Petition — Emery v. Ohio

~ Supreme Court, U &

FILED

JUL 10 j979

}

Iw THE MICHARL ROOAK, JR., CLERK

Supreme Court of the United States

Ocroper Term, 1979

Case No. .....-. WQO-4'7 4

a

DonaLp T. EMERY,

Petitioner,

—_—V—

STATE OF OHIO,

Respondent.

PETITION FOR

A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OHIO

Bernarp A. BERKMAN

BERKMAN, GORDON, KANCELBAUM,

Levy and Murray

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorney for Petitioner

ALLEN SCHULMAN, JR.

636 Citizens Savings

Building

Canton, Ohio 44702

Georce W. PALDA

Of Counsel

TABLE OF CONTENTS

Page

TABLE OF BPEL E EEC C Cee oe ee eecawece - iii -

OPINIONS sn 6 eo dee 6 6 oes 6 RCC? © % 1

PUT EES bn 6 he 5 6d bees 6b 6 06 6b eee 2

QUESTION PRESENTED FOR REVIEW........ 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. oe ee € Cee ee ee 3

STATEMENT OF THE CASE...cccccccccccce 3

REASONS FOR GRANTING WRIT......eeeees 6

Se Se er Ca ee ee 15

APPENDIX

Order Extending Time to File

Petition for Writ of Certiorari.. 17

Order of the Ohio Supreme

Court Denying Rehearing.......... 18

Order of the Ohio Supreme

Court Dismissing Appeal

of RIGHKC. ccccccccccccccccccccccce 19

Decision and Journal Entry of

Ohio Court of Appeals - 20

Ninth Judicial District..........

Journal Entry in the Court

of Common Pleas of Wayne 33

County, Case No. 77 CR-13l.......

TABLE OF CONTENTS (CONT. ) TABLE OF AUTHORITIES

Page Cases Page

Journal Entry in the Court Berrier v. Egeler, 583 F. 2d

of Common Pleas of Wayne 515 (6th Cir. 1978), cert.

County, Case No. 77CR-157..... 35 denied, U.S. . SF Bete,

354 BOTE) ccc vewveuve wes etew es e*eeee#es 12

Propositions of Law Pre- :

sented in Memorandum in Cool v. United States, 409

Support of Jurisdiction ie Se NEE Wa bias 's 04 Seb be «6 11

to the Supreme Court of

oO TE ee ae ke Gb Oe ee ee 37 Grace Ve Hopper, 566 F.2d 507

(5th op je. ara eeeee eeee 15

Assignments of Error to

Ohio Court of Appeals, Hampton v. United States,

Ninth Appellate oe Se 38 425 FP 484 bio.) ae ee0nee ee 11,13,

° 14

Fourteenth Amendment to

the United States Con- In re Winship, 297 U.S. 358 (1970).... 5,6,

re 39 7,9,12,

15

Ohio Revised Code,

A Das kde ohn k o¥ecdee 40 Mullaney v. Wilbur, 421 U.S.

684 1975 eeeeeeeveeeeeeeeeeeeeeeeeee G7

9,12

Patterson v. New York, 432 U.S.

197 OLS PPPPrPrT ere TTT Tee Tee ee 45 Cs

9,12,14

Sandstrom v. Montana, U.S.

, 47 U.S.L.W. 4719

(June 19, 1979, No. 78-5384)....... 7,11

Sherman v. United States,

356 Ue 369 eA re ec oid ee oe 11,23

Sorrells v. United States,

267 U.S. 4355 (1952). cece nc cccee 11,13

- ii - - iii -

TABLE OF AUTHORITIES (CONT. )

Speiser v. Randall, 357 U.S.

513 CEeOET bs a teh aeubeas <ae Pewee

State v. Dutton Drugs, Inc.,

3 Ohio App. 2d 118, 209

N.E. 2d 597 (Meigs Cty. BOOT caceee

State v. Poole, 33 Ohio St.

2d 18, 294 N.E. 2d 888 (1973)......

State v. Robinson, 47 Ohio St.

2d 103, 351 N.E. 2d 88 (1976)......

United States v. Jackson, 487

ve 2d 852 (6th Cir. DT weeé6e0e ee 6

United States v. Russell, 411

U.S. 423 fo Peleg pt 9a es

weight v. Smith, 569 F. 2d

18 n wt DE mG oe Seeaw eee e

Constitutional Provisions

Fourteenth Amendment to the

United States Constitution.........

Statutory Provisions

Ohio Revised Code, Section

GPSS - OSs Kc. cehe een eek ks we eK EL «

28 U.S.C. SSROT Uae tha 0cnes caneabes tons

- iv -

12

12

12

11,13,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

Case. No.

DONALD T. EMERY,

Petitioner,

Vv.

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF .OHIO

Petitioner Donald T. Emery prays that

a writ of certiorari issue to review the

judgment of the Ohio Supreme Court dis-

missing petitioner's appeal for want of

substantial constitutional question. The —

dismissal of petitioner's appeal by the Ohio

Supreme Court thereby affirmed the judgment

of the Ohio Court of Appeals - Eighth Dis-

trict, which had affirmed petitioner's convic-

tions on two counts of trafficking in drugs.

OPINIONS BELOW

The judgments of the Ohio Supreme Court

dismissing petitioner's appeal and denying

rehearing are unreported and are set forth

respectively, in the Appendix at 19and 18..

The judgment and opinion of the Ohio

Court of Appeals - Ninth Appellate

District, is unreported and is set

forth in the Appendix at 20-32. The

journal entries of the Court of

Common Pleas of Wayne County, Ohio,

the trial court, are set forth in the

Appendix at 33-36.

JURISDICTION

The judgment of the Ohio Supreme

Court dismissing petitioner's appeal as

of right was announced on January 17,1979,

Appendix at 19.Petitioner's motion for re-

hearing was denied by the Ohio Supreme

Court on March 2, 1979, Appendix at 18.

Cn May 21, 1979, Mr. Justice Stewart, upon

application by petitioner, granted an order

extending the time within which to file a

petition for a writ of certiorari to and

including July 10, 1979, Appendix at 17.

This petition seeks review of a final

judgment rendered by the Ohio Supreme

Court, the highest court in the State of Ohio

in which a decision in this case could be

had. This Court has jurisdiction pursuant

to 28 U.S.C. §1257 (3) because rights,

priviledges, and immunities under the Con-

stitution of the Unites States are claimed

to hav. been violated.

QUESTION PRESENTED FOR REVIEW

Where, in a state criminal prosecution

for drug trafficking, the defendant alleges

that he was entrapped into committing the

offense and testimony from prosecution and

defense witnesses demonstrates that law en-

forcement officers instigated and induced

the criminal violation, does a jury in-

struction by the trial court that proof of

predisposition by credible evidence will

negate entrapment thereby violate defendant's

due process rights under the Fourteenth Amend-

ment to the United States Constitution by re-

lieving the prosecution of the burden of

proving all of the facts constituting the

elements of the offense beyond a reasonable

doubt?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The text of the pertinent portion of the

Fourteenth Amendment to the United States

Constitution is set forth in the Appendix .

at 39. The text of Ohio Revised Code §2925.03

is set forth in the Appendix at 40-46.

