Opinion
Case No. 2000-L-159.
Decided August 23, 2002.
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas Case No. 00 CR 000241.
Charles E. Coulson, Lake County Prosecuting Attorney, Brian L. Summers, Assistant Prosecuting Attorney, for Appellee.
Dean K. Hegyes, for appellant.
OPINION
{¶ 1} Appellant, Joshua Garrett, appeals from the judgment entered by the Lake County Court of Common Pleas. A jury found Garrett guilty of complicity to trafficking in L.S.D, a fourth degree felony, and complicity to trafficking in counterfeit controlled substances, also a fourth degree felony.
{¶ 2} In March of 2000, Garrett attended a party at the home of Jesse McKinney in Eastlake, Ohio. At some time in the evening, another guest at the party, Theresa Monateri, received a page from her ex-boyfriend, Jason Cavallaro. Theresa returned Jason's page. Jason inquired about where he could get some L.S.D., commonly known as acid, an illegal hallucinogenic drug. Theresa then handed the phone to two males at the party, who agreed to sell L.S.D. to Jason and his friends.
{¶ 3} Jason Cavallaro, Patrick Cavallaro, and Tom Janz then went to McKinney's house to purchase the L.S.D. Upon arriving at the house, Jason, Patrick, and Tom were told to wait. About ten to fifteen minutes later, they went into a back bedroom. Garrett handed a cellophane bag to McKinney, who showed it to Jason and Tom. Jason believed the drugs were fake and decided to leave the residence.
{¶ 4} As they were leaving, Jesse McKinney stated that he smelled a "snitch." Comments were exchanged between Jason and his friends and Garrett and some of the others at the McKinney residence. Everyone went out onto the front lawn, where a brawl occurred. Jesse McKinney then fired two shots from his shotgun. Jason, Patrick, Tom, and Theresa drove away.
{¶ 5} Jesse McKinney was also charged with crimes resulting from these incidents. McKinney also has a pending appeal before this court.
State v. McKinney (Aug. 23, 2002), 11th Dist. No. 2000-L-210.
{¶ 6} Garrett raises two assignments of error. His first assignment of error is:
{¶ 7} "The trial court erred to the prejudice of the defendant-appellant when it denied his motion for acquittal pursuant to Crim.R. 29."
{¶ 8} A court shall grant a motion for acquittal if the evidence presented is insufficient to sustain a conviction. To determine if there is 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."
Crim.R. 29(A).
State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307.
{¶ 9} Both charges against Garrett were complicity to a crime. Complicity is codified in R.C. 2923.03, and states, in relevant part:
{¶ 10} "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
{¶ 11} "(1) * * *
{¶ 12} "(2) Aid or abet another in committing the offense[.]"
{¶ 13} The first crime Garrett was charged with complicity was trafficking a controlled substance in violation of R.C. 2925.03, which states, in relevant part:
{¶ 14} "(A) No person shall knowingly sell or offer to sell a controlled substance.
{¶ 15} "* * *
{¶ 16} "(C) Whoever violates division (A) of this section is guilty of one of the following:
{¶ 17} "* * *
{¶ 18} "(C)(5) If the drug involved in the violation is L.S.D. or a compound, mixture, preparation, or substance containing L.S.D., whoever violates division (A) of this section is guilty of trafficking in L.S.D. The penalty for the offense shall be determined as follows:
{¶ 19} "* * *
{¶ 20} "(C)(5)(b) Except as otherwise provided * * * if the offense was committed in the vicinity of a school, or in the vicinity of a juvenile, trafficking L.S.D. is a felony of the fourth degree * * *."
{¶ 21} There was sufficient evidence presented to convict Garrett of complicity to trafficking a controlled substance. There was testimony regarding the phone conversation where L.S.D. was offered for sale. Jason testified that Garrett handed a cellophane baggie to McKinney, who offered the substance for sale. The substance was held out to be L.S.D. There was testimony that there was to be five hits of L.S.D. sold. The offer of the sale of the L.S.D. took place in the McKinney residence, which Detective Robert Eden of the Eastlake Police Department testified is 655 feet from the property line of Washington Elementary School.
{¶ 22} There is an issue in this case as to whether the substance held out to be L.S.D. was actually L.S.D., or a counterfeit substance. For the purposes of a conviction under R.C. 2925.03, it does not matter. This court has held that "one who knowingly offers what purports to be a controlled substance has committed the offense of aggravated trafficking."
State v. Lee (1994), 97 Ohio App.3d 197, 200.
