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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

DRUG OFFENSES (120)

Also see Search and Seizure; Probation/Conditional probation of a drug dependent person; Treatment in Lieu of Conviction; Indictments and Complaints; Entrapment; Indigency; Sentencing; Probation; Forfeiture; Nuisance Abatement Actions.

Drug abuse; Possession

Trafficking in drugs

Counterfeit drugs

Paraphernalia

Other drug offenses

Testing to identify substances

Measurement of quantity

Proof of possession

Merger

Sentencing issues

Other issues

 

R.C. 2925.01 -- Definitions.

R.C. 2925.02 -- Corrupting another with drugs.

R.C. 2925.03 -- Trafficking in drugs.

R.C. 2925.04 -- Illegal manufacture of drugs or cultivation of marijuana.

R.C. 2925.05 -- Funding of drug or marijuana trafficking.

R.C. 2925.06 -- Illegal administration or distribution of anabolic steroids.

R.C. 2925.09 -- Offenses involving unapproved drugs; dangerous drug offenses involving livestock.

R.C. 2925.11 -- Possession of drugs.

R.C. 2925.12 -- Possessing drug abuse instruments.

R.C. 2925.13 -- Permitting drug abuse.

R.C. 2925.14 -- Drug paraphernalia offenses.

R.C. 2925.22 -- Deception to obtain a dangerous drug.

R.C. 2925.23 -- Illegal processing of drug documents.

R.C. 2925.31 -- Abusing harmful intoxicants.

R.C. 2925.32 -- Trafficking in harmful intoxicants.

R.C. 2925.33 -- Possessing nitrous oxide in motor vehicle.

R.C. 2925.36 -- Illegal dispensing of drug samples.

R.C. 2925.37 -- Offenses involving counterfeit controlled substances.

R.C. 2925.38 -- Convictions to be reported to professional licensing authorities.

R.C. 2925.51 -- Laboratory reports as evidence; requirements, violation.

R.C. 2921.36 -- Illegal conveyance of weapons or prohibited items into detention facility or institution.

R.C. 2951.041 -- Treatment in lieu of conviction.

R.C. Chapter 3719 -- Controlled substances.

Drug abuse; Possession

State v. Vanni, 182 Ohio App. 3d 505, 2009-Ohio-2295 – Oxycodone was mailed to the defendant‘s business address from Utah. He did not open the package before the police raided based on an anticipatory search warrant. Documents seized established prior dealings between the defendant and the shipper sufficiently to establish constructive possession.

Medina v. Szwec, 157 Ohio App. 3d 101, 2004-Ohio-2245 -- Ordinance making possession of less than 100 grams of marijuana an M-1, versus a minor misdemeanor under the Revised Code, held not to violate the home rule provision of the state constitution.

State v. Samatar, 152 Ohio App. 3d 311, 2003-Ohio-1639 -- Defendant got ten years after going to FedEx and taking delivery of a package containing khat bundles destined for a Somali wedding. Khat is not on the controlled substance schedules, but it contains cathinone and cathine which are. A new trial was not required though test results from BCI were inconsistent with the literature and the affidavit of an expert contacted after the trial. The schedules are deemed to give sufficient notice that possession of khat is illegal. The level of the offense is governed by the weight of the vegetation. Random sampling for testing is good enough. State was not required to prove that the quantity of khat involved would "have a stimulant effect."

State v. Slade (2001), 145 Ohio App. 3d 241 -- Constructive possession was not proven where marijuana was found in plain sight in the office area of a house shared by several people. The defendant was not in that room during the search, none of her belongings were there, no drugs or paraphernalia were found on her person or in her purse, and there were no indications she was present during drug trafficking by another occupant.

State v. Hill (1994), 70 Ohio St. 3d 25, 27-28 -- Landlord gave tenant permission to grow marijuana in basement for his personal use. When subsequently prosecuted for aggravated trafficking as an aider and abettor, landlord was entitled to raise the R.C. 2925.03(F) personal use defense.

State v. Teamer (1998), 82 Ohio St. 3d 490 -- Even a trace amount of a controlled substance may be the basis for a drug abuse conviction. Syllabus: "The quantity of a controlled substance is not a factor in determining whether a defendant may lawfully be convicted of drug abuse, in violation of R.C. 2925.11(A)."

State v. O'Neal (1996), 114 Ohio App. 3d 335 -- Whether a minute quantity of cocaine was sufficient to establish knowing possession was an issue for trial and not for a pretrial motion to dismiss.

State v. Lynch (1991), 75 Ohio App. 3d 518 -- Court finds no legislative intent that persons arrested with drug paraphernalia bearing the residue of a controlled substance only be charged with a paraphernalia violation. However dissent cites unreported cases which had previously held residue did not support a drug abuse conviction.

State v. Daniels (1985), 26 Ohio App. 3d 101 -- Trace amount of cocaine is sufficient for offense of drug abuse. Also see State v. Newsome ( (1990), 71 Ohio App. 3d 73, 77-78.

State v. Claytor (1993), 85 Ohio App. 3d 623 -- Possession conviction upheld where lump of cocaine was found on seat of an auto the defendant had been seated in, and was of a size it did not appear he could have been sitting on without noticing.

State v. Swearingen (1999), 131 Ohio App. 3d 123 -- The day after the defendant was arrested on drug charges, detective asked for a urine sample. Defendant refused. Detective obtained a warrant citing an informant's claim defendant regularly smoked crack. Test results led to possession charge. Fruits of search properly suppressed. Good faith does not save the search as information supplied was so lacking as to render official belief in its existence unreasonable.

State v. Lowe (1993), 86 Ohio App. 3d 749 -- Mere presence of metabolites of cocaine in the defendant's urine was insufficient circumstantial evidence as to the mental element of the offense of drug abuse, namely that the defendant knowingly used or possessed cocaine.

State v. Black (1997), 124 Ohio App. 3d 419 -- Ineffective assistance of counsel was rendered where counsel neglected to request an instruction on minor misdemeanor drug abuse as a lesser included offense to trafficking in marijuana, though the evidence warranted such an instruction. Counsel also improperly allowed prior offense of violence specification to be tried to the jury.

Niles v. Howard (1984), 12 Ohio St. 3d 162 -- Municipal ordinance providing a greater penalty for possession of marijuana than does the Revised Code, but keeps the offense a misdemeanor, is not in conflict with general law and is thus constitutional. See Article XVIII, Section 3, Ohio Constitution.

State v. Flesher (1990), 66 Ohio App. 3d 602 -- Applying Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), 494 U.S. 872, court finds defendant did not have a First Amendment right to smoke marijuana while driving because it "lifts the prayers into the heaven." At p. 604: "The Smith case therefore reduces appellant's arguments to a puff of smoke."

StState v. Weber (1984), 19 Ohio App. 3d 214, 217-218 -- Though possession of small quantities of marijuana ostensibly has been decriminalized, it is nonetheless a "conviction" subject to expungement.

State v. Collier (1991), 62 Ohio St. 3d 267 -- Syllabus: "R.C. 2925.11, which provides that a person who knowingly obtains, possesses or uses a controlled substance is in violation of the law unless he or she obtained the substance pursuant to a prescription issued by a practitioner, and the drug is in the original container in which it was dispensed to such person, is not void for vagueness."

State v. Taylor (Franklin County 1987), 41 Ohio App. 3d 57 -- Headnote: "The exception to the crime of drug abuse contained in R.C. 2925.11(B) for possession of a controlled substance pursuant to a prescription and in the original container must be construed liberally in favor of the accused, and if the time between taking the medicine and taking it from the container is reasonable under the circumstances, no crime is committed."