STATEMENT OF THE CASE

Petitioner Donald T. Emery was con-

victed on February 18, 1978, of two counts

of Trafficking in Drugs by a jury in the

Common Pleas Court of Wayne County, Ohio.

Petitioner was sentenced by the trial court

to a concurrent sentence of two (2) to ten

(10) years inprisonment for each conviction.

The judgment an@ sentence of the trial court

were affirmed by the Ohio Court of Appeals -

Ninth Appellate District. Petitioner's appeal

to the Ohio Supreme Court subsequently was

dismissed for want of substantial constitutional

question and rehearing was denied.

At trial, charged with the sale of ap-

proximately twenty-three (23) grams_of

marijuana resin concentrate (T.108) -=

1

7 333 references to the transcript of ~

the proceedings in the trial court will

be referred to by the letter "T",

followed by the page number(s).

o 3

and approximately seven (7) grams of

powder containing cocaine (7.129), oes

er Emery introduced evidence, on cross exam-

ination of prosecution witnesses and through

direct examination of defense witnesses, that

he had an unblemished reputation and had been

entrapped by state drug enforcement agents

(see @.g.T.59 - 91, 97 - 100, 152 - 164,

175 = 190, 195 - 197, 208 - 234, 243 - 250).

Petitioner's evidence showed that after re-

peated, persistent entreaties by the drug agent

Smith, petitioner relented and agreed to ob-

tain the drugs "to get 3

(2.250), g g this man off my back

At the close of evidence, the

instructed the jury on the law (T. 304 316).

including the elements of the crimes and the

concept of entrapment. For each violation, the

trial court instructed that the jury had to find

ae a reasonable doubt that "the defendant

wea sold... " the specific controlled

Substances (T.307,308). The court also included

an instruction on "purpose" (T.312). The

trial court began its instructi

ment by stating that: ee patel

"The defendant denies that he for-

med a purpose to commit a crime.

He claims that he is excused be-

cause he was unlawfully entrapped

by the undercover agent." (T.310)

In its explanation of the meanin

of

entrapment, the trial court noted aaa

"A person is not entrapped when

officers, for the purpose of

year on pony merely present a

ndant with the o rtunity t

commit an offense." at Sis

However, the trial court concluded its

remarks on entrapment by instructing that:

"If you find by credible evidence

that the defendant had the pre-

disposition and criminal design to

commit the acts into which he claims

he was entrapped, and that he was

merely provided with an opportunity

to commit those acts for which he

was both apt and willing, then he has

not been unlawfully entrapped (T.311)

(emphasis added).

Petitioner's objections to the trial

court's entrapment-burden of proof instruc-

tions were entered prior to the reading of

the instructions to the jury (T.265) and

were later renewed (T.316). On appeal to

the Ohio Court of Appeals - Ninth Appellate

District, petitioner assigned as error the

trial court's instruction relieving the

prosecution of the burden of proving predis-

pogition beyond a reasonable doubt (Appendix

at@38). Petitioner specifically argued in

his brief before the court of appeals con-

cerning that assignment of error (Brief

at 11) that "the reasonable doubt standard

of proof has constitutional stature. In re

Winship, 297 U.S. 358 (1970)."

On appeal to the Ohio Supreme Court,

petitioner again assigned as error in the

propositions of law submitted to the court

the instruction on the burden of proving pre-

disposition (Appendix at 37). In the

jurisdicitonal memorandum submitted to the

Ohio Supreme Court, petitioner reiterated

that "'the reasonable doubt' standard of

proof has constitutional stature. In re

Winship, 297 U.S. 358 (1970)" (Memorandum at

7). However, the Ohio Supreme Court, without

opinion, dismissed petitioner's appeal for

want of substantial constitutional question

(Appendix at 19) and later denied, without

opinion, petitioner's application for re-

hearing (Appendix at 18).

-5-

REASONS FOR GRANTING WRIT

AN IMPORTANT QUESTION IS PRESENTED

FOR REVIEW CONCERNING THE APPLI-

CATION OF THE DUE PROCESS PRIN-

CIPLES ENUNCIATED IN IN RE WINSHIP,

397 U.S. 358 (1970) AND MULLANEY V.

WILBUR, 421 U.S. 684 (1975) TOA

STATE CRIMINAL PROSECUTION WHERE

ENTRAPMENT IS ALLEGED BUT THE JURY

IS INSTRUCTED THAT PROOF BY

"CREDIBLE EVIDENCE" OF PREDIS-

POSITION WILL NEGATE THE QUESTION

OF ENTRAPMENT.

This Court should grant a writ of

certiorari in the instant case to resolve

the confusion and uncertainty which pre-

sently exists among state and federal courts

concerning the application of the due

process requirement of proof beyond a

reasonable doubt in criminal proceedings.

The Court, in the case of In Re

Winship, 397 U.S. 358 (1970), involving

the review of a state juvenile proceeding,

firmly announced that,

"Lest there remain any doubt

about the constitutional

stature of the reasonable

doubt standard, we explicitly

hold that the Due Process

Clause protects the accused

against conviction except

upon proof beyond a reason-

able doubt of every fact

necessary to constitute the

crime with which he is charged."

Id., at 365.

In the subsequent cases of Mullaney v.

Wilbur, 421 U.S. 684 (1975) and Patterson v.

New York, 432 U.S. 197 (1977), which in-

volved state criminal proceedings, this

Court adhered to the principal enunciated

in Winship, supra. Accord, Sandstrom v.

Montana, _U.S.__, 47 U.S.L.W. 4719 (June

19, 1979, No. 78-5384).

However, in Patterson v. New York,

supra, the Court held that the New York

murder law did not place an unconstitu-

tional burden of proof upon the defendant

by requiring the defendant to prove the

affirmative defei.se of extreme emotional

disturbance, as defined by New York law.

The basis for the Court's holding was the

specific language of the New York statute

which defined murder only "as causing the

death of another person with intent to do

so." 432 U.S. at 205.

Mullaney v. Wilbur, supra, was narrowly

distinguished by the Court in Patterson on

the basis that, in Mullaney, the Maine

murder law included malice aforethought as

an element of the crime of murder and,

under Maine law, malice aforethought was

considered inconsistent with the heat of

passion on sudden provocation; if one

were proved, the other would be negated.

432 U.S. at 213, 215-216. In Mullaney,

pursuant to Maine law, malice was presumed

and the burden of proof was shifted to the

defendant to negate that element by proving

by a preponderance of the evidence that he

acted with heat of passion upon sudden

provocation.

