By Kathy Laird
Simply put by Crawford County Prosecutor Matt Crall: “It’s a bad day for drug dealers.”
Crawford County Common Pleas Court Judge Sean Leuthold won the appeal sent to the Third District Court of Appeals by Bucyrus attorney Adam Stone on behalf of his client Tyler R. Ward.
A jury convicted Ward in February on three counts of trafficking in heroin and one count of trafficking in fentanyl. Ward was sentenced to a total of 54 months in prison.
The appeal had two challenges on Leuthold’s ruling.
First, Ward was charged in trafficking in fentanyl. Fentanyl is a deadly substance that is often mixed into heroin before it hits the street. Ward contended he did not know that the heroin was laced with fentanyl and therefore should not have been charged with trafficking in that drug. At trial, the state filed a motion for a proposed jury instruction explaining “knowledge” to the jury as it considered verdicts in the case. Ward objected, but Leuthold granted the prosecution’s instruction.
The second error according to Ward was Leuthold’s actual sentencing of the defendant. Ward accused Leuthold of sentencing him to the maximum sentence on each of the four counts to be served consecutively. He contended Leuthold did so with no explanation.
In regard to the definition of “knowledge” the state instruction read (in part): “ A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result and he is aware that his conduct will probably be of a certain nature.”
The instruction went on to say that the State of Ohio wasn’t under a burden to prove that the defendant had knowledge of the underlying nature of the controlled substance (fentanyl in the heroin). Instead the jury needed to look at all the facts and circumstances of the case.
Ward was arrested as the result of drug deals he completed with a confidential informant. Originally, the confidential informant made a deal with Ward’s girlfriend to buy heroin and Xanax. When arriving at the decided destination, Ward’s girlfriend was too “strung out” and unable to interact, so Ward conducted and completed the drug buy. During a second buy, Ward was videotaped by the confidential informant, at which time he told the informant that his girlfriend had sold his (Ward’s) cousin heroin containing fentanyl that had resulted in his (Ward’s) cousin’s death.
Testing by the Bureau of Criminal Investigation proved both samples of the heroin contained fentanyl.
The appellate court ruled upholding both the fentanyl trafficking charge and the jury instruction submitted by the state.
The second ruling regarded sentencing.
Ward argued in what the appellate court called a “rather convoluted” manner that the court erred when it failed to merge two counts pertaining to one drug buy. Ward argued that the charges involved the same compound mixture and should be merged. Ward was charged in two separate charges of trafficking in heroin and trafficking in fentanyl.
The court disagreed saying there was no evidence to support the fentanyl as “filler” in the heroin. Ward contended that because of his willingness to take responsibility for his actions and his period of improved behavior prior to these instances and the overall severity of the sentence that Leuthold imposed was contrary to law.
The appellate court upheld Leuthold’s sentencing because while the reasons he cited were taken into consideration, the court also was obliged to consider the defendant’s prior criminal history. Considering that history, the court agreed that Leuthold’s sentencing was justified.
According to Crall, this is a precedent setting case.
“There is no other case in the third district that has addressed the issue of a separate count of trafficking when fentanyl is detected in any drug,” Crall said. “Fentanyl is killing people because it’s a cheap addition to heroin. In this case, BCI was able to get the results to us in a timely fashion allowing us to pursue separate trafficking charges.”
Crall said Crawford County would continue to prosecute in this manner if fentanyl is found during chemical testing.
When asked about field testing for fentanyl, Crall said, “It’s too dangerous to field test for fentanyl. We’ve seen officers overdose by simply touching the substance.”
Crall noted that the Bureau of Criminal Investigation in Columbus has hired additional chemists to respond to the need for testing.
“If you’re selling drugs in Crawford County, and fentanyl is present, you are going to get charged with both,” Crall said.
The decision of the appellate court was a unanimous 3-0.