      [Cite as State v. Pippen, 2012-Ohio-4692.]

                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 SCIOTO COUNTY

STATE OF OHIO,                                 :
                                               :
      Plaintiff-Appellee,                      : Case No. 11CA3412
                                               :
      vs.                                      : Released: September 25, 2012
                                               :
DANIEL C. PIPPEN,                              : DECISION AND JUDGMENT
                                               : ENTRY
      Defendant-Appellant.                     :
                                         APPEARANCES:

James H. Banks, Dublin, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Assistant Scioto County
Prosecutor, Portsmouth, Ohio, for Appellee.

McFarland, J.:

      {¶1} Appellant, Daniel C. Pippen, appeals his conviction in the Scioto

County Court of Common Pleas after a jury found him guilty of trafficking in

drugs, possession of drugs, possession of criminal tools, possession of marihuana,

and conspiracy to traffic in drugs, and additional specifications. Pippen raises five

assignments of error, arguing 1) there was insufficient evidence to convict him and

his convictions were against the manifest weight of the evidence; 2) the trial court

erred in overruling his motion to suppress the evidence; 3) the trial court erred by

consolidating the trials, not excluding a lab report, not granting Pippen a
Scioto App. No. 11CA3412                                                                 2

continuance to conduct an independent analysis of the alleged controlled

substances, and the court erred by admitting hearsay evidence; 4) the verdict forms

do not support his convictions; and 5) the trial court erred in convicting and

sentencing him.

      {¶2} Having reviewed the record, we have identified another sentencing

issue, which we raise sua sponte, related to the trial court’s characterization of the

sentence imposed in connection with Appellant’s status as a major drug offender.

Specifically, the trial court incorrectly stated a portion of Pippen’s sentence was

mandatory, when it was not. Accordingly, we sua sponte notice plain error with

regard to this sentencing error and hereby reverse this portion of the sentence and

remand the case for proceedings consistent with this opinion.

      {¶3} Next, we find there was substantial evidence upon which the jury could

have found Pippen was guilty of the charged offenses beyond a reasonable doubt,

and his convictions are not against the manifest weight. However, with respect to

Pippen’s argument that the trial court erred when it entered a judgment of

conviction on Count 10, the conspiracy charge, because the trial court merged

Count 10 with Counts 1 and 2, Pippen was not actually sentenced on that count

and, therefore, no conviction resulted on that count. Thus, we overrule Pippen’s

fourth assignment of error.
Scioto App. No. 11CA3412                                                              3

       {¶4} Since Pippen failed to demonstrate he had standing to challenge the

search of the residence, we conclude that the trial court correctly overruled his

motion to suppress the evidence and we overrule his second assignment of error.

       {¶5} In his third assignment of error, Pippen did not provide legal support

for his contention the trials were improperly consolidated and for his contention

the trial court erred in overruling his Crim.R. 29(A) motion, and we decline to

address these portions of the assignment of error. Moreover, the trial court did not

err in permitting the lab report be admitted into evidence, and it was within the trial

court’s discretion to deny Pippen’s motion to continue the trial date. Finally, the

trial court did not err in admitting evidence regarding an anonymous informant and

an anonymous note. Thus, we overrule Pippen’s third assignment of error.

       {¶6} Regarding the verdict forms, we find there were several deficiencies

that require us to remand the case to the trial court to either enter a judgment of

conviction for the correct level of the offenses or reduce the degree of offenses,

and sentence Pippen accordingly. Thus, we affirm Pippen’s fourth assignment of

error in part, and overrule it in part.

       {¶7} Finally, as addressed in the various other assignments of error raised by

Pippen, and also sua sponte, we find several sentencing errors by the trial court and

therefore, we sustain Pippen’s fifth assignment of error, in part.
Scioto App. No. 11CA3412                                                             4

      {¶8} Thus, we affirm in part and reverse in part the trial court’s judgment

and remand the case for proceedings consistent with this opinion.

                                      FACTS

      {¶9} On October 25, 2010, Officer Steve Timberlake was unloading items

from his vehicle when an unknown male approached him. The male knew

Timberlake by name and told him there were men from Detroit selling drugs out of

Katherine Lansing’s residence at 616 Sixth Street in Portsmouth, Ohio. The next

morning, Timberlake found an anonymous note on his vehicle’s windshield,

addressed to him, indicating there were “D-boys” at the house on Sixth Street, and

illegal activity was occurring at another location in Portsmouth.

      {¶10} Timberlake viewed the Scioto County Court of Common Pleas’

website and determined Lansing was on probation. Timberlake contacted Nick

Ferrara, the court’s chief probation officer, and discussed the tip about Lansing.

Ferrara noted Lansing’s listed address was not on Sixth Street, but she had not

been reporting to her probation officer and had an outstanding warrant for her

arrest. Ferrara determined the 616 Sixth Street address was incorrect, as the

probation department was located on Sixth Street, and 616 would have been an

alleyway.

      {¶11} As a result of this conversation, Timberlake began checking the police

department’s records for mention of Lansing. One month earlier, on September
Scioto App. No. 11CA3412                                                              5

22, 2010, a caller telephoned the police to report a burglary at 518 Sixth Street,

Portsmouth, Ohio. The report identified the caller as “Catherine Lansing,” the

resident.

      {¶12} Based upon this new information that placed Lansing at 518 Sixth

Street only one month earlier, Ferrara decided it would be prudent to visit the

residence and arrest Lansing. Because of Timberlake’s tip that there may be as

many as five additional persons present, who were allegedly selling drugs, Ferrara

requested Timberlake and other officers from the Portsmouth Police Department

assist with the home search for safety reasons. Timberlake and two other officers

accompanied Ferrara and two probation officers to the residence.

      {¶13} Upon arriving at the residence, part of the group went to the front

door, while the others covered the rear. One of the probation officers at the front

door knocked and announced his presence. The officers heard scuffling inside, but

no verbal response, and no one answered the door. The officers at the back then

noticed one to two males approaching the second story window in a manner that

indicated they were attempting to exit the window. The officers shouted this

information to the others at the front of the house. At that point, Ferrara ordered

one of the probation officers to breach the door.

      {¶14} Law enforcement found Daniel Pippen in the upstairs restroom and

Tyrone Dixon, Evan Howard, and Eric Durr in a small upstairs bedroom. The
Scioto App. No. 11CA3412                                                                 6

bedroom had a dresser and a mattress in it, along with a pile of money on the floor.

The money totaled $3,090.

      {¶15} Probation officers were unable to locate Lansing within the house, but

they did find mail addressed to her at the residence, as well as a photo of her on the

refrigerator. With evidence the house was Lansing’s residence, the officers

conducted a search for contraband.

      {¶16} Law enforcement found a total of $16,803, 1,824 oxycodone pills,

cocaine, heroin, marihuana, and two digital scales. Some of the pills and money

were in a sock underneath a cushion on the couch. Other drugs and money were in

a plastic Walmart bag by the door to the basement. Most of the marihuana was

behind the dresser in the upstairs bedroom. There was additional money under the

mattress in the same room. There was even money inside of a woman’s shoe.

Officers found the digital scales in the kitchen. After the search, Tyrone Dixon

attempted to claim all of the contraband as his, but when officers asked him asked

what was his, Dixon was unable to identify all of the contraband the officers found.

      {¶17} The grand jury indicted Pippen and the others within the house for

trafficking in drugs, possession of drugs, trafficking in cocaine, possession of

cocaine, possession of criminal tools, possession of marihuana, and conspiracy to

traffic in drugs, many of which included aggravating specifications. During the

jury trial, the trial court dismissed the counts relating to the cocaine, and the jury
Scioto App. No. 11CA3412                                                             7

convicted Pippen of the remaining counts and found the money recovered was

subject to forfeiture. The verdict forms read:

      Count 1:     “Trafficking in Drugs/Oxycodone/Vicinity of a School/Major

                   Drug Offender.” The jury found the amount equaled or

                   exceeded 100 times the bulk amount and was within 1,000 feet

                   of a school.

      Count 2:     “Possession of Drugs/Major Drug Offender.” The jury found

                   the amount equaled or exceeded 100 times the bulk amount.

      Count 3:     “Trafficking in Drugs/Heroin/Within the Vicinity of a School.”

                   The jury found the amount was equal to or greater than one

                   gram but less than five (5) grams, and was within 1,000 feet of

                   a school.

      Count 4:     “Possession of Drugs/Heroin.” The jury found the amount

                   equaled or exceeded one gram, but was less than five grams.

      Count 7:     “Trafficking in Drugs/Marijuana/Within the Vicinity of a

                   School.” The jury found the amount was less than 200 grams

                   and was within 1,000 feet of a school.

      Count 8:     “Possession of Criminal Tools.” There were no findings

                   associated with this count.
Scioto App. No. 11CA3412                                                         8

      Count 9:     “Possession of Marijuana.” The jury found the amount was less

                   than the bulk amount.

      Count 10:    “Conspiracy to Traffic in Drugs, F2.”

      {¶18} The trial court sentenced Pippen to 27 years in prison. Pippen now

appeals.

                           ASSIGNMENTS OF ERROR

      I.     THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO

             SUPPORT DEFENDANT’S CONVICTION, WHICH

             CONVICTION IS MANIFESTLY AGAINST THE WEIGHT OF

             THE EVIDENCE AND MUST BE REVERSED.

      II.    THE TRIAL COURT ERRED IN DENYING DEFENDANT-

             APPELLANT’S MOTION TO SUPPRESS AND RENEWED

             MOTION TO SUPPRESS EVIDENCE.

      III.   THE TRIAL COURT ERRED IN ITS RULINGS AT TRIAL,

             INCLUDING BUT NOT LIMITED TO THE CONSOLIDATION OF

             APPELLANT’S CASE WITH THE CO-DEFENDANTS, DENIAL

             OF PIPPEN’S 29(A) MOTION AND IN THE ADMISSION OF

             EVIDENCE SUCH TO REQUIRE REVERSAL OF DEFENDANT’S

             CONVICTIONS.
Scioto App. No. 11CA3412                                                                9

      IV.    THE VERDICT FORMS DO NOT SUPPORT DEFENDANT’S

             CONVICTIONS.

