THe STATE OF OHIO, APPELLANt, V. JONES, APPELLEE.
[Cite as State v. Jones (1997), ___ Ohio St.3d ___.]
Criminal procedure — Specification of physical harm or threat of physical harm
of former R.C. 2941.143 satisfied, when.
The specification of physical harm or threat of physical harm of former R.C.
2941.143 is satisfied when the defendant causes or threatens physical harm
during the commission of a felony. (State v. Witwer [1992], 64 Ohio St.3d
421, 596 N.E.2d 451, clarified.)
(No. 96-834 — Submitted May 6, 1997 — Decided August 6, 1997.)
APPEAL from the Court of Appeals for Montgomery County, No. CA 15110.
The appellee, Brian F. Jones, participated in a planned cocaine sale on
August 18, 1994. With the help of a confidential informant, police had arranged
for an undercover officer to purchase two ounces of crack cocaine in a Dayton
motel parking lot.
Detective Michael Scarpelli, posing as a local restaurant
manager, arrived at the selected location, accompanied by the informant.
Detective Scarpelli and the informant observed a maroon and white Chevy Caprice
with two occupants enter the parking lot at approximately 1:56 p.m.
After stopping briefly, the Chevy entered a nearby McDonald’s parking lot
shortly before 2:00 p.m. Appellee left the car and walked over to the pay phone,
picked up the receiver and appeared to be talking. The Chevy then returned to the
motel parking lot and parked next to Detective Scarpelli’s car. The Chevy’s driver
was appellee’s codefendant, Steven Cantrell.
Cantrell approached Detective Scarpelli’s car and explained that he would
make a telephone call and then someone would deliver the drugs.
Cantrell
returned to his car and supposedly made a call. As the detective, the informant,
and Cantrell then waited in Scarpelli’s car, the appellee walked slowly through the
parking lot twice, looking at the detective’s car each time. When asked by the
detective, Cantrell denied knowing the appellee.
At the detective’s request,
Cantrell made another phone call regarding the drug delivery.
Undercover detectives surveilling the area observed the appellee
periodically peering around the motel and monitoring the area as if watching
Detective Scarpelli and conducting countersurveillance. Ultimately, the appellee
returned to the McDonald’s parking lot and entered an Oldsmobile. The driver of
the Oldsmobile drove back to the motel parking lot, where he stopped behind
Detective Scarpelli’s car. Cantrell left the detective’s car and spoke with the 2
Oldmobile’s occupants, who included the driver and a passenger in the front seat
as appellee crouched down in the back seat. Approximately two to three minutes
later, appellee entered the back seat of the detective’s car, placed a gun to the
detective’s head, and demanded money. Detective Scarpelli, who was wearing a
radio transmitter, begged the appellee not to shoot him. The detective handed the
appellee $1,900 in cash.
A police assault team that was waiting a short distance away responded to
Detective Scarpelli’s plea. The appellee attempted to flee, threw the cash in the
air, and was apprehended a short distance away. Officers found a small bag of
crack cocaine in his pants pocket. Officers also retrieved a gun that the appellee
had thrown down during the chase.
The appellee pled not guilty to aggravated trafficking in cocaine in a
quantity exceeding three times the bulk amount, aggravated robbery, and drug
abuse. Each charge included a firearm specification. In addition, the drug abuse
charge also included a specification of an actual threat of physical harm, pursuant
to former R.C. 2941.143, which is the subject of this appeal. A jury convicted the
appellee on all counts and specifications.
3
Although noting its disagreement with the decision of this court in State v.
Witwer (1992), 64 Ohio St.3d 421, 596 N.E.2d 451, the Court of Appeals for
Montgomery County held that under Witwer, given that the appellee’s drug abuse
felony itself neither caused nor threatened physical harm, the trial court should
have imposed a definite sentence pursuant to former R.C. 2929.11(D) rather than
an indefinite sentence under former R.C. 2929.11(B)(7).
Accordingly, the
appellate court reversed that portion of the trial court’s judgment and remanded for
resentencing on the drug abuse conviction and directed the trial court to impose a
definite sentence under former R.C. 2929.11(D). This cause is now before this
court upon the allowance of a discretionary appeal.
___________________
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Steven J. Ring, Assistant Prosecuting Attorney, for appellant.
David R. Miles, for appellee.
___________________
LUNDBERG STRATTON, J. The issue we are called upon to clarify is whether
the specification of physical harm or threat of physical harm of former R.C.
2941.143 is satisfied when, as here, the defendant causes or threatens physical
4
harm during the commission of a felony, whether or not the felony itself causes or
threatens harm. Because we find that it is so satisfied, we reverse the judgment of
the court of appeals.
R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess,
or use a controlled substance.” Former R.C. 2925.11(C)(1) defines this offense as a fourth-degree felony. Former R.C. 2941.1431 permits the imposition of an
indefinite term of incarceration if the indictment specifies that, during the
commission of the offense charged, the offender caused or threatened to cause
physical harm to any person with a deadly weapon. 140 Ohio Laws, Part I, 583,
602-603. By contrast, former R.C. 2929.11(D) mandates a definite sentence if the
indictment does not specify that, during the commission of the offense charged,
the offender caused or threatened to cause physical harm to any person with a
deadly weapon. An indefinite term for a fourth-degree felony, pursuant to former
R.C. 2929.11(B)(7), is a minimum term of either eighteen months, two years,
thirty months, or three years, and a maximum term of five years. Because the
indictment charging the appellee with drug abuse also specified that during the
commission of that offense, the appellee made an actual threat of physical harm to
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Detective Scarpelli, imposition of an indefinite term pursuant to former R.C.
2929.11(B)(7) was appropriate.
The court of appeals misinterpreted our decision in State v. Witwer (1992),
64 Ohio St.3d 421, 596 N.E.2d 451. The court of appeals interpreted Witwer to
hold that given that the appellee’s drug abuse felony itself neither caused nor
threatened physical harm, the trial court should have imposed a definite sentence
pursuant to R.C. 2929.11(D) rather than an indefinite sentence under R.C.
2929.11(B)(7). Witwer does not require the felony itself to have caused the harm.
In Witwer, the defendant was indicted on one count of aggravated vehicular
homicide in violation of R.C. 2903.06 and a specification that, during the
commission of the offense, the defendant caused physical harm to the victim of the
vehicular homicide pursuant to former R.C. 2941.143.
The defendant was
convicted of the offense and the specification. On appeal, the court of appeals
reversed the trial court, concluding that because the specification was subsumed
within the underlying offense, a conviction predicated on that offense constituted a
violation of due process of law. This court reversed the court of appeals and
remanded the cause to the trial court for reimposition and execution of the original
sentence. 6
In reversing, this court found that R.C. 2929.11(D) “implicitly provides that
the commission of a fourth degree felony which does ‘cause physical harm’ will
subject a convicted defendant to the indefinite term of incarceration provided in
R.C. 2929.11(B)(7)” (emphasis sic), Witwer, 64 Ohio St.3d at 424-425, 596
N.E.2d at 454, and that such a sentence did not violate due process in that the
legislature was entitled to punish more severely those who caused or threatened
harm during the commission of a felony. Thus, the court concluded that “where an
accused commits a fourth degree felony causing physical harm he is eligible to be
sentenced pursuant to R.C. 2929.11(B)(7). However, R.C. 2941.143, as relevant
here, prescribes that, before one may be sentenced to the term of [indefinite]
incarceration provided in R.C. 2929.11(B)(7), the indictment must have contained
a specification stating that the accused caused physical harm in the course of
committing a fourth degree felony.” (Emphasis sic.) Id. at 425, 596 N.E.2d at
454.
The court’s initial focus in Witwer was whether the defendant had notice of
the harm specification. The court further stated that the specification must charge
“that the accused caused physical harm to a person while committing the
underlying felony.” (Emphasis added.) Id. at 426, 596 N.E.2d at 455. If no harm 7
was threatened or caused, or no specification so charged, the court only then must
impose a definite sentence. Here, the indictment charged the harm specification,
and the jury found that the appellee threatened physical harm, satisfying both
requirements of Witwer.
Further, footnote two of Witwer clarifies that there is no requirement that
the felony itself cause or threaten the harm: “Our discussion herein is limited to
the circumstances presented by the instant cause which authorize the imposition of
the indefinite term of incarceration provided by R.C. 2929.11(B)(7) (i.e.,
commission of a fourth degree felony which causes physical harm).
In the
interests of clarity, we have omitted reference to the alternate circumstances under
which imposition of the indefinite term is permitted (e.g., the actual threat of
physical harm with a deadly weapon).” (Emphasis added.) Id. at 424, 596 N.E.2d
at 454.
Thus, Witwer does not establish a requirement for the underlying felony
itself to cause or threaten physical harm. Moreover, we find that Witwer can be
distinguished on its facts.
In Witwer, the underlying offense was vehicular
homicide. Thus, physical harm was inherent in the underlying offense. Witwer
specifically limits its holding to such cases. 8
Here, the underlying offense is drug abuse, which does not inherently
include physical harm or a threat of physical harm. The appellee was committing
the felony of drug abuse at the time he threatened Detective Scarpelli with a
firearm. The drug abuse did not cause the detective to be threatened with physical
harm. Thus, the appellee did not commit a felony which caused physical harm or
caused Detective Scarpelli to be threatened with physical harm. Rather, the
appellee threatened harm to Detective Scarpelli during the commission of the
offense, i.e., while the appellee was abusing or possessing drugs.
Turning to former R.C. 2941.143, there is no requirement that the felony
itself be the cause of the harm or threat. Rather, the statute merely requires that
the offender cause or threaten physical harm during the commission of the felony.
In the case at bar, the appellee threatened physical harm to Detective Scarpelli
during the commission of the felony of drug abuse. Therefore, we hold that the
specification of physical harm or threat of physical harm of former R.C. 2941.143
is satisfied when the defendant causes or threatens physical harm during the
commission of a felony. Accordingly, we reverse the judgment of the court of
appeals and remand the cause to the trial court to reinstate the original sentence.
Judgment reversed. 9
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, J., dissents and would dismiss the appeal as improvidently
allowed.
FOOTNOTE:
1.
Former R.C. 2941.143 has been repealed pursuant to Am.Sub.S.B. No. 2
which took effect in July 1996. However, the harm specification is now found as a
sentencing factor pursuant to R.C. 2929.13(B)(1)(a), (b), and (c). Presently, the
trial court must determine whether in committing the offense, the defendant
caused, attempted to cause, or made an actual threat of physical harm to any
person with a deadly weapon.
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