The Court in Patterson found the pre-

sumption of malice and its connection,

under Maine law, with the absence of heat

of passion to be the controlling distinction

between the Maine and New York law. Because

the New York statute did not employ the

common law language of malice but required

only proof of facts of "the death, the

intent to kill and causation", 432 U.S. at

205, the Court reasoned that proof of the

New York affirmative defense of extreme

emotional disturbance was a separate issue

from the facts constituting the New York

crime of murder. 432 U.S. at 207. Despite

the Court's analysis in Patterson, the

Maine and New York law were so close and

the distinctions drawn were so fine that

the dissent in Patterson commented:

"The Court manages to rum a con

stitutional boundary line

through the barely visible

space that separates Maine's

law. from New York's." 432

U.S. at 221.

As a result of the Patterson decision,

trial courts are faced with a test which

appears based on largely narrow semantic

distinctions. Consequently, the trial and

appellate courts are left without guidance

on a point which arises in virtually every

criminal proceeding.</State courts are con-

fronted with defendants who argue that jury

instructions incorrectly place the burden

of proof on certain issues on the defen-

dant, or improperly lessen the quantum

2

—~/ vor examples :of the ambiguity and conflict

which result from the Patterson test, see,

e.g., United States v. Jackson, 487 F. 2d

(6th Cir. 1978); Berrier v. Egeler,

583 F. 2d 515 (6th Cir. 1978); oe,

569 F. 2d 1188 (2nd Cir. 1978); Grace v. Hopper,

566 F. 2d 507 (5th Cir. 1978).

of proof on particular issues the prose-

cution must prove. Prosecutors may just as

likely object to jury instructions which

unduly increase the burden on the prose-

cution or unfairly lessen a defendant's

burden of production or burden of proof as

to an affirmative defense. Thus, it is to this

Court that the judiciary looks for guidance

in an area of compelling importance and

immediacy.

The instant case presents an ideal

vehicle for the Court to clarify the rule,

announced in WinBShip, Mullaney and Patterson

and to provide the sorely needed guidance

to the courts below. In this case, peti-

tioner alleged that he was entrapped into

committing the charged offenses. At issue,

here, is the trial court's instruction

which petitioner asserts unconstitutionally

relieved the prosecution from proving all

the essential facts of the crimes charged

and effectively shifted the burden to. the

petitioner to prove the absence of criminal purpose.

In the instant case, after the trial

court explained to the jury that "(t]he

defendant denies that he formed a purpose

to commit a crime" (T. 310), the court

then instructed the jury on the theory

and elements of entrapment (T. 311). In

concluding, the trial court instructed that:

"If you find by credible evi-

dence that the defendant had

Criminal design to commit the

acts into which he claims he

was entrapped, and that he was

merely provided with an oppor-

tunity to commit those acts

for which he was both apt and

willing, then he has not been

unlawfully entrapped." (T. 311)

(Emphasis added).

The "credible evidence" instruction

certainly resulted in a reduction of the

prosecution's burden of proving, beyond a

reasonable doubt, every fact necessary to

constitute the crimes with which the peti-

tioner was charged. Indeed, "credible evi-

dence" connotes a quantum of proof well

below preponderance of the evidence.

Furthermore, the prejudice caused by

the "credible evidence" instruction was

further exacerbated by the trial court's

instruction on the element "knowingly"

which commenced: "A person acts knowingly,

regardless of his purpose..."(T. 308)

(emphasis added) a which clearly contra-

dicted the court's later explanation that

"entrapment is a denial of general criminal

purpose...."(T. 311). The court also in-

cluded an instruction on "purpose" which

seemingly negated the entire defense of

entrapment: "Purpose is a decision of

the mind to do an act with a conscious

objective of producing a specific result

of engaging in specific conduct." 3.

312). Thus, the trial court's "credible

evidence" instruction, even when viewed

3

Petitioner specifically objected to the

conflict between the "purpose" in-

struction and the entrapment instruction.

(T. 265, 316).

- 10 =

with the jury instructions as a whole, would

have caused a reasonable juror to assume

that the prosecution was not required to

prove prgdisposition beyond a reasonable

doubt .—

Ohio law recognizes entrapment as a

defense under the rationale first advanced

by this Court in Sorrells v. United States,

287 U.S. 435 (1932) and repeated in subse-

quent decisions of this Court.——

"Thus, the thrust of the en-

trapment defense was held to

focus on the intent or pre-

disposition of the defendant

to commit the crime." United

States v. Russell, 411 U.S.

423, 429 (1973).

Similarly, Ohio courts have held that:

"Relevant to the issue [of

entrapment] is the predis-

position and willingness of

the accused to commit the

crime and the criminal design

of the accused.

4/

— Cf. Sandstrom v. Montana, supra,

U.S. , 47 U.S.L.W. 4719; Cool v.

United States, 409 U.S. 100 (1972).

5/

~~ See, Sherman v. United States, 356 U.S.

369 (1958); United States v. Russell,

411 U.S. 423 (1973); Hampton v. United

States, 425 U.S. 484 (1 ).

# jj -

"The rule has been stated

that there is no entrapment

where criminal intent originates

in the mind of the accused and

authorities merely afford oppor-

tunities or facilities for com-

mission of the offense." State

v. Dutton Drugs, Inc., 3 Ohio

App. 2d 118, 121, 209 N.E. 2a

597, 599 (Meigs Cty. 1965) (Cita-

tions omitted).

Entrapment under Ohio law, consistent

with the emphasis placed on the intent or

predisposition of the accused to commit

the crime, is not considered an affirmative

defense but, rather, represents a denial or

contradiction of evidence which the prose-

cution has offered as proof of an essential

element of the crime charged. State v. .

Poole, 33 Ohio St. 2d 18, 294 N.E. 2d 888

(1973). The Ohio Supreme Court has dis-

tinguished the concept of entrapment, as

well as alibi and accident, from affir-

mative defenses such as insanity and self-

defense on the basis that the former are

not "justifications for admitted conduct."

See, State v. Robinson, 47 Ohio St. 2d 103,

108, 351 N.E. 2d 88, 92 (1976); State v.

Poole, supra, 33 Ohio St. 2d 18, 294 N.E.

2d 888.5

-§/onio courts’ interpretation of entrapment

arguably places this case within the ambit

of In re Winship, 397 U.S. 358 (1970) and

Mullaney v. Wilbur, 421 U.S. 684 (1975)

and removes it from the "exception"

established under Patterson v. New York,

432 U.S. 197 (1977). CE. Berrier v.

Egeler, 583 F. 2d 515 (6th Cir. 1978),

cert. denied, U.S. , 99 S.Ct. 354

(1978).

-12-

At trial, petitioner's evidence of his

unblemished reputation in the community (see

e.g., T. 179-184, 198-202) and the persistent

entreaties by the drug enforcement agent to

the petitioner to obtain drugs for the

agent, (see, e.g., T. 59-91, 184-198, 208-

234), clearly raised an issue of entrapment

under Ohio law. The record discloses that

the jury was deeply concerned by the entrap-

ment issue and posed questions to the trial

court concerning the defense. In fact, the

jury's request for facts concerning the

agent's telephone calls to the petitioner

and whether the petitioner received any

money from the drug transactions (T. 317)

amply demonstrates how crucial the trial

court's instructions were in determining the

burden of proof and the ultimate question

of petitioner's guilt or innocence. Peti~

tioner's evidence su;ported a conclusion

that, under Ohio law, he had had no criminal

purpose but rather had been entrapped.

