State v. Jack , 2012 Ohio 2131 ( 2012 )

[Cite as State v. Jack, 2012-Ohio-2131.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-11-59
v.
TAKISHA M. JACK, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion Municipal Court
Trial Court No. CRB 1102517
Judgment Reversed and Cause Remanded
Date of Decision: May 14, 2012
APPEARANCES:
Kevin P. Collins for Appellant
Steven E. Chaffin for Appellee
Case No. 9-11-59
SHAW, P.J.
{¶1} Defendant-appellant Takisha M. Jack (“Jack”) appeals the November
15, 2011 judgment of the Marion Municipal Court in Marion County, Ohio finding
her guilty following a bench trial on charges of Possession of a Schedule III
Substance in violation of R.C. 2925.11(A)/(C)(2), a misdemeanor of the first
degree, and Possession of Marijuana in violation of R.C. 2925.11(A)/(C)(3), a
minor misdemeanor.
{¶2} The charges arose out of an incident occurring September 3, 2011
wherein Jack and her passenger, Darthaniel Hamilton (“Hamilton”), were
traveling south from Detroit toward Columbus on U.S. Route 23 in Marion
County. While in Marion County, Jack was pulled over by Trooper David G.
Shockey (“Shockey”) for driving 87 mph in a 65 mph zone.
{¶3} Upon pulling Jack over, Shockey approached Jack’s vehicle from the
passenger side. After asking some preliminary questions, Shockey asked if there
were any weapons in the vehicle. Hamilton, Jack’s passenger, said that he had a
permit, then when Shockey asked Hamilton specifically if he had a weapon on
him, Hamilton responded that he did.
{¶4} During Shockey’s questioning of Jack and Hamilton, Shockey
detected the odor of an alcoholic beverage from inside Jack’s vehicle. Due to
Hamilton having a weapon and the odor of the alcoholic beverage, Shockey called
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for support. Sergeant Rosario came to the scene to assist with Hamilton. Shockey
then took Jack and placed Jack in his patrol car, and Sergeant Rosario took
Hamilton and placed Hamilton in his patrol car.
{¶5} Shockey administered a portable breath test to Jack with the result
coming back as .0467. Meanwhile, Hamilton was placed under arrest for a
concealed carry violation. During a search of Jack’s vehicle, Shockey located a
cup with alcohol in it inside the car, alcohol containers in the driver’s side door
and a small amount of purported marijuana located in the driver’s side console. In
the middle console Shockey found a prescription bottle for Hydrocodone that
contained 185 pills. According to Shockey the label on the bottle indicated there
should have been 120 pills and there were also two different types of pills in the
bottle.
{¶6} Jack was subsequently arrested and charged with Possession of a
Schedule III Substance in violation of R.C. 2925.11(A)/(C)(2), a misdemeanor of
the first degree, and Possession of Marijuana in violation of R.C.
2925.11(A)/(C)(3), a minor misdemeanor.
{¶7} On September 13, 2011, Jack was arraigned and pled “not guilty” to
the charges.
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{¶8} On November 10, 2011, a bench trial was held wherein Jack
proceeded pro se. At trial, the State called Trooper Shockey as its sole witness.
Shockey testified to the events as described above, and then the State rested.
{¶9} Jack called Hamilton in her defense who testified that Jack was
unaware that the medication or the marijuana was in the car as Hamilton had used
the car earlier that day and acquired both things during that time. Jack then
testified, stating that she had no knowledge that the substances were in her car.
{¶10} After the defense rested, the court found Jack guilty on both
possession charges. On the marijuana possession charge Jack was sentenced to
pay a $100 fine and court costs and her license was ordered suspended for six
months. On the possession of a Schedule III Controlled Substance charge Jack
was sentenced to 90 days in jail with 87 days suspended, and a $400 fine with
$250 suspended. Jack was also ordered to undergo an alcohol and drug screen
through the Municipal Court Probation Department and to attend any counseling
or programs that might be ordered.
