State v. BernardState v. Bernard
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 1, 2010
APPEARANCES:
For Plaintiff-Appellee
JOHN D. FERRERO PROSECUTING ATTORNEY BY: RONALD MARK CALDWELL 110 Central Plaza South, Ste. 510 Canton, OH 44702
For Defendant-Appellant
MATTHEW PETIT 111 Second Street N.W. Suite 302 Canton, OH 44702
Gwin, P.J.
{¶1} Defendant-appellant James Barnard appeals his convictions on one count each of the aggravated possession of drugs, a felony of the third degree and operating a motor vehicle while under the influence of a Schedule II Controlled Substance, a misdemeanor of the first degree. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant waived his right to a jury trial in writing and in open court. The following evidence was presented during his trial to the court.
{¶3} On the afternoon of January 22, 2009, Canton Police Officer Robert E. Smith and his partner were in route to a call when they came upon a car stranded on the medium island in the 2500 block of Fulton Road, N.W., in Canton. The medium island is elevated several inches from the roadway to separate opposing lanes of traffic. The officers also noticed that traffic cones had been broken or bent down behind the vehicle. A second vehicle with a woman inside was parkеd in close proximity of the stranded vehicle. Her boyfriend, a Mr. Talbot, was sticking his head into the stranded vehicle, and told the approaching officers that the driver appeared to be intoxicated. Mr. Talbot had asked the driver if he had any weapons, and the driver replied that he did. The officers had Mr. Talbot return to his girlfriend and approached the driver.
{¶4} The officers observed that the car was stuck on the medium island and could not move. The officers tried several times to urge the appellant to exit the vehicle. Appellant, however, was not listening to the оfficers. The officers detected a strong odor of alcohol coming from appellant, noticed that he had very slurred speech, and saw a half-empty bottle of vodka sitting in appellant‘s lap. Appellant was conscious, his eyes
{¶5} Officer Smith used his knife to cut appellant‘s seatbelt in order to facilitate appellant‘s forcible removal. Appellant responded by clutching the steering wheel and resisting the efforts of the two officers to pull him out of the vehicle. The struggle continued for some time until a third police officer arrived to assist Smith and his partner. Pepper spray was used on appellant; however, appellant kept his grip on the steering wheel and stayed in the vehicle. Finally, the officers used a taser on аppellant once or twice before they could remove him from the vehicle.
{¶6} After arresting appellant, the officers searched him. In the right front pocket of his jacket, the officers found a prescription vial for a George Foster. This vial contained seven 80-milligram tablets of the prescription Oxycontin, a Schedule II substance. The officers did not see any injuries to appellant, and appellant did not complain of any. Appellant was arrested for the illegal possession of the Oxycontin, as well as driving under the influence.
{¶7} Jay Spencer оf the Canton-Stark County Crime Lab analyzed the contents of the prescription bottle and determined that the drug was Oxycontin. He tested a portion of one of the seven tablets, after weighing them, to determine the nature of the drug. The tablets, imprinted with “OC80,” weighed 80 milligrams apiece, and were the
{¶8} Spencer also testified about bulk amount for Oxycontin, which is either 20 grams or five times the maximum daily dosage as determined by the Ohio Board of Pharmacy. For Oxycontin in 80-milligram tablets, the bulk amount is six tаblets. According to Spencer, the maximum daily dosage was determined by the Ohio Board of Pharmacy to be five tablets for 90-milligram tablets. The total weight for that dosage would be 450 milligrams. Accordingly, the seven 80-milligram tablets recovered from appellant weighing a combined total of 480 milligrams exceed the “bulk amount.”
{¶9} Spencer further testified that an individual‘s particular daily dosage would be determined by that person‘s physician, but that fact had no bearing on the Ohio Board of Pharmacy‘s definition of bulk amount under Ohio‘s drug laws. Spencer further testified that the instructions printed on the vial were, “Take one tablet every 8 hours for pain.”
{¶10} At the conclusion of this bench trial, the court found appellant guilty as charged in the indictment.
{¶11} The court, after a presentence investigation report, sentenced appellant to a community control sanction for a period of three years. The court cautioned appellant that a revocation of this community control sanction would result in a prison term of three years. The court also ordered that appellant serve thirty days in jail and have his operator‘s license suspended for six months for the OVI offense.
