[Cite as State v. Woods, 2016-Ohio-4830.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSHEENA M. WOODS 

 Defendant-Appellant 

JUDGES: 

Hon. Sheila G. Farmer, P.J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. 15-COA-036 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of 

Common Pleas, Case No. 15-CRI-048 

JUDGMENT: Affirmed in part, Reversed in part, and 

 Remanded 

DATE OF JUDGMENT ENTRY: July 5, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CHRISTOPHER R. TUNNEL ERIN N. POPLAR 

Ashland County Prosecutor DANIEL D. MASON 

110 Cottage Street, Third Floor Poplar & Mason, LLC 

Ashland, Ohio 44805 103 Milan Ave., Suite 6 

 Amherst, Ohio 44001 

EMILY M. BATES 

Assistant Prosecuting Attorney 

110 Cottage Street, Third Floor 

Ashland, Ohio 44805 
Ashland County, Case No. 15-COA-036 2

Hoffman, J. 

{¶1} Defendant-appellant Sheena M. Woods appeals her conviction and 

sentence entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is 

the state of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Robert "John" Pleus, Jr. testified at trial he lived at 637 Cottage Street in 

Ashland. He and Appellant were in a relationship wherein they resided together at the 

Cottage Street residence. Appellant had a history of involvement with drugs. During the 

parties’ relationship, Pleus came to have suspicions she was using again. Appellant 

would often leave for periods of extended time. Appellant entered treatment for drug 

abuse with ACCADA (Ashland County Counsel and Drug Abuse). 

{¶3} In August of 2014, Pleus was sentenced to prison for committing domestic 

violence against Appellant. He was sentenced to a term of 180 days, with a two year 

period of probation. He served ninety days from November 14, 2014, until January 21, 

2015, and was granted work release privileges. 

{¶4} Pleus testified he and Appellant resumed their relationship after he was 

released. At one point Appellant left for a few days, and Pleus did not know where she 

was staying. Eventually, she called him to retrieve her from Newark, Ohio. Pleus learned 

she was using drugs 

{¶5} In the beginning of March 2015, Pleus contacted the Ashland Police 

Department to report his van missing. While making the police report, Pleus reported 

other items missing, including checks, a gun, a tv and a computer. He then told the police 

of his suspicion of there being a meth lab in his basement. He stated he had suspicion 
Ashland County, Case No. 15-COA-036 3

for a couple of days, and indicated he found items consistent with a meth lab, while 

“poking around in the basement” and making sure he didn’t have anything illegal in the 

house due to his probation status. 

{¶6} On March 13, 2015, Officer Craig Kiley inspected the area and observed a 

lithium battery, a bag, cold packs and a two liter bottle. Officer Kiley testified, based on 

his experience and training, those items were used in the use and manufacture of 

methamphetamine. 

{¶7} During their investigation, officers learned Appellant purchased 

pseudoephedrine on December 15, 2014, from a local Discount Drug Mart pharmacy. 

Two accomplices made similar purchases on the same date. 

{¶8} It was determined Appellant and her accomplices attempted to make 

methamphetamine in the attic of Appellant's home at 637 Cottage Street, Ashland, Ohio. 

{¶9} Following the jury trial, the trial court convicted Appellant of the charges via 

Judgment Entry entered July 23, 2015. The trial court accepted the verdict of the jury 

and entered a finding of guilty as to Count One, illegal assembly or possession of 

chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the 

second degree; and Count Two, illegal manufacture of drugs, in violation of R.C. 

2925.04(A), a felony of the first degree. 

{¶10} The trial court conducted a sentencing hearing on September 28, 2015. The 

trial court sentenced Appellant to four years in prison on Count One, illegal assembly or 

possession of chemical for the manufacture of drugs or complicity to the same, in violation 

of R.C. 2925.04(A)(1), a felony of the second degree. On Count Two, manufacture of 

drugs or complicity to the same, in violation of R.C. 2925.04(A), a felony of the first 
Ashland County, Case No. 15-COA-036 4

degree, the trial court sentenced Appellant to five years in prison. The court imposed the 

sentences concurrently for a total aggregate prison term of five years. With regard to 

Count One, two of the four years, were imposed mandatorily, and with regard to Count 

Two, three of the five years were ordered mandatory. The trial court further imposed a 

fine of $7,500 on Count One and $10,000 on Count Two. 

{¶11} On September 29, 2015, the trial court conducted a resentencing hearing. 

The trial court resentenced Appellant to a minimum mandatory term of three years on 

Count One pursuant to R.C. 2925.041(C)(2), and a minimum mandatory term of four 

years on Count Two. The trial court again ran the sentences concurrently for a total 

mandatory term of five years. The trial court memorialized the sentence via Judgment 

Entry entered September 30, 2015. 

{¶12} Appellant appeals, assigning as error: 

{¶13} “I. THE TRIAL COURT COMMITTED PLAIN ERROR AND ERRED TO THE 

SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN IT SENTENCED 

APPELLANT TO TWO SENTENCES FOR TWO ALLIED OFFENSES OF THE SAME 

IMPORT. 

