State v. Delfino

• Decision Date: 19 March 1986
• Docket Number: No. 84-1704,84-1704
• Citation: 22 OBR 443,490 N.E.2d 884,22 Ohio St.3d 270
• Parties: , 22 O.B.R. 443 The STATE of Ohio, Appellee, v. DELFINO, Appellant.
• Court: Ohio Supreme Court

Page 270

22 Ohio St.3d 270

490 N.E.2d 884, 22 O.B.R. 443

The STATE of Ohio, Appellee, v. DELFINO, Appellant.

No. 84-1704.

Supreme Court of Ohio.

March 19, 1986.

Syllabus by the Court

The simultaneous possession of different types of controlled substances can constitute multiple offenses under R.C. 2925.11.

Appellant, Perry Delfino, was arrested on September 4, 1983 while in his parked car in Avon Lake, Ohio. A mirror, razor blade, two straws and a metal pipe were seized from his automobile. Chemical analysis revealed that the mirror had a trace amount of cocaine on it and the pipe contained a small amount of marijuana. On October 19, 1983, appellant pleaded guilty in the Avon Lake Municipal Court to a charge of drug abuse for the possession of the marijuana, a minor misdemeanor. He was fined $100.

On November 2, 1983, appellant was indicted in the court of common pleas on three felony counts of drug abuse arising out of his arrest on September 4, 1983. Count one of the indictment charged drug abuse for possession of cocaine, a Schedule II substance; count two charged a violation of R.C. 2925.13, permitting a vehicle to be used for the commission of a felony drug abuse offense; and count three was for possession of drug abuse instruments in violation of R.C. 2925.12.

Appellant filed a motion to dismiss the indictment, alleging, inter alia, that a second prosecution for drug abuse in violation of R.C. 2925.11, for possession of cocaine, was barred by double jeopardy because he had already pleaded guilty to a charge of drug abuse based upon his possession of the marijuana. The motion to dismiss was denied. Appellant appealed the denial of his motion to dismiss on double jeopardy grounds to the court of appeals which affirmed the judgment of the trial court.

The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Erie County in State v. Stratton (1982), 5 Ohio App.3d 228, 451 N.E.2d 520, certified the record of the case to this court for review and final determination.

Gregory A. White, prosecuting attorney, for appellee.

Smith & Smith Co., L.P.A., and Daniel Wightman, Avon Lake, for appellant.

CONNORS, Justice.

The appellant presents a sole assignment of error as the predicate for this appeal:

"The legislature intended R.C. 2925.11 to proscribe possession of any controlled substance. The simultaneous possession of more than one controlled substance is [a] single offense. Therefore, the Double Jeopardy Clause of the United States Constitution bars a second trial for possession of a controlled substance, cocaine, following a conviction for possession of marijuana, when the cocaine and the marijuana were simultaneously possessed by the accused."

Appellant argues that the simultaneous possession of two controlled substances constitutes a single offense under R.C. 2925.11 and, for that reason, the indictment for drug abuse based upon possession of cocaine is barred by double jeopardy after his plea of guilty to drug abuse for possession of marijuana at the same time.

R.C. 2925.11 provides, in relevant part:

"(A) No person shall knowingly obtain, possess, or use a controlled substance.

" * * * "(C) Whoever violates this section is guilty of drug abuse:

"(1) If the drug involved is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, drug abuse is a felony of the fourth degree * * *.

" * * *

"(3) If the drug involved is marihuana, drug abuse is a misdemeanor of the fourth degree, unless the amount of marihuana involved is less than one hundred grams, the amount of marihuana resin, or extraction or preparation of such resin, is less than five grams, and the amount of such resin in a liquid concentrate, liquid extract, or liquid distillate form, is less than one gram, in which case drug abuse is a minor misdemeanor."

The Double Jeopardy Clauses of the United States and Ohio Constitutions prevent multiple punishments for the same offense. State v. Jones (1985), 18 Ohio St.3d 116, 118, 480 N.E.2d 408. In determining whether given conduct authorizes multiple convictions under a single statute, the court is required to consider whether that result was intended by the legislature which enacted the statute. Ohio v. Johnson (1984), 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425, 433.

In Stratton, supra, 5 Ohio App.3d at 231-232, 451 N.E.2d 520, the Court of Appeals for Erie County, under almost identical facts, held that " * * * the simultaneous possession by defendant of three controlled substances in violation of R.C. 2925.11, involves one offense permitting a single punishment." The court reasoned that " * * * [p]ossession is the prohibited conduct and absent legislative mandate that each substance possessed simultaneously creates a separate offense, doubts must be resolved in favor of the defendant." Id. at 230, 451 N.E.2d 520.

The Court of Appeals for Erie County expressly overruled its previous ruling in Stratton, supra, in State v. Hedelsky (Dec. 20, 1985), Nos. E-85-15 and E-85-16, unreported.

The appellate court below held that multiple convictions were authorized, placing particular reliance on the fact that R.C. 2925.11 prohibits possession of "a" controlled substance as opposed to "any" controlled substance, as in some other state statutes.

The issue presented in this case is whether the simultaneous possession of different controlled substances can constitute separate offenses under R.C. 2925.11. If it can be said that the simultaneous possession of different types of drugs is only one offense under R.C. 2925.11, then the prosecution of appellant for his alleged possession of marijuana and cocaine is barred by the principles of double jeopardy due to his prior prosecution for possession of marijuana in the municipal court. If the simultaneous possession of different drugs constitutes separate offenses under R.C. 2925.11, then the prosecution of appellant for possession of marijuana and cocaine will not be barred by principles of double jeopardy.

The Double Jeopardy Clause contained in the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, and Section 10, Article I of the Ohio Constitution, prevent an individual from being prosecuted twice for the same offense. See State v. Thomas (1980), 61 Ohio St.2d 254, 400 N.E.2d 897 . It will be noted at the outset that where a first prosecution is had in a municipal court and the second prosecution is attempted in a common pleas court, the rule of "separate sovereigns" does not apply and if the prosecutions are for the same offense, the subsequent prosecution in the common pleas court is barred by principles of double jeopardy. Waller v. Florida (1970), 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 . Therefore, the fact that in the case sub judice the first prosecution was in a municipal court and the second prosecution was attempted in the common pleas court does not alter our double jeopardy analysis.

The issue of whether simultaneous possession of different controlled substances constitutes a single offense or multiple offenses is not one of first impression. The Court of Appeals for Erie County in Stratton, supra, held that simultaneous possession of different controlled substances is a single offense under R.C. 2925.11. However, the Court of Appeals for Montgomery County has routinely held that simultaneous possession of different controlled substances constitutes separate offenses pursuant to R.C. 2925.11, for the...