      V.     THE TRIAL COURT ERRED IN CONVICTING AND

             SENTENCING THE DEFENDANT.

                                 LEGAL ANALYSIS

      {¶19} After reviewing the record, we have noted an initial threshold matter

that must be addressed related to the trial court’s characterization of Pippen’s

sentence imposed as a result of his major drug offender specification. As will be

more fully discussed, infra, when sentencing Pippen, the trial court incorrectly

stated that this portion of Pippen’s sentence was mandatory, when it was not. As

such, we have decided to sua sponte invoke the “plain error” rule. Crim.R. 52(B)

states that although a defendant may have failed to raise a timely objection to an

error affecting a substantial right, courts may notice the error.

      {¶20} For 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. State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Furthermore, 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
Scioto App. No. 11CA3412                                                                 10

prevent a manifest miscarriage of justice.’ ” Id., quoting State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

          {¶21} When reviewing felony sentences, this Court follows the two-step

approach the Supreme Court of Ohio outlined in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4. See State v. Welch, 4th Dist. No.

08CA29, 2009-Ohio-2655, at ¶ 6. “First, [we] must examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence

to determine whether the sentence is clearly and convincingly contrary to law. If

this first prong is satisfied, [that is, if the sentence complies with the law,] the trial

court’s decision shall be reviewed under an abuse-of-discretion standard.” Kalish

at ¶ 4.

          {¶22} Here, the jury convicted Pippen of aggravated trafficking in drugs,

with additional aggravating factors that the amount of oxycodone involved was

more than 100 times the bulk amount, and the crime occurred within the vicinity of

a school. Aggravated trafficking in drugs is proscribed by R.C. 2925.03(C)(1).

R.C. 2925.03(C)(1)(f) provided, “[i]f the amount of the drug involved equals or

exceeds one hundred times the bulk amount and regardless of whether the offense

was committed in the vicinity of a school or in the vicinity of a juvenile,

aggravated trafficking in drugs is a felony of the first degree, the offender is a

major drug offender, and the court shall impose as a mandatory prison term the
Scioto App. No. 11CA3412                                                                11

maximum prison term prescribed for a felony of the first degree and may impose

an additional prison term prescribed for a major drug offender under division

(D)(3)(b) of section 2929.14 of the Revised Code.” The jury found the amount of

the drug exceeded 100 times the bulk amount.

      {¶23} Thus, Pippen was a “major drug offender” under R.C.

2925.03(C)(1)(f) and subject to a mandatory prison term of ten years for

aggravated trafficking in drugs. The trial court also sentenced Pippen to an

additional prison term of ten years for the major drug offender specification,

stating on the record that this additional ten-year term was mandatory.

      {¶24} R.C. 2929.14(D)(3)(b) provided, “[t]he court imposing a prison term

on an offender under division (D)(3)(a) of this section may impose an additional

prison term of one, two, three, four, five, six, seven, eight, nine, or ten years * *

*.”1 That is, the trial court was permitted to impose an additional prison term of

ten years for the major drug offender specification, but the statutory language did

not make the additional prison term mandatory. Thus, it was erroneous for the trial

court to label the prison term for the major drug offender specification as

“mandatory.”

      {¶25} The distinction between mandatory and nonmandatory prison terms is

important when determining whether a court may grant an offender judicial

      1
          R.C. 2929.14 has since been amended.
Scioto App. No. 11CA3412                                                                12

release. R.C. 2929.20(A)(1)(a) provided only eligible offenders could apply for

judicial release, and “‘eligible offender’ means any person serving a stated prison

term of ten years or less * * *.” As Pippen’s aggregate sentence was 27 years, he

was not eligible for judicial release because his aggregate sentence was greater

than ten years.

      {¶26} However, Revised Code Section 2929.20 has since been amended and

Pippen will eventually be eligible for judicial release, even with a prison sentence

of 27 years. The General Assembly amended R.C. 2929.20(A)(1)(a) to read,

“Except as provided in division (A)(1)(b) of this section, ‘eligible offender’ means

any person who, on or after April 7, 2009, is serving a stated prison term that

includes one or more nonmandatory prison terms.” As 17 years of Pippen’s 27-

year sentence are nonmandatory, Pippen is an “eligible offender.” Additionally,

the newly added R.C. 2929.20(C)(5) provides, “[i]f the aggregated nonmandatory

prison term or terms is more than ten years, the eligible offender may file the

motion not earlier than the later of the date on which the offender has served one-

half of the offender’s stated prison term or the date specified in division (C)(4) of

this section.”

      {¶27} Accordingly, because the trial court incorrectly stated the ten-year

prison term for Pippen’s major drug offender specification was mandatory, we

conclude that this portion of the sentence was contrary to law and an abuse of
Scioto App. No. 11CA3412                                                              13

discretion under Kalish, supra, and also constitutes plain error. Accordingly, we

hereby reverse this portion of the sentence and remand the case for proceedings

consistent with this opinion.

                           ASSIGNMENT OF ERROR I

                                A. Standard of Review

      {¶28} In his first assignment of error, Pippen argues his convictions were

against the manifest weight of the evidence and based upon insufficient evidence.

We disagree. Further, with respect to Pippen’s claim that he was convicted of

conspiracy to traffic in drugs based upon insufficient evidence against the weight

of the evidence, because we find Pippen was not actually convicted on the

conspiracy count, we reject this argument also.

      {¶29} “When an appellate court concludes that the weight of the evidence

supports a defendant’s conviction, this conclusion necessarily includes a finding

that sufficient evidence supports the conviction. Thus, a determination that [a]

conviction is supported by the weight of the evidence will also be dispositive of the

issue of sufficiency. Therefore, we first consider whether [Appellant’s] conviction

[is] against the manifest weight of the evidence.” (Internal quotations, citations,

and footnote omitted.) State v. Leslie, 4th Dist. Nos. 10CA17, 10CA18, 2011-

Ohio-2727, at ¶ 15. See, also, State v. Bostwick, 4th Dist. No. 10CA3382, 2011-
Scioto App. No. 11CA3412                                                               14

Ohio-3671, at ¶ 10; State v. Kulchar, 4th Dist. No. 10CA6, 2011-Ohio-5144, at ¶

31 (per curiam).

      {¶30} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review 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.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, at ¶ 24,

citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A

reviewing court “may not reverse a conviction when there is substantial evidence

upon which the [trier of fact] could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson, 58 Ohio

St.3d 40, 42, 567 N.E.2d 266 (1991), citing State v. Eskridge, 38 Ohio St.3d 56,

526 N.E.2d 304 (1988), at paragraph two of the syllabus.

      {¶31} We must still remember that the weight to be given evidence and the

credibility to be afforded testimony are issues to be determined by the trier of fact.

State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995), citing State v.

Grant, 67 Ohio St.3d 465, 620 N.E.2d 50 (1993). The trier of fact “is best able to

view the witnesses and observe their demeanor, gestures, and voice inflections, and
Scioto App. No. 11CA3412                                                               15

use these observations in weighing the credibility of the proffered testimony.”

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

                                  B. Legal Analysis

                                1. Trafficking Counts

       “(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, when the offender knows or has reasonable

cause to believe that the controlled substance is intended for sale or resale by the

offender or another person.

       ***

       “(C) Whoever violates division (A) of this section is guilty of one of the

following:

       “(1) If the drug involved in the violation is any compound, mixture,

preparation, or substance included in schedule I or schedule II, with the exception

of marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A)

of this section is guilty of aggravated trafficking in drugs. The penalty for the

offense shall be determined as follows:

       ***
Scioto App. No. 11CA3412                                                               16

       “(f) If the amount of the drug involved equals or exceeds one hundred times

the bulk amount and regardless of whether the offense was committed in the

vicinity of a school * * *, aggravated trafficking in drugs is a felony of the first

degree, the offender is a major drug offender, and the court shall impose as a

mandatory prison term the maximum prison term prescribed for a felony of the

first degree.

       ***

       “(3) If the drug involved in the violation is marihuana or a compound,

mixture, preparation, or substance containing marihuana other than hashish,

whoever violates division (A) of this section is guilty of trafficking in marihuana.

The penalty for the offense shall be determined as follows:

       ***

       “(b) Except as otherwise provided in division (C)(3)(c), (d), (e), (f), (g), or

(h) of this section, if the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, trafficking in marihuana is a felony of the fourth degree, and

division (B) of section 2929.13 of the Revised Code applies in determining

whether to impose a prison term on the offender.

       ***

       “(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this
Scioto App. No. 11CA3412                                                                                17

section is guilty of trafficking in heroin. The penalty for the offense shall be

determined as follows:

            ***

            “(b) Except as otherwise provided in division (C)(6)(c), (d), (e), (f), or (g)

of this section, if the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, trafficking in heroin is a felony of the fourth degree, and

division (C) of section 2929.13 of the Revised Code applies in determining

whether to impose a prison term on the offender.”

                                      a. Aggravated Trafficking in Drugs2

        {¶32} Here, there was substantial evidence upon which the jury could

reasonably conclude the state had proven all elements of aggravated trafficking in

drugs beyond a reasonable doubt.
        2
            We note the names of the offenses used in several of the verdict forms are incorrect, though this did not

prejudice Pippen. For example, Count 1 was entitled “Trafficking in Drugs/Oxycodone/Vicinity of a School/Major

Drug Offender,” but should have been entitled “aggravated trafficking in drugs” and specified the controlled

substance involved was oxycodone. See R.C. 2925.03(C)(1). The offenses should have been titled “aggravated

trafficking in drugs” and “aggravated possession of drugs” (for the oxycodone), “trafficking in heroin” and

“possession of heroin,” “trafficking in marijuana” and “possession of marihuana.” The statutory scheme of R.C.

