State v. Howard

[Cite as State v. Howard, 2016-Ohio-7125.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 15AP-444
(C.P.C. No. 13CR-1292)
Maurice J. Howard, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2016
On brief: Todd W. Barstow, for appellant. Argued:
Todd W. Barstow.
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
Swanson, for appellee. Argued: Valerie B. Swanson.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Maurice J. Howard, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas. For the
following reasons, we affirm the trial court's judgment.
I. Facts and Procedural History
{¶ 2} On March 8, 2013, the Franklin County Grand Jury indicted appellant on:
one count of aggravated possession of oxycodone, in violation of R.C. 2925.11, a felony of
the second degree; one count of possession of cocaine, in violation of R.C. 2925.11, a
felony of the third degree; one count of possession of hydrocodone, in violation of R.C.
2925.11, a felony of the fourth degree; one count of possession of benzylpiperazine
("BZP"), in violation of R.C. 2925.11, a felony of the fifth degree; and, one count of having
a weapon while under disability, a violation of R.C. 2923.13, a felony of the third degree.
The first four counts contained one-year firearm specifications.
No. 15AP-444 2
{¶ 3} Appellant filed several motions to suppress, which the trial court overruled.
(Aug. 26, 2014 Tr. at 20.) The trial court conducted a jury trial. At the trial, the testimony
revealed that the charges arose out of an incident that occurred on December 1, 2010.
{¶ 4} James Bajus, a Special Agent with the U.S. Department of Justice Bureau of
Alcohol, Tobacco, Firearms & Explosives ("ATF") testified that he and Special Agent Kirk
Howard were conducting surveillance in an undercover investigation that did not involve
appellant. They were sitting in an unmarked government vehicle, parked on the street
near appellant's apartment. Bajus testified he saw appellant exit his apartment and
converse with people in a car parked in the apartment building parking lot. Both agents
testified appellant was carrying a pair of tennis shoes and a large canister of chemical
mace. Then appellant approached the agents' car. Both special agents commanded
appellant to back away from the vehicle several times. Appellant approached the rear
passenger side of the vehicle and looked in the window. In the back seat were the agents'
ballistic vests marked "ATF Police." The agents were concerned for their safety and exited
the vehicle with their guns drawn. They detained appellant and requested assistance from
other officers. When searching appellant, they found narcotics concealed in the tennis
shoes appellant was carrying. They obtained a search warrant for appellant's apartment
and found a loaded firearm, a large quantity of ammunition, numerous pills, suspected
marijuana, and crack cocaine.
{¶ 5} Columbus Police Detective Jerry Orick testified that he was supporting
Special Agents Bajus and Howard on surveillance detail. Special Agent Howard requested
back-up support and Detective Orick responded. His vehicle was only a couple blocks
away. Detective Orick testified he found $840 in appellant's wallet. Detective Orick
interviewed a few other people at the scene and, based upon the interviews, requested a
search warrant for appellant's apartment. While the officers were executing the search
warrant, Christopher Danielson, appellant's roommate, requested entrance into the
apartment to retrieve his tattoo equipment. Several other officers testified that they
helped search the apartment, including Detective Mike Malloy, who testified he found
$6,400 in the apartment.
{¶ 6} At the trial, during the state's questioning of Detective Malloy, the
prosecutor stopped the questioning and conferred with defense counsel. (Feb. 11-13, 2015
No. 15AP-444 3
Tr. Vol. 2 at 202.) Then the attorneys had the following discussion with the trial judge,
outside the hearing of the jury:
[Prosecutor]: Judge, I was going to have Detective Malloy
give testimony as to the bulk amounts of drugs just so that
it's in the record. The bulk amount is relevant to the defense
levels. Defense counsel is suggesting we do it as an
instruction. That is fine with me.
THE COURT: Yes. I have done that in the last trial. I did
that in the last trial.
[Prosecutor]: Absolutely. That's fine. I just wanted to make
sure everybody was comfortable with that.
THE COURT: Okay. Let me put it this way: For purposes of
this, you would stipulate the bulk amount because it's as a
matter of law.
[Defense Attorney]: It's smaller.