Moreover, the Ohio courts' interpre-

tation of the entrapment defense and its

negating effect upon the element of intent

or purpose is consistent with this Court's

interpretation of the entrapment defense.

This Court, in Sorrells v. United States,

287 U.S. 435 (1932), Sherman v. United

States, 356 U.S. 369 (1958), United States

v. Russell, 411 U.S. 423 (1971) and Hampton

Vv. United States, 425 U.S. 484 (1976),

has repeatedly emphasized that the entrap-

ment defense is based upon a statutory

construction of the criminal statutes. In

Sherman v. United States, supra, 356 U.S.

at 372, the Court stated that “Congress

could not have intended that its statutes

were to be enforced by tempting innocent

persons into violations." The Court has

=i3<

continued "to focus on the intent or pre-

disposition of the defendant to comniit the

crime." United States v. Russell, supra,

411 U.S. at 429. Entrapment is established

only by the negation, or absence, of the

predisposition of the defendant to commit

the crime. See, Hampton v. United States,

Supra, 425 U.S. at 136-4 9.

CONCLUSION

The Court in In re Winship, supra,

recognized society's interests in the

reliability of jury verdicts in criminal

cases:

"The requirement of proof beyond

a reasonable doubt has [a]

vital role in our criminal pro-

cedure for cogent reasons.

The accused during a criminal

prosecution has at stake

The importance of the defense of en-

trapment to an orderly and fair system of

criminal justice cannot be questioned. How-

ever, a defendant might well be completely

foreclosed from vindicating his innocence

by the improper shifting, or lowering of the

burden of proof. Such a result, because of

the very nature of the defense of entrapment

interests of immense impor-

tance, both because of the

possibility that he may lose

his liberty upon conviction

to protect the unwary innocent from con-

viction for crimes manufactured by govern-

ment officials - would not only unjustly

deprive an innocent of his liberty but

would undermine the criminal justice system.

and because of the certainty

that he would be stigmatized

by conviction....As we said

in Speiser v. Randall,

'There is always in liti-

gation a margin of error,

representing error in fact-

finding, which both parties

must take into account.

Where one party has at

stake an interest of trans-

cending value--as a criminal

defendant his liberty--

this margin of error is

reduced as to him by the

process of placing on the

other party the burden of

* * * persuading the fact-

finder at the conclusion

of the trial of his guilt

beyond a réasonable doubt.

Due process commands that

Thus, even if Ohio law did not recog-

nize entrapment as a device negating or

denying the essential elements of the crime,

this Court's view of entrapment would

compel review in this case pursuant to

the admonition in Patterson v. New York,

supra, 432 U.S. at 210, that although

state legislatures may be permitted “to

reallocate burdens of proof by labeling

as affirmative defenses at least some ele-

ments of the crimes now defined in their

statutes,” "...there are obviously con-

stitutional limits beyond which the States

may not go in this regard."

-14- | i

no man shall lose his

liberty uniess the Govern-

ment has borne the burden

of * * * convincing the

factfinder of his guilt.'

"To this end, the reasonable-

doubt standard is indispensable...."

397 U.S. at 363-364 (citations

omitted).

In this case, petitioner's convictions

were achieved only by unconstitutionally

diluting the reasonable-doubt standard on

a fact necessary to constitute the crimes

with which he was charged. Furthermore, it

cannot be said that the unjust result in

the instant case was an isolated aberration.

Trial and appellate courts are presently in

dire need of the clarification and guidance

which can be supplied only by this Court on

a question of pressing importance to the

system of criminal justice.

Therefore, petitioner respectfully urges

this Court, for all the foregoing reasons,

to grant a writ of certiorari.

Respectfully submitted,

BERNARD A. BERKMAN

Attorney for Petitioner

- 16 -

APPENDIX

APPENDIX

SUPREME COURT OF THE UNITED STATES

No. A-1009

DONALD T. EMERY,

Petitioner,

OHIO

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application

of counsel for petitioner,

IT IS ORDERED that the time for filing

a petition for writ of certiorari in the

above-entitled cause be, and the same is

hereby, extended to and including July

10, 1979.

/S8/_

Potter Stewart

Associate Justice of

the Supreme Court of

the United States

Dated this 2lst

day of May, 1979.

| - 179 -

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, )

City of Columbus ) 1979 Term

To-wit: March 2, 1979

The State of Ohio, )

Appellee, )

)

vs. No. 78-1265

Donald T. Emery, ) REHEARING

Appellant.)

It is ordered by the court that re-

hearing in this case is denied.

I, THOMAS J. STARTZMAN, Clerk of the

Supreme Court of the State of Ohio, do

hereby certify that the foregoing entry

was correctly copies from the records of

nee Court, to wit, from Journal No.

age pe

IN WITNESS WHEREOF, I have here-

unto subscribed my name and

affixed the seal of the

Supreme Court this 2nd day

of March, 1979.

THOMAS L. STARTZMAN Clerk

By /S/ Deput

air k=

- 18 -

THE SUPREME COURT OF OHIO

THE STATE OF OHIO, ) 1979 Term

City of Columbus )

To wit: January 17, 1979

State of Ohio,

Appellee, No. 78-1265

APPEAL FROM THE

COURT OF APPEALS

vs.

Donald T. Emery,

Appellant.) for Wayne County

This cause, here on appeal as of

right from the Court of Appeals for Wayne

County, was heard in the manner prescribed

by law, and, no motion to dismiss such

appeal having been filed, the Court sua

sponte dismisses the appeal for the reason

that no substantial constitutional ques-~-

tion exists herein.

It is further ordered

that a copy of this entry be certified to

the Clerk of the Court of Appeals for

Wayne County for entry.

I, Thomas L. Startzman, Clerk of the

Supreme Court of Ohio, certify that the

foregoing entry was correctly copied from

the Journal of this Court.

Witness my hand and the

seal of the Court this

2nd day of March, 1979

Thomas L. Startzman, Clerk

/S/ , Deputy

Sam F. Adkins

- 19 -

STATE OF OHIO) IN THE COURT OF

) SS: APPEALS, NINTH

WAYNE COUNTY ) JUDICIAL DISTRICT

STATE OF OHIO

Plaintiff-Appellee

C.A. No. 1553

)

)

) APPEAL FROM JUDGMENT

Vv. ) ENTERED IN THE COURT

) OF COMMON PLEAS OF

) WAYNE COUNTY, OHIO

) CASE NO. 77 CR 131

) and 77 CR 157

DONALD T. EMERY

Defendant-Appellant

DECISION AND JOURNAL ENTRY

Dated: August 23, 1978

This cause was heard May 26, 1978,

upon the record in the trial court, in-

cluding the transcript of proceedings,

and the briefs. It was argued by counsel

for the parties and submitted to the

court. We have reviewed each assignment

of error and make the following dis-

position: |

PER CURIAM

Defendant-appellant, Donald T. Emery,

appeals his jury convictions for traf-

ficking in marijuana in an amount equal

to or exceeding three times the bulk

amount in violation of R.C. 2925.03(A) (7);

and for trafficking in drugs in an amount

not exceeding three times the bulk amount

in violation of R.C. 2925.03(A) (1). We

affirm.

