State v. Gilliam, 2012 Ohio 834

Gilliam purchased cocaine from a police informant during a controlled buy on March 19, 2009 and was arrested immediately.
He was convicted at a jury trial of possessing cocaine in an amount equal to or exceeding 1,000 grams, a first-degree felony, and sentenced to the statutory maximum of 10 years.
On direct appeal, this court vacated the conviction as against the manifest weight of the evidence because weight of the cocaine inside the package (excluding wrappings) was not shown to exceed 1,000 grams, and remanded for a new trial.
Gilliam filed an App.R. 26(B) application to reopen, arguing ineffective assistance for not raising sufficiency of the weight evidence on direct appeal; the court granted reopening and appointed new counsel.
The merits address whether the evidence was legally sufficient to prove possession of 1,000 grams or more; the court concludes it was not and modifies the judgment.
The court holds that Gilliam was guilty of attempting to possess cocaine in the amount of 1,000 grams and remands for sentencing on the modified conviction while vacating the 1,000+ gram possession sentence

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence proves possession of 1,000+ grams of cocaine beyond a reasonable doubt	Gilliam argues the State failed to prove unwrapped cocaine weight met 1,000 grams	Gilliam asserts the weight of the wrapped package cannot establish net weight	Not proven; insufficiency; weight cannot be shown by wrapped package weight alone
Whether appellate counsel's deficiency prejudiced Gilliam on sufficiency	Gilliam contends deficient counsel violated App.R. 26(B) standards	Gilliam's previous failure to raise sufficiency prejudiced his appeal	Prevailing; vacates prior weight finding and holds insufficiency; grants modified conviction
Whether the proper remedy is modification to a lesser included offense	State would have preferred continued conviction for 1,000+ grams	Gilliam should be punished for a lesser offense if evidence supports it	Yes; court modifies to attempt to possess 1,000+ grams and remands for sentencing; 1,000+ gram sentence vacated
Whether there is support to convict as an attempt under R.C. 2923.02(E)(1)	Attempt theory applies to lesser included weight range	The record supports an attempt to commit the offense	Supported; conviction modified to attempt to possess 1,000+ grams, remand for sentencing

State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (sufficiency standard for criminal evidence; meaningful appellate review)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (reversed within-sufficiency test for reviewing evidence)
State v. Deem, 40 Ohio St.3d 205 (Ohio 1988) (lesser included offenses and attempts; authority to modify verdict)
State v. Butler, 11 Ohio St.2d 23 (Ohio 1967) (principle that not guilty of degree but guilty of lesser included offense can be modified)
State v. Shoe, 20 Ohio App.2d 344 (Ohio 1969) (lesser included offense doctrine in Ohio appellate practice)
Gilliam, 192 Ohio App.3d 145 (2011-Ohio-26) (direct appeal holding weight of evidence issue; manifest weight analysis)