
• On November 10, 2021, the State responded to Johnson’s demand for
discovery, ending the tolling event. When, on November 30, 2021,
Johnson’s defense counsel filed a motion moving to withdraw from the case,
thereby tolling the clock, 20 additional days of speedy trial time had passed.
• On December 8, 2021, the trial court granted Johnson’s counsel’s motion for
new counsel and Johnson filed a motion requesting a continuance of the jury
trial scheduled for January 11, 2022. On December 10, 2021, the trial court
granted Johnson’s motion for a continuance. An assignment notice
scheduling the trial for March 8, 2022 was filed by the trial court on
December 14, 2021. Thus, speedy trial time was tolled until March 8, 2022.
• Johnson filed a number of motions on February 7, 2022; to wit: a motion to
suppress, and two motions to compel evidence. The trial court ruled on
Johnson’s motion to suppress on November 4, 2022 and on Johnson’s
motions to compel on December 5, 2022. Accordingly, speedy trial time was
tolled from February 7, 2022 through December 5, 2022.
• On February 7, 2022, Johnson was indicted on additional charges in another
case, and, thus, was incarcerated on both cases. See R.C. 2945.71(E).
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• The speedy trial clock ran from December 5, 2022 until February 22, 2023
when Johnson filed a motion to modify bond and for the preparation of
transcripts. During that time, 79 additional days were accrued.
• An order to continue was filed on February 24, 2023. The order, which was
signed by all parties, including Johnson himself, specified that “Defendant
waives the right to speedy trial for the period of this continuance as to the
pending charge(s).” (Doc. No. 82). Accordingly, the speedy trial clock was
tolled until the new trial date scheduled for May 9, 2023.
• On April 28, 2023, a judgment entry was filed indicating that upon the
defendant’s motion for a continuance on the basis of having new counsel
appointed, the trial set for May 9, 2023 was continued to August 15, 2023.
The judgment entry specified that “Defendant waives the right to a speedy
trial for the period of this continuance as to the pending charges.” (Doc. No.
96).
• An assignment notice was filed on May 18, 2023 resetting the jury trial for
September 11, 2023. There is no explanation in the record for this
rescheduling. Consequently, the time from August 15, 2023 until the next
tolling event (i.e., September 6, 2023) would count against the speedy trial
time.
• On September 6, 2023, Johnson requested a continuance of the September
11, 2023 jury trial, which the trial court granted. The trial was rescheduled
for October 10, 2023. From August 15, 2023 until September 6, 2023
constitutes 22 days charged against the State.
• When the October 10, 2023 trial date arrived, Johnson orally requested a
continuance of the trial citing several reasons, including lack of street clothes
for trial and difficulty electronically accessing certain items of discovery.
The trial court granted Johnson’s motion for a continuance and the trial was
rescheduled until October 25, 2023.
{¶20} At the commencement of the October 25, 2023 trial, Johnson made an
oral motion to dismiss on the basis that his right to a speedy trial had been violated
and simultaneously filed a written motion to dismiss on the same grounds. After
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hearing arguments, the trial court overruled Johnson’s motion and the trial
commenced.
{¶21} Johnson argues that because 729 calendar days passed between his
arrest on the charges in the instant case to the commencement of the trial, his speedy
trial rights were violated. Johnson concedes that several tolling events occurred, but
alleges that, even with the tolling events, he was not brought to trial within 270 days.
{¶22} However, our review of the record, as detailed above, indicates that
Johnson was brought to trial well within the 270 days specified by R.C. 2945.71. A
number of tolling events, including Johnson’s motion to compel and motion to
suppress evidence, and several continuances for Johnson’s various new counsel to
prepare for trial, as well as other tolling events resulted in Johnson being brought to
trial within the statutory timeframe.
Moreover, R.C. 2945.73(C)(2) provides that:
Upon motion made at or before the commencement of trial, but not
sooner than fourteen days before the day the person would become
eligible for release pursuant to division (C)(1) of this section, the
charges shall be dismissed with prejudice unless the person is brought
to trial on those charges within fourteen days after the motion is filed
and served on the prosecuting attorney.