- 20 -

2

FACTS

The’ defendant's arrest was the result

of undercover work performed by David B.

Smith, a “Medway” enforcement group agent.

The defendant claimed he was entrapped by

Smith.

ASSIGNMENT OF ERROR I

"The judgment is against the

weight of the evidence."

The defendant says that there is no

probative evidence whether the substance

involved in case no. 77-CR-131 is a resin

preparation, for which the bulk amount is

ten grams, R.C. 2925.01(E) (3), or a resin

concentrate, for which the bulk amount is

two grams under the same statute. The

defendant was indicted for the knowing

sale of marijuana resin preparation in

an amount equal to or exceeding three

times the bulk amount as defined in R.C.

2925.01 in violation of R.C. 2925.03(A) (7).

R.C. 2925.01(E) (3) defines the bulk amount

as:

"An amount equal to or ex-

ceeding two hundred grams of

marihuana, [sic] or an amount

equal to or exceeding ten

grams of the resin contained

in marihuana, [sic] or of any

extraction or preparation of

such resin, or equal to or

exceeding two grams of such

resin in a liquid concentrate,

liquid extract, or liquid

distillate form;"

The substance sold by the defendant

weighs 23.3 grams. The B.C.I. analyst

= 2}. «

stated that the substance appeared under

visual observation to be a heavy liquid

which poured out of its container, although

some had to be scraped out of the container.

Two chemical analyses were performed on

the substance. At various points in the

analyst's testimony, the substance was

described in the following terms:

"*k*ka liguid concentrated

marijuana resin preparation***,"

"***a liguid concentrate***;

a preparation [of a cannobanoid

resin] ***; a resin preparation

and a liquid concentrate***; a

resin preparation***a concen-_

trated form***; a very con-

centrated liquid resin prepar-

ation of the plant, marijuana."

Over objection, the court charged the jury

that in order to convict, they would have

to find beyond a reasonable doubt that

"***the defendant knowingly

sold marijuana resin prepar- —

ation and that the marijuana

resin preparation was in a

liquid concentrate, liquid

extract or liquid distillate

form, ***"

Although the testimony is not as

clear as it might be, the analyst was con-

sistent in his opinion that the substance

is a liquid concentrate, and not mere

resin or resin preparation. The defendant

argues that there is no scientific basis

for this opinion. This assertion is

- 27 «

4 eer

prompted by the defendant's opinion of the

nature and reliability of the tests em-

ployed by the analyst, in which opinion

the analyst did not concur. We find that

the verdict is supported by sufficient

evidence.

In State v. McDonald, 32 Ohio App.

2d 231 (1972), we defined the circumstances

in which entrapment does or does not occur.

We find that there is sufficient evidence

to overcome defendant's claim of entrap-

ment.

ASSIGNMENT OF ERROR II

"The trial court erred in

its charge to the jury on

entrapment."

The defendant objects to the follow-

ing portion of the charge:

NeeeM

"If you find by credible evi-

dence that the defendant had

the predisposition and

criminal design to commit

the acts into which he claims

he was entrapped, and that

he was merely provided with

an opportunity to commit

those acts for which he was

both apt and willing, then

he has not been unlawfully

entrapped. ***"

The defendant says that this phraseology

permits the state to establish predis-

position by the preponderance of the evi-

dence, in violation of the principle that

- 23 «

be, a prerequisite to police participation

in entrapping techniques, with an exclu-

Sionary rule operating to exclude evidence

gathered when no probable cause is present.

This scheme would be implemented, the

defendant asserts, by prior determinations

by impartial magistrates, or by ex post

facto determinations at a hearing on a

2901.05. We further noted that the state motion to suppress, or at trial. We are

does not bear the burden of disproving | not persuaded, however, to launch this

that defense beyond a reasonable doubt. | experiment.

State v. Abner, 55 Ohio St. 2d 251 (1978). |

the state bears the burden of disproving

an affirmative defense, including entrap-

ment, beyond a reasonable doubt once the

defendant has met his burden of going

forward with the evidence. In State v.

McNamara, No. 1539 (9th Dist. Ct. App.,

August 23, 1978), we found that entrapment

is an affirmative defense under R.C.

ASSIGNMENT OF ERROR IV

The portion of the charge objected

to by the defendant is drawn almost word

for word from the third syllabus of our

decision in State v. McDonald, supra.

We adhere to that decision. We believe

the defendant has failed to consider the

portion of the charge he objects to in

the context of the charge as a whole.

An examination of the charge as a whole

shows that the trial court charged in

conformity with the guidelines set forth

in State v. Robinson, supra. See, State

v. Cook, No. 1548 (9th Dist. Ct. App.,

August 23, 1978); State v. McNamara,

supra. Further, nothing in McDonald,

supra, attempts to alter the state's

burden of proving an accused's guilt

beyond a reasonable doubt.

ASSIGNMENT OF ERROR III

"The trial court erred in

failing to suppress, and is

admitting over defendant's

objection, evidence secured

by means of entrapment."

The defendant presents a novel

argument that probable cause is, or should

a)

"The trial court erred in

failing to grant defendant's

motion to dismiss at the close

of state's evidence and in

instructing the jury with

respect to whether the sub-

stance in Case No. 77-CR-131

was a resin preparation or a

resin concentrate."

This question was considered under

the first assignment of error.

ASSIGNMENT OF ERROR V

"The trial court erred in

failing to suppress and in

admitting over defendant's

objection evidence of incrim-

inating statements of defendant."

At issue here is the discoverability

or non-discoverability of certain utter-

ances made by the defendant to Smith during

course of Smith's undercover work and

during the drug transactions. Crim. R.

16(B) (1) (a) (i), (ii) states:

- 25 -

"Disclosure of evidence by

the prosecuting attorney. (1)

Information subject to dis-

closure. (a) Statement of

defendant or co-defendant.

Upon motion of the defendant,

the court shall order the pro-

secuting attorney to permit the

defendant to inspect***copy or

photograph any of the following

which are available to, or

within the possession, custody

or control of the state, the

existence of which is known or

by the exercise of due dili-

gence may become known to the

prosecuting attorney: (i)

Relevant written or recorded

statements made by the defen-

dant or***or copies thereof;

(ii) Written summaries of any

oral statement, or copies

thereof, made by the defendant

or***to a prosecuting attorney

or any law enforcement officer;"

The defendant filed a demand for discovery

which included a request for materials en-

compassed by this rule. The prosecution's

response indicated that no such materials

were in the custody of the prosecutor's

office. The defendant thereupon filed a

motion for discovery. This motion focused

upon the alleged failure of the prosecutor

to allow the defendant access to test

results or reports prepared by a B.C.I.

analyst. At a hearing conducted on defen-

dant's motions for a bill of particulars,

suppression, and discovery, the focus of

inquiry on the discovery motion expanded

to include statements of the defendant.