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Trafficking in drugs

State v. Nucklos, 121 Ohio St. 3d 332, 2009-Ohio-792 – Syllabus: "To convict a licensed health professional of trafficking in drugs under R.C. 2925.03(A), the state bears the burden of proving beyond a reasonable doubt the inapplicability or the licensed-health-professional exception in R.C. 2925.03(B)(1) by submitting evidence that the licensed health professional violated statutes or regulations that define the standard of care for dispensing controlled substances. (R.C. 2925.03(B)(1), construed.)" Thus regulatory compliance is not an affirmative defense. The state may prove noncompliance through records the doctor is required to keep.

State v. Ayers, 194 Ohio App. 3d 812, 2011-Ohio-3500 – Exchange of marijuana at a bus stop could have been either a sale (MM or M-3) or a gift (F-3 if near a school). Case was tried to the bench. Remanded for findings.

State v. Chandler, 109 Ohio St. 3d 223, 2006-Ohio-2285 -- Syllabus: "A substance offered for sale must contain some detectable amount of the relevant controlled substance before a person can be sentenced as a major drug offender under R.C. 2925.03(C)(4)(g)." Affirms State v. Chandler, 157 Ohio App. 3d 672, 2004-Ohio-3436. There the court of appeals held that no detectable quantity of the alleged controlled substance was fatal to both the trafficking charge and the major drug offender specification. But both the majority and dissenters in the Supreme Court indicate it does not affect the basic offense of offering to sell a controlled substance. Post-Foster, the ten year add on for major drug offenders is gone but the ten year mandatory sentence remains.

State v. Lozier, 101 Ohio St. 3d 161, 2004-Ohio-732 -- Syllabus: "The culpable mental state of recklessness applies to the offense of trafficking LSD "in the vicinity of a school" under R.C. 2925.03(C)(5)(b)." Defendant didn't know a remedial education program was offered at the Job and Family Services building 745 feet from his home. Trial court found that made the building a school and imposed strict liability.

State v. Nucklos, 171 Ohio App. 3d 38, 2007-Ohio-1025 -- Physician was charged with trafficking in drugs based on writing prescriptions for oxycontin. Licensed health professionals are exempted from such charges provided they act in accordance with specified portions of the code. Following OJI, the trial court instructed the jury that such compliance was an affirmative defense on which the defendant bore the burden of proof by a preponderance of the evidence. In fact it is an element the state must prove. Reversed. ¶57: "OJI is a respected and authoritative source of the law, but it is merely a product of the Ohio Judicial Conference and not binding on the courts." Mention of a "civil judgment" facing an MD was proper to explain motive for operating what the state claimed was a one day a week, out of town, cash only oxycontin practice. Mention of a shotgun found in the office was proper but use of records of other patients was not leading to reversal of illegal processing of drug documents convictions that had been merged with the trafficking counts.

State v. Jordan, 168 Ohio App. 3d 202, 2006-Ohio-538 -- Trafficking conviction was not supported by the evidence where the defendant was seen introducing a confidential informant to the person who was observed selling drugs to the informant, but merely stood by while the transaction took place. This was insufficient to establish aiding and abetting.

State v. Headley (1983), 6 Ohio St. 3d 475 -- Paragraph two of the syllabus: "The type of controlled substance involved in the crime of aggravated trafficking under R.C. 2925.03 is an essential element which must be included in the indictment, the omission of which cannot be cured by amendment under Crim. R. 7(D)." Also see State v. Wohlever (1985), 27 Ohio App. 3d 192 -- Indictment must be precise as to prohibited nature or classification of substance involved. State v. Reed (1985), 23 Ohio App. 3d 119 -- Necessary to prove existence of identity and classification of controlled substance and that any prior conviction used to enhance offense was for a "felony drug abuse offense." Also see State v. Shuttlesworth (1995), 104 Ohio App. 3d 281, 285-286.

State v. Arrington (1990), 64 Ohio App. 3d 654 -- Syllabus by the court: "Drug trafficking requires evidence of possession and either preparation for shipment, shipment, transportation, delivery, preparation for distribution or distribution with reason to believe the drugs were intended for sale or resale; the fact that the defendant was near a car, ran, and was arrested near drugs packaged for sale is not even circumstantial evidence of possession without evidence connecting appellant to those drugs."

State v. Scott (1982), 69 Ohio St. 2d 439 -- Syllabus: "A person can 'offer to sell a controlled substance' in violation of R.C. 2925.03(A)(1) without transferring a controlled substance to the buyer." (Case involved a tablets found not to contain any controlled substance.)

State v. Latina (1984), 13 Ohio App. 3d 182, 187 -- Court declines to endorse agent of the buyer defense. Where one is made culpable for being a link in the chain of supply, agency principles are inapplicable. Compare State v. McKinney (October 31, 1978), Franklin Co. App. No. 78AP-121, unreported (1978 Opinions 3103) which states the issue of aiding and abetting is to be submitted to the jury in such circumstances.

State v. Smith (1983), 14 Ohio App. 3d 366 -- Amendment of a complicity indictment to state quantity of controlled substance sold by principal offender, but not its identity, did not change the nature and identity of the offense.

State v. Ward (1993), 92 Ohio App. 3d 631 -- Providing an enhanced penalty for drug sales within 1000 feet of a schoolyard does not violate due process or equal protection.

State v. Brown (1993), 85 Ohio App. 3d 716 -- Because an elevated penalty is provided for trafficking in drugs within 1000 feet of a school, such proximity is an element of the offense. The jury must be instructed in accordance with the statutory definitions of "school" and "school premises" set forth in R.C. 2925.01(Q) and (R). Compare State v. Manley (1994), 71 Ohio St. 3d 342 where the defense did not litigate the proximity to a school element, and the court refused to reverse the conviction for not being supported by the evidence as a matter of plain error.

State v. Atlick (1992), 82 Ohio App. 3d 240 -- "Schoolhouse provision" upheld despite fact sale was made inside a private residence, to an adult, in a quantity too small to make resale likely, and where defendant did not know he was within 1000 feet of a school. Also see State v. Harris (1993), 89 Ohio App. 3d 147.

State v. Isreal (1993), 86 Ohio App. 3d 696, 699 -- School boundary refers to the land surrounding a school and not to the school building itself. Compare State v. Staples (1993), 88 Ohio App. 3d 359, 365-366 finding measurement from boundary line to boundary line not to be as precise as might be desired, but sufficient to create a jury issue.

State v. Melton (1990), 70 Ohio App. 3d 173 -- "Sting" operation did not go far enough to support convictions where defendant arranged to purchase marijuana through a snitch intermediary and arrest was made before any money changed hands. Specifically, the former R.C. 2925.03(A)(8) offense of providing funds for the purpose of obtaining drugs had not been completed and trafficking charge based on potential resale was too tentative to fall within the ambit of R.C. 2925.03(A)(5) and R.C. 3719.01(EE).

State v. Sway (1984), 15 Ohio St. 3d 112 -- Syllabus: "A physician who unlawfully issues a prescription for a controlled substance not in the course of the bona fide treatment of a patient is guilty if selling a controlled substance in violation of R.C. 2925.03." As to culpability of pharmacists see State v. Friedman (1991), 70 Ohio App. 3d 262.

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Counterfeit drugs

State v. Scott, 174 Ohio App. 3d 446, 2007-Ohio-7065 – There is no procedure for obtaining summary judgment in a criminal case even though it is clear the state may not prevail. According to State v. Chandler, 109 Ohio St. 3d 223, 2006-Ohio-2285, a substance must contain some detectible amount of the relevant controlled substance in order to support a major drug offender specification. Here it did not and the trial court dismissed the indictment. But a motion to dismiss may address only matters that may determined without weighing evidence such as may be introduced during trial.