{¶14} “II. THE CONVICTION AGAINST THE APPELLANT FOR RECKLESSLY 

COMMITTING THE OFFENSES HEREIN WITHIN THE VICINITY OF A SCHOOL IS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OR IS BASED ON 

INSUFFICIENT EVIDENCE. 

{¶15} “III. THE APPELLANT'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE 

ASSISTANCE OF COUNSEL WAS VIOLATED TO HER SUBSTANTIAL PREJUDICE.” 
Ashland County, Case No. 15-COA-036 5

I. 

{¶16} In her first assignment of error, Appellant maintains the trial court committed 

plain error in convicting her of both illegal assembly or possession of chemicals for the 

manufacture of drugs or complicity to the same and for the illegal manufacture of drugs 

or complicity to the same as the counts are allied offenses of similar import. 

{¶17} Appellant maintains the trial court committed plain error in failing to merge 

the counts as allied offenses of similar import as there was no separate animus and no 

separate motivation. 

{¶18} R.C. 2941.25, Multiple counts, states: 

 (A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant may 

be convicted of only one. 

 (B) Where the defendant's conduct constitutes two or more offenses 

of dissimilar import, or where his conduct results in two or more offenses of 

the same or similar kind committed separately or with a separate animus as 

to each, the indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them. 

{¶19} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the 

Ohio Supreme Court revised its allied-offense jurisprudence, 

 1. In determining whether offenses are allied offenses of similar 

import within the meaning of R.C. 2941.25, courts must evaluate three 

separate factors-the conduct, the animus, and the import. 
Ashland County, Case No. 15-COA-036 6

 2. Two or more offenses of dissimilar import exist within the meaning 

of R.C. 2941.25(B) when the defendant's conduct constitutes offenses 

involving separate victims or if the harm that results from each offense is 

separate and identifiable. 

{¶20} The Court further explained, 

 A trial court and the reviewing court on appeal when considering 

whether there are allied offenses that merge into a single conviction under 

R.C. 2941.25(A) must first take into account the conduct of the defendant. 

In other words, how were the offenses committed? If any of the following is 

true, the offenses cannot merge and the defendant may be convicted and 

sentenced for multiple offenses: (1) the offenses are dissimilar in import or 

significance—in other words, each offense caused separate, identifiable 

harm, (2) the offenses were committed separately, and (3) the offenses 

were committed with separate animus or motivation. 

 * * * 

 An affirmative answer to any of the above will permit separate 

convictions. The conduct, the animus, and the import must all be 

considered. 

{¶21} Appellant was convicted of one count of illegal manufacture of drugs in 

violation of R.C. 2924.04, 

 (A) No person shall knowingly cultivate marihuana or knowingly 

manufacture or otherwise engage in any part of the production of a 

controlled substance. 
Ashland County, Case No. 15-COA-036 7

{¶22} Appellant was also convicted of one count of illegal assembly or possession 

of chemicals used to manufacture controlled substance with intent to manufacture 

controlled substance in violation of R.C. 2925.041, 

 (A) No person shall knowingly assemble or possess one or more 

chemicals that may be used to manufacture a controlled substance in 

schedule I or II with the intent to manufacture a controlled substance in 

schedule I or II in violation of section 2925.04 of the Revised Code. 

{¶23} In State v. Carr, Perry App. No. 15CA00007, 2016-Ohio-9, this Court 

addressed the issue raised by Appellant herein, 

 In the case at bar, it was clear when the police entered the home that 

methamphetamine had been manufactured inside the home. Carr admitted 

to manufacturing methamphetamine. 

 Plastic tubing, baggies, envelopes, plastic bottles, batteries, cold 

compact bags, aquarium rocks and coffee filters are not “chemicals” as 

required under R.C. 2925.041. None of the active ingredient such as 

pseudoephedrine[Footnote omitted] was found; rather, only the discarded 

boxes were recovered from the trash. In his statement to the police, Carr 

stated that other parties provided the necessary ingredients. 

 Just as a baker would need flour to “assemble” or “manufacture” a 

cake, it is scientifically impossible to manufacture methamphetamine 

without the raw chemical ingredients, such as pseudoephedrine. In other 

words, every time a person commences a “cook” he or she must necessarily 

possess the requisite raw chemical ingredients necessary to manufacture 
Ashland County, Case No. 15-COA-036 8

the end product of crystal methamphetamine. Thus, a defendant must 

always “knowingly assemble or possess one or more chemicals that may 

be used to manufacture” methamphetamine with the “intent to 

manufacture.” 

 If the police had entered the home and found, for example, 50 boxes 

of pseudoephedrine and nothing more, a case could be made for illegal 

assembly. It is not illegal to possess pseudoephedrine, but the unexplained 

possession of such a large amount would be circumstantial evidence. If the 

state can establish the mens rea of “with the intent to manufacture” a 

defendant can be convicted of assembly or possession in violation of R.C. 

2925.041. 

