State v. Bange ( 2011 )

[Cite as State v. Bange, 2011-Ohio-378.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA3160
:
v. :
: DECISION AND
SETH A. BANGE, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 1-25-11
APPEARANCES:
Lori J. Rankin, Chillicothe, Ohio, for Appellant.
Michael Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Kline, J.:
{¶1} Seth A. Bange appeals his conviction for aggravated possession of
Oxycodone. Bange contends both that his conviction is not supported by sufficient
evidence and that his conviction is against the manifest weight of the evidence. For
both of these issues, Bange contends that the State did not present evidence of the bulk
amount of extended release Oxycodone tablets. We, however, find that the State’s
expert specifically testified as to the bulk amount of extended release Oxycodone
tablets. And using State’s Exhibit 1, the same expert explained his reasoning. As such,
we find that Bange’s conviction is supported by sufficient evidence, and we find that
Bange’s conviction is not against the manifest weight of the evidence. Accordingly, we
affirm the judgment of the trial court.
Ross App. No. 10CA3160 2
I.
{¶2} On May 1, 2008, detectives from the Ross County Sheriff’s office, along with
other members of the U.S. Route 23 Drug Task Force, served a search warrant in Ross
County, Ohio. Among other areas searched, the officers searched a car rented by
Shanelle Graves. Graves and Bange had driven the car from Columbus to Ross
County.
{¶3} When the officers searched the car, they discovered a sock under the front
driver’s seat. Inside the sock were two baggies. The second baggie contained 81
tablets. At trial, an expert from Ohio’s Bureau of Criminal Identification and
Investigation testified that the tablets weighed 23.7 grams and contained Oxycodone.
{¶4} The State also produced a forensic scientist from the Forensic Biology and
DNA Section of Ohio’s Bureau of Criminal Identification and Investigation. This expert
testified that he had tested samples from Bange as well as the sock found in the car.
And he testified that the DNA samples taken from the sock were consistent with
Bange’s DNA profile.
{¶5} Finally, the State produced Robert H. Amiet. Amiet is a pharmacist who
works as a compliance specialist with the Ohio State Board of Pharmacy. Amiet
identified the tablets as Oxycodone extended release tablets with a strength of 40 mg.
And he testified that the bulk amount for 40 mg Oxycodone tablets was 12 tablets.
{¶6} After trial, the jury convicted Bange of aggravated possession of Oxycodone
in an amount equal to or exceeding five times the bulk amount but less than 50 times
the bulk amount in violation of R.C. 2925.11(C)(1)(c), a felony of the second degree.
Ross App. No. 10CA3160 3
The trial court then sentenced Bange to four years incarceration based on his
conviction, with a mandatory three-year term of post-release control.
{¶7} Bange appeals and assigns the following two errors for our review: I. “IN
VIOLATION OF DUE PROCESS, MR. BANGE WAS FOUND GUILTY OF
AGGRAVATED POSSESSION OF OXYCODONE WHEN SUCH A FINDING WAS NOT
BASED ON SUFFICIENT EVIDENCE.” And, II. “IN VIOLATION OF DUE PROCESS,
MR. BANGE WAS FOUND GUILTY OF AGGRAVATED POSSESSION OF
OXYCODONE WHEN SUCH A FINDING WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
II.
{¶8} For both assignments of error, Bange contends that the State “failed to prove
the bulk amount for [O]xycodone extended release tablets.” Bange’s Brief at 4. As
such, we will initially explain the significance of the bulk amount before specifically
addressing Bange’s sufficiency and manifest weight arguments.
{¶9} Under the statute that prohibits possession of illicit drugs, the level of offense
is dependant on the amount and type of drugs possessed. The relevant drug in this
case, Oxycodone, is a schedule II controlled substance. R.C. 3719.41 SCHEDULE II
(A)(1)(n). Specifically, the statute relies on multiples of the “bulk amount” and
determines for a schedule II substance that the offense may be a fifth-degree felony, a
third-degree felony, a second-degree felony, or a first-degree felony depending on how
many multiples of the bulk amount the offender possessed. See R.C.
2925.11(C)(1)(a)–(e).
Ross App. No. 10CA3160 4
{¶10} In relevant part, the bulk amount of a controlled substance means “[a]n
amount equal to or exceeding * * * five times the maximum daily dose in the usual dose
range specified in a standard pharmaceutical reference manual[.]” R.C.
2925.01(D)(1)(d). Bange claims that the State failed to produce evidence of the bulk
amount specifically for extended release tablets. At trial, Amiet produced pages from a
standard pharmaceutical reference manual (State’s Exhibit 1), specifically American
Hospital Formulary Service Drug Information. The Ohio Pharmacy Board has
recognized and approved this work. Ohio Adm.Code 4729-11-07(F).
{¶11} The manual or work, however, contains two relevant listings for Oxycodone.
