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May 30, 2006

In State v. Moore, the court reiterates for the umpteenth time that preparation of drugs for sale and sale of drugs are not allied offenses of similar import, and that the defendant can be sentenced for both. There's also case law which holds that possession and trafficking aren't allied offenses, but there may be a situation where it is.


There's an old case out of the 1st District, State v. Jennings, 42 Ohio App. 3d 179 (Hamilton Cty. 1987), which holds that when charges of both sale and possession of drugs are based on a single transaction involving the same type and quantity of drugs, and the defendant did not possess any quantity in excess of the amount sold, the defendant may be indicted for both sale and possession, but can be convicted of only one offense. The Cuyahoga County court has never squarely addressed that situation, although it came close in In the Matter of Coleman (Dec. 30, 1993), Cuyahoga App. No. 65459, and appeared sympathetic to it.

What's also interesting about Moore is its treatment of the testimony of the state's chemist, who had not been the one who actually performed the tests on the drugs. The defendant claimed that this was a violation of his confrontation rights, but the court relied on RC 2925.51 to get around that. That section basically provides that a lab report by BCI or SIU is prima facie evidence of the "content, identity, and weight, or the existence or number of dosages of the substance tested." The court noted that the lab reports admitted at trial were thus prima facie evidence, and that if the defendant wanted to have the chemists who actually performed the tests testify, he would have had to demand that testimony within seven days of receiving the report, as the section also provides.

It's not clear from reading the decision, though, whether the prosecution complied with the statute's other requirements: that the defendant be provided with a copy of the lab report, and that the report include a notarized statement by the person who performed the tests, stating the person's qualifications and how the tests were performed. I can't ever remember having a case where the prosecutor gave me a copy of the report, let alone where there was a notarized statement attached to it. It may be that the prosecutor in Moore did do that, but I think it's pretty clear that if the state doesn't, it can't rely on the "prima facie" provisions of the statute.

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