State v. Garnett

[Cite as State v. Garnett, 2013-Ohio-4971.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0088-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DUSTIN J. GARNETT COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 12CR0355
DECISION AND JOURNAL ENTRY
Dated: November 12, 2013
HENSAL, Judge.
{¶1} Dustin Garnett appeals his conviction from the Medina County Court of Common
Pleas for trafficking in drugs. For the following reasons, this Court affirms.
I.
{¶2} In November 2011, a Medina County drug task force agent made a controlled
drug buy from Mr. Garnett in the parking lot of a pharmacy. The agent bought a total of 49 pills
that were identical in shape, size, and color. Each pill also had the designation “K-56” stamped
into it. Shervonne Bufford, a forensic scientist with the Bureau of Criminal Identification and
Investigation, testified that the pills were pharmaceutical grade, meaning that they had been
made by a reputable pharmaceutical manufacture. She consulted a reference database called
“Ident-A-Drug” to determine the content of the pills. According to the database, the pills contain
10 milligrams of oxycodone. Ms. Bufford took scrapings from one of the pills and analyzed
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them in a gas chromatograph mass spectrometer. The test confirmed that the pill contained
oxycodone.
{¶3} The Grand Jury indicted Mr. Garnett for trafficking in drugs. Because of the
strength and number of the pills, the indictment charged him with selling “an amount equal or
exceeding bulk but less than five times bulk.” A jury found Mr. Garnett guilty of the offense,
and the trial court sentenced him to two years in prison. Mr. Garnett has appealed, assigning as
error that his conviction is not supported by sufficient evidence and is against the manifest
weight of the evidence.
II.
ASSIGNMENT OF ERROR
APPELLANT’S CONVICTION WAS BASED UPON INSUFFICIENT
EVIDENCE AND [IS] AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶4} Mr. Garnett argues that the tests that the State conducted were insufficient to
prove that he trafficked in excess of the bulk amount of oxycodone. He also argues that his
conviction is against the manifest weight of the evidence. Whether a conviction is supported by
sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio
St.3d 380, 386 (1997). In making this determination, we must view the evidence in the light
most favorable to the prosecution:
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.
3
State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus. If a defendant asserts
that his convictions are against the manifest weight of the evidence:
[A]n appellate court must 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, 33 Ohio App. 3d 339, 340 (9th Dist.1986).
{¶5} The jury found Mr. Garnett guilty of trafficking in oxycodone, in violation of
Section 2925.03(A)(1) of the Ohio Revised Code. Under that section, “[n]o person shall
knowingly * * * [s]ell or offer to sell a controlled substance * * *.” The jury also found that the
“amount of the drug involved equals or exceeds the bulk amount but is less than five times the
bulk amount * * *.” R.C. 2925.03(C)(1)(c). For oxycodone, the bulk amount is “[a]n amount
equal to or exceeding twenty grams or five times the maximum daily dose * * * specified in a
standard pharmaceutical reference manual * * *.” R.C. 2925.01(D)(1)(d). A standard
pharmaceutical manual means “the current edition * * * of references that are approved by the
state board of pharmacy.” R.C. 2925.01(M). In order to prove that the quantity of drugs
exceeded the bulk amount in this case, the State did not attempt to establish that they weighed in
excess of twenty grams. Instead, it focused on whether the number of pills exceeded five times
the maximum daily dose. It relied on a standard pharmaceutical manual that indicated that five
times the maximum daily dose for 10 milligram oxycodone tablets is 45 pills.
{¶6} Mr. Garnett argues that the State failed to prove that at least 45 out of the 49 pills
contained oxycodone. He asserts that, although the State did not have to test every pill, it needed
to test a larger sample size in order for the jury to reasonably infer that all of the pills contained
oxycodone. Mr. Garnett argues that it is not enough that all of the pills were similar in shape,
4
size, color, and marking. He also argues that the State failed to prove that the pills contained 10
milligrams of oxycodone. He notes that Ms. Bufford admitted that she did not test the milligram
composition of any of the pills. Ms. Bufford explained that she had relied, instead, on the Ident-
A-Drug database.
