State v. Jackson , 134 Ohio St. 3d 184 ( 2012 )


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  • [Cite as State v. Jackson, 
    134 Ohio St. 3d 184
    , 2012-Ohio-5561.]
    THE STATE OF OHIO, APPELLANT, v. JACKSON, APPELLEE.
    [Cite as State v. Jackson, 
    134 Ohio St. 3d 184
    , 2012-Ohio-5561.]
    Sufficiency of indictment—For the purpose of identifying the drug involved in a
    drug-trafficking offense under R.C. 2925.03(A), an indictment is sufficient
    if it names the schedule in which the drug appears—R.C. 2925.03(C).
    (No. 2011-1925—Submitted September 11, 2012—Decided December 4, 2012.)
    APPEAL from the Court of Appeals for Lorain County,
    No. 10CA009791, 2011-Ohio-4998.
    __________________
    SYLLABUS OF THE COURT
    For the purpose of identifying the drug involved in a drug-trafficking offense
    under R.C. 2925.03(A), an indictment is sufficient if it names the schedule
    in which the drug appears.
    __________________
    LUNDBERG STRATTON, J.
    I. Introduction
    {¶ 1} The question before the court is whether an indictment charging a
    defendant with trafficking in drugs under R.C. 2925.03 must name the specific
    drug involved in the offense or whether identifying the schedule in which a drug
    appears is sufficient. We hold that the indictment is sufficient if it names the
    schedule in which the drug appears. Therefore, we reverse the judgment of the
    court of appeals.
    II. Procedural History
    {¶ 2} On December 10, 2008, a Lorain County grand jury issued an
    indictment charging appellee, Alfred Jackson, with five criminal counts, including
    two counts of trafficking in drugs—Count One under R.C. 2925.03(A)(1) and
    SUPREME COURT OF OHIO
    Count Two under R.C. 2925.03(A)(2)—both third-degree felonies. Both counts
    contained the following language:
    The drug involved in the violation is a compound, mixture,
    preparation, or substance included in Schedule I or II, with the
    exception of marihuana, cocaine, L.S.D., heroin, and hashish and
    the amount of the drug involved equals or exceeds the bulk amount
    but is less than five times the bulk amount.
    {¶ 3} The state’s January 20, 2009 bill of particulars and its discovery
    response alleged that Jackson had been trafficking in ecstasy pills. Subsequently,
    the state filed a notice of intent to submit a lab report as evidence at trial. The
    report, which is attached to the notice, indicates that the specimens submitted
    were “three (3) baggies of green vegetable matter” and that the test results
    indicated that the substance was “Cannabidiol, Delta-9-Tetrahydrocannabinol
    [Marihuana] (a schedule I controlled substance), and Cannabigerol.”            The
    marihuana was the basis for Count Three of the indictment and is not relevant to
    our analysis pertaining to Counts One and Two.
    {¶ 4} However, by July 15, 2009, Jackson was aware that the state was
    alleging that the drug involved in Counts One and Two was benzylpiperazine
    (“BZP”), which the state alleged was a Schedule I controlled substance. On that
    date, Jackson filed a Crim.R. 12 motion to dismiss the two trafficking counts,
    alleging that BZP is not listed as a Schedule I controlled substance in R.C.
    3719.41 and therefore neither count charged him with trafficking in drugs.
    {¶ 5} The state filed a motion in opposition, arguing that Crim.R. 12
    tests only the sufficiency of the charging instrument, without regard to the
    evidence that may be produced at trial. Therefore, the state argued, because the
    indictment tracked the language of R.C. 2925.03 and Jackson’s argument speaks