State v. Lee (1994), 97 Ohio App. 3d 197 -- Trafficking conviction upheld even though the substance sold proved not to be cocaine. The state was only required to prove a knowing offer to sell a controlled substance. It was not required to prove either the identity of the substance or the defendant's knowledge of its actual identity. Also see State v. Milliner (1994), 98 Ohio App. 3d 262, 265-266 and dissent 271-276.

State v. Bazzy (1993), 86 Ohio App. 3d 546 -- Defendant who was otherwise adequately linked to a drug transaction not saved by the fact that the sheets of paper delivered tested negative for LSD.

State v. Mosley (1977), 55 Ohio App. 3d 178 -- Headnotes: "(1) Where one represents a non-narcotic substance as a drug prohibited by law and offers it for sale, his acts are in violation of R.C. 2925.03. (2) The legislature may constitutionally prohibit an offer to sell a controlled substance." Also see State v. Scott (1982), 69 Ohio St. 2d 439; State v. Patterson (1982), 69 Ohio St. 2d 445.

State v. Patterson (1986), 35 Ohio App. 3d 14 -- Headnotes: "(1) The statutory agent of a corporation is not criminally liable for the act of his corporation solely because of his agency. (2) R.C. 2925.37(B), trafficking in counterfeit controlled substances, is not unconstitutionally overbroad on its face." Also see State v. Airway Distributors (1986), 34 Ohio App. 3d 176.

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Paraphernalia

State v. Eppinger, 162 Ohio App. 3d 795, 2005-Ohio-4155 -- No home rule violation found in charging the defendant with possession of drugs based on residue found within a crack pipe. The state is not limited to the more specific offense of possessing drug paraphernalia. Whether or not the residue was sufficient for the defendant to knowingly possess is an issue of fact to be determined at trial and not through a pretrial motion.

Record Revolution No. 6 v. City of Parma (6th Cir. 1989), 638 F. 2d 916 -- Municipal ordinances patterned after the DEA Model Drug Paraphernalia Act concluded to have used a vague and overbroad definition of paraphernalia which failed to distinguish lawful and unlawful uses..

State v. Glowacki (1999), 131 Ohio App. 3d 640 -- Store clerk was convicted of selling, or possessing with a purpose to sell, objects he knew would be used as drug paraphernalia. Officer testified that, based on his experience, only a few items had a use other than as drug paraphernalia. Defense expert testified pipes were suitable for use with ordinary tobacco products. Conviction reversed as based on insufficient evidence and as against the manifest weight of the evidence.

Whitehall v. Ferguson (1984), 14 Ohio App. 3d 434 -- Headnotes: "(1) Application of the word 'designed' in an ordinance prohibiting the sale of paraphernalia designed for use with controlled substances encompasses an item that is principally used with controlled substances by virtue of objective features, i.e., features designed by the manufacturer. (2) An ordinance which prohibits any person from selling or possessing for sale drug paraphernalia 'knowing' that the items will be used with controlled substances requires an objective standard in determining the seller's knowledge of the buyer's intent or knowledge."

State v. Boone (1995), 108 Ohio App. 3d 233 -- Baggie containing a small quantity of marijuana or residue qualified as drug paraphernalia. At p. 238: "Though the result - that the possession of the drug itself is a minor misdemeanor, while possession of the bag in which it is carried is a misdemeanor of the fourth degree - is absurd, this particular absurdity must have been intended by the legislature, and we cannot depart from the plain meaning of the statute."

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Other drug offenses

In re E.D., 194 Ohio App. 3d 534, 2011-Ohio-4067 -- A former Akron ordinance proscribing loitering for drug activity was found unconstitutionally vague, overbroad, and enforced in a discriminatory way in Akron v. Rowland (1993), 67 Ohio St. 3d 374. The ordinance was revised eliminating some of the criticized language and adding further requirements. The new version remains vague and overbroad as the changes failed to remedy the problems created by the former ordinance.

State v. Cargile, 123 Ohio St. 3d 343, 2009-Ohio-4939 – Syllabus: "A person who is taken to a detention facility after his arrest and who possess a drug of abuse at the time he enters the facility meets the actus reus requirement for a violation of R.C. 2921.36(A)(2)." Offense is not limited to those who voluntarily enter a detention facility. Weight given the fact the defendant was asked if he had contraband beforehand.

State v. Gragg, 173 Ohio App. 3d 270, 2007-Ohio-4731 – Police stopped a Jeep followed from a farm where anhydrous ammonia was stored. A punctured can of starter fluid and other materials were found in the car that might be used to manufacture methamphetamine. The person who actually took the ammonia pleaded guilty. Appellant, who was highly intoxicated, and possibly just along for the ride, was convicted of illegal possession of chemicals for the manufacture of drugs and breaking and entering. Affirmed, based on the compromising circumstances. Court blows off an Evid. R. 702 challenge of the use of a "Dragger pump" to sniff for ammonia by characterizing a deputy‘s testimony as a matter within his training and experience.

State v. Peeler, 99 Ohio St. 3d 151, 2003-Ohio-2903 -- Nurse employed at a nursing home was charged with illegal processing of drug documents. Trial court erroneously excluded proof of use sheets and medication administration reports. Such records were required by Chapter 3719. Delivery of drugs to patient includes handing over medication delivered by a pharmacy. "Administer" includes only direct application of a drug.

State v. Sowry, 155 Ohio App. 3d 742, Miami App. No. 02CA39, 2004-Ohio-399 -- The defendant was improperly convicted of conveying drugs into a detention facility where they were found on his person upon being arrested and booked. Applying R.C. 2901.21(A), his presence was not a voluntary act. Dishonestly responding "no" when asked if he had drugs did not make him culpable.

State v. Barcus (1999), 133 Ohio App. 3d 409 -- Defendants sold balloons filled with nitrous oxide at Gradfest in Athens. (1) No contest pleas failed to preserve their fact based issues for appeal. (2) Defendants were subject to prosecution for possession of a dangerous drug for retail sale, even though the harmful intoxicants statute specifically reaches the same conduct.

State v. Reynolds, 138 Ohio App. 3d 578, 2002-Ohio-3811 -- R.C. 2925.31, proscribing the abuse of harmful intoxicants, is not unconstitutionally vague or overbroad.

Akron v. Rowland (1993), 67 Ohio St. 3d 374 -- Akron ordinance proscribing loitering for the purpose of engaging in drug related activity held to be impermissibly vague and overbroad in violation of due process guarantees of the state and federal Constitutions. Compare Columbus City Code Sec. 2311.08. Also see Cleveland v. Stephens (1994), 93 Ohio App. 3d 827 (applying Rowland to a Cleveland ordinance, previously upheld, but now found vague and overbroad); Cleveland v. Branch (2000), 110 Ohio Misc. 2d 27; State v. Bolds (1994), 96 Ohio App. 3d 483 (Rowland not applied retroactively in postconviction action brought by defendant who pleaded guilty without challenging the constitutionality of the ordinance.)

State v. Ball (1991), 72 Ohio App. 3d 43, 51-52 -- Possession of syringes may be prosecuted only as possession of drug abuse instruments and not as possession of criminal tools. Also see State v. Chandler (1989), 54 Ohio App. 3d 92.

State v. Mateo (1991), 57 Ohio St. 3d 50 -- Since a "snort tube" is not a hypodermic or a syringe and thus a "drug abuse instrument," possession may be prosecuted under the possession of criminal tools statute. Also see State v. Wilson (1991), 77 Ohio App. 3d 718 -- Similar conclusion as to baggies.

State v. Wiley (1987), 36 Ohio Misc. 2d 20 -- Headnotes: "(1) In order to establish that one 'permitted' drug abuse, a violation of R.C. 2925.13, it must be proved beyond a reasonable doubt that the defendant exercised control over the subject premises and had knowledge that the premises were being used for illegal purposes. (2) A defendant-wife who exercises only a shared control over the premises with her husband and is not the dominant person in their relationship may not be convicted of permitting drug abuse when her husband's illegal drug activities constitute the drug abuse in question and the wife's failure to act is the basis for the charge."

