State v. Manley , 71 Ohio St. 3d 342 ( 1994 )

Alice Robie Resnick, J.

The sole issue presented for our review concerns the proof necessary to establish that a drug transaction occurred' in the vicinity of a school premises. At the time of the offense, R.C. 2925.03¹ read as follows:

“(A) No person shall knowingly do any of the following:

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“(5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount[.]

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“(C) If the drug involved is any compound, mixture, preparation, or substance included in schedule I with the exception of marihuana or in schedule II, whoever violates this section is guilty of aggravated trafficking.

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“(5) Where the offender has violated division (A)(5) of this section, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years, except that, if the offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises or the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of five years.”

“School premises” is defined by R.C. 2925.01(R) to include either of the following:

“(1) The parcel of real property on which any school is situated, whether or not any instruction, extracurricular activities, or training provided by the school is being conducted on the premises at the time a. criminal offense is committed;

“(2) Any other parcel of real property that is owned or leased by a board of education of a school or the governing body of a school for which the state board of education prescribes minimum standards under section 3301.07 of the Revised Code and on which some of the instruction, extracurricular activities, or training of the school is conducted, whether or not any instruction, extracurricular activities, or training provided by the school is being conducted on the parcel of real property at the time a criminal offense is committed.”

“School,” as used in defining “school premises,” is defined by R.C. 2925.01(Q) to be “any school operated by a board of education or any school for which the state board of education prescribes minimum standards under section 3301.07 of the Revised Code, whether or not any instruction, extracurricular activities, or training provided by the school is being conducted at the time a criminal offense is committed.”

In the instant action, the state produced three witnesses who testified that the drug transaction occurred within the vicinity of a school. Two of the witnesses specifically identified the school as Whittier School. One witness, Investigator Breitigan, testified that the drug transaction occurred “two hundred and fifty-five feet point three” from the Whittier schoolyard. Appellee contends that this testimony was insufficient to prove that the sale occurred within the prescribed area surrounding the “school premises” as that phrase is statutorily defined. The court of appeals concluded that the state’s failure to present evidence that Whittier School was operated by a board of education at the time of the drug transaction as defined in R.C. 2925.01(Q) and (R) constituted reversible error. That conclusion requires an unacceptably strict application of the statute rather than an application which gives effect to the obvious intention of the law.

The provisions of R.C. 2925.03(C)(5) clearly indicate that the Ohio legislature intended to punish more severely those who engage in the sale of illegal drugs in the vicinity of our schools arid our children. The court of appeals in this case correctly determined that in order to convict a defendant under the school specification, the state must prove beyond a reasonable doubt that the drug transaction occurred within the specified distance of a school. The state has the burden of establishing all material elements of a crime by proof beyond a reasonable doubt. Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144. That requirement also applies in cases involving the imposition of an enhanced punishment upon proof of some additional element. See, e.g., State v. Gaines (1989), 46 Ohio St.3d 65, 545 N.E.2d 68; State v. Gordon (1971), 28 Ohio St.2d 45, 57 O.O.2d 180, 276 N.E.2d 243; State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932. In Murphy, for example, this court held that “[t]he state must present evidence beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant cari receive an enhanced penalty pursuant to R.C. 2929.71(A).” Id., syllabus. As the failure to prove firearm operability would lead to a failure to obtain a conviction under R.C. 2929.71(A), so too would the failure to prove that a transaction occurred within the vicinity of a “school premises” as that phrase is defined by R.C. 2925.01(Q) and (R).

In the case at bar, the state produced three individuals who testified concerning the proximity of a school to the drug transaction. Appellee failed to challenge those statements by cross-examination, motion or a proposed jury instruction. In short, the issue was never brought to the trial court’s attention. In his brief filed with this court, appellee argues that he was not obligated to object to the state’s proof in order to challenge the issue on appeal. He erroneously contends that because a plea of not guilty puts in issue all the elements of the offenses charged, he is relieved of any duty to specifically challenge the state’s lack of evidence. Because the record is devoid of any indication that appellee preserved the issue of the school specification, it should not be reviewed on appeal.

