THE STATE OF OHIO, APPELLANT, v. EAFFORD, APPELLEE.
No. 2011-0599
Supreme Court of Ohio
Submitted January 17, 2012—Decided May 22, 2012
132 Ohio St.3d 159, 2012-Ohio-2224
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
Brannon & Associates, Dwight D. Brannon, and Matthew C. Schultz, for appellant.
Surdyk, Dowd & Turner Co., L.P.A., Edward J. Dowd, and Dawn M. Frick; and Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth Ellis, Assistant Prosecuting Attorney, for appellees.
O‘DONNELL, J.
{¶ 1} The state of Ohio appeals from a judgment of the Eighth District Court of Appeals vacating Donald Eafford‘s felony sentence for possession of cocaine and holding that Eafford was convicted only of misdemeanor possession of drugs because the jury-verdict form did not state the degree of the offense or specify that Eafford had possessed cocaine.
{¶ 2} Unless a jury verdict states the degree of the offense of which the offender is found guilty or finds an additional element elevating the degree of the
Facts and Procedural History
{¶ 3} On May 8, 2009, Cleveland police officers executed a search warrant at 12216 Rexford Avenue in Cleveland, Ohio, after an informant purchased a controlled substance there. Upon entering the house, SWAT team members found several people with crack cocaine and drug paraphernalia in plain view, and they found Eafford, the lessee, upstairs. A subsequent search of the premises revealed drug paraphernalia in Eafford‘s bedside table and a glass and rubber pipe with cocaine residue in his bathroom medicine cabinet.
{¶ 4} A grand jury indicted Eafford on charges of permitting drug abuse in violation of
{¶ 5} Our focus in this appeal concerns only the verdict in connection with the second count of the indictment. Regarding this count, the trial court instructed the jury as follows:
The defendant, Donald Eafford, is charged in Count 2 of the indictment with possession of drugs, in violation of
Ohio Revised Code Section 2925.11 . Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 8th day of May, 2009, and in Cuyahoga County, Ohio, the defendant did knowingly obtain, possess oruse a controlled substance, and the drug involved was cocaine or a compound, mixture, preparation or substance containing cocaine in an amount less than five grams.
The court also submitted a written copy of this instruction to the jury for its use during deliberations.
{¶ 6} The jury returned guilty verdicts on Counts One and Two. The verdict form for Count Two stated: “We, the Jury in this case being duly impaneled and sworn, do find the Defendant, Donald Eafford, guilty of Possession of Drugs in violation of
{¶ 7} The Eighth District Court of Appeals vacated the sentence for possession of cocaine and remanded the case for resentencing, explaining:
[T]he verdict form [for Count Two] does not include a statement indicating either the degree of the offense charged or that an aggravating circumstance existed to justify a conviction on the greater offense, specifically that the drug involved was cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount less than five grams.
* * *
* * * As this case stands, without a statement of the degree of the offense for which he was convicted, or a statement of the aggravating element demonstrating that defendant was convicted of a greater degree of the offense, he stands convicted of only a misdemeanor.
State v. Eafford, 8th Dist. No. 94718, 2011-Ohio-927, 2011 WL 743102, ¶ 40, 45.
{¶ 8} The state appealed to this court and contends that when a verdict form contains a finding of guilty as to possession of drugs but omits the name of the specific drug at issue, a sentencing court must look to the totality of the record, including the indictment, the evidence at trial, the argument of counsel, and the jury instructions, to determine the level of the offense. It further maintains that
{¶ 9} Eafford emphasizes that a violation of
{¶ 10} Accordingly, we are asked to decide whether a jury-verdict form finding an accused guilty of possession of drugs as charged in the indictment supports a conviction for possession of cocaine, when the indictment, the evidence produced at trial, and the jury instructions all refer only to one drug, cocaine.
Law and Analysis
Plain Error
{¶ 11} Initially, we observe that Eafford failed to object to the verdict form at trial and therefore he has forfeited all but plain error.
“First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of
Crim.R. 52(B) , an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial court‘s error must have affected the outcome of the trial.”
Id. at ¶ 16, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶ 12} Nonetheless, we have cautioned that “[e]ven if a forfeited error satisfies these three prongs, * * *
Possession of Controlled Substances
{¶ 13}
{¶ 14}
If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule III, IV, or V, whoever violates division (A) of this section is guilty of possession of drugs. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(2)(b), (c), or (d) of this section, possession of drugs is a misdemeanor of the first degree or, if the offender previously has been convicted of a drug abuse offense, a felony of the fifth degree.
