Drug Trafficking Indictment Is Valid Without Naming Specific Drug If It Identifies Statutory Schedule In Which Drug Appears
The Supreme Court of Ohio held today that for the purpose of identifying the drug involved in a drug trafficking offense under Ohio law, an indictment is sufficient to inform the defendant of the crime with which he is charged if the indictment names the statutory schedule in which the drug appears.
The court’s 6-1 decision, written by Justice Evelyn Lundberg Stratton, reversed a ruling of the Ninth District Court of Appeals.
The case involved Alfred Jackson of Lorain County, who was charged in a grand jury indictment with five criminal counts, including two counts of trafficking in drugs pursuant to R.C. 2925.01(A)(1) and (A)(2), both third degree felonies. Both drug trafficking counts in the indictment stated that “the drug involved in the violation is a compound, mixture, preparation or substance included in Schedule I or II” [lists controlled substances set forth in R.C. 2925.03(C)(1)].
Jackson filed a motion to dismiss the indictment, alleging that it did not sufficiently charge the two trafficking offenses because neither charge named the specific controlled substance he was accused of trafficking. The court denied the motion to dismiss. Jackson subsequently entered pleas of no contest to all five counts in the Indictment. He was found guilty on all counts and sentenced to one year in prison for each count, with all five sentences to run concurrently (at the same time).
Jackson appealed, arguing that the trial court erred in not dismissing the first two counts of the indictment. In a 2-1 decision, the Ninth District Court of Appeals, relying on the Supreme Court of Ohio’s 1983 decision in State v. Headley, reversed Jackson’s convictions on the two trafficking counts, holding that the indictment was insufficient because it stated that the drug involved was a “schedule I or schedule II [drug],” instead of naming the specific drug involved. The state sought and was granted Supreme Court review of the Ninth District’s ruling.
In today’s decision the court reversed the Ninth District and reinstated Jackson’s trafficking convictions. Justice Stratton wrote: “R.C. 2925.03 sets forth the criminal offense of trafficking in drugs. It prohibits persons from selling or offering to sell controlled substances The version of R.C. 2925.03(C) in effect at the time that Jackson committed his trafficking offense set forth the degree if the offense and the penalty, depending on which subsection of (C) the drug involved falls under : (1) Schedule I or Schedule II drugs, (2) Schedule III, IV, or V drugs, (3) marihuana, (4) cocaine, (5) L.S.D., (6) heroine, and (7) hashish “The schedules referred to in R.C. 2925.03(C)(1) and (2) are lists of controlled substances. See R.C. 3719.41. There are five schedules of drugs.”
“‘Generally, the requirements of an indictment may be met by reciting the language of the criminal statute.’ ... A defendant may seek ‘specificity of detail’ relating to criminal charges though a request for a bill of particulars. ... For example, the specific type of drug involved in a trafficking offense may be addressed in a request for a bill of particulars.”
“In the instant case, the language of the indictment tracked the language of the trafficking-in-drugs statute, R.C. 2925.03(C)(1), by alleging, ‘The drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I or II ... ’ Nevertheless, the court of appeals, relying on State v. Headley, 6 Ohio St.3d 475, 453 N.E.2d 716, held that the indictment needed to name the specific type of controlled substance involved.
Justice Stratton explained that in Headley the court addressed a case in which the statute distinguished between the offenses of trafficking and aggravated trafficking based on the type of drug involved, but the indictment failed to identify which type of drug the defendant was charged with selling. Absent that information, the court held that the indictment did not sufficiently set forth an essential element of the offense the state must prove.
She went on to note, however, that the Headley decision gave two examples of indictment language that would be sufficient to properly charge a trafficking offense, and in both examples indicated that identifying “the schedule of the drug involved was sufficient to put the defendant on notice of the severity of the offense, i.e. whether the defendant was charged with trafficking or aggravated trafficking.”
Justice Stratton wrote: “R.C. 2925.03 has been amended numerous times since Headley was decided. However, the current version of R.C. 2925.03 still provides that trafficking in a Schedule I or Schedule II drug is aggravated trafficking, R.C. 2925.03(C)(1), and trafficking in a Schedule III, IV, or V drug is trafficking, R.C. 2925.03(C)(2). ... Thus, ‘the Schedule ... classification of a controlled substance determines the severity of the offense as much as the specific name of the substance.’
“It is evident that under R.C. 2925.03(C)(1) and (2) that the General Assembly intended that the schedules of drugs set forth in R.C. 3719.41, not the specific drug itself, is an essential element of trafficking. ... Therefore, we hold that, for the purpose of identifying the drug involved in a drug trafficking offense under R.C. 2925.03(A), an indictment is sufficient if it names the schedule in which the drug appears. The specific drug or drugs alleged to be involved in a drug trafficking offense may be discovered by a defendant through a request for a bill of particulars.”
Justice Stratton’s opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer dissented without opinion, stating that he would affirm the decision of the court of appeals.
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2011-1925. State v. Jackson, Slip Opinion No. 2012-Ohio-5561.
Lorain App. No. 10CA009791, 2011-Ohio-4998. Judgment reversed and convictions reinstated.
O’Connor, C.J., and Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., dissents and would affirm the judgment of the court of appeals.
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