State v. Chaffin

282 N.E.2d 46, 30 Ohio St. 2d 13, 59 Ohio Op. 2d 51, 1972 Ohio LEXIS 472
CourtOhio Supreme Court
DecidedApril 26, 1972
DocketNo. 71-471
StatusPublished
Cited by144 cases

This text of 282 N.E.2d 46 (State v. Chaffin) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chaffin, 282 N.E.2d 46, 30 Ohio St. 2d 13, 59 Ohio Op. 2d 51, 1972 Ohio LEXIS 472 (Ohio 1972).

Opinion

Stern, J.

We affirm the judgment of the Court of Appeals.

Defendant raises several propositions of law, the first of which pertains to the bill of particulars filed by the state. In his request for a bill of particulars, defense counsel asked: “What, if any, scientific experiment was conducted to determine the nature of the alleged narcotic which the defendant allegedly had in his possession on January 23, 1970?” In response, the state answered, “Duquenois test was run.” In response to defendant’s further inquiry pertaining to the result of that test, the state answered that “the vegetation was identified as Cannabis Sativa.”

At trial, the state’s expert witness, on direct examination, testified that he had run the modified Duquenois test on the confiscated vegetation, and that he had received positive results therefrom. In addition, he testified that prior to running the modified Duquenois test he had examined the material under a microscope to determine if it had the microscopic characteristics of Cannabis Sativa. He testified that this was a normal procedure, and that the result of this test was also positive. No objection was made at that time, and, upon cross-examination, defense counsel made inquiries concerning both the Duquenois test and the microscopic examination.

Defendant’s expert witness testified that the Duquenois test, even in its modified version, is not a scientifically conclusive test for Cannabis; that there are other commonly found vegetations which will produce the same chemical result. Having shown by evidence that the results of the Duquenois test were not conclusive proof that the substance was Cannabis, the defendant then moved to have the testimony concerning the microscopic examination stricken from the record on the ground that the state’s answer in the bill of particulars, that the test used to determine the nature of the alleged narcotic was the Duquenois test, barred the state from introducing evidence concerning results of any test run on the confiscated vegeta[15]*15tion, other than the Duquenois test. This motion was properly denied.

Section 10, Article I of the Ohio Constitution, provides, in part:

“* * * In any trial, in any court, the party accused shall be allowed * * * to demand the nature and cause of the accusation against him, and to have a copy thereof * *

As stated in State v. Lewis (1970), 21 Ohio St. 2d 203, 208:

“Those constitutional provisions may be satisfied by an indictment. However, where they are not, the prosecuting attorney is required on request to ‘furnish a bill of particulars setting up specifically the nature of the offense charged.’ See Section 2941.07, Revised Code.”

This does not, however, require the state to disclose its evidence. State v. DeRighter (1945), 145 Ohio St. 552, 556; paragraph four of syllabus in State v. Petro (1947), 148 Ohio St. 473; Foutty v. Maxwell (1962), 174 Ohio St. 35, 38; State v. Wilkinson (1969), 17 Ohio St. 2d 9, 11.

In this case, the defendant was indicted for selling a narcotic drug, which was further specified to be Cannabis. This in itself specified the nature of the offense charged, and the state’s answer in the bill of particulars merely substantiated that the charge was directed solely to the sale of Cannabis, and no other drug.

The instant case is readily distinguishable from State v. Fowler (1963), 174 Ohio St. 362, wherein the defendant was charged in the alternative with driving under the influence of liquor, narcotic drugs or opiates. In that case, the defendant was unable to ascertain from the indictment what, specifically, he was charged with.

In this ease, the defendant was not deprived of notice as to any element of the crime with which he was charged, and no new element was introduced by the state at trial. Neither the state, nor the defendant, was limited by the bill of particulars to the sole running of the Duquenois test. Both parties could have run any test which could have conclusively proved the nature of the confiscated vegetation, [16]*16and it is a matter of record that the state did furnish defendant’s counsel with a sample of the confiscated vegetation.

Accordingly, the testimony regarding the positive identification by microscopic examination was properly admitted.

Defendant’s second proposition of law is that the 20-to-40-year penalty prescribed by R. C. 3719.99(F) constitutes cruel and unusual punishment, in violation of Section 9, Article I of the Ohio Constitution, and the Eighth Amendment to the United States Constitution.

The defendant was found guilty of selling Cannabis Sativa on January 23, 1970. At that time, under R. C. 3719.01(D), Cannabis was included in the definition of “narcotic drugs,” and under R. C. 3719.99(F), the penalty for sale of a narcotic drug was 20 to 40 years. Mere possession of Cannabis, at that time, bore the penalty of a fine of not more than $10,000 and imprisonment for not less than two nor more than 15 years for a first offense. R. C. 3719.99(C).

Since that time, the General Assembly has thoroughly examined the nature and extent of the drug problem throughout this state. As a result of the General Assembly’s investigations and hearings, by the amendment of narcotics statutes, effective September 16, 1970, Cannabis was removed from the definition of narcotic drugs, and was included within the definition of hallucinogens. R. C. 3719.40. In addition, the penalty for mere possession was reduced to a fine of not more than $1,000 or imprisonment for not more than one year, or both, for a first offense. R. C. 3719.99 (N). However, the General Assembly did not reduce the penalty for the sale of Cannabis.

In McDougle v. Maxwell (1964), 1 Ohio St. 2d 68, this court held that the amendment of a criminal statute, reducing the punishment for operating a motor vehicle without the owner’s consent—from not less than one nor more than twenty years to a maximum of six months imprisonment and a $500 fine—did not render a more severe sen[17]*17tence, imposed under the former statute, cruel and unusual punishment. A fortiori, where an amendment pertains only to the classification of an offense, and in no way changes the penalty for the identical offense, the amendment in no way makes a sentence under the former statjrte cruel and unusual punishment. This amendment merely emphasizes the General Assembly’s awareness of the recent documentary information available concerning the use of Cannabis.

It being our duty to examine this 20-to-40-year sentence to determine whether it violates the “cruel and unusual punishments” sections of the Ohio and United States Constitutions, we note the language used by this court in McDougle, supra, at pages 69 and 70:

“It is generally accepted that punishments which are prohibited by the Eighth Amendment are limited to torture or other barbarous punishments, degrading punishments unknown at common law, and punishments which are so disproportionate to the offense as to shock the moral sense of the community.” Further, this court said: “Where the offense is slight, more may be prohibited than savage atrocities. However, the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community.” See Kasper v. Brittain (1957), 245 F. 2d 92, and State v. Juliano (1970), 24 Ohio St. 2d 117.

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Cite This Page — Counsel Stack

Bluebook (online)
282 N.E.2d 46, 30 Ohio St. 2d 13, 59 Ohio Op. 2d 51, 1972 Ohio LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chaffin-ohio-1972.