THE COURT: Well, I suppose the question that you would
have is you can make a Rule 29 motion saying he didn't
prove bulk amount, but once you have a weight or a number
of doses, you can --
[Defense Attorney]: Once the chemist people come in here
to testify as to the count, that's done.
THE COURT: Yes. I agree the bulk amount would be a
question of law, which will be fine. Okay.
(Tr. Vol. 2 at 203-04.)
{¶ 7} Kelly Ducat ("Ducat"), a forensic scientist in the Columbus Police Crime
Lab, testified that he tested the firearm found in appellant's apartment and it was
operable. Reagan Anderson ("Anderson"), a forensic scientist in the Columbus Police
Crime Lab, testified that he tested the suspected drugs found in the shoes and in the
apartment. The chemical analysis revealed the suspected drugs were cocaine, oxycodone,
hydrocodone, BZP, and marijuana. Anderson testified that all the cocaine analyzed
weighed 15.843 grams. (Tr. Vol. 2 at 218.) Anderson testified that Exhibit 4 contained
1.909 grams of marijuana. Two other bags were visually consistent with Exhibit 4. Exhibit
No. 15AP-444 4
5 contained 77 oxycodone-hydrochloride tablets (15 milligrams "mg") for a total weight of
7.687 grams. Exhibit 5 also contained 52 hydrocodone bitartrate (5-mg) with 500-mg
acetaminophen tablets, weighing a total of 32.738 grams. Anderson testified that
oxycodone is a Schedule II substance and hydrocodone and acetaminophen products
were Schedule III substances.
{¶ 8} Anderson testified that Exhibit 20 contained two partial plastic bags with
opaque substances inside identified as cocaine base. Exhibit 21 contained three bags of
marijuana. Exhibit 22 contained 233 green, circular tablets each identified as containing
15-mg of oxycodone hydrochloride. One tablet weighed 0.127 grams. Exhibit 24
contained 30 hydrocodone bitartrate (5-mg) and 500-mg acetaminophen tablets. One
tablet weighed 0.642 grams. Exhibit 25 contained four tablets identified as BZP.
{¶ 9} The parties stipulated that appellant was convicted of felonious assault, a
felony of the second degree, in July 1999.
{¶ 10} Appellant was the only defense witness. He claimed the drugs and the
firearm belonged to his roommate, Christopher Danielson. He denied knowing that the
drugs or firearm were in the apartment. He testified that his friends arrived to give him a
ride to purchase parts to repair his van. His roommate, Danielson, had called him and
asked him to bring the shoes outside and Danielson would meet him on the street to
retrieve them. Appellant stated he approached the car thinking Danielson was inside, but
he did not hear the Special Agents yelling at him to retreat because the car windows were
closed. He denied knowledge of drugs inside the shoe and did not know Danielson had
drugs or the firearm inside the apartment.
{¶ 11} At the close of the evidence, the trial court instructed the jury as to Count 1
of the indictment, the aggravated possession of oxycodone charge, as follows:
Before you can find the defendant guilty of this offense, you
must find beyond a reasonable doubt that on or about the 1st
day of December 2010, and in Franklin County, Ohio, the
defendant knowingly possessed a controlled substance
included in Schedule II, to wit, or specifically: Oxycodone, in
an amount equal to or exceeding 5 times the bulk amount,
but less than 50 times the bulk amount.
***
No. 15AP-444 5
Bulk amount means 30 unit doses of oxycodone.
(Tr. Vol. 2 at 337-39.)
{¶ 12} The trial court instructed the jury regarding Count 3 of the indictment,
possession of hydrocodone, as follows:
Before you can find the defendant guilty of this offense, you
must find beyond a reasonable doubt that on or about the 1st
day of December, 2010, and in Franklin County, Ohio, the
defendant knowingly possessed a controlled substance
included in Schedule III, to wit: Hydrocodone, in an amount
equal to or exceeding the bulk amount, but less than five
times the bulk amount.
***
Hydrocodone is a Schedule III controlled substance.
The bulk amount for this controlled substance is 40 unit
doses.
(Tr. Vol. 2 at 342.)
