State v. Delfino, 490 N.E.2d 884 (Ohio 1986). · Go Syfert
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State v. Delfino, 490 N.E.2d 884 (Ohio 1986). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases · …ossession of a substance or substances in schedule i or ii, with the exception of marijuana, is a single and separate offense. at p. 888 ✓
120 citation events (100 in the last 25 years) across 7 distinct courts.
Strongest positive: ANDREWS (RYAN) VS. STATE (nev, 2018-03-01)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Under fire — who is questioning this case
Citations from separate opinions of courts that could overrule this case. This is a warning signal, not a treatment change. The flag color above is unaffected.
Dissent Andrews v. State (2018)
“Delfino, 22 Ohio St.3d 270 , 490 N.E.2d 884 , 888 (1986) ("[P]ossession of a substance or substances in Schedule I or II, with the exception of marijuana, is a single and separate offense."); cf. United States v. Martin, 302 F.Supp. 498 , 501 (W.D.”
Concurrence State v. Gustafson (1996)
“State v. Delfino (1986), 22 Ohio St.3d 270, 272-273 , 22 OBR 443, 445, 490 N.E.2d 884, 887 .”
Dissent In Re A.G. (2016)
“State v. Brewer, 121 Ohio St.3d 202 , 2009-Ohio-593 , 903 N.E.2d 284, ¶ 14 ; State v. Martello, 97 Ohio St.3d 398 , 2002-Ohio-6661 , 780 N.E.2d 250, ¶ 7 ; State v. Gustafson, 76 Ohio St.3d 425, 432 , 668 N.E.2d 435 (1996). {¶ 39} And our cases reviewing whether Article I, Section 10 of the Ohio Constitution bars multiple punishments for the same offense in the same proceeding have accorded…”
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) ANDREWS (RYAN) VS. STATE
Nev. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
ossession of a substance or substances in schedule i or ii, with the exception of marijuana, is a single and separate offense.
examined Cited as authority (verbatim quote) ANDREWS (RYAN) VS. STATE (2×)
Nev. · 2018 · signal: see · quote attribution · 2 verbatim quotes · confidence high
ossession of a substance or substances in schedule i or ii, with the exception of marijuana, is a single and separate offense.
discussed Cited as authority (quoted) Andrews v. State
Nev. · 2018 · quote attribution · 1 verbatim quote · confidence low
ach specific narcotic drug cannot be the basis for a separate count.
discussed Cited as authority (rule) State v. Jackson
Ohio Ct. App. · 2026 · confidence medium
Scioto App. No. 25CA4120 42 “ ‘Like all mental states, animus is often difficult to prove directly, but must be inferred from the surrounding circumstances.’ ” State v. Ramey, 2015- Ohio-5389, at ¶ 71 (2d Dist.), quoting Logan at 131 . “ ‘Thus, the manner in which a defendant engages in a course of conduct may indicate distinct purposes.’ ” Ramey, supra quoting State v. Whipple, 2012-Ohio-2938, ¶ 38 (1st Dist.). “ ‘Courts should consider what facts appear in the record that “distinguish the circumstances or draw a line of distinction that enables a trier of fact to reas…
discussed Cited as authority (rule) State v. Hayes
Ohio Ct. App. · 2025 · confidence medium
The conduct, the animus, and the import must all be considered.’” Id., quoting Ruff at ¶ 31 . {¶ 74} “[T]he General Assembly has made it clear from its decision to create separate offenses based on drug classification that drugs of different types can be punished separately.” Pendleton, 2020-Ohio-6833 at ¶ 18 , citing State v. Delfino, 22 Ohio St.3d 270, 274 (1986).
discussed Cited as authority (rule) State v. Johnson
Ohio Ct. App. · 2025 · confidence medium
Furthermore, the large plastic bag that Johnson pulled out of his pants and handed -23- Case No. 9-23-82 to Lieutenant Aiken contained multiple smaller bags, and the different substances were separated into separate plastic bags. {¶54} “[I]t is well established that ‘“the legislature intended the possession of different drug groups to constitute different offenses.”’” State v. Jones, 2024- Ohio-2959, ¶ 55 (3d Dist.), quoting State v. Polachek, 2010-Ohio-5421 , ¶ 27 (5th Dist.), quoting State v. Delfino, 22 Ohio St.3d 270, 273 (1986). “‘The argument that simultaneous possessi…