It developed that the undercover agent had

- 26 <

written down conversations between he and

the defendant which took place during the

course of the investigation and during the

crimes. These conversations were recorded

as part of the "buy reports" prepared by

Smith. The prosecutor took the position

that a "statement" for purposes of Crim.

R. 16 is a narration, exculpatory or in-

culpatory, of past events. The court

found that the conversations were not

discoverable. The court indicated that

the reports would be viewed in-camera

during the trial for possible use in

impeaching the witness. Smith testified

during the course of this hearing. A

transcript of the hearing was prepared

the following day. Trial commenced some

two months later.

At trial, Smith testified to con-

versations he had with the defendant.

Defendant's motion to strike, based upon

his discovery motion, was overruled.

Smith was asked on cross-examination

whether he had reviewed his buy reports

in preparation for his appearance. Upon

Smith's affirmative response, court and

counsel retired to chambers for an in-

camera inspection of the reports. The

proceedings of that inspection were not

transcribed. The record does show, how-

ever, that defense counsel was in pos-

session of the buy report subsequent to

the in-camera inspection. We have not

been favored with the buy report(s) as

part of the record on appeal. Defense

counsel was also possessed of the trans-

cript of the pre-trial hearing. Both

items were used during the cross-

examination of Smith.

- 27 -

The defendant says that the question

at issue is whether the word "statements”,

as used in Crim. R. 16(B) (1) (a), include

utterances made contemporaneous with the

offense, as well as those made after the

offense. The state asserts that so-called

"res gestae" utterances are not encom-

passed by the term “statements” as used

in Crim. R. 16(B) (1) (a).

Prior to the adoption of the Criminal

Rules, the question whether the state

would be required to provide discovery

of the defendant's own statements rested

in the sound discretion of the trial court.

State v. White, 15 Ohio St. 2d 146, 159

(1968); State v. Corkran, 3 Ohio St. 2d

125 (1965). The language of Crim. R. 16

(B) (1) (a), however, is not qualified by

words importing discretion on the trial

court's part in deciding whether available

statements shall be provided to the defen-

dant. Unless a protective order is issued

pursuant to Crim. R. 16(E) (1), they must

be provided. See, State v. Hall, 48 Ohio

St. 2d 325 (1976); State v. Smith, 50 Ohio

App. 2d 183 (1976).

We hold that the term “statements”

as used in Crim. R. 16(B) (1) (a) include

declarations contemporaneous with an event.

In State v. Byars, No. 8543 (9th Dist. Ct.

App. December 21, 1977), we found rever-

sible error in the trial court's failure

to grant a motion for discovery of sum-

maries of the defendant's own statements

and of statements made by co-defendants.

We quote from Byars:

"The summaries in issue are

based upon statements made by

the defendants to undercover

= 28.-

police officers and are con-

tained in confidential reports

to supervisory police officials."

This interpretation is consistent with the

federal view. See, e.g., United States v.

Walker, 538 F. 2d 266, 268 (9th Cir. 1976);

United States v. James, 495 F. 2d 434, 436

(Sth Cir. 1974), cert. denied 419 U.S. 899

(1974); United States v. Bryant, 439 F.

2d 642, 649-50 (D.C. Cir. 1971); Davis v.

United States, 413 F. 2d 1226, 1231 (5th

Cir. 1969); United States v. Isa, 413 F.

2d 244, 246-249 (7th Cir. 1969). We

agree, however, with the distinction made

in United States v. Green, 548 F. 2d 1261,

1267 (6th Cir. 1977). There, the court

held undiscoverable "spontaneous, unsoli-

cited admissions, made within hearing of

an undercover police officer." These

declarations were contrasted with answers

by the defendant to direct questions pro-

pounded by a government agent.

We find that "statements" of the

defendant, or summaries thereof, were

available to the prosecutor. It is irre-

levant that they were not on tape. See,

United States v. Villa, 370 F. Supp. 515,

518-519 (D.C. D. Conn. 1974). We conclude,

therefore, that the trial court erred in

not ordering the state to produce the

statements. We add that it is irrelevant

how the reports containing such statements

or summaries thereof are denominated. If

there is concern that information not

subject to disclosure is part of the

report, the trial court has full authority

to examine the report and order privileged

material excised. See United States v.

Villa, supra, at 520.

- 29 -

The question remains whether the

error is prejudicial. Crim. R. 52(A);

See, State v. Cooper, 52 Ohio St. 2d 163,

177 (1977). We conclude that it was not.

We do not base this determination upon

the mere receipt of the buy report by the

defendant during the trial. The possi-

bility of gaining access to statements

through the mechanism of Crim. R. 16(B) (1)

(g) is no substitute for pre-trial dis-

covery mandated by Crim. R. 16(B) (1) (a).

Our determination that no prejudicial

error occurred is based upon a comparison

between Smith's testimony at the pre-trial

hearing and his trial testimony. First,

Smith's testimony at trial concerning

admissions made by the defendant on

October 8, 1977, concerning "“seven-

fourteens" and defendant's query whether

Smith was “interested in marijuana" is

not present in the hearing transcript.

We find, however, that this testimony

relates to "unsolicited admissions made

within hearing of an undercover police

officer", United States v. Green, supra

at 1267, and are not “statements” under

Crim. R. 16(B)(1) (a). At trial, Smith

testified to two statements of the defen-

dant which are not present in the

transcript of the hearing. These concern

an alleged telephone conversation between

Smith and the defendant on October 21

concerning the time they would meet and

defendant's ability to procure a quarter

ounce of cocaine and forty pounds of

marijuana. The remaining statements of

the defendant contained in Smith's trial

testimony are substantially present in

Smith's testimony at the hearing. We do

- 30 -

not believe the defendant was prejudiced

by the trial court's ruling due to the

availability to him of the pre-trial

hearing transcript. See, State v.

Broyles, 559 S.W. 2d 614 (Mo. App. 1977).

Further, there was no motion for a con-

tinuance made by the defendant during

trial. In short, we find that fundamental

fairness does not require the granting of

a new trial.

SUMMARY

We overrule all assignments of error

and affirm the judgment

The court finds that there were

reasonable grounds for this appeal.

We order that a special mandate,

directing the Wayne County Common Pleas

Court to carry this judgment into exe-

cution, shall issue out of this court.

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(E).

Costs taxed to appellant.

Exceptions.

/S/Edward J. Mahoney

Presiding Judge

- for the Court -

= 3] -

MAHONEY, P.J.

VICTOR, J.

HUNSICKER, J.

CONCUR

(Hunsicker, J., retired Judge of the Ninth

District Court of Appeals, sitting by

assignment pursuant to Article IV, §6(C),

Constitution).

APPEARANCES:

ROBERT N. GLUCK, Asst. Prosecuting Attorney,

Silver Building, Public Square, Wooster,

Ohio 44691 far Plaintiff-Appellee.

ALLEN SCHULMAN, JR., Attorney at Law,

Schulman & Figler, 636 Citizens Savings

Building, Canton, Ohio 44702 for Defendant-

Appellant.

