State v. Roberts, s. 79-838

CourtUnited States State Supreme Court of Ohio
Citation62 Ohio St.2d 170,405 N.E.2d 247,16 O.O.3d 201
Docket Number79-931,Nos. 79-838,s. 79-838
Parties, 16 O.O.3d 201 The STATE of Ohio, Appellant and Appellee, v. ROBERTS, Appellee and Appellant.
Decision Date14 May 1980

Syllabus by the Court

Where a defendant is charged with the possession for sale of a narcotic drug in violation of R.C. 3719.20(A), and with the sale of a narcotic drug in violation of R.C. 3719.20(B), and the facts demonstrate that both charges are based upon a single sale and involve the same parties and the same type and quantity of drugs, and it is not proven that the defendant possessed a quantity of any type of narcotic drug in excess of the amount sold, the defendant may be indicted for both offenses but may be convicted of only one. R.C. 2941.25(A), applied.

On November 7, 1974, police officers from the Cleveland Narcotics Unit met with a federal narcotics agent and a female informant for the purpose of arranging a controlled purchase of narcotics from the defendant, Donald Roberts. Subsequently that day, the informant, under the supervision and surveillance of the police officers, entered defendant's residence and returned with a tinfoil packet of heroin. The informant's written statement was that she had purchased the heroin from the defendant. Based primarily upon this occurrence, defendant was indicted by the Grand Jury of Cuyahoga County in case No. CR-17332 (hereinafter 79-838) on charges of the illegal possession of heroin for sale, R.C. 3719.20(A), and the illegal sale of heroin, R.C. 3719.20(B).

On November 13, 1974, police officers, accompanied by the same informant, arranged and completed a similar controlled purchase of heroin from defendant at another residence. Thereafter, on December 12, 1974, a warrant was issued authorizing the search of defendant's residence. The affidavit upon which the search warrant was based was executed by a police officer who was involved principally in both controlled purchases. In the affidavit, the police officer averred, inter alia, that he had been advised by an informant that the informant had, within the preceding three days, purchased narcotics from defendant at his residence; that the informant had made at least five controlled purchases of narcotics for police officers within the previous three months and was therefore reliable, and that within the same period of time had given information which had proven successful in the execution of search warrants and the arrest and convictions of drug law violators.

At approximately 5:00 p. m. on December 12, 1974, police officers entered defendant's residence, arrested defendant, and confiscated a quantity of narcotics, marijuana, guns, and drug related paraphernalia.

On December 26, 1974, the grand jury, in case No. CR-17549 (hereinafter 79-931), indicted defendant for the possession of heroin for sale, R.C. 3719.20(A), possession of cocaine for sale, R.C. 3719.20(A), and the use of a dwelling house for dispensing and administering narcotics, R.C. 3719.101. Upon the consolidation of both cases for trial, defendant was found guilty and sentenced on all counts.

Upon appeal, the Court of Appeals, as to case No. 79-838 vacated defendant's conviction for the possession of heroin for sale. Based upon the provisions of R.C. 2941.25(A), the court concluded that defendant's violations of R.C. 3719.20(A) and (B) were allied offenses of similar import, and that, because both offenses were based upon a single sale of heroin and upon identical evidence, it was impermissible under R.C. 2941.25(A) to convict defendant for both offenses. As to case No. 79-931, the court affirmed defendant's convictions, but remanded the cause to the trial court so that issues relating to the eligibility of the defendant for "dead time" credit, and his financial inability to pay the fines imposed, could be reviewed by the lower court.

The cause is now before this court pursuant to the allowance of motions for leave to appeal by the state in case No. 79-838, and by defendant in case No. 79-931.

John T. Corrigan, Pros. Atty., and George J. Sadd, Cleveland, for the State of Ohio.

Thomas M. Shaughnessy, Jay B. White, James R. Willis, and William L. Summers, Cleveland, for defendant Roberts.

I.

HERBERT, Justice.

In case No. 79-838, the state argues that defendant's conviction for the possession of a narcotic drug for sale was erroneously set aside by the Court of Appeals. In essence, the state's assertion is founded upon the proposition that the offenses of possession of a narcotic drug for sale, R.C. 3719.20(A), 1 and the sale of a narcotic drug, R.C. 3719.20(B), 2 were not in this cause "allied offenses of similar import" arising out of the "same conduct, within the meaning of R.C. 2941.25(A).

R.C. 2941.25(A) provides:

"Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one."