2925.03 and 2925.11 provides for separate offenses, each with distinct aggravating factors and penalties, depending

upon the controlled substance involved. We caution against the vernacular use of the phrases “trafficking in drugs”

and “possession of drugs,” as the state and the court did in this case, because these vernacular phrases are actually

specific crimes involving specific controlled substances. See R.C. 2925.03(C)(2) and 2925.11(C)(2). Instead,

parties should employ the specific statutory name of the offense based upon the controlled substance involved.
Scioto App. No. 11CA3412                                                            18

      {¶33} Timberlake testified about the various controlled substances law

enforcement recovered from 518 Sixth Street. Pippen was present in the house

when law enforcement recovered these.

      {¶34} Megan Snyder, a forensic chemist, testified at great length about the

chemical analyses she performed on each substance, identifying whether it was a

controlled substance, and noting the amount of each substance. Snyder testified

there were 1,824 pills that contained oxycodone (oxycodone hydrochloride). She

also testified, based upon the maximum daily dosage of 90 milligrams for

oxycodone and oxycodone’s “bulk amount” being five times the maximum daily

dosage, the pills were 121.6 times the bulk amount of oxycodone.

      {¶35} Regarding the proximity of 518 Sixth Street to a school, Melinda

Davis testified the residence was within 1000’ of a school at which she was the

principal.

      {¶36} Again, there were digital scales in plain view. There was $3,090 on

the floor of the upstairs bedroom. In total, there was $16,803 in cash within the

house, though only one of five defendants was ostensibly employed. In addition to

the 1,824 oxycodone pills, there was heroin, cocaine, and marihuana recovered

from the residence. Given the sheer quantity of the oxycodone recovered, and the

other evidence, it was reasonable for the jury to conclude Pippen was involved in

preparing for shipment, shipping, transporting, delivering, preparing for
Scioto App. No. 11CA3412                                                               19

distribution, or distributing the oxycodone. It was also reasonable for the jury to

conclude Pippen intended to sell or resell the oxycodone, or he knew or had

reasonable cause to believe another person intended to sell or resell the oxycodone.

      {¶37} Although the case against Pippen and his co-defendants is based

entirely upon circumstantial evidence, circumstantial evidence is, by itself, a

sufficient basis for a conviction. Bostwick, 4th Dist. No. 10CA3382, 2011-Ohio-

3671, at ¶ 17, quoting State v. Smith, 4th Dist. No. 09CA29, 2010-Ohio-4507, at ¶

44, quoting State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991).

      {¶38} Addressing Pippen’s’ contention that the state failed to prove

possession, even constructive possession, we disagree. Possession may be actual

or constructive. State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989);

State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747, ¶ 39. “Actual possession

exists when the circumstances indicate that an individual has or had an item within

his immediate physical possession. Constructive possession exists when an

individual is able to exercise dominion or control of an item, even if the individual

does not have the item within his immediate physical possession.” Fry at ¶ 39,

citing State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus, and

State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976).

      {¶39} This court has held that, “[f]or constructive possession to exist, ‘[i]t

must also be shown that the person was conscious of the presence of the object.’”
Scioto App. No. 11CA3412                                                           20

State v. Harrington, 4th Dist. No. 05CA3038, 2006-Ohio-4388, at ¶ 15, citing

Hankerson at 91. Further, “two or more persons may have joint constructive

possession of a particular item.” State v. Cooper, 3d Dist. No. 9-06-49, 2007-

Ohio-4937, at ¶ 25, citing State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d

585 (8th Dist. 1993); State v. Riggs, 4th Dist. No. 98CA39, 1999 WL 727952

(Sept. 13, 1999). “[T]he crucial issue is not whether the accused had actual

physical contact with the article concerned, but whether the accused was capable of

exercising dominion or control over it.” State v. Reed, 2d. Dist. No. 2002-CA-30,

2003-Ohio-5413, at ¶ 19.

      {¶40} Pippen’s’ argument is his mere proximity to various controlled

substances does not conclusively establish he possessed them. R.C. 2925.01(K)

provides, “‘[p]ossess’ or ‘possession’ means having control over a thing or

substance, but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing

or substance is found.” That is, “a defendant’s mere presence in an area where

drugs are located does not conclusively establish constructive possession.

However, a defendant’s proximity to drugs may constitute some evidence of

constructive possession. Mere presence in the vicinity of illegal drugs, coupled

with another factor or factors probative of dominion or control over the
Scioto App. No. 11CA3412                                                              21

contraband, may establish constructive possession.” (Internal citations omitted,

emphasis added.) Riggs, 4th Dist. No. 98CA39, 1999 WL 727952, at *5.

      {¶41} In State v. Harrington, the defendant’s proximity to a quantity of

cocaine, coupled with his immediate denial of any wrongdoing and false

statements, permitted a jury to infer the defendant knew the cocaine was there.

Harrington at ¶ 18, 24. We found this evidence sufficient to establish the

defendant knew of the cocaine and he had the ability to exercise control over it,

demonstrating constructive possession. Id. at ¶ 24. We also found the defendant’s

convictions for possession and trafficking in cocaine were not against the manifest

weight of the evidence. Id. at ¶ 26.

      {¶42} In State v. New, 4th Dist. No. 08CA9, 2009-Ohio-2632, the state

presented evidence of recorded telephone conversations between the defendant and

her boyfriend that indicated she knew there were drugs in the house. During a

phone call, the defendant discussed with her boyfriend specific items in the home

the police had recovered, such as a coffee can with a false bottom that contained

cocaine, a plate with a razor blade that had cocaine residue on it, and pictures of

the defendant, her boyfriend, and a third party holding large sums of cash. New at

¶ 16, 17. Given the defendant’s presence in the house, coupled with her statements

about specific items related to controlled substances, she knew where the cocaine
Scioto App. No. 11CA3412                                                          22

was kept in the residence, and a finding that she constructively possessed the

cocaine was not against the manifest weight of the evidence. Id. at ¶ 18.

      {¶43} Likewise, in Riggs, 4th Dist. No. 98CA39, 1999 WL 727952, we

found the defendant’s proximity to controlled substances in the passenger

compartment of a vehicle, coupled with the vast amount of controlled substances

and paraphernalia within the vehicle was sufficient to establish constructive

possession. Law enforcement recovered cocaine in a bag behind the passenger’s

seat; a cocaine straw and a plastic container with marihuana residue beside the

defendant’s seat; a mirror with cocaine residue under the passenger’s seat;

numerous marihuana roaches and marihuana joints throughout the vehicle, many of

which were in the defendant’s plain view. Id. Thus, the defendant’s proximity,

coupled with the vast amount of drugs, some of which were in plain view,

permitted the jury to find he knowingly possessed the drugs. Id.

      {¶44} The present case is akin to Riggs. “The presence of such a vast

amount of drug evidence in the [house] supports an inference that [Pippen] knew

about the presence of the drugs and that he, along with his [co-defendants],

exercised control over each of the items found.” Riggs, 4th Dist. No. 98CA39,

1999 WL 727952, at *5, citing State v. Soto, 8th Dist. No. 57301, 1990 WL

145651 (Oct. 4, 1990). Here, there were drugs scattered throughout the entire

house: 1,824 oxycodone pills, over 100 grams of marihuana, heroin, cocaine, and
Scioto App. No. 11CA3412                                                           23

traces of codeine and morphine. There were digital scales in plain view in the

kitchen. There was over $16,000 cash in a house where four of the five occupants

were unemployed. Considering all of this evidence together, the jury could

properly infer Pippen knew there were controlled substances in the house and he

was capable of exercising dominion or control over them, establishing his

constructive possession of the controlled substances. Thus, the jury’s findings that

Pippen knowingly possessed the various controlled substances were not against the

manifest weight of the evidence.

      {¶45} Considering the totality of the evidence, there was substantial

evidence upon which the jury could reasonably conclude the state had proven all

elements of aggravated trafficking in drugs beyond a reasonable doubt. We cannot

say the jury clearly lost its way and created a manifest miscarriage of justice.

Thus, we affirm Pippen’s conviction for aggravated trafficking in drugs.

                            b. Trafficking in Marihuana

      {¶46} Timberlake testified law enforcement had recovered a bag of

marihuana, which contained smaller bags of marihuana. There were also small

amounts of marihuana in other containers. Snyder testified the chemical analyses

revealed the substance was indeed marihuana and there was 113.3 grams of

marihuana total. Again, Davis’ testimony was the house was within 1,000 feet of a

school.
Scioto App. No. 11CA3412                                                                                24

         {¶47} No one testified the marihuana was for personal use. Give the

quantity of the marihuana, the fact that it was stored in smaller packages, and its

presence of marihuana residue on the digital scale, it was reasonable to believe

Pippen was trafficking the marihuana.

         {¶48} Considering the evidence as a whole, there was substantial evidence

upon which the jury could reasonably conclude the state had proven all elements of

trafficking in marihuana beyond a reasonable doubt. We cannot say the jury

clearly lost its way and created a manifest miscarriage of justice. Thus, we affirm

Pippen’s conviction for trafficking in marihuana.3

                                           c. Trafficking in Heroin

         {¶49} Similarly, Timberlake testified law enforcement had recovered 2.8

grams of heroin from the residence. Snyder confirmed through chemical analysis

the substance was heroin. Snyder also testified one of the digital scales had trace

amounts of heroin on it. Again, according to Davis, the house was within 1,000

feet of a school.

         {¶50} As with the marihuana, no one testified the heroin was for personal

use. Given the heroin residue on the digital scale, it was reasonable to believe

Pippen was trafficking heroin.

         3
             The jury’s finding that the marihuana was “less than bulk amount” is inconsequential because “less than

bulk amount” is not an aggravating factor; in fact the statute does not refer to a bulk amount of marihuana.
Scioto App. No. 11CA3412                                                                                25

        {¶51} Considering the totality of the evidence, there was substantial

evidence upon which the jury could reasonably conclude the state had proven all

elements of trafficking in heroin beyond a reasonable doubt. We cannot say the

jury clearly lost its way and created a manifest miscarriage of justice. Thus, we

affirm Pippen’s conviction for trafficking in heroin.4

                               2. Possession of Controlled Substances

        R.C. 2925.11 provides:

            “(A) No person shall knowingly obtain, possess, or use a controlled

substance.

