State v. Schwab

[Cite as State v. Schwab, 2014-Ohio-336.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, : Case No. 12CA39
:
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT ENTRY
: GRANTING APPLICATION FOR
TERRY SCHWAB, : RECONSIDERATION
:
Defendant-Appellant. : RELEASED: 01/21/14
______________________________________________________________________
APPEARANCES:
David J. Winkelmann, Athens, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders,
Athens County Assistant Prosecuting Attorney, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} The state of Ohio, seeks reconsideration of our decision in State v.
Schwab, 4th Dist. Athens No. 12CA39, 2013-Ohio-4349, which sustained appellant
Terry Schwab's first assignment of error and reversed his conviction for corrupting
another with drugs.
{¶2} Because the state’s unopposed motion calls to our attention an error in
our holding that was not fully considered when it should have been, we grant the
motion. In our decision we held that there was insufficient evidence to support
Schwab’s conviction for corrupting Tara Crego, the minor daughter of his fiancée,
because the state failed to introduce evidence that he furnished or administered
Oxycodone to Crego during the March 9 incident.
Athens App. No. 12CA39 2
{¶3} However, the trial court instructed the jury that for purposes of the R.C.
2925.02(A)(4) charge, “furnished” means “provided, supplied, or gave access to.” In his
appellate brief, Schwab conceded that the trial testimony established that he “kept his
medications in a kitchen cabinet, to which anyone in the home had access.” Based on
this testimony, there was sufficient evidence to support Schwab’s conviction for R.C.
2925.02(A)(4), and that conviction was not against the manifest weight of the evidence.
Therefore, we vacate that portion of our decision partially sustaining Schwab’s first
assignment and finding the second assignment of error moot. We now overrule
Schwab’s first and second assignments of error, and affirm his convictions and
sentence in their entirety.
I. FACTS
{¶4} A jury convicted Schwab of multiple offenses stemming from two separate
incidents. For the March 9, 2011 incident, the jury found him guilty of complicity to
aggravated trafficking in drugs (Oxycodone) in the vicinity of a juvenile, (2) corrupting
another with drugs (Oxycodone), and (3) complicity to trafficking in drugs (Alprazolam)
in the vicinity of a juvenile. For the April 1, 2011 incident, the jury found him guilty of (1)
corrupting another with drugs (Oxycodone), and (2) complicity to aggravated
possession of drugs (Oxycodone) in an amount equal to or in excess of five times the
bulk amount but less than 50 times the bulk amount.
{¶5} After sentencing Schwab appealed, claiming in his first assignment of
error that insufficient evidence exists to support his convictions and claiming in his
second assignment of error that his convictions are against the manifest weight of the
evidence. We sustained that portion of Schwab’s first assignment of error concerning
Athens App. No. 12CA39 3
his conviction for corrupting Crego with drugs for the March 9 incident, reversed the
conviction, ruled that his second assignment of error was moot regarding this
conviction, and remanded the cause for the trial court to discharge him on that charge.
Schwab, 2013-Ohio-4349, at ¶ 35, 43. For the remainder of Schwab’s convictions, we
overruled his assignments of error and affirmed his convictions. Id.{¶6} The state filed an application for reconsideration under App.R. 26(A).
Schwab did not oppose the application.
II. ASSIGNMENT OF ERROR
{¶7} The state assigns the following error for our review:
Assignment of Error I: This Court erred when it found that there was no
evidence that Appellant furnished or administered Oxycodone to Crego
during the March 9 controlled drug purchase.
III. STANDARD OF REVIEW
{¶8} The test generally applied upon the filing of a motion for reconsideration in
the court of appeals is whether the motion calls to the attention of the court an obvious
error in its decision or raises an issue for consideration that was either not considered at
all or was not fully considered by the court when it should have been. State v. Gregory,
4th Dist. Pickaway No. 97CA33, 2998 WL 914242; State v. Wheeler, 4th Dist.
Washington No. 04CA1, 2005-Ohio-479, ¶ 7.
IV. LAW AND ANALYSIS
{¶9} The state argues in its unopposed motion for reconsideration that we
erred in finding that there was no evidence that Schwab furnished or administered
Oxycodone to Crego for the March 9 incident. In partially sustaining Schwab’s first
assignment of error for this incident, we relied on the Black’s Law Dictionary definition of
Athens App. No. 12CA39 4
“furnish” to find that there was insufficient evidence to support Schwab’s conviction for
corrupting another with drugs:
Black’s Law Dictionary 466 (Abridged 6th Ed.1991) defines
“furnish” to mean “[t]o supply, provide, or equip, for accomplishment of a
particular purpose.” For the March 9 incident, we conclude there is no
evidence Schwab supplied, provided, or equipped Crego with Oxycodone
for any purpose. All of the evidence indicates Crego handled the Xanax
and Fidell handled the Oxycodone during the transaction with Vore.
Because no evidence exists that Schwab furnished or administered
Oxycodone to Crego during the March 9 incident, we find there is
insufficient evidence to support that conviction for corrupting another with
drugs and reverse it.
Schwab at ¶ 34.
{¶10} Nevertheless, as the state now brings to our attention on reconsideration,
through counsel Schwab stipulated to the trial court’s jury instructions, which defined
“furnished” with the language used in Ohio Jury Instructions at CR Section 525.02(9), as
meaning “provided, supplied, or gave access to.” And in his appellate brief, Schwab
conceded that Crego’s trial testimony established that he “kept his medications in a
kitchen cabinet, to which anyone in the home had access.” (Emphasis added.) See
also State v. Hardison, 9th Dist. Summit No. 23050, 2007-Ohio-366, ¶ 28-31 (conviction
for corrupting another with drugs under R.C. 2925.04(A)(4) not against the manifest
weight of the evidence because testimony supported finding that defendant gave
access to drugs to minor by hiding them in the minor’s dresser drawer).
{¶11} Under these unique circumstances—(1) Schwab’s waiver of any error in
the trial court’s jury instructions on this point, see State v. Alexander, 4th Dist. Adams
No. 12CA945, 2013-Ohio-1913, ¶ 27 (failure to object to jury instructions at trial waives
all but plain error on appeal), (2) his failure to claim plain error regarding this issue on
appeal, (3) his admission that Schwab, in effect, furnished the Oxycodone to Crego on
Athens App. No. 12CA39 5
March 9 by giving her access it, (4) the state’s raising of an issue on reconsideration
that we did not fully consider when we issued our prior decision, and (5) Schwab’s
failure to oppose the state’s application for reconsideration—the state has established
that we erred in concluding that no evidence existed to support his conviction for
corrupting Crego with Oxycodone for the March 9 incident.
{¶12} By not objecting to the jury instructions on this point or raising the specific
issue of impropriety of the instructions on appeal and admitting that Schwab gave Crego
access to the Oxycodone on March 9, Schwab essentially conceded that there was
sufficient evidence to support his conviction. As noted in our opinion, “Schwab does not
dispute the fact that he knew Crego was a juvenile when the March 9 incident occurred”
and he “also does not dispute the fact that she was at least two years his junior.”
Schwab at ¶ 31.
{¶13} And after reviewing the entire record we cannot say that the jury either lost
its way or created a manifest miscarriage of justice when it found him guilty of corrupting
Crego with drugs in the March 9 incident. That is, the conviction for corrupting another
with drugs was not against the manifest weight of the evidence. By so holding, we
leave open the issue not raised here of whether the trial court’s instructions were
appropriate. The mere fact that these instructions followed the one set forth in Ohio
Jury Instructions did not insulate it from potential error. See State v. Burchfield, 66 Ohio
St.3d 261, 263, 611 N.E.2d 819 (1993) (“While [Ohio Jury Instructions] is widely used in
this state, its language should not be blindly applied in all cases”).
V. CONCLUSION
Athens App. No. 12CA39 6
{¶14} Therefore, we grant the state of Ohio’s application for reconsideration and
vacate the portion of our decision partially sustaining his first assignment of error
regarding his conviction for corrupting another with drugs for the March 9 incident.
Accordingly, we vacate our order of remand. We also vacate our holding that his
second assignment of error is moot concerning the charge. Upon reconsideration, we
overrule Schwab’s first and second assignments of error in their entirety and affirm his
convictions and sentence.
APPLICATION GRANTED AND
JUDGMENT AFFIRMED.
Athens App. No. 12CA39 7
JUDGMENT ENTRY
It is ordered that the APPLICATION FOR RECONSIDERATION IS GRANTED,
JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur.
For the Court
BY: ________________________
William H. Harsha, 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.