State v. Pendleton

Citations

• 2018 Ohio 3199

Syllabus

Defendant-appellant's indictment for aggravated trafficking in a Schedule II drug as a second degree felony and aggravated possession of a Schedule II drug as a second degree felony, with neither indictment generating an objection before trial, validly charged Defendant-appellant with trafficking in a Schedule II controlled substance and possession of a Schedule II controlled substance based upon the fentanyl contained within the mixtures of controlled substances found at Defendant-appellant's home. The State presented sufficient evidence of the amount of fentanyl involved to support Defendant-appellant's convictions for aggravated trafficking in a Schedule II drug as a second degree felony and aggravated possession of a Schedule II drug as a second degree felony. The trial court correctly concluded that the heroin trafficking and the heroin possession counts and the aggravated trafficking (fentanyl) and the aggravated possession (fentanyl) counts did not merge into one offense as allied offenses of similar import. Defendant-appellant's convictions are not against the manifest weight of the evidence. The trial court's jury instructions did not include an instruction regarding excluded fingerprint evidence nor a formal bulk amount instruction. Neither omission generated an objection, and, on this record, we cannot conclude that the trial's outcome would have been different if the instructions had been given. Based upon the same reasoning, we cannot conclude that trial counsel provided ineffective assistance of counsel by not objecting to the omission of these instructions. Finally, the trial court, as to the offense of having a weapon under disability, erroneously concluded that the State had the burden to prove that the Defendant had not been relieved from disability. Relief from a weapon possession disability is an affirmative defense with the defendant having the burden of proof by a preponderance of the evidence however, double jeopardy prohibits a retrial of thi