[Cite as State v. Gilliam, 2012-Ohio-834.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                   :

          Plaintiff-Appellee                    :   C.A. CASE NO. 09CA0075

vs.                                            :    T.C. CASE NO. 09CR0267

GARY WAYNE GILLIAM                              :   Criminal Appeal from
                                                     Common Pleas Court
          Defendant-Appellant                   :

                                        . . . . . . . . .

                                       DECISION AND ENTRY

                  Rendered on the 27th day of February, 2012.

                                        . . . . . . . . .

PER CURIAM:

          {¶ 1} On March 19, 2009, Defendant Gary Wayne Gilliam, purchased a quantity of

powdered cocaine from a police informant. Defendant was immediately arrested by officers

who had set up the controlled buy. Defendant was convicted following a jury trial, of

possessing cocaine in an amount equal to or exceeding one thousand grams, R.C. 2925.11(A),

a first degree felony for which a maximum prison term is mandated. R.C. 2925.11(C)(4)(f).

The trial court sentenced Defendant to the maximum ten year prison term for a first degree

felony.

          {¶ 2} On direct appeal, we reversed and vacated Defendant’s conviction on a claim

that it is against the manifest weight of the evidence because the evidence presented by the

State failed to demonstrate that the weight of the cocaine inside the package Defendant
purchased, absent the package’s wrappings which included duct tape, was equal to or

exceeded one thousand grams.           State v. Gilliam, 2nd Dist, Clark No. 09CA0075,

2011-Ohio-26 at ¶ 18-27. The reason for that finding is explained in our opinion. We

remanded the case to the trial court for a new trial. Id., at ¶ 32.

         {¶ 3} On June 22, 2011, Defendant filed an App.R. 26(B) application to reopen the

direct appeal. Defendant argued that his appellate counsel performed deficiently by failing to

raise on direct appeal the issue of sufficiency of the evidence concerning the weight of the

cocaine Defendant purchased. We concluded that our previous finding on direct appeal

likewise implicates the legal sufficiency of that evidence to prove a violation of R.C.

2925.11(A), (C)(4)(f), and that if successful Defendant could not be retried for that same

offense. We found that Defendant’s appellate counsel was deficient for failing to raise on

direct appeal the issue of sufficiency of the evidence, and that Defendant was prejudiced as a

result because there is a reasonable probability of success had appellate counsel argued the

sufficiency of the evidence issue on appeal. We granted Defendant’s application to reopen

his appeal and appointed new counsel to brief the sufficiency of the evidence issue. Decision

and Entry filed June 22, 2011.

         {¶ 4} This matter is now before us on the merits of the sufficiency of the evidence

issue.



         {¶ 5} ASSIGNMENT OF ERROR

         {¶ 6} “THE TRIAL COURT VIOLATED GARY WAYNE GILLIAM’S RIGHTS

TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT

EVIDENCE, MR. GILLIAM WAS FOUND GUILTY OF POSSESSION OF COCAINE IN
AN AMOUNT EQUAL TO OR EXCEEDING ONE THOUSAND GRAMS. FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”

       {¶ 7} Defendant argues that the evidence presented by the State is legally insufficient

to prove that he possessed cocaine in an amount equal to or exceeding one thousand grams for

the same reason this court concluded in Defendant’s direct appeal that his conviction for that

same offense was against the manifest weight of the evidence; the State failed to present

evidence that established, beyond a reasonable doubt, that the weight of the cocaine itself

inside the package Defendant purchased, absent the package’s wrappings, was equal to or

exceeded one thousand grams. We agree.

       {¶ 8} A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the jury

or sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d

541 (1997). The proper test to apply to such an inquiry is the one set forth in paragraph two

of the syllabus of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991):

               {¶ 9} “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.”

       {¶ 10} In Defendant’s prior direct appeal, State v. Gilliam, 192 Ohio App.3d 145,
2011-Ohio-26, 948 N.E.2d 482, ¶ 21-25, (2d Dist.) we observed:

              {¶ 11} R.C. 2925.11(A) states: “No person shall knowingly obtain,

       possess, or use a controlled substance.” The degrees of the offense for a

       violation of R.C. 2925.11(A) when the controlled substance is cocaine are set

       out in R.C. 2925.11(C)(4). They range from a fifth-degree felony for the

       possession of cocaine in any amount, R.C. 2925.11(C)(4)(a), to a first-degree

       felony for possession of cocaine in an amount equal to or exceeding 1,000

       grams, R.C. 2925.11(C)(4)(f). That latter section requires the court to impose

       the maximum term for a first-degree felony of ten years. R.C. 2929.14(A)(1).

