[Cite as State v. Jackson,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 15CA010828

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DARREL JACKSON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 14CR090543

DECISION AND JOURNAL ENTRY

Dated: November 7, 2016

SCHAFER, Judge.

{¶1} Defendant-Appellant, Darrell Jackson, appeals the judgment of the Lorain County

Court of Common Pleas. This Court affirms.

I.

{¶2} Following an investigation into drug trafficking, the Lorain Police Department

executed a search warrant at Jackson’s home. During the search, officers discovered a firearm,

multiple cell phones, United States currency, a scale, a hydraulic press, Pyrex jars with residue, a

grinder with residue, crack cocaine, and a large amount of white powder in different baggies,

some of which field tested positive for cocaine. Consequently, Jackson was indicted by the

Lorain County Grand Jury and charged with several counts of trafficking and possession of

cocaine with specifications, tampering with evidence, having weapons while under disability,

possession of criminal of tools, and drug paraphernalia. At arraignment, Jackson pleaded not

guilty to the charges. 2

{¶3} The Lorain Police Department then submitted the white powder to a forensic

analyst to test for licit and illicit substances. The forensic analyst testified that her analysis found

three different specimens that tested positive for Benzocaine and caffeine, but no controlled

substances, one specimen weighing .38 grams that tested positive for cocaine and Levamisole,

and one specimen weighing 38.2 grams that tested positive for cocaine and Levamisole. Her

analysis also found that out of five baggies with a total combined weight of 137.89 grams, four

tested positive for cocaine and Levamisole. The fifth baggie was not tested due to the lab’s

policy of using hypergeometric distribution, which calls for the lab to test a statistical amount to

give them a ninety-five percent confidence that all of the samples will have the same contents.

{¶4} Subsequently, Jackson pleaded guilty to several counts in the indictment, waived

his right to a jury trial, and proceeded to a bench trial on counts three and four of the indictment.

Count Three charged Jackson with trafficking in cocaine in violation of R.C. 2925.03(A)(2), a

felony of the first degree. The offense carried a major drug offender specification and a

forfeiture of property specification ($2,978.00 in cash). Count Four charged Jackson with

possession of cocaine in violation of R.C. 2925.11(A), a felony of the first degree. The offense

carried a major drug offender specification. At the conclusion of the State’s case-in-chief,

Jackson raised a Crim.R. 29 motion for judgment of acquittal, arguing that R.C. 2925.03(C)(4)

and R.C. 2925.11(C)(4) required the State to prove the weight of the pure cocaine involved in

order to convict him of anything above a fifth degree felony. The trial court summarily denied

the motion. The defense then rested and renewed its Crim.R. 29 motion. The trial court

subsequently found Jackson guilty of both counts and sentenced him on all counts in the

indictment to an aggregate term of eleven years in prison. 3

{¶5} Jackson filed this timely appeal, raising two assignments of error for our review.

As both assignments of error implicate similar issues, we elect to address them together.

II.

ASSIGMENT OF ERROR I

MR. JACKSON’S CONVICTIONS OF FIRST DEGREE FELONY VIOLATIONS OF TITLE 29, WITH SPECIFICIATIONS, WERE BASED ON INSUFFICIENT EVIDENCE OF AN AMOUNT OF COCAINE IN EXCESS OF 100 GRAMS.

ASSIGMENT OF ERROR II

JACKSON’S CONVICTION OF FIRST DEGREE FELONY TRAFFICKING AND POSSESSION, ALONG WITH MAJOR DRUG OFFENDER SPECIFICATIONS, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶6} In his first assignment of error, Jackson contends the evidence presented by the

State was insufficient to convict him of any level of offense above a fifth-degree felony since the

State failed to present any evidence pertaining to the quantity of cocaine beyond its mere

presence. Although Jackson’s second assignment of error argues that his convictions were

against the manifest weight of the evidence, in the body of his brief he argues the State did not

present any evidence of the amount of pure cocaine involved in each violation, so we will review

this argument as a sufficiency of the evidence claim. We disagree on both points.

