 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
DRUG TRAFFICKING: COUNTERFEIT SUBSTANCE. State v. Elliott, No. 8646.1, (8th Dist. Ct. Apps., Cuyahoga Co. 3-9-06). Andre Elliott was convicted of trafficking in a counterfeit controlled substance, R.C. 2925.37, and drug trafficking, 2925.03, for selling what he falsely claimed to be cocaine. The Cuyahoga County Court of Appeals held that the proscribed conduct under R.C. 2925.03(A)(1) is an "offer to sell." Relying on the Ohio Supreme Court's having accepted but not yet decided State v. Chandler (See note), the appellate court reduced his conviction, however, to a fifth degree felony, as the state failed to prove that a specific amount of drug existed, as required under R.C. 2925.03 (C)(4)(a). The court otherwise affirmed his convictions. [Ed. Note: On May 24, 2006, the Ohio Supreme Court in State v. Chandler, 109 Ohio St. 3d 223, 2006 Ohio 2285, 2006 Ohio LEXIS 1423, went further than the appellate court in Elliott. The Ohio Supreme Court held that S.B. 2 changed the law so that prior cases, holding that a defendant who "offers to sell" a drug but sells a substance not a drug may still be convicted of trafficking, are no longer good law. Although the Ohio Supreme Court held that a guilty verdict may be returned against a defendant who offers to sell a drug without delivering any substance under R.C. 2925.03(A), a defendant cannot be sentenced under R.C. 2925.03(C), unless the drug is real. Although the Ohio Supreme Court's holding is limited to the facts of the case before it, to wit: "We hold that the statute is clear and that a substance offered for sale must contain some detectable amount of the relevant controlled substance before a person can be sentenced as a major drug offender under R.C. 2925.03(C)(4)(g)," the effect of the court's ruling is that a defendant may be found guilty of violating R.C. 2925.03(A) for offering to sell a counterfeit substance, but may not be sentenced for the crime. "The General Assembly has authorized a hierarchy of criminal penalties for drug trafficking based upon the identity and amount of the controlled substance involved. By the terms of the penalty statute for cocaine, R.C. 2925.03(C)(4), the substance involved in the violation is to be cocaine or, at the very least, "a compound, mixture, preparation, or substance containing cocaine." This language presumes that a detectable amount of cocaine is present within the substance before the penalty enhancement applies." The Ohio Supreme Court continued that a defendant can be sentenced for selling a counterfeit substance only under R.C. 3925.37 and 2925.38.]
CONFRONTATION: 911 CALLS NON-TESTIMONIAL. State v. Gentry, No. 21108, (2nd Dist. Ct. Apps., Montgomery Co., 5-19-06). The trial court in a bench trial convicted Michael Gentry of felonious assault on a police officer. Officers responded to several 911 calls reporting that a naked man was running through the streets, breaking windows, and threatening to use a pole he carried to kill people. When officers arrived, Michael Gentry, fitting the descriptions in the 911 calls, tried to attack the officers. Police subdued him with a taser gun. On appeal, Gentry argued that admitting evidence of the 911 calls violated Crawford v., Washington (2005), 541 U.S. 36. The court of appeals found the calls non-testimonial and affirmed the conviction. [Ed. Note: On June 19, 2006, the United States Supreme Court decided Davis v. Washington, 547 U.S.___, No 05-5224 and Hammon v. Indiana, No 05-5705. Davis involved 911 calls; Hammon involved a woman's statements to a police officer who came to her home to investigate a domestic violence accusation. The United States Supreme Court held the 911 calls admissible and the woman's statements inadmissible. Unfortunately, Justice Scalia's opinion in Davis, which he claims more carefully defines "testimonial" is just as confusing as was Crawford. Some language is good for prosecutors and some language is bad for prosecutors]. SEARCH AND SEIZURE: FORCED ENTRY TO EXECUTE ARREST WARRANT ACCEPTABLE. State v. Swan, No. 22939, (9th Dist. Ct. Apps., Summit Co., 5-31-06). Robert Swan was indicted for one count of illegal manufacture of drugs, one count of illegal assembly/possession of chemicals to manufacture