OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Manley, Appellee.
[Cite as State v. Manley (1994), Ohio St.3d .]
Criminal procedure -- Evidence -- Proof necessary to establish
that a drug transaction occurred in the vicinity of a
school premises -- R.C. 2925.03, construed.
(No. 93-1147 -- Submitted October 25, 1994 -- Decided
December 23, 1994.)
Appeal from the Court of Appeals for Allen County, No.
1-91-83.
On August 15, 1991, appellee Ronald L. Manley was indicted
by an Allen County grand jury on six counts. At the beginning
of appellee's trial on December 2, 1991, the state, appellant,
dismissed counts one through four. The trial proceeded on
count five, knowingly selling or offering to sell a bulk amount
of a schedule II controlled substance within one thousand feet
of the boundaries of a school premises in violation of R.C.
2925.03(A)(5), and count six, using an automobile in the
commission of a felony drug abuse offense as prohibited by R.C.
2925.13(A).
During trial, the state produced three witnesses who
testified that the drug transaction in which appellee
participated occurred in the vicinity of school premises,
namely, Whittier School in Lima, Ohio. The testimony of the
state's first witness, Gregory Roberts, a police officer
employed by the city of Lima and assigned to the Lima/Allen
County Drug Enforcement Unit, included the following exchange:
"[MR. REED, prosecuting attorney:] … To get a picture
of where [the drug transaction occurred], we know there's a
pool hall in the area …. Is there anything else in the area
that the jury would know to be able to help them realize where
this took place?
"[THE WITNESS:] Whittier School is located in the block
that's bounded by Holmes and Reese and Third."
The testimony of James Benvenuto, a confidential police
informant also indicated that the drug transaction occurred in
the vicinity of a school:
"[MR. REED:] Now, out on this Reese Street, where you've
testified the substance was transferred from Manley to [another
individual] to you, is that at all close to a school?
"[THE WITNESS:] Yea.
"Q. Do you know the name of the school?
"A. No.
"Q. How close would you say the school is?
"A. Probably four houses.
"Q. Is it on Reese Street?
"A. Yes."
As its final witness, the state produced Clyde Breitigan,
a police officer employed by the city of Lima and assigned to
the Lima/Allen County Drug Enforcement Unit. The state's
examination of Investigator Breitigan produced the following
exchange:
"[MR. REED:] Have you been back out to 1120 Reese since
May 8th of 91?
"[THE WITNESS:] Yes, sir.
"…
"To measure the distance between 1120 South Reese and the
school yard at Whittier School.
"Q. Okay. To your knowledge, since May 8th, has either
the school or the residence at 1120 been moved?
"A. No, sir.
"Q. Okay. Did you take measurements?
"A. Yes, sir.
"Q. What were the results of the measurements you took?
"A. The measurements from the -- the law requires that
you measure from the closest point of the property to the
closest point of the school. We took measurements from 1120
South Reese to the school yard, plus from the point of the buy
itself to the school yard.
"Q. Okay. How far was it from the point of the buy?
First of all, how did you know the point of the buy?
"A. We had Jim Benvenuto point it out to us.
"Q. Okay. What was the distance from the point of the
buy to the school property?
"A. Two hundred and fifty-five feet point three.
"Q. And how did you measure that?
"A. I just measured it with a traffic wheel …."
Appellee did not cross-examine the testimony of Roberts,
Benvenuto or Breitigan concerning the proximity of the school
premises to the drug transaction. Nor did appellee question
whether the building referred to as the "Whittier School" was
in fact an academic institution used for the education of
children.
At the close of the state's evidence, defense counsel
moved the court for a judgment of acquittal pursuant to Crim.
R. 29, asserting generally that the state had failed to prove
its case beyond a reasonable doubt. In his motion, appellee
did not specifically question whether the incident had occurred
within one thousand feet of a school. The trial judge
sustained the motion as to the charge relating to the use of an
automobile, but overruled the motion with respect to the
trafficking charge, concluding that the state had produced
sufficient evidence for each element of the offense.
During his case-in-chief, appellee offered the testimony
of two witnesses, neither of whom mentioned the existence or
proximity of a school. Appellee did not renew his motion for
acquittal at the close of all the evidence. In closing
arguments, only the state referred to the school element.
Defense counsel's closing argument focused on the contention
that appellee was in no way involved with the drug transaction
that occurred on Reese Street. Furthermore, appellee neither
proposed a specific jury instruction as to a statutory
definition of "school" nor objected to the trial judge's
instructions that had generally outlined the elements of the
charged offense.
The jury found appellee guilty of violating R.C.
2925.03(A)(5), and the trial judge sentenced him according to
R.C. 2925.03(C)(5) to a term of not less than six years nor
more than twenty-five years, with a term of five years of
actual incarceration. From this judgment, appellee appealed to
the Third District Court of Appeals. The appellate court
determined that the state had failed to present any evidence
that Whittier School fell within the definition of "school" as
set forth in R.C. 2925.01(Q) and that the failure constituted
plain error. As a result, the court of appeals affirmed the
jury's finding of guilt but vacated appellee's sentence under
the school specification. The case was remanded to the trial
court for resentencing.