{¶12} Appellant timely appeals raising the following three assignments of error,
{¶14} “II. THE OFFENSE OF AGGRAVATED POSSESSION OF DRUGS LOCATED IN
{¶15} “III. THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”
I.
{¶16} In his first assignment of error, appellant maintains that his convictions are against the weight of the evidence and are based upon insufficient evidence. We disagree.
{¶17} Our standard of reviewing a claim a verdict was not supported by sufficient evidence is to examine the evidence presented at trial to determine whether the evidence, if believed, would convince the average mind of the accused‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viеwing the evidence in the light most favorable to the prosecution, any rational Trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, superseded by State constitutional amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St. 3d 89, 684 N.E.2d 668.
{¶18} The Supreme Court has explained the distinction between claims of sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question for the trial court to determine whether the State has met its burden to produce
{¶19} Manifest weight of the evidence claims concern the amount of evidence offered in support of one side of the case, and is a jury question. We must determine whether the jury, in interpreting the facts, so lost its way that its verdict results in a manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St. 3d 387, 678 N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St. 3d 89, 1997-Ohio-355, 684 N.E.2d 668. On review for manifest weight, a reviewing court is “to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether in rеsolving conflicts in the evidence, the Trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment.” State v. Thompkins, supra, 78 Ohio St. 3d at 387, citing State v. Martin (1983), 20 Ohio App. 3d 172, 175. Because the Trier of fact is in a better position to observe the witnesses’ demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the Trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d 212, syllabus 1.
{¶20} In Thompkins, the Ohio Supreme Court held “[t]o reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary.” Id. at paragraph three of the syllabus. However, to “reverse a judgment of
{¶21} In examining the record to determine this issue, we may give weight to the fact that the error occurred in a trial to the court, rather than in a jury trial. State v. White (1968), 15 Ohio St. 2d 146, 151, 239 N.E.2d 65; State v. Austin (1976), 52 Ohio App. 2d 59, 70, 368 N.E.2d 59. Indeed, a judge is presumed to consider only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record. State v. White, supra, 15 Ohio St. 2d at page 151, 239 N.E.2d 65; State v. Eubank (1979), 60 Ohio St. 2d 183, 187, 398 N.E.2d 567, 569-570; Columbus v. Guthmann (1963), 175 Ohio St. 282, 194 N.E.2d 143, paragraph three of the syllabus.
{¶22} In this assignment of error, appellant argues that the evidence in this case was deficient in proving that he actually operated the car and in proving that the Oxycontin that was found in his pocket was actually “bulk amount.”
{¶23} An insightful history of the term “operation” has been detailed by our brethren in the Eighth District,
{¶24} “Before the General Assembly enacted S.B. 123, effective January 1, 2004, there was no statutory definition of ‘operate.’ The meaning of the term ‘operate’ in
{¶25} “But in S.B. 123, the General Assembly modified the definition in Gill and its predecessors by specifically defining ‘operate’ in
{¶26} “In S.B. 123, the General Assembly created a new statutory offense of “Having physical control of a vehicle while under the influence of alcohol.” See
{¶28} We agree with the appellant that the evidence did not demonstrate that the vehicle was running or that the appellant had the keys to the vehicle. However, we find under the facts of this case the evidence was sufficient to infer that appellant had operated the vehicle.
{¶29} “Notably, and in relation to movement of a vehicle,
{¶30} In the case at bar, the officers came upon appellant‘s vehicle, stranded on a medium island after having run over a number of orange traffic cones. Appellant was alone and strapped into the driver‘s seat. Officers had to forcibly remove him from the driver‘s seat, resorting to force, pepper stray, and a taser. At no time during this
{¶31} If the State relies on circumstantial evidence to prove an essential element of an offense, it is not necessary for “‘such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction…Circumstantial evidence and direct evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St. 3d at paragraph one of the syllabus. Furthermore, “‘[s]ince circumstantial evidence and direсt evidence are indistinguishable so far as the jury‘s fact-finding function is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt.” ’ Jenks, 61 Ohio St. 3d at 272, 574 N.E.2d 492. While inferences cannot be based on inferences, a number of conclusions can result from the same set of facts. State v. Lott (1990), 51 Ohio St. 3d 160, 168, 555 N.E.2d 293, citing Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 329, 331, 130 N.E.2d 820. Moreover, a series of facts and circumstances can be employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio St. 3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E. 2d 820.