{¶23} Here, Johnson made his motion to dismiss on October 25, 2023, and
the trial commenced that same day. Accordingly, even if Johnson was correct that
more than 270 days had passed, he was still brought to trial within 14 days after
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filing the motion. Thus, the trial court did not err by overruling Johnson’s motion
to dismiss.
{¶24} Johnson’s first assignment of error is overruled.
Second Assignment of Error
Johnson’s indictment as to count four and count six was void, in
violation of the Ohio Constitution and the trial court reversibly
erred in amending Johnson’s indictment as to counts four and six
under Crim.R. 7(D).
{¶25} In Johnson’s second assignment of error, he argues the trial court erred
by amending the indictment with respect to Counts Four and Six. Johnson alleges
the amendment was not permissible under Crim.R. 7 because it changed the identity
of the offense.
Standard of Review and Relevant Law
{¶26} Crim.R. 7(D) governs the amendment of indictments and provides as
follows:
The court may at any time before, during, or after a trial amend the
indictment, information, complaint, or bill of particulars, in respect to
any defect, imperfection, or omission in form or substance, or of any
variance with the evidence, provided no change is made in the name
or identity of the crime charged. If any amendment is made to the
substance of the indictment, information, or complaint, or to cure a
variance between the indictment, information, or complaint and the
proof, the defendant is entitled to a discharge of the jury on the
defendant’s motion, if a jury has been impaneled, and to a reasonable
continuance, unless it clearly appears from the whole proceedings that
the defendant has not been misled or prejudiced by the defect or
variance in respect to which the amendment is made, or that the
defendant’s rights will be fully protected by proceeding with the trial,
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or by a postponement thereof to a later day with the same or another
jury.
{¶27} “Crim.R. 7(D) permits most amendments but prohibits amendments
that change the name or identity of the crime charged.” State v. Wilson, 2019-Ohio-
2754, ¶ 13 (4th Dist.). “A trial court commits reversible error when it permits an
amendment that changes the name or identity of the offense charged, regardless of
whether the defendant suffered prejudice.” Id. Whether an amendment changes
the name or identity of the crime charged is a matter of law which we review de
novo. Id., citing State v. Kittle, 2005-Ohio-3198, ¶ 10-13 (4th Dist.), citing State v.
Smith, 2004-Ohio-4786, ¶ 10 (10th Dist.); State v. Jones, 2015-Ohio-4116, ¶ 125
(2d Dist.), citing State v. Frazier, 2010-Ohio-1507, ¶ 22 (2d Dist.).
{¶28} However, where an amendment does not change the name or identity
of the offense charged, we review a trial court’s decision to allow a Crim.R. 7(D)
amendment for an abuse of discretion. State v. Thompson, 2016-Ohio-4689, ¶ 11
(9th Dist.), citing State v. Gray, 2015-Ohio-1248, ¶ 7 (9th Dist.) and Frazier at ¶ 23.
Analysis
{¶29} Count Four in the indictment, possession of cocaine, stated that
Johnson possessed cocaine in an amount that “equals or exceeds 27 grams of
cocaine, but is less than 10 grams of cocaine.” The indictment, specified that the
offense was a first-degree felony and was in violation of R.C. 2925.11(A)(4), (C).
(Doc. No. 1).
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{¶30} With respect to Count Six, the caption on the indictment stated that
Johnson was charged with “Possession of Fentanyl-Related Compound” in violation
of R.C. 2925.11(A), (C)(11). However, the body of the indictment references heroin
as the drug at issue. (Doc. No. 1). The indictment indicated that the offense was
a fifth-degree felony and referenced R.C. 2925.11(A), (C)(11), which relates
specifically to fentanyl.
{¶31} At trial, the State made an oral motion to amend the indictment with
respect to Counts Four and Six to correct several scrivener’s errors. With respect to
Count Four, it requested the trial court amend the “10” to “100” to reflect the
language for first-degree felony possession of cocaine. With respect to Count Six,
the State made an oral motion to amend the references to “heroin” in the indictment
to “fentanyl.” The trial court granted the State’s requested amendments.