{¶7} Regarding whether the pills contained oxycodone, “[t]his Court has previously
held that a scientific analysis of a random sampling of pills from a bulk quantity is sufficient to
support an inference that all of the pills contain the same drug, if the defendant offers no
rebuttal.” State v. Mathis, 9th Dist. Summit No. 23507, 2007-Ohio-2345, ¶ 12, citing State v.
Rush, 9th Dist. Lorain Nos. 3809 & 3818, 1985 WL 11030, *4 (July 31, 1985). We have never
set requirements on the percentage of a substance that must be analyzed to support such an
inference, as it depends on the facts and circumstances of each case. In this case, where the
seized pills were bundled together, were uniform in color, shape, size, and marking, and were of
“pharmaceutical grade,” we conclude that the random selection and sampling of only one of the
pills was sufficient to support an inference that all of the pills contained oxycodone. See State v.
Hensley, 2d Dist. Montgomery No. 8518, 1985 WL 7883, *6 (Apr. 2, 1985) (allowing inference
even though forensic chemist tested only one out of 100 identically-marked pills). Further, as
noted by Judge Grey, judges are generally “woefully ignorant of sampling techniques * * * [so]
if [an] appellant wishes to object to the evidence on the grounds that it is not random or
representative, it is incumbent upon him to introduce by expert witness or otherwise sufficient
evidence to show the unreliability of the testing.” State v. Reynolds, 4th Dist. Ross No. 1185,
1985 WL 8354, *2 (Sept. 26, 1985) (Grey, J., concurring).
{¶8} Regarding the amount of oxycodone contained in each pill, Ms. Bufford testified
that, based on the pills’ shape, size, color, and markings, she “consult[ed] a database that is
5
specifically for pharmacists, law enforcement officers * * * [and] professionals. It’s called the
Ident-A-Drug reference.” She testified that, according to the database, the pills that the
undercover agent purchased from Mr. Garnett contain 10 milligrams of oxycodone each. She
also testified that, if the pills contained only five milligrams of oxycodone, they would look
different. Mr. Garnett did not object to Ms. Bufford’s reliance on the reference database or
challenge the accuracy of the database at trial. We, therefore, conclude that Ms. Bufford’s
testimony was sufficient to establish that each of the 49 pills contained 10 milligrams of
oxycodone.
{¶9} Viewing the record in a light most favorable to the State, there was sufficient
evidence to establish beyond a reasonable doubt that Mr. Garnett sold oxycodone to the
undercover agent in an amount that was in excess of the bulk amount. To the extent that Mr.
Garnett’s assignment of error challenges the sufficiency of the evidence, it is overruled.
{¶10} Regarding manifest weight, Mr. Garnett argues that, in light of the minimal
testing of the pills, the jury lost its way when it found that at least 45 of the pills contained 10
milligrams of oxycodone. We disagree. As we have often noted, unlike this Court, the jury had
the opportunity to observe Ms. Bufford first hand and assess her credibility regarding her
credentials, her testing methods, and the appropriateness of her reliance on the Ident-A-Drug
database. See State v. Howse, 9th Dist. Lorain No. 12CA010251, 2012-Ohio-6106, ¶ 45 (“[T]he
jury was entitled to believe all, part, or none of the testimony of each witness.”). We cannot say
that its decision resulted in a manifest miscarriage of justice. Accordingly, to the extent that Mr.
Garnett’s assignment of error challenges the weight of the evidence, it is overruled.
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III.
{¶11} Mr. Garnett’s conviction was supported by sufficient evidence and is not against
the manifest weight of the evidence. His assignment of error is overruled. The judgment of the
Medina County common pleas court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
7
BELFANCE, P. J.
CONCURRING.
{¶12} I concur. However, I write separately to clarify the reason that the testing in this
case was sufficient to demonstrate that Mr. Garnett possessed a bulk amount of oxycodone.