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    January Term, 2012
    only to the sufficiency of the state’s evidence that may be produced at trial, his
    motion to dismiss should be denied. The trial court denied Jackson’s motion to
    dismiss.
    {¶ 6} Subsequently, the state filed a motion requesting the trial court to
    take judicial notice that “benzylpiperazine, also known as BZP, is a Schedule I
    drug under” R.C. 3719.41 (Schedule I)(E)(2). Jackson filed another motion to
    dismiss, alleging that the indictment did not sufficiently charge the two trafficking
    counts because neither count named the specific controlled substance involved.
    The court granted the state’s motion and took judicial notice that BZP is a
    Schedule I drug, and it denied Jackson’s motion to dismiss.
    {¶ 7} Jackson then pleaded no contest to all the charges, including
    Counts One and Two. The trial court accepted Jackson’s plea and sentenced him
    to one year in prison for each of Counts One, Two, Three, and Five and to ten
    months in prison for Count Four, with all five sentences to run concurrently.
    {¶ 8} Jackson appealed, arguing that the trial court erred in not
    dismissing the first two counts of the indictment. In a two-to-one decision, the
    court of appeals, relying on State v. Headley, 
    6 Ohio St. 3d 475
    , 
    453 N.E.2d 716
    (1983), reversed the finding of guilt on the first two counts, holding that the
    indictment was insufficient because it stated that the drug involved was a
    “Schedule I or II [drug],” instead of naming the specific drug involved. State v.
    Jackson, 9th Dist. No. 10CA009791, 2011-Ohio-4998, at ¶ 12, 14.
    {¶ 9} The appeal is now before this court pursuant to our accepting the
    state’s discretionary appeal.
    {¶ 10} The state argues that the court of appeals erred in interpreting
    Headley as requiring an indictment for drug trafficking to name the particular
    controlled substance involved, as opposed to merely naming the category of the
    controlled substance involved, which in this case was a Schedule I or II drug.
    Jackson argues that if an indictment does not name the specific controlled
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    substance, the defendant will not know exactly what he or she is charged with and
    will not be able to defend himself or herself against multiple trials for multiple
    controlled substances.
    III. Analysis
    {¶ 11} R.C. 2925.03 sets forth the criminal offense of trafficking in drugs.
    It prohibits persons from selling or offering to sell controlled substances. R.C.
    2925.03(A). The version of R.C. 2925.03(C) in effect at the time that Jackson
    committed his trafficking offense set forth the degree of the offense and the
    penalty, depending on which subsection of (C) the drug involved falls under:
    (C)(1) Schedule I or II drugs, (2) Schedule III, IV, or V drugs, (3) marihuana, (4)
    cocaine, (5) L.S.D., (6) heroin, and (7) hashish. The schedules referred to in R.C.
    2925.03(C)(1) and (2) are lists of controlled substances. See R.C. 3719.41. There
    are five schedules of drugs.
    {¶ 12} “Article I, Section 10 of the Ohio Constitution provides that ‘no
    person shall be held to answer for a capital, or otherwise infamous, crime, unless
    on presentment or indictment of a grand jury.’ Thus, the Ohio Constitution
    guarantees an accused that the essential facts constituting the offense for which he
    is tried will be found in the indictment by the grand jury.” State v. Pepka, 
    125 Ohio St. 3d 124
    , 2010-Ohio-1045, 
    926 N.E.2d 611
    , ¶ 14, citing Harris v. State,
    