{¶11} It is from this judgment that Jack appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR I
THE RECORD CONTAINED INSUFFICIENT EVIDENCE
TO SUPPORT DEFENDANT-APPELLANT’S CONVICTION
FOR POSSESSION OF A SCHEDULE III SUBSTANCE IN
VIOLATION OF R.C. 2925.11(A)/(C)(2).
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ASSIGNMENT OF ERROR II
DEFENDANT-APPELLANT’S CONVICTION FOR
POSSESSION OF A SCHEDULE III SUBSTANCE IN
VIOLATION OF R.C. 2925.11(A)/(C)(2) IS CONTRARY TO
THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE RECORD CONTAINED INSUFFICIENT EVIDENCE
TO SUPPORT DEFENDANT-APPELLANT’S CONVICTION
FOR POSSESSION OF MARIJUANA IN VIOLATION OF
R.C. 2925.11(A)/(C)(3).
ASSIGNMENT OF ERROR IV
DEFENDANT-APPELLANT’S CONVICTION FOR
POSSESSION OF MARIJUANA IN VIOLATION OF R.C.
2925.11(A)/(C)(3) IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY FAILING TO GIVE NOTICE
OF TRIAL IN CASE NO. CRB 1102517B.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY FAILING TO PROPERLY
EXPLAIN HER RIGHTS AT HER INITIAL APPEARANCE.
{¶12} As Jack’s first four assignments of error are interrelated, we elect to
address them together. Moreover, as these assignments of error are dispositive of
this case, the remaining assignments of error are rendered moot.
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First, Second, Third, and Fourth Assignments of Error
{¶13} In her first, second, third, and fourth assignments of error, Jack
argues that there was not sufficient evidence to support her convictions for
Possession of a Schedule III Substance in violation of R.C. 2925.11 (A)/(C)(2) and
Possession of Marijuana in violation of R.C. 2925.11(A)/(C)(3), and that her
convictions were against the manifest weight of the evidence. Specifically Jack
argues that the “possession” element of each charge was lacking as Jack claims
she was unaware the substances were in her car.
{¶14} Reviewing a challenge to the sufficiency of the evidence requires this
court to examine the evidence in the light most favorable to the prosecution. The
Ohio Supreme Court has set forth the sufficiency of the evidence test as follows:
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 and 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.
State v. Jenks, 61 Ohio St.3d 259 (1991), at syllabus, superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89 (1997).
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{¶15} Unlike our review of the sufficiency of the evidence, an appellate
court’s function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing whether the trial court’s
judgment was against the weight of the evidence, the appellate court sits as a
“thirteenth juror” and examines the conflicting testimony. Id. In doing so, this
Court must review the entire record, weigh the evidence and all of the reasonable
inferences, consider the credibility of witnesses, and determine whether in
resolving conflicts in the evidence, the factfinder “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered. State v. Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764, ¶ 30,
citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983); Thompkins, 78
Ohio St.3d at 387.
{¶16} In the case sub judice, Jack argues specifically that the State failed to
prove the element of “possession”; however, a challenge to sufficiency of the
evidence merits a review of all the essential elements of a crime. Moreover,
“‘Crim.R. 52(B) allows us to notice plain errors or defects when an accused’s
substantial rights have been violated. The appellee was required by law to present
sufficient evidence as to each element of the offense. * * * When a necessary
element has not been shown, we are allowed to notice that omission when the
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appellant’s rights are violated.’” State v. Adkisson, 8th Dist. No. 81329, 2003-
Ohio-3322, ¶ 6, quoting In the Matter of: Theonne Mason, 8th Dist. No. 73259
(1999), at * 5.
{¶17} Jack was charged with two counts of possession in violation of R.C.
2925.11. The charges on Jack’s complaint read:
Takisha M. Jack
AT CITY OF MARION/MARION COUNTY, OHIO ON OR
ABOUT THE 3rd DAY OF September 2011 DID knowingly
obtain, possess, or use a controlled substance, to wit:
Hydrocodone (Schedule III).
IN VIOLATION OF O.R.C.# 2925.11
***
Takisha M. Jack
AT CITY OF MARION/MARION COUNTY, OHIO ON OR
ABOUT THE 3rd DAY OF September 2011 DID knowingly
obtain, possess, or use a controlled substance, to wit:
Marijuana[.]
