State v. Davis, 2018 Ohio 376

Whittington Davis was indicted for one count of trafficking in marijuana (R.C. 2925.03) after Youngstown officers found nine small baggies of marijuana on his person during a stop; total weight was 5.76 grams.
Officer Wallace responded to a radio report of drug activity, encountered Davis, asked if he had contraband, and (per the officer) obtained verbal consent to perform a pat-down, during which the baggies were recovered.
Davis testified he received ten baggies as barter for tattoo work, smoked one while walking downtown, and therefore possessed nine at the time of the stop; he admitted possession but denied intent to sell.
BCI confirmed the substance was marijuana.
The trial court denied Davis’s suppression and Crim.R. 29 motions; a jury convicted him of trafficking and the court sentenced him to 12 months. On appeal the court affirmed the denial of suppression but found insufficient evidence of intent to sell and modified the conviction to possession (R.C. 2925.11), remanding for sentencing on the lesser offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the search/seizure was unlawful	State: Officer received verbal consent to pat-down; consent exception to warrant applies	Davis: No consent; search was warrantless and unlawful	Court: Credited officer’s testimony; consent was valid; suppression denial affirmed
Whether evidence was sufficient for trafficking conviction	State: Multiple small individually packaged baggies indicate intent to distribute/traffick	Davis: Packaging alone insufficient; he possessed for personal use/barter and admitted smoking one bag	Court: Packaging alone insufficient to prove intent to sell; trafficking conviction not supported
Whether Crim.R. 29 motion for acquittal should have been granted	State: Evidence viewed in light most favorable to prosecution supports trafficking	Davis: No evidence of sale, exchange of money, or distribution activity	Court: Crim.R. 29 should have been granted as to trafficking; conviction modified to lesser included offense of possession
Remedy when degree of offense unsupported	State: Uphold jury verdict	Davis: Conviction should be reduced to possession	Court: Under R.C. 2945.79(D) modified verdict to possession (minor misdemeanor) and remanded for resentencing

Terry v. Ohio, 392 U.S. 1 (1968) (permitting limited investigatory stops and frisk on reasonable suspicion)
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of consent to search judged under totality of circumstances)
Bumper v. North Carolina, 391 U.S. 543 (1968) (consent must be freely and voluntarily given; state bears burden)
State v. Burnside, 100 Ohio St.3d 152 (2003) (standard of appellate review for suppression motions — factual findings upheld, legal questions reviewed de novo)
State v. Posey, 40 Ohio St.3d 420 (1988) (state must show consent was free and voluntary by clear and positive evidence)
State v. Bridgeman, 55 Ohio St.2d 261 (1978) (standard for sufficiency review — reasonable minds may differ)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (distinguishing sufficiency and manifest-weight review)
State v. Ingram, 82 Ohio App.3d 341 (1992) (clarifying meaning of clear and convincing/clear and positive evidence for consent)