[This opinion has been published in Ohio Official Reports at
82 Ohio St.3d 490.]
THE STATE OF OHIO, APPELLEE, v. TEAMER, APPELLANT.
[Cite as State v. Teamer, 1998-Ohio-193.]
Criminal law—Drug offenses—Quantity of a 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).
The quantity of a 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).
(Nos. 97-1244 and 97-1255—Submitted June 10, 1998—Decided August
5, 1998.)
APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga
County, No. 70466.
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{¶ 1} Appellant, Gary Teamer, was indicted for one count of drug abuse, in
violation of R.C. 2925.11. The indictment contained a “furthermore” clause
alleging a prior conviction for drug trafficking and a violence specification alleging
a prior conviction for aggravated assault.
{¶ 2} At trial, the testimony revealed that on January 6, 1995, appellant, a
homeless man, was discovered in an abandoned basement in a Cuyahoga County
Metropolitan Housing Authority complex. Several other people were present, but
the closest person to appellant was approximately thirty feet away. As the two
police officers approached appellant, they noticed him rise from a crouching
position and drop an object from his right hand. The object was identified as a
piece of an automobile antenna, also referred to as a metal crack pipe, which the
officers stated was commonly used to inhale crack cocaine.
SUPREME COURT OF OHIO
{¶ 3} The pipe was tested for cocaine. Although the chemist was able to
get a positive reading for the presence of cocaine, he was unable to obtain a weight
for the residue he scraped from the antenna.
{¶ 4} After a jury trial, appellant was convicted as charged. Having
previously stipulated to the violence specification, appellant was sentenced to a
term of two to ten years. The court of appeals affirmed his conviction.
{¶ 5} Finding its decision in conflict with the decision in State v. Susser
(Dec. 5, 1990), Montgomery App. No. 11787, unreported, 1990 WL 197958, the
appellate court granted appellant’s motion to certify a conflict. This court
determined that a conflict exists in case No. 97-1255.
{¶ 6} Additionally, the cause is now before this court pursuant to the
allowance of a discretionary appeal in case No. 97-1244.
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Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Mark
Mahoney, Assistant Prosecuting Attorney, for appellee.
James A. Draper, Cuyahoga County Public Defender, and Daniel Scully,
Assistant Public Defender, for appellant.
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FRANCIS E. SWEENEY, SR., J.
{¶ 7} The certified issue is “whether the amount [of the controlled
substance] is a factor in determining the crime of drug abuse.” Appellant, in his
discretionary appeal, asserts that there was insufficient evidence to prove the
element of knowledge beyond a reasonable doubt. For the following reasons, we
affirm the court of appeals.
{¶ 8} Appellant was convicted of drug abuse, in violation of R.C.
2925.11(A). That statute provides, “No person shall knowingly obtain, possess, or
use a controlled substance.” Appellant contends that because the amount of cocaine
detected was so minuscule, he should not have been charged with drug abuse, a
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January Term, 1998
felony offense. Instead, appellant asserts that he should have been charged with
possessing drug paraphernalia, a prohibited act under R.C. 2925.14, a misdemeanor
offense. We reject this argument.
{¶ 9} To construe a statute, we first look at its express wording. Provident
Bank v. Wood (1973), 36 Ohio St.2d 101,
65 O.O.2d 296,
304 N.E.2d 378. We
must give effect to the words of a statute and may not modify an unambiguous
statute by deleting words used or inserting words not used. Bernardini v. Conneaut
Area City School Dist. Bd. of Edn. (1979),
58 Ohio St.2d 1, 4,
12 O.O.3d 1, 3,
387
N.E.2d 1222, 1224. Simply stated, “an unambiguous statute means what it says.”
Hakim v. Kosydar (1977),
49 Ohio St.2d 161, 164,
3 O.O.3d 211, 213,
359 N.E.2d
1371, 1373, citing Chope v. Collins (1976),
48 Ohio St.2d 297, 300,
2 O.O.3d 442,
444,
358 N.E.2d 573, 575, fn. 2.
{¶ 10} In our view, the unambiguous language of R.C. 2925.11 punishes
conduct for the possession of any amount of a controlled substance. It does not
qualify the crime by stating that the amount of the drug must be of a certain weight.
We may not insert an amount provision into the unambiguous language of the
statute. Appellant argues that because only a trace of cocaine was detected, it is
drastically unfair to charge him with a felony crime when another statutory
provision is more applicable. However, we find that this argument is better
addressed to the General Assembly. We must apply the statute as written.
{¶ 11} Accordingly, we find that the quantity of a 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). As long as there is scientifically accepted
testimony from which a factfinder could conclude beyond a reasonable doubt that
a controlled substance was present, a conviction for drug abuse pursuant to R.C.
2925.11(A) will not be reversed based on the amount of contraband involved.
{¶ 12} Appellant also argues that there was insufficient evidence to prove
that he knowingly possessed cocaine. We disagree.
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SUPREME COURT OF OHIO
{¶ 13} In Ohio, juries are instructed that the element of knowledge is to be
determined from the attendant facts and circumstances particular to each case.
“Since you cannot look into the mind of another, knowledge is determined from all
the facts and circumstances in evidence. You will determine from these facts and
circumstances whether there existed at the time in the mind of the defendant an
awareness of the probability that ….” 4 Ohio Jury Instructions (1997), Section
409.11(3). Likewise, case law instructs, “Intent ‘ “can never be proved by the direct
testimony of a third person and it need not be. It must be gathered from the
surrounding facts and circumstances.” ’ ” State v. Lott (1990), 51 Ohio St.3d 160,
168,
555 N.E.2d 293, 302, quoting State v. Huffman (1936),
131 Ohio St. 27,
5
O.O. 325,
1 N.E.2d 313, paragraph four of the syllabus.
{¶ 14} Thus, whether a person charged with drug abuse in violation of R.C.
2925.11 knowingly possessed, obtained, or used a controlled substance is to be
determined from all the attendant facts and circumstances available. If there is
sufficient evidence such that a reasonable trier of fact could have found that the
state had proven guilt beyond a reasonable doubt, a reviewing court may not reverse
a conviction. State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph
two of the syllabus.
{¶ 15} Here, the jury heard evidence from two officers that when appellant
was first observed, he was crouched down as though he was hiding. When he stood
up, he dropped the car antenna from his right hand. Testimony established that this
apparatus is commonly used as a crack pipe to inhale crack cocaine. In fact, one
officer noticed burnt residue on the ends of the antenna. Although there were other
people in the abandoned basement, the closest person to appellant was
approximately thirty feet away. The chemist could visibly observe cocaine residue
on the antenna. The tests were conclusive for cocaine.
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January Term, 1998
{¶ 16} We find this evidence to be sufficient to establish that appellant
knowingly possessed cocaine. We may not disturb the jury’s verdict. Accordingly,
the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, COOK and LUNDBERG STRATTON, JJ.,
concur.
PFEIFER, J., concurs in judgment only.
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