IN VIOLATION OF O.R.C.# 2925.11
(Doc. No. 1).
{¶18} In order to convict Jack of Possession of a Schedule III Substance, or
for Possession of Marijuana, the State is required to prove all the elements of R.C.
2925.11(A). Penalties for violating R.C. 2925.11 differ depending on the
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“controlled substance” proven to have been possessed. The provisions of R.C.
2925.11 relevant to this case read,
(A) No person shall knowingly obtain, possess, or use a
controlled substance.
***
(C) Whoever violates division (A) of this section is guilty of one
of the following
(2) If the drug involved in the violation is a compound,
mixture, preparation, or substance included in schedule III, IV,
or V., whoever violates division (A) of this section is guilty of
possession of drugs. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division (C)(2)(b), (c), or
(d) of this section, possession of drugs is a misdemeanor of the
first degree or, if the offender previously has been convicted of a
drug abuse offense, a felony of the fifth degree.
***
(3) If the drug involved in the violation is marihuana or a
compound mixture, preparation, or substance containing
marihuana other than hashish, whoever violates division (A) of
this section is guilty of possession of marihuana. The penalty for
the offense shall be determined as follows:
(b) Except as otherwise provided in division (C)(3)(b), (c), (d),
(e), (f), or (g) of this section, possession of marihuana is a minor
misdemeanor.
{¶19} In order for Jack to be convicted of these charges, the State has to
show that the substances Jack “knowingly possessed” for each conviction were the
controlled substances as defined in the complaint, i.e. a Schedule III Substance
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and Marijuana. Failure to prove that the substance is a “controlled substance” is
fatal to the prosecution. See In Re D.F., No. 7th Dist. No. 10 NO 374, 193 Ohio
App.3d 78, 2011-Ohio 1004, ¶ 81-87 (holding testimony merely that drug was a
“prescription drug” was insufficient to prove it was a controlled substance).
{¶20} Pursuant to R.C. 2925.51, the State may establish prima facie
evidence of the content, identity and weight of a substance through lab testing.1
But, courts in Ohio have held that lab testing is not always necessary to prove the
contents of a substance. For example, courts have held that police officers trained
and qualified may identify marijuana without a laboratory test as long as there is a
sufficient foundation laid to establish familiarity. State v. Maupin, 42 Ohio St.2d
473 (1975), paragraph two of the syllabus. In addition, the Ohio Supreme Court
has gone so far as to hold that a drug user lay witness can establish his or her
competence to express an opinion on the identity of a controlled substance if a
sufficient foundation for the testimony is established. State v. McKee, 91 Ohio
St.3d 292 (2001), at syllabus.
{¶21} However, failure to establish either a foundation for a witness’
identification or a lab test proving the contents of controlled substances has been
found fatal to a conviction warranting reversal. See McKee, supra, at 297-98; see
also State v. Adkisson, supra at ¶ 7 (holding that absent lab test results, rock of
1
See R.C. 2925.51 for requirements that must be met before the prima facie showing is established.
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crack cocaine introduced into evidence was insufficient to prove substance was
cocaine for the purposes of possession charge); State v. Bullitt, 8th Dist. No.
86738, 166 Ohio App.3d 365, 2006-Ohio-2304, ¶ 17 (holding failure to introduce
any analysis of purported cocaine residue insufficient to prove possession); In Re
D.F., supra at ¶ 81-87 (holding testimony that drug was a prescription drug was
insufficient to prove it was a controlled substance); State v. Osler, 5th Dist. No.
10-CA-31, 2011-Ohio-3219, ¶ 45 (holding officer’s testimony that he “believed”
substance found tested positive for marijuana not sufficient to support conviction);
State v. Blevins, 4th Dist. No. 10CA3353, 2011-Ohio-3367, ¶ 21 (holding
insufficient evidence to support conviction for possession where a syringe
purportedly containing methamphetamine was never tested and there was no other
testimony to substantiate that the substance was a controlled substance).
{¶22} In order to prove that Jack was in possession of a Schedule III
controlled substance in this case, the State called one witness, Shockey, who
offered the following testimony.
