534 N.E.2d 904 | Ohio Ct. App. | 1987
These causes came to be heard upon appeals from the Court of Common Pleas of Hamilton County. The two appeals were consolidated.
Defendant-appellant, Ronald Whiting, was convicted of a felony drug abuse offense. He now brings this timely appeal in which his counsel asserts four assignments of error.1
The record reveals that Whiting was indicted for the commission of acts prohibited by R.C.
In his first assignment of error, Whiting asserts that the jury verdict was insufficient to sustain a sentence for a second- or third-degree felony. We agree and emphasize that the assignment does not contend the verdict is not supported by sufficient evidence.
The statute violated, R.C.
In the case sub judice, Whiting was indicted for an offense constituting aggravated trafficking with the specification of a prior conviction for a felony drug abuse offense. The verdict form, however, finds Whiting guilty of trafficking in drugs and specifies a prior conviction for trafficking in drugs.2 The discrepancy between the indictment and the verdict form is sufficient to cast doubt upon the jury's verdict and create the need for a new trial because, under the facts of the case on review, trafficking in drugs cannot be a lesser included offense of aggravated trafficking. The appellant's first assignment of error is sustained.
In his second assignment of error, Whiting asserts that the trial court erred in admitting into evidence a syringe that was in the possession of the co-defendant James Robinson when Robinson was arrested. We agree. It was incumbent upon the state to prove that Whiting prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed a controlled substance, when he knew or had reasonable cause to *109
believe that such drug was intended for sale or resale by himself or another. R.C.
In his third assignment of error, Whiting asserts that the trial court erred in failing to grant his motion for a view of the premises from which the officers observed the transaction between Whiting and Robinson. The test, upon review, is whether the trial court abused its discretion in denying the request.Calloway v. Maxwell (1965),
Whiting contends, in his fourth assignment of error, that his conviction was against the weight of the evidence. We have reviewed the evidence in this case excluding the evidence erroneously admitted. We do not find that, in resolving the conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice. State v. Martin
(1983),
The judgment of the trial court is reversed and the cause is remanded for a new trial.
Judgment reversed and cause remanded.
KLUSMEIER, P.J., SHANNON and HILDEBRANDT, JJ., concur.