State v. Bange

2011 Ohio 378

• Court: Ohio Court of Appeals
• Decided: January 25, 2011
• Docket: 10CA3160
• Status: Published

Opinion

[Cite as State v. Bange, 2011-Ohio-378.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA3160 : v. : : DECISION AND SETH A. BANGE, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 1-25-11

APPEARANCES:

Lori J. Rankin, Chillicothe, Ohio, for Appellant.

Michael Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

Kline, J.:

{¶1} Seth A. Bange appeals his conviction for aggravated possession of

Oxycodone. Bange contends both that his conviction is not supported by sufficient

evidence and that his conviction is against the manifest weight of the evidence. For

both of these issues, Bange contends that the State did not present evidence of the bulk

amount of extended release Oxycodone tablets. We, however, find that the State’s

expert specifically testified as to the bulk amount of extended release Oxycodone

tablets. And using State’s Exhibit 1, the same expert explained his reasoning. As such,

we find that Bange’s conviction is supported by sufficient evidence, and we find that

Bange’s conviction is not against the manifest weight of the evidence. Accordingly, we

affirm the judgment of the trial court. Ross App. No. 10CA3160 2

I.

{¶2} On May 1, 2008, detectives from the Ross County Sheriff’s office, along with

other members of the U.S. Route 23 Drug Task Force, served a search warrant in Ross

County, Ohio. Among other areas searched, the officers searched a car rented by

Shanelle Graves. Graves and Bange had driven the car from Columbus to Ross

County.

{¶3} When the officers searched the car, they discovered a sock under the front

driver’s seat. Inside the sock were two baggies. The second baggie contained 81

tablets. At trial, an expert from Ohio’s Bureau of Criminal Identification and

Investigation testified that the tablets weighed 23.7 grams and contained Oxycodone.

{¶4} The State also produced a forensic scientist from the Forensic Biology and

DNA Section of Ohio’s Bureau of Criminal Identification and Investigation. This expert

testified that he had tested samples from Bange as well as the sock found in the car.

And he testified that the DNA samples taken from the sock were consistent with

Bange’s DNA profile.

{¶5} Finally, the State produced Robert H. Amiet. Amiet is a pharmacist who

works as a compliance specialist with the Ohio State Board of Pharmacy. Amiet

identified the tablets as Oxycodone extended release tablets with a strength of 40 mg.

And he testified that the bulk amount for 40 mg Oxycodone tablets was 12 tablets.

{¶6} After trial, the jury convicted Bange of aggravated possession of Oxycodone

in an amount equal to or exceeding five times the bulk amount but less than 50 times

the bulk amount in violation of R.C. 2925.11(C)(1)(c), a felony of the second degree. Ross App. No. 10CA3160 3

The trial court then sentenced Bange to four years incarceration based on his

conviction, with a mandatory three-year term of post-release control.

{¶7} Bange appeals and assigns the following two errors for our review: I. “IN

VIOLATION OF DUE PROCESS, MR. BANGE WAS FOUND GUILTY OF

AGGRAVATED POSSESSION OF OXYCODONE WHEN SUCH A FINDING WAS NOT

BASED ON SUFFICIENT EVIDENCE.” And, II. “IN VIOLATION OF DUE PROCESS,

MR. BANGE WAS FOUND GUILTY OF AGGRAVATED POSSESSION OF

OXYCODONE WHEN SUCH A FINDING WAS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.”

II.

{¶8} For both assignments of error, Bange contends that the State “failed to prove

the bulk amount for [O]xycodone extended release tablets.” Bange’s Brief at 4. As

such, we will initially explain the significance of the bulk amount before specifically

addressing Bange’s sufficiency and manifest weight arguments.

{¶9} Under the statute that prohibits possession of illicit drugs, the level of offense

is dependant on the amount and type of drugs possessed. The relevant drug in this

case, Oxycodone, is a schedule II controlled substance. R.C. 3719.41 SCHEDULE II

(A)(1)(n). Specifically, the statute relies on multiples of the “bulk amount” and

determines for a schedule II substance that the offense may be a fifth-degree felony, a

third-degree felony, a second-degree felony, or a first-degree felony depending on how

many multiples of the bulk amount the offender possessed. See R.C.

2925.11(C)(1)(a)–(e). Ross App. No. 10CA3160 4

{¶10} In relevant part, the bulk amount of a controlled substance means “[a]n

amount equal to or exceeding * * * five times the maximum daily dose in the usual dose

range specified in a standard pharmaceutical reference manual[.]” R.C.

2925.01(D)(1)(d). Bange claims that the State failed to produce evidence of the bulk

amount specifically for extended release tablets. At trial, Amiet produced pages from a

standard pharmaceutical reference manual (State’s Exhibit 1), specifically American

Hospital Formulary Service Drug Information. The Ohio Pharmacy Board has

recognized and approved this work. Ohio Adm.Code 4729-11-07(F).

{¶11} The manual or work, however, contains two relevant listings for Oxycodone.

