Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
DRUG OFFENSES (120)
Search and Seizure;
Probation/Conditional probation of a drug dependent person;
Treatment in Lieu of Conviction;
Indictments and Complaints; Entrapment;
Nuisance Abatement Actions.
Drug abuse; Possession
Trafficking in drugs
Other drug offenses
to identify substances
Measurement of quantity
Proof of possession
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
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
R.C. 2925.13 -- Permitting drug abuse.
R.C. 2925.14 -- Drug paraphernalia offenses.
R.C. 2925.22 -- Deception to obtain a
R.C. 2925.23 -- Illegal processing of drug
R.C. 2925.31 -- Abusing harmful intoxicants.
R.C. 2925.32 -- Trafficking in harmful
R.C. 2925.33 -- Possessing nitrous oxide in
R.C. 2925.36 -- Illegal dispensing of drug
R.C. 2925.37 -- Offenses involving counterfeit
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
R.C. Chapter 3719 -- Controlled substances.
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
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
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
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
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
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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State v. Nucklos,
121 Ohio St. 3d 332,
2009-Ohio-792 – Syllabus: "To convict a licensed health professional of
trafficking in drugs under
the state bears the burden of proving beyond a reasonable doubt the
inapplicability or the licensed-health-professional exception in
by submitting evidence that the licensed health professional violated statutes
or regulations that define the standard of care for dispensing controlled
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
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
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.
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.
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.
(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
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
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
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
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
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
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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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
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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State v. Eppinger, 162 Ohio App. 3d
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
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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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.
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
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.
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
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
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
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
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
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 , 15 Ohio St. 3d 112...followed.)"
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Testing to identify substances
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.
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
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
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.
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
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
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
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
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
Chapter 2925 or
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.
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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
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.
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
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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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.
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.
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
State v. Jones, Lucas App. No.
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
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
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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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
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,
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.
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
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,
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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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,
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
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
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.
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
State v. Chamblin, Adams App. No.
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
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
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
R.C. 2925.03 may run consecutively to or concurrently
with a definite term of incarceration pursuant to
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
2929.18[B]) 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
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
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
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
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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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,
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.
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
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.
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
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
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
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
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
State v. Strait (December 15, 1981),
Franklin Co. App. No. 81AP-218, unreported (1981 Opinions 4106,
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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