[Cite as State v. Gonzales,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-13-086

Appellee Trial Court No. 12 CR 412

v.

Rafael Gonzales DECISION AND JUDGMENT

Appellant Decided: February 6, 2015

*****

Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Andrew R. Mayle, Jeremiah S. Ray and Ronald J. Mayle, for appellant.

*****

YARBROUGH, P.J.

I. Introduction

{¶ 1} Appellant, Rafael Gonzales, appeals the judgment of the Wood County

Court of Common Pleas, sentencing him to eleven years in prison following a jury trial in

which he was found guilty of possession of cocaine with a major drug offender

specification. We affirm, in part, and reverse, in part. A. Facts and Procedural Background

{¶ 2} This matter arises from appellant’s purchase of cocaine from a confidential

informant, Saul Ramirez, on July 26, 2012. On the day of the transaction, Ramirez

recorded a telephone conversation with appellant during which appellant agreed to meet

with Ramirez in order to purchase cocaine. Appellant proceeded to meet with Ramirez at

a Meijer parking lot in Wood County, Ohio, so that he could inspect the drugs prior to

making the purchase. During the meeting, appellant tested the quality of the cocaine,

negotiated a price, and scheduled a time for the two to meet in order to complete the

transaction. Appellant and Ramirez agreed to meet at a Super 8 motel located along I-

280 in Wood County.

{¶ 3} Later in the afternoon, appellant arrived at the motel and was instructed to

meet Ramirez in room 105. After arriving and meeting with Ramirez, appellant became

upset because Ramirez would not produce the cocaine until appellant presented the

purchase money. Eventually, appellant displayed $58,000 in cash, an amount sufficient

to purchase two kilograms of cocaine. Thereafter, an undercover officer posing as a truck

driver entered the room with two kilograms of cocaine. The first kilogram, later admitted

at trial as exhibit No. 3, consisted of manufactured cocaine surrounding a baggie

containing genuine cocaine weighing 139 grams. The baggie was separately admitted at

trial as exhibit No. 13. The second kilogram, admitted at trial as exhibit No. 4, contained

a tracking device planted inside the manufactured cocaine. After the money was counted,

appellant took possession of the two kilograms of cocaine and departed.

2. {¶ 4} Appellant was subsequently arrested, after which the drugs were seized by

the arresting officers and tested by the Ohio Bureau of Criminal Investigation (BCI). The

BCI test confirmed that the substance contained inside exhibit No. 13 was indeed

cocaine. However, the BCI analyst that performed the test was unavailable to testify at

trial. Consequently, the test results were not admitted at trial. Nonetheless, the state

retested the substance on November 1, 2013, four days prior to trial. The results of the

test were provided to appellant. However, because appellant was given the test results

only a short time prior to trial, the trial court excluded the second BCI report and both test

results out of concern that their use at trial would violate Crim.R. 16(K).

{¶ 5} On August 1, 2012, appellant was indicted on one count of possession of

cocaine in violation of R.C. 2925.11(A) and (C)(4)(f). The indictment also included a

major drug offender specification pursuant to R.C. 2929.01 based on the allegation that

the amount of cocaine equaled or exceeded 100 grams.

{¶ 6} Appellant subsequently entered a plea of not guilty. Following pretrial

discovery, a jury trial commenced on November 5, 2013. During the trial, the state

solicited testimony from several witnesses, including Ramirez and numerous law

enforcement officers. Appellant’s primary argument at trial centered on the state’s

failure to establish that the substance seized from appellant was cocaine. While the state

was not permitted to utilize the BCI test results to identify the seized substances as

cocaine, several witnesses, including Ramirez, stated that the substance was cocaine

based on their experience with the drug. Specifically, Ramirez conducted a visual and

3. olfactory examination of the substance contained in exhibit No. 13. Based on his

examination, Ramirez testified that the substance was, in fact, cocaine. Later in the trial,

the state called Mark Denomy, the officer who prepared exhibit No. 13. Denomy

indicated that he had participated in hundreds of cocaine operations. He went on to

describe the characteristics of cocaine, noting that it has a distinct smell that makes it

readily identifiable. Ultimately, Denomy stated that exhibit No. 13 contained cocaine.

