State v. LeonardState v. Leonard
Dennis G. Day, Columbus, Ohio, for Appellant.
C. David Warren, Athens County Prosecutor, and George Reitmeier, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee.
Kline P.J.:
{¶1} Ronald Leonard appeals the judgment of the Athens County Court of Common Pleas. After a jury trial, the trial court found Leonard guilty of third-degree felony cultivation of marihuana in violation of
I.
{¶2} In September 2005, a wildlife technician discovered some marihuana plants while mowing a brushy section of the Fox Lake Wildlife Area in Athens County, Ohio. At about the same time, some confidential informants told Officer Terry Hawk of the Ohio Department of Natural Resources (hereinafter “ODNR“) about suspicious activity in the area. Based on these reports, Officer Hawk and ODNR Officer Thomas Donnelly drove to that seсtion of the Fox Lake Wildlife Area and found marihuana plants growing in two blue pots and one black pot. The two blue pots each contained two marihuana plants. The black pot also contained two marihuana plants and was located about seventy-five yards away from the two blue pots.
{¶3} On September 9, 2005, Officers Hawk and Donnelly set up a surveillance camera in the area of the marihuana plants. The surveillance camera was designed to start recording upon sensing any seismic activity in the area. On September 13, 2005, the surveillance camera recorded a white male approaching the marihuana plants while carrying a blue jug. Subsequently, the seismic activity from a nearby gas line caused the surveillance camera to record near continuоusly. As a result, the surveillance camera quickly ran out of power and recorded nothing else related to the marihuana plants.
{¶4} On September 20 and 21, 2005, Officers Hawk and Donnelly, along with other ODNR officers, set up live surveillance in the area of the marihuana plants. The officers observed nothing related to the marihuana on September 20, 2005. Before starting surveillance on September 21, 2005, one of the officers checked the marihuana in the blue pots and noticed that the soil was dry.
{¶5} At approximately 5:22 p.m. on September 21, 2005, Officer Donnelly observed a red jeep driving towards the area of the marihuana plants. The driver of the red jeep parked in a wooded area, got out of his car, and walked towards the area of the marihuana plants; i.e., the brushy area. Officеr Hawk and another ODNR officer testified that they saw the suspect, later identified as Leonard, carrying a blue jug.
{¶6} Leonard then entered the brushy area that hid the blue pots. After Leonard entered this particular area, Officer Hawk testified that he saw the tops of the marihuana plants move and heard the sound of water pouring. (One of the ODNR officers later checked the blue pots and discovered that the soil was wet.)
{¶7} ODNR Investigator Charles Stone took possession of the marihuana evidence a few days later. Investigator Stone testified that, because he had not worked a marihuana cultivаtion case before, he called the Athens County Prosecutor‘s office for guidance. Investigator Stone further testified that he operated under the following guidelines: “Keeping the three pots separate and removing the leaves and buds from the stalks of each of the two plants in each of the three planters, and putting them in separate boxes. So we ended up with three boxes. And because our scales were not on site at the District office I was given some advice to take it [sic] the State Highway Patrol office in Athens and utilizing their digital scales to weigh the contents of each of the boxes. That process occurred on [September] 26th.” Transcript of Jury Trial Proceedings, Day Two at 221. According to Investigator Stone‘s testimony, the first box of marihuana plants weighed 426.86 grams; the second box of marihuana plants weighed 1,361.10 grams; and the third box weighed 1,079.29 grams. Therefore, according to Investigator Stone‘s testimony, the total weight of the marihuana was 2,867.25 grams.
{¶8} On February 27, 2006, an Athens County Grand Jury indicted Leonard for one count of third-degree felony cultivation of marihuana, in violation of
{¶9} Sometime after Investigator Stone weighed the marihuana, ODNR officers transferred the marihuana evidence to the Ohio Attorney General‘s Bureau of Criminal Identification and Investigation (hereinafter “Ohio BCI” or “BCI“). A BCI analyst weighed the marihuana plants on May 16, 2007. According to the analyst‘s report, the marihuana weighed 747.1 grams. (Investigator Stone weighed the marihuana evidence again on August 28, 2007. The weight obtained by Investigator Stone that day was consistent with the weight obtained by the BCI analyst.)