- 32-

IN THE COMMON PLEAS COURT

OF WAYNE COUNTY, OHIO

STATE OF OHIO, )

Plaintiff,) Case No. 77-CR-131

)

vs. ) JOURNAL ENTRY

)

DONALD T. EMERY, )

Defendant.)

This cause came on for trial on the

16th, 17th and 18th day of February, 1978,

to a jury of twelve who were duly em-

paneled and sworn to well and truly try

the issues joined and a true verdict

render according to the evidence and the

law, the defendant herein having pre-

viously entered a plea of "not guilty”

to an indictment charging him with

Txafficking in Drugs in violation of

§2925.03(A) (7) of the Ohio Revised Code.

Said defendant was represented by counsel,

Attorney Allen Schulman, Jr.

After hearing the evidence, argu-

ments of counsel, and instructions of the

Court, the Jury retired to the jury room

and after due deliberation returned to

the Court room and presented their ver-

dict in proper form in writing finding

the defendant "guilty" as charged in

the within indictment.

The Court, in coming to pass sen-

tence, asked the defendant if he had

anything to say before judgment was pro-

nounced and the defendant being unable

to show cause as to why judgment should

=- 33 <-

not now be pronounced, the Court did

thereupon sentence said defendant to the

Ohio State Reformatory, Mansfield, Ohio,

for an indeterminate term of not less

than two (2) years nor more than fifteen

(15) years, with six (6) months actual

incarceration. Said sentence is to be

served concurrently with the sentence

imposed in Case No. 77-CR-157.

The Sheriff of Wayne County, Ohio,.

is hereby ordered and directed to cause

said defendant to be conveyed to the ©

Ohio State Reformatory, Mansfield, Ohio,

for the serving of said sentences and

to make dué return to this Court. It is

further ordered that said defendant pay

the costs of this action taxed at §$

/S/

Judge of the Common

Pleas Court

APPROVED:

[S/

Assistant Prosecuting

Attorney

7 oe

2 BPS

IN THE COMMON PLEAS COURT

OF WAYNE COUNTY, OHIO

STATE OF OHIO,

Plaintiff, Case No. 77-CR-157

JOURNAL ENTRY

)

)

)

vs. )

)

DONALT T. EMERY, )

Defendant. )

This cause came on for trial on the

16th, 17th and 18th day of February,

1978, to a jury of twelve who were duly

empaneled and sworn to well and truly

try the issues joined and a true verdict

render according to the evidence and the

law, the defendant herein having pre-

viously entered a plea of "not guilty"

to an indictment charging him with

Trafficking in Drugs in violation of

§2925.03(A) (1) of the Ohio Revised Code.

Said defendant was represented by counsel,

Attorney Allen Schulman, Jr.

After hearing the evidence, argu-

ments of counsel, and instructions of

the Court, the Jury retired to the jury

room and after due deliberation returned

to the Court room and presneted their

verdict in proper form in writing finding

the defendant "guilty" as charged in the

within indictment.

The Court, in coming to pass sentence,

asked the defendant if he had anything

to say before judgment was pronounced and

the defendant being unable to show cause

as to why judgment should not now be

pronounced, the Court did thereupon

ae

sentence said defendant to the Ohio State

Reformatory, Mansfield, Ohio, for an

indeterminate term of not less than two

(2) years nor’more than ten (10) years,

said sentence to be served concurrently

with the sentence imposed in Case No.

77-CR-131.

The Sheriff of Wayne County, Ohio,

is hereby ordered and directed to cause

said defendant to be conveyed to the Ohio

State Reformatory, Mansfield, Ohio, for

the serving of said sentences and to make

due return to this Court. It is further

ordered that said defendant pay the costs

of this action taxed at §$ >

/8/

Judge of the Common

Pleas Court

APPROVED:

£S/

Assistant Prosecuting

Attorney

- 36 -

PROPOSITIONS OF LAW PRESENTED IN

MEMORANDUM IN SUPPORT OF JURISDICTION

TO THE SUPREME COURT OF OHIO

Proposition of Law No. I:

THE TRIAL COURT ERRED IN ITS CHARGE

TO THE JURY ON THE DEFENSE OF ENTRAP-

MENT, BY INSTRUCTING THE JURY THAT

THE STATE COULD OVERCOME THE DEFENSE

OF ENTRAPMENT BY "CREDIBLE EVIDENCE".

- 37 -

I.

II.

III.

IV.

ASSIGNMENTS OF ERROR

TO OHIO COURT OF APPEALS,

NINTH APPELLATE DISTRICT

The judgment is against the weight

of the evidence.

The trial court erred in its charge

to the jury on entrapment.

The trial court erred in failing

to suppress, and in admitting over

defendant's objection, evidence

secured by means of entrapment.

The trial court erred in failing to

grant defendant's motion to dismiss

at the close of state's evidence

and in instructing the jury with

respect to whether the substance

in Case No. 77-CR-131l was a resin

preparation or a resin concentrate.

The trial court erred in failing to

suppress and in admitting over defen-

dant's objection evidence of in-

criminating statements of defendant.

= 38 -

CONSTITUTION OF THE UNITED STATES

FOURTEENTH AMENDMENT

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and the State

wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

~ 39 «

——

“ —_ -

OHIO REVISED CODE

§2925.03 Trafficking in drugs.

(A) No person shall knowingly do

any of the following:

(1) Sell or offer to sell a

controlled substance in an amount less than

the minimum bulk amount as defined in

section 2925.01 of the Revised Code;

(2) Prepare for shipment, ship,

transport, deliver, prepare for distribu-

tion or distribute a controlled substance,

when the offender knows or has reasonable

cause to believe such drug is intended for

sale or resale by the offender or another;

(3) Cultivate, manufacture, or

otherwise engage in any part of the produc-

tion of a controlled substance;

(4) Possess a controlled sub-

stance in an amount equal to or exceeding

the bulk amount but in an amount less than

three times that amount;

(5) Sell or offer to sell a

controlled substance in an amount equal to

or exceeding the bulk amount but in an

amount less than three times that amount;

(6) Possess a controlled sub-

stance in an amount equal to or exceeding

three times the bulk amount;

(7) Sell or offer to sell a

controlled substance in an amount equal

to or exceeding three times the bulk

amount;

§2925.03 cont'd.

(8) Provide money or other

items of value to another person with the

purpose that the recipient of the money or

items of value would use them to obtain

controlled substances for the purpose of

selling or offering to sell such controlled

substances in amounts exceeding a bulk

amount or for the purpose of violating

division (A) (3) of this section.

(B) This section does not apply to

manufacturers, practioners, pharmacists,

owners of pharmacies, and other persons

whose conduct is in accordance with Chap-

ters 3719., 4715., 4729., 4731., and 4741.

of the Revised Code.

(C) If the drug involved is any com-

pound, mixture, preparation, or substance

included in schedule I with the exception

of marihuana or in schedule II, whoever

violates this section is guilty of aggra-

vated trafficking.