            “* * *

        “(C) Whoever violates division (A) of this section is guilty of one of the

following:

        “* * *

        “(1) If the drug involved in the violation is a compound, mixture,

preparation, or substance included in schedule I or II, with the exception of

marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of

this section is guilty of aggravated possession of drugs. The penalty for the offense

shall be determined as follows:

        4
            We address the finding that the heroin was “Equal to or greater than bulk amount but less than five (5)

times bulk amount,” infra.
Scioto App. No. 11CA3412                                                                 26

      “(e) If the amount of the drug involved equals or exceeds one hundred times

the bulk amount, aggravated possession of drugs is a felony of the first degree, the

offender is a major drug offender, and the court shall impose as a mandatory prison

term the maximum prison term prescribed for a felony of the first degree.

       “* * *

       “(3) If the drug involved in the violation is marihuana or a compound,

mixture, preparation, or substance containing marihuana other than hashish,

whoever violates division (A) of this section is guilty of possession of marihuana.

The penalty for the offense shall be determined as follows:

       “(a) Except as otherwise provided in division (C)(3)(b), (c), (d), (e), (f), or

(g) of this section, possession of marihuana is a minor misdemeanor.”

       “* * *

      “(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this

section is guilty of possession of heroin. The penalty for the offense shall be

determined as follows:

       “* * *

       “(b) If the amount of the drug involved equals or exceeds ten unit doses but

is less than fifty unit doses or equals or exceeds one gram but is less than five

grams, possession of heroin is a felony of the fourth degree, and division (C) of
Scioto App. No. 11CA3412                                                             27

section 2929.13 of the Revised Code applies in determining whether to impose a

prison term on the offender.”

      {¶52} When the jury found Pippen trafficked in the controlled substances

(oxycodone, heroin, and marihuana) under R.C. 2925.03(A)(2), it implicitly found

he possessed the substances, too. For the same reasons Pippen’s convictions for

trafficking were not against the manifest weight of the evidence, we find his

convictions for possession of the controlled substances are not against the manifest

weight of the evidence either. Thus, we affirm Pippen’s convictions for

aggravated possession of drugs, possession of marihuana, and possession of

heroin.5

                                      3. Possessing Criminal Tools

      {¶53} R.C. 2923.24(A) provides, “No person shall possess or have under the

person’s control any substance, device, instrument, or article, with purpose to use it

criminally.” Whoever violates that section is guilty of possessing criminal tools.

R.C. 2923.24(C).

      {¶54} As with Pippen’s convictions for possession of controlled substances,

there was substantial evidence upon which a jury could find Pippen possessed the

digital scales found in the kitchen. The fact that the scales had residue from

marihuana, heroin, codeine, and morphine on them, coupled with the vast amount

      5
          Again, we discuss the errors with the verdict forms, infra.
Scioto App. No. 11CA3412                                                              28

of drugs recovered from the house, permitted the jury to infer Pippen had a purpose

to use the scales criminally: to traffic the controlled substances. Thus, we affirm

Pippen’s conviction for possessing criminal tools.

                           4. Conspiracy to Traffic in Drugs

      R.C. 2923.01 provides:

       “(A) No person, with purpose to commit or to promote or facilitate the

commission of * * * a felony drug trafficking, manufacturing, processing, or

possession offense * * * shall do either of the following:

       “(1) With another person or persons, plan or aid in planning the commission

of any of the specified offenses;

       “(2) Agree with another person or persons that one or more of them will

engage in conduct that facilitates the commission of any of the specified offenses.

       “* * *

       “(M) As used in this section:

       “(1) ‘Felony drug trafficking, manufacturing, processing, or possession

offense’ means any of the following that is a felony:

       “(a) A violation of section 2925.03 * * * of the Revised Code;

       “(b) A violation of section 2925.11 of the Revised Code that is not a minor

drug possession offense.”
Scioto App. No. 11CA3412                                                           29

      {¶55} R.C. 2923.01(G) provides, “When a person is convicted of

committing * * * [a] specific offense, the person shall not be convicted of

conspiracy involving the same offense.” As such, because Pippen was convicted

on the principle trafficking offense, he could not be convicted of conspiracy

involving the same offense. Contrary to Pippen’s argument that he was convicted

of conspiracy to traffic in drugs, based upon the following, we conclude that

Pippen was not actually convicted on the conspiracy count.

      {¶56} Here, the record reflects that although the jury did return a finding of

guilt as to the conspiracy to traffic in drugs count, Count 10, the trial court

“ordered that Count 10 merge with Count 1 and Count 2.” Thus, despite the jury’s

finding Pippen guilty on Count 10, the trial court did not impose a sentence for

Count 10. “A conviction consists of a finding of guilt and a sentence.” State v.

Fields, 1st Dist. No. C-090648, 2010-Ohio-4114, ¶ 7, citing State v. Henderson, 58

Ohio St.2d 171, 177-179, 389 N.E.2d 494 (1979); State v. Obstaint, 1st Dist. No. C-

060629, 2007-Ohio-2661, ¶ 24; accord State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, ¶ 12. As such, although the jury found Pippen

guilty of Count 10, the trial court did not impose a sentence for Count 10 and as a

result, Pippen was not convicted of Count 10. Therefore, there is no conspiracy

conviction to vacate.
Scioto App. No. 11CA3412                                                              30

      {¶57} As to the other counts discussed herein, as we have found Pippen’s

convictions are not against the manifest weight of the evidence, we find there was

also sufficient evidence to convict him of each offense. Accordingly, we overrule

Pippen’s first assignment of error.

                           ASSIGNMENT OF ERROR II

                                A. Standard of Review

      {¶58} In his second assignment of error, Pippen argues the trial court erred

in overruling his motion to suppress evidence. We disagree.

      {¶59} Preliminarily, “[w]here factual issues are involved in determining a

motion, the court shall state its essential findings on the record.” Crim.R. 12(F).

While the trial court made no explicit factual findings when it denied Pippen’s

motion to suppress, “[t]he extensive record of the suppression hearing is ‘sufficient

to allow full review of the suppression issues.’” State v. Sapp, 105 Ohio St.3d 104,

2004-Ohio-7008, 822 N.E.2d 1239, at ¶ 96, quoting State v. Waddy, 63 Ohio St.3d

424, 443, 588 N.E.2d 819 (1992); citing State v. Brewer, 48 Ohio St.3d 50, 60, 549

N.E.2d 491 (1990).

      {¶60} Generally, “‘[a]ppellate review of a motion to suppress presents a

mixed question of law and fact. When considering a motion to suppress, the trial

court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.’” State v. Roberts, 110
Scioto App. No. 11CA3412                                                             31

Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100, quoting State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8, citing State

v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “Accordingly, we defer

to the trial court’s findings of fact if they are supported by competent, credible

evidence.” State v. Westbrook, 4th Dist. No. 09CA3277, 2010-Ohio-2692, at ¶16,

citing State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.

2000). “Accepting those facts as true, we must independently determine whether

the trial court reached the correct legal conclusion in analyzing the facts of the

case.” Westbrook at ¶16, citing Roberts at ¶100, citing Burnside at ¶8.

                                  B. Legal Analysis

      {¶62} After reviewing the record, we conclude that Pippen did not establish

he had standing to assert a Fourth Amendment violation. “The rule followed by

courts today with regard to standing is whether the defendant had an expectation of

privacy * * * that society is prepared to recognize as reasonable. The burden is

upon the defendant to prove facts sufficient to establish such an expectation.”

State v. Williams, 73 Ohio St.3d 153, 166, 652 N.E.2d 721 (1995), citing Rakas v.

Illinois, 439 U.S. 128, 131, 99 S.Ct. 421, 58 L.Ed.2d 387, at fn. 1 (1978) and State

v. Steele, 2 Ohio App.3d 105, 107, 440 N.E.2d 1353 (8th Dist. 1981). See, also,

State v. Corbin, 6th Dist. No. WD-10-013, 2011-Ohio-3491, at ¶ 24.
Scioto App. No. 11CA3412                                                             32

      {¶62} Here, although Pippen argued that he had standing to challenge the

search of the residence and the items within it, he provided no evidence or

testimony in support of his argument. Pippen did not own the residence or state he

lived there. Nor did Pippen establish he was an overnight guest who could invoke

the aegis of Minnesota v. Olson (1990), 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d

85, and claim he had an expectation of privacy within Lansing’s residence.

Consequently, Pippen failed to establish he had standing to assert a Fourth

Amendment violation and the trial court was right to deny his motion.

      {¶63} Accordingly, we overrule Pippen’s second assignment of error.

                           ASSIGNMENT OF ERROR III

              A. Consolidation of Defendants, Crim.R. 29(A) Motion

      {¶64} Initially, we note a deficiency in Pippen’s appellate brief. Pippen’s

brief, regarding the third assignment of error, does not comply with App.R.

16(A)(7), which provides: “The appellant shall include in its brief, under the

headings and in the order indicated, all of the following: * * * An 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. The

argument may be preceded by a summary.” Pippen, however, has cited no

authority in support of his arguments that the trial court improperly consolidated
Scioto App. No. 11CA3412                                                                33

the defendants’ trials and wrongly denied his Crim.R. 29(A) motion – not a single

statute, case, or treatise. Nor did Pippen even argue the issue of the Crim.R. 29(A)

motion beyond including it in the assignment of error.