{¶ 13} The jury found appellant guilty of the drug possession counts and one count
of having a weapon while under disability. The jury found appellant not guilty of the
firearm specifications. The trial court sentenced appellant to 7 years of imprisonment on
Count 1 of the indictment; 12 months of imprisonment on each of Counts 2, 3 and 4 of the
indictment; and 18 months of imprisonment on Count 5 of the indictment. Counts 1 and 5
of the indictment were to be served consecutive to each other but concurrent with Counts
2, 3 and 4 of the indictment. The total sentence imposed was 8 years and 6 months of
imprisonment.
II. Assignments of Error
{¶ 14} Appellant filed a timely notice of appeal and raised the following
assignments of error for our review:
I. THE TRIAL COURT ERRED AND DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE
ONE SECTION TEN OF THE OHIO CONSTITUTION BY
FINDING HIM GUILTY OF AGGRAVATED POSSESSION
No. 15AP-444 6
OF DRUGS; POSSESSION OF DRUGS; AND HAVING
WEAPON UNDER DISABILITY AS THOSE VERDICTS
WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE
AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
II. THE TRIAL COURT COMMITTED PLAIN ERROR BY
FAILING TO CORRECTLY INSTRUCT THE JURY ON THE
REQUISITE AMOUNT OF OXYCODONE NEEDED TO
PROVE A SECOND DEGREE FELONY AND THE
REQUISITE AMOUNT OF HYDROCODONE NEEDED TO
PROVE A FOURTH DEGREE FELONY.
III. Discussion
{¶ 15} By his first assignment of error, appellant contends that the trial court
deprived him of his due process rights by finding him guilty of aggravated possession of
drugs and possession of drugs1 because those verdicts were not supported by sufficient
evidence and were against the manifest weight of the evidence.
{¶ 16} Whether evidence is legally sufficient to sustain a verdict is a question of
law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St. 3d 89 (1997).
Sufficiency is a test of adequacy. Id. The evidence is construed in the light most favorable
to the prosecution to determine whether a rational trier of fact could have found the
essential elements of the offense proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St. 3d 259 (1991), paragraph two of the syllabus, superseded on other grounds; State
v. Conley, 10th Dist. No. 93AP-387 (Dec. 16, 1993). When reviewing the sufficiency of the
evidence, the court does not weigh the credibility of the witnesses. State v. Yarbrough, 95
Ohio St. 3d 227, 2002-Ohio-2126, ¶ 79. "[T]he mere existence of conflicting evidence
cannot make the evidence insufficient as a matter of law." State v. Murphy, 91 Ohio St. 3d
516 (2001).
{¶ 17} Sufficiency of the evidence and manifest weight of the evidence are distinct
concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When
presented with a manifest weight argument, the appellate court engages in a limited
1 Although listed in his assignment of error, appellant made no argument that there was insufficient
evidence regarding his conviction for having a weapon under disability nor that it was against the manifest
weight of the evidence.
No. 15AP-444 7
weighing of evidence to determine whether sufficient competent, credible evidence
permits reasonable minds to find guilt beyond a reasonable doubt. Conley; Thompkins at
387. "When a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror'
and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins.
In the manifest weight analysis, the appellate court considers the credibility of the
witnesses and determines whether the jury "clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered." Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
Determinations of credibility and weight of the testimony remain within the province of
the trier of fact. State v. DeHass, 10 Ohio St. 2d 212 (1967), paragraph one of the syllabus.
{¶ 18} R.C. 2925.11 prohibits a person from knowingly obtaining, possessing or
using a controlled substance. Oxycodone is a Schedule II controlled substance. R.C.
3719.01(C) (defining "controlled substance" as including any Schedule II or Schedule III
substance). R.C. 3719.41(Schedule II)(A)(1)(n) lists oxycodone as a Schedule II substance.
Possession of oxycodone is a felony of the second degree if "the amount of [oxycodone]
involved equals or exceeds five times the bulk amount but is less than fifty times the bulk
amount." R.C. 2925.11(C)(1)(c). The "bulk amount" of oxycodone is "[a]n amount equal
to or exceeding twenty grams or 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).
Former R.C. 2925.01(M)(1)-(3) defines "standard pharmaceutical reference manual" as
"the current edition, with cumulative changes if any, of any of the following reference
works: (1) 'The National Formulary'; (2) 'The United States Pharmacopeia,' prepared by
authority of the United States Pharmacopeial Convention, Inc.; (3) other standard
references that are approved by the state board of pharmacy."
{¶ 19} Appellant was also charged with knowingly obtaining, possessing or using
hydrocodone, a Schedule III substance, in an amount equal to or exceeding the bulk
amount but less than five times the bulk amount. Former R.C. 2925.11(C)(2)(b). The
bulk amount for hydrocodone is "an amount equal to or exceeding twenty grams or thirty
times the maximum daily dose in the usual dose range specified in a standard
pharmaceutical reference manual of a compound, mixture, preparation, or substance that
No. 15AP-444 8
is or contains any amount of a Schedule III opiate or opium derivative." Former R.C.
2925.01(D)(3).2
{¶ 20} Appellant presents two arguments regarding sufficiency and manifest
weight. He argues that the officers who testified were confused regarding the locations of
the drugs found in the apartment and that the state failed to prove the bulk amount of the
drugs because the state presented evidence as to the weight of oxycodone and
hydrocodone, but not as to the maximum daily dose. Appellant argues that the state did
not prove the amount of oxycodone and hydrocodone that the officers found and this
court should reverse appellant's convictions of possession and remand for further
proceedings because the state only proved a felony of the third degree and a misdemeanor
of the first degree.
{¶ 21} Appellant argues that the state did not prove he possessed the substances
inside the apartment because the officers were unable to pinpoint exact locations of the
items inside the apartment. Appellant argues that the apartment was a two-bedroom
apartment, he and his roommate had separate bedrooms, and the drugs and firearm
belonged to his roommate.
{¶ 22} The officers testified regarding the items found in the apartment. They were
able to identify the exhibits of drugs and the firearm and discuss where they found the
items. Officer Adam Klontz testified he found the firearm on the side shelves of the
entertainment center in the family room. Detective Malloy testified he found $6,400 in a
pair of shoes in the northeast bedroom. Officer Brett Slaughter testified he found the
suspected drugs in a trash bag in the west bedroom. (Tr. Vol. 2 at 188.) The state
demonstrated that the lease of the apartment was in appellant's name and appellant
received mail at that address.
{¶ 23} The jury heard all the testimony and apparently discounted any confusion
regarding the exact location of the drugs inside the apartment, which is within its
province to do. The trier of fact is in the best position to take into account any
inconsistencies, the demeanor of the witnesses, and the manner of testifying to determine
whether the witnesses' testimony is credible. State v. Williams, 10th Dist. No. 02AP-35,
2Appellant argues that the bulk amount for hydrocodone is defined in R.C. 2925.01(D)(2), but it is actually
R.C. 2925.01(D)(3) for a Schedule III opium derivative.
No. 15AP-444 9
2002-Ohio-4503, ¶ 58. "While the jury may take note of the inconsistencies and resolve
them or discount them accordingly, see DeHass, supra, such inconsistencies do not
render defendant's conviction against the manifest weight or sufficiency of the evidence."
State v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). "The jury is the sole judge
of the weight of the evidence and the credibility of witnesses. It may believe or disbelieve
any witness or accept part of what a witness says and reject the rest." State v. Antill, 176
Ohio St. 61, 67 (1964). Appellant's first argument in his first assignment of error is not
well-taken.
{¶ 24} Appellant's second argument within his first assignment of error is that the
state failed to introduce sufficient evidence to support his possession conviction because
the state failed to prove the bulk amount of the drugs. Rather than having the state
produce testimony concerning the bulk amount of the drugs, the trial court instructed the
jury regarding the bulk amount. The state's forensic chemist identified the number of
tablets and the total weight of oxycodone and hydrocodone that appellant possessed, but
appellant contends that the state did not introduce evidence that would permit the jury to
determine what constitutes a "maximum daily dose" of either substance. Rather, the trial
court provided the bulk amount definition in its jury instructions. As previously stated,
the discussion proceeded, as follows:
[Prosecutor]: Judge, I was going to have Detective Malloy
give testimony as to the bulk amounts of drugs just so that
it's in the record. The bulk amount is relevant to the defense
levels. Defense counsel is suggesting we do it as an
instruction. That is fine with me.