              {¶ 12} The police informant offered defendant his choice of two

       wrapped packages of a similar size containing cocaine. Defendant chose one of

       the two and paid the asking price. The police lab technician who verified that

       both packages contained powdered cocaine testified that together, the two

       wrapped packages weighed 2,375.20 grams. The technician did not testify

       concerning the weight of the package defendant purchased or the weight of the

       cocaine the package contained absent its wrappings.

              {¶ 13} Agent Stiegelmeyer testified that he obtained the two wrapped

       packages of powdered cocaine from the Warren County Drug Task Force and

       that when he obtained the packages, each was weighed, and each package

       weighed in excess of 1,000 grams. From the record, it appears that the state's

       witnesses were reluctant to unwrap the package of drugs defendant purchased

       in order to determine the weight of the cocaine the package contained because

       it had been borrowed from another law-enforcement agency for purposes of the
       controlled buy.

              {¶ 14} Defendant argues that the jury lost its way when it relied on

       Agent Stiegelmeyer's testimony to conclude that the weight of the cocaine

       defendant purchased was equal to or in excess of 1,000 grams. Defendant

       contends that even were the two packages of equal weight, which would mean

       that each weighed 1,187.6 grams according to the lab technician's testimony,

       the weight of the wrappings of the package he purchased, which included duct

       tape, could permit the actual net weight of the cocaine in the package to be less

       than 1,000 grams.

              {¶ 15} Defendant was convicted of a violation of R.C. 2925.11(A), in

       that he possessed cocaine in an amount equal to or exceeding 1,000 grams.

       R.C. 2925.11(C)(4)(f). To find defendant guilty of that degree of the offense

       beyond a reasonable doubt, the jury was required to find from the evidence that

       the amount of cocaine defendant possessed satisfied those weight

       requirements, not that the wrapped package containing the cocaine that

       defendant possessed satisfied those weight requirements.

       {¶ 16} The State did not offer any evidence showing the unwrapped weight of the

cocaine Defendant purchased. Contrary to the State’s arguments, evidence that the plan was

for undercover police officers to sell Defendant one kilogram of powdered cocaine for

$25,500 does nothing to demonstrate that the weight of the cocaine Defendant purchased, as

opposed to the weight of the wrapped package containing cocaine, was one thousand grams or

more. That remains a matter of speculation on this record.

       {¶ 17} As we stated in our previous decision on direct appeal reversing Defendant’s
conviction as being against the manifest weight of the evidence, the jury necessarily

speculated to find that the weight of the cocaine inside the package Defendant purchased

equaled or exceeded one thousand grams. Gilliam, at ¶ 25. Even viewing the evidence in a

light most favorable to the State, as we must, we further conclude that a rational trier of facts

could not find beyond a reasonable doubt that the weight of the cocaine Defendant purchased

equaled or exceeded one thousand grams.

       {¶ 18} App.R. 26(B)(9) states:

               {¶ 19} If the court finds that the performance of appellate counsel was

       deficient and the applicant was prejudiced by that deficiency, the court shall

       vacate its prior judgment and enter the appropriate judgment. If the court does

       not so find, the court shall issue an order confirming its prior judgment.

       {¶ 20} Defendant’s appellate counsel was deficient for failing to argue that the

evidence was insufficient to convict for a violation of R.C. 2925.11(A), and Defendant was

prejudiced as a result. We therefore vacate our prior judgment finding that Defendant’s

conviction is against the manifest weight of the evidence, and we enter a new judgment

finding that Defendant’s conviction is both not supported by sufficient evidence and against

the manifest weight of he evidence, the latter error being subsumed in the former.

       {¶ 21} R.C. 2923.02(A) defines an attempt to commit an offense, and states:

               {¶ 22 } No person, purposely or knowingly, and when purpose or

       knowledge is sufficient culpability for the commission of an offense, shall

       engage in conduct that, if successful, would constitute or result in the offense.

       {¶ 23} R.C. 2923.02(E)(1) states that “[w]hoever violates this section is guilty of an

attempt to commit an offense,” and further provides that when the penalty for a drug abuse
offense is determined by the amount of the controlled substance involved, the penalty for an

attempt to commit the offense is that “within the next lower range of controlled substance

amounts that was involved in the attempt.”

       {¶ 24} A defendant may be found not guilty of an offense charged but guilty of an

attempt to commit it if such an attempt is an offense at law. Crim.R. 31(C); R.C. 2945.74.