We found the alcohol containers obviously in the driver’s side
door, the console of the driver’s side door there was a small
amount of marijuana located there. In the middle console was a
prescription bottle that contained 185 Hydrocodone-related
pills, the bottle was indicated [sic] there should have been 120 in
it, there were two different types of medication, but basically the
same chemically.
(Tr. at 14).
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{¶23} The foregoing testimony is the sum total of all the evidence
purporting to establish that the pills found in Jack’s vehicle constituted a Schedule
III Substance.
{¶24} At no other time in the State’s case are the pills explicitly identified.
Similarly, nothing was elicited on cross-examination during Jack’s defense to
identify the pills. When Hamilton, Jack’s witness, was testifying, he never
specifically identified the pills, referring to the pills only as “medication.” (Tr. at
22, 27, 31). Jack also never identified the pills in her testimony, claiming to have
no knowledge of them being in the car.
{¶25} Although Shockey makes the statement that the two pills inside the
bottle were “basically the same chemically” there was no evidence presented at
trial by the State that the pills were tested and found to be Hydrocodone. In fact,
there is no evidence anywhere in the record that the pills were taken and analyzed
by a lab and found to be Hydrocodone as they were alleged to be in the complaint.
Furthermore, neither the pills themselves nor the pill bottle were introduced into
evidence to give any indication as to what the bottle contained. Moreover,
Shockey offers no testimony as to any familiarity with the pills to lay a foundation
for his identification. In fact, Shockey’s testimony does not establish that the pills
even were Hydrocodone as alleged in the complaint. His only testimony regarding
the pills is that they were “Hydrocodone-related.”
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{¶26} Based on the utter lack of proof that any pills found in Jack’s car
were, in fact, Hydrocodone or any other Schedule III Substance, we cannot find
that there is sufficient evidence to convict Jack on this charge. Under these
circumstances, the conviction is also against the manifest weight of the evidence.
Therefore, we sustain Jack’s first and second assignments of error.
{¶27} With regard to Jack’s conviction for Possession of Marijuana, unlike
his testimony regarding the pills, Shockey did explicitly testify that he found a
“small amount of marijuana.” (Tr. at 14). While courts in Ohio have held that an
experienced narcotics officer could field test or identify marijuana sufficiently for
a conviction of Possession in violation of R.C. 2925.11, no testimony was
presented as to Shockey’s experience with marijuana or other narcotics. The only
testimony relative to Shockey’s experience was a claim that he had worked as a
State Trooper for 12 years and was familiar with the protocols for the enforcement
of traffic laws. (Tr. at 6).
{¶28} Furthermore, Shockey did not testify as to how he identified the
marijuana. He also did not establish that he had any expertise to identify
marijuana. At trial, no lab results or field tests were mentioned and nothing was
introduced into evidence to prove the contents of the marijuana. The purported
marijuana was also not introduced into evidence.
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{¶29} Although lab tests may not be necessary to prove a substance is
marijuana and a lay witness may be able to testify as to what a substance is for the
purposes of a possession conviction if a sufficient foundation is laid, a conclusory
statement that a bag of marijuana was found inside of Jack’s car is simply
insufficient to prove that any substance found was actually marijuana.2 Based on
the foregoing, we cannot conclude that the evidence in this case is sufficient to
establish that the substance found was marijuana. The conviction on this charge is
also against the manifest weight of the evidence. We therefore sustain Jack’s third
and fourth assignments of error.
{¶30} Accordingly, Jack’s first, second, third, and fourth assignments of
error are sustained. Assignments of error five and six are rendered moot.
{¶31} For the foregoing reasons, the judgment of the trial court is reversed
and the cause is remanded to the Marion Municipal court to discharge Jack on all
claims.
Judgment Reversed and
Cause Remanded
PRESTON and ROGERS, J.J., concur.
/jlr
2
We note here that Hamilton, Jack’s witness, specifically mentions marijuana in his testimony. (Tr. at 30).
However, the State did not establish a sufficient familiarity through Hamilton for lay-witness identification
of marijuana to support a conviction of possession. Conclusory statements made by a lay witness without a
foundation are insufficient to prove the contents of a substance.
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