{¶10} During his arrest on September 21, 2005, Leоnard stated that he took the loose marihuana for his own use and, also, that he was growing the marihuana for his own use. On July 27, 2007, Leonard filed a motion to suppress that statement. Leonard also filed a motion in limine to prohibit the state from introducing into evidence (1) any marihuana seized subsequent to Leonard‘s arrest and (2) the September 13, 2005 surveillance videotape. After a suppression hearing that addressed these issues, the trial court granted the motion to suppress the statement because Leonard had not been read his Miranda rights. However, the trial court denied Leonard‘s motion in limine.
{¶11} On February 4, 2008, Leonard filed a Motion for Disclosure of the Identity of the Informant. The trial court denied that motion. Leonard subsequently filed another motion requesting the confidential informant‘s identity. Again, the trial court denied that motion. On July 7, 2008, the state filed a Notice of Citizen Information. In that Notice, the prosecutor stated that “[g]iven the fact that Supervisor Donnelly was watching for a certain vehicle, it became apparent
{¶12} On July 8, 2008, before the voir dire process in Leonard‘s trial, the judge ruled that the prosecutor should provide the name of the confidential informant to Leonard‘s attorney. The trial court judge said that the prosecutor “did not say that the individual that he‘s told us about and filed a notice about was a confidential informant. He just said it was somebody that they saw therе who gave some general information when asked. And I think to allay any suspicions or anything the name and the address of that person should be given. It doesn‘t have to be published. Just something so counsel can call this person and talk to this person.” Transcript of Jury Trial Proceedings, Day One (Pre-Voir Dire) at 5.
{¶13} The prosecutor provided the name of the informant to Leonard‘s trial counsel. But instead of providing an address or phone number, the prosecutor merely provided a street name. When Leonard‘s trial counsel complained, the trial court offered to help him make contact with the informant. However, it appears that nobody was able to contact the informant before the end of Leonard‘s trial.
{¶14} During the three-day jury trial, the prosecution called Officer Hawk, Officеr Donnelly, Investigator Stone, and two other ODNR officers as witnesses. Leonard called the BCI analyst as a witness. After the trial, the jury found Leonard guilty of cultivation of marihuana, a felony of the third degree.
{¶15} On July 23, 2008, Leonard filed a motion for a new trial pursuant to
{¶16} Leonard appeals his conviction, asserting the following three assignments of error: I. “THE CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” II. “APPELLANT WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT.” And, III. “APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.”
II.
{¶17} In his first assignment of error, Leonard contends (1) that there was insufficient evidence to support his conviction and (2) that his conviction was against the manifest weight of the evidence.
{¶18} Here, based оn the jury‘s verdict, the trial court found Leonard guilty of violating
A. Sufficiency of the Evidence
{¶19} When reviewing a case to determine if the record contains sufficient evidence to support a criminal conviction, we must “examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevаnt inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, ¶33, citing State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319.
{¶20} The sufficiency of the evidence test “raises a question of law and does not allow us to weigh the evidence.” Smith at ¶34, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. Instead, the sufficiency of the evidence test “‘gives full play to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.‘” Smith at ¶34, quoting Jackson at 319. This court will “reserve the issues of the weight given to the evidence and the credibility of witnesses for the trier of fact.” Smith at ¶34, citing State v. Thomas (1982), 70 Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶21} Here, we find sufficient evidence to support Leonard‘s conviction. On September 21, 2005, ODNR officers observed Leonard drive into a secluded area and walk towards the brushy area that contained the marihuana plants. According to Officer Hawk‘s testimony, Leonard was carrying a blue jug at the time. Importantly, on September 13, 2005, the ODNR‘s surveillance camera recorded a white male also carrying a blue jug in the vicinity of the marihuana plants. At the start of the September 21, 2005 live surveillance, the soil in the blue marihuana plant containers appeared to be dry. Officer Hawk testified that he saw the tops of the marihuana plants move and heard the sound of water pouring after Leonard entered the brushy area. And after Leonard had emerged from the brushy area, the soil in the containers was wet. Finally, after ordering Leonard to the ground, ODNR officers found loose marihuana lying next to him.
{¶22} Regarding the weight of the marihuana plants, Investigator Stone testified that he weighed the plants on September 26, 2005. According to Investigator Stone‘s testimony, the first box of marihuana plants weighed 426.86 grams; the second box of marihuana plants weighed 1,361.10 grams; and the third box weighed 1,079.29 grams. Therefore, according to Investigator Stone‘s testimony, the total weight of the marihuana was 2,867.25 grams.