 Applying the facts and viewing Carr's conduct in this case, illegal 

manufacture of drugs in violation of R.C. 2924.04 and illegal assembly or 

possession of chemicals used to manufacture controlled substance with 

intent to manufacture controlled substance in violation of R.C. 2925.041 did 

not cause separate, identifiable harm. Carr did not commit the offenses 

separately nor were the two offenses committed with separate animus or 

motivation. Carr's motivation and animus for obtaining and/or assembling 

the chemicals was to manufacture methamphetamine. 

 Accordingly, we find the assembly or possession of the chemicals 

and the manufacture of methamphetamine are allied offenses. Accord, 

State v. Coleman, 5th Dist. Richland No. 14–CA–82, 2015–Ohio–3907, ¶ 

52; See, State v. Davidson, 5th Dist. Perry No. 12 CA 7, 2013–Ohio–194, ¶ 
Ashland County, Case No. 15-COA-036 9

47(applying the pre-Ruff allied offenses test set forth in State v. Johnson,

128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314); State v. 

Stevenson, 5th Dist. Perry No. 09CA16, 2010–Ohio–2060, ¶ 32 (applying 

the pre-Ruff allied offenses test set forth in State v. Cabrales, 118 Ohio 

St.3d 54, 886 N.E.2d 181, 2008–Ohio–1625 and finding the possession of 

chemicals and the engagement in any part of the production of drugs are 

allied offenses that do not have a separate animus); State v. Collins, 12th 

Dist. Clinton Nos. CA2010–12–021, CA2010–12–022, 2012–Ohio–430 

(applying the pre-Ruff allied offenses test set forth in State v. Johnson, 128 

Ohio St.3d 153, 942 N.E.2d 1061, 2010–Ohio–6314). 

 *** 

 On the record in the case at bar, we find that Carr has demonstrated 

that he was convicted of allied offenses of similar import committed with the 

same conduct and with the same animus. 

{¶24} The State concedes, pursuant to Carr, Appellant’s sentences should merge 

in accordance with State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E. 2d 892. 

{¶25} Accordingly, Appellant’s first assignment of error is sustained. 

II. 

{¶26} In the second assignment of error, Appellant maintains her conviction on 

the specification for committing the charges in the vicinity of a school is against the 

manifest weight and sufficiency of the evidence as the state erred in adding the mens rea 

element of “recklessly” to the indictment. 
Ashland County, Case No. 15-COA-036 10

{¶27} Appellant was convicted on both counts including the specification of 

committing the offenses within the vicinity of a school. The statute reads, 

 (P) An offense is “committed in the vicinity of a school” if the offender 

commits the offense on school premises, in a school building, or within one 

thousand feet of the boundaries of any school premises, regardless of 

whether the offender knows the offense is being committed on school 

premises, in a school building, or within one thousand feet of the boundaries 

of any school premises. 

{¶28} The State mistakenly added the mens rea of recklessly to the indictment on 

both charges. However, we find such error to be harmless, as the specification provides 

for strict liability if the offense is committed within one thousand feet of the boundaries of 

any school premises, regardless of whether the offender knows the offense is being 

committed within one thousand feet of a school. The evidence set forth at trial 

demonstrates the counts were committed less than 700 feet from a school, and the 

evidence was not contradicted. 

{¶29} Appellant’s second assignment of error is overruled. 

III. 

{¶30} In the third assignment of error, Appellant argues she was denied the 

effective assistance of trial counsel as her trial counsel failed to object at sentencing to 

the imposition of sentences where the counts were allied offenses of similar import. 

Appellant further argues her counsel was ineffective in failing to object to her conviction 

of being in the vicinity of a school specification. 
Ashland County, Case No. 15-COA-036 11

{¶31} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, 

“a court must indulge a strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be considered 

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 

158 (1955). 

{¶32} “There are countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a particular client in the same 

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the 

wide range of professionally competent assistance.” Id. at 690. 

{¶33} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, the defendant must show that “there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. 

{¶34} Based upon our analysis and disposition of Appellant’s first assigned error, 

we find Appellant’s argument with regard to counsel’s failure to argue allied offenses 

moot. 

{¶35} With regard to our analysis and disposition of Appellant’s second 

assignment of error, we find Appellant has not demonstrated prejudice as a result of the 

alleged error. 
Ashland County, Case No. 15-COA-036 12

{¶36} Appellant argues, “...Appellant’s court-appointed counsel failed to move the 

Trial Court for an acquittal on that part of the indictment that sought to prove that the 

Appellant acted recklessly in committing her offenses in the vicinity of a school.” Having 

previously determined the offense is a strict liability offense, we find Appellant cannot 

demonstrate prong two of Strickland. 

{¶37} Appellant’s third assignment of error is overruled. 

{¶38} The judgment of the Ashland County Court of Common Pleas is affirmed in 

part, reversed in part, and remanded for resentencing in accordance with the law and this 

opinion. 

By: Hoffman, J. 

Farmer, P.J. and 

Wise, J. concur