{¶ 23} As there was sufficient evidence presented relating to the charge of complicity to trafficking a controlled substance, the trial court did not err in denying Garrett's motion for acquittal relating to this charge.
{¶ 24} The second crime Garrett was charged with complicity was trafficking counterfeit controlled substances in violation of R.C. 2925.37, which states in relevant part:
{¶ 25} "(A) No person shall possess any counterfeit controlled substance.
{¶ 26} "(B) No person shall knowingly make, sell, offer to sell, or deliver any substance that person knows is a counterfeit controlled substance."
{¶ 27} There is a different standard for a conviction for trafficking counterfeit controlled substances than there is for trafficking controlled substances. This distinction was noted in State v. Lee, wherein this court quoted the Supreme Court of Ohio:
{¶ 28} "'When appellant knowingly offered to sell Percodan, a controlled substance, his offense was complete under R.C. 2925.03(A)(1). * * * There need be no additional proof that appellant knew that the substance he was offering was not Percodan or that it was actually a counterfeit controlled substance. Proof of such knowledge and of the counterfeit character of the substance offered is necessary for a conviction under R.C. 2925.37(B). Thus, commission of the first offense will not necessarily result in commission of the second offense. The offenses are, therefore, not allied, and appellant may be convicted of both.' (Emphasis sic.)"
(Internal citations omitted.) Id. at 201, quoting State v. Mughni (1987), 33 Ohio St.3d 65, 67-68.
{¶ 29} For a conviction under R.C. 2925.37(B), the state was required to prove that the substance involved in the proposed sale was a counterfeit controlled substance. The state failed to do this. The allegedly counterfeit L.S.D. was not offered into evidence. No expert witness testified regarding any tests that would have established that the substance was counterfeit. The only testimony presented was that of lay witnesses who merely looked at the substance and identified it as counterfeit L.S.D.
{¶ 30} The Supreme Court of Ohio has recently held that lay persons can express their opinions as to the identification of a controlled substance if a proper foundation is laid. McKee involved a lay person identifying marijuana.
State v. McKee, 91 Ohio St.3d 292, 297, 2001-Ohio-41.
{¶ 31} The case sub judice can be distinguished from Mckee. L.S.D. is lysergic acid diethylamide. Tom Janz testified that there are different kinds of acid.
{¶ 32} Lay witnesses testified that the substance purported to be sold was fake L.S.D. Jason testified that he had previously taken L.S.D. and the substance he was offered was not L.S.D. He was able to make this determination merely by looking at the substance, without holding it or unwrapping it from the cellophane.
{¶ 33} Robin Robbins described the substance as white powder, and resembling crushed aspirin. She testified that she does not know what acid looks like, but knows what crushed aspirin looks like, because she had to give crushed aspirin to her cousins.
{¶ 34} This case can be distinguished from McKee in that McKee involved a lay witness identifying marijuana, which has a distinct color and odor, while the lay witnesses in this case were saying that the substance offered as L.S.D. did not contain the drug L.S.D. itself to make it real acid. Identifying a substance as counterfeit L.S.D. merely by looking at it from a distance is not enough to establish that it is counterfeit.
{¶ 35} There was not sufficient evidence that the substance offered for sale was counterfeit L.S.D. Therefore, the trial court erred by not granting Garrett's motion for acquittal on the complicity to trafficking a counterfeit controlled substance.
{¶ 36} Garrett's second assignment of error is:
{¶ 37} "The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence."
{¶ 38} In determining whether a verdict is against the manifest weight of the evidence, the Supreme Court of Ohio has adopted the following language as a guide:
{¶ 39} "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction."
(Citations omitted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.
{¶ 40} Regarding Garrett's conviction for complicity to trafficking a controlled substance, the state provided sufficient evidence that, if believed by the jury, could justify a conviction. We do not see this as a case where the jury clearly lost its way or created a manifest miscarriage of justice.
{¶ 41} In regard to the conviction for complicity to trafficking a controlled substance, Garrett's second assignment of error is without merit.
{¶ 42} We now turn to Garrett's conviction for complicity to trafficking counterfeit controlled substances. Due to our holding in the previous assignment of error, this issue is moot.
{¶ 43} The judgment of the trial court convicting Garrett of complicity in trafficking L.S.D. is affirmed. The judgment of the trial court convicting Garrett of complicity in trafficking in counterfeit controlled substances is reversed. This case is remanded to the trial court for resentencing.
Judgment reversed.
JUDITH A. CHRISTLEY, and ROBERT A. NADER, JJ., concur.