{¶23} Consequently, after viewing the evidence in a light most favorable to the state, we find that any rational trier of fact could have found the essential elements of third-degree felony cultivation of marihuana proven beyond a reasonable doubt.
B. Manifest Weight of the Evidence
{¶25} “Even when sufficient evidence supports a verdict, we may conclude that the verdict is against the manifest weight of the evidence, because the test under the manifest weight standard is much broader than that for sufficiency of the evidence.” Smith at ¶41. When determining whether a criminal conviction is against the manifest weight of the evidence, we “will not reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of the syllabus. See, also, Smith at ¶41. We “must review 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 conviction must be reversed and a new trial granted.” Smith at ¶41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371; Martin at 175. However, “[o]n the trial of a case, * * * the weight to be
{¶26} Here, we also find that Leonard‘s conviction is not against the manifest weight of the evidence. In making this finding, we considered the same evidence that we discussed in our resolution of Leonard‘s sufficiency of the evidence challenge.
{¶27} Unquestionably, Leonard‘s cross-examination of the prosecution‘s witnesses revealed several flaws in ODNR‘s investigation. Most notably, ODNR officers may not have kept appropriate photo logs and apparently mislabeled several photographs. Furthermore, Leonard‘s cross-examination of Officer Hawk and ODNR Officer Robert Nelson called into question whether either officer actually saw Leonard carrying the blue jug. However, in our view, these flaws do not outweigh the following evidence against Leonard: (1) the prosecution‘s eyewitness testimony regarding Leonard‘s actions on September 21, 2005; (2) the wet soil in the blue marihuana plant containers after Leonard left the brushy area; and (3) the loose marihuana found lying next to Leonard after ODNR officers had arrested him.
{¶28} Finally, we must address an argument made by Leonard regarding the weight of the marihuana plants. Leonard argues that Investigator Stone was not qualified to weigh the marihuana plants and, as a result, the evidence did not support a conviction for third-degree felony marihuana cultivation. Leonard bases his argument on
{¶29} However, we believe that Leonard has misinterpreted
{¶30} Next, we will address the discrepancy in the weight of the marihuana plants. The BCI analyst testified that she weighed the marihuana plants on May 16, 2007. According to her report (which meets the requirements of
{¶31} Here, we do not believe that the jury created a manifest miscarriage of justice by convicting Leonard under
{¶32} We believe that our decision in Kuntz is relevant to the present case. In Kuntz, the defendant‘s marihuana weighed over 200 grams at the time of the offense. However, the marihuana weighed less than 200 grams on the day of the defendant‘s trial. In resolving a manifest weight of the evidence challenge, this court upheld the defendant‘s conviction for possession of marijuana weighing over two hundred grams but less than one thousand grams. A police officer testified that, over time, marihuana loses weight because of dehydration. And this court found that testimony to be an “alternate explanation to the theory that the scale [was] inaccurate or unreliable.” Kuntz. Implicit in that finding is our belief that law enforcement officials need not let marihuana “dry out” before weighing it. See, also, Jones at ¶29 (“Although the crack cocaine in count four may not have been as dry as it will be in the future * * * the lab need not allow the crack to dry at all.“). As a result, we cannot conclude that the jury clearly lost its way in resolving the conflict in the evidence between a weight of 2,867.25 grams (a third-degree felony) and a weight of 747.1 grams (a fifth-degree felony).
{¶33} After reviewing the record, we find substantial evidence upon which the jury could have reasonably concluded that all the elements of third-degree felony cultivation of marihuana were proven beyond a reasonable doubt. Therefore, we
{¶34} Accordingly, we overrule Leonard‘s first assignment of error.
III.
{¶35} In his second assignment of error, Leonard contends that the prosecutor‘s misconduct denied Leonard a fair trial. First, Leonard claims that the prosecutor failed to provide Leonard with timely discovery. Leonard further argues that the prosecutor improperly and repeatedly referred to the “suppression hearing” during the trial.
