State v. Derek Brown, Todd Ebelein

• Decision Date: 26 April 1999
• Docket Number: 98 CA 15,98 CA 14,99-LW-1747
• Parties: STATE OF OHIO, Plaintiff-Appellee v. DEREK BROWN, TODD EBELEIN, Defendants-Appellants Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. DEREK BROWN, TODD EBELEIN Defendants-Appellants

No. 98 CA 14, 98 CA 15.

99-LW-1747 (4th)

Court of Appeals of Ohio, Fourth District Athens

April 26, 1999

COUNSEL FOR APPELLANTS: Thomas S. Hodson, Eslocker, Hodson & Oremus 16 West State Street, Athens, Ohio 45701

COUNSEL FOR APPELLEE: Michael A. Prisley, Assistant Athens County Prosecuting Attorney, Athens County Courthouse, Athens, Ohio 45701.

DECISION

PER CURIAM

This is an appeal from two judgments of conviction and sentence entered by the Athens County Common Pleas Court. The court found Derek Brown and Todd Ebelein, defendants below and appellants herein, guilty of possession of a dangerous drug for sale in violation of R.C. 4729.51(C)(2)^[1] following their no contest pleas.

Appellants assign the following errors for our review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN NOT GRANTING APPELLANTS' OCTOBER 23, 1997 `MOTION IN LIMINE/MOTION TO DISMISS' BECAUSE THE CANISTER IN QUESTION AND THE STATUS OF THE RECORD DO NOT CONFORM WITH THIS COURT'S DECISION IN STATE V. FRANKOVICH (MARCH 31, 1997), ATHENS APP. NO. 96CA1775."

SECOND ASSIGNMENT OF ERROR:

"GIVEN THE STATUS OF THE RECORD, THE TRIAL COURT ERRED IN FINDING THAT NITROUS OXIDE, AS A MATTER OF LAW, IS A DANGEROUS DRUG."

THIRD ASSIGNMENT OF ERROR:

"SINCE THERE WAS NO EVIDENCE OF SALE OF NITROUS OXIDE THE STATE COULD NOT PROVE, AS A MATTER OF LAW, THAT THE CONTENTS OF A CANISTER WERE A `DANGEROUS DRUG POSSESSED FOR SALE AT RETAIL' AND THE TRIAL COURT ERRED IN FINDING SAME."

FOURTH ASSIGNMENT OF ERROR:

"IF ANYTHING, THE DEFENDANTS SHOULD HAVE BEEN SENTENCED UNDER OHIO REVISED CODE SECTION 2925.32, A MISDEMEANOR OF THE FOURTH DEGREE NOT A FELONY OF THE FIFTH DEGREE AND THE TRIAL COURT ERRED IN NOT DOING SO."

On April 10, 1997, the Athens County Grand Jury returned indictments charging each appellant with one count of possession of a dangerous drug for sale in violation of R.C. 4729.51(C)(2). The indictment specified and appellants do not dispute that they possessed a canister containing nitrous oxide on November 2, 1996. Appellants argue, however, that their possession of nitrous oxide did not violate R.C. 4729.51(C)(2).

On June 5, 1997, appellants filed a motion to dismiss the indictment. Appellants argued that because a forensic lab report indicated that two black balloons which appellants allegedly filled from the canister containing nitrous oxide and sold to others on the date in question did not contain nitrous oxide, the prosecution could not prove that appellants "possessed for sale" the nitrous oxide in the canister. In a July 9, 1997 supplemental memorandum appellants argued that: (1) it is not illegal to possess a canister of nitrous oxide pursuant to R.C. 4729.51(C)(2) if the prosecution cannot prove that the nitrous oxide was actually sold; (2) nitrous oxide is not a dangerous drug pursuant to R.C. 4729.01; (3) it would have been more appropriate to charge appellants under R.C. 2925.32; and (4) "R.C. 2925.32, that became effective on January 1, 1997 to specifically preclude the sale of nitrous oxide under certain circumstances, became effective two months after the alleged sale and possession took place."

On July 28, 1997, appellee filed a response arguing that: (1) pursuant to State v. Frankovich (Mar. 31, 1997), Athens App. No. 96 CA 1775, unreported, nitrous oxide is a dangerous drug; (2) whether a sale occurred is a question of fact for resolution at trial;^[2] and (3) because nitrous oxide is a dangerous drug, appellants may be charged pursuant to R.C. 4729.51(C)(2).