    125 Ohio St. 257
    , 264, 
    181 N.E. 104
    (1932).          Crim.R. 7(B) provides, “The
    statement [specifying the offense in an indictment] may be made in ordinary and
    concise language without technical averments or allegations not essential to be
    proved. The statement may be in the words of the applicable section of the
    statute, provided the words of that statute charge an offense, or in words sufficient
    to give the defendant notice of all the elements of the offense with which the
    defendant is charged.”
    {¶ 13} “An indictment meets constitutional requirements if it ‘first,
    contains the elements of the offense charged and fairly informs a defendant of the
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    January Term, 2012
    charge against which he must defend, and, second, enables him to plead an
    acquittal or conviction in bar of future prosecutions for the same offense.’ ” State
    v. Childs, 
    88 Ohio St. 3d 558
    , 565, 
    728 N.E.2d 379
    (2000), quoting Hamling v.
    United States, 
    418 U.S. 87
    , 117, 
    94 S. Ct. 2887
    , 
    41 L. Ed. 2d 590
    (1974).
    {¶ 14} “Generally, the requirements of an indictment may be met by
    reciting the language of the criminal statute.” State v. Childs, 
    88 Ohio St. 3d 194
    ,
    199, 
    724 N.E.2d 781
    (2000), citing State v. Murphy, 
    65 Ohio St. 3d 554
    , 583, 
    605 N.E.2d 884
    (1992). However, an indictment that otherwise tracks the statutory
    language is not defective for failing to identify the elements of a predicate
    offense. See Murphy at 583 (failing to name elements of the predicate offenses of
    aggravated robbery and aggravated burglary did not render the indictment for
    aggravated murder insufficient). State v. Foust, 
    105 Ohio St. 3d 137
    , 2004-Ohio-
    7006, 
    823 N.E.2d 836
    , ¶ 31 (failing to name elements of the predicate offense did
    not render the indictment for aggravated burglary insufficient). Our holdings in
    Murphy and Foust are based on the notion that “it is the predicate offense itself
    and not the elements of the predicate offense that is an essential element of the
    charged offense.” State v. Buehner, 
    110 Ohio St. 3d 403
    , 2006-Ohio-4707, 
    853 N.E.2d 1162
    , ¶ 12. But if the indictment does not name the essential elements of
    the criminal offense charged, the indictment is insufficient to charge the defendant
    with that offense. See State v. Jester, 
    32 Ohio St. 3d 147
    , 149, 
    512 N.E.2d 962
    (1987).
    {¶ 15} A defendant may seek “specificity of detail” relating to criminal
    charges through a request for a bill of particulars. State v. Sellards, 
    17 Ohio St. 3d 169
    , 171, 
    478 N.E.2d 781
    (1985). For example, the specific drug involved in a
    trafficking offense may be addressed in a request for a bill of particulars. See
    State v. Williamson, 3d Dist. No. 9-10-11, 2010-Ohio-5060, ¶ 2, 3 (the indictment
    charged defendant with trafficking in a Schedule I or II drug, and the bill of
    particulars clarified that the drug involved was ecstasy).
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    SUPREME COURT OF OHIO
    {¶ 16} In the instant case, the language of the indictment tracked the
    language of the trafficking-in-drugs statute, R.C. 2925.03(C)(1), by alleging, “The
    drug involved in the violation is a compound, mixture, preparation, or substance
    included in Schedule I or II with the exception of marihuana, cocaine, L.S.D.,
    heroin, and hashish * * *.” Nevertheless, the court of appeals, relying on State v.
    Headley, 
    6 Ohio St. 3d 475
    , 
    453 N.E.2d 716
    , held that the indictment needed to
    name the specific type of controlled substance involved. Jackson, 2011-Ohio-
    4998.
    {¶ 17} In Headley, the state alleged that Headley had committed
    aggravated trafficking in drugs.    The indictment alleged that Headley “ ‘did
    knowingly provide money or other items of value to another person with the
    purpose that the recipient of the money or items of value would use them to
    obtain controlled substances for the purpose of selling or offering such controlled
    substances in amounts exceeding a bulk amount * * *.’ ” (Emphases added.) 
    Id. at 475,
    quoting the indictment.      Over Headley’s objection, the trial court
    permitted the state to amend the indictment by adding the words, “to-wit:
    cocaine.” 
    Id. A jury
    found Headley guilty as charged. 
    Id. at 476.
            {¶ 18} The court of appeals reversed Headley’s convictions, in part due to
    the fact that the indictment failed to name the controlled substance involved. 
    Id. The state
    appealed to this court, arguing that the indictment was sufficient to
    charge Headley with trafficking in drugs.
    {¶ 19} In Headley, we recognized:
    The severity of the offense [of trafficking in drugs] is dependent
    upon the type of drug involved. Under R.C. 2925.03(C) [now R.C.
    2925.03(C)(1)], the offense is aggravated trafficking if the
    substance involved is a Schedule I drug * * * or a Schedule II
    drug. Under R.C. 2925.03(D) [now R.C. 2925.03(C)(2)], if the
    6
    January Term, 2012
    substance involved is a Schedule III, IV or V drug, the offense is
    the lesser one of trafficking in drugs.
    