{¶36} The test for prosecutorial misconduct is whether the conduct was improper and, if so, whether the rights of the accused were materially prejudiced. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, at ¶45, citing State v. Smith (1984), 14 Ohio St.3d 13, 14; State v. Givens, Washington App. No. 07CA19, 2008-Ohio-1202, at ¶28. “The ‘conduct of a prosecuting attorney during trial cannot be grоunds for error unless the conduct deprives the defendant of a fair trial.‘” Givens at ¶28, quoting State v. Gest (1995), 108 Ohio App.3d 248, 257. See, also, State v. Keenan (1993), 66 Ohio St.3d 402, 405; State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. “Prosecutorial misconduct constitutes reversible error only in rare instances.” State v. Edgington, Ross App. No. 05CA2866, 2006-Ohio-3712, at ¶18, citing Keenan at 406. The “touchstone of analysis * * * is the fairness of the trial, not the culpability of the prosecutor. * * * The Constitution does not guarantee an ‘error free, perfect trial.‘” Gest at 257 (citations omitted); Edgington at ¶18.
A. The Failure to Provide Timely Discovery
{¶37} Leonard argues that the prosecutor engaged in misconduct by failing to provide timely discovery. As part of this argument, Leonard contends that the prosecutor failed to provide timely discovery of relevant videotapes and an evidence report. However, Leonard makes no attempt to explain how he would have benefited from the timely disclosure of these items. Therefore, Leonard cannot demonstrate that the prosecution‘s failure to provide timely discovery of the videotapes or the evidence report resulted in either prejudice or an unfair trial. See, e.g., State v. Chatman, Franklin App. No. 08AP-803, 2009-Ohio-2504, at ¶55 (“[W]ithout any evidence, we are left only with speculation and conjecture, and cannot find prosecutorial misconduct, much less prejudice to the defendant, based on the same.“). Accordingly, we cannot find misconduct based on the prosecutor‘s failure to provide timely discovery of the videotapes and the evidence report.
{¶38} Leonard also contends that the prosecutor engaged in misconduct by failing to reveal the identity of the confidential informant. Even though the trial court ordered a limited disclosure of the informant‘s identity just before trial, Leonard has not demonstrated that the prosecutor was required tо reveal the identity of the confidential informant at any time. “Courts have held consistently that where the informant was not an active participant in the criminal activity, but only a tipster, disclosure is not required[.]” State v. Parsons (1989), 64 Ohio App.3d 63, 67-68. See, also, State v. Bays, 87 Ohio St.3d 15, 25, 1999-Ohio-216. Here, there is no evidence that the confidential informant was an active participant in the cultivation of marihuana.
{¶39} “Additionally, it is clear that the burden rests with defendant to establish the need for disclosure. * * * Something more than speculation about the possible usefulness of an informant‘s testimony is required. The mere possibility that the informer might somehow be of some assistance in preparing the case is not sufficient to satisfy the test that the testimony of the informant would be helpful or beneficial to the accused in preparing or making a defense to criminal charges.” Parsons at 69 (citations оmitted). Here, Leonard freely admits that “whether the defendant would have benefited from the information sought [the identity of the confidential informant] cannot be demonstrated.” Brief of Appellant at 18.
{¶40} For the foregoing reasons, we cannot find misconduct based on the prosecutor‘s failure to reveal the identity of the confidential informant.
B. References to the Suppression Hearing
{¶41} We also find that the prosecutor‘s references to the suppression hearing do not warrant reversal. The prosecutor mentioned the suppression hearing twice during the trial. The state claims that “[t]he second reference was objected to by the defense and sustained.” Brief of Appellee State of Ohio at 11. However, we do not agree with the state‘s description of this sequence of events. The transcript reveals the following exchange between the prosecutor and Officer Hawk:
{¶42} “Q: (Inaudible) suppression hearing in October of 2007, weren‘t you?
{¶43} A: Yes.
{¶44} Q: And that had to do with statements, didn‘t it?
{¶45} A: Pardon?
{¶46} BY [LEONARD‘S TRIAL COUNSEL]: Objection.
{¶47} Q: The suppression.
{¶48} BY [LEONARD‘S TRIAL COUNSEL]: Objection.
{¶49} BY THE JUDGE: Basis, counsel?
{¶50} BY [LEONARD‘S TRIAL COUNSEL]: Can we approach?
{¶51} BY THE JUDGE: Yes you can.
{¶52} BENCH CONFERENCE
{¶53} BY [LEONARD‘S TRIAL COUNSEL]: (Inaudible) statements that were being made (inaudible) court issued an order as to what was suppressed. I think it‘s highly inappropriate now to infer (inaudible) statements were an issue and that he‘s not going to be able to elaborate in the presence of the jury. Thank you.
{¶54} * * *
{¶55} BY THE JUDGE: [Leonard‘s trial counsel] has been very careful to always refer to it as a hearing. He never said what kind of a hearing. You have referred to it as what kind of hearing it was. If he had made an objection to that point I would have sustained his objection because I don‘t think the jury needs to know that.
{¶56} BY [THE PROSECUTOR]: Okay.
{¶57} BY THE JUDGE: And they don‘t need to know what the subject was for that hearing. Objection sustained. ” Day Two Transcript at 159-160 (emphasis added).
{¶58} Basеd on the trial transcript, we do not believe that Leonard‘s trial counsel objected to the mere mention of the suppression hearing. Instead, we believe that Leonard‘s trial counsel objected to the prosecutor‘s reference to the subject matter of the suppression hearing; that is, Leonard‘s suppressed statement about the marihuana. As a result, “[e]ven if the prosecutor‘s remark [about the subject matter of the suppression hearing] is considered misconduct, it lacks prejudicial effect warranting reversal because the court sustained [Leonard‘s] objection.” State v. Carter, Mahoning App. No. 06-MA-187, 2009-Ohio-933, at ¶89, citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, at ¶94.
{¶59} Contrary to the state‘s assertions, we believe that Leonard‘s trial counsel failed to object to the prosecutor‘s second reference to the suppression hearing. For that rеason, Leonard has forfeited all but plain error on this issue. See State v. Williams, 79 Ohio St.3d 1, 12 (applying the plain error standard to a prosecutorial misconduct claim).
{¶60} Pursuant to
{¶61} Here, we have already found that substantial evidence supports Leonard‘s conviction. Therefore, we do not believe that the jury convicted Leonard because of the prosecutor‘s references to the suppression hearing. In other words, we believe that Leonard would have been convicted even if the prosecutor had never referred to the suppression hearing during the trial. And as a result, those references do not constitute plain error.
{¶62} Accordingly, for the foregoing reasons, we overrule Leonard‘s second assignment of error.
IV.
{¶63} In his third assignment of error, Lеonard contends that he received ineffective assistance of counsel for the following reasons: Leonard‘s trial counsel (1) failed to object to improper statements and testimony; and (2) filed
{¶64} “‘In Ohio, a properly licensed attorney is presumed competent and the appellant bears the burden to establish counsel‘s ineffectiveness.‘” State v. Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶20, quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473; State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, cert. den. Hamblin v. Ohio (1988) 488 U.S. 975. To secure reversal for the ineffective assistance of counsel, one must show two things: (1) “that counsel‘s performance was deficient* * * ” which “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and (2) “that the deficient рerformance prejudiced the defense* * *[,]” which “requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687. See, also, Countryman at ¶20. “Failure to satisfy either prong is fatal as the accused‘s burden requires proof of both elements.” State v. Hall, Adams App. No. 07CA837, 2007-Ohio-6091, at ¶11, citing State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, at ¶205.
A. Failing to Object to Improper Statements and Testimony
{¶65} Leonard claims ineffective assistance of counsel because his trial counsel failed to object to statements and testimony regarding the suppression hearing. Leonard also claims that his trial counsel should have objected to the following testimony from Officer Donnelly: “Well Mr. Leonard kind of disappeared
{¶66} First, Leonard has not overcome the presumption that his trial counsel‘s failure to object to the relevant statements and testimony might be considered sound trial strategy. “When considering whether trial counsel‘s representation amounts to deficient performance, ‘a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.’ * * * Thus, ‘the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.‘” State v. Dickess (2008), 174 Ohio App.3d 658, 2008-Ohio-39, at ¶61, quoting Strickland at 689.
{¶67} Here, Leonard‘s “[c]ounsel could reasonably have decided against raising an objection * * * for fear that an objection would only call the jury‘s attention to the [suppression hearing.]” State v. Patrick (Sept. 8, 1994), Lawrence App. No. 94CA02. See, also, State v. Dixon, 152 Ohio App.3d 760, 2003-Ohio-2550, at ¶42-43; State v. Zack (June 14, 2000), Lorain App. Nos. 99CA007321, 98CA007270; State v. Lawson (June 4, 1990), Clermont App. No. CA88-05-044. This is especially true because Leonard‘s trial counsel did object
{¶68} Furthermore, Leonard has not demonstrated that his trial counsel‘s failure to object to the relevant statements deprived Leonard of a fair trial. Leonard claims that the jurors were free to form a picture of Leonard as an “obstructionist who was on the lam,” but we can only speculate as to whether the jurors actually formed such a picture. “Speculation regarding the prejudicial effects of counsel‘s performance will not establish ineffective assistance of counsel.” State v. Cromartie, Medina App. No. 06CA0107-M, 2008-Ohio-273, at ¶25, citing State v. Downing, Summit App. No. 22012, 2004-Ohio-5952, at ¶27.