Divisions (C)(2)(b) through (d) elevate the offense of possession of drugs based on the bulk amount of the drug involved. The least degree of that offense is a misdemeanor of the first degree.
{¶ 15}
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 possession of cocaine. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e), or (f) of this section, possession of cocaine is a felony of the fifth degree * * *.
Divisions (C)(4)(b) through (f) elevate the degree of the offense based on the amount of cocaine involved, and thus the least degree of the offense of possession of cocaine is a felony of the fifth degree.
Degree of Offense
{¶ 16}
When the presence of one or more additional elements makes an offense one of more serious degree:
(1) The affidavit, complaint, indictment, or information either shall state the degree of the offense which the accused is alleged to have committed, or shall allege such additional element or elements. Otherwise, such affidavit, complaint, indictment, or information is effective to charge only the least degree of the offense.
(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.
{¶ 17} Count Two of the indictment alleged that Eafford possessed cocaine, expert testimony confirmed that the substance at issue tested positive for cocaine, and throughout the trial the parties and the court treated the phrase “possession of drugs” as synonymous with possession of cocaine. Further, in its jury instructions—a copy of which the court submitted to jurors who had it in the deliberating room during deliberations—the trial court explained to the jury that it could not find Eafford guilty of possession of drugs as charged in Count Two unless it found the drug involved to be cocaine or a compound, mixture, preparation, or substance containing cocaine. And, as we observed in State v. Johnson, 71 Ohio St.3d 332, 340, 643 N.E.2d 1098 (1994), “[j]uries are presumed to follow the court‘s instructions.” Thus, when the jury found Eafford guilty as charged in Count Two of the indictment, its finding necessarily related to possession of cocaine.
Conclusion
{¶ 19} Count Two of the indictment charged Eafford with possession of cocaine, the state provided testimony that he possessed cocaine, and the jury returned its verdict on the only verdict form the court submitted to it. That verdict form reflected a finding of guilty as charged in Count Two of the indictment, referring to possession of cocaine. Thus, Eafford has not shown that but for the use of this verdict form, the outcome of the trial would have been different. Had he made a timely objection, the court could have modified the verdict form, but Eafford still would have been found guilty of possession of cocaine, because the only evidence in the case demonstrated his possession of cocaine, as he did not offer any defense in this case. Accordingly, we reverse the judgment of the court of appeals and reinstate the sentence imposed by the trial court.
Judgment reversed and sentence reinstated.
O‘CONNOR, C.J., and LUNDBERG STRATTON, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER and LANZINGER, JJ., dissent.
LANZINGER, J., dissenting.
{¶ 20} Because this case at most involves an error correction,2 I believe that this discretionary appeal was improvidently allowed, and I dissent on grounds
{¶ 21} The problem in this case is that the verdict form contains neither the degree of the offense nor the fact that the controlled substance is cocaine:
We, the Jury in this case, being duly impaneled and sworn, do find the Defendant, Donald Eafford, guilty of Possession of Drugs in violation of
§ 2925.11(A) of the Ohio Revised Code, as charged in Count Two of the indictment.
Count Two of the indictment states more specifically, ”The grand jurors, on their oaths, further find that the Defendant(s) unlawfully did knowingly obtain, possess, or use a controlled substance and the drug involved was cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount of less than 5 grams.” (Emphasis added.) But the verdict did not include this language.
{¶ 22} We have held that “[p]ursuant to the clear language of
{¶ 23} Here, the jury found Eafford guilty of a violation of
{¶ 24} Although the indictment names the offense under Count Two, “possession of drugs, a violation of
{¶ 25} The court of appeals appropriately held that the missing facts could not be supplied by the indictment or cured by the trial court‘s instructions. When the trial judge ignored the verdict form reflecting misdemeanor possession of drugs and sentenced Eafford for felony possession of cocaine, the court substituted its own findings for that of the jury. This situation could have been avoided by the prosecutor‘s careful review of the verdict form before it was submitted to the jury. This case should be dismissed as having been improvidently allowed.
PFEIFER, J., concurs in the foregoing dissenting opinion.
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellant.
Robert L. Tobik, Cuyahoga County Public Defender, and David M. King and John T. Martin, Assistant Public Defenders, for appellee.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Laura R. Swisher, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Franklin County Prosecuting Attorney.