{¶13} At trial and in this appeal, Mr. Garnett has raised the issue of the sufficiency of
the evidence where the state has relied upon random sampling to prove both the nature of the
substance and its amount. The Ohio Supreme Court has not directly addressed this issue.
However, other state supreme courts have concluded that “random testing is permissible when
the seized samples are sufficiently homogenous so that one may infer beyond a reasonable doubt
that the untested samples contain the same substance as those that are conclusively tested. This
rule is based in reason and practicality.” (Internal citation omitted.) People v. Jones, 174 Ill. 2d
427, 429 (1996). See also Annotation, Sufficiency of Random Sampling of Drug or Contraband
to Establish Jurisdictional Amount Required for Conviction, 45 A.L.R. 5th 1, Section 2[a] (1997)
(“As a general rule, courts agree that random sampling of a homogeneous substance is sufficient
to establish the jurisdictional amount required for conviction * * *. The courts which embrace
this view, however, commonly qualify it as a rule of reason and practicality which is not without
limitation.”).1
{¶14} In discussing the reliability of using random sampling, the Sixth Circuit has noted
that
“[C]ourts have endorsed statistically based drug-quantity extrapolations
predicated on random test samples in circumstances where the government was
1
Random sampling is often held to be insufficient if the defendant could be convicted of
a lesser-included offense involving a smaller quantity. In such a case, the prosecution must
conclusively test enough of the controlled substance to establish the jurisdictional weight
prescribed for the more serious offense. See, e.g., State v. Robinson, 517 N.W.2d 336, 339
(Minn.1994); People v. Williams, 267 Ill.App.3d 870, 879 (1994); Ross v. State, 528 So. 2d 1237,
1241 (Fla.App.1988).
8
able to demonstrate an ‘adequate basis in fact for the extrapolation and that the
quantity was determined in a manner consistent with the accepted standards of
[reasonable] reliability.’”
United States v. Jackson, 470 F.3d 299, 310-311 (6th Cir.2006), quoting United States v. Scalia,
993 F.2d 984, 989 (1st Cir.1993), quoting United States v. McCutchen, 992 F.2d 22, 25-26 (3d
Cir.1993).2 Sufficient indicia of reliability may be found where the evidence demonstrates that
“(1) a proper ‘random’ selection procedure was employed; (2) the chemical
testing method conformed with an accepted methodology; (3) the tested and
untested samples were sufficiently similar in physical appearance; and (4) the
tested and untested samples were contemporaneously seized at the search scene.”
Jackson at 311, quoting Scalia at 989. Thus, critical issues with respect to random sampling
pertain to the appropriateness of the random selection procedure and the methodology employed
in testing for the particular substance. In some instances, random sampling to prove both
identity and weight implicates the sufficiency of the evidence, namely, whether the state is able
to meet its burden of proof. See, e.g, Jones, 174 Ill. 2d at 429-430 (Prosecution failed to meet its
burden of proof where it tested only two of five packets containing loose, rocky substance.).
Conversely, under other circumstances, random sampling may implicate the weight of the
evidence and not sufficiency. See, e.g., Gabriel v. State, 900 S.W.2d 721, 722
(Tex.Crim.App.1995). In other words, the evidence in each case must be examined in order to
determine the reasonableness of the type and extent of random sampling employed to determine
whether the state met its burden of proof both as to identity and quantity or weight.
Circumstances include, but are not limited to, the quantity of the substance, its appearance,
whether it was discovered in one single container or package or more than one, the form of the
2
In these cases, random sampling was employed to demonstrate quantities of an illicit
substance by a preponderance of the evidence for purposes of sentencing pursuant to statutory
guidelines.
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substance (pills, powder, crystals, liquid), and packing or lack of it. For example, in State v.