On August 4, 1997, appellants filed a reply memorandum arguing that: (1) because there is no evidence that the nitrous oxide canister in question bears a label stating "caution federal law prohibits dispensing without prescription," the nitrous oxide in the canister is not a dangerous drug; (2) because the balloons did not contain nitrous oxide, the prosecution, as a matter of law, cannot prove that appellants possessed nitrous oxide for sale; (3) the fact that the Ohio General Assembly amended R.C. 2925.32 to specifically mention nitrous oxide implies that none of the statutes in existence prior to the date of the amended statute applied to nitrous oxide. In the reply memorandum, appellants requested a hearing "for the State to produce these canisters to display to the Court what, if any, labeling exists on said canisters."

On October 23, 1997, appellants filed a combined motion in limine and motion to dismiss. In the motion in limine portion of the combined motion, appellants requested the trial court to prohibit the prosecution from introducing into evidence the nitrous oxide canister and the results of any tests performed on the canister or its contents. Appellants once again argued that the nitrous oxide in the canister is not a dangerous drug as that term is defined by R.C. 4729.02(D). In the motion to dismiss portion of the combined motion, appellants once again cited Frankovich and requested the trial court to dismiss the action because the canister did not bear a label stating "caution - Federal law prohibits dispensing without a prescription" Appellants also once again requested the trial court to hold a hearing for the purpose of inspecting the canister and its labeling.

On October 30, 1997, appellee filed a memorandum contra appellants' combined motion in limine and motion to dismiss. Appellee argued that forensic laboratory reports indicate that although labeling on the canister indicated that the canister contained automotive nitrous oxide mixed with sulfur dioxide, the canister contained nitrous oxide alone. Thus, appellee argued, the canister was required to carry the federal warning label mentioned in Frankovich. Appellee further argued that it would call Robert Amiet of the Ohio State Board of Pharmacy to testify at trial that federal law requires a warning label for nitrous oxide canisters the size of the one in question. Appellee concluded that "merely because the [canister] did not have the proper labeling for the substance it contained should not prevent [the nitrous oxide] from being labeled a dangerous drug by this court."

On November 14, 1997, appellants filed another memorandum in support of their combined motion in limine and motion to dismiss. Appellants again argued that Frankovich stands for the proposition that nitrous oxide is not illegal to possess or to sell in Ohio unless it is in a container which bears a federally required warning label.

On December 8, 1997, the trial court held a hearing on appellants' motions. At the hearing, the trial court viewed the canister in question and the canister's labels. Appellee noted for the record that the canister was approximately twenty-two inches in circumference and twenty-one and one-half inches in height. Appellants' attorney argued that the size of the canister was irrelevant. According to appellants' attorney, the relevant factor is the quantity of nitrous oxide that is actually in the canister.^[3] With regard to the trial court's question of whether the transfer of nitrous oxide from a container with a federally required warning label to a container without a federally required warning label would change the status of the nitrous oxide from a dangerous drug to a non-dangerous drug, appellants' attorney answered "yes." In response to the prosecution's argument that the nitrous oxide in question was mis-branded under federal law, appellants' attorney argued that the indictment does not include a count involving misbranding.

On December 11, 1997, the trial court issued a decision overruling appellants' combined motion in limine and motion to dismiss. The trial court wrote in pertinent part as follows:

"Essentially, the Defendants argue that the nitrous oxide contained in the canister in the instant case cannot be a dangerous drug pursuant to R.C. 4729.02(D) because the canister does not contain the language that the Defendants submit is required by State v. Frankovich (Mar. 31, 1997), Athens App. No. 96CA1775, unreported. The Defendants argue that the nitrous oxide, which would be a dangerous drug if contained in the canister described in Frankovich, would not be a dangerous drug if transferred from that canister to the canister at issue herein. However, the Court finds that the transfer of nitrous oxide from one tank to another does not make the drug any less dangerous. * * *

* * *

The Court finds that Frankovich held that nitrous oxide is a dangerous drug as defined by R.C. 4729.02(D) despite the fact that whipping cream dispensers which contain nitrous oxide can be sold without a prescription. The Court further finds that the canister herein is much larger than a whipping cream dispenser.

Accordingly, the Court finds that nitrous oxide, as a matter of law, is a dangerous drug despite the fact that it exists in a canister that does not have the Frankovich cautionary language. The Court denies the Defendants' Motion in Limine and Motion to Dismiss.

On December 18, 1997, Appellant Todd Ebelein entered a no contest plea and the trial court found him guilty as charged. On December 30, 1997, Appellant Derek Brown entered a no contest plea and the trial court also found him guilty as charged. On March 9, 1998, the trial court fined appellants $1,000 each and sentenced them to five years of community control subject to the general supervision and control of the Adult Parole Authority.

Appellants filed timely notices of appeal.

I

In their first assignment of error, appellants assert that the trial court erred by not granting their motion in limine and motion to dismiss. In support of this assignment of error, appellants argue that the canister in question and the status of the...