
    The STATE of Ohio v. ALLEN
    
    Court of Common Pleas of Ohio, Montgomery County.
    No. 99-CR-0243.
    Decided Sept. 30, 1999.
    
      
      Mathias H. Heck, Jr., Montgomery County, Prosecuting Attorney, and Sandra Hobson, Assistant Prosecuting Attorney, for the state.
    
      Jonathan Freeman, for the defendant.
    
      
      Reporters note: No appeal has been taken from the judgment of the court.
    
   JEFFREY E. Froelich, Judge.

A uniformed Dayton Police Officer noticed the defendant, Michael L. Allen, and a companion standing behind a utility building on the grounds of Parkside Homes, a Dayton Metropolitan Housing Authority (“DMHA”) public housing project. As the officer rode his bike closer, he observed the defendant holding an open container of what the officer believed from his experience to be a 40-ounce container of beer.

Such activity by the defendant was in apparent violation of Dayton Revised Code of General Ordinances 90.141, a minor misdemeanor. The officer approached the defendant because of the beer, the location, the time of day (darkness), and the posted prohibition against loitering or trespassing on DMHA property. The officer testified that he observed no activity by the defendant or the defendant’s companion that was consistent with any other criminal or suspicious behavior, specifically, nothing indicating that either party was smoking or using drugs.

The defendant and his companion said that they were waiting for a bus, although the bus stop was across the street and could not be seen from the location where they were standing.

The defendant freely gave his name and date of birth so the officer could check for warrants and to see if the defendant was on the trespass list. A computer check indicated a warrant for a parole violation, which the defendant did not anticipate because he said he had recently talked with his parole officer. The defendant was then arrested and transported downtown. Upon being booked into the jail, a Corrections Officer found a one-and-one-half inch crack pipe in the defendant’s sock, which was then turned back over to the Dayton officer.

The officer scraped out a very small amount of a film on the inside of the pipe and it field tested positive for cocaine. The crime lab chemist testified that the residue could not be weighed because of the minute quantity available either through scraping or with a methyl alcohol rinse and that it was not possible to determine when the residue was deposited in the pipe or when the pipe was last used. Further, although in one part of her testimony she opined that the substance was crack cocaine, she subsequently stated that “crack and powder would look identical” on the tests that she had run.

The defendant is charged by indictment that he “knowingly possessed a controlled substance, to-wit: Crack Cocaine, or a compound, mixture, preparation or substance containing Crack Cocaine; contrary to Section 2925.11(A) o[f] the Ohio Revised Code.” R.C. 2925.11(A) requires that the defendant “knowingly possess” a controlled substance. The prosecutor argues that the quantity of the controlled substance is not a factor in determining whether a defendant may lawfully „be convicted of drug abuse in violation of R.C. 2925.11(A). State v. Teamer (1998), 82 Ohio St.3d 490, 696 N.E.2d 1049, syllabus.

R.C. 2901.21(C)(1) states that “ ‘[possession’ is a voluntary act if the possessor * * * was aware of his control” of the drug. Further, R.C. 2925.01(K) provides that “ ‘possession’ means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance.”

Additionally, “[a] person has knowledge of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B). Since it is impossible to look into the mind of the defendant, whether or not he had knowledge that he was possessing crack cocaine must be determined from all the facts and circumstances in evidence. Teamer, 82 Ohio St.3d at 492, 696 N.E.2d at 1051, citing 4 Ohio Jury Instructions (1997), Section 409.11(3). “Proof of intention is elusive and can only be shown by objective facts and circumstances.” State v. Lott (1990), 51 Ohio St.3d 160, 169, 555 N.E.2d 293, 303.

The quantity and the form in which that quantity manifests itself may be one of the many factors considered in determining whether the defendant “knowingly possessed” the drug.

The court has no doubt that the defendant knowingly possessed the crack pipe. The state argues that its location in his sock, his hesitancy to give it up at the jail, and the fact that the residue was observable to both the officer and the chemist is proof that he “knowingly possessed” the drug.

The hiding is equally, consistent with the defendant’s concern that he be found in possession of paraphernalia in violation of R.C. 2925.14 (especially since he is on parole). The facts — that the pipe was in his sock and that the officer saw no ■ indication that he was smoking or using drugs or any movements suggestive of putting something in his sock — are not consistent with recent usage or, for that matter, any usage. It is just as possible that he had it for some time, that it was given to him by his companion before the officer spotted them, or that he found it lying on the grounds of the public housing project. The police officer’s or, for that matter, the court’s visceral feeling for what was probably happening or had happened is irrelevant.

