State v. Mobarak

• Decision Date: 29 September 2017
• Docket Number: No. 14AP–517,14AP–517
• Citation: 2017 Ohio 7999,98 N.E.3d 1023
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Soleiman MOBARAK, Defendant–Appellant.
• Court: Ohio Court of Appeals

98 N.E.3d 1023

2017 Ohio 7999

STATE of Ohio, Plaintiff–Appellee,

v.Soleiman MOBARAK, Defendant–Appellant.

No. 14AP–517

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on September 29, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.

On brief: The Behal Law Group LLC, Robert J. Behal, John M. Gonzales, Columbus, and Gilbert J. Gradisar, for appellant. Argued: Robert J. Behal.

DECISION

BROWN, J.

{¶ 1} This case is before us based on a remand issued by the Supreme Court of Ohio in State v. Mobarak , 150 Ohio St.3d 26, 2016-Ohio-8372, 78 N.E.3d 832 (" Mobarak II "), in which the court reversed our decision in State v. Mobarak , 10th Dist. No. 14AP-517, 2015-Ohio-3007, 2015 WL 4554370 (" Mobarak I "). In Mobarak I , we sustained the first assignment of error raised by Soleiman Mobarak, defendant-appellant, and found his remaining three assignments of error moot. In reversing and remanding the matter in Mobarak II , the Supreme Court directed us to consider on remand appellant's remaining assignments of error.

{¶ 2} The following factual summary is essentially identical to the one in Mobarak I. Appellant appeals the judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a jury verdict, of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, a first-degree felony (with a specific factual finding that one or more instances of corrupt activity involved a felony of the first degree; and, separately, that one or more instances of corrupt activity involved a felony of the second or third degree); aggravated trafficking in drugs, in violation of R.C. 2925.03, a second-degree felony (with a specific factual finding that a-Pyrrolidinopentiophenone ("A–PVP") was a controlled substance analog); aggravated possession of drugs, in violation of R.C. 2925.03, a fourth-degree felony (with a specific factual finding that A–PVP was a controlled substance analog); aggravated trafficking in drugs, in violation of R.C. 2925.03, a second-degree felony (with a specific factual finding that A–PVP was a controlled substance analog); aggravated possession of drugs, in violation of R.C. 2925.11, a second-degree felony (with a specific factual finding that A–PVP was a controlled substance analog); aggravated trafficking in drugs, in violation of R.C. 2925.03, a first-degree felony (with a specific factual finding that A–PVP was a controlled substance analog); and aggravated possession of drugs, in violation of R.C. 2925.11, a first-degree felony (with a specific factual finding that A–PVP was a controlled substance analog). The jury also made findings as to the bulk amount issues on the drug counts.

{¶ 3} Appellant owns a convenience store. From March to July 2012, undercover police officers purchased packages of a substance commonly referred to as "bath salts" from appellant's store. Appellant was arrested on July 25, 2012. In August and October 2012, appellant was charged with various drug trafficking and possession counts as well as engaging in a pattern of corrupt activity. The State of Ohio, plaintiff-appellee, alleged the bath salts were "controlled substance analogs," as defined by R.C. 3719.01(HH)(1).

{¶ 4} Appellant sought to have the charges dismissed. Appellant also filed a motion in limine to exclude the testimony of the state's expert witness, Dr. Travis Worst, a forensic scientist from the Bureau of Criminal Investigation ("BCI"), arguing that he did not meet the requirements of Evid.R. 702. The trial court held a hearing on the motion in limine but never explicitly ruled on the motion.

{¶ 5} A jury trial commenced May 27 and concluded June 5, 2014. The trial court found appellant guilty on numerous counts as outlined above. The trial court held a sentencing hearing on June 6, 2014, and sentenced appellant to consecutive terms of incarceration totaling 35 years of mandatory confinement without parole. The trial court also fined appellant $75,000. The trial court issued a judgment entry that same day, and appellant appealed the matter to this court asserting the following assignments of error:

I. It was plain error for the trial court to fail to dismiss all charges against Mr. Mobarak sua sponte, and allowing and his [sic] conviction and imprisonment for innocent acts is an ex post facto violation that is prohibited by the Ohio and United States Constitutions.

II. The "controlled substance analog" statute under which Mr. Mobarak was convicted was unconstitutionally vague on its face and in its application, and his conviction was a fundamental error that violated his constitutional right to due process of law.