{¶32} Johnson argues that the trial court erred by amending the indictment
and alleges that the changes impermissibly altered the name and identity of the
offenses. However, after reviewing the record, it is evident that the requested
amendments did not change the name or identity of the offenses, but merely fixed
typographical errors. Notably, the indictment was sufficient to put Johnson on
notice of the name or identity of the offenses charged and the amendments did not
impermissibly alter either.
{¶33} Furthermore, although the jury found Johnson guilty of Counts Four
and Six, those charges merged at sentencing with Counts One and Three,
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respectively. “Indeed, the Supreme Court of Ohio has explicitly stated that a
‘conviction’ requires both a finding of guilt and a sentence.” State v. Miller, 2019-
Ohio-4121, ¶ 12 (3d Dist.). Thus, here, since Johnson was not sentenced on Counts
Four and Six, error, if any, with respect to the alleged defects in the indictment of
those counts is harmless beyond a reasonable doubt.
{¶34} Accordingly, Johnson’s second assignment of error is overruled.
Third Assignment of Error
The evidence that Johnson trafficked drugs (Counts one through
three) was legally insufficient. The evidence also manifestly
weighed against convicting Johnson of trafficking.
{¶35} In his third assignment of error, Johnson argues that his convictions
are not supported by sufficient evidence. He also contends that his conviction is
against the manifest weight of the evidence.
Standards of Review
{¶36} Although Johnson combines the issues into a single assignment of
error, manifest “weight of the evidence and sufficiency of the evidence are clearly
different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997).
Accordingly, we review Johnson’s arguments and address the sufficiency of the
evidence and manifest weight individually.
{¶37} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
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mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.).
{¶38} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of
witnesses and determine[] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
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Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524,
¶ 119.
Johnson’s Offenses
{¶39} We first review the sufficiency of the evidence supporting Johnson’s
convictions. Johnson was convicted of three counts of trafficking in drugs; to wit:
trafficking in cocaine (Count One), trafficking in heroin (Count Two), and
trafficking in a fentanyl-related compound (Count Three), in violation of R.C.
2925.03(A)(2), which provides:
(A) No person shall knowingly do any of the following:
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled
substance analog, when the offender knows or has reasonable cause
to believe that the controlled substance or a controlled substance
analog is intended for sale or resale by the offender or another person.
R.C. 2925.03(A)(2).
The Ohio Revised Code defines “knowingly” as follows:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist. When knowledge of the existence of a particular fact
is an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence
and fails to make inquiry or acts with a conscious purpose to avoid
learning the fact.
R.C. 2901.22(B).
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Analysis: Sufficiency of Evidence
{¶40} Johnson argues that his drug-trafficking convictions were not based on
sufficient evidence. Specifically, Johnson argues that there was no evidence that he
prepared or transported drugs or that he knew that the drugs were intended for sale.
In support of his argument, Johnson indicates that there was no drug paraphernalia
or buy money on Johnson’s person at the time of the incident. However, when
viewing the evidence in a light most favorable to the State, we find that the jury
could find sufficient evidence to uphold Johnson’s trafficking convictions.
{¶41} Detective Creps testified that, in his experience, the amount of cocaine
located on Johnson’s person was in excess of an amount he would expect for
personal consumption. State v. Young, 2010-Ohio-3402, ¶ 19 (8th Dist.) (“We have
held in several cases that police officers may testify to the nature and amount of
drugs and its significance in drug trafficking.”). Moreover, he testified that the
cocaine found on Johnson’s person was worth approximately $6,500. Additionally,
Johnson had $744 located in his waistband. Moreover, the evidence indicates that
the cocaine was split into several different bags located within a larger bag. The
mixture containing heroin and the mixture containing fentanyl were also separately
packaged in smaller bags. Additionally, although no drug paraphernalia was located
on Johnson’s person, officers testified that drug paraphernalia was located when
they searched the residence.
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{¶42} “A jury can make reasonable inferences from the evidence.” State v.
Knight, 2016-Ohio-8134, ¶ 26 (10th Dist.). “‘It is permissible for a jury to draw
inferences from the facts presented to them.’” Id., quoting State v. Sanders, 1998
WL 78787, *3 (6th Dist. Feb. 13, 1998), citing State v. Palmer, 80 Ohio St.3d 543,
561 (1997). There are many inferences that can be made from the State’s evidence.