The first is a general listing for “Oxycodone Hydrochloride Tablets USP” (“non-
extended-release-tablet listing”). The second listing is specifically for “Oxycodone
Hydrochloride Extended-Release Tablets” (“extended-release-tablet listing”). And each
listing has a different entry for the usual adult dose.
{¶12} The non-extended-release-tablet listing states that the usual adult dose is “2
to 15 mg every 4 to 6 hours as needed; may be increased if severe pain is present.”
The extended-release-tablet listing states that “[d]osage must be individualized by the
physician according to the severity of pain and patient response. * * * The 80-mg and
160-mg dose should be used in opioid tolerant patients only. Fatal respiratory
depression may occur in patients who have not previously received opioids.”
(Emphasis in original). Amiet specifically testified that “the bulk amount for the
Oxycodone, extended release tablet, forty milligrams is twelve tablets.” Trial Transcript,
Day Two, at 34. Amiet based this conclusion on the usual dose entry of the non-
extended-release-tablet listing. Amiet stated that the maximum usual daily dose was 15
Ross App. No. 10CA3160 5
mg every four hours. Under this dosage, a patient would ingest 90 mg of Oxycodone
daily. Five times this amount is 450 mg, and we then divide this amount by 40 mg, for
each tablet. This calculation indicates that 11.25 tablets are required to equal the bulk
amount. Amiet rounded this figure up to 12 tablets in Bange’s favor. Bange contends
that this fails to establish the bulk amount for extended-release tablets.
A. Sufficiency of the Evidence
{¶13} In his first assignment of error, Bange contends that insufficient evidence
exists to support his conviction. When reviewing a case to determine whether the
record contains sufficient evidence to support a criminal conviction, our function “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.” State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus, superseded on other grounds. See, also, Jackson v.
Virginia (1979), 443 U.S. 307, 319.
{¶14} This test raises a question of law and does not allow the court to weigh the
evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full
play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility
of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,
79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
Ross App. No. 10CA3160 6
{¶15} In reviewing the evidence, we have little difficulty in determining that the State
produced sufficient evidence of the bulk amount. The State produced an expert witness
who testified that the bulk amount for 40 mg extended-release tablets was twelve
tablets. The State’s witness relied on a standard pharmaceutical manual to reach this
conclusion. Bange’s argument that Amiet should have relied on the extended-release-
tablet listing rather than the non-extended-release-tablet listing goes to weight and not
admissibility. As such, considering Amiet’s testimony and construing the evidence in
favor of the prosecution, we find that Bange’s conviction is supported by sufficient
evidence.
{¶16} Accordingly, we overrule Bange’s first assignment of error.
B. Manifest Weight of the Evidence
{¶17} In his second assignment of error, Bange contends that his conviction is
against the manifest weight of the evidence. When determining whether a criminal
conviction is against the manifest weight of the evidence, we “will not reverse a
conviction where there is substantial evidence upon which the [trier of fact] could
reasonably conclude that all the elements of an offense have been proven beyond a
reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of the
syllabus. See, also, State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41.
We “must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial granted.”
Smith at ¶41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-71; State v.
Ross App. No. 10CA3160 7
Martin (1983), 20 Ohio App.3d 172, 175. “The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.” Martin at 175 (citations omitted).
{¶18} “Even in our role as thirteenth juror we are constrained by the rule that the
weight to be given evidence and the credibility to be afforded testimony are normally
issues to be determined by the trier of fact. * * * The fact finder is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony. * * * Thus, we will
only interfere if the fact finder clearly lost its way and created a manifest miscarriage of
justice.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555, at ¶13 (citations
within quote omitted).
{¶19} After reviewing the record, we find that there is substantial evidence in the
record supporting Bange’s conviction. Bange essentially contends that the jury should
not have credited Amiet’s testimony establishing the bulk amount because he relied on
the non-extended-release-tablet listing. However, the listings in the manual (State’s
Exhibit 1) provide sound reasons for Amiet’s conclusions.
{¶20} Based on the language of the extended-release-tablet listing, it is not clear
whether the listing even provides a maximum usual daily dose for extended-release
tablets because the listing merely states that the dosage must be individualized. Under
these circumstances, we see no reason why a pharmacist cannot determine that
another listing provides a sufficient basis for stating the maximum daily dose in the
usual dose range.
Ross App. No. 10CA3160 8
{¶21} Also, the language of the extended-release-tablet listing in the manual (again,
as we stated earlier, State’s Exhibit 1) indicates that the 80 and 160 mg doses are for
individuals who have developed an opioid tolerance. Likely, these doses would not be
considered within the usual dose range because most patients, presumably, have not
developed an opioid tolerance. The extended-release-tablet listing also indicates that
the next smallest dosage from 80 mg is the 40 mg tablet. The listing also provides that
one tablet should be taken every twelve hours. The most plausible interpretation of the
extended-release-tablet listing is that the maximum daily dose in the usual range is two
40 mg tablets. The bulk amount of a drug is five times the maximum daily dose in the
usual dose range. R.C. 2925.01(D)(1)(d). Therefore, this listing likely indicates that the
bulk amount is ten 40 mg tablets rather than twelve.