{¶32} In the case at bar, reasonable minds could find, beyond a reasonable doubt, that аppellant had caused movement of the vehicle to bring it to the location where the officers found it to be stranded on the median island, and therefore that he operated it for purposes of an
{¶33} Appellant next argues the evidence does not prove that the Oxycontin that was found in his pocket was actually “bulk amount.”
{¶35} “Bulk amount” of a controlled substance means any of the following:
{¶36} “(1) For any compound, mixture, preparation, or substance included in schedule I, schedule II, or schedule III, with the exception of marihuana, cocaine, L.S.D., heroin, and hashish and except as provided in division (D)(2) or (5) of this section, whichever of the following is applicable:
{¶37} “* * *
{¶38} “(d) An amount equal to or exceeding twenty grams or five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical rеference manual‘s of a compound, mixture, preparation, or substance that is or contains any amount of a schedule II opiate or opium derivative…”
{¶39} In the case at bar, Jay Spencer from the Stark County Crime Lab testified that the prescription bottle contained seven (7) tablets of Oxycodone, the generic form of Oxycontin, a Schedule II drug. Each tablet was in eighty (80) milligram strength. In addition, Spencer testified that the Ohio Board of Pharmacy has established bulk amount for Oxycontin as five tablets for 90-milligram strength tablets. Because of the lesser strength tablets found on aрpellant, the maximum daily dosage for 80-milligram tablets would be six tablets.
{¶41} In State v. Hamlin, Stark App. No. 2002CA00162, 2003-Ohio-544 this Court found, based upon expert testimony, that six (6) 80 milligrams tablets of Oxycontin would constitute the bulk amount based upon the Controlled Substance Reference Table. Id at ¶17. In Hamlin Robert Amiet, a pharmacist and compliance specialist with the Ohio State Board of Pharmacy testified, as to Oxycontin, the trade name, or Oxycodone, the generic product, the “maximum daily dose in the usual dose range specified in a standard pharmaceutical reference as defined in
{¶42} “Oxycontin is a Schedule II product. In that definition, it says five times the maximum daily dose in the usual dose range. We have established that that is 90, 5 times 90 is 450 milligrams.
{¶43} “Now, Oxycodone comes in several different strengths. So we then take each specific strength and divide it into 450 to give us the number of tablets for that specific strength.
{¶45} In the case at bar, Jay Spencer‘s testimony was similar to the testimony elicited in Hamlin. Appellant in this case possessed seven 80-milligram tablets, for a total of 560 milligrams.
{¶46} Viewing the evidence in a light most favorable to the prosecution, a rational Trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
{¶47}
{¶48} Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264, 267 N.E.2d 787; State v. Hankerson (1982), 70 Ohio St. 2d 87, 434 N.E.2d 1362, syllabus. To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion and control over the contraband. State v. Wolery (1976), 46 Ohio St. 2d 316, 332, 348 N.E.2d 351. Dominion and control may be proven by circumstantial evidence alone. State v. Trembly, 137 Ohio App. 3d 134, 738 N.E.2d 93. Circumstantial evidence that the defendant was located in very
{¶49} Upon a careful review of the record and upon viewing the direct and circumstantial evidence in the light most favorable to the prosecution, this Court cannot conclude that the Trier of fact lost its way and created a manifest miscarriage of justice when it found appellant guilty of the possession of drugs in the bulk amount. A reasonable Trier of fact could have found that, at the least, appellant had dominion and control over and constructive possession of the jacket containing the drugs, and that he had knowledge of drugs found inside. See Hankerson, 70 Ohio St. 2d at syllabus.
{¶50} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence, upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. Accordingly, a judgment supported by competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. (1978), 54 Ohio St. 2d 279, 376 N.E. 2d 578.