For instance, the large quantity of cocaine and the $744 located on Johnson’s person
could lead to an inference that the drugs were intended for sale. Additionally, the
estimated value of the drugs, at approximately $6,500, could also lead to an
inference that the drugs were not intended for personal use. Furthermore, the
cocaine being separated into smaller bags could lead to an inference that Johnson
packaged the cocaine for sale or distribution. Additionally, the mixture containing
heroin and the mixture containing fentanyl were packaged separately and were
located in the larger bag with the large quantity of cocaine. These inferences are
adequate to overcome Johnson’s sufficiency challenge.
{¶43} Thus, given the totality of the circumstances, when examining the
evidence in a light most favorable to the State, we find that a rational trier of fact
could have found that Johnson had trafficked the cocaine, mixture of heroin, and
mixture containing fentanyl. See State v. Crowell, 2020-Ohio-923, ¶ 10 (8th Dist.).
Analysis: Manifest Weight of the Evidence
{¶44} Having found that sufficient evidence supports Johnson’s trafficking
convictions, we turn to Johnson’s argument that his convictions are against the
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manifest weight of the evidence. However, the entirety of Johnson’s argument with
respect to the manifest weight of the evidence is “[b]ecause there was no evidence
of trafficking, the evidence also manifestly weighed against his convictions.”2
(Appellant’s Brief at 9). However, as addressed in our discussion of Johnson’s
arguments with respect to the sufficiency of the evidence, the evidence adduced at
trial was sufficient to convict Johnson of the trafficking offenses. Furthermore,
having conducted a review of the record and the evidence in accordance with the
manifest-weight standard set forth above, we do not find the jury clearly lost its way
and created such a manifest miscarriage of justice that we must reverse the
convictions and order a new trial.
{¶45} Accordingly, Johnson’s third assignment of error is overruled.
Fourth Assignment of Error
Johnson’s offenses (Counts One through Three) should have
merged.
{¶46} In his fourth assignment of error, Johnson argues that his convictions
for trafficking in cocaine (Count One), trafficking in heroin (Count Two), and
2
We direct counsel to App.R. 12(A)(2), which provides that an appellate court “may disregard an assignment
of error presented for review if the party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R.
16(A).” Furthermore, App.R. 16(A)(7) requires an appellant’s brief include “[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for review and the reasons in
support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant
relies.” Here, Johnson failed to include a meaningful argument regarding how the convictions are against
the manifest weight of the evidence, and, further, failed to provide citations to the authorities, statutes, and
parts of the record that support his argument. Accordingly, we could decline to address Johnson’s argument
regarding the manifest weight of the evidence. However, in the interest of justice, we elect to address the
merits of Johnson’s argument.
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trafficking in fentanyl-related compound (Count Three) are allied offenses of
similar import and should have merged. We disagree.
Standard of Review
{¶47} We review de novo whether offenses are allied offenses of similar
import. State v. Tall, 2023-Ohio-1853, ¶ 7 (3d Dist.). “De novo review is
independent, without deference to the lower court’s decision.” State v. Hudson,
2013-Ohio-647, ¶ 27 (3d Dist.). The defendant bears the burden of establishing he
or she is entitled to the protection provided by R.C. 2941.25 against multiple
punishments for a single criminal act. State v. Washington, 2013-Ohio-4982, ¶ 18.
Relevant Law
{¶48} When a defendant’s conduct supports multiple offenses, courts apply
the allied offenses analysis in R.C. 2941.25 to determine if the offenses merge or if
the defendant may be convicted of separate offenses. State v. Cass, 2024-Ohio-
2614, ¶ 19 (3d Dist.). The statute 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.
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{¶49} The Supreme Court of Ohio has directed the use of a three-part test to
determine whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts
must ask three questions when the defendant’s conduct supports
multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were they
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.
State v. Ruff, 2015-Ohio-995, ¶ 31.
{¶50} “[T]wo 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. “At its heart, the allied-offense analysis is dependent upon
the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.” Id.
at ¶ 26. With respect to offenses involving multiple types of drugs, courts have
recognized that different groups of drugs can pose separate and identifiable harms.
