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State of Ohio v. Anthony L. Dixon

October 14, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANTHONY L. DIXON DEFENDANT-APPELLANT



T.C. NO. 2009 CR 4134/3 (Criminal appeal from Common Pleas Court)

The opinion of the court was delivered by: Froelich, J.

Cite as State v. Dixon,

OPINION

{¶1} After the Montgomery County Common Pleas Court overruled his motion to dismiss his indictment on double jeopardy grounds, Anthony L. Dixon pled no contest to aggravated possession of drugs, in violation of R.C. 2925.11(A), a fifth degree felony. As part of the plea, the State dismissed a charge of possession of drug paraphernalia. The trial court found him guilty and sentenced him to community control.

{¶2} Dixon appeals from his conviction, challenging the trial court's denial of his motion to dismiss. For the following reasons, the trial court's judgment will be affirmed.

I

{¶3} The sole witness at the hearing on Dixon's motion to dismiss was Douglas Kowalski, a narcotics detective with the Kettering Police Department. Kowalski's testimony established the following facts.

{¶4} On November 11, 2009, Kowalski and other Kettering police officers executed a search warrant at 1732 Renee Drive, Apartment 103. When Kowalski entered, he smelled an overwhelming odor of burnt marijuana inside the apartment, and he observed pills, marijuana, and "other various items of contraband" scattered throughout the apartment. A marijuana pipe, rolling papers, pills and a plate were located in the living room. A variety of pills, a digital scale with cocaine and marijuana residue, two snorting straws and a plate were located on the dining room table. A drug in powder form, divided into five lines, and one of the straws were on the dining room plate. The officers tested the powder for cocaine and heroin with negative results. The substance was sent to the laboratory and subsequently identified as oxycodone, a Schedule II drug.*fn1

{¶5} Three adults, including Dixon (a non-resident), were inside the apartment; the three were detained in the common hallway outside of the apartment while the officers collected evidence. Dixon admitted that the plate with the powder and straw was his. The other two adults told officers that Dixon had also brought some pink pills, which were later identified as amphetamine; Dixon did not admit to that fact.

{¶6} Later that night, Dixon and the other adults were taken to the Kettering jail. The following day, Dixon was charged with misdemeanor possession of drugs under R.C. 2925.11(A) and misdemeanor possession of drug paraphernalia. With respect to Dixon's possession charge, the affidavit stated that "defendant knowingly possessed various scheduled prescription medications not prescribed to him ***, [a] misdemeanor 3;" no specific type of drug was identified. Kowalski testified at the motion to dismiss hearing in common pleas court that the misdemeanor possession charge was based on the pills that were lying around the apartment. The affidavit for the misdemeanor possession of drug paraphernalia charge stated that Dixon "did knowingly possess with purpose to use drug paraphernalia, to wit: a marijuana smoking pipe, a digital scale, snorting straw and rolling papers, contrary to and in violation of Section 2925.14(C)(1) of the Ohio Revised Code, misdemeanor 4."

{¶7} On November 19, 2009, Dixon pled guilty in the Kettering Municipal Court to the misdemeanor drug possession charge; in exchange, the drug paraphernalia charge was dismissed. On December 18, 2009, after a pre-sentence investigation had been completed, the court sentenced Dixon to 60 days in jail, 55 of which were suspended, and credit was given for three days served. The court ordered that Dixon pay fines and court costs and placed him on probation for two years.

{¶8} It appears to be undisputed that Dixon entered his guilty plea in the municipal court before the powder was identified as oxycodone. It is unclear, however, whether the identity of the powder was known prior to the December 18, 2009 sentencing.

{¶9} In January 2010, Dixon was indicted for possession of oxycodone, in violation of R.C. 2925.11(A), and possession of drug paraphernalia, namely the plate and straw. Specifically, the indictment stated that Dixon "on November 11, 2009 *** did knowingly obtain, possess or use a controlled substances, to-wit: Oxycodone, a drug included in Schedule I or II ***." The indictment further alleged that Dixon "on November 11, 2009 *** did knowingly use, or possess with purpose to use, drug paraphernalia, to wit: plate and straw ***."

{ΒΆ10} Dixon moved to dismiss the indictment on double jeopardy grounds. Dixon argued that he had already been convicted and sentenced for drug possession and possession of drug paraphernalia arising out of the events on November 11, 2009. After a hearing, the trial court overruled the motion with respect to the possession of oxycodone charge and the portion of the possession of drug paraphernalia charge based on the plate. The court dismissed the portion of the possession of drug ...


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