    Headley, 6 Ohio St. 3d at 479
    , 
    453 N.E.2d 716
    . Thus, we concluded that “R.C.
    2925.03 sets forth more than one criminal offense with the identity of each being
    determined by the type of controlled substance involved.” 
    Id. Consequently, we
    held that “[t]he type of controlled substance involved in the crime of aggravated
    trafficking under R.C. 2925.03 is an essential element which must be included in
    the indictment, the omission of which cannot be cured by amendment under
    Crim.R. 7(D).” (Emphasis added.) Headley at paragraph two of the syllabus.
    We upheld the court of appeals’ reversal of Headley’s conviction because “the
    indictment purported to charge [Headley] with the offense of aggravated
    trafficking but neglected to state the controlled substance involved.” 
    Id. at 479.
            {¶ 20} The question in the present case is whether Headley’s requirement
    that the “type” of drug involved in the offense be included in the indictment
    means that the indictment must name the specific drug involved, even if the drug
    involved in the offense appears on one of the five schedules found in R.C.
    3719.41. It is evident that this court never intended Headley to require such
    specificity, because after stating that the severity of the offense depended on the
    type of drug involved in the offense, the court proceeded to give two examples in
    which it recognized that the schedule of the drug involved was sufficient to put
    the defendant on notice of the severity of the offense, i.e., trafficking or
    aggravated trafficking. Headley at 479.1
    {¶ 21} R.C. 2925.03 has been amended numerous times since Headley
    was decided. However, the current version of R.C. 2925.03 still provides that
    1. At the time Headley was decided, the controlled substances were found in R.C. 2925.03(C)
    (Schedule I or II drug), 2925.03(D) (Schedule III, IV, or V drug), and 2925.03(E) (marihuana).
    Am.Sub.H.B. No. 300, 136 Ohio Laws, Part II, 2311, 2318-2323. Today the controlled substances
    are listed in R.C. 2925.03(C)(1) through (8). R.C. 2925.03.
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    SUPREME COURT OF OHIO
    trafficking in a Schedule I or II drug is aggravated trafficking, R.C.
    2925.03(C)(1), and trafficking in a Schedule III, IV, or V drug is trafficking, R.C.
    2925.03(C)(2). Thus, “the Schedule * * * classification of a controlled substance
    determines the severity of the offense as much as the specific name of the
    substance.” (Emphasis added.) State v. Smoot, 2d Dist. No. 96-CA-107, 
    1997 WL 432225
    , *5. It is evident that under R.C. 2925.03(C)(1) and (2), the General
    Assembly intended the schedule of drugs set forth in R.C. 3719.41, not the
    specific drug itself, to be an essential element of trafficking.     See generally
    Buehner, 
    110 Ohio St. 3d 403
    , 2006-Ohio-4707, 
    853 N.E.2d 1162
    , ¶ 12.
    Therefore, we hold that for the purpose of identifying the drug involved in a drug-
    trafficking offense under R.C. 2925.03(A), an indictment is sufficient if it names
    the schedule in which the drug appears.
    {¶ 22} The specific drug or drugs alleged to be involved in a drug-
    trafficking offense may be discovered by a defendant through a request for a bill
    of particulars. See Williamson, 2010-Ohio-5060, ¶ 2, 3 (the indictment charged
    defendant with trafficking in a Schedule I or II drug, and the bill of particulars
    clarified that the drug involved was ecstasy).
    IV. Conclusion
    {¶ 23} The indictment in this case charged Jackson with two counts of
    trafficking in Schedule I or II drugs and asserted that the amount of the drug
    involved equaled or exceeded the bulk amount but was less than five times the
    bulk amount, which results in a charge of aggravated trafficking, a felony of the
    third degree pursuant to R.C. 2925.03(C)(1)(c). Thus, the indictment adequately
    informed Jackson of the charges pending against him in Counts One and Two of
    the indictment.
    {¶ 24} With regard to the particular drug involved, the state’s bill of
    particulars identified the controlled substance involved as ecstasy. Nevertheless,
    it is evident that by July 15, 2009, Jackson was aware that the state was charging
    8
    January Term, 2012
    him with trafficking in BZP, because on that date, he filed a Crim.R. 12 motion to
    dismiss the trafficking charges, claiming that BZP was not listed as a Schedule I
    controlled substance.   Ultimately, the trial court concluded that BZP was a
    Schedule I controlled substance under Ohio law, and that issue was not
    challenged on appeal. Consequently, Jackson knew that the state was alleging
    that he had been trafficking in BZP when he pleaded no contest. Therefore,
    Jackson can adequately protect himself against further prosecution for the same
    offense.
    {¶ 25} Accordingly, we reverse the judgment of the court of appeals and
    reinstate Jackson’s conviction for trafficking in Counts One and Two of the
    indictment.
    Judgment reversed
    and convictions reinstated.
    O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE
    BROWN, JJ., concur.
    PFEIFER, J., dissents and would affirm the judgment of the court of
    appeals.
    __________________
    Dennis P. Will, Lorain County Prosecuting Attorney, and Peter J.
    Gauthier, Assistant Prosecuting Attorney, for appellant.
    Michael Stepanik and Jack Bradley, for appellee.
    ______________________
    9
    

Document Info

Docket Number: 2011-1925

Citation Numbers: 2012 Ohio 5561, 134 Ohio St. 3d 184, 980 N.E.2d 1032

Judges: Stratton, O'Connor, O'Donnell, Lanzinger, Cupp, Brown, Pfeifer

Filed Date: 12/4/2012

Precedential Status: Precedential

Modified Date: 10/19/2024