{¶51} We conclude the Trier of fact, in resolving the conflicts in the evidence, did not create a manifest miscarriagе of justice so as to require a new trial. Viewing this
{¶52} Accordingly, appellant‘s conviction for the possession of a bulk amount of Oxycontin and for operating a motor vehicle while under the influence were not against the manifest weight of the evidence.
{¶53} Appellant‘s first assignment of error is overruled.
II.
{¶54} In his second assignment of error, appellant challenges the constitutionality of the drug statute under which he was convicted. Appellant argues that the bulk amount provisions of the drug possession statute are void for vagueness since they do not give a reasonable person notice as to the prohibited amounts of the particular drug in this case, Oxycontin. We disagree.
{¶55} Appellant concedes that he failed to raise this issue in the trial court.
{¶56} “The general rule is that ‘an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention аt a time when such error could have been avoided or corrected by the trial court.’ State v. Childs (1968), 14 Ohio St. 2d 56 [43 O.O.2d 119], 236 N.E.2d 545, paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St. 471 [11 O.O.2d 215], 166 N.E.2d 379, paragraph one of the syllabus; State v. Lancaster (1971), 25 Ohio St. 2d 83 [54 O.O.2d 222], 267 N.E.2d 291, paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St. 2d 112, 117 [5 O.O.3d 98], 364 N.E.2d 1364. Likewise, ‘[c]onstitutional rights may be lost *686 as
{¶57} Assuming arguendo that the appellant had raised his void for vagueness argument in the trial court, our decision would not necessarily change.
{¶58} In State v. Phipps (1979), 58 Ohio St. 2d 271, 273, 389, N.E.2d 1128, 1130 and State v. Young (1980), 62 Ohio St. 2d, 370, 372, 406 N.E.2d 499, 501 the Ohio Supreme Court recognized that the legal test for determining whether a statute is unconstitutionally vague was enunciated by the United States Supreme Court in Connally v. General Construction Co (1926)., 269 U.S. 385 and Grayned v. City of Rockford (1972), 408 U.S. 104. It has long been established that a statute, and especially a criminal statute, is unconstitutional on its face if its provisions are so vague and imprecise that persons of ordinary intelligence must guess at its meaning and differ
{¶59}
{¶60} “‘Unit dose’ means an amount or unit of a compound, mixture, or preparation containing a controlled substance, such amount or unit being separately identifiable and in such form as to indicate that it is the amount or unit by which the controlled substance is separately administered to or taken by an individual.”
{¶61} Appellant argues that the possession statute is unconstitutionally vague because its enforcement can be based on either the weight of drugs recovered or on the number of units of drugs recovered. Initially, we note that the statutory language in
{¶62} “We find that
{¶63} Appellant has failed to demonstrate the term “unit dose” as set forth in
{¶64} Appellant‘s second assignment of error is overruled.
III.
{¶65} In his third assignment of error, appellant claims that his trial counsel was ineffective for failing to properly challenge the constitutionality of Ohio‘s drug laws in how they define the prohibited amounts. We disagree.
{¶66} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel‘s performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel‘s essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel‘s ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373.
{¶67} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both the deficient performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance (2009), 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.
{¶68} To show deficient performance, appellant must establish that “counsel‘s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104 S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S. at 688, 104 S.Ct. 2052 at 2065.
{¶70} In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel‘s assistance was reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel‘s performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064.
{¶71} Appellant must further demonstrate that he suffered prejudice from his counsel‘s performance. See Strickland, 466 U. S., at 691 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment“). To establish prejudice, “[t]he
{¶72} None of the instancеs raised by appellant rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Having reviewed the record that appellant cites in support of his claim that he was denied effective assistance of counsel, we find appellant was not prejudiced by defense counsel‘s representation of him. The result of the trial was not unreliable nor were the proceedings fundamentally unfair because of the performance of defense counsel. Appellant has failed to demonstrate that there exists a reasonable probability that, had trial counsel challenged the constitutionality of the statute defining “bulk amount” as set forth in his second assignment of error, the result of his case would have been different.
{¶73} Because we have found no instances of error in this case, we find appellant has not demonstrated that he was prejudiced by trial counsel‘s performance.
{¶74} Appellant‘s third assignment of error is overruled.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. JOHN W. WISE
WSG:clw 1027
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas, Ohio, is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. JOHN W. WISE