[Cite as State v. Kiser, 2017-Ohio-7799.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-15-030
Appellee Trial Court No. 13 CR 976
v.
Julian L. Kiser DECISION AND JUDGMENT
Appellant Decided: September 22, 2017
*****
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney,
and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Kristopher K. Hill and Thomas J. DeBacco, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} This matter is before the court on remand from the Ohio Supreme Court.
I. Facts and Procedural Background
{¶ 2} The case was originally before this court on appellant’s appeal from a
conviction of one count of trafficking in cocaine in violation of R.C. 2925.03(A)(1), with
a major-drug-offender specification under R.C. 2925.03(C)(4)(g), a felony of the first
degree.
{¶ 3} The facts from the trial revealed that in October 2013, T.K. was employed
by the PLE Group to go undercover at an auto parts factory to ferret out suspected drug
activity occurring at the factory. During the course of his work, T.K. befriended C.P.,
who at the time also worked at the factory. T.K. asked C.P. if he knew anyone that sold
cocaine. Thereafter, T.K. and C.P. constructed a plan to purchase five ounces of cocaine,
or approximately 140 grams, and then cut it to sell at a profit. C.P. arranged a purchase
with appellant.
{¶ 4} On October 11, 2013, C.P. and T.K. drove to appellant’s apartment.
Appellant told them to wait outside. A few minutes later, appellant returned with a
sandwich bag carrying what was described as a white powdery substance. C.P. and T.K.
entered appellant’s apartment and observed appellant place the bag on a digital scale in
his kitchen. C.P. and T.K. testified that the weight of the bag was between 140 and 150
grams. T.K. then stated that he had to go to the bank to withdraw the $7,000 for the
purchase, and he left. Upon leaving, T.K. called the police.
{¶ 5} Notably, no drugs were entered into evidence, nor was a lab report detailing
the composition of the white powdery substance entered into evidence. This was a result
of our determination in a prior appeal that the search and seizure of the drugs was
unconstitutional. See State v. Kiser, 6th Dist. Sandusky No. S-14-024, 2015-Ohio-3076.
2.
{¶ 6} After the evidence was presented, the jury returned with a verdict of guilty
on the count of offering to sell cocaine. The jury further found that the amount of the
substance represented to be cocaine was more than 100 grams.
{¶ 7} At sentencing, appellant was ordered to serve ten years in prison.
{¶ 8} On appeal to this court, appellant argued that the testimony, which only
identified the item produced by appellant as a white, powdery substance and neither
identified the substance as cocaine nor commented on its purity, was insufficient to
support the jury’s finding that appellant was a major drug offender under R.C.
2925.03(C)(4)(g). In support of his argument, appellant relied on our decisions in State v.
Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, and State v. Sanchez, 2016-
Ohio-542, 59 N.E.3d 719 (6th Dist.).
{¶ 9} In Gonzales, we held that because the statutory definition of cocaine did not
include any compounds or mixtures containing cocaine, but was limited to the actual drug
itself, the penalty enhancement for possessing over “one hundred grams of cocaine”
required the state to prove that the weight of the cocaine excluding any filler material
exceeded the statutory threshold. See R.C. 2925.11(C)(4)(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.”). In that case, the state only presented the weight of the entire mixture
containing cocaine. It did not present any evidence demonstrating the purity or the
3.
weight of the cocaine itself. As a result, we held that the penalty enhancement under
R.C. 2925.11(C)(4)(f) must be reversed and vacated. Gonzales at ¶ 47.
{¶ 10} In Sanchez, we applied our holding in Gonzales to the penalty enhancement
for trafficking in cocaine. In that case, Sanchez was convicted of a first degree felony
based on a gross weight of 34.1 grams. See R.C. 2925.03(C)(4)(f) (“If the amount of the
drug involved equals or exceeds twenty-seven grams but is less than one hundred grams
of cocaine * * * trafficking in cocaine is a felony of the first degree, and the court shall
impose as a mandatory prison term one of the prison terms prescribed for a felony of the
first degree.”). However, the laboratory report revealed that the weight of actual cocaine
was 14.3 grams. Thus, we held that he should have been convicted of no greater than a
third-degree felony. Sanchez at ¶ 17; see R.C. 2925.03(C)(4)(d) (“[I]f the amount of the
drug involved equals or exceeds ten grams but is less than twenty grams of cocaine,
trafficking in cocaine is a felony of the third degree.”).
{¶ 11} Consistent with Gonzales and Sanchez, appellant argued that because there
was no testimony as to the weight of actual cocaine, the penalty enhancement under R.C.
2925.03(C)(4)(g) must be reversed and vacated.
{¶ 12} In opposition, the state argued that this case is controlled by Garr v.
Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063.
In Garr, the Ohio Supreme Court was asked on a certified question from federal court
whether the holding in State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846
N.E.2d 1234, that “[a] substance offered for sale must contain some detectable amount of
4.
the relevant controlled substance before a person can be sentenced as a major drug
offender under R.C. 2925.03(C)(4)(g),” “extends to an offer-to-sell drug-trafficking case
where no drugs are recovered during investigation of the crime.” Garr at ¶ 1. The Ohio
Supreme Court answered the question in the negative and clarified that its holding in
Chandler “does not extend to cases where a substance offered for sale is not recovered or
tested in order to ascertain whether it contains a detectable amount of a controlled
substance.” Id. at ¶ 2.