III. Because the state's expert testimony on the substances at issue was insufficient under both the state and federal standards, the trial court erred and abused its discretion in denying Mr. Mobarak's motion in limine to exclude this subjective evidence.

IV. The trial judge erred to Mr. Mobarak's prejudice because an order imposing consecutive sentences in this case is not supported by the facts.

{¶ 6} In Mobarak I , this court sustained appellant's first assignment of error. Based on this court's precedent, we found the statutory definition of "controlled substance" in R.C. 2925.01 did not include or expressly incorporate the definition of controlled substance analog created in H.B. No. 64, and, thus, possession of controlled substance analogs had not yet been criminalized by that bill or at the time of appellant's offenses. Therefore, we found the trial court erred when it found appellant guilty of aggravated possession of drugs, aggravated trafficking in drugs, and engaging in a pattern of corrupt activity. Given this determination, we found appellant's second, third, and fourth assignments of error moot.

{¶ 7} The state appealed our decision to the Supreme Court. In Mobarak II , the Supreme Court reversed our decision on the authority of State v. Shalash , 148 Ohio St.3d 611, 2016-Ohio-8358, 71 N.E.3d 1089 (" Shalash II "). In Shalash II , the court certified a conflict with Mobarak I and addressed "whether ‘controlled substance analogs' were criminalized as of October 17, 2011, the effective date of House Bill 64." Id. at ¶ 4. The court answered the question in the affirmative. The court found that H.B. No. 64 enacted R.C. 3719.013 which provides that, with some explicit exceptions, "a controlled substance analog, to the extent intended for human consumption, shall be treated for purposes of any provision of the Revised Code as a controlled substance in schedule I." Id. at ¶ 11. The court found R.C. 3719.013 dispositive. The court reasoned that, although controlled substance analogs were not specifically proscribed by Title 29 when the defendant was arrested and indicted for selling them, R.C. 3719.013 incorporated controlled substance analogs into Title 29. The court reversed our decision in Mobarak I and remanded the matter to this court to address appellant's second, third, and fourth assignments of error, which we will now do.

{¶ 8} In his second assignment of error, appellant argues that the controlled substance analog statute under which he was convicted was unconstitutionally vague on its face and in its application, and his conviction was a fundamental error that violated his constitutional right to due process of law. For a substance to be a "controlled substance analog," the chemical structure of the substance must be "substantially similar to the structure of a controlled substance in schedule I or II." R.C. 3719.01(HH)(1)(a). Former R.C. 3719.013 provided that a controlled substance analog "shall be treated for purposes of any provision of the Revised Code as a controlled substance in schedule I."

{¶ 9} The interpretation of a statute is a question of law that we must review de novo. Washington Cty. Home v. Ohio Dept. of Health , 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011, ¶ 27 (4th Dist.). All enacted legislation enjoys a strong presumption of constitutionality. Sorrell v. Thevenir , 69 Ohio St.3d 415, 418–19, 633 N.E.2d 504 (1994). To overcome this presumption, "it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. The challenger bears the burden of establishing beyond a reasonable doubt that the statute is unconstitutional. State v. Tooley , 114 Ohio St.3d 366, 2007-Ohio-3698, 872 N.E.2d 894, ¶ 29.

{¶ 10} A statute or ordinance may be ruled unconstitutional on grounds of vagueness. State v. Bennett , 150 Ohio App.3d 450, 2002-Ohio-6651, 782 N.E.2d 101 (1st Dist.). The vagueness doctrine is premised on the due process clause of the Fourteenth Amendment and "bars enforcement of ‘ "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." ’ " Id. at ¶ 17, quoting United States v. Lanier , 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), quoting Connally v. Gen. Constr. Co. , 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). "When [a] resolution is challenged as unconstitutionally vague, the reviewing court must determine whether the statute provides sufficient notice of its proscriptions and contains reasonably clear guidelines to prevent official arbitrariness or discrimination in its enforcement." State v. Brundage , 7th Dist. No. 01 CA 07, 2002 WL 924631 (Mar. 20, 2002).

{¶ 11} A legislative enactment may be unconstitutional on its face, or as applied in a specific circumstance. A facial challenge requires that "the challenging party * * * show that the statute is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is...