STATE OF OHIO -vs- CAMRON TAYLOR

Mansfield, OH Criminal Defense Attorney, purchase a marijuana “edible”





{¶2} This case arose on November 18, 2018 at a vocational high school when

one minor student asked another minor student to purchase a marijuana “edible” for him

from another student—appellee—in the school cafeteria. The purchaser paid appellee

for an item described as a “Rice Krispies treat” or a “Fruity Pebbles snack.” The item was

described as a square brightly-colored baked cereal treat.

{¶3} Two minor students shared the snack. “John Doe” consumed

approximately half of it and became sick at school. School authorities called an

ambulance and Doe was transported to an area hospital and treated for acute T.H.C.

toxicity.

{¶4} Doe and the other minor students who played a role in the purchase of the

edible testified they bought it “to get high” and assumed it contained T.H.C.

{¶5} The assistant director of the vocational school testified he was alerted to

the sale of the edible by John Doe’s parents after the hospitalization. He searched

appellee’s book bag and found several individually-packaged cereal-treat edibles. He

also searched appellee’s vehicle and found a jar of suspected marijuana. The assistant

director is trained in identification of marijuana by sight and smell and identified the

substance as marijuana.

Richland County, Case No. 20CA23 3

{¶6} The edibles and marijuana were turned over to the school resource officer,

who interviewed appellee. Appellee eventually admitted the marijuana in the car was his

and that the edibles contained T.H.C., the psychoactive component of marijuana.

Appellee denied selling the edibles to other students.

{¶7} The substance in the Mason jar weighed 53 grams and tested positive for

marijuana. The total weight of the edibles was 217.53 grams and the edibles tested

positive for T.H.C. The forensic scientist from B.C.I. could not testify to a percentage of

T.H.C. contained in the substances.

{¶8} Appellee was charged by indictment with one count of trafficking in

marijuana in the vicinity of a school or juvenile pursuant to R.C. 2925.03(A)(2) and

(C)(3)(c), a felony of the third degree [Count I], and one count of possession of marijuana

pursuant to R.C. 2925.11(A) and (C)(3)(c), a felony of the fifth degree [Count II]. Appellant

entered pleas of not guilty.

{¶9} On August 15, 2019, appellee filed a motion to dismiss asserting the

allegations contained in the indictment do not state criminal offenses under Ohio law. The

motion to dismiss states in pertinent part:

* * * *.

Effective July 30, 2019, Hemp became legal in Ohio. Hemp

is defined as cannabis containing not more than 0.3% THC. See

Senate Bill 57 2019 General Assembly Am. Sub.S.B. No. 57 133rd

G.A. at 11 (defining hemp as [a] “Cannabidiol” means the cannabidiol

compound containing a delta-9 * * * * tetrahydrocannabinol

concentration of not more than three-tenths per cent, derived from

Richland County, Case No. 20CA23 4

hemp). A consequence of the Senate Bill 57 is that for a marijuana

prosecution to be successful the State must prove that the substance

possessed contains more than 0.3% tetrahydrocannabinol.

* * * *.

{¶10} Appellant responded with a memorandum in opposition.

{¶11} On September 25, 2019, the trial court filed a Judgment Entry Overruling

Defendant’s Motion to Dismiss, acknowledging that Ohio recently passed S.B. 57 which

removes “hemp” from the definition of marijuana, with “hemp” defined as the Cannabis

setiva L. plant containing less than 0.3 percent of THC. The judgment entry

acknowledges S.B. 57 became effective on July 30, 2019, and further states in pertinent

part:

* * * *.

The State of Ohio alleges that the defendant committed the

offenses in this case on November 19, 2018. This was well before

the effective date of Senate Bill 57. The general rule is that a statute

is presumed to be prospective in its operation, unless expressly

made retrospective. It does not appear that Senate Bill 57 was

expressly made retroactive. However Ohio Revised Code 1.58(B)

provides that when a statute is amended after the commission of a

crime, but before a sentence is imposed, which is the case here, then

the defendant is entitled to receive the benefit of the reduced penalty

in the statute as amended.

Richland County, Case No. 20CA23 5

Accordingly, by removing hemp from the definition of

marijuana, the legislature has amended the statutes relating to

Trafficking and Possession of Marijuana. The State must now prove

that the substance trafficked and/or possessed in this case was in

fact marijuana and not hemp.

For the reasons above the defendant’s motion to dismiss is

hereby overruled. However, in order to sustain a conviction in

this matter the State of Ohio will be required to prove beyond a

reasonable doubt that the substance claimed to be trafficked

and possessed by the defendant in this case was in fact

marijuana and not hemp. (Emphasis added.) This is because

possession and selling of hemp is no longer illegal under Ohio law.