        {¶65} “‘If an argument exists that can support [an] assignment of error, it is

not this court’s duty to root it out.’” Thomas v. Harmon, 4th Dist. No. 08CA17,

2009-Ohio-3299, at ¶ 14, quoting State v. Carman, 8th Dist. No. 90512, 2008-

Ohio-4368, at ¶ 31. “‘It is not the function of this court to construct a foundation

for [an appellant’s] claims; failure to comply with the rules governing practice in

the appellate courts is a tactic which is ordinarily fatal.’” Catanzarite v. Boswell,

9th Dist. No. 24184, 2009-Ohio-1211, at ¶ 16, quoting Kremer v. Cox, 114 Ohio

App.3d 41, 60, 682 N.E.2d 1006 (1996). Therefore, “[w]e may disregard any

assignment of error that fails to present any citations to case law or statutes in

support of its assertions.” Frye v. Holzer Clinic, Inc., 4th No. 07CA4, 2008-Ohio-

2194, at ¶ 12. See, also, App.R. 16(A)(7); App.R. 12(A)(2); Albright v. Albright,

4th Dist. No. 06CA35, 2007-Ohio-3709, at ¶ 16. While we sometimes consider

deficient assignment of errors in the interest of justice, we find no need to do so

here.

                                     B. Lab Report

        {¶66} In his third assignment of error, Pippen argues the trial court denied

him the ability to have an independent analysis done on the alleged controlled
Scioto App. No. 11CA3412                                                             34

substances. Accordingly, Pippen contends the trial court should have excluded the

lab reports from the evidence, or alternatively, it should have continued the trial to

permit Pippen to have the testing performed. We disagree with both propositions.

                             1. Exclusion of Lab Report

                                a. Standard of Review

      {¶67} “The admission of evidence is within the sound discretion of the trial

court.” State v. Knauff, 4th Dist. No. 10CA900, 2011-Ohio-2725, at ¶ 22, citing

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the

syllabus. “Absent an abuse of that discretion, an appellate court will not disturb a

trial court’s ruling on the admissibility of evidence.” State v. Blevins, 4th Dist. No.

10CA3353, 2011-Ohio-3367, at ¶ 31, citing State v. Martin, 19 Ohio St.3d 122,

129, 483 N.E.2d 1157 (1985) (per curiam).

      {¶68} “‘The term “abuse of discretion” connotes more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980). “Under this highly deferential standard of review, we

may not simply substitute our judgment for that of the trial court.” Woody v.

Woody, 4th Dist. No. 09CA34, 2010-Ohio-6049, at ¶ 35, citing In re Jane Doe I,

57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). “Rather, we are limited to
Scioto App. No. 11CA3412                                                             35

determining whether considering the totality of the circumstances, the trial court

acted unreasonably, arbitrarily or unconscionably.” Id., citing Briganti v. Briganti,

9 Ohio St.3d 220, 222, 459 N.E.2d 896 (1984), citing Blakemore, 5 Ohio St.3d at

218-220.

                                  b. Legal Analysis

      Ohio Revised Code Section 2925.51 provides:

       “(A) In any criminal prosecution for a violation of this chapter or Chapter

3719. of the Revised Code, a laboratory report from the bureau of criminal

identification and investigation * * * is prima-facie evidence of the content,

identity, and weight or the existence and number of unit dosages of the substance.

       “(B) The prosecuting attorney shall serve a copy of the report on the

attorney of record for the accused, or on the accused if the accused has no attorney,

prior to any proceeding in which the report is to be used against the accused other

than at a preliminary hearing or grand jury proceeding where the report may be

used without having been previously served upon the accused.

       “* * *

       “(E) Any person who is accused of a violation of this chapter * * * is

entitled, upon written request made to the prosecuting attorney, to have a portion of

* * * each of the substances that are, the basis of the alleged violation preserved for

the benefit of independent analysis performed by a laboratory analyst employed by
Scioto App. No. 11CA3412                                                            36

the accused person * * *. The prosecuting attorney shall provide the accused’s

analyst with the sample portion at least fourteen days prior to trial * * *.”

      {¶69} Nothing in the statute requires the court to exclude BCI&I’s report of

the chemical analysis of the substances because Pippen was unable to obtain an

independent analysis prior to trial. Nor does Pippen cite any law to support this

proposition. Thus, we overrule this portion of his assignment of error.

                             2. Motion to Continue Trial

                                a. Standard of Review

      {¶70} “An appellate court must not reverse the denial of a continuance

unless there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65,

67, 423 N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct.

841, 849, 11 L.Ed.2d 921 (1964) and State v. Bayless, 48 Ohio St.2d 73, 101, 357

N.E.2d 1035 (1976). “In evaluating a motion for a continuance, a court should

note, inter alia: the length of the delay requested; whether other continuances have

been requested and received; the inconvenience to litigants, witnesses, opposing

counsel and the court; whether the requested delay is for legitimate reasons or

whether it is dilatory, purposeful, or contrived; whether the defendant contributed

to the circumstance which gives rise to the request for a continuance; and other

relevant factors, depending on the unique facts of each case.” Unger at 67-68.
Scioto App. No. 11CA3412                                                              37

                                  b. Legal Analysis

      {¶71} Here, the state hand-delivered the alleged controlled substances to the

bureau of criminal identification and investigation (“BCI&I”) on November 4,

2010. BCI&I completed its analysis of the substances on December 30, 2010 and

faxed a copy of the report containing its findings to the state on January 4, 2011.

The state sent a copy of the report to Pippen’s counsel on January 4, 2011.

      {¶72} Pippen knew he was charged with a violation of Revised Code

Chapter 2925 on November 10, 2010, the date of his arraignment. However,

Pippen waited until January 7, 2011, three days before trial, to request the state

preserve a portion of the substances for independent analysis and to request a

continuance to complete such. Thus, we do not find the trial court’s decision to

deny Pippen’s request for a continuance was error.

      {¶73} Looking at the Unger factors, Pippen’s request for a continuance did

not specify a requested length, but it took BCI&I over 50 days to analyze all of the

drugs involved. Presumably, it would take a number of weeks for an independent

analyst to complete the same, making Pippen’s request for a continuance a lengthy

one. However, Pippen’s only other requested continuance was to move his

arraignment from the morning to the afternoon of the same day, which weights in

his favor.
Scioto App. No. 11CA3412                                                             38

      {¶74} Conversely, the inconvenience to the witnesses, court, and opposing

counsel would have been rather significant, considering Pippen’s trial had been

consolidated with his co-defendants’ trials. Short of severing Pippen’s trial from

the others, continuing the matter would have been quite burdensome and possibly

would have become complex considering the speedy trial rights of Pippen’s co-

defendants.

      {¶75} Weighing in Pippen’s favor though, if the fact that his request for a

continuance was legitimate and not dilatory. Once BCI&I’s report indicated a

portion of the substances were not contraband, Pippen was warranted in requesting

an independent analysis of the substances. On the other hand, Pippen could have

requested an independent analysis at any point after his arraignment and his delay

in doing so contributed to the circumstances that gave rise to his request for a

continuance.

      {¶76} Considering all of these factors, though some of them weight in

Pippen’s favor, we cannot say the trial court’s decision to deny Pippen’s request

for a continuance was an abuse of discretion. Thus, we overrule this portion of

Pippen’s assignment of error.
Scioto App. No. 11CA3412                                                              39

                             C. Timberlake’s Testimony

      {¶77} Pippen’s final contention within this assignment of error is the trial

court erred when it permitted Timberlake to testify regarding his conversation with

an anonymous informant and the contents of an anonymous note. We disagree.

      {¶78} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Hearsay is not admissible as evidence, unless a

specific exception applies. Evid.R. 802.

      {¶79} Concerning the conversation with the anonymous informant,

Timberlake testified, over Pippen’s objection, “It was information about drug

activity in the city of Portsmouth.” (Tr. at 396.) Timberlake’s statement about the

general nature of his conversation with the anonymous person was not

inadmissible hearsay. There was no specific out-of-court statement offered to

prove the truth of the matter asserted. Rather, there was merely Timberlake’s

testimony describing the general subject matter of the conversation he had with the

person, which was not hearsay.

      {¶80} Pippen then objected to Timberlake testifying about the content of the

anonymous note. The court held a bench conference, and it was agreed

Timberlake could not testify as to what the note said. (Tr. at 396-399.) Pippen did

not disagree with the outcome of the bench conference. Thus, Timberlake
Scioto App. No. 11CA3412                                                              40

described the general nature of the note, stating it concerned “drug activity on

Sixth Street.” (Tr. at 399.) Pippen did not renew or continue his objection based

upon Timberlake’s description of the note’s subject matter, forfeiting his right to

complain of the matter upon appeal.

      {¶81} Regarding Pippen’s argument that even if the evidence should not

have been excluded as hearsay, it was unfairly prejudicial, we disagree. Given the

additional testimony on the copious amount of drugs recovered from the house, the

chemical analyses performed, and the investigation that led to Pippen’s arrest and

indictment, we cannot say a general statements that an anonymous person and an

anonymous note had discussed alleged drug activity in Portsmouth, Ohio was

unfairly prejudicial.

      {¶82} Accordingly, we overrule Pippen’s third assignment of error.

                           ASSIGNMENT OF ERROR IV

                               A. Standard of Review

      {¶82} In his fourth assignment of error, Pippen argues his convictions

should be vacated because they do not contain the degree of the offenses or the

statutory sections pertaining to the various crimes. We agree in part.

      R.C. 2945.75 provides:

       “(A) When the presence of one or more additional elements makes an

offense one of more serious degree:
Scioto App. No. 11CA3412                                                                41

      ***

       (2) A guilty verdict shall state either the degree of the offense of which the

offender is found guilty, or that such additional element or elements are present.

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the

offense charged.”

      {¶83} The Supreme Court of Ohio has adopted a plain reading of this

statute. See State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735,

at ¶ 14. Moreover, “[a]lthough [an appellant] failed to object to the verdict forms

in the trial court, we have previously noted that a defendant’s failure to ‘raise the

inadequacy of the verdict form’ does not forfeit this argument on appeal.” New,

4th Dist. No. 08CA9, 2009-Ohio-2632, at ¶ 24, citing State v. Huckleberry, 4th

Dist. No. 07CA3142, 2008-Ohio-1007, ¶ 18, citing Pelfrey at ¶ 14.

                                  B. Legal Analysis

      {¶84} Here, none of the counts listed the degree of the offense, except for

Count 10, Conspiracy to Traffic in Drugs. While the majority of the counts did not

list the degree of the offense, they did contain specific findings regarding

aggravating factors. Thus, those counts comply with R.C. 2945.75(A)(2) and

Pelfrey and we affirm the trial court’s judgment as it pertains to Count 1, Count 3,

Count 4, and Count 7.
Scioto App. No. 11CA3412                                                              42

      {¶85} Regarding the remaining counts, Count 2 did not specify the

controlled substance involved; Count 8, and Count 9 did not contain the degree of

the offense or proper findings regarding aggravating factors. Accordingly, we

must sustain Pippen’s assignment of error on these counts and remand the case to

the trial court to reduce the degree of those offenses.

      {¶86} However, as will be explained in more detail, infra, because Counts 2

and 9 were merged with Counts 1 and 7, respectively, we conclude Pippen was not

actually convicted on these counts. As such, there are no convictions on Counts 2

and 9 to vacate. Thus, any error related to the verdict forms for Counts 2 and 9 is

harmless. Nevertheless, as set forth above, on remand, the trial court is instructed

to reduce the degree of offense on Counts 2 and 9.

                           1. Count 2: Possession of Drugs

      {¶87} “[T]his Court has ruled that when a jury verdict fails to specify the

drug involved, the convictions must be treated as being associated with the least

serious drug for possession/trafficking (usually marijuana).” State v. Jones, 4th

Dist. No. 09CA1, 2010-Ohio-865, at fn. 3, citing New, 4th Dist. No. 08CA9, 2009-

Ohio-2632, at ¶ 26, fn. 3; Huckleberry at ¶ 24.

      {¶88} As the verdict form for Count 2 fails to specify the drug possessed, we

must treat it as a finding of guilt regarding possession of the least serious drug,

marihuana. Since there is no “bulk amount” for marihuana, the finding of that
Scioto App. No. 11CA3412                                                               43

additional element of “Equal [sic] or exceeds one hundred (100) times bulk

amount” is meaningless. See R.C. 2925.01(D)(1) (excluding marihuana from the

definition of “bulk amount”); R.C. 29295.11(C)(3) (delineating the penalties for

possession of marihuana and enhancing the degree of the offense based upon gram

weight, not bulk amount).

      {¶89} Consequently, the jury found Pippen guilty of possession of

marihuana, which is a minor misdemeanor, not a first degree felony. R.C.

2925.11(C)(3)(a). As such, we sustain Pippen’s assignment of error in this regard.

However, as indicated above, because Count 2 was merged with Count 1, Pippen

was not sentenced on Count 2. “A conviction consists of a finding of guilt and a

sentence.” State v. Fields, supra, at ¶ 7, citing State v. Henderson, supra, at 177-

179; State v. Obstaint, supra, at ¶ 24; accord State v. Whitfield, supra, at ¶ 12.

Because Pippen was not sentenced on Count 2, there is no conviction on Count 2

to vacate. Thus, any error related to the verdict form is harmless. Nevertheless,

because this matter is already being remanded on several other issues, the trial

court is instructed to reduce the degree of offense on Count 2 consistent with this

opinion.

                       2. Count 8: Possessing Criminal Tools

      {¶90} R.C. 2923.24(A) provides, “No person shall possess or have under the

person’s control any substance, device, instrument, or article, with purpose to use it
Scioto App. No. 11CA3412                                                             44

criminally.” Whoever violates that section is guilty of possessing criminal tools.

R.C. 2923.24(C). Possessing criminal tools is a misdemeanor of the first degree

unless the circumstances indicate the item involved was intended for use in the

commission of a felony; then possessing criminal tools is a felony of the fifth

degree. Id.

      {¶91} Here, the jury made no finding of the aggravating factor that the

scales, the criminal tools, were intended for use in the commission of a felony.

Thus, the verdict form was devoid of the level of the offense findings or

aggravating factors and constitutes a finding of guilt of the least degree of the

offense charged: a first degree misdemeanor. We sustain Pippen’s assignment of

error in this regard and vacate his conviction for Count 8.

                        3. Count 9: Possession of Marihuana

      {¶92} The verdict form for Count 9 stated the jury had found Pippen guilty

of “Count 9 Possession of Marijuana,” and made the specific finding of “Less than

bulk amount.” There is, however, no bulk amount for marihuana. See R.C.

2925.01(D)(1) (excluding marihuana from the definition of “bulk amount”).

Further, when determining the appropriate penalty for possession of marihuana,

R.C. 2925.11(C)(3) refers to the gram weight of the substance involved, not a bulk

amount. Thus, the jury’s finding that Pippen was guilty of possession of
Scioto App. No. 11CA3412                                                              45

marihuana constitutes a finding of the least degree of the offense; a minor

misdemeanor. As such, we sustain Pippen’s assignment of error in this regard.

However, as we concluded in our analysis of Count 2, because Count 9 was

merged with Count 7, Pippen was not sentenced on Count 9 and thus, there is no

conviction to vacate. Obstaint, supra, at ¶ 24.

      {¶93} In rendering our decision, we are mindful of the recent holding by the

Supreme Court of Ohio in State v. Eafford, -- N.E.2d --, 2012-Ohio-2224, wherein

the Court held that a jury-verdict form finding an accused guilty of possession of

drugs “as charged in * * * the indictment” supported a conviction for possession of

cocaine, even though the jury-verdict form failed to specify cocaine. While, at first

blush, it appears that the reasoning of Eafford does not require the specific

language that we found lacking, sub judice, upon closer review we find Eafford to

be factually distinguishable. Specifically, we note that in Eafford, the verdict form

at issue at least contained the phrase “as charged in the indictment,” which in fact

specified cocaine. Here, the verdict forms contained no such clause. As such, in

the absence of specifying the degree of the offenses, or setting forth the

aggravating factors that serve as the basis for enhancing the offenses, we find the

verdict forms to be distinguishable from those in Eafford, and therefore find the

reasoning of that case to be inapplicable herein.
Scioto App. No. 11CA3412                                                            46

      {¶94} Accordingly, we remand the case to the trial court to 1) impose a

conviction for the correct level of the offense as to Count 8; 2) to reduce the degree

of offenses as to Counts 2 and 9, which were merged with Counts 1 and 7 for

purposes of sentencing: and 3) to sentence Pippen accordingly, also taking into

consideration that the major drug offender specification does not require an

additional mandatory sentence.

                           ASSIGNMENT OF ERROR V

      {¶95} In his fifth assignment of error, Pippen argues his convictions and

sentences are erroneous. First, he contends all of the offenses should merge, as the

state failed to prove he engaged in separate conduct for each offense. Second,

Pippen believes the sentences the trial court imposed were simply too harsh and the

court did not consider the appropriate sentencing factors. As set forth in detail

above, and as we will be explained further, infra, we agree in part.

                           A. Merger of Allied Offenses

      {¶96} When determining whether multiple offenses should have merged

under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta, 4th

Dist. No. 96 CA 3, 1996 WL 668852 (Nov. 12, 1996), * 2. See, also, Coleman v.

Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, at ¶ 16 (“We review questions of law

de novo.”), quoting State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶ 12,
Scioto App. No. 11CA3412                                                             47

quoting Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-

6499, 858 N.E.2d 330, at ¶ 23.

       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.”

       {¶97} As the Supreme Court explained in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the court must

determine prior to sentencing whether the offenses were committed by the same

conduct.” Johnson at ¶ 47. The initial question is whether it is possible to commit

the two offenses with the same conduct. Johnson at ¶ 48. If so, we must then look

to the facts of the case and determine whether the two offenses actually were

committed by the same conduct, “i.e., ‘a single act, committed with a single state

of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-
Scioto App. No. 11CA3412                                                             48

Ohio-4569, 895 N.E.2d 149, at ¶ 50. “If the answer to both questions is yes, then

the offenses are allied offenses of similar import and will be merged.” Johnson at

¶ 50.

        {¶98} “Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are

committed separately, or if the defendant has separate animus for each offense,

then, according to R.C. 2941.25(B), the offenses will not merge.” Johnson at ¶ 51.

        {¶99} Here, Pippen’s various crimes relating to different controlled

substances are of dissimilar import and do no not merge. State v. Jones, 18 Ohio

St.3d 116, 480 N.E.2d 408 (1985), discussed the issue of whether a defendant

could be convicted of multiple counts of aggravated vehicular homicide resulting

from a single collision. The relevant inquiry is “whether the legislature intended

the relevant statute[s] to authorize multiple convictions.” Jones at 117. Having

reviewed the legislative intent of R.C. 2925.11, “[t]he Supreme Court of Ohio has

held that the simultaneous possession of different types of controlled substances

can constitute multiple offenses under R.C. 2925.11.” State v. Westbrook, 4th Dist.

No. 09CA3277, 2010-Ohio-2692, at ¶ 42, citing State Delfino, 22 Ohio St.3d 270,

490 N.E.2d 884 (1986), at syllabus. The same holds true for trafficking in multiple

controlled substances. Westbrook at ¶ 46.
Scioto App. No. 11CA3412                                                               49

         {¶100} Here, Pippen’s convictions for trafficking in oxycodone, heroin, and

marihuana do not merge with one another. Likewise, Pippen’s convictions for

possession of controlled substances do not merge with one another. The import of

each offense is dissimilar and does not merge under R.C. 2941.25(A). See R.C.

2941.25(B). Accordingly, we overrule this portion of Pippen’s fifth assignment of

error.

                                      B. Sentencing

         {¶101} First, Pippen’s contention that the trial court erred by failing to

consider R.C. 2929.14(B) is meritless. The Supreme Court of Ohio held in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, portions of Ohio’s

sentencing statutes were unconstitutional to the extent they required judicial fact-

finding the imposition of sentences above the minimum term. R.C. 2929.14(B)

was one of the offending portions. We decline to remand the case to the trial court

to consider an unconstitutional portion of a statute.

