2004 Ohio 4764 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} On June 9, 2003, the confidential informant called an undisclosed cell phone number to make arrangements to purchase 1.8 grams of crack cocaine for $220. A Massillon Police officer positioned himself in a white van which had been custom remodeled to allow him to hide under the front seat. The van was also specially equipped with videotape and audiotape equipment to film and record any drug activities. The equipment recorded the events of the transaction. Items were placed on the seat of the van to obtain fingerprints, which were later identified through testing as appellant's.
{¶ 4} A second buy was arranged through a telephone call to the same undisclosed cell phone number for the purchase of 14 grams of crack cocaine for $800. Again, the telephone call and the transaction were recorded. On June 12, 2003, in the same neighborhood as the first buy, in front of appellant's residence, another individual sold crack cocaine to the confidential informant. Appellant stood nearby, he did not get into the van, but did call the informant's cell phone after they arrived.
{¶ 5} On June 19, 2003, the informant called the same cell phone number to inquire as to the price of a full ounce of crack cocaine. The call was recorded. Appellant delivered the crack cocaine, but there were issues as to the weight of the drugs. The van dropped appellant off at his residence and returned. Another person then delivered the drugs back to the van. The buy was recorded.
{¶ 6} Finally, on July 1, 2003, the informant ordered four and a half ounces of crack cocaine, plus an additional half ounce, for a total of five ounces. Appellant and the informant agreed on the price of $8000. Bledsoe and the informant agreed the money would be placed at a "drop location." Upon arriving for the deal, Kenyan Chandler came up to the van with the package to make the delivery. The informant placed a telephone call to appellant, who stated Chandler was his brother. Appellant made reference to "counting out the bread" and "counting out the eight." During the telephone conversations, appellant told the informant "we're playing softball." This transaction formed the basis for count one of the indictment.
{¶ 7} The substance Chandler sold to the informant was "wet" and comparable to the consistency of freshly made crack cocaine. The substance was submitted to the crime lab for analysis, and testing revealed it to be 130.87 grams of ordinary baking soda.
{¶ 8} Appellant was indicted on four counts of trafficking in cocaine, with a major drug offender specification. Appellant plead not guilty and the case proceeded to trial on November 3, 2003. The jury found appellant guilty as charged on counts one, two and four. The trial court dismissed count three.
{¶ 9} Appellant moved the trial court to dismiss the jury's verdict on count one as appellant never mentioned "crack cocaine" in the course of the transaction and the substance actually delivered to the confidential informant was baking soda. Appellant argued a "defect in the law" in applying a major drug offender specification to the facts of his case. The trial court overruled the motion.
{¶ 10} It is from his conviction, the major drug offender specification, and his sentence appellant appeals, raising the following as assignments of error:
{¶ 11} "I. The trial court erred in failing to dismiss the major drug offender specification where the facts of the case fail to meet the statutory requirements.
{¶ 12} "II. The trial court's finding of guilt is against the manifest weight and sufficiency of the evidence."
{¶ 14} Appellant is the co-defendant of Kenyan Chandler. This court had occasion to review this issue in State v. Chandler,
{¶ 15} The R.C.
{¶ 16} That the substance offered for sale was not actually a controlled substance is immaterial for purposes of conviction under R.C.
{¶ 17} Neither 2925.03(C)(4)(g) nor R.C.
{¶ 18} To adopt the dissent's view in Chandler and in the case at bar, we must ignore the express language of R.C.
{¶ 19} The Legislature has not included within the sentencing portion of either R.C.
{¶ 20} In State v. Patterson, supra, the Ohio Supreme Court made the following observation: "[i]t would be improper for this court to amend that provision [R.C.
{¶ 21} If an "offer to sell" is all that is necessary to obtain a conviction under R.C.
{¶ 22} The present statutory scheme found in R.C.
{¶ 23} For the reasons set forth in State v. Chandler,
{¶ 25} In State v. Jenks (1981),
{¶ 26} Pursuant to Jenks, supra, 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 resolving 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,
{¶ 27} Appellant admits it is his voice in the audio and videotapes of the transactions relating to his convictions on counts two and four. Detective Minarcheck testified he recognized appellant's voice in every telephone conversation. Also, trial testimony as to three of the buys indicated appellant actually sold crack cocaine. Therefore, upon review, we find the State presented sufficient evidence of every element of the charged offenses, and the jury did not lose its way in convicting appellant. Accordingly, pursuant to the language set forth in the statute, we find appellant's convictions on counts two and four are supported by the evidence. For the reasons stated in our discussion of appellant's first assignment of error, we reverse appellant's conviction on count one.
{¶ 28} Appellant's second assignment of error is overruled except as to his conviction on the major drug offender specification, and count one of the indictment as set forth in our discussion of appellant's first assignment of error.
{¶ 29} The judgment of the Stark County Court of Common Pleas is affirmed in part, and reversed in part and remanded for proceedings not inconsistent with this opinion.
Gwin, P.J. and Boggins, J. concur.
Hoffman, J. concurs in part, dissents in part.
Dissenting Opinion
{¶ 30} I respectfully dissent from the majority's conclusion to sustain appellant's first assignment of error.
{¶ 31} Appellant was convicted in count one of trafficking in crack cocaine. The offense and the concomitant sentence, are defined in R.C.
{¶ 32} "(A) No person shall knowingly do any of the following:
{¶ 33} "Sell or offer to sell a controlled substance; * * *
{¶ 34} "(C) Whoever violates division (A) of this section is guilty of one of the following:
{¶ 35} "(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows:
{¶ 36} "(g) If the amount of the drug involved equals or exceeds one thousand grams of cocaine that is not crack cocaine or equals or exceeds one hundred grams of crack cocaine and regardless of whether the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, the offender is a majordrug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree and may impose an additional mandatory prison term prescribed for a major drug offender under division (D)(3)(b) of section
{¶ 37} Count one of the indictment alleged appellant sold, offered to sell, or aided or abetted another in selling or offering to sell an amount of crack cocaine equal to or greater than one hundred grams. As set forth in the statement of facts above, appellant offered to sell and arranged with the confidential informant to buy five ounces of crack cocaine, 141.7475 grams, for $8000.
{¶ 38} As set forth above, the statute does not require the substance actually sold be crack cocaine. Pursuant to the clear language of R.C.
{¶ 39} I agree with Judge Edward's dissenting opinion in part in Chandler, and therefore, I respectfully dissent from the majority opinion. In State v. Mughni (1987),
{¶ 40} Accordingly, I would affirm appellant's conviction pursuant to R.C.
{¶ 41} R.C.
{¶ 42} I concur in the majority's analysis and disposition of appellant's second assignment of error except as it pertains to the major drug offender specification.
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is affirmed in part, and reversed in part and remanded. Costs assessed to appellant.