State v. McCarthy (1992), 65 Ohio St. 3d 589 -- Syllabus: "In the prosecution of a physician for alleged violations of R.C. Chapter 2925, a trial court commits reversible error when it refuses to give a requested jury instruction that permits the jury to consider the physician's subjective state of mind, as well as objective criteria, in determining whether the physician's actions (prescribing Ritalin and other scheduled drugs) were performed in the course of the bona fide treatment of a patient. (R.C. 2925.03[B], construed; State v. Sway [1984], 15 Ohio St. 3d 112...followed.)"

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Testing to identify substances

Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527 – Certificates of state laboratory analysts were used to identify drugs at trial, over the defendant‘s objection. Applying Crawford, held to be a denial of confrontation. Defense ability to subpoena the analyst is no substitute for the right to confront witnesses, since doing so would be useless if the witness was unavailable or refused to appear.

Garr v. Warden, Madison Correctional Institution, 126 Ohio St. 3d 334, 2010-Ohio-2449 – In State v. Chandler, 109 Ohio St. 3d 223, 2006-Ohio-2285 the Supreme Court held that a substance offered for sale must contain some detectible amount of the relevant controlled substance before the defendant may be sentenced as a major drug offender. Federal court in a habeas action certified the question whether this extends to cases where a substance offered for sale was not recovered and tested. It does not. Chandler is limited to case where there was testing and the supposed controlled substance was not detected.

State v. Banks, 182 Ohio App. 3d 276, 2009-Ohio-1892 – Defendant was indicted for possession of crack. Testing only established that the substance in question was cocaine. There was no further test to identify it as crack. Evidence did not support conviction for possession of crack. State never sought to amend indictment to correspond to the proof, so there is no discussion of whether amendment would have changed the name or identity of the offense. Nor does it address whether possession of cocaine is a lesser included offense to possession of crack (which would turn on the statutory definition of the two drugs).

In re D.F., 193 Ohio App.3d 78, 2011-Ohio-1004 – (1) Juvenile in detention center made statements during initial on the spot investigation of a situation. Miranda warnings were not required unless there was a greater than usual restriction of the juvenile’s freedom of movement within he institutional setting. (2) Identity of drug was more or less established at suppression hearing through hearsay. Trial immediately followed. State failed to separately establish identity of substance at that phase of proceedings. Fact that pill was handed out by a nurse doesn’t establish it was a controlled substance. Pill apparently was defendant’s own medication, cheeked, and then given to another resident. Conviction reversed.

State v. Brown, 170 Ohio App. 3d 235, 2007-Ohio-179 -- Small quantity of crack was destroyed after testing. Court erroneously dismissed charge as the destroyed evidence was not inherently exculpatory, and claims advanced as to how it was potentially exculpatory are deemed not to be material to the defendant's rights or to his guilt or innocence.

State v. Bullitt, 166 Ohio App. 3d 365, 2006-Ohio-2304 -- Conviction was not supported by the evidence where there was no testimony as to analysis of the purported cocaine. Though different grounds were offered in support of the Rule 29 motion, reversed as plain error.

State v. Bates, Allen App. No. 1-03-83, 2004-Ohio-2219 -- Lab report omitted notice that the accused is entitled to demand the testimony of the person signing the report. Omission rendered the report inadmissible.

In re Bennett (1999), 134 Ohio App. 3d 699 -- Investigator employed by the prosecutor's office could be qualified as an expert in the identification of marijuana, despite lack of a background in chemistry. R.C. 2925.51 pertaining to the admissibility of lab reports unless the defense demands the person performing the test testify does not require all testing be done by a qualifying lab.

State v. McKee 91 Ohio St. 3d 293, 2001-Ohio-41 -- Proof of the identity of the substance involved was limited to lay opinion of the teenagers who allegedly smoked marijuana in a car with the defendant. Syllabus: "The experience and knowledge of a drug user lay witness can establish his or her competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established." Conviction reversed as such a foundation had not been established. Compare State v. Garrett, 149 Ohio App. 3d 142, 2002-Ohio-4356 concluding lay opinion was not sufficient to identify counterfeit LSD.

State v. Wilson, 156 Ohio App. 3d 1, 2004-Ohio-144, ¶19-26 -- Manifest weight claim rejected despite scientific examiner's testimony she had not determined substance to be crack within a reasonable degree of scientific certainty. The state "does not have to prove that the cocaine found in the sample is in the base form, only that the substance contains cocaine and in a form that looks like 'individual use' rocks or pebbles."

State v. Reese (1978), 56 Ohio App. 3d 278 -- Headnote 1: "The language of R.C. 2925.51(B), providing that copies of laboratory reports concerning substances used as the basis of criminal charges shall be served, by the prosecuting attorney, on the attorney of record for the accused, is mandatory, and a failure to comply with such requirement will render a report inadmissible in evidence."

State v. Rodriquez (1990), 66 Ohio App. 3d 5, 16-17 -- Notarized statement required of signor of report must be attached for report to be admissible.

State v. Schilling (1989), 65 Ohio App. 3d 154, 160 -- State may still take advantage of R.C. 2925.51 even though analyst is called as a witness.

State v. Fleming (May 10, 1983), Franklin Co. App. No. 82AP-813, unreported (1981 Opinions 1313, 1317-1319) -- No confrontation violation found in operation of R.C. 2925.51 as defendant may still request analyst testify.

State v. Riley (1990), 69 Ohio App. 3d 509 -- Syllabus by the court: "(1) R.C. 2925.51(E) requires that the accused be permitted the opportunity to conduct an independent analysis of an alleged controlled substance or be present at the state's analysis if a sample cannot be preserved for the accused. (2) The failure of the state to preserve a portion of an alleged controlled substance for the accused's analysis warrants the court's dismissal of an indictment for drug abuse." Compare State v. Purdon (1985), 24 Ohio App. 3d 217 which points out that this provision only applies to violations of Chapter 2925 or Chapter 3719.

United States v. Ortiz (5th Cir. 1980), 610 F. 2d 280 -- Testing was sufficient to identify the single isomer of cocaine illegal under federal law though comparative analysis was not performed for each synthetic isomer of cocaine.

State v. Mattox (1983), 13 Ohio App. 3d 52 -- Testing of random samples of tablets was sufficient to establish identity of all seized tablets.

State v. Maupin (1975), 42 Ohio St. 2d 473 -- Paragraph two of the syllabus: "The admission in evidence of the testimony of a Cincinnati police officer that a substance was marijuana was not an abuse of discretion where the officer had 14 years experience as a member of the vice squad of the Cincinnati Police Department, had one and a half years experience as an undercover agent for the Federal Bureau of Narcotics, had made hundreds of arrests, including those for drug violations, and, during the course of drug investigations, he had occasion to see and observe marijuana."

State v. Allen (1999), 102 Ohio Misc. 2d 7 -- Residue in pipe was basis for possession of crack cocaine charge. Testing determined substance was cocaine, but did could not distinguish whether it was crack or powder. Defendant acquitted.

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Measurement of quantity

State v. Huber, 187 Ohio App. 3d 697, 2010-Ohio-2919 – Appellate counsel was ineffective for failing to challenge proof that the defendant was in possession of 5-50 times the bulk amount of fentandyl patches. For a schedule II drug the bulk amount is 20 grams or five times the maximum daily dosage. The only relevant testimony was by a police officer who said the daily dosage was two patches. Maximum daily dose may be proven by (1) stipulation, (2) expert testimony as to what a standard pharmaceutical manual prescribes, or (3) by a properly proven copy of the manual itself. Evidence supports conviction at the lowest level of Schedule II drug possession.