Mathis, 9th Dist. Summit No. 23507, 2007-Ohio-2345, this Court concluded that the testing done
by the State was sufficient to allow a jury to find that 112 bricks seized contained marijuana
given that: (1) 1 brick was chemically tested and contained marijuana; (2) the packages were
similar in size, shape, and packaging; and (3) there was a great amount of other evidence
indicating the presence of marijuana such as a strong odor of marijuana emanating from the
defendant’s home and officers observed clumps of marijuana on the floor of the home. Id. at ¶
13.3 See also State v. Hensley, 2d Dist. Montgomery No. 8518, 1985 WL 7883, *6 (Apr. 2,
1985), (concluding that testing single pills from individual bags was sufficient when all the pills
contained the same imprint, had been discovered in the same car, and the State had tested over
100 pills out of approximately 5000 and found them all to contain the same substance).
{¶15} At trial, Ms. Bufford testified that she examined the pills and determined that they
were uniform, i.e. were the same color and size and had the same markings. She then consulted
the Ident-A-Drug database so as to make an initial judgment as to what the pills might contain,
and, based upon the markings and color of the pills, she determined that the pills should contain
ten milligrams of oxycodone. Ms. Bufford indicated that her procedure, after making this initial
determination, was that she would then take a “representative sample,” meaning “[she] w[ould]
take one of the tablets and scrape some of the pill introduced in to a little vial and run that on
[her] instrumentation.” Ms. Bufford stated that, when the gas chromatograph mass spectrometer
is finished running, if the data she has received identifies what has been referenced “then [she]
can go ahead and come to a conclusion, and it’s only with those two pieces of information, the
3
A challenge to the weight of the bricks on the theory that the packaging was not
removed before weighing was rejected given that the state was required to prove possession of
20,000 grams and the bricks weighed 42,380 grams. Mathis at ¶ 10.
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actual reference [she] consulted before and the actual confirmation on the instrumentation that
[she] conduct[s] to come to a conclusion as to what the substance is.” Ms. Bufford testified that
her analysis indicated the pill in this case consisted solely of oxycodone.
{¶16} Mr. Garnett’s counsel elicited testimony from Ms. Bufford concerning
hypergeometric sampling. Ms. Bufford explained that hypergeometric sampling provides a
mathematical formula that would indicate how many samples of a given set should be tested to
ensure that a certain percentage of the set was uniformly the same. She indicated that BCI uses
hypergeometric sampling on a case-by-case basis, and suggested it is used where it is unclear
what the substance might be. With respect to the pills at issue in this case, Ms. Bufford
estimated that, if using hypergeometric sampling, one would have to test approximately 13 or 14
pills to be able to conclude that there was a 95% likelihood that 90% of the remaining pills also
contained the same substance.
{¶17} Although it is troubling that Ms. Bufford seemed to indicate that, regardless of the
number of pills, she would have only tested one pill as confirmation that all of the pills contained
the same substance and same weight, we are not confronted with that scenario. In this case, the
agent made a controlled drug buy in the parking lot of a pharmacy. The 49 pills were all uniform
in marking, size and shape and were delivered in one single transaction and one single container.
Ms. Bufford examined the pills and testified that she consulted the Ident-A-Drug database4 from
which she learned that the imprint on the pills indicated that they contained ten milligrams of
oxycodone. She tested one pill and found that it contained oxycodone. Accordingly, given all of
4
Mr. Garnett has not challenged the admission of the evidence from the Ident-A-Drug
database on appeal. See App.R. 16(A)(7); State v. Rapp, 9th Dist. Wayne No. 12CA0062, 2013-
Ohio-4408, ¶ 13.
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the facts in this case, including the fact that the pills were marked with a pharmaceutical imprint5
and that the Ident-A-Drug database supplied supporting evidence about the content and weight of
the pills, I agree that, under these circumstances, the State presented sufficient evidence that Mr.
Garnett possessed more than five times the maximum daily dose of ten-milligram oxycodone
tablets. For similar reasons, Mr. Garnett’s conviction is not against the manifest weight of the
evidence.
APPEARANCES:
KELLY A. ONEST, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and LAUREN M. HASE, Assistant Prosecuting
Attorney, for Appellee.
5
If the imprint was something less official, such as a picture logo like a dog or a rabbit,
the outcome of this case would likely be different.