See State v. Daniels, 2020-Ohio-1496, ¶ 35-36 (8th Dist.) (noting that “while heroin
is deadly, fentanyl has been shown to be far more deadly” and concluding that
“trafficking in heroin and trafficking in fentanyl pose separate and identifiable
harms under Ruff and do not merge as allied offenses”)
{¶51} The term “animus” means “purpose or, more properly, immediate
motive.” State v. Logan, 60 Ohio St.2d 126, 131 (1979), abrogation recognized in
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Ruff. “Like all mental states, animus is often difficult to prove directly, but must be
inferred from the surrounding circumstances.” Id. “Thus, the manner in which a
defendant engages in a course of conduct may indicate distinct purposes.” State v.
Whipple, 2012-Ohio-2938, ¶ 38 (1st Dist.). “Courts should consider whether facts
appear in the record that ‘distinguish the circumstances or draw a line of distinction
that enables a trier of fact to reasonably conclude separate and distinct crimes were
committed.’” Id., quoting State v. Glenn, 2012-Ohio-1530, ¶ 9 (8th Dist.).
Analysis
{¶52} Johnson argues that because the three drugs were packaged inside one
bag, and that the one bag containing all of the drugs was handed over to the
corrections officer in a single action, the three trafficking offenses involved a single
course of conduct. However, after reviewing the facts, we do not find that the trial
court erred in its determination that the trafficking offenses did not merge for
sentencing.
{¶53} Johnson’s three trafficking offenses each relate to different types of
drugs—cocaine, heroin, and fentanyl, respectively. Moreover, the evidence
adduced at trial indicates that Johnson was aware of the presence of all three
substances. Notably, Lieutenant Aiken recalled Johnson telling him that the bag
contained “cocaine, fentanyl, and heroin.” (Oct. 25, 2023 Tr. at 104). Officer
Gery’s body-worn camera footage contains similar statements. (State’s Ex. No. 6).
Furthermore, the large plastic bag that Johnson pulled out of his pants and handed
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to Lieutenant Aiken contained multiple smaller bags, and the different substances
were separated into separate plastic bags.
{¶54} “[I]t is well established that ‘“the legislature intended the possession
of different drug groups to constitute different offenses.”’” State v. Jones, 2024-
Ohio-2959, ¶ 55 (3d Dist.), quoting State v. Polachek, 2010-Ohio-5421, ¶ 27 (5th
Dist.), quoting State v. Delfino, 22 Ohio St.3d 270, 273 (1986). “‘The argument
that simultaneous possession of more than one drug of the same drug schedule
constitutes allied offenses of similar import has been rejected many times.’” Id.,
quoting State v. Quigley, 2018-Ohio-1520, ¶ 17 (8th Dist.). Here, the evidence
indicated that Johnson trafficked three different drug groups – cocaine, heroin, and
fentanyl, and moreover, that he was aware of the presence of the three different
drugs. Courts have found that the fact that “the [different] controlled substances
were found in the same baggie is of no consequence” because “[e]ach . . . offense
required proof as to the specific drug involved and could not be supported by
possession of a different controlled substance.” State v. Woodard, 2017-Ohio-6941,
¶ 35 (12th Dist.). See State v. Rice, 2017-Ohio-1504, ¶ 12 (5th Dist.) (“It would
thus defeat the legislature’s intent to merge the drug possession offenses [for
different drugs] into a single offense for purposes of sentencing.”). Accordingly,
that Johnson trafficked the cocaine, heroin, and fentanyl simultaneously is
inconsequential to the analysis. Thus, we find that the trial court did not err by
determining that Johnson’s trafficking in cocaine, trafficking in heroin, and
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trafficking in fentanyl convictions were not allied offenses of similar import. See
Daniels at ¶ 35-36; State v. Morgan, 2019-Ohio-2785, ¶ 21 (5th Dist.); State v.
Ratliff, 2017-Ohio-2816, ¶ 13 (6th Dist.); State v. Hunt, 2018-Ohio-815, ¶ 17-18
(8th Dist.).
{¶55} Johnson’s fourth assignment of error is overruled.
Conclusion
{¶56} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Marion County Court
of Common Pleas.
Judgment Affirmed
ZIMMERMAN and WILLAMOWSKI, J.J., concur.
/jlm
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