State Of Ohio v. Barnard, Case No. 2010-CA-00082
| Decision Date | 01 November 2010 |
| Docket Number | Case No. 2010-CA-00082 |
| Citation | 2010 Ohio 5345 |
| Parties | STATE OF OHIO Plaintiff-Appellee, v. JAMES LEE BARNARD Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEARANCES:
For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY.
BY: RONALD MARK CALDWELL.
For Defendant-Appellant MATTHEW PETIT.
{¶1} Defendant-appellant James Barnard appeals his convictions on one count each of the aggravated possession of drugs, a felony of the third degree and operating a motor vehicle while under the influence of a Schedule II Controlled Substance, a misdemeanor of the first degree. Appellee is the State of Ohio.
{¶2} Appellant waived his right to a jury trial in writing and in open court. The following evidence was presented during his trial to the court.
{¶3} On the afternoon of January 22, 2009, Canton Police Officer Robert E. Smith and his partner were in route to a call when they came upon a car stranded on the medium island in the 2500 block of Fulton Road, N.W., in Canton. The medium island is elevated several inches from the roadway to separate opposing lanes of traffic. The officers also noticed that traffic cones had been broken or bent down behind the vehicle. A second vehicle with a woman inside was parked in close proximity of the stranded vehicle. Her boyfriend, a Mr. Talbot, was sticking his head into the stranded vehicle, and told the approaching officers that the driver appeared to be intoxicated. Mr. Talbot had asked the driver if he had any weapons, and the driver replied that he did. The officers had Mr. Talbot return to his girlfriend and approached the driver.
{¶4} The officers observed that the car was stuck on the medium island and could not move. The officers tried several times to urge the appellant to exit the vehicle. Appellant, however, was not listening to the officers. The officers detected a strong odor of alcohol coming from appellant, noticed that he had very slurred speech, and saw a half-empty bottle of vodka sitting in appellant's lap. Appellant was conscious, his eyeswere glassy, and he was hard to understand when he talked. Believing they had a possible OVI arrest, the officers repeatedly asked appellant to get out of the vehicle. Appellant responded each time using the "F word," and refused to get out of the vehicle. The officers concluded that force would have to be used in order to get appellant out of the vehicle.
{¶5} Officer Smith used his knife to cut appellant's seatbelt in order to facilitate appellant's forcible removal. Appellant responded by clutching the steering wheel and resisting the efforts of the two officers to pull him out of the vehicle. The struggle continued for some time until a third police officer arrived to assist Smith and his partner. Pepper spray was used on appellant; however, appellant kept his grip on the steering wheel and stayed in the vehicle. Finally, the officers used a taser on appellant once or twice before they could remove him from the vehicle.
{¶6} After arresting appellant, the officers searched him. In the right front pocket of his jacket, the officers found a prescription vial for a George Foster. This vial contained seven 80-milligram tablets of the prescription Oxycontin, a Schedule II substance. The officers did not see any injuries to appellant, and appellant did not complain of any. Appellant was arrested for the illegal possession of the Oxycontin, as well as driving under the influence.
{¶7} Jay Spencer of the Canton-Stark County Crime Lab analyzed the contents of the prescription bottle and determined that the drug was Oxycontin. He tested a portion of one of the seven tablets, after weighing them, to determine the nature of the drug. The tablets, imprinted with "OC80," weighed 80 milligrams apiece, and were theprescription brand of Oxycodone, an opiate drug. Thus, the total weight of the recovered drugs was 560 milligrams.
{¶8} Spencer also testified about bulk amount for Oxycontin, which is either 20 grams or five times the maximum daily dosage as determined by the Ohio Board of Pharmacy. For Oxycontin in 80-milligram tablets, the bulk amount is six tablets. According to Spencer, the maximum daily dosage was determined by the Ohio Board of Pharmacy to be five tablets for 90-miNigram tablets. The total weight for that dosage would be 450 milligrams. Accordingly, the seven 80-milligram tablets recovered from appellant weighing a combined total of 480 milligrams exceed the "bulk amount."
{¶9} Spencer further testified that an individual's particular daily dosage would be determined by that person's physician, but that fact had no bearing on the Ohio Board of Pharmacy's definition of bulk amount under Ohio's drug laws. Spencer further testified that the instructions printed on the vial were, "Take one tablet every 8 hours for pain."
{¶10} At the conclusion of this bench trial, the court found appellant guilty as charged in the indictment.
{¶11} The court, after a presentence investigation report, sentenced appellant to a community control sanction for a period of three years. The court cautioned appellant that a revocation of this community control sanction would result in a prison term of three years. The court also ordered that appellant serve thirty days in jail and have his operator's license suspended for six months for the OVI offense.
{¶12} Appellant timely appeals raising the following three assignments of error,
{¶13} "I. THE TRIAL COURT'S FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶14} "II. THE OFFENSE OF AGGRAVATED POSSESSION OF DRUGS LOCATED IN R.C. 2925.11 IS VOID FOR VAGUENESS.
{¶15}
{¶16} In his first assignment of error, appellant maintains that his convictions are against the weight of the evidence and are based upon insufficient evidence. We disagree.
{¶17} Our standard of reviewing a claim a verdict was not supported by sufficient evidence is to examine the evidence presented at trial to determine whether the evidence, if believed, would convince the average mind of the accused's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the 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), 61 Ohio St. 3d 259, 574 N.E.2d 492, superseded by State constitutional amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668..
{¶18} The Supreme Court has explained the distinction between claims of sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question for the trial court to determine whether the State has met its burden to produceevidence on each element of the crime charged, sufficient for the matter to be submitted to the jury.
{¶19} Manifest weight of the evidence claims concern the amount of evidence offered in support of one side of the case, and is a jury question. We must determine whether the jury, in interpreting the facts, so lost its way that its verdict results in a manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St. 3d 387, 678 N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On review for manifest weight, a reviewing court is State v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. Because the Trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the Trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.
{¶20} In Thompkins, the Ohio Supreme Court held "[t]o reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary." Id. at paragraph three of the syllabus. However, to "reverse a judgment ofa trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required." Id. at paragraph four of the syllabus; State v. Miller (2002), 96 Ohio St.3d 384, 2002-Ohio-4931 at ¶38, 775 N.E.2d 498
{¶21} In examining the record to determine this issue, we may give weight to the fact that the error occurred in a trial to the court, rather than in a jury trial. State v. White (1968), 15 Ohio St.2d 146, 151, 239 N.E.2d 65; State v. Austin (1976), 52 Ohio App.2d 59, 70, 368 N.E.2d 59. Indeed, a judge is presumed to consider only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record. State v. White, supra, 15 Ohio St.2d at page 151, 239 N.E.2d 65; State v. Eubank, 60 Ohio St.2d 183, 187, 398 N.E.2d 567, 569-570; Columbus v. Guthmann (1963), 175 Ohio St. 282, 194 N.E.2d 143, paragraph...
To continue reading
Request your trial