{¶ 13} In Chandler, the defendant was convicted of trafficking in cocaine as a
major drug offender under R.C. 2925.03(A)(1) and (C)(4)(g) despite the fact that the
laboratory report revealed that the substance was actually baking soda. Thus, the Ohio
Supreme Court recognized that “the jury’s finding that the amount of the drug equaled or
exceeded 100 grams of crack cocaine was contrary to fact.” Garr at ¶ 26. In contrast, in
Garr, the defendant offered to sell two kilograms of cocaine to a police informant. The
sale was not completed, however, because of a disagreement over payment. The
defendant did not produce any cocaine, and the state never recovered any substance
offered for sale in connection with those events. Garr at ¶ 4. At the trial, the state played
recorded conversations between the defendant and the informant in which the defendant
identified the amount he offered to sell multiple times, and it was never less than two
kilograms. In addition, the defendant represented that the cocaine was of high quality.
State v. Garr, 1st Dist. Hamilton No. C-060794, 2007-Ohio-3448, ¶ 6. From this
evidence, the appellate court held that a rational trier of fact could have found beyond a
5.
reasonable doubt that the defendant offered to sell more than 1000 grams of actual
cocaine.1 Id. at ¶ 7.
{¶ 14} In reaching its decision in Garr, the Ohio Supreme Court reasoned that
Chandler did not address the principle that the state can establish any element of any
crime through circumstantial evidence. Therefore, it concluded that its holding in
Chandler,
[I]s limited to those cases where the substance offered for sale is
recovered and subjected to testing to determine whether it contains a
detectable amount of the drug offered for sale. It does not apply to
situations where no drug is recovered and no testing is performed. Hence,
where an offender offers to sell a controlled substance in a quantity that
would implicate the MDO (major drug offender) specification, and where
no substance is ever recovered or tested, Chandler is factually
distinguishable, as it is a counterfeit drug case where the alleged drug was
recovered and tested. Therefore, Chandler does not apply to the situation
as presented here where Garr offered to sell a drug that was not recovered.
In such a case, the offender may be convicted of an MDO specification in a
properly proven case. Garr at ¶ 28.
1
The First District’s decision in State v. Garr was released prior to the amendment to
R.C. 2925.03 removing the distinction between cocaine and crack cocaine, and
establishing the threshold as 100 grams.
6.
{¶ 15} In our original decision, we held that, unlike Garr, this was not a properly
proven case. Because our holdings in Gonzales and Sanchez required that the amount of
actual cocaine exceed the statutory threshold, and there was no testimony regarding the
purity of the cocaine or the typical percentage composition of purchased cocaine, we
concluded that the jury’s finding that the amount of the purported drug in question
exceeded 100 grams was pure speculation and was not supported by sufficient evidence.
Therefore, we reversed and vacated the major drug offender specification.
{¶ 16} The state appealed this court’s decision to the Supreme Court of Ohio,
which accepted the case for review. The Supreme Court of Ohio then reversed, and
remanded the matter to our court for application of its decision in State v. Gonzales, Slip
Opinion No. 2017-Ohio-777. In Gonzales, the Ohio Supreme Court, on reconsideration,
reversed our decision in State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-
461, and held that “the applicable offense level for cocaine possession under R.C.
2925.11(C)(4) is determined by the total weight of the drug involved, including any
fillers that are part of the usable drug.”2
2
Notably, the Supreme Court of Ohio affirmed our decision in State v. Sanchez, 2016-
Ohio-542, 59 N.E.3d 719 (6th Dist.). State v. Sanchez, Slip Opinion No. 2016-Ohio-
8470. However, unlike Gonzales, the Ohio Supreme Court did not reconsider its decision
in Sanchez. Nevertheless, the Ohio Supreme Court affirmed Sanchez on the authority of
its initial decision in Gonzales, thus we recognize that the Ohio Supreme Court implicitly
reversed its decision in Sanchez when it reconsidered and reversed its decision in
Gonzales.
7.
II. Analysis
{¶ 17} In light of the Ohio Supreme Court’s decision and remand, we now
reexamine appellant’s argument that the jury’s finding regarding the major drug offender
specification was based on insufficient evidence.
{¶ 18} When reviewing a claim that the conviction is based on insufficient
evidence, “[t]he 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, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In essence, sufficiency is a
test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 19} In this case, appellant was found to be a major drug offender under R.C.
2925.03(C)(4)(g), which provides,
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: * * * (g) If the amount of the
drug involved equals or exceeds one hundred grams of cocaine and
regardless of whether the offense was committed in the vicinity of a school
or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first
degree, the offender is a major drug offender, and the court shall impose as
8.
a mandatory prison term the maximum prison term prescribed for a felony
of the first degree.
{¶ 20} Here, the testimony established that C.P. and appellant had a conversation
wherein appellant indicated that he could get cocaine for C.P. They then discussed a
price for the cocaine. C.P. and T.K. later arrived at appellant’s apartment to complete the
sale, at which time appellant presented a bag of a white, powdery substance that weighed
between 140 and 150 grams. Analogous to Garr, because appellant offered to sell
cocaine, and produced a substance weighing over 100 grams, we hold that a rational trier
of fact could have found the essential elements under R.C. 2925.03(C)(4)(g) proven
beyond a reasonable doubt. Therefore, we hold that the jury’s finding that appellant is a
major drug offender under R.C. 2925.03(C)(4)(g) is not based on insufficient evidence.
{¶ 21} Accordingly, appellant’s assignment of error is not well-taken.
III. Conclusion
{¶ 22} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Sandusky County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
9.
State v. Kiser
C.A. No. S-15-030
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
10.
State v. Kiser
Combined Opinion