Finding that mere possession of a crack pipe and residue without additional, sufficient facts and circumstances automatically constitutes proof that a defendant “knowingly” had “possession” of the drug conflicts with the requirements of the Revised Code and imposes a strict liability standard.

For example, in Teamer, the Supreme Court noted that the defendant was crouched down as though he was hiding and dropped the crack pipe from his hand as he stood up when the officer approached and that such evidence was sufficient for the jury’s finding that Teamer knowingly possessed the cocaine that was left in the pipe. See, also, State v. Wright (Oct. 9, 1985), Hamilton App. No. C-840864, unreported, 1985 WL 11499, where the court found from the totality of the circumstances that a factfinder could reasonably infer that the defendant knowingly possessed the drug.

Based on all the facts and circumstances in evidence, the court cannot find beyond a reasonable doubt that the defendant “knowingly possessed” crack cocaine as alleged in the indictment. Moreover, R.C. 2925.11(A) provides generally that no person shall knowingly possess a controlled substance. R.C. 2925.11 goes on to distinguish between possession of “crack cocaine,” “cocaine,” and “cocaine that is not crack cocaine.” The seriousness of possession of crack cocaine as opposed to “cocaine that is not crack cocaine” is reflected in the level of sanction, which is generally greater for crack than the same weight of “cocaine that is not crack.”

As stated in Crim.R. 7(B), an indictment may be in the words of the statute or “in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.” See, also, R.C. 2941.05. Moreover, Section 10, Article I of the Ohio Constitution provides that “no person shall be held to answer for a[n] * * * infamous crime, unless on presentment or indictment of a grand jury.” This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury. Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104, 106. When one of the vital elements identifying the crime is omitted from the indictment, that omission would permit the court to convict the accused on a charge essentially different from that found by the grand jury. State v. Wozniak (1961), 172 Ohio St. 517, 521, 18 O.O.2d 58, 60, 178 N.E.2d 800, 803.

For example, in State v. Headley (1983), 6 Ohio St.3d 475, 6 OBR 526, 453 N.E.2d 716, the defendant was charged with aggravated trafficking, but the indictment did not state the controlled substance. In Headley, the defendant was charged with violating R.C. 2925.03 and in the case sub judice the defendant is charged with violating R.C. 2925.11; each code section sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved. “As such, the type of controlled substance involved constitutes an essential element of the crime.” Headley, at 479, 6 OBR at 530, 453 N.E.2d at 720; see, also, State v. Shuttlesworth (1995), 104 Ohio App.3d 281, 286, 661 N.E.2d 817, 819. Similarly, in State v. Wohlever (1985), 27 Ohio App.3d 192, 27 OBR 231, 500 N.E.2d 318, the defendant was charged with selling “Psilocybe Mushrooms, a Schedule I controlled substance,” and the court held the indictment was defective, since, among other reasons, there are various species of Psilocybe mushrooms, some of which are chemically distinguishable and do not contain hallucinogens.

R.C. 2925.01(X) defines “cocaine.” R.C. 2925.01(GG) defines “crack cocaine” as including a “substance that is or contains any amount of cocaine that is analytically identified as the base form of cocaine or that is in a form that resembles rocks or pebbles generally intended for individual use.” It is obvious from the testimony that the residue in the pipe did not resemble “rocks or pebbles” and it was therefore incumbent upon the state to prove the cocaine residue in the pipe was “analytically identified as the base form of cocaine” and was “crack cocaine” and not “cocaine that is not crack cocaine.”

In State v. Bryant (July 17, 1998), Montgomery App. No. 16809, unreported, 1998 WL 399863, the court, while concluding that the “statutory distinction between crack cocaine and powder cocaine * * * is not racially discriminatory,” found “real differences” between the drugs. Possession of crack cocaine and possession of “cocaine that is not crack cocaine” have a different element — the specific controlled substance involved — and “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375; State v. McGee (1997), 79 Ohio St.3d 193, 195, 680 N.E.2d 975, 977.

As a matter of specific statutory definition, “crack cocaine” is a different controlled substance than “cocaine that is not crack cocaine.” The fact that the possession of these distinct substances is prohibited by the same Revised Code section or that they, in this particular fact scenario, carry the same sanction is irrelevant. Possession of certain quantities of marijuana, heroin, or LSD is also prohibited by the same section and may be the same degree felony, and no one suggests that they are therefore the same substances.

The defendant is charged with possession of crack cocaine. Crack cocaine is therefore an element of the offense. In order for there to be a finding of guilty, each element must be proved beyond a reasonable doubt. The court cannot find beyond a reasonable doubt that the residue involved in this case was crack cocaine.

The defendant is found not guilty. The motion to dismiss is moot.

Defendant found not guilty.  