COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67401 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WAYNE MORRIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-299691 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SHERRY F. McCREARY (#0031337) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 WAYNE MORRIS, #291-540 London Correctional Inst. P.O. Box 69 London, OH 43140 For Defendant-Appellant: LAWRENCE RAFALSKI P.O. Box 93701 Cleveland, Ohio 44101-5701 - 3 - 3 SPELLACY, J.: Defendant-appellant Wayne Morris appeals convictions for aggravated trafficking, in violation of R.C. 2925.03(A)(6) (Possessing cocaine in an amount equal to or exceeding three times bulk), and aggravated trafficking, in violation of R.C. 2925.03- (A)(2) (Knowingly preparing for shipment, shipping, transporting, etc.), with a violence specification for a 1991 escape conviction. Morris raises four assignments of error: I. DEFENDANT WAS IMPROPERLY CONVICTED IN COUNT ONE WITH REFERENCE TO A "BULK AMOUNT", WITH NO EVIDENCE INTRODUCED ON THE ISSUE OF THE WEIGHT OF THE CONTROLLED SUBSTANCE ITSELF, COCAINE HYDROCHLORIDE, A SUBSTANCE, MIXTURE, OR COMPOUND CONTAINING COCAINE. II. IF ASSIGNMENT OF ERROR NO. 1 IS DENIED, AND THE COURT RULES THAT THE TERM "MIXTURE", AS CON- TAINED IN 2925.01(E)(1) INCLUDES THE TOTAL WEIGHT OF THE CONTROLLED SUBSTANCE TOGETHER WITH ITS NON-DRUG CONTENT, THEN SUCH LAW IS ARBITRARY, UNREASONABLE, SETS FORTH AN ILLUSORY STANDARD, AND IS VIOLATIVE OF DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION, AND, AS APPELLANT WAS CONVICTED PURSUANT TO THIS STATUTE, HE IS ENTITLED TO THE REVERSAL OF HIS CONVICTION. III. APPELLANT WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMEND- MENTS OF THE U.S. CONSTITUTION, WHERE HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AS TO BOTH COUNTS OF THE INDICTMENT. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT IN IMPOSING A SENTENCE CONTAINING A THREE-YEAR TERM OF ACTUAL INCARCERATION TO BE SERVED PRIOR TO THE SEPARATE SENTENCES IMPOSED FOR HIS CONVICTIONS, IN THE MANNER OF A FIREARM SPECIFICATION, DUE TO THE MISTAKEN BELIEF THAT IT WAS REQUIRED TO DO SO. - 4 - 4 I. The following evidence was adduced at trial: When Police Officer James Simone responded to a radio broad- cast concerning several men with a gun, he found Morris and Jose Rodriguez walking together and a man holding a golf club some distance away. After Morris and Rodriguez began running Officer Simone and Police Officer Dale Mullins, who had arrived in another car, gave chase on foot. Officer Simone testified that after he caught Rodriguez, he saw Morris and Officer Mullins fall down and Morris extend his arm and place something in some bushes. Morris then jumped up and continued running with Officer Mullins following. After Officer Mullins caught Morris, police officers found two bags containing a powdery mixture in the bushes. A forensic scientist testified that one bag contained 4.81 grams of the powdery mixture and the other bag contained 27.90 grams of the powdery mixture. The forensic scientist also testified that both mixtures contained cocaine. Officer Simone testified that the drugs had a street value of approximately $3,000. After his arrest, Morris told the police officers that the drugs belonged to Rodriguez. Officer Simone testified that Rodriguez is a drug dealer who often uses a "mule," someone to hold his drugs. Morris testified that he had been with a friend and some other people when Rodriguez, an acquaintance, threatened everyone with an - 5 - 5 "Uzi." Morris further testified that Rodriguez, who lived in the area, then returned the Uzi to his house. Morris denied running when the police officers arrived, but he confirmed that one of the police officers fell. Morris went on to testify that he told the police officers that the drugs belonged to Rodriguez because he assumed Rodriguez was a drug dealer. II. In his first assignment of error, Morris contends that the evidence is insufficient to support his conviction for possessing cocaine in an amount equal to or exceeding three