examined Cited as authority (rule) Harmeet Singh Bains v. Merrick B. Garland (3×) also: Cited "see"
6th Cir. · 2024 · confidence medium
Possession of marijuana is a single and separate offense under R.C. 2925.11(C)(3). 490 N.E.2d at 888 (emphasis added) (citations omitted). - 17 - No. 23-3208, Bains v. Garland Delfino thus indicates that § 2925.11’s subsections described separate offenses with alternative elements based on drug groupings, not based on particular drugs or schedules.
cited Cited as authority (rule) State v. Jones
Ohio Ct. App. · 2024 · confidence medium
Richland No. 2010-CA-41, 2010-Ohio-5421 , ¶ 27, quoting State v. Delfino, 22 Ohio St.3d 270, 273 (1986).
discussed Cited as authority (rule) State v. Dodson
Ohio Ct. App. · 2017 · confidence medium
Clark No. 2010-CA-83, 2011-Ohio-6175, ¶ 7 (“[T]he fact each violation of R.C. 2925.11 requires proof of the identity of a different drug that was possessed demonstrates ‘that the legislature intended the possession of the different drug groups to constitute different offenses.’”) quoting State v. Delfino, 22 Ohio St.3d 270, 274 (1986); State v. Heflin, 6th Dist.
discussed Cited as authority (rule) State v. Helmick
Ohio Ct. App. · 2014 · confidence medium
Clark No. 2010-CA-83, 2011-Ohio-6175, ¶ 7 , quoting State v. Delfino, 22 Ohio St.3d 270, 274 (1986). {¶27} In the instant matter, Helmick was indicted for possession of two different controlled substances, which carried two different penalties.
discussed Cited as authority (rule) State v. Houston (2×)
Ohio Ct. App. · 2013 · confidence medium
Delfino at 274, 490 N.E.2d 884 ; Westbrook at ¶ 43. {¶55} In this case, Appellant was sentenced on count one, trafficking in drugs, Oxycodone, a violation of R.C. 2925.03(A)(2)(C)(1)(e) and count four, possession of drugs, Oxymorphone, a violation of R.C. 2925.11(A)(1)(C)(1). 2 Oxycodone is listed under R.C. 3719.41(A)(1)(n), and is a Schedule II drug.
cited Cited as authority (rule) State v. Brown
Ohio Ct. App. · 2011 · confidence medium
Delfino, 22 Ohio St.3d at 273 (internal citations omitted).
cited Cited as authority (rule) State v. Pitts, Unpublished Decision (11-06-2000)
Ohio Ct. App. · 2000 · confidence medium
Id. at 272.
discussed Cited as authority (rule) State v. Keppler
Utah Ct. App. · 1999 · confidence medium
See also Cunningham v. State, 318 Md. 182 , 567 A.2d 126, 129 (1989); People v. Hilts, 224 A.D.2d 824 , 638 N.Y.S.2d 491, 492 (1996); State v. Delfino, 22 Ohio St.3d 270 , 490 N.E.2d 884, 887-88 (1986). ¶ 7 Further support for the separate nature of defendant’s crimes comes from State v. Porter, 705 P.2d 1174, 1178 (Utah 1985).
discussed Cited "see, e.g." State v. Mutter (Slip Opinion) (2×)
Ohio · 2017 · signal: see also · confidence low
“In determining whether an accused is being successively prosecuted for the ‘same offense,’ the court in Best adopted the so-called ‘same elements’ test articulated in Blockburger v. United States (1932), 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 * * Zima at ¶ 18; see also State v. Delfino, 22 Ohio St.3d 270, 273 , 490 N.E.2d 884 (1986).
discussed Cited "see, e.g." Cunningham v. State (2×)
Md. · 1989 · signal: see, e.g. · confidence low
See, e.g., Ohio v. Delfino, 22 Ohio St.3d 270 , 490 N.E.2d 884 (1986) (legislature intended the possession of the different drug groups to constitute different offenses); Gonzales v. State, 706 S.W.2d 764 (Tex.App.1986) (possession of marihuana and possession of LSD, although both violations of the same statute, are nevertheless separate offenses, with different grades of punishment).
Retrieving the full opinion text from the archive…
The State of Ohio
v.
Delfino
No. 84-1704.
Ohio Supreme Court.
Mar 19, 1986.
490 N.E.2d 884
Gregory A. White, prosecuting attorney, for appellee., Smith & Smith Co., L.P.A., and Daniel Wightman, for appellant.
Brown, Celebrezze, Connors, Douglas, Holmes, Looker, Only, Sixth, Sweeney, Wright.
Cited by 53 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: Nevada Supreme Court (1)
Connors, J.