This court has recognized that the provisions of R.C. 2941.25 are an apparent attempt by the General Assembly to codify the judicial doctrine of merger. State v. Thomas (1980), 61 Ohio St.2d 254, 400 N.E.2d 897; State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345. The statute prohibits cumulative punishment of a defendant for the same criminal act where his conduct can be construed to constitute two statutory offenses, when, in substance and effect, only one offense has been committed. This is not a new legal principle. See State v. Thomas, supra; Maumee v. Geiger (1976), 45 Ohio St.2d 238, 344 N.E.2d 133; State v. Best (1975), 42 Ohio St.2d 530, 330 N.E.2d 421; State v. Botta (1971), 27 Ohio St.2d 196, 271 N.E.2d 776; Weaver v. State (1906), 74 Ohio St. 53, 77 N.E. 273 (paragraph one of the syllabus).

In State v. Donald (1979), 57 Ohio St.2d 73, 386 N.E.2d 1341, this court addressed the question of whether the offense of rape, a violation of R.C. 2907.02(A)(1), and the crime of kidnapping, a violation of R.C. 2905.01(A)(4), could be "allied offenses of similar import" within the contemplation of R.C. 2941.25(A). In answering that query in the affirmative, this court reasoned, at page 75, 386 N.E.2d at page 1342, that "R.C. 2941.25(A) ' * * * prohibits duplication where both crimes are motivated by a single purpose and where both convictions rely upon identical conduct and the same evidence.' "

Subsequently, in State v. Logan, supra, it was indicated that the import of Donald was that in order for two offenses to constitute allied offenses of similar import, "there must be a recognized similarity between the elements of the crimes committed" and, "where the facts (of the cause were) such that the same conduct by the defendant could be construed to constitute two allied offenses of similar import," a defendant should be afforded the protection of R.C. 2941.25(A). Id., at pages 128, 129, 397 N.E.2d at page 1348.

A comparison of the instant facts and the elements of R.C. 3719.20(A) and 3719.20(B) demonstrates that, in this cause, these crimes are "allied offenses of similar import" within the meaning of R.C. 2941.25(A). Implicit in this defendant's violation of R.C. 3719.20(B) was a concomitant violation of R.C. 3719.20(A). When the state proved all elements necessary to establish defendant's culpability for the illegal sale of a narcotic drug, it simultaneously proved his illegal possession for sale of the same quantity of the same drug.

The state contends, in effect, that even assuming these crimes are "allied offenses" within the ambit of Donald and Logan, supra, the conviction in question should be affirmed because defendant's violation of R.C. 3719.20(A) and 3719.20(B) did not arise out of the "same conduct," as required by R.C. 2941.25(A). The state argues that defendant engaged in separate acts for which separate punishments should be imposed. However, the record is uncontroverted that both offenses arose from a single sale of heroin to a police informant on November 7, 1974. The primary objective of defendant's conduct was the consummation of the sale transaction, and the evidence establishes that this defendant's possession for sale was incidental to, and an indivisible part of, this particular sale. Furthermore, no evidence was presented that defendant possessed a greater quantity of narcotic drugs on the date charged than what was obtained through the sale. People v. Fusaro (1971), 18 Cal.App.3d 877, 96 Cal.Rptr. 368; People v. Fortier (1970), 10 Cal.App.3d 760, 89 Cal.Rptr. 210; and see, also, State v. Lowell (Fla.App.1971), 253 So.2d 741.

R.C. 2941.25(A) requires us to conclude that where a defendant is charged with the possession for sale of a narcotic drug in violation of R.C. 3719.20(A), and with the sale of a narcotic drug in violation of R.C. 3719.20(B), and the facts demonstrate that both charges are based upon a single sale and involve the same parties and the same type and quantity of drugs, and it is not proven that the defendant possessed a quantity of any type of narcotic drug in excess of the amount sold, the defendant may be indicted for both offenses but may be convicted of only one.

Accordingly, as to case No. 79-838, the judgment of the Court of Appeals is affirmed.

II.

In case No. 79-931, defendant argues initially that the trial court committed prejudicial error, under Crim.R. 14, in overruling his motion for a separate trial. 3 He asserts that prejudice resulted by the joinder of these cases in that the jury cumulated the evidence submitted against him and did not base its finding of guilt upon evidence referable to specific offenses. Additionally, defendant alleges that the denial of his motion for severance constituted prejudicial error under the Fifth Amendment to the United States Constitution, and under Crim.R. 14, stating that joinder compelled him to testify in both causes when it was his preference to testify in only one.

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