[Cite as State v. Taylor,
2020-Ohio-4770.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 20CA23
:
CAMRON TAYLOR :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2019-CR-
0322
JUDGMENT: DISMISSED
DATE OF JUDGMENT ENTRY: October 2, 2020
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
GARY BISHOP WESLEY C. BUCHANAN
RICHLAND CO. PROSECUTOR 50 South Main St.
JOSEPH C. SNYDER Suite 625
38 South Park St. Akron, OH 44308
Mansfield, OH 44902
Richland County, Case No. 20CA23 2
Delaney, J.
{¶1} Appellant state of Ohio appeals from the February 11, 2020 “Judgment
Entry Overruling Defendant’s Motion to Dismiss and Granting Defendant’s Criminal Rule
29 Motion after Bench Trial.” Appellee is Camron Taylor.
FACTS AND PROCEDURAL HISTORY
{¶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.
CONCLUSION
{¶26} Appeal dismissed.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.