This cause is now before this court upon the allowance of
a motion to certify the record.
Gary R. Hermon, Assistant Allen County Prosecuting
Attorney, for appellant.
Marc S. Triplett, for appellee.
Lee Fisher, Attorney General, and Simon B. Karas, Deputy
Chief Counsel, urging reversal for amicus curiae, Lee Fisher.
Alice Robie Resnick, J. The sole issue presented for our
review concerns the proof necessary to establish that a drug
transaction occurred in the vicinity of a school premises. At
the time of the offense, R.C. 2925.03 read as follows:
"(A) No person shall knowingly do any of the following:
"…
"(5) Sell or offer to sell a controlled substance in
an amount equal to or exceeding the bulk amount, but in an
amount less than three times that amount [.]
"…
"(C) If the drug involved is any compound, mixture,
preparation, or substance included in schedule I with the
exception of marihuana or in schedule II, whoever violates this
section is guilty of aggravated trafficking.
"…
"(5) Where the offender has violated division (A)(5)
of this section, aggravated trafficking is a felony of the
second degree, and the court shall impose a sentence of actual
incarceration of three years, except that, if the offender
commits the offense on school premises, in a school building,
or within one thousand feet of the boundaries of any school
premises or the offender previously has been convicted of a
felony drug abuse offense, aggravated trafficking is a felony
of the first degree and the court shall impose a sentence of
actual incarceration of five years."
"School premises" is defined by R.C. 2925.01(R) to include
either of the following:
"(1) The parcel of real property on which any school is
situated, whether or not any instruction, extracurricular
activities, or training provided by the school is being
conducted on the premises at the time a criminal offense is
committed;
"(2) Any other parcel of real property that is owned or
leased by a board of education of a school or the governing
body of a school for which the state board of education
prescribes minimum standards under section 3301.07 of the
Revised Code and on which some of the instruction,
extracurricular activities, or training of the school is
conducted, whether or not any instruction, extracurricular
activities, or training provided by the school is being
conducted on the parcel of real property at the time a criminal
offense is committed."
"School," as used in defining "school premises," is
defined by R.C. 2925.01(Q) to be "any school operated by a
board of education or any school for which the state board of
education prescribes minimum standards under section 3301.07 of
the Revised Code, whether or not any instruction,
extracurricular activities, or training provided by the school
is being conducted at the time a criminal offense is committed."
In the instant action, the state produced three witnesses
who testified that the drug transaction occurred within the
vicinity of a school. Two of the witnesses specifically
identified the school as Whittier School. One witness,
Investigator Breitigan, testified that the drug transaction
occurred "two hundred and fifty-five feet point three" from the
Whittier schoolyard. Appellee contends that this testimony was
insufficient to prove that the sale occurred within the
prescribed area surrounding the "school premises" as that
phrase is statutorily defined. The court of appeals concluded
that the state's failure to present evidence that Whittier
School was operated by a board of education at the time of the
drug transaction as defined in R.C. 2925.01(Q) and (R)
constituted reversible error. That conclusion requires an
unacceptably strict application of the statute rather than an
application which gives effect to the obvious intention of the
law.
The provisions of R.C. 2925.03(C)(5) clearly indicate that
the Ohio legislature intended to punish more severely those who
engage in the sale of illegal drugs in the vicinity of our
schools and our children. The court of appeals in this case
correctly determined that in order to convict a defendant under
the school specification, the state must prove beyond a
reasonable doubt that the drug transaction occurred within the
specified distance of a school. The state has the burden of
establishing all material elements of a crime by proof beyond a
reasonable doubt. Mullaney v. Wilbur (1975), 421 U.S. 684,
95
S.Ct. 1881,
44 L.Ed.2d 508; State v. Adams (1980),
62 Ohio
St.2d 151,
16 O.O.3d 169,
404 N.E.2d 144. That requirement
also applies in cases involving the imposition of an enhanced
punishment upon proof of some additional element. See, e.g.,
State v. Gaines (1989),
46 Ohio St.3d 65,
545 N.E. 3d 68; State
v. Gordon (1971),
28 Ohio St.2d 45,
57 O.O.2d 180,
276 N.E.2d
243; State v. Murphy (1990),
49 Ohio St.3d 206,
551 N.E.2d
932. In Murphy, for example, this court held that "[t]he state
must present evidence beyond a reasonable doubt that a firearm
was operable at the time of the offense before a defendant can
receive an enhanced penalty pursuant to R.C. 2929.71(A)."
Id.,
syllabus. As the failure to prove firearm operability would
lead to a failure to obtain a conviction under R.C. 2929.71(A),
so too would the failure to prove that a transaction occurred
within the vicinity of a "school premises" as that phrase is
defined by R.C. 2925.01(Q) and (R).
In the case at bar, the state produced three individuals
who testified concerning the proximity of a school to the drug
transaction. Appellee failed to challenge those statements by
cross-examination, motion or a proposed jury instruction. In
short, the issue was never brought to the trial court's
attention. In his brief filed with this court, appellee argues
that he was not obligated to object to the state's proof in
order to challenge the issue on appeal. He erroneously
contends that because a plea of not guilty puts in issue all
the elements of the offenses charged, he is relieved of any
duty to specifically challenge the state's lack of evidence.
Because the record is devoid of any indication that appellee
preserved the issue of the school specification, it should not
be reviewed on appeal.
Pursuant to the terms of Crim. R. 52(B), however, plain
errors or defects which affect substantial rights may be
grounds for reversal even though they were not brought to the
attention of the trial court. "Notice of plain error under
Crim. R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest
miscarriage of justice." State v. Long (1978), 53 Ohio St.2d
91,
7 O.O.3d 178,
372 N.E.2d 804, paragraph three of the
syllabus. "Plain error does not exist unless it can be said
that but for the error, the outcome of the trial would clearly
have been otherwise." State v. Moreland (1990),
50 Ohio St.3d
58, 62,
552 N.E.2d 894, 899.
The court of appeals in this case reversed appellee's
sentence under the school specification based upon plain error
in two areas: first, the trial court's failure to provide the
jury with the specific statutory definition of "school" under
R.C. 2925.01(Q) as it applies to "school premises" in R.C.
2925.03(C)(5), and second, the state's failure to offer
evidence to prove that a "school" was connected to the illegal
transaction. For the reasons which follow, we find that the
circumstances surrounding the instant action do not warrant a
finding of plain error.
First, we consider the trial court's failure to include a
statutory definition of a "school" within the instructions to
the jury. It is well settled that "a defendant is entitled to
have the jury instructed on all elements that must be proved to
establish the crime with which he is charged …." State v.
Adams (1980), 62 Ohio St.2d 151, 153,
16 O.O.3d 169, ,
404
N.E.2d 144, ; see, also, Miller v. State (1932),
125 Ohio
St. 415,
181 N.E. 890; United States v. Rybicki (C.A. 6, 1968),
403 F.2d 599. However, a trial court's failure to separately
and specifically charge a jury as to each element of an offense
does not per se constitute plain error. State v. Adams,
62
Ohio St.2d at 153,
16 O.O.3d at 170,
404 N.E.2d at 140; State
v.
Long, supra,53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d
804. In Adams, we held that the complete failure to charge the
jury as to the culpable mental state required to convict a
defendant of child endangerment under R.C. 2919.22 was not
plain error. In this case, the trial judge did not fail to
charge on an element of the crime. Rather, he merely failed to
define one of the terms used in setting out an element of the
offense. Appellee has not been able to demonstrate how the
failure to define the term "school" rises to the level of a
miscarriage of justice. Furthermore, an examination of the
record establishes no probability that the ultimate result, but
for the alleged inadequate jury instruction, would have been
different.
The court of appeals also based its finding of plain error
on the conclusion that the presence of a statutorily defined
school can be shown only by some affirmative proof that a board
of education operated the premises. That conclusion is
inconsistent with past decisions from this court. In State v.
Murphy, supra, we considered the type of evidence necessary to
prove an element of an offense beyond a reasonable doubt. At
issue in that case was whether the firearm specification set
out in R.C. 2929.71 could be proven beyond a reasonable doubt
without actually presenting scientific or direct evidence as to
the operability of a firearm. The majority determined:
"[S]uch proof can be established beyond a reasonable doubt
by the testimony of lay witnesses who were in a position to
observe the instrument and the circumstances surrounding the
crime. To rule otherwise would destroy the intent of the
General Assembly to impose an additional term of the three
years' actual imprisonment on those persons who use a firearm
to carry out their criminal objectives." 49 Ohio St.3d at 209,
551 N.E.2d at 935.
Following our decision in Murphy, we again considered the
use of indirect evidence in proving the elements of an offense
in State v. Jenks (1991), 61 Ohio St. 3d 259,
574 N.E. 2d 492.
In that opinion we determined that circumstantial evidence is
as probative as direct evidence, and that juries should weigh
both types of evidence under the same standard of proof. "An
appellate court's function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence 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 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., paragraph two of the syllabus.
The analyses and holdings in Murphy and Jenks clearly
apply to the facts in this case. The record before us reveals
that three witnesses testified that the drug transaction
occurred within the immediate vicinity of a school. Whether
Whittier School met the definition of a school under R.C.
2925.01(R) was not challenged by cross-examination or motion.
The court of appeals' discussion of alternative inferences that
could be made about the school's use as an academic facility
amounts to viewing the evidence in less than the most favorable
light to the prosecution. Given the lack of evidence to the
contrary, a reasonable mind accepting the evidence as presented
might find appellee guilty beyond a reasonable doubt under the
school specification.
For the foregoing reasons, we reverse the judgment of the
court of appeals and reinstate the original sentence imposed by
the trial court.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, F.E. Sweeney
and Pfeifer, JJ., concur.
Footnotes
1. We note R.C. 2925.03 has since been amended. Those
changes appear to be minor and do not alter the substance of
the section.