An attempt to commit a charged offense is a lesser included offense of the charged offense for

purposes of Crim.R. 31(C) and R.C. 2945.74. State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d

294 (1988). “It is not necessary for the prosecution or the trial court to formally charge a

defendant with an attempt to commit an offense because an offense, properly charged, charges

an attempt along with any lesser included offenses by implication.” State v. Russell, 2d Dist.

Montgomery Nos. 18155, 18194, 2000 WL 1547085, (Oct. 20, 2000), at p.5.

       {¶ 25} The evidence presented at trial conclusively shows that Gilliam engaged in a

transaction with undercover officers in an attempt to obtain possession of cocaine in an

amount at least equal to one thousand grams. (Tr. 96-98, 161-168). Gilliam testified that

the deal was that he would pay $25,500 for one kilogram, or one thousand grams, of cocaine.

(Tr. 186). Gilliam then paid the agreed sum of money and took possession of what the jury

could find, beyond a reasonable doubt, he reasonably believed was cocaine in the agreed

amount.

       {¶ 26} R.C. 2953.07 states that “[u]pon the hearing of an appeal . . ., the appellate

court may affirm the judgment or reverse it, in whole or in part, or modify it, and order the

accused to be discharged or grant a new trial.” Crim.R. 33(A)(4) authorizes a new trial upon

a finding that a conviction is not supported by sufficient evidence, but also that “[i]f the

evidence shows that the defendant is not guilty of a degree of crime for which he was
convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court

may modify the verdict or finding accordingly, without granting or ordering a new trial, and

shall pass sentence on such verdict or finding as modified.” R.C. 2945.79(D) likewise so

provides, and further states that the power to modify the verdict “extends to any court to

which the cause may be taken on appeal.”

        {¶ 27} The Supreme Court has held that the power “to modify a verdict [applies] if the

evidence shows the defendant is not guilty of the degree of the crime for which he was

convicted, but is guilty of a lesser included offense.” State v. Butler, 11 Ohio St.2d 23, 36, 227

N.E.2d 627 (1967). An offense is a lesser included offense where all the elements of such

offense are present with others in the offense charged in the indictment. State v. Shoe, 20

Ohio App.2d 344, 254 N.E.2d 382 (2d Dist. 1969).

        {¶ 28} Defendant was convicted of possessing powdered cocaine in an amount that

equaled or exceeded one thousand grams in violation of R.C. 2925.11(A), a first degree felony

for which a maximum prison term of ten years is mandated. R.C. 2925.11(C)(4)(f). The

next lower range of controlled substance amounts that was involved in Defendant’s attempt is

five hundred or more grams of powdered cocaine but less than one thousand grams, which is a

felony of the first degree for which the penalty is one of the range of prison terms prescribed

for a felony of the first degree by R.C. 2929.14(A)(1), imposed as a mandatory prison term.

R.C. 2925.11(C)(4)(e). An attempt to violate R.C. 2425.11(A) is a lesser included offense of

that section because the attempt carries a lesser penalty, the possession offenses cannot, as

statutorily defined, ever be committed without an attempt to commit it, as statutorily defined,

also being committed, and completed possession is not required to prove an attempt. State v.

Deem.
       {¶ 29} Pursuant to the authority conferred on us by R.C. 2945.79(D) and Crim.R.

33(A)(4), we modify the judgment of conviction from which this appeal is taken to find

Defendant guilty of an attempt to possess cocaine in an amount equal to or exceeding one

thousand grams, in violation of R.C. 2925.11(A) and 2923.02(A). As modified, the judgment

is affirmed in part, but reversed, in part, with respect to the sentence the trial court imposed

pursuant to R.C. 2925.11(C)(4)(f). That sentence is reversed and vacated, and the case is

remanded to the trial court for the limited purpose of imposing sentence for the modified

conviction pursuant to R.C. 2923.02(E)(1).

       {¶ 30} So Ordered.

       Costs to be paid as stated in App.R. 24.

       Pursuant to Ohio App.R. 30(A), it is ordered that the Clerk of the Clark County Court

of Appeals shall immediately serve notice of this judgment upon all parties and make note in

the docket of the mailing.



                              ______________________________________
                              THOMAS J. GRADY, PRESIDING JUDGE



                              ______________________________________
                              MIKE FAIN, JUDGE



                              ______________________________________
                              MARY E. DONOVAN, JUDGE


Copies mailed to:

Andrew Picek
Asst. Pros. Attorney
50 E. Columbia St., 4th Flr.
P.O. Box 1608
Springfield, OH 45501
Sarah G. LoPresti
Asst. State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215

Hon. Douglas M. Rastatter
101 N. Limestone Street
Springfield, OH 45502
