In re A.P.

163 N.E.3d 116

2020 Ohio 5423

IN RE: A.P.

NOS. C-190551

C-190552

C-190553

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: November 25, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio.

Raymond T. Faller, Hamilton County Public Defender, Jessca Moss, Assistant Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for Defendant-Appellant A.P.

OPINION.

Crouse, Judge.

{¶1} Defendant-appellant A.P. was adjudicated delinquent for acts which, had they been committed by an adult, would have constituted trafficking in a counterfeit controlled substance in violation of R.C. 2925.37(B), possession of a counterfeit controlled substance in violation of R.C. 2925.37(A), and possession of drug paraphernalia in violation of R.C. 2925.14. He has appealed, arguing in three assignments of error that (1) he was denied the right to due process under the United States Constitution and the Ohio Constitution because R.C. 2925.37(B) is unconstitutionally vague and results in the arbitrary and discriminatory enforcement of the law; (2) his adjudication was based upon insufficient evidence; and (3) his adjudication was against the manifest weight of the evidence.

{¶2} For the reasons discussed below, we overrule all three assignments of error and affirm the judgments of the trial court.

Factual Background

{¶3} Officer Emily Ward was the only witness to testify at trial. Ward and her partner were flagged down by an individual who thought a property that he owned had been broken into. A.P. lived at the property. The officers determined that A.P. had broken a window because he had forgotten his key, and that no burglary had occurred. During their investigation, the officers discovered that A.P. had a warrant for domestic violence. They arrested A.P. and searched him. The search revealed a digital scale and two baggies containing white powdery substances.

{¶4} Ward testified that the substances were wrapped up "real well" in plastic. She described the baggies as "double-bagged," where the inside bag is "twisted" and "tied off." She testified that the way the substances were packaged was consistent with how she typically has found drugs to be packaged. While examining the first baggie at trial, she testified, "This is probably hardened a little bit since it's been a whole year, and it was moist and kind of a little bit wet on there." She described the substance as looking like "crack cocaine where it's got that like brownish burnt mixture to it almost. It's not like a white fresh powder or heroin, like a grayish powder, but it did look like crack cocaine with the tint of color it has in there and kind of like messy, dirty look."

{¶5} Regarding the second baggie, Ward testified that it also contained a white substance, and she assumed that it was a "crack-type mixture." Ward determined that both baggies were made to look like crack cocaine because of how they were wrapped up and "manipulated" by A.P. {¶6} At trial, the state played a video recording of Ward's body camera. In the video, A.P. told the officers that the substances were crushed up pills mixed with grease or oil and that he made the substances because he was "bored."

{¶7} The magistrate adjudicated A.P. delinquent for trafficking in a counterfeit controlled substance, possession of a counterfeit controlled substance, and possession of drug paraphernalia. A.P. filed objections to the magistrate's decision. At the objection hearing, the juvenile court overruled A.P.’s objections, but expressed doubts as to the constitutionality of R.C. 2925.37 :

I'm going to affirm the trafficking charge and invite you to appeal it because I think this is an issue that needs to be settled in the First District, because I think the wording of that statute is perhaps too broad for a fact finder to really come to the conclusion that someone made a substance for the purpose of trafficking.

* * *

I would like to have the First District review that and determine whether or not that particular law is too vague when it uses the word ‘made’ as it relates to trafficking.

Sufficiency of the Evidence

{¶8} For ease of discussion, we address A.P.’s assignments of error out of order. In his second assignment of error, A.P. contends that his adjudications were based upon insufficient evidence.

{¶9} The standard of review when determining whether a juvenile defendant's adjudication was based upon sufficient evidence is the same as the standard used in adult criminal cases. In re D.C., 2019-Ohio-4860, 149 N.E.3d 989, ¶ 6 (1st Dist.). "We must determine ‘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.’ " Id. at ¶ 6, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E. 2d 492 (1991), paragraph two of the syllabus.

{¶10} A.P. was adjudicated delinquent for violating R.C. 2925.37(B), which provides, "No person shall knowingly make, sell, offer to sell, or deliver any substance that the person knows is a counterfeit controlled substance." "Counterfeit controlled substance" includes "[a]ny substance other than a controlled substance that a reasonable person would believe to be a controlled substance because of its similarity in shape, size, and color, or its markings, labeling, packaging, distribution, or the price for which it is sold or offered for sale." R.C. 2925.01(O)(4).

{¶11} A.P. claims that he did not knowingly make a counterfeit controlled substance. "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature." R.C. 2901.22(B).

{¶12} In the body camera video, A.P. admitted to the officers that he made the substances by crushing up pills and mixing them with oil or grease. Ward testified that the substances appeared to be controlled substances of some kind, perhaps crack cocaine, and described the appearance of the substances. Furthermore, Ward testified that the substances were packaged in plastic baggies consistent with how drugs are packaged for sale, and a digital scale was recovered from A.P.’s person, which is also indicative of drug trafficking. The state presented sufficient evidence that A.P. knowingly made counterfeit controlled substances.

{¶13} Next, R.C. 2925.37(A) provides, "No person shall knowingly possess any counterfeit controlled substance." A.P. argues that the state presented no evidence that he knew the substances resembled a controlled substance. Ward's testimony, the body camera video, and the substances themselves (which were admitted as exhibits) provided sufficient evidence that the substances fell under the R.C. 2925.01(O)(4) definition of counterfeit controlled substances.

{¶14} Finally, A.P. was adjudicated delinquent for possessing drug paraphernalia in violation of R.C. 2925.14(A)(6), which states that "drug paraphernalia" includes "a scale or balance for weighing or measuring a controlled substance."

(B) In determining if any equipment, product, or material is drug paraphernalia, a court or law enforcement officer shall consider, in addition to other relevant factors, the following:

* * *

(2) the proximity in time or space of the equipment, product, or material, or of the act relating to the equipment, product, or material, to a violation of any provision of this chapter.

R.C. 2925.14(B)(2).

{¶15} The scale was found on A.P.’s person along with two counterfeit controlled substances. His adjudication for possession of drug paraphernalia was based upon sufficient evidence.

{¶16} The first assignment of error is overruled.

Manifest Weight of the Evidence

{¶17} In his third assignment of error, A.P. contends that his adjudications were against the manifest weight of the evidence because (1) the substances are not controlled substances and he never tried to sell the substances, (2) Ward's inexperience and contradictory testimony made her testimony untrustworthy, and (3) the juvenile court found that R.C. 2925.37 was unconstitutionally vague.

{¶18} "The standard of review when determining whether a juvenile court's adjudication of delinquency was against the manifest weight of the evidence is the same as that in an adult criminal case." In re D.C., 2019-Ohio-4860, 149 N.E.3d 989, at ¶ 11. The appellate court must:

[R]eview the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the adjudication must be reversed and a new trial ordered.

Id. Reversal on manifest-weight-of-the-evidence grounds is reserved for "the exceptional cases in which the evidence weighs heavily against conviction." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶19} A.P. states that the substances tested negative for common controlled substances and that he never tried to sell the substances. Both of those facts are irrelevant. None of the charges required the state to prove that the substances were controlled substances. The statute only requires the state to prove that the shape, size, and color of the substances would lead a reasonable person to believe that they were controlled substances. Also, the state was not required to prove that A.P. attempted to sell the substances. See R.C. 2925.37(B) ("No person shall knowingly make, sell, offer to sell, or deliver"). (Emphasis added.)

{¶20} Regarding Ward's qualifications, she testified that she went through an eight-month training period where she was in contact with many different types of drugs and observed them in different forms. Also, although she had only...