C-870092 | Ohio Ct. App. | Dec 23, 1987
In this appeal, we revisit the question of whether the simultaneous transportation or possession of the two Schedule II controlled substances is a single offense. We also consider whether the transportation and the possession of a single controlled substance are allied offenses of similar import in this case, and whether the trial court should have suppressed evidence that was seized from a vehicle when the driver was observed making a furtive movement after the pursuing officers had activated the siren and blue flashing lights on the pursuing police cruiser. In our disposition of the three assignments of error, the last shall be first.
Defendant-appellant, David Jennings (defendant) was arrested and charged with four drug offenses. An undercover police officer observed in traffic an automobile that belonged to one Aaron Pryor, who was wanted on a felony drug warrant. The officer and his supervisor called on two uniformed police officers in a marked police cruiser to stop the automobile, and all four officers joined the chase. The uniformed officers pulled in behind Pryor's automobile and turned on the siren and flashing blue lights. The driver did not immediately pull over to the curb and stop but continued on for an appreciable distance (perhaps several city blocks). One of the uniformed officers saw the driver lean forward and with his right hand fumble with or push an unseen object underneath or between the seats. All four officers were at the scene when the suspected automobile stopped. One uniformed officer ordered the driver to step out of the vehicle and to place his hands on the automobile top, simultaneously telling an undercover officer to look underneath or between the front seats. The driver was patted down and nothing of significance was found on his person. Concurrently, the undercover officer saw the corner of a plastic bag between the seats, removed it and found inside it a bundle of numerous smaller packages (plastic Ziploc bags) containing the drugs that the defendant was charged with transporting and possessing.
The driver was not Aaron Pryor, as was first thought, but David Jennings, the defendant in this case. Only one of the four police officers knew Aaron Pryor and realized that he was not the driver at the moment when the driver emerged from the vehicle and stood up. The record is not clear when that officer advised the others of this fact.
The Ziploc bags contained various quantities of Tylox, Percodan and cocaine (as well as another drug that is not "controlled"). The four counts of the indictment charged defendant with the following violations: *181
Description Count Substance Schedule of Offense Statute First Percodan II Transportation R.C.
2925.03 (A)(2) (Oxycodone) Second Cocaine II Transportation R.C.2925.03 (A)(2) Third Cocaine II Possession R.C.2925.11 Fourth Tylox II Possession R.C.2925.11 (Oxycodone)
The principal ingredient of both Tylox and Percodan is oxycodone, which is listed as a controlled substance in Schedule II(A)(1)(n) of R.C.
After his arrest, the defendant admitted that he had been sent by Aaron Pryor in Pryor's automobile to a specific location to buy drugs for $800 in cash.
Defendant moved to suppress the substances seized in the automobile search and his post-arrest statement, for the reason that the arrest was not supported by probable cause. The motion was heard and overruled, and the case went to a jury trial. The jury returned guilty verdicts for all four counts, and the court imposed sentences on all four, as follows: consecutive sentences for the two possession violations (that is, the sentences under the third and fourth counts were ordered to be served concurrently with each other and concurrently with the sentences under the first and second counts).
In his third assignment of error, the defendant contends that the denial of his motion to suppress was erroneous, arguing that the recognition by one of the officers that the driver was not Aaron Pryor removed all justification for the warrantless search of the vehicle and the defendant's subsequent arrest and confession. We find no merit in this assignment of error. The furtive movement of the driver in a vehicle owned by a wanted fugitive, while being pursued by police who had turned on their siren and flashing lights, was amply sufficient to cause a reasonable person to take precautions for his own safety, irrespective of whether the driver was the wanted fugitive, an acquaintance of his, or a thief.
In his first assignment of error, the defendant argues that separate sentences for all four drug offenses were erroneous because all four were Schedule II controlled substances. In other words, he contends that the simultaneous possession (or other prohibited act) of Schedule II substances constitutes a single offense. This is the same argument that we considered and rejected in State v. Jackson (July 17, 1985), Hamilton App. Nos. C-840799 and C-840804, unreported. We held in that case that the simultaneous possession of Talwin (Schedule IV), Preludin (Schedule II) and cocaine (Schedule II) is neither a single offense nor a grouping of allied offenses of similar import.
In State v. Jackson, supra, seeking to understand the legislative intent in the absence of any clear statement in R.C. Chapter 2925 or 3719, we turned to the design or structure of these two chapters. Our examination was made in conjunction with the presumptions, set forth in R.C.
The main purpose of grouping these identifiably harmful drugs in schedules is, we believe, to classify them for purposes of penalty, because in R.C.
We note that the legislature defined the offenses (possession or any other criminal act, such as sale, transportation, preparation for delivery, cultivation, etc.) in terms of "a" controlled substance, meaning any one controlled substance, rather than in terms of "any" controlled substance or "any controlled substances of the same schedule." R.C.
The defendant contends that our interpretation was rejected by the Ohio Supreme Court in State v. Delfino (1986),
Turning to the exact point decided in State v. Delfino, supra,
it was held that simultaneous possession of marijuana (Schedule I) and cocaine (Schedule II) constitutes two separate offenses. That decision is entirely consistent with State v. Jackson,supra. The defendant points to the fact that the Supreme Court went on to remark in State v. Delfino, supra, at 274, 22 OBR at 446,
"* * * This court specifically holds that possession of a substance or substances in Schedule I or II, with the exception of marijuana, is a single and separate offense under R.C.
We do not assign a determinative significance to these remarks for two reasons: they were not necessary to *183 the precise point decided, and they were not incorporated in the syllabus.
We adhere to our position that simultaneous possession (or any other prohibited act) of more than one Schedule II controlled substance constitutes more than one offense. We find that other courts have come to the same conclusion. State v. Ingram (Mar. 31, 1987), Highland App. No. 600, unreported; State v. Hearns (Nov. 27, 1985), Summit App. No. 12093, unreported; State v.Norman (Aug. 15, 1985), Montgomery App. No. CA 8816, unreported. We overrule the first assignment of error.
In his second assignment of error, the defendant advances the argument that separate sentences (or convictions) for both the possession and the transportation of the same controlled substances were erroneous. It will be remembered that the only quantities of cocaine and of oxycodone were those in the Ziploc bags found between the front seats of the automobile the defendant was driving. There were no other quantities in the vehicle or on the defendant's person. Further, the only act of defendant prohibited by R.C.
The state points to the fact that the defendant did not raise the issue of double sentencing prior to the imposition of the sentences or otherwise call the matter to the trial court's attention, claiming that this court need not consider the error under State v. Williams (1977),
The second assignment of error has merit. We reverse the sentences imposed, without disturbing either the verdicts or the judgments of guilty (or the denial of the motion to suppress), and we remand this case for resentencing consistent with this opinion.
Judgment accordingly.
DOAN and HILDEBRANDT, JJ., concur.
"Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe such drug is intended for sale or resale by the offender or another[.]"