         {¶102} However, we find that Pippen’s argument that his sentence was

contrary to law is meritorious. As already set forth above, when reviewing felony

sentences, this Court follows the two-step approach the Supreme Court of Ohio

outlined in State v. Kalish, supra, at ¶ 4, which requires us to first determine

whether the sentence is contrary to law, and if it is not, we then proceed to the

question of whether the sentence was an abuse of discretion. Here, however, we
Scioto App. No. 11CA3412                                                             50

have already determined that several of Appellant’s sentences were contrary to

law.

       {¶103} Specifically, we sua sponte raised an issue related to the trial court’s

imposition of a “mandatory” additional sentence on Count 1’s major drug offender

specification. Having found that the ten year sentence imposed by the trial court

was not mandatory, we found this portion of Appellant’s sentence to be contrary to

law. Additionally, after finding problems with the verdict form for Count 8, we

vacated and remanded Pippen’s conviction on this count, with instructions to the

trial court to reduce the degree of offense from a fifth degree felony to a first

degree misdemeanor. Pippen was sentenced to a twelve month prison term on this

count, which is clearly outside the range for a first degree misdemeanor, and thus,

is contrary to law.

       {¶104} Further, although we also found problems with the verdict forms

related to Counts 2 and 9, because these counts were merged with Counts 1 and 7,

respectively, Pippen was not actually sentenced on these counts and thus the errors

did not affect the length of his sentences, either individually or overall. The same

is true with respect to the jury’s finding of guilt on the conspiracy charge. Not

only could Pippen not be convicted of both the principle offense and conspiracy to

commit the principle offense, in light of our conclusion that the conspiracy count
Scioto App. No. 11CA3412                                                             51

was merged with Counts 1 and 2 for purposes of sentencing, this error did not

affect the length of his sentences, either individually or overall.

       {¶105} Thus, having found these particular sentences to be contrary to law,

we find they were also an abuse of discretion. However, as set forth above, we

have already affirmed Appellant’s convictions on Counts 1, 3, 4, and 7, and we

find no error in sentencing related to these counts, with the exception of Count 1’s

major drug offender specification sentence, which we have already discussed.

       {¶106} Accordingly we sustain Pippen’s fifth assignment of error, in part.

             JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
                                            CAUSE REMANDED.

Kline, J., dissenting, in part.

       {¶107} I concur in judgment only with the following exceptions. First, I

would not vacate Count 8. Here, the trial court instructed the jury as follows:

“Before you can find the individual Defendant[] * * * guilty, you must find beyond

a reasonable doubt that * * * the individual Defendant * * * had under his control a

device or instrument, to wit, digital scales, with purpose to use it criminally for the

commission of a felony.” (Emphasis added.) Transcript at 923. Therefore, based

on the presumption that the jury followed the trial court’s instruction, I would not

recognize plain error as to Count 8. See State v. Eafford, 132 Ohio St.3d 159,
Scioto App. No. 11CA3412                                                       52

2012-Ohio-2224, 970 N.E.2d 891, ¶¶ 11, 17. Furthermore, I believe that Counts 2

and 9 are moot. Therefore, I would not address these counts.

      {¶108} Accordingly, I respectfully dissent as to Counts 2, 8, and 9. I

respectfully concur in judgment only with the rest of the opinion.
Scioto App. No. 11CA3412                                                                    53

                                   JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART, & CAUSE REMANDED and that the Appellee and Appellant split costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents in Part with Opinion as to A/E’s 2, 8, & 9 and with the remainder of
Opinion Concurs in Judgment Only

                             For the Court,

                             BY:    _________________________
                                    Matthew W. McFarland, Judge

                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.


869 F.2d 264
Prod.Liab.Rep.(CCH)P 12,081AGRISTOR LEASING, a Wisconsin Partnership;  Agristor CreditCorporation, a Delaware corporation;  SteinerFinancial Corporation, a Utahcorporation, Plaintiffs,William Dayon Taylor;  Paulette Taylor, Defendants,Counter-Plaintiffs and Third-Party Plaintiffs-Appellees,v.A.O. SMITH HARVESTORE PRODUCTS, INC., Third-Party Defendant-Appellant.
No. 88-5226.
United States Court of Appeals,Sixth Circuit.
Argued Dec. 15, 1988.Jan. 9, 1989.Rehearing and Rehearing En Banc Denied March 24, 1989.

John K. Maddin, Jr., Gracey, Maddin, Cowan & Bird, Nashville, Tenn., Arnold A., Jr., Hatfield, Van Cleave & Stulce, Chattanooga, Tenn., D. Michael Tranum, Knoxville, Tenn., Robert L. Crossley, Richard E. Herod, and James A. DeLanis, Nashville, Tenn., for Agristor Leasing, a Wisconsin Partnership, Agristor Credit Corp., a Delaware corp. and Steiner Financial Corp., a Utah corp., plaintiffs.
Malcolm L. McCune, James A. Vick, Gracey, Maddin, Cowan & Bird, Nashville, Tenn., Robert R. Ramsey, Burnett & Ramsey, Jamestown, Tenn., for William Dayon Taylor, defendant-appellee.
Robert R. Ramsey, Jamestown, Tenn., for Paulette Taylor, defendant-appellee.
Donald E. Egan, Lee Ann Watson, Bonita L. Stone, Katten, Muchin & Zavis, Chicago, Ill., John E. Brandon, David J. Pflaum, Watkins, McGugin, McNeilly & Rowan, Nashville, Tenn., for A.O. Smith Corp., defendant.
Before MILBURN and NORRIS, Circuit Judges, and SUHRHEINRICH, District Judge*.
MILBURN, Circuit Judge.

1
A.O. Smith Harvestore Products, Inc.  ("AOSHPI"), the third-party defendant, appeals from the judgment entered on the jury verdict for Dayon Taylor, the third-party plaintiff, in this diversity action originally brought to recover silos and damages for breach of a lease.  The jury awarded Taylor approximately $1.1 million dollars in compensatory and punitive damages against AOSHPI on theories of strict tort liability, fraud, negligent and commercial misrepresentation.  For the reasons that follow, we affirm.I.

A.

2
Plaintiffs Agristor Leasing, Agristor Credit Corp., and Steiner Financial Corp.  ("creditors") filed this action against defendants William Dayon Taylor and Paulette Taylor on May 13, 1983.  The creditors alleged the Taylors leased several silos and related equipment (hereinafter collectively referred to as "Harvestore silos") and had defaulted on their monthly payments.

3
On August 5, 1983, the Taylors answered and filed counterclaims against the plaintiffs and a third-party complaint against AOSHPI, A.O. Smith Corp., and Robert Brown, d/b/a East Tennessee Silo Builders.  AOSHPI manufactures the Harvestore silos;  the A.O. Smith Corp. is AOSHPI's parent corporation;  and Brown erected the silos on the Taylor farm.  The Taylors alleged the silos were defective and filed claims based upon allegations of fraud, negligent misrepresentation, sections 402A and B and 552(d) of the Restatement (Second) of Torts (1977), breach of express and limited warranties, and violations of the Tennessee Products Liability Act, Tenn.Code Ann. Secs. 29-28-101 to -108 (1980 & Supp.1988).

4
Several of the Taylors' claims were eliminated during pretrial proceedings, including Paulette Taylor's.  The A.O. Smith Corp. and Robert Brown were voluntarily dismissed as third-party defendants prior to trial.  In the liability phase of the trial, the jury returned a verdict, finding in favor of the Taylors and against AOSHPI on the Taylors' theories of fraud, negligent and commercial misrepresentation, and strict tort liability.  The jury awarded Taylor compensatory damages of $501,168.00 and 10 per cent prejudgment interest on the compensatory damages.  It also awarded $500,000.00 in punitive damages.

5
The district court denied AOSHPI's motions for a directed verdict, JNOV, a new trial, and remittitur.  On January 20, 1988, the district court entered a final judgment on the jury verdict for $1,090,703.60, and AOSHPI filed a timely appeal on February 18, 1988.

B.

6
Taylor is a high school biology teacher at Clarkrange High School in Clarkrange, Tennessee.  He holds a master's degree in education and was an experienced dairy farmer.  He owned and operated a dairy farm near Clarkrange until 1985.  On March 13, 1980, Taylor entered into a lease of approximately $230,000.00 for two Harvestore silos and loading and unloading equipment.

7
Harvestore silos are made of glass fused to steel panels.  They are advertised as being an "oxygen-limiting" design.  "Breather bags" inside the tops of the silos are designed to expand and contract to trap incoming air and keep silage from coming into contact with oxygen.  They supposedly preserve silage longer and in better condition than conventional silos.

8
Taylor's typewritten lease contained a disclaimer in the preamble that stated in part:

9
Buyer understands the conditions of the use of the products and is not relying on the skill or judgment of the Manufacturer or Seller in selecting them because Buyer acknowledges that farming and livestock feeding results are very much the product of individual effort combined with various climatic, soil, water, growing and feeding conditions which are beyond the control of the Manufacturer and Seller.  Buyer recognizes that any advertisements, brochures, and other written statements which he may have read, including any farm profit plan which may have been shown to him, as well as any oral statement which may have been made to him, concerning the potential of the Harvestore and/or Slurrystore units and allied machinery and equipment, are not guarantees and he has not relied upon them as such because the products will be under Buyer's exclusive management and control.

10
The agreement also contained a section, immediately preceding the contract signature line, which provided:ACKNOWLEDGMENT AND RELIANCE

11
I HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS PURCHASE ORDER INCLUDING THE WARRANTIES, DISCLAIMERS AND TERMS AND CONDITIONS HEREIN GIVEN TO ME, EITHER BY THE MANUFACTURER OR THE SELLER.  I RELY ON NO OTHER PROMISES OR CONDITIONS AND REGARD THAT AS REASONABLE BECAUSE THESE ARE FULLY ACCEPTABLE TO ME.

12
Taylor testified he read and understood the contract before he signed it.  At trial, however, he testified he relied on AOSHPI's representations regarding the oxygen-limiting design of the Harvestore silo, promised increased butterfat in his herd's milk, lower labor and feed costs, and higher profits.