{¶22} We hasten to add that we do not hold that Amiet should have used the
extended-release-tablet listing. Rather, we merely point out that the difference between
the two entries is slight, and there is no reason to believe use of the extended-release-
tablet listing would have any effect on the outcome of this case. We conclude that it is
well with the expertise of a pharmacist to choose which listing was the more appropriate
one. We find that substantial evidence supported the jury’s verdict that Bange
possessed more than five times the bulk amount of Oxycodone.
{¶23} Accordingly, we overrule Bange’s second assignment of error.
III.
{¶24} Having overruled both of Bange’s assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 10CA3160 9
Harsha, J., concurring in judgment only:
{¶25} As an initial matter, I conclude there is no merit to the State’s assertion that
Bange waived the sufficiency of the evidence argument by failing to renew his Crim.R.
29(A) motion. See by analogy, State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-
1186, at ¶13 (failure to move for judgment of acquittal does not waive a sufficiency
argument on appeal), citing State v. Jones (2001), 91 Ohio St.3d 335, 446, and State v.
Carter (1997), 64 Ohio St.3d 218.223.
{¶26} As for the merits, I conclude the State’s expert was not free to substitute the
dosage specification of the regular tablet form of oxycodone hydrochloride for the
dosage specifications of the extended-release version of the drug. As the principal
opinion points out, R.C. 2925.01(D)(1) provides the “bulk amount” of oxycodone
hydrochloride is an “amount equal to or exceeding * * * five times the maximum daily
dose in the usual dose range specified in a standard pharmaceutical reference manual.”
State’s Exhibit 1 is a photo copy of two pages from a source that a State’s witness
identified as being such a manual. Under the heading “Oral Dosage Forms,” the exhibit
identifies three distinct forms of orally administered oxycodone: 1) oral solution; 2)
tablets; and 3) extended-release tablets. Each form of oxycodone has a separate
subheading captioned “Usual Adult Dose,” which is specific to that form of the drug. For
instance, in the oral solution form, the usual adult does is specified as “5 mg every three
to six hours as needed.” Thus, the maximum daily does in the usual dose range for the
oral solution is 5 mg x 8 (24 hr. ÷ 3 hr. interval) = 40 mg. However, the usual adult dose
for the regular tablet form of oxycodone is specified as “5 to 15 mg. every 4 to 6 hours
as needed.” Thus, the maximum daily dose in the usual dose range for this form of
Ross App. No. 10CA3160 10
oxycodone is 15 mg. x 6 (24 hr. ÷ 4 hr. interval) = 90 mg. Comparing the two forms, it is
clear that they do not have the same dosage rates and are not interchangeable.
{¶27} When we look at the Usual Adult Dose for the extended-release form of the
oxycodone tablets, we see the instruction “Oral, administer dose every 12 hours.” We
must then read the accompanying “Note(s)” to determine what the maximum daily dose
in the usual dose range is. The first Note indicates the dosage must be individualized
by the physician according to patient response. It also instructs that the extended
release form is not intended for use as an “as needed” analgesic. Finally, it indicates
that in order to avoid potentially fatal reactions, the 80 and 160 mg. doses are only
appropriate for patients who have developed an opioid tolerance. This information must
be considered in conjunction with the information provided in another subheading called
“Strength(s) usually available.” There the manual lists 10 mg., 20 mg., 40 mg., 80 mg.,
and 160 mg. as being usually available in the United States. When these available
strengths are considered with the note instructing doctors to limit use of the two high-
strength versions of the tablet, it is obvious that 40 mg. of extended-release oxycodone
is the usual adult dose. And because it can be administered every 12 hours, or 2 times
a day, the maximum daily dose in the usual dose range for this form of the drug is 80
mg., not 90 mg. as the principal opinion and the State’s expert suggest.
{¶28} In sum, the manual lists three different forms of oral oxycodone, each having
its own maximum dose in the usual dose range. Those dosages are not
interchangeable. Nonetheless, based on Exhibit 1, it is apparent that the bulk amount
for extended-release oxycodone is 400 mg. (5 times the maximum daily dose in the
usual dose range). And in its 40 mg. extended-release form, it takes only 10 tablets to
Ross App. No. 10CA3160 11
equal or exceed five times the bulk amount. The State’s expert incorrectly testified that
12 tablets would equal or exceed five times the bulk amount. This testimony actually
overstated the prohibited amount and worked to the appellant’s benefit, i.e. it was
harmless. And because Exhibit 1 was properly introduced before the jury, the State’s
evidence satisfied both the sufficiency and manifest weight of the evidence burdens.
Thus, I concur in judgment.
Ross App. No. 10CA3160 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED, and Appellant shall pay the
costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Harsha, P.J.: Concurs in Judgment Only with Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.