COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70482 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID JOLLY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 10, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-310467 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender EDWARD F. FERAN, Assistant KATHLEEN W. WOOD, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street Cleveland, Ohio 44113-7583 - 2 - JAMES M. PORTER, J., Defendant-appellant David Jolly appeals from his conviction following a jury trial on four drug counts with violence specifications. Defendant's sole assignment of error asserts that the drug counts of possession and trafficking represent allied offenses of similar import and that he was exposed to double jeopardy by the overlapping convictions and sentences. We find no merit to these contentions and affirm. This case arose out of a drug bust on August 20, 1993. On that date, Det. Thomas Shoulders, a veteran of the Cleveland Police Narcotics Unit, received a call from a confidential, reliable informant (CRI) advising him of drug transactions that would occur at 1:00 p.m. at Mayfield and Coventry Roads involving three people, including defendant David Jolly. Det. Shoulders set up undercover surveillance at the Mayfield and Coventry area at 11:30 a.m. that day. Det. Shoulders was observing the site and police actions from an overhead police helicopter which was in radio contact with the undercover officers on the ground. Pursuant to the CRI's information, Det. Shoulders spotted the target vehicle, a 1987 gray Oldsmobile, from his helicopter and informed the police officers on the ground of the vehicle's location. The car pulled into a Revco parking lot near the Mayfield-Coventry intersection where Det. Mark Mazur was sitting in an undercover vehicle. - 3 - The two front occupants exited the vehicle. Det. Shoulders landed the helicopter in Lakeview Cemetery and went to the nearby Revco parking lot. He observed defendant Jolly along with a female, later identified as Laverne Anderson, and a second male identified as Frederick Norman going to use an outdoor pay phone. All three individuals were placed under arrest by the time Det. Shoulders arrived at the scene. Det. Shoulders approached the suspects' vehicle and observed a white plastic bag in the back seat. The bag was checked and it contained suspected narcotics, later determined to be cocaine. The weight of the drugs was 497.88 grams, with a street value of $12,000. Det. Mazur, a veteran member of the Cleveland Police Narcotics Unit and a partner of Det. Shoulders, confirmed his role in the drug arrests. On August 20, 1993, Det. Mazur was driving a Trans Am undercover vehicle parked in the middle of the Revco parking lot near the Mayfield-Coventry area. He arrived at 12:30 p.m. and observed the suspect's gray Oldsmobile pull into the parking lot and park next to him about 1:00 p.m. Defendant Jolly was driving with a female, Laverne Anderson, in the passenger seat and Fred Norman in the rear seat. Det. Mazur observed the defendant speak with the female passenger and then toss a white bag over his right shoulder into the back seat of the car. The female exited the vehicle, went into the Revco, and returned to the vehicle a short time later. - 4 - Det. Mazur then saw the defendant and the female exit the vehicle together. Jolly had a brown paper bag in his hand. Det. Mazur broadcast his observations to fellow officers nearby via a portable radio, telling them the defendant and the female were walking toward a pay phone in the nearby Dairy Mart parking lot. Mazur observed the arrest of the defendant and his female companion by the "take-down" officers. He also identified the white bag confiscated from the gray Oldsmobile. The take-down officers testified to their participation in the arrest of Laverne Anderson and Jolly. The brown paper bag in Anderson's hand contained heroin and a cell phone. The defendant did not testify on his own behalf. Five acquaintances testified for the defense as to defendant being a passenger in the back seat of the car, not the driver. On December 9, 1993, defendant Jolly was indicted on five counts. Count one was for aggravated trafficking (R.C. 2925.03): knowing possession of heroin in three times the bulk amount; Count two was for aggravated trafficking (R.C. 2925.03): knowing preparation for shipment or distribution of heroin intended for resale; Count three was for aggravated trafficking in cocaine (R.C. 2925.03): knowing possession of cocaine in three times the bulk amount; Count four was for aggravated trafficking (R.C. 2925.03): knowing preparation for shipment or distribution of cocaine intended for resale; and Count five for possession of criminal tools: phone, cash, pager and 1987 Oldsmobile (R.C. 2923.24). - 5 - Counts one through four listed a prior felony drug trafficking conviction as a furthermore clause. All counts of the indictment contained a violence specification relating to defendant's previous robbery conviction on January 20, 1975. On March 4, 1996, the jury trial commenced. On March 11, 1996, the jury returned guilty verdicts on the first four counts, but not guilty on Count five for possession of criminal tools. The trial court sentenced the defendant on each of the first four counts to be served concurrently. This timely appeal ensued. Defendant's sole assignment of error states: I. MR. JOLLY'S