{¶7} This matter involves Jackson’s convictions and sentences for trafficking in

cocaine, in violation of R.C.2925.03(A)(2), (C)(4), and for possession of cocaine, in violation of

R.C. 2925.11(A), (C)(4). Generally, trafficking in cocaine and possession of cocaine are felonies

of the fifth degree. R.C. 2925.03(C)(4)(a); R.C. 2925.11(C)(4)(a). However, as the weight of

the drug involved increases, the degree of the felony is enhanced accordingly. See R.C. 4

2925.03(C)(4)(a)-(g); R.C. 2925.11(C)(4)(a)-(g). The basis of Jackson’s argument is that the

trial court improperly determined the level of his offense for sentencing purposes. R.C.

2925.03(A) prohibits individuals from selling or offering to sell a controlled substance. R.C.

2925.03(C)(4) states in pertinent part:

If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows:

(a) Except as otherwise provided * * * trafficking in cocaine is a felony of the fifth degree.

***

(g) If the amount of the drug involved equals or exceeds one hundred grams of cocaine * * * trafficking in 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.

Similarly, R.C. 2925.11(A) prohibits an individual from knowingly obtaining, possessing, or

using a controlled substance or a controlled substance analog. R.C. 2925.11(C)(4) states in

pertinent part:

If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows: (a) Except as otherwise provided * * * possession of cocaine is a felony of the fifth degree.

***

(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 one of the prison terms prescribed for a felony of the first degree.

{¶8} Jackson argues the language of R.C. 2925.03(C)(4)(g) and R.C. 2925.11(C)(4)(f)

required the State to prove that the weight of the pure cocaine in the drug involved equaled or 5

exceeded 100 grams. Specifically, Jackson contends that since the State only offered evidence

showing the substances involved in this case contained a detectable amount of cocaine, but not

how much of the substances were chemically identifiable as cocaine, the evidence was not

sufficient to find him guilty of anything higher than a fifth-degree felony. The State, on the other

hand, argues that a total weight standard, where the drug involved is weighed in the aggregate, is

the proper standard under R.C. 2925.03(C)(4) and 2925.11(C)(4) and that Jackson’s proposition

would lead to absurd results. After considering the relevant statutes and case law, we agree with

the State’s argument.

{¶9} A challenge to the sufficiency of the evidence to support a criminal conviction

presents a question of law. State v. Thompkins,

(1997). Upon review,

“the relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, a rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” State v. Jenks,

, paragraph two of the syllabus.

Although we conduct the review de novo, “we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st

Dist. Hamilton Nos. C-120570, C-120751,

.

{¶10} Whether the statutes at issue require the State to prove the weight of the drug

involved based on a purity standard or a total weight standard is a matter of statutory

interpretation. As a question of law, we review issues of statutory interpretation de novo. State

v. McConville,

,

(9th Dist.). Initially, we must consider

if the language of R.C. 2925.03(C)(4) and R.C. 2925.11(C)(4) is ambiguous and susceptible to

more than one reasonable interpretation. Id. at ¶ 6. If a statute is ambiguous, a court will seek to

interpret the statutory provision in a way that most readily furthers the legislative purpose 6

reflected in the wording used in the legislation. State v. Black,

, 2015-Ohio-

513, ¶ 38.

{¶11} Jackson’s argument relies heavily on State v. Gonzales, 6th Dist. Wood No. WD-

13-086,

, motion to certify allowed,

,

,

appeal allowed,

,

. In Gonzales, the Sixth District held 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.”

(Emphasis sic). Id. at ¶ 47. The court reasoned that the plain language of “R.C.2925.11(C)(4)(f)

increases the level of offense for possession of cocaine when the amount possessed ‘equals or

exceeds one hundred grams of cocaine’” and that “of cocaine” modified the weight in the statute.

(Emphasis sic.) Id. at ¶ 42. Having concluded the level of offense centered on the determination

of actual cocaine in the substance, the court noted that the definitions of “cocaine” in R.C.

3719.41 SCHEDULE II(A)(4) and 2925.01(X) did not include the term “mixture” as contained

in the broader definitions for marihuana, LSD, and hashish. Id. at ¶ 43-45. The Sixth District

presumed the legislature’s failure to include such language in the statutory definition of cocaine

was intentional and concluded that a defendant may only be held liable for the portion of the

disputed substance that is chemically identified as cocaine.1 Id. at ¶ 45.

{¶12} However, the Gonzales court recognized that its holding was in direct conflict

with the Second District Case of State v. Smith, 2d Dist. Greene No. 2010-CA-36, 2011-Ohio-

2568. Id. at ¶ 47, citing Smith at ¶ 14-15. Although Jackson argues the Sixth District was

mistaken when it recognized this conflict, the Sixth District certified the conflict and the

1 In State v. Sanchez, the Sixth District applied its reasoning in Gonzales to trafficking in cocaine cases. 6th Dist. Sandusky No. S-14-030,

. That case is also on appeal before the Supreme Court of Ohio.

appeal allowed,

, 2016- Ohio-3390. 7

Supreme Court of Ohio subsequently determined a conflict exists. The matter is currently

pending before the Supreme Court.2 See Gonzales,

.

In Smith, the Second District held that under former R.C. 2925.03(C)(4) and former R.C.

2925.11(C)(4)(b), the State was required to prove that “the drug involved” was “a compound,

mixture, preparation, or substance containing cocaine” and that the amount of “the drug

involved” equaled or exceeded the statutory threshold. Smith at ¶ 14-15. It is enough that the

substance tested, as a whole, satisfies the weight requirement and the State is not required to

prove the defendant possessed or trafficked pure cocaine equal to or exceeding the statutory

amount.

If current R.C.2925.03(C)(4) and R.C. 2925.11(C)(4) are read in the same manner,

they would require the State to prove that the drug involved is a compound, mixture, preparation,

or substance containing cocaine and that the amount of the drug involved, in the aggregate,

meets the statutory requirement.

{¶13} Thus, the plain language in the penalty provisions at issue can be interpreted in at

least two ways. The phrase “the amount of the drug involved” can be interpreted to mean the

amount of a compound, mixture, preparation or substance containing cocaine or it can be

interpreted to mean the amount of pure cocaine in a compound, mixture, preparation, or

substance containing cocaine. If a statute is susceptible to more than one reasonable

interpretation, it is ambiguous. McConville,

. Moreover, “[t]he conflict

among the appellate courts regarding the meaning of the phrase strongly suggests that the

statutory language is ambiguous.” Symmes Twp. Bd. of Trustees v. Smyth,

,

2 Jackson argues Smith is inapposite because: (1) the defendant in that case argued the “cut” or adulterant did not count as a drug because the statute specifically excluded food items from the definition of drug and the adulterant could have been a food item. As a result, the court did “not analyze the requirement that the state prove, as the statute says, an amount ‘of cocaine’;” and (2) the Smith decision did not analyze or mention the definition of “cocaine” and the Second District supports its position by citing to cases which analyze former law. 8

553 (2000). Therefore, as the plain language of R.C. 2925.03(C)(4) and R.C. 2925.11(C)(4) is

susceptible to more than one reasonable interpretation, we determine that these statutory

provisions are ambiguous.

{¶14} As we have concluded the provisions at issue are ambiguous, we may look to a

number of factors to determine legislative intent. R.C. 1.49. Those factors include: the object

sought to be obtained, the circumstances under which the statute was enacted, the legislative

history, the common law or former statutory provisions, including laws upon the same or similar

subjects, and the consequences of a particular construction.

When interpreting a statute, we

must presume the entire statute is intended to be effective and that a reasonable result is

intended. R.C. 1.47. When interpreting a statute, a court cannot pick out one sentence and

disassociate it from the context of the entire enactment. State v. Wilson,

(1997). However, when a court interprets a criminal statute, the language should be strictly

construed against the State and liberally construed in favor of the accused. R.C. 2901.04(A).

Nevertheless, strict construction of criminal statutes should not override common sense and

evident statutory purpose. State v. Sway,

(1984). If the statutory

language is given fair meaning in accord with the manifest intent of the General Assembly, the

canon of strict construction is satisfied.

{¶15} Jackson asks this Court to dissociate the term “of cocaine” in the penalty

provisions of the trafficking and possession statutes from the context of the entire enactment.

R.C. 2925.03(A)(1) prohibits individuals from knowingly selling or offering to sell a controlled

substance. “Controlled substance” is statutorily defined as “a drug, compound, mixture,

preparation or substance included in schedule I, II, III, IV, or V.” R.C. 3719.01(C). Cocaine is a

schedule II controlled substance. R.C. 3719.41 SCHEDULE II(A)(4). R.C. 2925.03(C)(4) 9

specifies that a violation of the prohibition against selling a controlled substance will constitute

trafficking of cocaine “[i]f the drug involved in the violation is cocaine or a compound, mixture,

preparation, or substance containing cocaine.” (Emphasis added.) Similarly, R.C.

2925.11(A)(1) prohibits individuals from knowingly obtaining, possessing, or using a controlled

substance. R.C. 2925.11(C)(4) specifies that a violation will constitute possession of cocaine

“[i]f the drug involved in the violation is cocaine or a compound, mixture, preparation, or

substance containing cocaine.” (Emphasis added.) Thus, when examining the statute as a whole,

it is evident the General Assembly did not intend to distinguish between pure cocaine and

cocaine in a diluted form: possession or trafficking in cocaine is the same as possessing or

trafficking in a compound, mixture, preparation, or substance containing cocaine. The penalties

for trafficking in or possession of cocaine set forth in the statutes increase as the weight of the

“drug involved” increases. See R.C. 2925.03(C)(4)(a)-(f); R.C. 2925.11(C)(4)(a)-(f). As the

“drug involved” can be either “cocaine” or “a compound, mixture, preparation, or substance

containing cocaine,” we conclude it is the total aggregate weight of the drug involved which is

determinative. Whether the substance is pure cocaine or diluted is inconsequential.

{¶16} Moreover, our interpretation is supported by the legislative history and historical

treatment of the statutes governing the penalties for possession and trafficking in cocaine.

Relevant to our inquiry are S.B. 2 in 1995 and H.B. 86 in 2011. 1995 Am.S.B. No. 2; 2011

Am.H.B. No. 86. Prior to the enactment of S.B. 2 in 1995, the penalty enhancements for

possession or trafficking of controlled substances were determined based on the bulk amount of

the substance. Former R.C. 2925.03, 2925.11, 2925.01(E)(1). The bulk amount of cocaine was

defined as the “amount equal to or exceeding ten grams or twenty-five unit doses of a compound,

mixture, or substance that contains any amount of * * * cocaine.” (Emphasis added.) Former 10

2925.01(E)(1). Under this statutory scheme, Ohio courts did not require the State to prove the

amount of pure cocaine in a substance. See e.g. State v. Neal, 3d Dist. Hancock No.5-89-6,

(June 29, 1990); State v. Morris, 8th Dist. Cuyahoga No. 67401,

(Sept. 28, 1995); State v. Miller, 2d Dist. Montgomery No. 13121,

(July 29,

1993); State v. Brown,

(3d Dist. 1995).

{¶17} S.B. 2 and S.B. 269 altered the treatment of cocaine offenses by removing them

from the previous “bulk amount” penalty scheme and creating a drug specific scheme that

differentiated between cocaine and crack cocaine. Former R.C. 2925.03(C)(4) and

2925.11(C)(4). In both the possession and trafficking penalty statutes, if the “drug involved”

was “cocaine or a compound, mixture, preparation, or substance containing cocaine,” the

penalties were based on the amount of drug involved.

For example, former R.C.

2925.03(C)(4)(c) stated in pertinent part:

[I]f the amount of the drug involved equals or exceeds five grams but is less than ten grams of cocaine that is not crack cocaine or equals or exceeds one gram but is less than five grams of crack cocaine, trafficking in cocaine is a felony of the fourth degree.

(Emphasis added.) The Supreme Court of Ohio noted that under this statutory scheme, “the

General Assembly authorized criminal penalties for drug trafficking based on the identity and

amount of the controlled substance involved * * * and that [b]y the terms of the penalty statute

for cocaine * * * the substance involved in the violation is to be cocaine, or * * * a compound,

mixture, preparation or substance containing cocaine.” (Emphasis Sic.) (Internal citations

omitted.) Garr v. Warden, Madison Corr. Inst.,

,

,

quoting State v. Chandler,

,

, ¶ 18. Accordingly, if the drug

involved contained a detectable amount of cocaine, Ohio courts would consider it cocaine for the

purposes of the statute. See Smith,

(compiling cases in support of the 11

conclusion that the State need not segregate the pure cocaine from the other ingredients in a

substance); see also State v. Seymour, 9th Dist. Lorain No. 12CA010250,

;

State v Remy, 4th Dist. Ross No. 03CA2731,

; State v. Fuller, 1st Dist.

Hamilton No. C-960753,

, *2 (Sept. 26, 1997).

{¶18} The statute was again revised in 2011 with the enactment of H.B. 86, with the

specific purpose of eliminating the differences in criminal penalties for crack cocaine and

powder cocaine. 2011 Am. Sub. H.B. No. 86, preamble; State v. Limoli,

,

. Both the trafficking in cocaine and possession of cocaine penalty statutes

retained the language that if the “drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates division (A) of this

section is guilty of [trafficking in/possession of] cocaine.” R.C. 2925.03(C)(4) and

2925.11(C)(4). However, the penalty provisions were consequentially revised to remove the

distinction between powder cocaine and crack cocaine. For example, former R.C.

2925.03(C)(4)(g) was revised in pertinent part as follows:

[I]f the amount of the drug involved equals or exceeds five hundred grams but is less than

one thousand one hundred grams of cocaine that is not crack cocaine or equals or exceeds

twenty-five grams but is less than one hundred grams of crack cocaine, * * * trafficking

in cocaine is a felony of the first degree.

Am. Sub. H.B. 86. Interpreting the penalty provisions in the manner prescribed in Gonzales

would disassociate the term “of cocaine” from the context of the entire enactment. As the

General Assembly specifically stated the purpose of this amendment was “to eliminate the

difference in criminal penalties for crack cocaine and powder cocaine,” it follows that the

retention of the term “of cocaine” in the penalty provision is a show of the legislature’s intention 12

to treat all forms of cocaine equally as “cocaine” and not a signal of intent to require a strict,

previously unnecessary purity weight standard. See

{¶19} As we have concluded that the proper standard for determining the weight of the

drug involved in a trafficking or possession of cocaine offense is the total weight of the drug

involved, including the pure cocaine and any cutting agents, we must determine that Jackson’s

convictions are supported by sufficient evidence. In this case, the drug involved was a white

powdery substance, which tested positive for a detectable amount of cocaine. The forensic

analysist testified that when she tests a powder, she uses a calibrated scale to weigh it, then takes

a sample of the substance and uses a Gas Chromatograph/Mass Spectrometer to identify

unknown substances. In this case, she tested one specimen weighing 0.38 grams, which tested

positive for cocaine, one specimen weighing 38.2 grams, which was positive for cocaine, and

another specimen consisting of five baggies with a total weight of 137.89 grams, four of which

tested positive for cocaine. The fifth was not tested due to the lab’s policy of using

hypergeometric distribution, which calls for the lab to test a statistical amount to give them a

ninety-five percent confidence that all of the samples will have the same contents. Therefore, the

total weight of the drug tested exceeded the statutory threshold necessary for the trial court to

find Jackson guilty of first degree felony trafficking in cocaine and first degree felony possession

of cocaine. Accordingly, Jackson’s arguments are not well-taken.

{¶20} Jackson’s first and second assignments of error are overruled.

III.

{¶21} Having overruled Jackson’s two assignments of error, we affirm the judgment of

the Lorain County Court of Common Pleas.

Judgment Affirmed. 13

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 Lorain, 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.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. WHITMORE, J. CONCUR.

APPEARANCES:

MICHAEL E. STEPANIK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.