The first is a general listing for “Oxycodone Hydrochloride Tablets USP” (“non-

extended-release-tablet listing”). The second listing is specifically for “Oxycodone

Hydrochloride Extended-Release Tablets” (“extended-release-tablet listing”). And each

listing has a different entry for the usual adult dose.

{¶12} The non-extended-release-tablet listing states that the usual adult dose is “2

to 15 mg every 4 to 6 hours as needed; may be increased if severe pain is present.”

The extended-release-tablet listing states that “[d]osage must be individualized by the

physician according to the severity of pain and patient response. * * * The 80-mg and

160-mg dose should be used in opioid tolerant patients only. Fatal respiratory

depression may occur in patients who have not previously received opioids.”

(Emphasis in original). Amiet specifically testified that “the bulk amount for the

Oxycodone, extended release tablet, forty milligrams is twelve tablets.” Trial Transcript,

Day Two, at 34. Amiet based this conclusion on the usual dose entry of the non-

extended-release-tablet listing. Amiet stated that the maximum usual daily dose was 15 Ross App. No. 10CA3160 5

mg every four hours. Under this dosage, a patient would ingest 90 mg of Oxycodone

daily. Five times this amount is 450 mg, and we then divide this amount by 40 mg, for

each tablet. This calculation indicates that 11.25 tablets are required to equal the bulk

amount. Amiet rounded this figure up to 12 tablets in Bange’s favor. Bange contends

that this fails to establish the bulk amount for extended-release tablets.

A. Sufficiency of the Evidence

{¶13} In his first assignment of error, Bange contends that insufficient evidence

exists to support his conviction. When reviewing a case to determine whether the

record contains sufficient evidence to support a criminal conviction, our function “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.” State v. Jenks (1991), 61 Ohio St.3d 259,

paragraph two of the syllabus, superseded on other grounds. See, also, Jackson v.

Virginia (1979), 443 U.S. 307, 319.

{¶14} This test raises a question of law and does not allow the court to weigh the

evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full

play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility

of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,

79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Ross App. No. 10CA3160 6

{¶15} In reviewing the evidence, we have little difficulty in determining that the State

produced sufficient evidence of the bulk amount. The State produced an expert witness

who testified that the bulk amount for 40 mg extended-release tablets was twelve

tablets. The State’s witness relied on a standard pharmaceutical manual to reach this

conclusion. Bange’s argument that Amiet should have relied on the extended-release-

tablet listing rather than the non-extended-release-tablet listing goes to weight and not

admissibility. As such, considering Amiet’s testimony and construing the evidence in

favor of the prosecution, we find that Bange’s conviction is supported by sufficient

evidence.

{¶16} Accordingly, we overrule Bange’s first assignment of error.

B. Manifest Weight of the Evidence

{¶17} In his second assignment of error, Bange contends that his conviction is

against the manifest weight of the evidence. When determining whether a criminal

conviction is against the manifest weight of the evidence, we “will not reverse a

conviction where there is substantial evidence upon which the [trier of fact] could

reasonably conclude that all the elements of an offense have been proven beyond a

reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of the

syllabus. See, also, State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41.

We “must review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether, in resolving conflicts in

the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial granted.”

Smith at ¶41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-71; State v. Ross App. No. 10CA3160 7

Martin (1983), 20 Ohio App.3d 172, 175. “The discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” Martin at 175 (citations omitted).

{¶18} “Even in our role as thirteenth juror we are constrained by the rule that the

weight to be given evidence and the credibility to be afforded testimony are normally

issues to be determined by the trier of fact. * * * The fact finder is best able to view the

witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony. * * * Thus, we will

only interfere if the fact finder clearly lost its way and created a manifest miscarriage of

justice.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555, at ¶13 (citations

within quote omitted).

{¶19} After reviewing the record, we find that there is substantial evidence in the

record supporting Bange’s conviction. Bange essentially contends that the jury should

not have credited Amiet’s testimony establishing the bulk amount because he relied on

the non-extended-release-tablet listing. However, the listings in the manual (State’s

Exhibit 1) provide sound reasons for Amiet’s conclusions.

{¶20} Based on the language of the extended-release-tablet listing, it is not clear

whether the listing even provides a maximum usual daily dose for extended-release

tablets because the listing merely states that the dosage must be individualized. Under

these circumstances, we see no reason why a pharmacist cannot determine that

another listing provides a sufficient basis for stating the maximum daily dose in the

usual dose range. Ross App. No. 10CA3160 8

{¶21} Also, the language of the extended-release-tablet listing in the manual (again,

as we stated earlier, State’s Exhibit 1) indicates that the 80 and 160 mg doses are for

individuals who have developed an opioid tolerance. Likely, these doses would not be

considered within the usual dose range because most patients, presumably, have not

developed an opioid tolerance. The extended-release-tablet listing also indicates that

the next smallest dosage from 80 mg is the 40 mg tablet. The listing also provides that

one tablet should be taken every twelve hours. The most plausible interpretation of the

extended-release-tablet listing is that the maximum daily dose in the usual range is two

40 mg tablets. The bulk amount of a drug is five times the maximum daily dose in the

usual dose range. R.C. 2925.01(D)(1)(d). Therefore, this listing likely indicates that the

bulk amount is ten 40 mg tablets rather than twelve.

{¶22} We hasten to add that we do not hold that Amiet should have used the

extended-release-tablet listing. Rather, we merely point out that the difference between

the two entries is slight, and there is no reason to believe use of the extended-release-

tablet listing would have any effect on the outcome of this case. We conclude that it is

well with the expertise of a pharmacist to choose which listing was the more appropriate

one. We find that substantial evidence supported the jury’s verdict that Bange

possessed more than five times the bulk amount of Oxycodone.

{¶23} Accordingly, we overrule Bange’s second assignment of error.

III.

{¶24} Having overruled both of Bange’s assignments of error, we affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Ross App. No. 10CA3160 9

Harsha, J., concurring in judgment only:

{¶25} As an initial matter, I conclude there is no merit to the State’s assertion that

Bange waived the sufficiency of the evidence argument by failing to renew his Crim.R.

29(A) motion. See by analogy, State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-

1186, at ¶13 (failure to move for judgment of acquittal does not waive a sufficiency

argument on appeal), citing State v. Jones (2001), 91 Ohio St.3d 335, 446, and State v.

Carter (1997), 64 Ohio St.3d 218.223.

{¶26} As for the merits, I conclude the State’s expert was not free to substitute the

dosage specification of the regular tablet form of oxycodone hydrochloride for the

dosage specifications of the extended-release version of the drug. As the principal

opinion points out, R.C. 2925.01(D)(1) provides the “bulk amount” of oxycodone

hydrochloride is an “amount equal to or exceeding * * * five times the maximum daily

dose in the usual dose range specified in a standard pharmaceutical reference manual.”

State’s Exhibit 1 is a photo copy of two pages from a source that a State’s witness

identified as being such a manual. Under the heading “Oral Dosage Forms,” the exhibit

identifies three distinct forms of orally administered oxycodone: 1) oral solution; 2)

tablets; and 3) extended-release tablets. Each form of oxycodone has a separate

subheading captioned “Usual Adult Dose,” which is specific to that form of the drug. For

instance, in the oral solution form, the usual adult does is specified as “5 mg every three

to six hours as needed.” Thus, the maximum daily does in the usual dose range for the

oral solution is 5 mg x 8 (24 hr. ÷ 3 hr. interval) = 40 mg. However, the usual adult dose

for the regular tablet form of oxycodone is specified as “5 to 15 mg. every 4 to 6 hours

as needed.” Thus, the maximum daily dose in the usual dose range for this form of Ross App. No. 10CA3160 10

oxycodone is 15 mg. x 6 (24 hr. ÷ 4 hr. interval) = 90 mg. Comparing the two forms, it is

clear that they do not have the same dosage rates and are not interchangeable.

{¶27} When we look at the Usual Adult Dose for the extended-release form of the

oxycodone tablets, we see the instruction “Oral, administer dose every 12 hours.” We

must then read the accompanying “Note(s)” to determine what the maximum daily dose

in the usual dose range is. The first Note indicates the dosage must be individualized

by the physician according to patient response. It also instructs that the extended

release form is not intended for use as an “as needed” analgesic. Finally, it indicates

that in order to avoid potentially fatal reactions, the 80 and 160 mg. doses are only

appropriate for patients who have developed an opioid tolerance. This information must

be considered in conjunction with the information provided in another subheading called

“Strength(s) usually available.” There the manual lists 10 mg., 20 mg., 40 mg., 80 mg.,

and 160 mg. as being usually available in the United States. When these available

strengths are considered with the note instructing doctors to limit use of the two high-

strength versions of the tablet, it is obvious that 40 mg. of extended-release oxycodone

is the usual adult dose. And because it can be administered every 12 hours, or 2 times

a day, the maximum daily dose in the usual dose range for this form of the drug is 80

mg., not 90 mg. as the principal opinion and the State’s expert suggest.

{¶28} In sum, the manual lists three different forms of oral oxycodone, each having

its own maximum dose in the usual dose range. Those dosages are not

interchangeable. Nonetheless, based on Exhibit 1, it is apparent that the bulk amount

for extended-release oxycodone is 400 mg. (5 times the maximum daily dose in the

usual dose range). And in its 40 mg. extended-release form, it takes only 10 tablets to Ross App. No. 10CA3160 11

equal or exceed five times the bulk amount. The State’s expert incorrectly testified that

12 tablets would equal or exceed five times the bulk amount. This testimony actually

overstated the prohibited amount and worked to the appellant’s benefit, i.e. it was

harmless. And because Exhibit 1 was properly introduced before the jury, the State’s

evidence satisfied both the sufficiency and manifest weight of the evidence burdens.

Thus, I concur in judgment. Ross App. No. 10CA3160 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED, and Appellant shall pay the 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 Ross County 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. Exceptions.

Harsha, P.J.: Concurs in Judgment Only with Opinion. McFarland, J.: Concurs in Judgment Only.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.