State v. Jennings, C-870092
| Decision Date | 23 December 1987 |
| Docket Number | No. C-870092,C-870092 |
| Citation | 42 Ohio App.3d 179,537 N.E.2d 685 |
| Parties | The STATE of Ohio, Appellee, v. JENNINGS, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. Since the principal ingredient in both Tylox and Percodan is oxycodone, which is listed as a controlled substance in Schedule II(A)(1)(n) of R.C. 3719.41, their trade or commercial names are not significant and they must be treated as one and the same Schedule II controlled substance.
2. Simultaneous possession (or any other prohibited act) of more than one Schedule II controlled substance constitutes more than one offense.
3. When charges of both possession and transportation of a controlled substance are based on a single transaction involving the same type and quantity of drugs, and the defendant did not possess any quantity in excess of the amount transported, he may be indicted for both possession and transportation of a controlled substance, but can be convicted of only one offense under R.C. 2941.25(A).
Arthur M. Ney, Jr., Pros. Atty., Paul R. Markgraf and Janna H. Flessa, for appellee.
R. Scott Croswell III and Elizabeth E. Agar, Cincinnati, for appellant.
In this appeal, we revisit the question of whether the simultaneous transportation or possession of the two Schedule II controlled substances is a single offense. We also consider whether the transportation and the possession of a single controlled substance are allied offenses of similar import in this case, and whether the trial court should have suppressed evidence that was seized from a vehicle when the driver was observed making a furtive movement after the pursuing officers had activated the siren and blue flashing lights on the pursuing police cruiser. In our disposition of the three assignments of error, the last shall be first.
Defendant-appellant, David Jennings (defendant) was arrested and charged with four drug offenses. An undercover police officer observed in traffic an automobile that belonged to one Aaron Pryor, who was wanted on a felony drug warrant. The officer and his supervisor called on two uniformed police officers in a marked police cruiser to stop the automobile, and all four officers joined the chase. The uniformed officers pulled in behind Pryor's automobile and turned on the siren and flashing blue lights. The driver did not immediately pull over to the curb and stop but continued on for an appreciable distance (perhaps several city blocks). One of the uniformed officers saw the driver lean forward and with his right hand fumble with or push an unseen object underneath or between the seats. All four officers were at the scene when the suspected automobile stopped. One uniformed officer ordered the driver to step out of the vehicle and to place his hands on the automobile top, simultaneously telling an undercover officer to look underneath or between the front seats. The driver was patted down and nothing of significance was found on his person. Concurrently, the undercover officer saw the corner of a plastic bag between the seats, removed it and found inside it a bundle of numerous smaller packages (plastic Ziploc bags) containing the drugs that the defendant was charged with transporting and possessing.
The driver was not Aaron Pryor, as was first thought, but David Jennings, the defendant in this case. Only one of the four police officers knew Aaron Pryor and realized that he was not the driver at the moment when the driver emerged from the vehicle and stood up. The record is not clear when that officer advised the others of this fact.
The principal ingredient of both Tylox and Percodan is oxycodone, which is listed as a controlled substance in Schedule II(A)(1)(n) of R.C. 3719.41. Physicians' Desk Reference (41 Ed.1987) 906, 1199. We hold that the trade or commercial names of Tylox and Percodan are not significant and that the Tylox capsules and the Percodan tablets must be treated as one and the same Schedule II controlled substance.
After his arrest, the defendant admitted that he had been sent by Aaron Pryor in Pryor's automobile to a specific location to buy drugs for $800 in cash.
Defendant moved to suppress the substances seized in the automobile search and his post-arrest statement, for the reason that the arrest was not supported by probable cause. The motion was heard and overruled, and the case went to a jury trial. The jury returned guilty verdicts for all four counts, and the court imposed sentences on all four, as follows: consecutive sentences for the two possession violations (that is, the sentences under the third and fourth counts were ordered to be served concurrently with each other and concurrently with the sentences under the first and second counts).
In his third assignment of error, the defendant contends that the denial of his motion to suppress was erroneous, arguing that the recognition by one of the officers that the driver was not Aaron Pryor removed all justification for the warrantless search of the vehicle and the defendant's subsequent arrest and confession. We find no merit in this assignment of error. The furtive movement of the driver in a vehicle owned by a wanted fugitive, while being pursued by police who had turned on their siren and flashing lights, was amply sufficient to cause a reasonable person to take precautions for his own safety, irrespective of whether the driver was the wanted fugitive, an acquaintance of his, or a thief.
In his first assignment of error, the defendant argues that separate sentences for all four drug offenses were erroneous because all four were Schedule II controlled substances. In other words, he contends that the simultaneous possession (or other prohibited act) of Schedule II substances constitutes a single offense. This is the same argument that we considered and rejected in State v. Jackson (July 17, 1985), Hamilton App. Nos. C-840799 and C-840804, 1985 WL 8934 unreported. We held in that case that the simultaneous possession of Talwin (Schedule IV), Preludin (Schedule II) and cocaine (Schedule II) is neither a single offense nor a grouping of allied offenses of similar import.
In State v. Jackson, supra, seeking to understand the legislative intent in the absence of any clear statement in R.C. Chapter 2925 or 3719, we turned to the design or structure of these two chapters. Our examination was made in conjunction with the presumptions, set forth in R.C. 1.47, that the legislature intends to comply with the United States and the Ohio Constitutions, to make the entire chapters effective, and to accomplish a just and reasonable result feasible of execution. R.C. Chapter 2925 speaks in terms of "a controlled substance," a term defined as any one of those substances listed in Schedules I through V under R.C. 3719.41, 3719.43 and 3719.44. The substances are listed by their scientific names and afford a precise differentiation not only between the substances in different schedules but also between the substances in the same schedule. We believe each listed substance has an independent significance standing by itself, noting that the schedules have been amended pursuant to R.C. 3719.43 and 3719.44 by additions and transfers made by the United States Attorney General or by the Ohio State Board of Pharmacy.
The main purpose of grouping these identifiably harmful drugs in schedules is, we believe, to classify them for purposes of penalty, because in R.C. 2925.03(C), (D) and (E), the degree of the offenses ranges from felony of the first degree to minor misdemeanor and depends both on the schedule in which the drug in question is listed and on the amount involved in the offense.
We note that the legislature defined the offenses (possession or any other criminal act, such as sale, transportation, preparation for delivery, cultivation, etc.) in terms of "a" controlled substance, meaning any one controlled substance, rather than in terms of "any" controlled substance...
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