Moreover, the lead investigator on this case, Mark Apple, stated that exhibit No. 13

contained cocaine. Apple smelled the cocaine, after which he testified: “There is a

definite odor to cocaine and exhibit 13 did have that odor.”

{¶ 7} At the conclusion of the evidence, the jury found appellant guilty of

possession of cocaine. Additionally, the jury found that appellant possessed an amount

of cocaine that equaled or exceeded 100 grams. The trial court immediately proceeded to

sentencing, where it sentenced appellant to 11 years in prison and imposed a $15,000

fine. Appellant’s timely appeal followed.

B. Assignments of Error

{¶ 8} On appeal, appellant asserts the following assignments of error for our

consideration:

I. The trial court erred in permitting law-enforcement officers to

identify the disputed substance as “cocaine” in the absence of any scientific

testing or expert reports prepared by the officers and timely disclosed under

Crim.R. 16(K).

4. II. The trial court erred in letting this case go to the jury when there

was not sufficient, competent evidence identifying the disputed substance

as “cocaine” as defined by R.C. 2925.01(X).

III. The trial court erred in refusing to instruct the jury on the

definition of “cocaine” set forth in R.C. 2925.01(X).

IV. Because there is no evidence in this case as to the weight of

actual cocaine involved, the trial court erred by allowing the jury to

consider the entire weight of the disputed substance in determining whether

Mr. Gonzales possessed more than 100 grams of “cocaine.”

V. The trial court erred in permitting the state to enlarge its bill of

particulars after trial started while simultaneously refusing to give an “other

bad acts” limiting instruction, which together violated Gonzales’s double

jeopardy, grand-jury presentment, and due process rights guaranteed under

the Ohio and United States Constitutions.

II. Analysis

A. Drug Identification Testimony

{¶ 9} In appellant’s first assignment of error, he argues that the trial court erred in

allowing the state’s witnesses to identify the substance contained in exhibit No. 13 as

cocaine without first requiring the state to certify the witnesses as experts and comply

with the mandates of Crim.R. 16(K). Moreover, appellant’s second assignment of error

alleges that the trial court erred in submitting this case to the jury where there was

5. insufficient evidence to establish that exhibit No. 13 contained cocaine under R.C.

2925.01(X). Because these assignments of error are interrelated, we will address them

simultaneously.

{¶ 10} When reviewing a challenge to the sufficiency of the evidence, we must

determine whether the evidence admitted at trial, “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), paragraph

two of the syllabus, citing Jackson v. Virginia,

,

,

(1979); see also State v. Thompkins,

,

(1997).

Therefore, “[t]he verdict will not be disturbed unless the appellate court finds that

reasonable minds could not reach the conclusion reached by the trier-of-fact.” State v.

Dennis,

,

(1997), citing Jenks at paragraph two

of the syllabus.

{¶ 11} In the present case, appellant argues that the state failed to identify the

cocaine through the use of admissible testimony. While he acknowledges that the

cocaine was identified by Ramirez and several police officers, appellant argues that the

identification testimony was given in the form of expert testimony, which should have

been excluded since the state failed to comply with Crim.R. 16(K). Indeed, appellant

contends that the cocaine could only have been identified through the use of expert

6. testimony given the technical nature of the statutory definition of cocaine under R.C.

2925.01(X).

{¶ 12} We begin our analysis of appellant’s first and second assignments of error

by examining whether expert testimony is required to identify a substance as “cocaine,”

as that term is defined in R.C. 2925.01(X). R.C. 2925.01(X) defines cocaine as follows:

{¶ 13} “Cocaine” means any of the following:

(1) A cocaine salt, isomer, or derivative, a salt of a cocaine isomer or

derivative, or the base form of cocaine;

(2) Coca leaves or a salt, compound, derivative, or preparation of

coca leaves, including ecgonine, a salt, isomer, or derivative of ecgonine, or

a salt of an isomer or derivative of ecgonine;

(3) A salt, compound, derivative, or preparation of a substance

identified in division (X)(1) or (2) of this section that is chemically

equivalent to or identical with any of those substances, except that the

substances shall not include decocainized coca leaves or extraction of coca

leaves if the extractions do not contain cocaine or ecgonine.

{¶ 14} Given the technical nature of the definition of cocaine, appellant urges us to

“hold that scientific testimony is required to identify powder cocaine under the

circumstances of this case.” Appellant asserts that this issue has not been addressed by

the Supreme Court of Ohio. Thus, in support of his argument, appellant points to a

7. decision from the Supreme Court of North Carolina entitled State v. Llamas-Hernandez,

,

(2009).

{¶ 15} In Llamas-Hernandez, the defendant was convicted of trafficking in

cocaine by possession of 28 grams or more. Llamas-Hernandez’s conviction arose from

a meeting with a confidential informant, at which he offered to sell the informant one

kilogram of cocaine. Immediately after the offer was made, the informant left the

meeting and contacted the police. State v. Llamas-Hernandez,

,

(2008). Soon thereafter, police officers arrived on the scene and executed

a search warrant, ultimately discovering one kilogram of white powder. Consequently,

the white powder was tested and determined to be cocaine. Llamas-Hernandez was

charged, in a separate case, with trafficking in cocaine. As a result of the chemical

analysis test, Llamas-Hernandez pleaded guilty.

.

{¶ 16} Following the discovery of the kilogram of cocaine, officers conducted a

second search at Llamas-Hernandez’s apartment with the consent of a cotenant. During

their search of the apartment, officers opened the door to a linen closet, where they

discovered a white powdery substance weighing 55 grams. This substance was tested

and found to contain cocaine, but the report was not admitted at trial. Nonetheless,

Llamas-Hernandez was charged with trafficking in cocaine relating to the 55 grams of

cocaine, and a trial ensued.

{¶ 17} At trial, the state utilized the testimony of its investigating officers to

identify the white powdery substance that was found in Llamas-Hernandez’s apartment.

8. Upon questioning, the officers identified the substance as cocaine. The officers based

their conclusions with respect to the identity of the substance on visual inspections.

Llamas-Hernandez objected to the use of such testimony, arguing that it was improper for

a lay witness to identify cocaine given the technical description of cocaine under

N.C.G.S. § 90-90(1)(d).1 The trial court overruled the objection, and the state was

permitted to proceed. Llamas-Hernandez was subsequently found guilty of trafficking in

cocaine.

{¶ 18} Llamas-Hernandez timely appealed his conviction, arguing that the trial

court erred in allowing the state to identify the disputed substance as cocaine through the

use of lay witness officer testimony. A divided panel of the Court of Appeals of North

Carolina affirmed the conviction. In their decision, the majority relied upon its prior

decision in State v. Freeman,

,

(2007), which held that

lay opinion testimony from a police officer was admissible to identify pills found on a

defendant as crack cocaine. State v. Llamas-Hernandez,

,

.

1 N.C.G.S. § 90-90(1)(d) describes cocaine as follows:

Cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof, or coca leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation of coca leaves, or any salt, isomer, salts of isomers, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocanized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.

9. {¶ 19} Notwithstanding the court’s decision in Freeman, the dissent concluded

that police officers should not be allowed to “express a lay opinion as to the chemical

composition of a white powder.” Id. at 650 (Steelman, J., dissenting). The dissent,

noting the “technical, scientific definition of cocaine,” stated that “the General Assembly

intended that expert testimony be required to establish that a substance is in fact a

controlled substance.” Id. at 652. As to the applicability of Freeman, the dissent found

that the cases were not analogous based, in part, on the chemical differences between

crack cocaine (which was at issue in Freeman) and powdered cocaine. Moreover, the

dissent noted that a laboratory report was admitted in Freeman that conclusively

established the identity of the crack cocaine. No such report was admitted to establish the

identity of the powdered cocaine. Thus, the dissent found that lay witness testimony

could not establish the identity of the substance, especially since it lacked any

“distinguishing characteristics” upon which to conclude, based only on a visual

inspection, that the substance was cocaine. Id. at 654 (Steelman, J., dissenting).

{¶ 20} Llamas-Hernandez subsequently appealed the decision of the court of

appeals to the North Carolina Supreme Court. In a one-sentence decision, the court

stated: “For the reasons stated in the dissenting opinion, the decision of the Court of

Appeals is reversed.” Llamas-Hernandez,

,

.

{¶ 21} Having examined the facts of Llamas-Hernandez, we find that the case is

analogous to the facts in the case sub judice. Nevertheless, we disagree with appellant’s

assertion that the Supreme Court of Ohio has not spoken on the issue of whether a lay

10. witness may identify a controlled substance. Indeed, in State v. McKee,

,

(2001), syllabus, the court stated: “The experience and knowledge

of a drug user lay witness can establish his or her competence to express an opinion on

the identity of a controlled substance if a foundation for this testimony is first

established.” The court went on to state that the identification of a controlled substance

by a lay witness is not “based on specialized knowledge within the scope of Evid.R. 702,

but rather * * * upon a layperson’s personal knowledge and experience.” Id. at 297.

Citing Evid.R. 701, the court indicated that, “[a]lthough these cases are of a technical

nature in that they allow lay opinion testimony on a subject outside the realm of common

knowledge, they still fall within the ambit of the rule’s requirement that a lay witness’s

opinion be rationally based on firsthand observations and helpful in determining a fact in

issue.” 2 Id.

{¶ 22} “A court of appeals is bound by and must follow decisions of the Ohio

Supreme Court, which are regarded as law unless and until reversed or overruled.” State

v. White,

,

, ¶ 201 (6th Dist.), citing Schlachet v. Cleveland

Clinic,

,

(8th Dist. 1995). In light of the clear

instruction from the Supreme Court of Ohio allowing lay witness identification of

controlled substances, we decline to adopt appellant’s view, first espoused by the North

2 Evid.R. 701 states: “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”

11. Carolina Supreme Court in Llamas-Hernandez, that expert testimony was required to

identify the cocaine in this case.

{¶ 23} For drug identification testimony to be admissible under McKee, the state

need only establish the competence of the proposed lay witness. Competence is

established in this context by “providing the court with a foundation that demonstrates

that the lay witness has a sufficient amount of experience and knowledge either from

having dealt with or having used the same type of controlled substance in the past that he

or she is now being asked to identify.” State v. Maag, 3d Dist. Hancock No. 5-03-32,

, citing McKee at 297.

{¶ 24} Here, the state laid a sufficient foundation prior to soliciting drug

identification testimony from Ramirez and the officers involved in the controlled buy.

Specifically, Ramirez testified that he gained a familiarity with cocaine while trafficking

the substance for a 15-year period prior to becoming a confidential informant. When

asked whether exhibit No. 13 contained cocaine, Ramirez inspected the substance, using

both sight and smell, and identified it as cocaine.

{¶ 25} In addition to Ramirez’s identification testimony, the state questioned

several officers regarding whether the substance identified as exhibit No. 13 was in fact

cocaine. First, the state called Denomy, who stated that he had extensive experience with

cocaine, having participated in hundreds of cocaine operations. When asked to describe

the appearance of cocaine, Denomy stated:

12. Cocaine is a white powder, usually it has a flake to it. Usually you

can tell the better cocaine by the color like a fish scale almost. Usually the

fake looking cocaine doesn’t have that to it. It’s easier for me to identify it

by the smell than the look. There’s a certain chemical odor to it that once

you smell cocaine it’s a consistent you never really forget.

{¶ 26} The state then presented Denomy with exhibit No. 13, which Denomy

identified as cocaine.

{¶ 27} Following Denomy’s testimony, the state called Mark Ellinwood, who has

been employed as a special agent with BCI for 17 years. Ellinwood was the officer who

prepared exhibit No. 13 for sale to appellant. Prior to identifying exhibit No. 13 as

cocaine, Ellinwood explained that he had “years of experience, approximately 24 years

experience handling a canine that also involves handling drugs on a weekly or daily basis

for training, whether it’s cocaine, crack cocaine, heroin, the various drugs. I’m very

familiar with what cocaine looks like.”

{¶ 28} Later in the trial, the state called Kip Lewton, who was involved in this

case while working as an agent for the DEA. Lewton explained that he was familiar with

cocaine as a result of his history in law enforcement spanning several decades. During

that time, Lewton was involved in the undercover purchase of drugs. When asked what

types of drugs he would generally purchase, he answered: “Predominantly cocaine,

marijuana, little bit of heroin, those are the three primary drugs.” He went on to describe

cocaine, stating:

13. Cocaine is a powder substance, usually when it’s pressed into a kilo

it will have a chunky consistency, either solid brick if it’s still in the deal or

if it’s broken off a lot of times they’ll adulterate it with cuts depending on

then what level that you purchase. And it will have a scaly kind of look to

it at times. A certain kind of smell to it kind of like an acetone chemical

smell.

It’s one of those things once you smell it, it permeated like a skunk;

if you drive down the road and smell a skunk you don’t see it but you

always remember that smell.

{¶ 29} Upon being presented with exhibit No. 13, Lewton identified the substance

as “cocaine that was pressed into a brick form. At this point it is kind of breaking apart.

It has that smell that I described and chemical smell that I’m familiar with.”

{¶ 30} Finally, as its last witness, the state called Apple, who also indicated that

exhibit No. 13 contained cocaine. Apple is a special agent with BCI, a position he has

held since 1996. While at BCI, Apple has purchased cocaine during undercover

operations. While testifying, Apple described cocaine in great detail, stating: “You can

tell by looking at, like cocaine for example, the quality of the cocaine based on its

texture, based on its coloration, based on the fish scale, people have talked to you about

already a shininess that occurs on the cocaine.” On cross-examination, Apple was asked

why he smelled exhibit No. 13 prior to identifying it, to which he responded: “There is a

definite odor to cocaine and exhibit 13 did have that odor.”

14. {¶ 31} Based upon the foregoing, we find that the witnesses used by the state to

identify exhibit No. 13 as cocaine possessed a sufficient amount of experience and

knowledge to do so. Indeed, the witnesses each possessed decades of experience either

as a trafficker of cocaine or as law enforcement officers.

{¶ 32} Having found the state’s drug identification testimony to be admissible in

this case, we conclude that a rational trier of fact could have found that the substance

contained in exhibit No. 13 was cocaine. Accordingly, appellant’s first and second

assignments of error are not well-taken.

B. Jury Instructions

{¶ 33} In his third assignment of error, appellant argues that the trial court erred in

refusing to instruct the jury on the definition of “cocaine” set forth in R.C. 2925.01(X).

{¶ 34} Generally, requested jury instructions should be given if they are a correct

statement of law as applied to the facts of the case. Murphy v. Carrollton Mfg. Co.,

,

(1991). “[A] court’s instructions to the jury should be

addressed to the actual issues in the case as posited by the evidence and the pleadings.”

State v. Guster,

,

(1981). Prejudicial error is

found in a criminal case where a court refuses to give an instruction that is pertinent to

the case, states the law correctly, and is not covered by the general charge. State v.

Sneed,

,

(1992). A determination as to jury

instructions is a matter left to the sound discretion of the trial court.

Thus, we review

a trial court’s decision regarding jury instructions for an abuse of discretion. State v.

15. Lillo, 6th Dist. Huron No. H-10-001,

, ¶ 15. Abuse of discretion

connotes that the trial court’s decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore,

,

(1983).

{¶ 35} In the case sub judice, appellant requested that the trial court provide an

instruction on the statutory definition of cocaine set forth in R.C. 2925.01(X). In

supporting his request, appellant focused on the lack of evidence presented at trial as to

the weight of actual cocaine contained in exhibit No. 13. He reasoned that the technical

definition of cocaine contained in R.C. 2925.01(X) limited his liability to the weight of

the cocaine, apart from the weight of any other substances that were mixed with the

cocaine. The trial court considered appellant’s argument, but determined that the

requested instruction was unnecessary in light of the following instruction regarding the

amount of the cocaine involved in this case: “Amount. If your verdict is guilty, you will

separately decide beyond a reasonable doubt if the amount of cocaine involved at the

time of the offense equaled or exceeded 100 grams. If your verdict is not guilty, you will

not decide this issue.”

{¶ 36} Having reviewed the instructions that were provided to the jury in this case,

we find that the requested instruction would have been superfluous. Importantly,

appellant’s argument in support of the requested instruction centered on the state’s lack

of evidence as to the amount of cocaine contained in exhibit No. 13. The fact that exhibit

No. 13 contained cocaine was clearly established by several of the state’s witnesses.

What remained at issue was how much cocaine appellant possessed and whether the

16. entire weight of the substance should be included in determining whether the amount

equaled or exceeded 100 grams. R.C. 2925.01(X) does not speak to this issue. Rather,

the relevant statute is R.C. 2925.11(C)(4), the substance of which was already covered in

the general charge to the jury. Because the jury instructions adequately informed the jury

on the relevant issues in this case, we conclude that the trial court did not abuse its

discretion in refusing to provide the requested instruction.

{¶ 37} Accordingly, appellant’s third assignment of error is not well-taken.

C. Penalty Enhancement Under R.C. 2925.11(C)(4)(f)

{¶ 38} In appellant’s fourth assignment of error, he argues that the trial court erred

by allowing the jury to consider the entire weight of exhibit No. 13 in determining

whether he possessed 100 or more grams of cocaine.

{¶ 39} The statutory provision relevant to our disposition of appellant’s fourth

assignment of error is R.C. 2925.11, which states, in relevant part:

(A) No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

***

(C) Whoever violates division (A) of this section is guilty of one of

the following:

***

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

17. division (A) of this section is guilty of possession of cocaine. The penalty

for the offense shall be determined as follows:

***

(f) If the amount of the drug involved equals or exceeds one hundred

grams of cocaine, possession of cocaine is a felony of the first degree, the

offender is a major drug offender, and the court shall impose as a

mandatory prison term the maximum prison term prescribed for a felony of

the first degree.

{¶ 40} Referring to R.C. 2925.11(C)(4)(f), appellant asserts that only the weight of

the actual cocaine contained in exhibit No. 13 should have been considered. We agree.

{¶ 41} At the outset, we note that the plain language of R.C. 2925.11(C)(4)

supports appellant’s argument. The primary purpose of statutory construction is to give

effect to the intention of the General Assembly. Henry v. Cent. Natl. Bank,

,

(1968), paragraph two of the syllabus. A court must first look to

the language itself to determine the legislative intent. Provident Bank v. Wood,

,

(1973). “If that inquiry reveals that the statute conveys a

meaning which is clear, unequivocal and definite, at that point the interpretative effort is

at an end, and the statute must be applied accordingly.”

, citing Sears v.

Weimer,

,

(1944).

{¶ 42} Here, R.C. 2925.11(C)(4)(f) increases the level of the offense for

possession of cocaine when the amount possessed “equals or exceeds one hundred grams

18. of cocaine.” (Emphasis added.) The emphasized language clearly modifies the weight in

the statute. This becomes even more obvious upon an examination of the manner in

which other drugs are treated under R.C. 2925.11. Concerning marihuana, R.C. 2925.11

increases the level of the offense “[i]f the amount of the drug involved equals or exceeds

one hundred grams but is less than two hundred grams.” Importantly, the statute does not

state 100 or 200 grams of marihuana. Further, heroin offenses are amplified under R.C.

2925.11 “[i]f the amount of the drug involved equals or exceeds ten unit doses but is less

than fifty unit doses or equals or exceeds one gram but is less than five grams.” Once

again, the statute does not indicate one gram of heroin.

{¶ 43} Having found that the relevant inquiry in determining the level of the

offense under R.C. 2925.11(C)(4)(a) through (f) centers on a determination of the amount

of actual “cocaine” contained in the mixture, we now turn to the definition of “cocaine”

in R.C. 2925.01(X) and 3719.41. Notably, the definition of cocaine differs from that of

many other drugs. Most drugs are defined broadly such that a mixture containing the

particular drug falls within the definition. For example, “marihuana” is defined as “Any

material, compound, mixture, or preparation that contains any quantity of [marihuana].”

R.C. 3719.41 (Schedule I(C)(19)). Likewise, R.C. 3719.41 defines lysergic acid

diethylamide (LSD) as “Any material, compound, mixture, or preparation that contains

any quantity of [LSD].” R.C. 3719.41 (Schedule I(C)(18)). Similarly, the definition of

hashish includes “Any material, compound, mixture, or preparation that contains any

quantity of [hashish].” R.C. 3719.41 (Schedule I(C)(32)).

19. {¶ 44} Unlike the broad definitions used for marihuana, LSD, and hashish, cocaine

is defined under R.C. 3719.41 (Schedule II(A)(4)) as

Coca leaves and any salt, compound, derivative, or preparation of

coca leaves (including cocaine and ecgonine, their salts, isomers, and

derivatives, and salts of those isomers and derivatives), and any salt,

compound, derivative, or preparation thereof that is chemically equivalent

to or identical with any of these substances * * *.

{¶ 45} Cocaine is similarly defined in R.C. 2925.01(X). In both statutes,

“cocaine” does not include the entire “mixture” as is the case with marihuana, LSD, and

hashish. We must presume that the legislature’s failure to include such language in the

definition of cocaine was intentional. See State v. Straley,

, 2014-

Ohio-2139,

, quoting Columbus-Suburban Coach Lines v. Public

Utilities Comm.,

,

(1969) (“‘[I]t is the duty of this

court to give effect to the words used, not to delete words used or to insert words not

used.’”). Consequently, we conclude that a defendant may be held liable for cocaine

offenses under R.C. 2925.11 for only that portion of the disputed substance that is

chemically identified as cocaine.

{¶ 46} Here, the state offered no evidence as to the purity of the cocaine. While

there was testimony concerning the weight of exhibit No. 13, the record contains no

evidence that would allow a factfinder to determine the weight of actual cocaine

contained therein. Nevertheless the state cites several Ohio cases that stand for the

20. proposition that the purity of cocaine is immaterial, and that the entire mixture may be

weighed for purposes of the penalty enhancement. State v. Brown,

,

(3d Dist. 1995); State v. Neal, 3d Dist. Hancock No. 5-89-6,

(June 29, 1990); State v. Fuller, 1st Dist. Hamilton No. C-960753,

(Sept. 26, 1997); State v. Remy, 4th Dist. Ross No. 03CA2731,

;

State v. Chandler,

,

,

(5th Dist.);

State v. Morris, 8th Dist. Cuyahoga No. 67401,

(Sept. 28, 1995); State

v. Brooks, 8th Dist. Cuyahoga No. 50384,

(Feb. 27, 1986). Notably, the

above cases rely upon a prior version of R.C. 2925.01 that defined the bulk amount of a

controlled substance as “[a]n amount equal to or exceeding ten grams * * * of a

compound, mixture, preparation, or substance that is or contains any amount of * * *

cocaine.” R.C. 2925.01 was subsequently amended in 1995 and the foregoing provision

was removed. See Am.S.B. No. 2, 1995 Ohio Laws File 50. Consequently, we conclude

that the cases cited by the state are inapposite.

{¶ 47} In light of the foregoing, we hold that the state, in prosecuting cocaine

offenses under R.C. 2925.11(C)(4)(a) through (f), must prove that the weight of the

actual cocaine possessed by the defendant met the statutory threshold. Contra State v.

Smith, 2d Dist. Greene No. 2010-CA-36,

(“[T]he State was not

required to prove that Smith possessed or trafficked pure cocaine equal to or exceeding

the statutory amount. Rather, as we have explained, it was enough that the substance

* * *, as a whole, satisfied the weight requirement.”). Because the state failed to

21. introduce evidence as to the purity or weight of the cocaine in this case, we find that

appellant’s penalty enhancement under R.C. 2925.11(C)(4)(f) must be reversed and

vacated.

{¶ 48} Accordingly, appellant’s fourth assignment of error is well-taken.

D. Amendment of Bill of Particulars

{¶ 49} In his fifth and final assignment of error, appellant argues that the trial

court erred in allowing the state to amend its bill of particulars without also providing a

limiting instruction to the jury on “other bad acts.”

{¶ 50} Amendment of the state’s bill of particulars is governed by Crim.R. 7 and

R.C. 2941.30. Crim.R. 7 states, in relevant part:

(D) Amendment of indictment, information, or complaint

The court may at any time before, during, or after a trial amend the

indictment, information, complaint, or bill of particulars, in respect to any

defect, imperfection, or omission in form or substance, or of any variance

with the evidence, provided no change is made in the name or identity of

the crime charged. * * *

(E) Bill of particulars

When the defendant makes a written request within twenty-one days

after arraignment but not later than seven days before trial, or upon court

order, the prosecuting attorney shall furnish the defendant with a bill of

particulars setting up specifically the nature of the offense charge[d] and of

22. the conduct of the defendant alleged to constitute the offense. A bill of

particulars may be amended at any time subject to such conditions as

justice requires.

{¶ 51} The purpose of a bill of particulars is “to elucidate or particularize the

conduct of the accused alleged to constitute the charged offense.” State v. Sellards,

,

(1985). Additionally, the Supreme Court of Ohio

has held that “[t]he purpose of the bill of particulars is to inform an accused of the exact

nature of the charges against him so that he can prepare his defense thereto.” State v.

Fowler,

, 364,

(1963).

{¶ 52} Crim.R. 7 vests the trial court with discretion when considering the state’s

motion to amend its bill of particulars. Thus, we review the trial court’s decision for an

abuse of discretion. State v. Brumback,

,

(9th

Dist. 1996), citing State v. Mundy,

,

(2d

Dist. 1994). “[F]or the amendment to constitute reversible error, the defendant must

demonstrate that the amendment hampered [his] defense or otherwise prejudiced [him].”

Id.; see also R.C. 2941.30 (indicating that “no appeal based upon such action of the court

shall be sustained, nor reversal had, unless from consideration of the whole proceedings,

the reviewing court finds that the accused was prejudiced in his defense or that a failure

of justice resulted”).

{¶ 53} In the case sub judice, the trial court granted the state’s motion to amend its

bill of particulars on the last day of trial, to include appellant’s initial meeting with

23. Ramirez at the Meijer parking lot located in Wood County. Under Crim.R. 7, the state

was permitted to amend its bill of particulars at any time provided the amendment did not

change the name or identity of the crime charged. Appellant argues that the amendment

changed the identity of the crime charged by incorporating the Meijer meeting and

thereby making it impossible to determine whether the jury convicted him for possession

of cocaine as a result of the meeting at Meijer or the meeting at the Super 8 motel later

that day. The state, for its part, contends that the amendment did not change the identity

of the crime charged because the meeting at Meijer was part of the same course of

criminal conduct for which appellant was initially indicted.

{¶ 54} Our examination of the facts in this case reveals that the meeting at Meijer

was a necessary predicate to the meeting at Super 8. Relevant to our resolution of this

issue, Apple stated the following concerning the purpose of the meeting at Meijer: “We

wanted to show [appellant] an actual kilogram of cocaine so he could take a look at it, so

[he] could take a look at it, and open it if he wanted to so he would have a good idea of

what he was looking at.” When asked whether the meeting at Meijer was part of the

broader transaction, Apple indicated that it was, noting that the meeting was scheduled so

that appellant “could see what the quality of the cocaine was, so he could take his

knowledge of what it was to the people that he was introducing or that were bringing the

money in, so that he would know the quality of the cocaine.” Apple’s testimony

establishes that the meeting at Meijer was arranged in order to allow appellant to sample

the cocaine to determine its purity, arrive at acceptable terms with regard to price and

24. quantity, and establish a place and time to meet to complete the transaction. Following

the meeting at Meijer, appellant traveled to Toledo, acquired the cash needed to purchase

the cocaine, and proceeded to meet Ramirez at Super 8 where he actually purchased the

cocaine and took possession of it.

{¶ 55} In light of the foregoing, we agree with the state that the meeting at Meijer

was part of a broader course of criminal conduct that culminated in appellant’s purchase

of cocaine from Ramirez at the Super 8 motel. As a result, we find that the state’s

amendment of the bill of particulars to include the meeting at Meijer did not change the

identity of the crime charged.

{¶ 56} Having found that the amendment to the state’s bill of particulars did not

change the identity of the crime with which appellant was charged, we conclude that the

trial court did not abuse its discretion in granting the state’s motion to amend its bill of

particulars. Accordingly, appellant’s fifth assignment of error is not well-taken.

III. Conclusion

{¶ 57} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas is affirmed, in part, and reversed, in part. Appellant’s penalty

enhancement under R.C. 2925.11(C)(4)(f) is hereby reversed and vacated, and this matter

is remanded to the trial court for resentencing consistent with this decision. Appellant

and appellee are each ordered to pay one-half of the costs of this appeal pursuant to

App.R. 24.

25. {¶ 58} We recognize that our decision in this case is in conflict with the decision

of the Second District Court of Appeals in State v. Smith, 2d Dist. Greene No. 2010-CA-

36,

. Therefore, pursuant to Ohio Constitution, Article IV, Section

3(B)(4), we sua sponte certify a conflict to the Supreme Court of Ohio for review and

final determination of the following question: Must the state, in prosecuting cocaine

offenses involving mixed substances under R.C. 2925.11(C)(4)(a) through (f), prove that

the weight of the cocaine meets the statutory threshold, excluding the weight of any filler

materials used in the mixture? The parties are directed to S.Ct.Prac.R. 7.01 and 7.08 for

further proceedings.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

26.