State v. Smith
2014 Ohio 5303
| Ohio Ct. App. | 2014Background
- Thomas C. Smith (appellee) operated Columbus shops selling "adult novelty" products and was indicted in 2012 for selling/possessing substances described as AM-2201 and a‑PVP (alleged controlled‑substance analogs).
- Indictments charged aggravated trafficking (R.C. 2925.03) and aggravated possession (R.C. 2925.11); two counts were captioned as "trafficking in spice."
- Ohio had enacted House Bill 64 (effective Oct. 17, 2011), which defined "controlled substance analog" in R.C. 3719.01(HH) and provided that an analog "shall be treated for purposes of any provision of the Revised Code as a controlled substance in schedule I."
- Chapter 2925 (the criminal drug statutes) defined many terms by incorporating definitions from Chapter 3719 via R.C. 2925.01, but did not expressly incorporate the new R.C. 3719.01(HH) definition of "controlled substance analog."
- The trial court dismissed the indictments, finding possession/sale of controlled‑substance analogs were not clearly criminalized at the time; the state appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether, Feb–Jul 2012, Ohio law criminalized possession/sale of controlled‑substance analogs (AM‑2201, a‑PVP) | The definition in R.C. 3719.01(HH) plus R.C. 3719.013 treated analogs as Schedule I "for purposes of any provision of the Revised Code," so R.C. 2925.03/2925.11 already prohibited and penalized those acts | House Bill 64 placed the analog definition in Chapter 3719 and Chapter 2925 did not incorporate that specific definition; ambiguous statutory placement and lack of cross‑references mean acts were not clearly proscribed | Court affirmed dismissal: under rule of lenity, statutes ambiguous as to criminality must be construed for defendant; 2925.03/2925.11 did not clearly prohibit analogs during the period at issue |
| Whether counts captioned as "trafficking in spice" survived dismissal | State: captioned "trafficking in spice" and House Bill 64 expressly criminalized certain "spice" chemicals, so those counts should stand | Defense: the indictment’s body charged sale of AM‑2201 as an analog, not one of the expressly listed "spice" chemicals; state failed to distinguish or amend | Held: Counts captioned as "trafficking in spice" in substance charged sale of analogs (not the listed spice chemicals); analog sale was not clearly criminalized, so dismissal proper |
| Applicability of rule of lenity | State: legislative intent in HB 64 was to prohibit analogs broadly | Defense: ambiguous statutory scheme requires strict construction for accused | Held: Rule of lenity applies; ambiguities resolved in favor of accused |
| Whether federal Analogue Act supports reading Ohio statutes broadly | State cited federal Analogue Act as persuasive model | Defense: federal scheme placed definition and prohibitions together; Ohio placed analog definition in separate civil/chapter area without cross‑references, so federal structure not dispositive | Held: Differences in statutory placement and lack of incorporation in Ohio weigh against broad application here |
Key Cases Cited
- United States v. Forbes, 806 F. Supp. 232 (D. Colo. 1992) (discussing federal Analogue Act purpose to reach chemically altered drugs)
- United States v. Klecker, 348 F.3d 69 (4th Cir. 2003) (federal Analogue Act prevents chemists from evading scheduling by minor structural changes)
- Columbus v. DeLong, 173 Ohio St. 81 (1962) (penal statutes strictly construed against the state)