State v. Gilliam, 192 Ohio App. 3d 145, 2011-Ohio-26 – Police borrowed two roughly equal sized packages of cocaine from another law enforcement agency to use during a controlled buy. Together they weighed 2,375.20 grams. The defendant bought one of the packages and was convicted of possession of cocaine in an amount equal to or exceeding 1,000 grams. Because the lab technician did not weigh the contents of the package purchased without its wrapping, conviction was against the manifest weight of the evidence. Wrappings included duct tape, and weight of the cocaine alone could have been less that 1,000 grams.

State v. Skorvanek, 182 Ohio App. 3d 615, 2009-Ohio-1709 – Defendant tossed a bottle of pills from his car as he was being pulled over for a traffic violation. Bottle contained four kids of oxycodone pills and other drugs. He was charged with F-2 possession, based on more than five times the bulk amount, but less than fifty. Failure on the part of the state‘s expert to establish maximum daily dose and bulk amount through reference to a "standard pharmaceutical reference manual" means the evidence is sufficient to support conviction only on the least degree of the offense.

State v. Cejas, 147 Ohio App. 3d 263, 2002-Ohio-126 -- Postconviction petitioner again tries to advance the claim weight did not exceed 100 times bulk due to water in compound or contamination by water vapor. Weight was an issue for the jury. What constitutes the bulk amount is a legal question. Petitioner unsuccessfully claimed Apprendi v. New Jersey (2000), 530 U.S. 466 recognized a new federal or state right that applies retroactively, thus satisfying one of the conditions for late filing of a postconviction petition. Court holds petition was properly dismissed as weight of the drugs involved was always a matter for the jury to determine.

State v. Warden, Wood App. No. WD-03-065, 2004-Ohio-6306, ¶43-44 -- Defendant agreed to deliver a quarter ounce of cocaine immediately and an additional quarter ounce within a short period of time. Since the deliveries were a part of the same agreement, the weights could be combined to increase the degree of the offense.

State v. Wolpe (1984), 11 Ohio St. 3d 50 -- Though R.C. 3719.01(Q) excluded mature stalks and sterilized seeds from the definition of marijuana, the police lab is not required to separate out stalks and seeds before weighing the seized marijuana. Stalks and seeds are excluded from the gross weight only if they have already been separated from the non excluded portions of the plant. Also see State v. Jarrells (1991), 72 Ohio App. 3d 730. For discussion of previous case law, see State v. Radebaugh (1982), 5 Ohio App. 3d 152.

State v. Williams (1996), 117 Ohio App. 3d 488, 492-494 -- Police intercepted one kilo package of cocaine, but substituted 800 gram "dummy kilo" before delivery to defendant's agent. Degree of felony depends on original weight. Otherwise mens rea might be measured by substituted amount in excess of what defendant intended to possess.

State v. Brown (1995), 107 Ohio App. 3d 194, 202 -- For purposes of determining weight, the presence of any cocaine means the entire quantity counts, even though the substance was heavily cut.

State v. Ospina (1992), 81 Ohio App. 3d 644, 652-653 -- Defendant was convicted of sale of one kilo of cocaine, an amount equal to or exceeding 100 time the bulk amount. Since the amount delivered was short by ten grams, conviction reduced to lesser offense. Had defendant actually negotiated the sale, and not merely been the delivery man, result would have been different.

State v. Mattox (1983), 13 Ohio App. 3d 52 -- If a controlled substance is in the form of a tablet, it is reasonable to infer that a tablet is a unit dose.

State v. McCoy (1989), 63 Ohio App. 3d 644 -- Though rocks of cocaine may vary in weight and size, each constitutes a unit dose. Definition of a bulk amount by either weight or number of unit doses is in the disjunctive. State must prove either, but not both. Also see State v. Howell (1981), 5 Ohio App. 3d 92.

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Proof of possession

State v. Kingsland, 177 Ohio App. 3d 655, 2008-Ohio-4148 – Defendant was a passenger in a pickup truck owned by a third party. The truck was stopped for equipment violations, and eventually materials related to the manufacture of methamphetamine were discovered in the bed and the cab. The defendant appeared nervous, though this might be attributed to reasons other than guilty knowledge. When asked what was in the back of the truck he said, "It ain‘t mine." Evidence was insufficient to establish constructive possession. Material was not in plain view to an occupant of the vehicle, and knowledge such materials were related to meth manufacture could not be imputed to the defendant. Brief argued that the court‘s denial of a prosecution request for an instruction on constructive possession meant that was not a viable theory of culpability upon appellate review, citing United Sates v. Booker (2005), 543 U.S. 220, 230. Claim sidestepped by finding the instruction given reached constructive possession.

State v. Ben, 185 Ohio App. 3d 832, 2010-Ohio-238 – Police executed a warrant at the home of a suspected marijuana dealer. The defendant and the suspect were in the living room watching “Scarface” with the suspect’s two year old and a tray of marijuana between them and the TV. Both men were charged with trafficking in Ecstasy and cocaine found elsewhere in the house. The state was erroneously allowed to introduce evidence that the defendant had twice before been present when a raid on someone else’s place turned up Ecstasy. None of the purposes listed in Evid.R. 404(B) were served. ¶21: “Although his stated reason for being there (to smoke marijuana) and his explanation of the $1,220 dollars in his pocket were unbelievable, that does not provide a door through which the state may introduce the prior incidents of the defendant being found in the same place as MDMA.”

State v. Mitchell, 190 Ohio App. 3d 676, 2010-Ohio-5430 – Officers stopped car driving with headlights off. Front seat passenger bailed and discarded a gun. Defendant was in the back seat. Marijuana was in the seatback pocket inches from where he was seated. State failed to prove constructive possession. Window tint blocked view of movements within the car. Nothing was said about an odor of marijuana. Mere proximity does not establish constructive possession. Defendant discharged.

State v. Williams, 190 Ohio App. 3d 645, 2010-Ohio-5259 – Plainclothes officer followed defendant to a motel room and watched the room waiting for U.S. Marshals to arrive. Cocaine base was in plain view. A woman was in the room when officers entered and the room was registered to a woman. Defendant’s prints were found in the room, including on two Pyrex measuring cups. Evidence was sufficient to establish constructive possession.

State v. Jones, Lucas App. No. L-00-1231, 2003-Ohio-219 -- Marijuana cultivation conviction was not supported by the evidence. Defendant was purchasing property on land contract and plants were in plain view, but his visits to the property were infrequent and others had access.

Cincinnati v. McCartney (1971), 30 Ohio App. 2d 45 -- Possession not established where defendant was seated six feet from growing marijuana plants in an apartment not rented or occupied as living quarters by him. (Upon execution of search warrant police had arrested everyone in the apartment.)

State v. Haynes (1971), 25 Ohio St. 2d 264 -- Paragraph two of the syllabus: "Where an accused is charged with possession of narcotics for sale, and the only evidence of his possession for sale is (1) that in a police search of the lessee's premises the narcotics were discovered in the general living area of the premises which the accused occupied jointly with three other persons, and, (2) that the accused had not been present on the premises for one week, such evidence is not sufficient to establish that the accused had possession of the narcotics for sale."

State v. Boyd (1989), 63 Ohio App. 3d 790 -- Proof of possession sufficient where drugs were in plain view in defendant's apartment, contradicting girlfriend's claim defendant was unaware of her drug use.

State v. Pumpelly (1991), 77 Ohio App. 3d 470 -- Conviction reversed where inadmissible hearsay statement of defendant's brother was only evidence linking defendant to cocaine seized during search of her apartment while she was absent.

State v. Williams (1996), 117 Ohio App. 3d 488, 492-494 -- Conviction upheld where defendant's agent went to post office to pick up parcel containing cocaine, and was arrested before it could be delivered to him. "Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession."