drugs, one count of illegal use or possession of drug paraphernalia, and one count of theft. The trial court granted the defendant's motion to suppress evidence seized pursuant to arrest and the state appealed. Carrying an arrest warrant for Swan, Akron Police Officer Crockett arrived at Swan's home. The door was cracked open and the lights were on. Officer Crockett knocked several times but no one responded. After entering, Officer Crockett smelled drugs and saw drug paraphernalia in plain view. He found a sleeping Swan and arrested him. Swan refused to allow the officer to search his home, but agreed to allow Swan's father to search. The father removed a plastic bag filled with drugs and paraphernalia and gave it to the police. The trial court granted the defendant's motion to suppress the evidence and the state appealed. Citing Payton v. New York (1980), 445 U.S. 573, the appellate court reversed. An officer may forcibly enter the home of a person for whom he has a valid arrest warrant. It is only when the person to be arrested is in the home of another person, under Steagald v. United States, (1981), 451 U.S. 204, that officers must have a search warrant for the home as well as an arrest warrant for the suspect before entering the home. The court reversed and remanded for trial.
JUDGES: VIOLATIONS OF TECHNICAL DIRECTORY REQUIREMNTS NO BENEFIT TO DEFENDANTS. State v. Sides, No 2005-L-175, (11th Dist. Ct. Apps., Lake Co., 6-2-06), 2006 Ohio 2778. Byran Sides was convicted of aggravated robbery and an accompanying firearm specification. He filed a post-conviction petition alleging his conviction was void because the judge who presided over his case failed to comply with R.C. 2701.06, by failing to file a certificate for his oath of office until seven months after having taken the oath. The trial court dismissed the petition and the Lake County Court of Appeals affirmed. R.C. 2701.06 provides: "If such certificate is not transmitted to the clerk within twenty days, the person entitled to receive such commission is deemed to have refused to accept the office, and such office shall be considered vacant. The clerk shall forthwith certify the fact to the governor, who shall fill the vacancy." Despite the statute's containing the word "shall," the Lake County Court of Appeals held, the requirement is not mandatory but discretionary. The court affirmed.
SENTENCING: A DEFENDANT WHO AGREES CANNOT COMPLAIN. State v. Hammond, No, 86192, (8th Dist. Ct. Apps. Cuyahoga Co. 3-30-06), 2006 Ohio 1570 Damario Hammond and another man beat their fifteen-year-old victim (un-named in the opinion) to death. Pursuant to a plea agreement, the court sentenced the defendant to consecutive sentences of ten years for involuntary manslaughter and two years for robbery On appeal, the appellant argued the court erred by failing to make factual findings. The Cuyahoga County Court of Appeals held that findings were unnecessary when a defendant agrees to the sentence. Moreover, the court continued, under State v. Foster, it would have been error for the court to make findings. The court overruled the single assignment of error. DOUBLE JEOPARDY: CONTEMPT CIVIL, WHEN; NO JEOPARDY WHEN CONTEMPT ORDER NOT CRIMINAL BUT CIVIL. State v. Tomblin, No 2005-L-037, (11th Dist. Ct. Apps., Lake Co., 6-30-06), 2006 Ohio 3414. The juvenile division of the Lake County Common Pleas Court ordered Kenneth Tomblin to pay child support. The defendant's having failed to pay, the court held him in contempt and the state filed a complaint alleging four counts of criminal non-support. The defendant filed a motion to dismiss on the ground that the criminal charges placed him twice in jeopardy after the court found him in contempt. The trial court denied the motion. The defendant entered no contest pleas to two charges and the state dismissed the other two. The Lake County Court of Appeals held the contempt action to be a civil contempt. The order provided that the defendant could purge himself of contempt by paying the overdue child support. Thus, the order was intended to be not punishment but coercion. A civil contempt order fails to bar prosecution for charges based on the same conduct. The court affirmed the convictions.
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