Pursuant to the terms of Crim.R. 52(B), however, plain errors or defects which affect substantial rights may be grounds for reversal even though they were not brought to the attention of the trial court. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus. “Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899.

The court of appeals in this case reversed appellee’s sentence under the school specification based upon plain error in two areas: first, the trial court’s failure to provide the jury with the specific statutory definition of “school” under R.C. 2925.01(Q) as it applies to “school premises” in R.C. 2925.03(C)(5), and second, the state’s failure to offer evidence to prove that a “school” was connected to the illegal transaction. For the reasons which follow, we find that the circumstances surrounding the instant action do not warrant a finding of plain error.

First, we consider the trial court’s failure to include a statutory definition of a “school” within the instructions to the jury. It is well settled that “a defendant is entitled to have the jury instructed on all elements that must be proved to establish the crime with which he is charged * * State v. Adams (1980), 62 Ohio St.2d 151, 153, 16 O.O.3d 169, 170, 404 N.E.2d 144, 146; see, also, Miller v. State (1932), 125 Ohio St. 415, 181 N.E. 890; United States v. Rybicki (C.A.6, 1968), 403 F.2d 599. However, a trial court’s failure to separately and specifically charge a jury as to each element of an offense does not per se constitute plain error. State v. Adams, 62 Ohio St.2d at 153, 16 O.O.3d at 170, 404 N.E.2d at 140; State v. Long, supra, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. In Adams, we held that the complete failure to charge the jury as to the culpable mental state required to convict a defendant of child endangerment under R.C. 2919.22 was not plain error. In this case, the trial judge did not fail to charge on an element of the crime. Rather, he merely failed to define one of the terms used in setting out an element of the offense. Appellee has not been able to demonstrate how the failure to define the term “school” rises to the level of a miscarriage of justice. Furthermore, an examination of the record establishes no probability that the ultimate result, but for the alleged inadequate jury instruction, would have been different.

The court of appeals also based its finding of plain error on the conclusion that the presence of a statutorily defined school can be shown only by some affirmative proof that a board of education operated the premises. That conclusion is inconsistent with past decisions from this court. In State v. Murphy, supra, we considered the type of evidence necessary to prove an element of an offense beyond a reasonable doubt. At issue in that case was whether the firearm specification set out in R.C. 2929.71 could be proven beyond a reasonable doubt without actually presenting scientific or direct evidence as to the operability of a firearm. The majority determined:

“[S]uch proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. To rule otherwise would destroy the intent of the General Assembly to impose an additional term of the three years’ actual imprisonment on those persons who use a firearm to carry out their criminal objectives.” 49 Ohio St.3d at 209, 551 N.E.2d at 935.

Following our decision in Murphy, we again considered the use of indirect evidence in proving the elements of an offense in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. In that opinion we determined that circumstantial evidence is as probative as direct evidence, and that juries should weigh.both types of evidence under the same standard of proof. “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id., paragraph two of the syllabus.

The analyses and holdings in Murphy and Jenks clearly apply to the facts in this case. The record before us reveals that three witnesses testified that the drug transaction- occurred within the immediate vicinity of a school. Whether Whittier School met the definition of a school under R.C. 2925.01(R) was not challenged by cross-examination or motion. The court of appeals’ discussion of alternate inferences that could be made about the school’s use as an academic facility amounts to viewing the evidence in less than the most favorable light to the prosecution. Given the lack of evidence to the contrary, a reasonable mind accepting the evidence as presented might find appellee guilty beyond a reasonable doubt under the school specification.

For the foregoing reasons, we reverse the judgment of the court of appeals and reinstate the original sentence imposed by the trial court.

Judgment reversed.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, F.E. Sweeney and Pfeifer, JJ., concur.

1 . We note R.C. 2925.03 has since been amended. Those changes appear to be minor and do not alter the substance of the section.