State v. Thomas (1995), 107 Ohio App. 3d 239 -- Drugs were found in a briefcase in the trunk of a car belonging to a third party. Possession by the defendant was sufficiently established through a traffic citation issued to him found inside, and by his fingerprints being found on items in the briefcase.

State v. Mann (1993), 93 Ohio App. 3d 301, 308-309 -- "A person has constructive possession of a thing or substance when he is able to exercise dominion or control over it...Ownership of the contraband need not be established. A person may indeed control or possess property belonging to another. The Supreme Court has held that knowledge of illegal good on one's property is sufficient to show constructive possession....Where the defendant neither owns, leases nor occupies the premises, his mere presence in an apartment in which drugs and criminal tools are found is insufficient evidence of his possession of the contraband..."

State v. Cola (1991), 77 Ohio App. 3d 448 -- "Constructive possession" was sufficiently established where drugs were found behind the passenger seat of a truck the defendant admitted owning, that he was seen operating alone, and which no one else had access to between that time and the execution of a search warrant.

State v. Pruitt (1984), 18 Ohio App. 3d 50, 58 -- Constructive possession sufficiently established where drug was found in a form ready for injection within a foot of the defendant and lessee of apartment testified drug was not his.

State v. Chapman (1992), 73 Ohio App. 3d 132, 138 -- Court states that the greater the quantity involved, the more likely it is that possession is "knowing."

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Merger

State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625 -- Paragraph one of the syllabus: ―In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import. (State v. Rance (1999), 85 Ohio St. 3d 632, 710 N.E. 2d 699, clarified.) As applied to the drug offenses at issue, possession and trafficking based on sale or offer to sell do not merge, because one may offer to sell without possession and one may possess without an intent to sell. Possession and trafficking premised on preparation for shipment, shipment, transport, delivery etc. do merge, since any of these alternatives requires possession. But trafficking premised on shipment, etc. and trafficking premised on sale or offer to sale do not merge, as the latter does not require actual possession. Also see State v. Fritz, 182 Ohio App. 3d 299, 2009-Ohio-2175; State v. Goodson, 192 Ohio App. 3d 246, 2011-Ohio-722, ¶34-39.

State v. Brown, 186 Ohio App. 3d 437, 2010-Ohio-324 – Separate possession counts were premised on seizure of .46 grams of cocaine in a hotel room and a video showing the defendant smoking crack earlier in the evening. Trial court erroneously imposed consecutive sentences. ¶12: “In this case we find that both counts of possession of cocaine were committed with a single animus: to smoke crack cocaine. On the night of August 1, 2008, appellant rented a motel room with a few friends, equipped with crack cocaine, crack pipes, and an array of additional drug paraphernalia. There is no evidence to indicate that appellant planned to sell the remaining .46 grams of crack cocaine or to do anything other than continue to use it with his companions.” The defendant had to possess the unused portion at least momentarily before use.

State v. Creech, 188 Ohio App. 3d 513, 2010-Ohio-2553 – After discussion of recent Supreme Court decisions on merger the court concludes illegal assembly or possession of chemicals for the manufacture of drugs and illegal manufacturing don’t merge.

State v. Ligon, 179 Ohio App. 3d 544, 2008-Ohio-6085 – Applying State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256 and State v. Sessler, 119 Ohio St. 3d 9, 2008-Ohio-3180, drug case verdict forms did not include findings establishing a higher degree of the offenses charged. "As charged in the indictment is not sufficient" even though that recitation is acceptable in judgment entries. Notwithstanding the reduction in degree of offense on this basis, separate F-5 counts premised on the sale of powder and crack cocaine during the same transaction do not merge because they were still committed "separately."

State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937-- (1) ¶24-38 -- Defendant claimed acquittal on a crack possession charge at his first trial barred subsequent prosecution on any offense involving the same quantity of drug. Following Rance allied offense of similar import analysis, possession and trafficking are distinguishable under Blockburger. At ¶37: "Were it possible to sell or offer to sell without possessing the drug we would have a difficult time reconciling Rance with common sense. But the unique juxtaposition of the elements here gives us no problem." (2) ¶39-42 -- Ohio's statutory scheme for punishing major drug offenders does not violate double jeopardy.

State v. Johnson (2000), 140 Ohio App. 3d 385, 390 -- Possession and trafficking in drugs are not allied offenses of similar import.

State v. McIntosh (2001), 145 Ohio App. 3d 567, 575-576 -- Possession and trafficking counts based on the same quantity of marijuana do not merge, but counts charging possession of the same quantity on different dates do merge. See dissent.

State v. Oliver (1995), 101 Ohio App. 3d 587, 595-598 -- Aggravated trafficking premised on sale and conveyance of drugs into a detention facility are allied offenses of similar import. Aggravated trafficking premised on preparation for shipment etc. and conveyance are not.

State v. Nievas (1997), 121 Ohio App. 3d 451, 457-458 -- Permitting drug abuse in a car, and possession of the same car as a criminal tool are allied offenses of similar import.

State v. Powell (1993), 87 Ohio App. 3d 157 -- Court finds possession and trafficking in a controlled substance, when premised upon preparation for shipment, transportation, delivery or distribution through a sale, not to be allied offenses of similar import. Appears to be in conflict with State v. Roberts (1980), 62 Ohio St. 2d 170. Also see State v. Hankins (1993), 89 Ohio App. 3d 567.

State v. Lundy (1987), 41 Ohio App. 3d 163 -- Aggravated robbery and theft of drugs using a firearm may be allied offenses of similar import.

State v. Mughni (1987), 33 Ohio St. 3d 65 -- Syllabus: "The offenses of knowingly selling or offering to sell a controlled substance...and knowingly selling or offering to sell a counterfeit controlled substance...are not allied offenses of similar import..." For criticism of this decision see State v. Byrd (1993), 86 Ohio App. 3d 679, 681-683.

State v. Thrower (1989), 62 Ohio App. 3d 359 -- Predicate drug offenses do not merge with offense of engaging in a pattern of corrupt activity.

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Sentencing issues

Also see Forfeiture

State v. Hines, 193 Ohio App. 3d 660, 2011-Ohio-3125 – Inmate serving lengthy drug sentences hoped to take advantage of State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256 holding verdict forms must clearly establish the degree of the offense. Claim was not raised in initial appeal, nor was it tacked on to a post-Foster de novo resentencing and appeal. Claim is barred by res judicata in an appeal from a further resentencing to add postrelease control. A Pelfrey claim by itself does not render a judgment void.

State v. Ward, 187 Ohio App. 3d 384, 2010-Ohio-1794 – Defendant sentenced to prison for trafficking in heroin indicated she was unemployed, provided sole support for two children, had a slipped disk, and in the future would be unable to work through a temp agency because of the felony conviction. Under these circumstances the court was obliged to conduct a hearing on her ability to pay a mandatory fine. Furthermore, counsel was ineffective for failing to file the affidavit of indigency she had filed out. Original judgment entry set forth a one year mandatory term of imprisonment. Once the case was on appeal that court lost jurisdiction to remedy that mistake through a nunc pro tunc entry.

State v. Dillard, 173 Ohio App. 3d 373, 2007-Ohio-5651, ¶99-100 -- Post-Foster, the only statutory language permitting additional terms for major drug offenders has been excised. Thus such terms may not be imposed. Court agrees with the dissent in State v. Adams, Lake App. No. 2006-L-114, 2007-Ohio-2434.

Dillon v. United States (2010), 130 S.Ct. 2683 – Changes in the federal sentencing guidelines regarding powder and crack cocaine applied retroactively. Dillon benefited from the maximum two-lever reduction but asserted Booker applied allowing the court to further reduce his sentence. Held that the type of modification provided for is more limited than the initial sentencing decision.

Freeman v. United States (2011), 131 S.Ct. 2685 – Modification of sentences initially based on a distinction between crack and ordinary cocaine is available even when the plea bargain specified an agreed sentence.

