State v. SowryState v. Sowry
{¶ 1} Defendant, Stephen Sowry, appeals from his conviction for knowingly conveying drugs onto the grounds of a detention facility in violation of R.C 2921.36(A)(2), a felony of the third degree.
{¶ 2} Sowry was arrested by West Milton police on June 30, 2001, on charges of disorderly conduct and resisting arrest. A patdown failed to reveal any weapons or contraband. Sowry was transported to the Miami County Jail by officers.
{¶ 3} At the jail, Sowry was asked whether he had any drugs on his person. He replied, “No.” A more thorough search when he was booked in revealed a baggie of marijuana in his right front pants pocket.
{¶ 5} Sowry filed a timely notice of appeal. We granted his motion for release on bond pending appeal. Sowry presents three assignments of error. We will address the second of those first, as its resolution renders the other two moot.
SECOND ASSIGNMENT OF ERROR
{¶ 6} “The court prejudicially erred in failing to grant the defendant’s motion for Rule 29 judgment of acquittal, for the reason that the evidence was insufficient as a matter of law to sustain a conviction in this case.”
{¶ 7} Defendant moved for a judgment of acquittal at the close of the state’s case, citing the requirements for criminal liability in
{¶ 8} When determining a
{¶ 9}
{¶ 10} It is undisputed that the marijuana that was in Sowry’s pants pocket when he was brought to the jail and which police found when he was searched there is a drug of abuse as defined by
{¶ 11}
{¶ 12} “Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:
{¶ 13} “(1) The person’s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;
{¶ 14} “(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.”
{¶ 15} Subdivision (B) of
{¶ 16} The “voluntary act” or “omission” requirement of
{¶ 17} The conduct that a prohibited act involves must be voluntary in order for criminal liability to result. A reflexive or convulsive act is not voluntary and thus cannot be the basis of criminal liability.
{¶ 18} Sowry was arrested by police before he was brought to jail, and he was brought to jail under arrest. By suffering arrest or seizure of his person, Sowry was deprived of the fundamental, common-law “right of every individual to the possession and control of his own person.”
Union Pacific Ry. Co. v. Botsford
(1891),
{¶ 19} Exercising the power to control his person which their arrest of Sowry conferred on them, officers conveyed Sowry to and into the jail to facilitate his detention. That his “person” and the possessions on his person were in the jail
{¶ 20} The state argues that Sowry acted knowingly because he responded “No” when he was asked at book-in whether he had any drugs, adding: “The Appellant chose not to be honest, and that was to his detriment.” (Brief, at 5.)
{¶ 21} The state’s assertion relates more to the culpable mental state that a violation of
{¶ 22} At most, Sowry might be charged with knowing that drugs were on his person when officers conveyed him to jail. However, as we said above, the law will not punish for a guilty mind alone. Because Sowry’s conduct with respect to the
{¶ 23} The second assignment of error is sustained. Sowry’s first and third assignments of error, which concern a pretrial motion to suppress evidence and the manifest weight of the evidence on which he was convicted, respectively, are rendered moot by our resolution of Sowry’s second assignment of error. Therefore, per
{¶ 24} Having sustained the second assignment of error, we will reverse and vacate Sowry’s conviction for a violation of
Judgment accordingly.