State v. Chandler, 2004 Ohio 3436 (OH 6/28/2004)
| Decision Date | 28 June 2004 |
| Docket Number | Case No. 2003-CA-00342. |
| Citation | 2004 Ohio 3436 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Kenyan Chandler, Defendant-Appellant. |
| Court | Ohio Supreme Court |
John D. Ferraro, Kathleen O. Tatarsky, Assistant Prosecuting Attorney, Box 20049, Canton, OH 44701-0049, for Plaintiff-Appellee.
Fredrick M. Pitinii, 1000 Bank One Tower, 101 Central Plaza South, Canton, OH 44702, for Defendant-Appellee.
Hon: W. Scott Gwin, P.J., Hon: Julie A. Edwards, J., Hon: John F. Boggins, J.
JUDGMENT ENTRY
{¶1} Defendant-appellant Kenyan Chandler appeals his conviction and sentence from the Stark County Court of Common Pleas on one count of trafficking in cocaine, a felony of the first degree in violation of R.C. 2925.03(A) (1)(C)(4)(g). The indictment also contained a major drug offender specification pursuant to R.C. 2941.1410. Plaintiff appellee is the State of Ohio.
{¶2} In June, 2003, the Stark County Metro Vice Unit and the Massillon Police Department were engaged in an undercover investigation of drug sales in the Massillon, Ohio area. Their target was Philip Bledsoe. The detectives were working with an undisclosed confidential informant and had made a number of controlled buys of narcotics through the informant from Mr. Bledsoe on previous occasions.
{¶3} On June 30, 2003, the confidential informant arranged a purchase of narcotics for the Massillon Police Department from Mr. Bledsoe. The transaction was arranged by telephone. The transaction was to take place the following day.
{¶4} On July 1, 2003, an undercover Massillon Police officer positioned himself in a white van which had been custom remodeled to allow him to hide under the front seat. The van was also specially equipped with video tape and audio tape equipment to film and record any drug activities. The equipment recorded the events. A meeting had been arranged in front of the school across from Mr. Bledsoe's residence. Mr. Bledsoe arrived and entered the van with the confidential informant and hidden detective. He brought a package with him. There was no discussion about the contents of the package. Mr. Bledsoe requested the money and was told it was in a different location. He exited the vehicle and the van drove away.
{¶5} Mr. Bledsoe telephoned the confidential informant to determine where to bring the narcotics. It was agreed that the destination for delivery of the drugs would be the East Ohio Gas parking lot.
{¶6} Shortly after parking the van which was driven by the confidential informant, a white vehicle pulled into the parking lot. The driver was not Mr. Bledsoe as the officers had anticipated. Instead, the white vehicle was driven by the appellant, Kenyan Chandler. Surprised by this, the confidential informant called Mr. Bledsoe on the telephone and was told that appellant was Bledsoe's brother. The undercover officer testified and the video tape positioned in the van revealed appellant drive into the parking lot, exit a white vehicle and enter the van driven by the confidential informant.
{¶7} Appellant then pulled a brown paper bag out of the waistband of his pants and offered a scale to the confidential informant. The appellant states "let's do this, let's do this." The confidential informant tells Mr. Chandler that he has to get the $8,000, and that they would have to count the money. When the confidential informant gets out of the van to obtain the $8,000 from another undercover police officer, the undercover officers of the take-down team move in, arrest appellant confiscate the scales and the brown paper bag.
{¶8} In the brown paper bag was a wet, white substance that appeared to the undercover officer to be freshly made crack cocaine. Testing performed by the Stark County Crime Laboratory revealed that the substance was in fact baking soda. The scale confiscated from appellant contained traces of cocaine. When interviewed by a detective of the Massillon Department, appellant denied being at the scene of the drug bust. He told the officers he was not anywhere near the location where this took place and that the officers just took him off the streets.
{¶9} On September 26, 2003 a jury trial took place wherein the appellant was found guilty of one count of trafficking in cocaine. The trial court deferred sentencing in this matter until September 30, 2003. On that date the court sentenced appellant to a mandatory ten years on the trafficking in cocaine and an additional one year on the major drug offender specification for a total sentence of eleven years in prison.
{¶10} It is from the conviction and sentence that appellant filed this appeal.
{¶11} Appellant assigns four errors to the trial court:
{¶12} "The trial court erred in failing to dismiss the major drug offender specification where the facts of the case fail to meet the statutory requirements.
{¶13} "The trial court's finding of guilty is againt the manifest weight and sufficiency of the evidence.
{¶14} "The major drug offender specification located in R.C. 2929.01 is void for vagueness and over broad.
{¶15} "It was plain error for the trial court to fail to instruct the jury on the lesser offense of trafficking in counterfeit controlled substance and/or precluding the appellant from mentioning the offense of trafficking counterfeit controlled substance in all phases of the trial."
I & II.
{¶16} In his first assignment of error, appellant maintains that his sentence must be vacated because the statutorily required amount of controlled substance necessary to sentence appellant to a mandatory ten year prison term, and to subject him to an additional possibility of up to a ten year prison term as a major drug offender is not present in this case. (Brief of Appellant at 5-6). In his second assignment of error, appellant maintains that his conviction is against the manifest weight of the evidence because among other reasons, the State failed to prove beyond a reasonable doubt that the package in question contained a controlled substance, and further because the amount of controlled substance was insufficient to trigger the major drug offender classification of R.C.2925.03(C) (4) (g). (Brief of Appellant at 11-13). We will address assignments of error one and two collectively.
{¶17} R.C. 2941.1410 states: Appellant's indictment contained such a specification. However, Appellant was indicted pursuant to R.C. 2925.03(A) and (C) (4) (g).
{¶18} R.C. 2925.03(C) provides, in relevant part:
{¶19} Accordingly, the R.C.2941.1410 "specification" is redundant and unnecessary when the individual is indicted pursuant to R.C. 2925.03(A) and (C) (4) (g). See, State v. Elkins (2002), 148 Ohio App.3d 370, 2002-Ohio-2914, 773 N.E.2d 593. However, this does not end the analysis in the case at bar. In order to determine the penalty for a violation of R.C. 2925.03(A) and an additional sentence as a major drug offender pursuant to R.C. 2925.03(C)(4)(g), the State is required to prove beyond a reasonable doubt at trial both the identity of the substance and the amount of the substance.
{¶20} R.C. 2925.03(A) provides in relevant part: "No person shall knowingly do any of the following: (1) Sell or offer to sell a controlled substance. . ." The fact that the substance that was offered for sale was not actually a controlled substance is immaterial for purposes of conviction under R.C. 2925.03(A) (1). State v. Scott (1982), 69 Ohio St.2d 439, 432 N.E.2d 798; State v. Patterson (1982), 69 Ohio St.2d 445, 432 N.E.2d 802. However, in both Scott and Patterson the Court's analysis ended with R.C. 2925.03(A) (1). The Court did not address the penalty provisions of R.C. 2925.03(C). R.C. 2925.03 links the penalty to the identity and weight of the drug. Accordingly, a sale or offer to sell a controlled substance is only one element of the offense. For the reasons that follow, we find in order to sustain a conviction pursuant to R.C. 2925.03(A) and (C) (4) (g),...
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