The appellant presents a sole assignment of error as the predicate for this appeal:

“The legislature intended R.C. 2925.11 to proscribe possession of any controlled substance. The simultaneous possession of more than one controlled substance is [a] single offense. Therefore, the Double Jeopardy Clause of the United States Constitution bars a second trial for possession of a controlled substance, cocaine, following a conviction for possession of marijuana, when the cocaine and the marijuana were simultaneously possessed by the accused.”

Appellant argues that the simultaneous possession of two controlled substances constitutes a single offense under R.C. 2925.11 and, for that reason, the indictment for drug abuse based upon possession of cocaine is barred by double jeopardy after his plea of guilty to drug abuse for possession of marijuana at the same time.

R.C. 2925.11 provides, in relevant part:

“(A) No person shall knowingly obtain, possess, or use a controlled substance.
a* * *
[*272] “(C) Whoever violates this section is guilty of drug abuse:
“(1) If the drug involved is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, drug abuse is a felony of the fourth degree * * *.
U* * *
“(3) If the drug involved is marihuana, drug abuse is a misdemeanor of the fourth degree, unless the amount of marihuana involved is less than one hundred grams, the amount of marihuana resin, or extraction or preparation of such resin, is less than five grams, and the amount of such resin in a liquid concentrate, liquid extract, or liquid distillate form, is less than one gram, in which case drug abuse is a minor misdemeanor.”

The Double Jeopardy Clauses of the United States and Ohio Constitutions prevent multiple punishments for the same offense. State v. Jones (1985), 18 Ohio St. 3d 116, 118. In determining whether given conduct authorizes multiple convictions under a single statute, the court is required to consider whether that result was intended by the legislature which enacted the statute. Ohio v. Johnson (1984), _ U.S. _, 81 L. Ed. 2d 425, 433.

In Stratton, supra, at 231-232, the Court of Appeals for Erie County, under almost identical facts, held that “* * * the simultaneous possession by defendant of three controlled substances in violation of R.C. 2925.11, involves one offense permitting a single punishment.” The court reasoned that “* * * [possession is the prohibited conduct and absent legislative mandate that each substance possessed simultaneously creates a separate offense, doubts must be resolved in favor of the defendant.” Id. at 230.

The Court of Appeals for Erie County expressly overruled its previous ruling in Stratton, supra, in State v. Hedelsky (Dec. 20, 1985), Nos. E-85-15 and E-85-16, unreported.

The appellate court below held that multiple convictions were authorized, placing particular reliance on the fact that R.C. 2925.11 prohibits possession of “a” controlled substance as opposed to “any” controlled substance, as in some other state statutes.

The issue presented in this case is whether the simultaneous possession of different controlled substances can constitute separate offenses under R.C. 2925.11. If it can be said that the simultaneous possession of different types of drugs is only one offense under R.C. 2925.11, then the prosecution of appellant for his alleged possession of marijuana and cocaine is barred by the principles of double jeopardy due to his prior prosecution for possession of marijuana in the municipal court. If the simultaneous possession of different drugs constitutes separate offenses under R.C. 2925.11, then the prosecution of appellant for possession of marijuana and cocaine will not be barred by principles of double jeopardy.