B. Ineffective Motions
{¶69} Leonard also argues that his trial counsel filed ineffective motions. First, Leonard claims ineffective assistance of counsel based on the motion to exclude the marihuana evidence. Leonard contends that his trial counsel “should have sought to exclude the evidence of weight offered by [Investigator Stone] on the grounds that he did not qualify as an analyst under [R.C.] 2925.51 and he would not otherwise qualify as an expert under Evidence Rule 702.” Brief of Appellant at 20-21. We have already found that Leonard has misinterpreted
{¶70} Similarly, we cannot find ineffective assistance of counsel for reasons related to
{¶71} We do not believe that weighing marihuana plants requires any “specialized knowledge, skill, experience, training, or education[.]”
{¶72} Leonard also claims ineffective assistance of counsel because his trial counsel failed to include sufficient information in the motion to disclose the confidential informant‘s identity. As we discussed in the resоlution of Leonard‘s second assignment of error, Leonard freely admits that he does not know whether he would have benefited from knowing the identity of the confidential informant. Therefore, Leonard can only speculate as to whether he was prejudiced by his trial counsel‘s performance. Again, mere speculation is not enough to satisfy the second prong of the Strickland test. See Cromartie at ¶25.
{¶73} And finally, Leonard claims ineffective assistance of counsel because his motion for a new trial did not include the necessary supporting affidavits. In relevant part, Leonard‘s new trial motion made arguments under
{¶74} Accordingly, for the foregoing reasons, we overrule Leonard‘s third assignment of error. Having overruled all of Leonard‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
{¶75} Based upon the specific facts in this case, I concur in the principal opinion‘s conclusion that Leonard‘s conviction for cultivation of marihuana as a felony of the third degree is supported by the weight of the evidence. Initially, it is apparent that Leonard has benefited from the wildlife officer‘s decision to separate the leaves and buds of the plants from the stalks before weighing them. In State v. Wolpe (1984), 11 Ohio St.3d 50, the Supreme Court of Ohio held in a per curiam opinion that in a prosecution for trafficking marihuana, the State had no burden of separating any statutorily excluded portions of the plant from the quantity seized before weighing it. Id. at 52. The court reviewed the statutory definition of marihuana found in
“Marijuana” means all parts of any plant of the genus cannabis, whether growing or not, * * * (.)
Even though the definition went on to exclude mature stalks, sterilized seeds, and legitimately processed derivatives of the plant, the court held those materials need not be excluded from the weight of the plant unless they had already been separated (for legitimate use) from the plant at the time of seizure. In other words, the exclusion of mature stalks, sterilized seeds and by-products only applies where the substance consists solely of the excluded materials. As a consequence, the State has no burden to separate any statutorily excluded portions of the plant from the quantity of marihuana seized from a suspect. Id. This interpretation should also apply in cultivation cases like the one before us. Thus, the weight could have included the stalks that the officer chosе not to use.
{¶76} More important, however, is Leonard‘s implicit assertion that the “dry weight” is the only proper measure of the quantity because the marihuana must be usable or suitable for consumption before it is measured. I see nothing in the statute‘s definition that supports this proposition. Moreover, it is reasonable to conclude that the moisture of the wet marihuana plant comes within the definition of marihuana found in the statute because water is a natural component of the plant. For a more detailed discussion of the issue of dry weight verses wet weight, see North Carolina v. Gonzales (2004), 596 S.E.2d 297, affirmed without opinion in State v. Gonzales (2005), 359 N.C. 420, 611 S.E.2d 832.
{¶77} However, I do recognize some concern over the inconsistent protocols used by different law enforcement agencies to determine the weight of marihuana. It seems somewhat arbitrary that one defendant сould get charged with an elevated felony because an agency chose to use a “wet weight,” while another defendant with an identical quantity of cannabis could face a lesser charge because a different agency used a “dry weight” measurement. Perhaps a legislatively or administratively mandated protocol is necessary to avoid unequal arbitrary application of the statute. However, that question is not presently before us.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J.: Concurs in Judgment and Opinion with Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ______________________________
Roger L. Kline, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.