State v. Skorvanek

{¶ 26} I respectfully dissent with regard to the resolution of Skorvanek's first assignment of error. Because the state proved that Skorvanek possessed a "bulk amount" of oxycodone, I would affirm Skorvanek's conviction for second-degree felony possession.

{¶ 27} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v.Gulley (Mar. 15, 2000), 9th Dist. No. 19600,2000 WL 277908, at *1. "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." Id., citingState v. Thompkins (1997), 78 Ohio St.3d 380, 390,678 N.E.2d 541 (Cook, J., concurring). In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991),61 Ohio St.3d 259, 279, 574 N.E.2d 492. Furthermore:

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. at paragraph two of the syllabus; see alsoThompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.

"In essence, sufficiency is a test of adequacy."Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.

{¶ 28} In determining whether a conviction is against the manifest weight of the evidence an appellate court:

[M]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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 ordered.

State v. Otten (1986), 33 Ohio App.3d 339, 340,515 N.E.2d 1009.

A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387,678 N.E.2d 541. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the "thirteenth juror" and disagrees with the factfinder's resolution of the conflicting testimony. Id. Therefore, this court's "discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin (1983),20 Ohio App.3d 172, 175, 485 N.E.2d 717; see also Otten,33 Ohio App.3d at 340, 515 N.E.2d 1009.

{¶ 29} Barbara DiPietro testified that 12 pills constitute a bulk amount of the yellow pills that Skorvanek possessed and that six pills constitute a bulk amount of the green pills that he possessed. She further testified that Skorvanek possessed twice the bulk amount of the yellow oxycodone pills and three times the bulk amount of the green oxycodone pills. Accordingly, Skorvanek possessed an amount of oxycodone equal to five times the bulk amount.

{¶ 30} At trial, both attorneys extensively examined DiPietro as to how she arrived at the foregoing bulk amount calculations. DiPietro repeatedly testified that she based her bulk amount calculations on her training, education, and the information provided to her by the State Board of Pharmacy. She testified that to determine bulk amount, the State Board of Pharmacy "take[s] the daily maximum dose, * * * multipl[ies] it times five, and then * * * divide[s] it by how many milligrams are actually in the tablet." She then explained how the State Board of Pharmacy determined that 90 milligrams was the maximum daily dose for oxycodone. She explained that six pills constitute a bulk amount of the 80 milligram green pills because (1) 90 milligrams (the maximum daily dose) times five (the number set by the Ohio Revised Code) yields 450 milligrams, (2) 450 milligrams divided by the 80 milligrams in one pill yields an average of 5.62 pills, and (3) rounding the average number of pills up to a whole number results in the bulk amount of oxycodone for 80 milligram green pills being set at six pills. After applying the same formula to the 40-milligram yellow pills, DiPietro explained that 12 pills constitute a bulk amount of those pills. Accordingly, DiPietro demonstrated a thorough understanding of the mathematical calculations that factor into a bulk amount determination and specified that she reached that determination based on information from the State Board of Pharmacy.

{¶ 31} The Revised Code permits reliance upon "standard references that are approved by the state board of pharmacy" in determining bulk amount. See R.C. 2925.01(D)(1)(d) (defining "bulk amount" as five times the maximum daily dose specified in a standard pharmaceutical reference manual); 2925.01(M)(3) (defining "standard pharmaceutical reference manual" as including "other standard references" approved by the State Board of Pharmacy). DiPietro specifically testified that she referred to information from the State Board of Pharmacy to determine the bulk amount of oxycodone. Skorvanek objected to DiPietro's testimony at trial on the basis of hearsay because Skorvanek did not give "a frame of reference" to specify exactly what pharmaceutical manual she relied upon. Skorvanek's counsel specified: "What is in the actual pharmaceutical manual as articulated by her is hearsay." Skorvanek's counsel wholly rejected the possibility that DiPietro could testify based on the information she received in her training and her experience. The following exchange took place on the record at sidebar:

[SKORVANEK'S COUNSEL]: * * * I just don't think that [DiPietro] has the qualifications to talk about maximum daily dose.

THE COURT: Are you telling me [the State] has got to bring a pharmacist in to define bulk amount?

[SKORVANEK'S COUNSEL]: Yeah.

According to Skorvanek's argument, a lab technician could testify as to bulk amount based on the technician's training and research only if the state also introduced the approved reference manual upon which the technician relied. I do not believe that the Revised Code requires such a result.

{¶ 32} The state need only prove that its witness based his or her bulk amount determination on materials approved by the State Board of Pharmacy. See State v. Mitchell, 7th Dist. No. 08JE5, 2008-Ohio-6920, 2008 WL 5412414, at ¶ 17-19 (concluding that state proved "bulk amount" when forensic scientist testified that the bulk amount of oxycodone for 80 milligram pills is six pills based on the dosage amount set forth by the State Board of Pharmacy); State v.Bailey, 2d Dist. No. 21123, 2005-Ohio-6669,2005 WL 3446276, at ¶ 6 (concluding that state proved "bulk amount" of 80 milligram oxycodone pills partially based on testimony that the Revised Code contains a chart, which sets forth maximum daily dose). Once the state does so, it is for the jury to determine whether the state's witness is a credible one and whether that witness's testimony is reliable.

{¶ 33} Here, DiPietro testified that she reached her bulk amount determinations based on information from the State Board of Pharmacy. She also thoroughly explained her determinations and the calculations underlying them. Her testimony sufficed as evidence of the bulk amount of oxycodone. Further, the jury obviously concluded that DiPietro was both a credible and reliable witness, as it convicted Skorvanek solely on the basis of her testimony. Accordingly, I would conclude that the state proved that Skorvanek possessed the bulk amount of oxycodone.

{¶ 34} I would further reject Skorvanek's additional argument that, even if the state proved bulk amount, his conviction should be overturned because his indictment only charged him with possessing an amount exceeding the bulk amount of oxycodone. Skorvanek's argument does not present a challenge to the sufficiency and weight of his conviction as set forth in his captioned assignment of error. Rather, Skorvanek's argument amounts to a challenge to a defect in his indictment whereby the state failed to set forth the entirety of R.C. 2925.11's applicable provision in charging Skorvanek with second-degree felony possession. See 2925.11(C)(1)(c) (providing that second-degree felony possession occurs when the amount of the drug possessed equals or exceeds the bulk amount). Disregarding the fact that Skorvanek erroneously assigned error to his indictment through a sufficiency and manifest-weight challenge on appeal, the record reflects that Skorvanek never objected to his indictment. A defendant must raise an objection based upon an alleged defect in the indictment before trial. Crim. R. 12(C). Because Skorvanek did not do so, I would not reach the merits of his defective-indictment argument. I would overrule Skorvanek's first assignment of error and uphold his second-degree felony conviction for possession of oxycodone. Accordingly, I respectfully dissent.