THE COURT: Yes. I have done that in the last trial. I did
that in the last trial.
[Prosecutor]: Absolutely. That's fine. I just wanted to make
sure everybody was comfortable with that.
(Tr. Vol. 2 at 203-04.)
{¶ 25} And the trial court gave the following instructions to the jury:
Bulk amount means 30 unit doses of oxycodone.
***
No. 15AP-444 10
Hydrocodone is a Schedule III controlled substance.
The bulk amount for this controlled substance is 40 unit
doses.
(Tr. Vol. 2 at 339-42.)
{¶ 26} In State v. Zoltan, 7th Dist. No. 11 MA 160, 2014-Ohio-3788, ¶ 44-47, the
court recognized that the statute provides two methods for the state to prove bulk
amount. The first method involves testimony regarding the weight of the drugs. The
second method to establish bulk amount is to introduce evidence that the drugs equaled
or exceeded five times the maximum daily dose in the usual dose range specified in a
standard pharmaceutical reference manual. The Zoltan court recognized a division in the
appellate courts concerning this approach. Some appellate courts have held that what
constitutes the maximum daily dose is a question of fact which must be proved in one of
three ways: "(1) by stipulation, (2) by expert testimony as to what a standard
pharmaceutical reference manual prescribes, or (3) by a properly proven copy of the
manual itself." Id. at ¶ 47, citing State v. Huber, 187 Ohio App. 3d 697, 2010-Ohio-2919, ¶
8 (2d Dist.); State v. Montgomery, 17 Ohio App. 3d 258 (1st Dist.1984). Other appellate
districts have held that the trial court can take judicial notice of what constitutes the bulk
amount by reference to a standard pharmaceutical reference manual and instruct the jury
accordingly. State v. Fisher, 5th Dist. No. 05CAA04, 2006-Ohio-2201, ¶ 13-22; State v.
Cole, 12th Dist. No. CA2004-01-007, 2005-Ohio-2274, ¶ 29-30; State v. Drummond, 3d
Dist. No. 16-11-08, 2012-Ohio-1468, ¶ 15; State v. Feltner, 2d Dist. No. 88-CA-34 (Aug.
16, 1989); State v. Morales, 5th Dist. No. 2004 CA 68, 2005-Ohio-4714. In State v.
Johnson, 10th Dist. No. 13AP-997, 2015-Ohio-3248, ¶ 76, this court acknowledged that, at
trial, the parties "stipulated that the bulk amount of Oxycodone 30 milligram pills, a
Schedule II substance, is 15 unit doses or 15 pills."
{¶ 27} In this case, we have a stipulation and a jury instruction. The parties
stipulated that the trial court should instruct the jury regarding the bulk amount. The
prosecutor informed the trial court that defense counsel suggested an instruction rather
than have the state provide testimony. Appellant argues that we should not interpret
defense counsel's silence on the record as a stipulation. While in some cases that may be
No. 15AP-444 11
true, here, after conferring with defense counsel, the prosecutor indicated that it was
defense counsel's idea to provide the bulk amount to the jury through an instruction. If
defense counsel did not agree to that interpretation, he did, at that point, have an
obligation to object.
{¶ 28} In State v. Tate, 138 Ohio St. 3d 139, 144, 2014-Ohio-44, the Supreme Court
of Ohio defined a "stipulation in law" as "nothing more than agreement as to the veracity
of a fact in issue. Black's Law Dictionary 1550 (9th Ed.2009) defines 'stipulation' as a
'voluntary agreement between opposing parties concerning some relevant point; esp., an
agreement relating to a proceeding, made by attorneys representing adverse parties to the
proceeding.' " Defense counsel did not object and permitted the prosecutor to inform the
trial court that he suggested and agreed to the instruction.
{¶ 29} In addition to the stipulation, in this case, the state also presented
Anderson's laboratory analysis report. (Ex. K.) In the report, Anderson designated the
weight of each tablet of oxycodone and hydrocodone and specified that each tablet
constituted one unit dose. Anderson also testified and the report specified how many
tablets of each drug the officers found. Thus, the jury had the stipulation and the report
to determine the bulk amount.
{¶ 30} After reviewing the evidence presented at trial, and viewing it in a light most
favorable to the prosecution, we conclude, "any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph
two of the syllabus. Appellant's second argument regarding his first assignment of error is
not well-taken, and as such, appellant's first assignment of error is overruled.
{¶ 31} In his second assignment of error, appellant contends that the trial court
committed plain error by failing to instruct the jury correctly on the requisite amount of
oxycodone needed to prove a felony of the second degree and the requisite amount of
hydrocodone needed to prove a felony of the fourth degree.
{¶ 32} Pursuant to Crim.R. 30(A), a party may not assign as error the giving or
failure to give any instruction unless the party objected before the jury retired. However,
Crim.R. 52(B) enables an appellate court to take notice of plain error without an
objection. For an error to constitute "plain error" under Crim.R. 52(B), it must satisfy
three prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the
No. 15AP-444 12
error must be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the
error must have affected "substantial rights," meaning the error must have affected the
outcome of the trial. State v. Barnes, 94 Ohio St. 3d 21, 27 (Jan. 9, 2002). An appellate
court recognizes plain error with the utmost caution, under exceptional circumstances,
and only to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio App. 3d 675, 2009-
Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St. 3d 469, 2008-Ohio-6266, ¶
139.
{¶ 33} Appellant argues that the trial court incorrectly instructed the jury as to the
bulk amount. Appellant contends that the trial court needed to instruct the jury as to the
weight of the drug necessary to prove bulk amount. However, the statute sets forth that
the prosecution has the option to prove weight or the maximum daily dose. The trial
court was not required to instruct only as to weight. See Zoltan, where the trial court
found the statute provides two methods to prove bulk amount and the state has "the
option of proving appellant sold the bulk amount by either weight or by reference to the
maximum daily dosage." Id. at ¶ 44.
{¶ 34} Further, appellant argued during oral argument that the trial court erred in
using "unit dose" and not "maximum daily dose" in its instructions. Appellant has
provided no evidence under a plain error analysis that the outcome of the trial would have
been different if the trial court had utilized "maximum daily dose" instead of "unit dose."
{¶ 35} In State v. Whitfield, 9th Dist. No. 11CA010048, 2012-Ohio-5019, the
defendant argued the language in R.C. 2925.01(D)(1)(d) did not permit the prosecution to
convert the "maximum daily dose in the usual dose range" into different doses, or "unit
doses." The Ninth District Court found the trial court did not err in its determination that
the bulk amount of oxycodone is six 80-mg tablets and that five times the bulk is thirty
80-mg tablets.
{¶ 36} In this case, the jury had the ability to determine the bulk amount from the
evidence and the jury instructions. The evidence showed that appellant possessed 310
oxycodone tablets (77 tablets in Ex. 5 and 233 tablets in Ex. 22) and Exhibit K specified
that each tablet constituted one unit dose. The jury instruction provided that the bulk
amount was 30 unit doses. The jury was capable of calculating the maximum daily dose
because 30 unit doses equals the maximum daily dose multiplied by 5 (30 tablets ÷ 5 =
No. 15AP-444 13
6). The jury then was able to determine that 310 tablets was more than 150 tablets (5 x 30
= 150) tablets and less than 1,500 tablets (50 x 30 = 1,500 maximum for a felony of the
second degree). Similarly, appellant possessed 82 hydrocodone bitartrate with
acetaminophen tablets (Ex. 5 contained 52 tablets and Ex. 24 contained 30 tablets). The
instruction provided that the bulk amount is 40 unit doses (40 ÷ 5 = 8 maximum daily
dose). Thus, the jury was able to determine that appellant possessed an amount equal to
or exceeding the bulk amount (40 tablets) but less than five times the bulk amount (40 x 5
= 200).
{¶ 37} Upon review, we conclude that the jury was able to calculate the bulk
amount given the evidence and the jury instructions, although the trial court utilized
different language. Appellant has not demonstrated that the outcome of the trial was
affected and thus, he has not demonstrated plain error. His second assignment of error is
overruled.
IV. Disposition
{¶ 38} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J. and LUPER SCHUSTER, J., concur.
_________________