* * * *.

{¶12} On October 11, 2019, appellant filed a Notice of Intent advising appellee

and the trial court of appellant’s “intention to provide evidence of laboratory testing

according to the law as of the date of the crime in this matter.” Appellant further argued

in the Notice of Intent that Senate Bill 57 did not amend or modify the drug possession or

drug trafficking statutes, including their penalties, therefore R.C. 1.58(B) is inapplicable.

{¶13} On February 5, 2020, appellee filed a motion to dismiss on speedy-trial

grounds.

{¶14} On February 6, 2020, appellee waived his right to trial by jury and consented

to trial by the court.

{¶15} The matter proceeded to bench trial on February 6, 2020.

Richland County, Case No. 20CA23 6

{¶16} On February 11, 2020, the trial court filed a Judgment Entry Overruling

Defendant’s Motion to Dismiss and Granting Defendant’s Criminal Rule 29 Motion after

Bench Trial. The trial court found appellant’s speedy-trial rights had not been violated.

The trial court further granted appellant’s Crim.R. 29 motion to dismiss, finding appellant

“failed to prove an element of the offense, that being that the substances in question were

illegal based on the amount of THC in the items recovered from the defendant’s backpack

and vehicle.” The trial court further stated appellant was put on notice by the earlier ruling

but at trial failed to present any evidence relating to the percentage of THC in the

substances recovered from appellee.

{¶17} Appellant now appeals from the trial court’s judgment entry of February 11,

2020.

{¶18} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶19} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

MISAPPLIED R.C. 1.58(B).”

ANALYSIS

{¶20} In its sole assignment of error, appellant argues the trial court misapplied

R.C. 1.58. Because we find the appeal should not have been granted, we decline to

reach the merits of this issue.

{¶21} Appellant filed a motion for leave to appeal pursuant to R.C. 2945.67 and

App.R. 5 on February 12, 2020. Appellee responded with a memorandum in opposition,

arguing the state of Ohio may not appeal the trial court’s judgment of acquittal. Appellant

replied in opposition, acknowledging appellant may not be re-tried and his acquittal

Richland County, Case No. 20CA23 7

remains in place regardless of the outcome of this appeal, but asserting the issue raised

in this appeal is capable of repetition yet evading review. We granted leave to appeal.

{¶22} We have previously reviewed state’s appeals from Crim.R. 29 acquittals

and have disallowed the appeals. “Ordinarily when there is no case in controversy or any

ruling by an appellate court that would result in an advisory opinion, there will be no

appellate review unless the underlying legal question is capable of repetition yet evading

review. State v. Davis, 5th Dist. Delaware No. 03 CA-A-07038, 2004-Ohio-2804, ¶ 8,

citing Storer v. Brown, 415 U.S. 724, 737, at fn. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714

(1974) and In re Protest Filed by Citizens for the Merit Selection of Judges, Inc., 49 Ohio

St.3d 102, 551 N.E.2d 150 (1990). However, in State v. Bistricky, the Ohio Supreme

Court held that “[a] court of appeals has discretionary authority pursuant to R.C.

2945.67(A) to review substantive law rulings made in a criminal case which result in a

judgment of acquittal so long as the judgment itself is not appealed.”

{¶23} In order for the state of Ohio to appeal in this case, the question raised must

be one of substantive law and capable of repetition. Davis, supra, 2004-Ohio-2804, ¶ 11.

After review, we find that in this case, the question raised is not one of substantive law

nor capable of repetition. At oral argument, appellant conceded our decision in this case

would in no way affect appellee because he could not be resentenced or retried because

of double jeopardy. “The question before this court then is whether the nexus of this

appeal is a substantive law issue which does not affect the verdict.” State v. Brown, 5th

Dist. Stark No. 1999CA00188, 2000 WL 94084, *2.

{¶24} After review, we find that in this case, the question raised is not one of

substantive law and capable of repetition because it would apply to a miniscule (and

Richland County, Case No. 20CA23 8

possibly nonexistent) category of criminal cases involving marijuana, not yet prosecuted

but arising before the effective date of S.B. 57 (July 30, 2019). See, Davis, supra, 2004-

Ohio-2804 at ¶ 11. We decline to issue an advisory opinion as to whether the trial court

properly applied R.C. 1.58(B) and find this appeal should not have been allowed.

{¶25} The appeal is therefore dismissed. Id.

Appeal dismissed.