(1) Where the offender has

violated division (A)(1) of this section,

aggravated trafficking is a felony of the

third degree, and if the offender has

previously been convicted of a felony drug

abuse offense, aggravated trafficking is a

felony of the second degree.

(2) Where the offender has

violated division (A) (2) of this section,

aggravated trafficking is a felony of the

third degree, and if the offender has

previously been convicted of a felony drug

abuse offense, aggravated trafficking is

a felony of the second degree.

(3) Where the offender has

violated division (A) (3) of this section,

aggravated trafficking is a felony of the

second degree and the court shall impose

§2925.03 cont'd.

a sentence of actual iricarceration of three

years and if the offender has previously

been convicted of a felony drug abuse

offense, aggravated trafficking is a felony

of the first degree and the court shall

impose a sentence of actual incarceration

of five years.

(4) Where the offender has

violated division (A) (4) of this section,

aggravated trafficking is a felony of the

third degree and the court shall impose a

sentence of actual incarceration of eighteen

months and if the offender has previously

been convicted of a felony drug abuse of-

fense, aggravated trafficking is a felony

of the second degree and the court shall

impose a sentence of actual incarceration

of three years.

(5) Where the offender has

violated division (A) (5) or (A) (6) of this

section, aggravated trafficking is a felony

of the second degree and the court shall

impose a sentence of actual incarceration

of three years and if the offender has pre-

viously been convicted of a felony drug

abuse offense, aggravated trafficking is a

felony of the first degree, and the court

shall impose a sentence of actual incar-

ceration of five years.

(6) Where the offender has

violated division (A) (7) of this section,

aggravated trafficking is a felony of the

first degree and the court shall impose a

sentence of actual incarceration of five

years and if the offender has previously

been convicted of a felony drug abuse

offense, the court shall impose a sentence

of actual incarceration of at least seven

years.

- 42 -

§2925.03 cont'd.

(7) Where the offender has

violated division (A) (8) of this section,

aggravated trafficking is a felony of the

first degree and the court shall impose a

sentence of actual incarceration of seven

years and if the offender has previously

been convicted of a felony drug abuse

offense, the court shall impose a sentence

of actual incarceration of ten years.

(D) If the drug involved is any

compound, mixture, preparation, or substance

included in schedule III, IV, or V, whoever

violates this section is guilty of traffick-

ing drugs.

(1) Where the offender has vio-

lated division (A) (1) or (A) (2) of this

section, trafficking in drugs is a felony

of the fourth degree and if the offender

has previously been convicted of a drug

abuse offense, trafficking in drugs is a

felony of the third degree.

(2) Where the offender has

violated division (A) (3) of this section,

trafficking in drugs is a felony of the

third degree and the court shall impose a

sentence of actual incarceration of one

year and if the offender has previously

been convicted of a felony drug abuse

offense, trafficking in drugs is a felony

of the second degree and the court shall

impose a sentence of actual incarceration

of two years.

(3) Where the offender has vio-

lated division (A) (4) of this section,

trafficking in drugs is a felony of the

fourth degree and the court shall impose

a sentence of actual incarceration of six

months and if the offender has previously

been convicted of a felony drug abuse

- 43 -

§2925.03 cont'd.

offense, trafficking in drugs is a felony

of the third degree and the court shall

impose a sentence of actual incarceration

of eighteen months.

(4) Where the offender has

violated division (A) (5) of this section,

trafficking in drugs is a felony of the

third degree and the court shall impose

a sentence of actual incarceration of one

year and if the offender has previously been

convicted of a felony drug abuse offense,

trafficking in drugs is a felony of the

second degree and the court shall impose

a sentence of actual incarceration of two

years.

(5) Where the offender has

violated division (A) (6) of this section,

trafficking in drugs is a felony of the

third degree and the court shall impose a

sentence of actual incarceration of eighteen

months and if the offender has previously

been convicted of a felony drug abuse offense,

trafficking in drugs is a felony of the

second degree and the court shall impose

a sentence of actual incarceration of three

years.

. (6) Where the offender has

violated division (A)(7) of this section,

trafficking in drugs is a felony of the

second degree and the court shall impose a

sentence of actual incarceration of two

years and if the offender has previously

been convicted of a felony drug abuse of-

fense, trafficking in drugs is a felony of

the first degree and the court shall impose

a sentence of actual incarceration of four

years.

(7) Where the offender has

violated division (A) (8) of this section,

trafficking in drugs is a felony of the

§2925.03 cont'd.

first degree and the court shall impose

a sentence of actual incarceration of five

years and if the offender has previously

been convicted of a felony drug abuse

offense, the court shall impose a sentence

of actual incarceration of seven years.

(E) If the drug involved is marihuana,

whoever violates this section is guilty of

trafficking in marihuana.

(1) Where the offender has

violated division (A)(l), (A) (2), (A) (3),

or (A) (4) of this section, trafficking in

marihuana is a felony of the fourth degree

and if the offender has previously been

convicted of a felony drug abuse offense,

trafficking in marihuana is a felony of

the third degree.

(2° Where the offender has

violated division (A) (5) or (A) (6) of this

section, trafficking in marihuana is a

felony of the t:hird degree and if the

offender has previously been convicted of

a felony drug abuse offense, trafficking in

marihuana is a felony of the second degree.

(3) Where the offender has

violated division (A) (7) of this section,

trafficking in marihuana is a felony of

the second degree and the court shall im-

pose a sentence of actual incarceration of

six months and if the offender has pre-

viously been convicted of a felony drug

abuse offense, the court shall impose a

sentence of actual incarceration of one

year.

(4) Where the offender has

violated division (A) (8) of this section,

trafficking in marihuana is a felony of the

second degree and the court shall impose

a sentence of actual incarceration of one

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§2925.03 cont'd.

year, and if the offender has previously

been convicted of a felony drug abuse

offense, the court shall impose a sentence

of actual incarceration of two years.

(5) If the offense involves a

gift of twenty grams or less of marihuana,

trafficking in marihuana is a minor mis-

demeanor for the first offense and a mis-

demeanor of the third degree for any

subsequent offense.

(F) It shall be an affirmative

defense, as provided in section 2901.05 of

the Revised Code, to a charge under this

section for possessing a bulk amount of a

controlled substance or for cultivating mar-

ihuana that the substance which gave rise

to the charge is in such amount, in such

torm, or is prepared, compounded, or mixed

with substances which are not controlled

substances in such a manner, or is possessed

or cultivated in any other circumstances

whatsoever as to indicate that the substnace

was solely for personal use.

(G) When a person is charged with

possessing 4 bulk amount or a multiple

thereof, the jury, or the court trying

the accused shall determine the amount of

the controlled substance involved at the

time of the offense, and if a guilty ver-

dict is returned shall return the findings

as part of the verdict. In any such case,

it is unnecessary to find and return the

exact amount of the controlled substance

and it is sufficient if the finding and

return is to the effect that the amount of

the controlled substance involved is a bulk

amount or the requisite multiple thereof,

or that the amount of the controlled sub-

stance involved is less than a bulk amount

or the requisite multiple thereof.

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