State v. Taylor, 113 Ohio St. 3d 297, 2007-Ohio-1950 -- Syllabus: "An attempted possession of illegal drugs is a drug abuse offense, and an individual convicted of an attempted drug abuse offense is subject to the mandatory sentencing provisions of R.C. 2925.11." Majority reaches this conclusion by deeming the attempt statute a general provision and the drug abuse statute a specific provision, and thus controlling. Dissent views attempt as a separate offense. Thus the defendant is not subject to mandatory time and may be granted judicial release. Matters complicated by the fact the defendant began by challenging the voluntariness of his plea and the prosecutor is advancing the interpretation advocated by the dissent.

State v. Elkins, 148 Ohio App. 3d 370, 2002-Ohio-2914 -- The additional sentence which may be given major drug offender does not violate due process. Apprendi v. New Jersey (2000), 530 U.S. 466 distinguished on the basis that major drug offender status rests on the jury's finding the defendant possessed a quantity equaling or exceeding 100 time bulk. Though R.C. 2941.1410(B) leaves the determination of major drug offender status to the court, R.C. 2925.11(C)(1)(e) makes such status automatic based on quantity. The latter is deemed controlling because it is a specific provision with an effective date after that of the general provision. Also see State v. Elkins, 156 Ohio App. 3d 281, 2004-Ohio-842 -- Case remanded a second time based on error in determining whether risk of harm to officers supports imposition of an additional five years for being a "major drug offender."

State v. Trembly (2000), 137 Ohio App. 3d 134, 142-143 -- The Cuyahoga County Court of Appeals interprets the proviso in R.C. 2929.14(C) "except as provided...in Chapter 2925. of the Revised Code" to create with respect to drug cases a blanket exemption from the requirement the court make findings in support of the maximum sentence. Note: This is incorrect, as the actual reference is to the pattern within the drug statutes of deviating from the standard presumptions for or against imprisonment, for example directing that a fourth degree felony drug offense be sentenced in accordance with the considerations applicable to third degree felonies. For a case calling for findings to be made see State v. Weaver (2001), 141 Ohio App. 3d 512.

State v. Rice, Hamilton App. No. C-020464, 2003-Ohio-1016 -- To revoke community control of a felony drug offender R.C. 2929.13(E)(2)(a) requires finding either: (1) the offender has continued to use drugs after reasonable participation in a drug treatment program, or (2) imprisonment is consistent with the general purposes of sentencing set forth in R.C. 2929.11.

State v. Chamblin, Adams App. No. 02CA753, 2004-Ohio-2252 -- Failure to instruct on the element of weight, elevating possession of marijuana to a felony, means conviction was for a minor misdemeanor. This in turn leads to reversal of racketeering count. Defendant did not have to object to omission.

State v. Markusic, 136 Ohio Misc. 2d 31, 2003-Ohio-7372 -- As long as the defendant is enrolled in an intervention in lieu of conviction program, his property may not be forfeited. If he completes the program and charges are dismissed the property cannot be forfeited. If he fails, conviction may be entered on the guilty plea and the property may be forfeited.

State v. Calhoun (1981), 2 Ohio App. 3d 472 -- When a sentence of actual incarceration is required, the court may still permit sentences to be served concurrently.

State v. Patterson (1998), 82 Ohio St. 3d 524 -- Syllabus: "A sentence of actual incarceration mandated by former R.C. 2925.03 may run consecutively to or concurrently with a definite term of incarceration pursuant to R.C. 2929.11. However, the combined sentence may not exceed the maximum term of incarceration provided by former R.C. 2929.11.

State v. Thompkins (1996), 75 Ohio St. 3d 75 -- Court rejects due process challenge to the mandatory license suspension required upon conviction of drug offenses, even if an auto has not been used in the commission of the crime, since the suspension is rationally related to goals of protecting other drivers, deterring drug use and punishing the offender. Equal protection attack rejected by finding a rational basis for the legislation. Also see State v. Fonesca (1995), 106 Ohio App. 3d 115; State v. Gamble (1995), 107 Ohio App. 3d 496.

State v. Burden (1996), 113 Ohio App. 3d 524 -- Court may not suspend mandatory license suspension, as there is no statutory authority to do so. Opinion does not address occupational driving privileges, nor does statute. Also see State v. Smith (1996), 113 Ohio App. 3d 752.

State v. Carnes (1999), 102 Ohio Misc. 2d 5 -- Court concludes it does not have authority to grant occupational driving privileges during mandatory suspension arising from conviction on misdemeanor drug offenses.

State v. Gipson (1998), 80 Ohio St. 3d 626 -- (1) Syllabus: "The requirement of former R.C. 2925.11(E)(5) (and the current analogous provisions of R.C. 2929.18[B][1]) that an affidavit of indigency must be 'filed' with the court prior to sentencing means that the affidavit must be delivered to the clerk of court for purposes of filing and must be indorsed by the clerk of court, i.e., time-stamped, prior to the filing of the journal entry reflecting the trial court's sentencing decision." (2) 634-636: Though defendant may have lacked the present ability to pay the mandatory fine attached to a drug offense, he was able-bodied and given probation, allowed the duration of probation to pay the fine, and was given the alternative of satisfying the fine through community service. Court acted within its discretion in imposing fine,

State v. Martin (1996), 112 Ohio App. 3d 225, 228 -- With respect to a mandatory fine for a drug offense: "...(T)he trial court erred in failing to determine, in some manner reflected by the record, whether appellant was indigent when he properly filed an affidavit of indigency pursuant to R.C. 2925.03(L)."

State v. Pendleton (1995), 104 Ohio App. 3d 785 -- Court disapproves policy of finding those represented by public defenders indigent for purposes of mandatory drug fines while finding those represented by private counsel to be able to pay. Evidence of indigency was unrebutted. Private counsel fees were paid by relative. Mere possibility that the defendant might be able to pay the fine in the future, or in installments, is not a sufficient basis for finding ability to pay.

State v. Gutierrez (1994), 95 Ohio App. 3d 414 -- (1) Court erred in imposing mandatory drug offense fine where the defendant earned $8 per hour prior to sentencing, had other expenses to pay, and was ordered incarcerated. (2) Court refused to allow defendant to file an affidavit of indigency. Even assuming this was error, it was harmless as the court proceeded to consider indigency as if the affidavit had been filed.

State v. Mays (1994), 97 Ohio App. 3d 406 -- Affidavit of indigency relating to inability to pay mandatory drug offense fines was not filed until three months after sentencing. At that point the decision whether or not to consider a waiver of the fine was within the court's discretion and no abuse of discretion is found in denial of motion seeking exemption.

State v. Lefever (1993), 91 Ohio App. 3d 301, 309-310 -- (1) While a person may not be indigent for purposes of payment of mandatory drug offense fine if he has potential earnings in the future, the lack of present means and the immediate prospect of five years or more of incarceration required finding of indigency. (2) When the evidence clearly establishes that money for bail was provided a person other than the defendant, the court shall not apply any of the money to be returned toward the satisfaction of a penalty or fine. Discussion of the history of the case indicates efforts to require that the funds be deposited in the defendant's name.

State v. Luckett (1995), 101 Ohio App. 3d 330 -- The provision in R.C. 3719.70(B) that when a person is convicted of a drug abuse offense, the court shall take into consideration whether he cooperated with the authorities in furnishing information in making its determination whether to grant probation, does not mean that a person becomes ineligible for probation when such information is not forthcoming.

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Other issues

State v. Bahns, 185 Ohio App. 3d 805, 2009-Ohio-5525 – Deception to obtain drugs prosecution was based on comparison of computerized records covering issuance of drugs to nurses and patient records. Evidently the former were introduced but the patient records were not. Ordinarily business records must be provided and authenticated before a witness may testify as to their contents. Untimely mention in a Rule 29 motion did not preserve the issue for appeal. Failure to object did not constitute ineffective assistance of counsel.

State v. Higgins, 183 Ohio App. 3d 465, 2009-Ohio-3979 – Defendant charged with conveying drugs into a detention facility won a motion to suppress in the trial court. Reversed. Opinion discusses signage, provisions in the Ohio Administrative Code, the state‘s need to keep drugs out of prisons, the lack of a reasonable expectation of privacy under the circumstances, the benign nature of the confrontation by the investigating officer, and cases from other jurisdictions.

State v. Kent, 163 Ohio Misc. 2d 19, 2010-Ohio-6695R.C. 2925.56, concerning the unlawful sale of pseudoephedrine, creates three offenses addressing excessive sales, sales to minors, and maintenance of a log book. The log book subsection reaches only “retailers” and “terminal distributor” though the other offenses also apply to their employees. Employee charged with a log book violation was not subject to the provision, because every word in a statute is presumed to have some effect.

State v. Goodson, 192 Ohio App. 3d 246, 2011-Ohio-722 – The defendant’s fourteen prior arrests for drug activity were erroneously admitted as similar acts evidence because those incidents were remote “and not shown to be closely related in nature, time, and place to the offense charged.” (¶24.) Error harmless in light of other evidence.

State v. Johnson, Cuyahoga App. No. 82804, 2004-Ohio-745 -- Testimony that three or four "school kids" were hanging out near the place drugs were sold was not sufficient to sustain conviction on proximity to a juvenile specification. There were no details distinguishing the juveniles from adults who may have been in the area. Degree of the offense remains elevated since defendant was also convicted of a schoolyard specification.

State v. Wilson, 156 Ohio App. 3d 1, 2004-Ohio-144, ¶27-33 -- Increased penalties for possession of crack over those for cocaine are found to pass the rational relation test. On the difference between crack and free-base cocaine the court quotes from State v. Bryant (July 17, 1998), Montgomery App. No. 16809.

State v. Burnett 93 Ohio St. 3d 419, 2001-Ohio-1581 -- Cincinnati drug-exclusion zone ordinance does not violate the First Amendment right to association. It does violate the right to travel, as guaranteed by the Fourteenth Amendment, and the home rule authority conferred by Sec. 3, Art. XVIII of the Ohio Constitution. Compare Johnson v. City of Cincinnati (2000), 119 F.Supp. 2d 735 holding the ordinance violates the First Amendment and Double Jeopardy.

State v. Agner (1999), 135 Ohio App. 3d 286 -- (1) Sale of cocaine on two separate occasions by itself was not proof that defendant was associated with a larger drug enterprise. (2) Testimony as to other drug sales by the defendant was not admissible as similar acts evidence, but was admissible to rebut character evidence to the effect that the defendant was not known to engage in the sale of drugs.

State v. Sess (1999), 136 Ohio App. 3d 689 -- Police officer was required to take a polygraph test as a part of assignment to a regional narcotics unit. Before the test he admitted that in the past he had planted drugs on a suspect. Since further information concerning this incident was coerced by the threat of losing his job, admissions and further evidence derived from admissions was properly suppressed.

State v. Rose (2001), 144 Ohio App. 3d 58 -- Court was not obligated to instruct on the affirmative defense of personal use where the defendant denied possession of the drug. Chemist's testimony that crack was in a form usually sold for personal use was not a sufficient for the instruction.

State v. Evans (2001), 144 Ohio App. 3d 539 -- Though the appeal raised only constitutional issues, court notes that an incarcerated juvenile's statements to counselors may have been inadmissible under R.C. 2317.02(G)(1) or under federal statutes pertaining to confidentiality of patient records in federally assisted substance abuse programs. [See Title 42, U.S.C., Sec. 290dd-2.]

Gonzales v. Raich (2005), 125 S.Ct. 2195 -- Application of the federal Controlled Substances Act to intrastate transactions by California growers and users, as permitted under the state's Compassionate Use Act, does not violate the Commerce Clause.

Norwood v. Horney, 110 Ohio St. 3d 353, 2006-Ohio-3799 -- The term "deteriorating area" is held unconstitutionally vague in the context of appropriation of private property by eminent domain. Is "high crime area" also vague?

State v. Urvan (1982), 4 Ohio App. 3d 151 -- Successful completion of a diversion program is the equivalent of serving a sentence or completing probation. If related charges would have merged if pursued initially, they may not be pursued upon completion of diversion. Court views diversion as a contract between the defendant and the prosecutor.

State v. Mutter (1983), 14 Ohio App. 3d 356 -- Headnote: "A defendant who makes separate sales of narcotic drugs on different dates to different persons in different counties can be prosecuted for each sale and may not claim double jeopardy on the basis that it was all one 'course of criminal conduct.' (State v. Urvan, 4 Ohio App. 3d 151, limited.)

State v. Truitt (1981), 1 Ohio App. 3d 65 -- The Double Jeopardy Clause did not bar defendant being prosecuted for a direct sale of drugs after he had been convicted of a misdemeanor possession charge based on drugs on his person at the time he was arrested.

State v. Powell (1993), 87 Ohio App. 3d 157 -- The phrases "unit dose" and "bulk amount" are not unconstitutionally vague.

State v. Riley (1994), 98 Ohio App. 3d 801 -- Defendant was charged with aggravated trafficking, with the penalty enhanced on the basis of a prior conviction. In response to a motion in limine concerning mention of the defendant's prior record, counsel stipulated the validity of the prior conviction, and in exchange no mention was made of this element of the offense by the prosecution or in instructions. In effect, this element was tried to the court. Court of appeals finds it was error to withhold this element from the jury without a proper waiver of the right to trial by jury, but that the error was harmless in view of the stipulation. Might cite case in support of the proposition that some elements may be tried to the court and others to the jury, if there is a proper waiver. Compare State v. Riley (1995), 106 Ohio App. 3d 139 -- No error in refusing to accept stipulation of prior conviction in order to avoid prejudicial disclosure to the jury.

State v. Moaning (1996), 76 Ohio St. 3d 126 -- Syllabus: "An individual who is convicted of attempted drug abuse is prohibited from acquiring, having, carrying or using a firearm or dangerous ordinance pursuant to R.C. 2923.23(A)(3)."

State v. Strait (December 15, 1981), Franklin Co. App. No. 81AP-218, unreported (1981 Opinions 4106, 4113) -- R.C. 3719.44 does not unlawfully delegate to the State Board of Pharmacy the authority to transfer a drug (PCP) from one schedule to another. Accord: State v. Griffin (1981), 23 Ohio Ops. 3d 299, affirmed Franklin Co. App. No. 81AP-964, unreported (1982 Opinions 1816; State v. Reed (1983), 14 Ohio App. 3d 63. Contra: State v. Krego (1981), 23 Ohio Ops. 3d 438. Also see United States v. Gordon (5th Cir. 1978), 580 F. 2d 827 concerning delegation of authority to classify in to the Drug Enforcement Administrator.

State v. Babcock (1982), 7 Ohio App. 3d 104 -- The reasonableness of the classification of a particular controlled substance and the attendant consequences of sale or possession is a legislative and not a judicial concern.

State v. Dotson (1987), 35 Ohio App. 3d 135, 141 -- Nature and identity of offense were not changed when in his opening statement the prosecutor referred to the drug by the name the defendant gave it ("chocolate mescaline"), though testing and the indictment identified the substance as LSD.

State v. Jordan (1992), 73 Ohio App. 3d 524 -- Due process violation found where officers discarded bag originally holding rocks of cocaine and repackaged rocks in their own zip-lock bags which were then referred to in the police report and formed the basis of a criminal tools charge.

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