2006 Ohio 2483 | Ohio Ct. App. | 2006
{¶ 2} On June 3, 2005, on direct appeal, this court affirmed appellant's conviction. See State v. Stigall, 6th Dist. No. L-03-1348,
{¶ 3} Appellant now raises the following assignments of error:
{¶ 4} "Assignment of Error I
{¶ 5} "The evidence was insufficient to sustain a verdict for trafficking in cocaine in the vicinity of a school.
{¶ 6} "Assignment of Error II
{¶ 7} "The trial court committed plain error when it failed to instruct the jury that the culpable mental state of recklessness applied to the offense of trafficking in cocaine `in the vicinity of a school.'"
{¶ 8} In appellant's first assignment of error he argues that the evidence was insufficient to convict him of the offense of trafficking in cocaine in the vicinity of a school. In determining whether a verdict is supported by sufficient evidence "[t]he relevant 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. Jenks (1991),
{¶ 9} Appellant was convicted of R.C.
{¶ 10} In the present case, appellant argues that the state failed to prove the requisite mental state with regard to selling cocaine in the vicinity of a school. In State v. Lozier (2004),
{¶ 11} "[W]hen, with heedless indifference to the consequences, [a person] perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." R.C.
{¶ 12} At appellant's trial in this matter, testimony was presented establishing that appellant had, in fact, sold crack cocaine within one thousand feet of a school. Toledo Police Detective Chad Culpert testified that he obtained a measurement of 450 feet from the intersection of the drug transaction onto the property of the school. However, after careful review of the record, we find it devoid of evidence that appellant recklessly "disregarded a known risk" that a school was nearby when he sold crack cocaine. Appellant testified but no inquiries were made regarding the school, no evidence was presented that appellant lived near the school, and the transaction occurred at night. Accordingly, we find that appellant's first assignment of error is well-taken.
{¶ 13} In appellant's second assignment of error he argues that the trial court committed plain error when it failed to instruct the jury that the culpable mental state of recklessness applied to the offense. When instructing the jury on the "vicinity of a school" element, the trial court stated:
{¶ 14} "You are instructed that, as a matter of law, crack cocaine is a controlled substance. If your verdict is guilty you will separately decide, beyond a reasonable doubt, whether the Defendant committed the offense in the vicinity of a school. An offense is committed in the vicinity of a school if the offender commits the offense on the school premises, in a school building or within 1000 feet of the boundaries of any school premises."
{¶ 15} Based on the foregoing, we find that, contrary toLozier, supra, the trial court failed to instruct the jury on the "vicinity of a school" culpable mental state of recklessness. Appellant's second assignment of error is well-taken.
{¶ 16} On consideration whereof, we find that appellant was prejudiced and prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is reversed and appellant's conviction under the R.C.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Handwork, J. Pietrykowski, J. Parish, J. concur.
