State v. BrownState v. Brown
Blaise S. Underwоod, 97 N. South Street, Wilmington, Ohio 45177, for defendant-appellant
BRESSLER, P.J.
{¶1} Defendant-appellant, Donald G. Brown, Jr., appeals his conviction in the Clinton County Court of Common Pleas for drug trafficking. Wе affirm the decision of the trial court.
{¶2} On December 8, 2007, Officer Matt Hamilton, a police officer with the City of Wilmington Police Department, initiated a traffic stop of a white vehicle with out-of-state license plates after he observed the driver commit a marked lane violation. Appellant was a passenger in the vehicle. After the traffiс stop was initiated, and upon learning that the driver was operating the vehicle on a suspended license, Officer Hamilton called for a canine unit,
{¶3} Appellant was subsequently charged with drug trafficking in violation of
{¶4} “THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF APPELLANT BY IMPROPERLY INSTRUCTING THE JURY AS TO APPELLEE‘S BURDEN OF PROOF WITH RESPECT TO THE FIRST COUNT CONTAINED IN THE INDICTMENT AS SUCH WAS CONTRARY TO THE BILL OF PARTICULARS.”
{¶5} In his sole assignment of error, appellant challenges the jury instruction provided by the trial court regarding his drug trafficking charge. Specifically, appellant argues that the jury instruction was a “dramatic expansion from the bill of particulars,” and therefore, because his defense was prejudiced thereby, his conviction should be reversed. This argument lacks merit.
{¶6} A reviewing court may not reverse a conviction in a criminal case due to jury instructions unless “it is clear that the jury instructions constituted prejudicial error.” State v. McKibbon, Hamilton App. No. C-010145, 2002-Ohio-2041, ¶4, citing State v. Adams (1980), 62 Ohio St.2d 151, 154. In order to determine whether an erroneous jury instruction was prejudicial, a reviewing court must examine the jury instructions as a whole. State v. Harry, Butler App. No. CA2008-01-013, 2008-Ohio-6380, ¶36, citing State v. Van Gundy, 64 Ohio St.3d 230, 233-34, 1992-Ohio-108. A jury instruction constitutes prejudicial error where it
{¶7} Appellant did not object to the trial court‘s jury instruction regarding his drug trafficking charge. As a result, since no objection was raised to the jury instruction provided, appellant has waived all but plain error. State v. Curtis, Butler App. No. CA2008-01-008, 2009-Ohio-192, ¶90;
{¶8} Plain error exists where there is an obvious deviation from a legal rule that affected the defendant‘s substantial rights, or influenced the outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. An error does not rise to the level of a plain error unless, but for the error, the outcome of the trial wоuld have been different. State v. Krull, 154 Ohio App.3d 219, 2003-Ohio-4611, ¶38. Notice of plain error must be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 95.
{¶9} On January 31, 2008, following a police investigation, the Clinton County Grand Jury returned an indictment against appellant charging him with, among other things, one count of drug trafficking in violation of
{¶10} “The Jurors of the Grand Jury of the State of Ohio, * * * do find and present that on or about the 8th day of December, 2007, at Clinton County, Ohio, [appellant] did knowingly, prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute Crack Cocaine, a Schedule II controlled substance in an amount that equals or exceeds ten
{¶11} On April 30, 2008, and upоn appellant‘s request, the state filed a bill of particulars, which read, in pertinent part, as follows:
{¶12} “[Appellant] on or about December 8, 2007 at Wayne Rd., Wilmington, Clinton County, Ohio at approximately 9:30 p.m. [appellant] did knowingly prepare for shipment, ship, transport, or prepare for distribution crack cocaine, a Schedule II contrоlled substance, in an amount equal or exceeding ten grams but less than twenty-five grams when [appellant] knew or had reasonable cause to believe that it was intended for sаle or resale. Specifically, [appellant] was transporting a bag containing crack cocaine, baggies as well as electronic scales contаining cocaine residue.”
{¶13} On December 3, 2008, after appellant rested his case, the trial court instructed the jury, without objection, as follows:
{¶14} “In the First Count of Indictment, [appellаnt] is charged with a violation of
{¶15} Appellant takes exception to this jury instruction because, according to him, “[the state] limited itself to satisfying the actus reus component of trafficking to the аct of ‘transporting,‘” as the bill of particulars only “placed [him] on notice that the specific method by which an alleged violation of [
{¶16} In addition, appellant claims that he was prejudiced by the trial court‘s so-called “expansion” because he was only “prepared to defend and did defend against a trafficking indictment predicated upon an act of transрort.” However, during opening statements, appellant‘s trial counsel made it clear that he was prepared to defend against any and all criminal act elements contained in the indictment and bill of particulars when he stated the following:
{¶17} “One other thing I would like you all to please do is to focus on the law here. Think about the acts that are required in crack trafficking; transporting, shipment, distribution, preparation for shipment, preparation for distribution and delivery.
{¶18} “We – I don‘t see anything in these facts that would lead anyone, rational trier of fact, a jury, you name it, to believe that there‘s trafficking in this case.”
{¶19} Moreover, after careful review of the record, appellant‘s defense was not based solely on whether he was, in fact, transporting drugs that evening. Instead, appellant defended against the drug trafficking charge by testifying that he “had no idea” that the vehiсle contained drugs, and that he did not “sell,” “cut,” “prepare,” “bag,” or do “anything” with drugs. In turn, and as noted above, appellant was prepared to defend against, and did defend agаinst, any and all of the criminal act elements required to support the drug
{¶20} Furthermore, even if we were to find the trial court erred by instructing the jury as such, appellant has failed to estаblish that, but for the trial court‘s allegedly improper jury instruction, the outcome of the trial would have been different as the state presented evidence indicating appellant was seen “cutting” crack cocaine that he would then weigh, bag, and transport to his “clientele” to sell.2 See State v. Gibson, Cuyahoga App. No. 82087, 2003-Ohio-5839. Therefore, because appellant failed to demоnstrate the jury instruction provided by the trial court was in error, let alone plain error, his sole assignment of error is overruled.
{¶21} Judgment affirmed.
YOUNG and RINGLAND, JJ., concur.
BRESSLER, P.J.
YOUNG, J.
RINGLAND, J.