times the bulk amount. Morris argues the state only introduced evidence concerning the weight of the powdery mixture and failed to demonstrate the amount of actual cocaine. R.C. 2925.01(E)(1) provides: (E) "Bulk amount" of a controlled substance means any of the following: (1) An amount equal to or exceeding ten grams or twenty-five unit doses of a compound, mixture, preparation, or substance that is or contains any amount of a schedule I opiate or opium derivative, or cocaine. (Emphasis added). The state, therefore, is not required to demonstrate the purity of the mixture. See State v. Miller (July 30, 1993), Montgomery App. No. 13121, unreported; State v. Combs (Sept. 10, 1991), Montgomery App. No. 11949, unreported; State v. Neal (June 29, 1990), Hancock App. No. 5-89-6, unreported; State v. - 6 - 6 Brooks (Feb. 27, 1986), Cuyahoga App. No. 50384, unreported; cf. State v. Wolpe (1984), 11 Ohio St.3d 50. Accordingly, Morris's first assignment of error is not well taken. III. In his second assignment of error, Morris contends that R.C. 2925.01(E)(1) is unconstitutional because it violates the right to due process found in the Fifth and Fourteenth Amendments of the United States Constitution. Morris failed to make this argument in the trial court. Con- sequently, we decline to address it now. See State v. Awan (1986), 22 Ohio St.3d 120, syllabus; State v. Powell (1993), 87 Ohio App.3d 157, 164. Accordingly, Morris's second assignment of error is not well taken. IV. In his third assignment of error, Morris contends the evidence was insufficient to support his convictions for aggravated traf- ficking. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Supreme Court of Ohio held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evi- dence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the - 7 - 7 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560, followed.) R.C. 2925.03(A)(2) and (6) provide: (A) No person shall knowingly do any of the following: *** (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another; *** (6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount. Reviewing the evidence in a light most favorable to the state, we conclude that a rational trier of fact could have found the essential elements of R.C. 2925.03(A)(2) and (6) proven beyond a reasonable doubt. Accordingly, Morris's third assignment of error is not well taken. V. In his fourth assignment of error, Morris contends his sentence is improper. During sentencing, the trial court, relying on State v. Odubanjo (1992), 80 Ohio App.3d 329, incorrectly believed that the three-year sentence of actual incarceration required by R.C. 2925.03 had to be imposed consecutively to the indefinite sentence required by R.C. 2929.11. This court addressed an identical - 8 - 8 situation in State v. Jenkins (April 27, 1995), Cuyahoga App. No. 66925, unreported, where we found that: The comments of the trial court judge at sentencing support appellant's assertion that the court improperly relied upon Odubanjo when it sentenced appellant under both applicable sentencing schemes but ordered the sentences to be served consecutively pursuant to the dictates of Odubanjo. This court has recently found that Odubanjo does not set a binding precedent requi- ring courts to order sentences for a drug offense to be served consecutively. The sentencing order under the Revised Code guidelines and pursuant to State v. Arnold (1991), 61 Ohio St.3d 175, 573 N.E.2d 1079, must take into consideration both sentencing scheme mandates under R.C. 2929.11 and R.C. 2925.03. State v. Alvin Herring (July 28, 1994), Cuyahoga App. No. 65815, unreported. Following Jenkins, we find Morris's sentence improper. Accordingly, Morris's fourth assignment is well taken. Judgment affirmed, in part, reversed in part, and cause remanded for resentencing. - 9 - 9 It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. and ANN McMANAMON, J., CONCUR. (McManamon, J., Retired Judge of the Eighth District Court of Appeals, Sitting by Assignment) LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .