State v. Samatar
| Citation | 787 N.E.2d 691,152 Ohio App.3d 311,2003 Ohio 1639 |
| Decision Date | 31 March 2003 |
| Docket Number | No. 02AP-180.,02AP-180. |
| Parties | The STATE of Ohio, Appellee, v. SAMATAR, Appellant. |
| Court | United States Court of Appeals (Ohio) |
Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellee.
Carol A. Wright and Mark A. Serrott, for appellant.
{¶ 1} Defendant, Mahad Hassan Samatar, appeals from two judgments entered by the Franklin County Court of Common Pleas — a December 3, 2001 judgment convicting him of one count of aggravated drug possession and a January 29, 2002 judgment denying his motion for new trial. For the reasons adduced below, we affirm.
{¶ 2} A review of the record reveals that defendant was indicted on February 26, 2001, on two counts of drug possession. Count one alleged that defendant knowingly obtained, possessed, or used a Schedule I controlled substance, cathinone, in violation of R.C. 2925.11, in an amount equal to or exceeding 100 times the bulk amount as defined in R.C. 2925.01. Count two alleged that defendant knowingly obtained, possessed, or used a Schedule IV controlled substance, cathine, in violation of R.C. 2925.11, in an amount equal to or exceeding 50 times the bulk amount but less than 100 times the bulk amount as defined in R.C. 2925.01.
{¶ 3} Pursuant to defendant's written waiver of jury trial, the matter was tried to the court on August 14, 2001. Prior to the presentation of evidence, the prosecution moved to dismiss count two of the indictment. At the conclusion of the evidence, the court granted the parties' request to file post-trial briefs. After consideration of the evidence and the parties' post-trial briefs, the court issued a decision on November 30, 2001. Therein, the court found defendant guilty of count one and, pursuant to the prosecution's recommendation, entered a nolle prosequi as to count two. By judgment entry filed December 3, 2001, the court sentenced defendant to a prison term of 10 years and ordered him to pay a mandatory fine of $10,000. On December 14, 2001, defendant filed a motion for a new trial, which was denied by the court via judgment entry filed January 29, 2002. Defendant has timely appealed, advancing seven assignments of error for our review1:
{¶ 4} "[1.] The trial court erred and abused its discretion in failing to grant the motion for new trial. The denial of the motion for new trial denied appellant due process, the right to present a defense and the effective assistance of counsel in violation of the state and federal constitutions.
{¶ 5} "[2.] Appellant was denied the effective assistance of counsel guaranteed by the federal and state constitutions.
{¶ 6} "[3.] To apply a statute banning knowing possession of cathinone to the possession of khat violates due process of law because it fails to give defendants fair warning of what behavior is prohibited, nor a fair opportunity to avoid criminal acts by an acquaintance with the published law.
{¶ 7} "[4.] The trial court erred in failing to grant the Crim.R. 29 motion for acquittal as the evidence was insufficient as a matter of law. Additionally, the conviction was against the manifest weight of the evidence.
{¶ 8} "[5.] The trial court erred in sentencing appellant to a mandatory minimum ten year sentence because the state failed to prove beyond a reasonable doubt that appellant possessed 100 times bulk amount [of] cathinone.
{¶ 9} "[6.] A minimum mandatory ten year sentence for possession of khat violates the Eighth and Fourteenth Amendments to the United States Constitution as well as Article I, § 9 of the Ohio Constitution.
{¶ 10}
{¶ 11} Columbus Police Detective Jerry Peters, a member of the Ohio Organized Crime Investigations Commission, Package Interdiction Task Force, testified2 that on February 15, 2001, he received a call from an employee of a local Federal Express ("FedEx") facility regarding a suspicious package. The FedEx International Air Waybill ("waybill") indicated that the package was shipped from Great Britain to "John Goodman" at "84 East Morill Avenue, Apartment B, Columbus, Ohio, 43207" and contained "wiring equipment." Delivery of the package had been unsuccessful because the address was invalid. Protruding from the package were brownish-red stems of vegetation. Believing the vegetation to be khat (pronounced "cot"), Detective Peters arranged for the package to be picked up under controlled conditions.
{¶ 12} "Khat" is the popular name of the plant catha edulis, "a shrub which grows wild and as a cash crop in Kenya, Somalia, Yemen, Djibouti and other countries of Northeastern Africa." (Defendant's post-trial brief, at 4.) Khat leaves are typically chewed, a tradition deeply rooted in the social lives of persons in the Middle East and southeastern Africa. It is estimated that approximately 60 to 70 percent of Somalis in Somalia chew khat on a regular basis and/or brew it into tea and drink it.
{¶ 13} Khat contains the psychoactive chemical cathinone, a stimulant. Cathinone is listed as a Schedule I controlled substance under Ohio law. See R.C. 3719.41, Schedule 1, (E)(2). Khat also contains the less potent stimulant, cathine, a Schedule IV controlled substance under Ohio law. See R.C. 3719.41, Schedule IV, (D)(1).
{¶ 14} At approximately 8:50 p.m. on February 15, 2001, defendant arrived at the FedEx facility and presented a napkin upon which, among other things, a shipment control number matching that on the waybill and an address, "684 East Morrill Avenue, Apartment # B, 43207," were written. Defendant signed the name "John Goodman" on the signature record and took possession of the package. Defendant was subsequently arrested for possession of a controlled substance. The package was seized and the contents submitted for analysis to the laboratory at the Ohio Bureau of Criminal Investigation ("BCI").
{¶ 15} According to Detective Peters, controlled substances are often shipped via a package delivery company such as FedEx. False names and addresses and invoices describing fictitious package contents are often used in the process. Detective Peters further testified that a bundle of fresh khat is generally sold in Columbus for $25 to S40. The price decreases to $15 per bundle as the khat ages and loses its freshness.
{¶ 16} Gregory Kiddon, a forensic scientist with over 20 years of experience at BCI, conducted a chemical analysis of the khat. According to Kiddon, the package seized from defendant contained two smaller boxes, each of which contained several small bundles of khat shoots and stems. As part of his chemical analysis, Kiddon weighed each individual bundle and took a representative sample consisting of 10 or 11 grams from each bundle. Each of the samples was chopped into small pieces and ground together. The mixture was then tested. The samples were removed from the boxes on February 16, 2001, and were frozen until the chemical analysis was performed on July 24, 2001. Pursuant to the chemical analysis, Kiddon identified the Schedule I controlled substance known as cathinone in each sample. Kiddon further testified that he found no cathine in any of the samples.
{¶ 17} Kiddon prepared a report of his findings, which was submitted as state's Exhibit 7. The report indicates that one of the boxes contained 85 leaf-wrapped bundles of shoots with a gross weight of 13,853 grams. Ten bundles were removed for testing with a net weight of 1,278.04 grams. The report further indicates that the other box contained 85 leaf-wrapped bundles of shoots with a gross weight of 14,292 grams. Ten bundles were removed for testing with a net weight of 1,351.35 grams. According to the report, all of the samples were found to contain cathinone.
{¶ 18} Defense counsel attempted to impeach Kiddon's testimony with an article issued by the United States Department of Health and Human Services, entitled "Basis For The Recommendation For Control of Cathinone Into Schedule I Of The Controlled Substances Act" ("HHS report"). Kiddon acknowledged that the article was authoritative. The report expressed the opinion that 100 grams of fresh khat is estimated to contain 36 mg of cathinone and 120 mg of cathine, among many other chemicals. According to the report, within 72 hours of harvest, the naturally occurring cathinone rapidly decomposes into cathine. The report further stated that fresh khat contains 100 times more cathinone than dried khat.
{¶ 19} Kiddon acknowledged the foregoing information contained within the report. Kiddon testified that he froze the plant material until the chemical analysis could be performed because he was aware that in the cathinone-to-cathine conversion process, some of the plant's psychotropic potency was lost. When pressed about his finding that the samples he tested contained cathinone, but no cathine, Kiddon admitted that he was surprised by the results but remained firm in his conviction that his chemical analysis was correct. Specifically, Kiddon stated that he could not "find any peaks that I could identify as cathine," and rejected defense counsel's suggestion that he misidentified the cathine as cathinone.
{¶ 20} Defendant testified that he came to the United States in June 1998 from his native country of Somalia. He stated that he was familiar with the khat plant, as it was grown and chewed or used to brew tea in Somalia. Defendant further testified that it is a cultural tradition to chew khat at weddings. He further that there was no stimulant effect in khat. According to defendant, khat possession is not illegal in...
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