STATE OF OHIO, Plaintiff-Appellee, v. TERRY SCHWAB, Defendant-Appellant.
Case No. 12CA39
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
RELEASED: 01/21/14
[Cite as State v. Schwab, 2014-Ohio-336.]
Harsha, J.
DECISION AND JUDGMENT ENTRY GRANTING APPLICATION FOR RECONSIDERATION
David J. Winkelmann, Athens, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, for appellee.
Harsha, J.
{¶1} The state of Ohio, seeks reconsideration of our decision in State v. Schwab, 4th Dist. Athens No. 12CA39, 2013-Ohio-4349, which sustained appellant Terry Schwab‘s first assignment of error and reversed his conviction for corrupting another with drugs.
{¶2} Becаuse the state‘s unopposed motion calls to our attention an error in our holding that was not fully considered when it should have been, we grant the motion. In our decision we hеld that there was insufficient evidence to support Schwab‘s conviction for corrupting Tara Crego, the minor daughter of his fiancée, because the state failed to intrоduce evidence that he furnished or administered Oxycodone to Crego during the March 9 incident.
{¶3} However, the trial court instructed the jury that for purposes of the
I. FACTS
{¶4} A jury convicted Schwab of multiple offenses stemming from two separate incidents. For the March 9, 2011 incident, the jury found him guilty of complicity to aggravated trafficking in drugs (Oxycodone) in the vicinity of a juvenile, (2) corrupting another with drugs (Oxycodone), and (3) complicity to trafficking in drugs (Alprazolam) in the vicinity of a juvenile. For the April 1, 2011 incident, the jury found him guilty of (1) corrupting another with drugs (Oxycodone), and (2) complicity to aggravated possession of drugs (Oxycodone) in an amount equal to or in excess of five times the bulk amount but less than 50 times the bulk amount.
{¶5} After sentencing Schwab appealed, claiming in his first assignment of error that insufficient evidence exists to support his convictions and claiming in his second assignment of error that his convictions are against the manifest wеight of the evidence. We sustained that portion of Schwab‘s first assignment of error concerning
{¶6} The state filed an application for reconsideration under
II. ASSIGNMENT OF ERROR
{¶7} The state assigns the following error for our review:
Assignment of Error I: This Cоurt erred when it found that there was no evidence that Appellant furnished or administered Oxycodone to Crego during the March 9 controlled drug purchase.
III. STANDARD OF REVIEW
{¶8} The test generally аpplied upon the filing of a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court an obvious errоr in its decision or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been. State v. Gregory, 4th Dist. Pickaway No. 97CA33, 1998 WL 914242; State v. Wheeler, 4th Dist. Washington No. 04CA1, 2005-Ohio-479, ¶ 7.
IV. LAW AND ANALYSIS
{¶9} The state argues in its unоpposed motion for reconsideration that we erred in finding that there was no evidence that Schwab furnished or administered Oxycodone to Crego for the March 9 incident. In partially sustaining Schwab‘s first assignment of error for this incident, we relied on the Black‘s Law Dictionary definition of
Black‘s Law Dictionary 466 (Abridged 6th Ed.1991) defines “furnish” to mean “[t]o supply, provide, or equip, for accomplishment of a particular purpose.” For the March 9 incident, we conclude there is no еvidence Schwab supplied, provided, or equipped Crego with Oxycodone for any purpose. All of the evidence indicates Crego handled the Xanax and Fidell hаndled the Oxycodone during the transaction with Vore. Because no evidence exists that Schwab furnished or administered Oxycodone to Crego during the March 9 incident, we find there is insufficient evidence to support that conviction for corrupting another with drugs and reverse it.
{¶10} Nevertheless, as the state now brings to our attention on reconsideration, thrоugh counsel Schwab stipulated to the trial court‘s jury instructions, which defined “furnished” with the language used in Ohio Jury Instructions at CR Section 525.02(9), as meaning “provided, supplied, or gave access to.” And in his appellate brief, Schwab conceded that Crego‘s trial testimony established that he “kept his medications in a kitchen cabinet, to which anyone in the home had access.” (Emphasis added.) See also State v. Hardison, 9th Dist. Summit No. 23050, 2007-Ohio-366, ¶¶ 28-31 (conviction for corrupting another with drugs under
{¶11} Under these unique circumstances—(1) Schwab‘s waiver of any error in the trial court‘s jury instructions on this point, see State v. Alexander, 4th Dist. Adams No. 12CA945, 2013-Ohio-1913, ¶ 27 (failure to object to jury instructions at trial waives all but plain error on appeal), (2) his failurе to claim plain error regarding this issue on appeal, (3) his admission that Schwab, in effect, furnished the Oxycodone to Crego on
{¶12} By not objecting to the jury instructions on this point or raising the specific issue of impropriety of the instructions on appeal and admitting that Schwab gave Crego access to the Oxycodone on March 9, Schwab essentially conceded that there was sufficient evidence to support his conviction. As noted in our opinion, “Schwab does not dispute the fact that he knew Crego was a juvenile when the March 9 incident occurred” and he “also does not dispute the fact that she was at least two years his junior.” Schwab at ¶ 31.
{¶13} And after reviewing the entire record we cannot say that the jury either lost its way or created a manifest miscarriage of justice when it found him guilty of corrupting Crego with drugs in the March 9 incident. That is, the conviction for corrupting another with drugs was not against the manifest weight of the evidence. By so holding, we leave open the issue not raised herе of whether the trial court‘s instructions were appropriate. The mere fact that these instructions followed the one set forth in Ohio Jury Instructions did not insulate it from potential error. See State v. Burchfield, 66 Ohio St. 3d 261, 263, 611 N.E.2d 819 (1993) (“While [Ohio Jury Instructions] is widely used in this state, its language should not be blindly аpplied in all cases“).
V. CONCLUSION
APPLICATION GRANTED AND JUDGMENT AFFIRMED.
It is ordered that the APPLICATION FOR RECONSIDERATION IS GRANTED, JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is оrdered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period nоt to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an apрlication for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, оr the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 оf the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as оf the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur.
For the Court
BY: _________________________
William H. Harsha, 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.