13
Prior to his use of the Harvestore silos, Taylor stated his herd was full of healthy cattle.  After the system was installed in June 1980, however, his herd began experiencing severe health problems, including decreased milk production, inability to reproduce, increased disease and death, and a general change from a healthy, thrifty appearance to that of unthriftiness.1

14
The treating veterinarians, Dr. William Hall and Dr. Maben Thompson, testified that they believed there were no disease patterns in Taylor's herd that would account for its health problems.  Dr. Hall testified that the herd's health problems stemmed from malnutrition and poor feed.  In his opinion, the Harvestore feed "didn't have enough energy."    J.A. at 92.  Hall testified that "[s]omething happened to the nutrients in the feed while the feed was inside the silage process, because apparently good-looking haylage [was] put into the structure and then fed to cows [which] resulted in cows that were in poor nutritional condition and in a negative energy balance."    J.A. at 96.

15
Similarly, Dr. Thompson testified the herd's health problems stemmed from nutritional problems with the feed stored in the Harvestore silos.  Like Dr. Hall, Dr. Thompson believed the feed became nutritionally deficient because of fermentation problems in the Harvestore silos.

16
Lawrence Scott, an expert in animal nutrition, and William McGee, a farm management expert, testified it was their opinions that Taylor's herd's problems were caused by the silos.  They based their opinions on visits to the farm, reviews of farm records, lack of other diseases in the herd, and their prior experiences with Harvestore silos.  Scott testified that the Harvestore silos damaged silage by allowing it to be exposed to excessive amounts of oxygen, at excessively high temperatures, which lowered its nutritional value.  He noted Taylor's herd's milk production dropped almost immediately after it was fed from the Harvestore silos and increased after Taylor stopped using the silos.

17
Taylor testified that before he used the Harvestores, his herd produced 5,298 pounds of milk a month.  Thereafter, production dropped 2,268 pounds and never rose above 3,000 pounds again during the time he used the Harvestores.  By the fall of 1981, cows which had produced about 40 pounds of milk a day before May 1980, were producing only 12 to 14 pounds per day.  High-moisture corn he had kept in the Harvestore had become clumped with mold.  The haylage he had kept in another Harvestore was usually moist but had a sweet smell, in sharp contrast to the pungent, vinegary odor of silage kept in concrete silos.  As his herd's milk production continued to decrease, Taylor testified it became virtually impossible to have any of his cows conceive.  Taylor eventually dumped several thousand bushels of the high-moisture corn in the spring of 1982.  After that, he stopped using the Harvestore silos.

18
This appeal presents the following issues:  (1) did the district court err in failing to give effect to the disclaimer in the lease;  (2) did the Taylors establish reliance on the alleged misrepresentations;  (3) did the Taylors establish actual and proximate causation between the alleged misrepresentations and the alleged damages;  (4) did the Taylors proffer sufficient evidence to establish lost profits with a reasonable certainty;  and (5) did the district court err in submitting the issue of prejudgment interest to the jury?

II.
A.

19
Review of a district court's denial of a motion for a directed verdict or JNOV is whether the evidence, viewed in the light most favorable to the nonmoving party, raises a material question of fact for the jury.  Fite v. First Tennessee Prod. Credit Ass'n, 861 F.2d 884 (6th Cir.1988);  Frost v. Hawkins County Bd. of Educ., 851 F.2d 822, 826 (6th Cir.)  (quoting Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979)), cert. denied, --- U.S. ----, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988).  We must not pass on the credibility of witnesses, weigh the evidence, or substitute our judgment for that of the jury.  Frost, 851 F.2d at 826.

20
Our review of a district court's denial of a motion for a new trial or a remittitur is limited to whether the decision is within the district court's sound discretion.  Fite, supra;  Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1443 (4th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986);  Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 816 (6th Cir.1982).  We will not disturb a decision to deny a new trial or remittitur absent a clear showing of abuse of discretion.

B.

21
We begin our analysis by noting that many of the issues raised in this case have been addressed by this court before in Agristor Leasing v. Saylor, 803 F.2d 1401 (6th Cir.1986).  To the extent that issues in this case are similar to those in Saylor, the prior published opinion is controlling.  See Smith v. Pyro Mining Co., 827 F.2d 1081, 1088 n. 7 (6th Cir.1987) (Sixth Circuit tradition that reported panel opinions are binding upon subsequent panels), cert. denied, --- U.S. ----, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988);  Stone v. William Beaumont Hosp., 782 F.2d 609, 614 n. 4 (6th Cir.1986);  United States v. Eckman, 581 F.2d 587, 588 (6th Cir.1978) (per curiam);  Sixth Circuit Rule 24(b) (unpublished opinions only binding to establish res judicata, estoppel or law of the case in the present appeal).

22
AOSHPI argues the district court erred in failing to give effect to its "disclaimer of reliance."    AOSHPI attempts to distinguish its "disclaimer of reliance" from the "disclaimer of liability" in the Agristor lease in Saylor.    We find the claimed distinctions formalistic and ineffective in light of Saylor and Tennessee law, which gives no effect to disclaimers in the presence of fraud or negligent misrepresentations.  See Houghland v. Security Alarms & Sers., Inc., 755 S.W.2d 769, 773 (Tenn.1988);  Cooper Paintings & Coatings, Inc. v. S.C.M. Corp., 62 Tenn.App. 13, 20-21, 457 S.W.2d 864, 867-68 (1970).

23
AOSHPI argues it never represented the Harvestore silos to be oxygen free and, therefore, that Taylor should not be heard to claim he relied on representations that the silos would protect silage from oxygen.  Second, AOSHPI argues that the promises in its advertising material, flyers, and films regarding increased butterfat in dairy herds, lower feed costs, lower labor costs, and higher profits were mere sales puffery, and, in any event, Taylor is precluded from arguing reliance because he expressly disclaimed reliance in the lease.  We agree with the district court that Taylor produced enough evidence to raise jury questions of material fact.

24
AOSHPI's interoffice memoranda as far back as 1978 recognize a defective design in the Harvestore silos with regard to "oxygen-limiting," and resulting spoilage and secondary fermentation within the silo due to oxygen and high temperatures.  Despite this, AOSHPI's promotional literature pressed the advantages of Harvestore silos, telling purchasers they could "believe" in the Harvestore design.  But the reality, as AOSHPI knew, was that grain stored in Harvestore silos was subject to excessive spoilage and secondary fermentation because of design flaws.

C.

25
AOSHPI further argues Taylor never proved the Harvestore silos caused his herd's health problems.  Again, we find Taylor proffered sufficient proof to raise a jury question.  The two veterinarians who had treated Taylor's herd offered their expert opinions that the herd's health problems were caused by the nutritional deficiency of the feed stored in the Harvestore silos.  Neither veterinarian found any disease pattern or other problems in the herd which would have caused the health problems, significant decrease in milk production, inability to conceive and reproduce, and increased disease and death.  A nutritional expert testified that the Harvestore silos stored Taylor's feed in such a manner to cause it to become nutritionally deficient.  In addition, Taylor and one of his treating veterinarians testified to the condition of the feed when it was first stored in the silos, when it was removed from them, and its lack of resemblance to nutritionally sound feed stored in conventional silos.  The farm expert also testified that Taylor's herd's problems were caused by the silos.

D.

26
AOSHPI argues that Taylor failed to prove his lost net profits to a sufficient certainty.  It claims Taylor produced evidence as to lost gross revenue, but not net profits therefrom.  Taylor counters that he supplied substantial evidence of what additional expenses he would have incurred in earning the lost gross revenue.  Thus, the jury could subtract the amount of additional expenses from the lost gross revenue to arrive at the lost net profits.  We agree.  Taylor presented testimony regarding additional labor, utilities, and supplies that would have been required to produce the additional milk and generate the lost gross revenue.  Moreover, Taylor presented evidence such as income tax returns from which additional veterinarian expenses, utilities, supplies, and other farming expenses could have been calculated.  This evidence satisfies the Tennessee standard that damages such as lost net profits be calculated to a reasonable degree of certainty.  Cummins v. Brodie, 667 S.W.2d 759, 765 (Tenn.Ct.App.1983).

E.

27
AOSHPI also contests the award of prejudgment interest in this case.  Prejudgment interest in Tennessee as an element of damages is provided for in Tenn.Code Ann. Sec. 47-14-123 (1988), which states in part that prejudgment interest may be awarded "as permitted by the statutory and common laws of the state as of April 1, 1979, may be awarded by courts or juries in accordance with the principles of equity at any rate not in excess of a maximum effective rate of ten per cent (10%) per annum...."  Prejudgment interest is discretionary in the view of the finder of fact.  B.F. Myers & Son of Goodlettsville, Inc. v. Evans, 612 S.W.2d 912 (Tenn.Ct.App.1980).

28
Tennessee law permits the awarding of prejudgment interest on unliquidated claims for economic losses.  Coke v. United Transp. Union, 631 S.W.2d 142, 146 (Tenn.Ct.App.1982);  Thayer v. Wright Company, 50 Tenn.App. 515, 531, 362 S.W.2d 805, 812 (1961).  In Coke, supra, for example, a union member received a judgment and prejudgment interest based on an alleged loss of compensation stemming from a change in hearing procedures which resulted in the plaintiff's hearing fewer cases and receiving less pay.  The award of prejudgment interest was upheld despite the uncertainty as to how many hearings the plaintiff would have heard under the former procedures.  Seen in this light, AOSHPI's demand for chronological precision in calculating the time over which the prejudgment interest accrued has no basis in Tennessee law.  Moreover, from our review of the record, we note that the jury carefully considered the time frames within which it awarded prejudgment interest, and that at one point counsel for AOSHPI clearly indicated that he was satisfied with the jury's findings as to the manner in which the jury had determined the time frames.  T. XIX, page 74.

III.

29
For the above reasons, the judgment of the district court is AFFIRMED in all respects.

*
 Honorable Richard F. Suhrheinrich, United States District Judge for the Eastern District of Michigan, sitting by designation

1
 Dr. Maben Thompson, a treating veterinarian, testified that "unthrifty" cows look thin, depressed, and have poor, dull coats