APPEAL from the Franklin County Court of Common Pleas No. 08CR-11-8033.
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Kirk A McVay, for appellant.
(¶ 1} Defendant-appellant, Shamso Jama ("Jama"), appeals from the December 18, 2012 amended judgment entry of the Franklin County Court of Common Pleas, finding her guilty of one count of possession of drugs, a felony of the second degree. Because we find the conviction is supported by the manifest weight of the evidence, we affirm.
I. PROCEDURAL HISTORY
(¶ 2} This is the third time this case has been on appeal to this court. See State v. Jama, 189 Ohio App.3d 687, 2010-Ohio-4739 (10th Dist.) ("Jama I "); State v. Jama, 10th Dist. No. 11AP-210, 2012-Ohio-2466 ("Jama II "). The procedural history underlying the prior two appeals was sufficiently stated in the Jama II decision as follows:
On November 12, 2008, defendant * * *, Shamso Jama ("Jama"), was indicted on the following two charges: (1) Count 1 of the indictment, aggravated trafficking in drugs, to wit: cathinone, more commonly known as khat,  a Schedule I controlled substance, in an amount equal to or exceeding 3, 000 grams,  a felony of the first degree; and (2) Count 2 of the indictment, aggravated possession of drugs, to wit: cathinone, more commonly known as khat, a Schedule IV controlled substance, in an amount equal to or exceeding 50 times the bulk amount but less than 100 times the bulk amount, a felony of the second degree.
A jury-waived trial began on January 20, 2009. Prior to the commencement of the trial, the trial court granted the State's motion to amend the aggravated possession of drugs charge. The amendment changed the name of the drug from cathinone to cathine, thereby properly classifying it as a Schedule IV drug. No other changes were made to the indictment.
Following the bench trial, the trial judge found appellant not guilty of the aggravated trafficking in drugs offense, but guilty of the aggravated possession of drugs offense. Specifically, the trial court found that "[o]n count two of the indictment, the Court will enter a finding of guilty." (Jan. 23, 2009 Tr. 6.) The court further stated: "So you have been found guilty of aggravated possession of drugs, a felony of the second degree." (Jan. 23, 2009 Tr. 6.) On January 23, 2009, the trial court filed an entry setting forth its verdict. The written verdict stated Jama had been found guilty of "Count Two of the Indictment, to wit: POSSESSION OF DRUGS, a Felony of the Second Degree." (Emphasis sic.) (R. 24-25.)
The case was scheduled for sentencing several times. On August 17, 2009, one day before the scheduled sentencing date of August 18, 2009, trial counsel for Jama filed a "motion for issuance of nunc pro tunc order." (Emphasis sic.) In the motion, counsel argued the trial court's January 23, 2009 entry failed to indicate that Jama had been found guilty of the amended count two. Jama's counsel further argued the trial court failed to make a finding as to the quantity of drugs at issue, and moved the court to find Jama guilty of the amended count two as a felony of the third degree, rather than a felony of the second degree.
At the sentencing hearing, the trial court clarified that the guilty finding previously entered should have been a finding of guilt as to possession of drugs, rather than to aggravated possession of drugs. The trial court went on to grant the motion, reducing the offense from a second-degree felony to a third-degree felony based upon the theory that it had the authority to do so using a nunc pro tunc order. This judgment was journalized on August 21, 2009. The relevant portion of that judgment states as follows:
Prior to the sentencing hearing the Court considered Defendant's Motion for Issuance of a Nunc Pro Tunc Order. After consideration of the arguments of counsel and a review of the Transcript of the Proceedings, the Court amended the finding of guilty to GUILTY to POSSESSION OF DRUGS IN AN AMOUNT GREATER THAN BULK BUT LESS 50 TIMES THE BULK, in violation of R.C. 2925.11, a Felony of the Third Degree.
(Emphasis sic.) (R. 61, 63, 65-67.)
The trial court imposed a sentence which included community control, but failed to provide the required findings to rebut the presumption for prison on a third-degree felony drug offense. The State filed a combined appeal of right and an appeal seeking leave to appeal, asserting two assignments of error. One assignment of error involved the trial court's failure to make the necessary findings for sentencing. The second assignment of error involved the use of the nunc pro tunc order to amend the guilty verdict. Jama also filed an appeal. Jama's assignments of error challenged the trial court's failure to evaluate the credentials of her interpreter and its failure to ensure she received adequate translations. We overruled Jama's two assignments of error. However, we granted the State's leave to appeal, sustained its assignment of error as to the misuse of the nunc pro tunc order, and found its assignment of error on sentencing moot. As a result, we reversed the trial court's judgment, vacated the amended verdict, and reinstated the original verdict of January 23, 2009, in which Jama was found guilty of a second-degree felony. We limited our decision to the improper use of the nunc pro tunc order and expressed no opinion as to whether there could be another procedure used to amend the original verdict. See State v. Jama, 189 Ohio App.3d 687, 2010-Ohio-4739 (10th Dist.) ("Jama I").
Following remand, the trial court held a status conference on October 19, 2010. In order to address Jama's concerns created by the reinstatement of the original verdict, it was agreed that counsel for Jama would file a written motion and the State would have an opportunity to respond, followed by a reply brief filed on Jama's behalf. Jama's counsel further indicated Jama intended to file a motion for new trial. The State objected, stating it did not believe such a motion was the proper method by which to proceed in the case. The trial court reiterated its belief that a method did exist by which it could modify the original guilty finding to one involving a lesser included offense.
On November 18, 2010, counsel for Jama filed a motion for new trial and/or modification of the verdict, citing Crim.R. 33(A)(4) and (B). The defense argued the verdict was not sustained by sufficient evidence and was contrary to law because the trial court failed to make a specific finding as to the quantity of cathine involved. The defense also argued the motion should be permitted, despite counsel's failure to file it within 14 days of the verdict, due to unavoidable prevention, claiming her original trial counsel were ineffective in discovering the insufficiency of the form of the verdict and that the State's filing of an appeal caused the trial court to lose jurisdiction, thereby preventing it from hearing the motion. The State, on the other hand, argued unavoidable prevention could not be shown for two reasons. First, the State asserted the purported flaw in the verdict could have easily been raised within 14 days and counsel's ineffectiveness was not a basis for unavoidable prevention. Second, the State submitted it did not file its appeal until well after the 14-day time frame had expired.
On February 3, 2011, a hearing was held to address Jama's motion for new trial. Defense counsel reiterated the arguments made in Jama's brief, while the State continued to argue that the motion was procedurally improper. The trial court stated it had reviewed the testimony in the case, specifically the testimony of the chemist who weighed and analyzed the khat. The trial court determined the khat at issue weighed 4, 634.9 grams, which was less than 50 times the bulk amount needed to constitute a felony of the second degree (i.e., 6, 000 grams or more). Concluding that the evidence in the case did not support a conviction for possession of drugs as a felony of the second degree, the trial ...