RIGHT NOT TO BE PUT IN JEOPARDY TWICE FOR THE SAME OFFENSE AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WAS VIOLATED WHEN HE WAS SUBJECTED TO MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE. Defendant argues that his separate convictions for possession and trafficking in drugs constituted allied offenses of similar import. Specifically, defendant argues that while he may be indicted for both of the crimes (e.g., possession of cocaine and transporting cocaine for sale to others), he may be convicted for only one of the crimes. We are compelled to disagree with defendant's argument given our previous decisions. R.C. 2941.25 applies where one act committed by a defendant can be construed to simultaneously constitute two or more offenses: (A) Where the same conduct by defendant can be construed to constitute two or more allied - 6 - 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. In Neward v. Vazirani (1990), 48 Ohio St.3d 81, a case upon which both parties rely, the Court announced a two-tiered test for determining whether two or more crimes are allied offenses of similar import. The Court stated, syllabus: Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. *** Defendant failed to raise this alleged error at the time of trial and, therefore, has waived appellate review of this issue absent plain error. State v. Comen (1990), 50 Ohio St. 206; State v. Perkins (1994), 93 Ohio App.3d 672, 684; Crim.R. 52(B). It is within our discretion, however, to review claims of plain error - 7 - notwithstanding waiver below. State v. Bloom (1988), 40 Ohio St.3d 277; State v. Long (1978), 53 Ohio St.2d 91, syllabus. Appellate courts have exercised discretionary power under Crim.R. 52(B) to review cases involving allied offenses of similar import. State v. Lang (1995), 102 Ohio App.3d 243, 248; State v. Fields (1994), 97 Ohio App.3d 337, 344. In any event, this Court has repeatedly held that "trafficking in drugs by preparing for shipment, shipping, etc. and by possession are not allied offenses of similar import." State v. Williams (1995), 105 Ohio App.3d 471, 481; State v. Powell (1993), 87 Ohio App.3d 157, 169-70; State v. Jordan (1992), 73 Ohio App.3d 524, 541-42; State v. Burnett (March 20, 1997), Cuyahoga App. No. 70618, unreported at 9-11; State v. Roberson (Jan. 19, 1995), Cuyahoga App. No. 64956, unreported at 8-9; State v. Jackson (March 25, 1993), Cuyahoga App. No. 62013, unreported at 6-8; State v. Rose (March 20, 1992), Cuyahoga App. No. 69597, unreported. In State v. Powell (1993), 87 Ohio App.3d 157, this Court held: Both R.C. 2925.03(A)(2) and (6) have possession of a controlled substance as a requisite element of the separate offenses. However, R.C. 2925.03(A)(2) imposes the additional element that possession of the controlled substance is incident to preparation for shipment, transportation, delivery or distribution of the drug through a sale. Since the elements of R.C. 2925.03(A)(2) and (6) do not correspond, they are not allied offenses of similar import. Citing State v. Blakenship (1988), 38 Ohio St.3d 116. - 8 - We also rely on State v. Jackson (Aug. 4, 1994), Cuyahoga App. No. 65957, unreported, which states at 6-7: Clearly section four addressed the act of possessing a quantity of drugs and section two addresses sales, transportation or shipping of the drug. In this case, the jury correctly inferred from the evidence that defendant not only possessed the drugs but that he was also involved in the preparation for shipment or distribution of drugs to facilitate drug trafficking activity. The defendant's possession of a pager and a large sum of money permitted the jury to draw the logical inference that he was involved in the distribution of drugs. Likewise, the lack of any cocaine smoking paraphernalia on his person at the time of his arrest suggested that the drugs he possessed were not for personal use. This Court has consistently held that when there is evidence of intent to distribute the drugs that are being possessed, R.C. 2925.03(A)(2) and 2925.03(A)(4) are not allied offenses of similar import. See State v. Anderson (Nov. 25, 1992), Cuyahoga App. No. 61471, unreported; State v. Benson (Dec. 24, 1992), Cuyahoga App. No. 61545, unreported; State v. Jordan (1992), 73 Ohio App.3d 524; State v. Powell (1993), 87 Ohio App.3d 157. Therefore, we hold that in the circumstances of this case, trafficking and possession of drugs were not allied offenses and the trial court was justified in sentencing the defendant on each of the three separate counts on which defendant was convicted. It might likewise be said in the instant case. The defendant obviously possessed a large quantity of both cocaine and heroin which he was in the business of transporting or offering for sale. The presence of a pager, a cell phone, and a large amount of cash permit that inference. "Because we hold that the two offenses are not allied offenses under R.C. 2941.25(A), we do not need to go to - 9 - the second step of the analysis and consider whether the crimes were committed separately or with a separate animus as to each. R.C. 2941.25(B)." State v. Moore (1996), 110 Ohio App.3d 649, 655. We find these cases are dispositive of this issue and hold that defendant's assignment of error lacks merit. Defendant's sole assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J., and BLACKMON, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .