706 N.E.2d 407 | Ohio Ct. App. | 1997
Defendant-appellant Bobbie Black was found guilty by a jury on one count of trafficking in marihuana with a prior felony drug-abuse conviction, and on the specification of committing a drug offense with a prior violence conviction. He appeals from the judgment of the trial court entered on the jury's verdict.1
In his first assignment of error, Black argues that he was deprived of his right to the effective assistance of counsel in violation of the
First, Black argues that he was prejudiced by counsel's deficient performance in failing to request a jury instruction on drug abuse. We agree.
Black was charged with trafficking in marihuana, in violation of R.C.
We hold that under the tests set forth in the applicable case law, 3 counsel's representation of Black fell below an objective standard of reasonableness, counsel substantially violated essential duties owed to Black, and counsel's deficient performance prejudiced Black.
Based upon the evidence in this case, the jury could have found Black not guilty of the trafficking offense, but guilty of the minor-misdemeanor drug-abuse offense. Instead, the jury was not given any choice, despite being faced with a defendant who unequivocally admitted that he possessed the marihuana. We hold that the fairness of the proceeding below was compromised by counsel's failure to request the instruction.
We recognize that the Ohio Supreme Court has held that the failure of counsel to request an instruction on a lesser included offense is a tactical decision. State v. Griffie (1996),
Second, Black argues that his counsel was deficient in allowing the jury to be made aware of Black's prior robbery conviction. We agree.
The prior robbery conviction was the basis of the specification alleging a prior violence conviction. Counsel for Black did not request that the judge decide the specification at the sentencing hearing as allowed under former R C.
Although some of Black's other examples of counsel's alleged deficiencies failure to present a defense, failure to file a motion to suppress, failure to object to the admission of evidence, and allowing Black to appear before the jury in jail clothing — reflect unwise decisions, none of these examples rises to the level required to demonstrate ineffective assistance in this case.
The first assignment of error is sustained.
In his second assignment of error, Black argues that the trial court erred in overruling his Crim.R. 29 motion for acquittal at the end of the state's case, and that the conviction is against the manifest weight of the evidence.
After reviewing the evidence in the light most favorable to the state, we hold that the trial court properly overruled Black's Crim.R. 29 motion for acquittal. State v. Bridgeman (1978),
The second assignment of error is overruled.
We reverse the conviction in this case and remand the cause to the trial court for a new trial.
Judgment accordingly.
"(A) No person shall knowingly obtain, possess, or use a controlled substance. " * * *
"(C) Whoever violates this section is guilty of drug abuse and shall be sentenced as follows: " * * *
"(3) If the drug involved is marihuana, drug abuse is a misdemeanor of the fourth degree, unless the amount of marihuana is less than one hundred grams, * * * in which case drug abuse is a minor misdemeanor."
PAINTER, P.J., DOAN and MARIANNA BROWN BETTMAN, JJ., concur. *423