State v. Gonzales

• Decision Date: 23 December 2016
• Docket Number: 2015–0385.,Nos. 2015–0384,s. 2015–0384
• Citation: 2016 Ohio 8319,150 Ohio St.3d 261,81 N.E.3d 405
• Parties: The STATE of Ohio, Appellant, v. GONZALES, Appellee.
• Court: Ohio Supreme Court

150 Ohio St.3d 261

81 N.E.3d 405

2016 Ohio 8319

The STATE of Ohio, Appellant,

v.GONZALES, Appellee.

Nos. 2015–0384

2015–0385.

Supreme Court of Ohio.

Submitted Feb. 9, 2016.

Decided Dec. 23, 2016.

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold and Gwen K. Howe–Gebers, Assistant Prosecuting Attorneys, for appellant.

Mayle Ray & Mayle L.L.C., Andrew R. Mayle, Fremont, Jeremiah S. Ray, Lakewood, and Ronald J. Mayle, Fremont, for appellee.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Hannah C. Wilson, Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney General Michael DeWine.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, urging reversal for amici curiae Ohio Prosecuting Attorney's Association and Cuyahoga County Prosecutor's Office.

Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant State Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.

LANZINGER, J.

{¶ 1} In this case, we are asked to resolve a conflict between the appellate districts presented by the following certified question: "Must the state, in prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4) [ (b) ] through (f), prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?"¹ We answer the certified-conflict question in the affirmative and affirm the judgment of the Sixth District Court of Appeals.

I. Case Background

{¶ 2} Drug-enforcement agents arranged a reverse transaction, in which a confidential source sold two imitation bricks of cocaine to appellee, Rafael Gonzales. One of the bricks contained a compartment holding a baggie of cocaine weighing 139.2 grams, of which 3 to 20 grams were the weight of the baggie itself. The other brick contained a tracking device. Because he was alleged to have possessed more than 100 grams of cocaine, Gonzales was indicted on one first-degree-felony count of cocaine possession under R.C. 2925.11(A) and 2925.11(C)(4)(f). The allegation that Gonzales had possessed at least 100 grams of cocaine supported a major-drug-offender ("MDO") specification in the indictment. R.C. 2941.1410(A). R.C. 2929.01(W) includes in its definition of MDO "an offender" convicted of possessing "at least one hundred grams of cocaine."

{¶ 3} On the day of trial, Gonzales, through counsel, filed a motion in limine to preclude the state's expert and a lay witness from testifying that the substance tested was cocaine, because counsel had received the lab report from the state less than 48 hours before the trial. The trial court excluded the lab report and expert witness, but permitted lay-witness testimony to identify the substance in the brick as cocaine if a proper foundation was established.

{¶ 4} At trial, the confidential source and several law-enforcement officers testified that exhibit 13 was a baggie of cocaine. Some witnesses acknowledged that cocaine is often mixed with other substances or filler material. No evidence was presented, however, regarding the purity of exhibit 13—that is, whether, or how much, this cocaine was mixed with filler. The defense asked the trial court to read the statutory definition of "cocaine" in R.C. 2925.01(X) to the jurors, and to instruct them that to convict Gonzales of first-degree felony possession, they were required to find that Gonzales possessed at least 100 grams of actual cocaine, rather than a cocaine mixture. The trial court denied both motions.

{¶ 5} The jury found Gonzales guilty of possession of cocaine and further found that the amount of cocaine involved equaled or exceeded 100 grams. Gonzales was immediately sentenced to a mandatory term of 11 years. See R.C. 2929.13(F)(5) and 2929.14(A)(1).

{¶ 6} Gonzales filed a notice of appeal to the Sixth District Court of Appeals. In reversing the judgment, the appellate court vacated the 11–year mandatory prison sentence that Gonzales received as an MDO pursuant to R.C. 2925.11(C)(4)(f) because the amount of cocaine was 100 grams or more. It remanded the case for resentencing. The appellate court held that in prosecuting cocaine offenses under R.C. 2925.11(C)(4), the state is required to prove that the weight of the actual cocaine possessed by the offender met the statutory threshold. 2015-Ohio-461, 2015 WL 502263, ¶ 47. Although the state submitted evidence on the weight of the baggie's contents, it did not offer any evidence on whether that weight included ingredients other than cocaine. Id. at ¶ 46–47. As a result, the Sixth District held that the penalty enhancement under R.C. 2925.11(C)(4)(f) must be reversed and vacated. Id. at ¶ 47.

{¶ 7} The Sixth District, sua sponte, certified a conflict with the judgment of the Second District in State v. Smith, 2d Dist. Greene No. 2010–CA–36, 2011-Ohio-2568, 2011 WL 2112609. We recognized the conflict, 143 Ohio St.3d 1402, 2015-Ohio-2747, 34 N.E.3d 131, and accepted the state's discretionary appeal, 143 Ohio St.3d 1403, 2015-Ohio-2747, 34 N.E.3d 132. The sole issue before this court is whether, in prosecutions for possession of cocaine, the offense level is determined by the weight of only the actual cocaine or whether it is determined by the total weight of the cocaine plus any filler.

II. Legal Analysis

Standard of Review

{¶ 8} The interpretation of a statute is a matter of law, and thus we review the court of appeals' decision de novo, including consideration of the statute's ambiguity. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9. Our main objective is to determine and give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). To accomplish this task, we first must look at the language of the statute itself. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). If the language is clear and unambiguous, we must apply it as written. "[I]t is the duty of this court to give effect to the words used, not to delete words used or to insert words not used." Columbus–Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969).

{¶ 9} It is also a cardinal rule of statutory construction that a statute should not be interpreted to yield an absurd result. State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382, 384, 481 N.E.2d 632 (1985) ; Slater v. Cave, 3 Ohio St. 80, 83 (1853) ("where the literal construction of a statute would lead to gross absurdity, or where, out of several acts touching the same subject matter, there arise collaterally any absurd consequences, manifestly contradictory to common reason, the obvious intention of the law must prevail over a literal interpretation"). See also R.C. 1.47(C) ("In enacting a statute, it is presumed that * * * [a] just and reasonable result is intended"). Principles of statutory construction require that courts interpret statutes to reflect a consistent legislative intent.

{¶ 10} We have, however, emphasized that " ‘where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.’ " State v. Young, 62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This canon of strict construction, also known as the rule of lenity, is codified in R.C. 2901.04(A), which provides that sections of the Revised Code that define offenses or penalties "shall be strictly construed against the state, and liberally construed in favor of the accused." Under the rule, ambiguity in a criminal statute is construed so as to apply the statute only to conduct that is clearly proscribed. United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).

The Statute—R.C. 2925.11(C)(4)

{¶ 11} Gonzales was convicted of possession of cocaine in violation of R.C. 2925.11, which provides:

(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.

* * *

(C) Whoever violates division (A) of this section is guilty of one of the following:

* * *

(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows:

(a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e), or (f) of this section, possession of cocaine is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.

(b) If the amount of the drug involved equals or exceeds five grams but is less than ten grams of cocaine, possession of cocaine is a felony of the fourth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.

(c) If the amount of the drug involved equals or exceeds ten grams but is less than twenty grams of cocaine, possession of cocaine is a felony of the third degree, and, except as otherwise provided in this division, there is a presumption for a prison term for the offense. If possession of cocaine is a felony of the third degree under this division and if the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree.

(d) If the amount of the drug involved equals or exceeds twenty grams but is less than twenty-seven grams of cocaine, possession of cocaine is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.

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