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Court Upholds Felony Cocaine Conviction Despite Absence of Drug Name, Degree of Offense on Jury Verdict Form

Listing of Drug, Degree of Offense in Indictment, Evidence, Jury Instructions Held Sufficient

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2011-0599.  State v. Eafford, Slip Opinion No. 2012-Ohio-2224.
Cuyahoga App. No. 94718, 2011-Ohio-927.  Judgment reversed and sentence reinstated.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2224.pdf

Video clip View oral argument video of this case.

(May 22, 2012) The Supreme Court of Ohio today reinstated the felony conviction of a Cleveland man whose offense and sentence for possession of cocaine had been reduced to a misdemeanor on appeal because the verdict form completed by the jury in his case did not identify the drug he was charged with possessing or the degree of the charged offense.

In a 5-2 decision authored by Justice Terrence O’Donnell, the court held that because the grand jury indictment under which the defendant, Donald Eafford, was charged identified his offense as possession of cocaine, a fifth-degree felony; and because the trial evidence and arguments presented by the state and the court’s instructions to the jury all clearly alleged that the drug he possessed was cocaine, the trial court did not commit plain error in convicting and sentencing Eafford for a fifth-degree felony count of cocaine possession notwithstanding the defects in the jury verdict form.

Eafford was arrested by Cleveland police officers who executed a search warrant at a residence on Rexford Avenue after an informant had purchased a controlled substance there. Upon entering the house, officers found several people with crack cocaine and drug paraphernalia in plain sight and found Eafford, whose name was on the lease for the house, upstairs.  A subsequent search revealed drug paraphernalia in Eafford’s bedside table and a glass and rubber pipe with cocaine residue in his bathroom medicine cabinet.

A grand jury indicted Eafford on charges of permitting drug abuse in violation of R.C. 2925.13(B) (Count One); possession of “cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount of less than 5 grams” in violation of R.C. 2925.11(A) (Count Two); and possession of criminal tools (Count Three).

The matter proceeded to a jury trial, at which the state presented testimony by a police forensic examiner that she had conducted scientific testing of the material contained in the glass and rubber pipe and found that it “was positive for cocaine.” At the close of the state’s case in chief, the trial court directed a verdict of acquittal on the charge of possession of criminal tools. The defense rested without presenting any evidence. 

The jury returned guilty verdicts on Counts One and Two. The court sentenced Eafford under state sentencing guidelines for a fifth-degree felony to an eight-month term of incarceration for possession of cocaine, to be served concurrently with a second eight-month term for permitting drug abuse.
Eafford appealed.  On review, the Eighth District Court of Appeals vacated his felony conviction on Count Two and ordered the trial court to resentence him for a misdemeanor count of drug possession.
The court of appeals based its ruling on a finding that “[T]he verdict form [for Count Two] does not include a statement indicating either the degree of the offense charged or that an aggravating circumstance existed to justify a conviction on the greater offense, specifically that the drug involved was cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount less than five grams. ... As this case stands, without a statement of the degree of the offense for which he was convicted, or a statement of the aggravating element demonstrating that defendant was convicted of a greater degree of the offense, he stands convicted of only a misdemeanor.”

The state sought and was granted Supreme Court review of the Eighth District’s ruling vacating Eafford’s felony conviction on Count Two.

Writing for the majority in today’s decision, Justice O’Donnell began by noting that because Eafford did not object to the jury verdict form at trial, he forfeited the right to seek reversal of his felony conviction based on that defect unless it constituted “plain error,” that is, an obvious error that affected a substantial right in a way that affected the outcome of his trial.

Analyzing the action of the trial court under a plain error standard, Justice O’Donnell wrote: “R.C. 2925.11(A) states, ‘No person shall knowingly obtain, possess, or use a controlled substance,’ and the statute establishes separate offenses based on the identity of the controlled substance involved. ... R.C. 2925.11(C)(4) defines the separate offense of ‘possession of cocaine’: ‘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.’”

“Count Two of the indictment alleged that Eafford possessed cocaine, expert testimony confirmed the substance at issue tested positive for cocaine, and throughout the trial the parties and the court treated the phrase ‘possession of drugs’ as synonymous with possession of cocaine. Further, in its jury instructions − a copy of which the court submitted to jurors who had it in the deliberating room during deliberations − the trial court explained to the jury that it could not find Eafford guilty of possession of drugs as charged in Count Two unless it found the drug involved to be cocaine or a compound, mixture, preparation, or substance containing cocaine.  And, as we observed in State v. Johnson (1994), ‘[j]uries are presumed to follow the court's instructions.’   Thus, when the jury found Eafford guilty as charged in Count Two of the indictment, its finding necessarily related to possession of cocaine.”

“Eafford therefore failed to demonstrate that the trial court committed plain error in these circumstances. The verdict form used the phrase ‘possession of drugs’ but did not ask jurors to specify whether the drug involved in this case was or was not cocaine. The jurors found Eafford ‘guilty of Possession of Drugs in violation of §2925.11(A) of the Ohio Revised Code, as charged in Count Two of the indictment.’ The finding in the verdict cannot be described as error, let alone an obvious defect in the trial proceedings, and it did not affect Eafford’s substantial rights. He knew from the outset that the state intended to prove his guilt of possession of cocaine.  And it did.  The form of the jury verdict did not affect the outcome of the trial. The state intended to prove the accused guilty of possession of cocaine, it did so, and the jury in accordance with its findings rendered a verdict in conformity with the evidence presented by the state that Eafford possessed cocaine.” 

“Eafford has not shown that but for the use of this verdict form, the outcome of the trial would have been different. Had he made a timely objection, the court could have modified the verdict form, but Eafford still would have been found guilty of possession of cocaine, because the only evidence in the case demonstrated his possession of cocaine, as he did not offer any defense in this case.  Accordingly, we reverse the judgment of the court of appeals and reinstate the sentence imposed by the trial court.”

Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Robert R. Cupp and Yvette McGee Brown.

Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view the court should have dismissed the state’s appeal as improvidently accepted, and asserting that the majority’s decision reversing the Eight District violated Eafford’s Sixth Amendment right to trial by jury.

“The United States Supreme Court has clearly held that a court may not usurp the fact-finding of a jury through judicial findings,” wrote Justice Lanzinger. “Yet by holding that a verdict form can be modified by the indictment, the evidence at trial, the argument of counsel, and the jury instructions, the majority allows a judge to supplant the language of the jury verdict and the jury’s findings. The problem in this case is that the verdict form contains neither the degree of the offense nor the fact that the controlled substance is cocaine. ... The court of appeals appropriately held that the missing facts could not be supplied by the indictment nor cured by the trial court’s instructions. When  the trial judge ignored the verdict form reflecting misdemeanor possession of drugs and sentenced Eafford for felony possession of cocaine, the court substituted its own findings for that of the jury.”

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutors' office.

David M. King, 216.443.3667, for Donald Eafford.