The Double Jeopardy Clause contained in the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, and Section 10, Article I of the Ohio Constitution, prevent an[*273] individual from being prosecuted twice for the same offense. See State v. Thomas (1980), 61 Ohio St. 2d 254 [15 O.O.3d 262], It will be noted at the outset that where a first prosecution is had in a municipal court and the second prosecution is attempted in a common pleas court, the rule of “separate sovereigns” does not apply and if the prosecutions are for the same offense, the subsequent prosecution in the common pleas court is barred by principles of double jeopardy. Waller v. Florida (1970), 397 U.S. 387 [52 O.O.2d 320]. Therefore, the fact that in the case subjudice the first prosecution was in a municipal court and the second prosecution was attempted in the common pleas court does not alter our double jeopardy analysis.

The issue of whether simultaneous possession of different controlled substances constitutes a single offense or multiple offenses is not one of first impression. The Court of Appeals for Erie County in Stratton, supra, held that simultaneous possession of different controlled substances is a single offense under R.C. 2925.11. However, the Court of Appeals for Montgomery County has routinely held that simultaneous possession of different controlled substances constitutes separate offenses pursuant to R.C. 2925.11, for the purposes of double jeopardy. See State v. Coleman-(Dec. 19, 1984), Montgomery App. No. 8623, unreported; State v. Kash (May 15, 1978), Montgomery App. No. 5815, unreported. We find that the Montgomery County appellate cases more accurately reflect the current state of the law on this issue.

The case courts most often cite when confronted with the issue of whether a single act constitutes a single offense or separate offenses is Blockburger v. United States (1932), 284 U.S. 299. In that case, the United States Supreme Court held at 304 that:

“* * * The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304.

The Court of Appeals for Erie County properly held in Stratton, supra, that the Blockburger test does not directly apply to a situation where, as here, there is only one statutory section at issue, namely, R.C. 2925.11. See, also, United States v. Davis (C.A. 5, 1981), 656 F. 2d 153. However, even though the Blockburger test cannot be applied directly to a situation where it is alleged that a single transaction constitutes separate offenses under a single statutory provision, the Blockburger test can be used to ascertain whether the legislature intended to have a single transaction constitute separate offenses even though they are proscribed by a single statutory provision. See Davis, supra. If the legislature intended to have the possession of different types of drugs constitute different offenses, then a second prosecution for possession of a different drug will not be barred by principles of double jeopardy. See id.

[*274] Applying the Blockburger test herein, we find that the legislature intended that the simultaneous possession of certain drugs can constitute separate offenses. Under the provisions of R.C. 2925.11(C)(1), possession of cocaine is a felony. Under R.C. 2925.11(C)(2), possession of a Schedule III, IV or V controlled substance is a third degree misdemeanor. Under R.C. 2925.11(C)(3), possession of less than one hundred grams of marijuana is a minor misdemeanor and possession of more than that is a fourth degree misdemeanor. Proof of possession of marijuana will not sustain a conviction for possession of cocaine. Likewise, proof of possession of cocaine will not sustain a conviction for possession of marijuana. Therefore, conviction of a felony under R.C 2925.11(C)(1) requires proof of facts that R.C. 2925.11(C)(2) or 2925.11(C)(3) do not. Since different facts are required to be proven to sustain a conviction under the different subsections, we can conclude via the Blockburger test that the legislature intended the possession of the different drug groups to constitute different offenses. See State v. Coleman, supra; State v. Kash, supra. This court specifically holds that possession of a substance or substances in Schedule I or II, with the exception of marijuana, is a single and separate offense under R.C. 2925.11(C)(1). Possession of a substance or substances included in Schedule III, IV or V is a single and separate offense under R.C. 2925.11(C)(2). Possession of marijuana is a single and separate offense under R.C. 2925.11(C)(3).

In light of the above holding we find that appellant’s prosecution for possession of marijuana did not bar the state’s subsequent prosecution against him for his possession of cocaine. The sole proposition of law is without merit.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Looker, Holmes and Wright, JJ., concur. Douglas, J., concurs in judgment only. Connors, J., of the Sixth Appellate District, sitting for C. Brown, J.