Lead Opinion
I
In State v. Wolpe (1984),
The second issue presented is whether the affirmative defense of personal use, as set forth in R.C. 2925.03(F), may be asserted by a defendant charged with possession of three times the bulk amount of marijuana. We find that the defense may not be asserted by such a defendant, and thus reverse on this issue as well.
R.C. 2925.03(F) reads as follows:
“It shall be an affirmative defense as provided in section 2901.05 оf the Revised Code, to a charge under this section for possession in bulk amount of a controlled substance or for cultivating marihuana that the substance which gаve rise to the charge is in such amount, in such form, or is prepared, compounded, or mixed with substances which are not controlled substances in such a manner, or is possessed or cultivated in any other circumstances whatsoever as to indicate that the substance was solely for personal use.” (Emphasis added.)
Thus, if the defense of personal use is proven, the defendant cannot be found guilty under R.C. 2925.03.
R.C. 2925.03(F) specifically refers to possession of a bulk amount of a controlled substance; nowhere in the statute is thеre any reference to possession of three times the bulk amount. “When the wording of a statute is clear and unambiguous on its face, judicial interpretation is not required; rather, the court must give effect to the words used. * * *” Dougherty v. Torrence (1982),
Nevertheless, the court of appeals herein concluded that the General Assembly did not intend to restrict the availability of the personal use defense to the exclusion of those charged with three times bulk possession offensеs. R.C. 2925.01(E)(3) is cited, which defines “bulk amount” as: “An amount equal to or exceeding two hundred grams of marihuana * * (Emphasis added.)
By defining bulk amount in the disjunctive, this reasoning holds, the legislature did not mean for bulk amount to be a static figure. Thus, it is argued, “bulk аmount” as used in R.C. 2925.03(F) means any amount over two hundred grams.
This reasoning has no merit. The General Assembly has specifically created a distinction between bulk amount and three times the bulk amount. R.C. 2925.03(A)(4) аnd (A)(6). Its use of the term “bulk amount” in R.C. 2925.03(F) refers back to the definition set forth in R.C. 2925.01(E)(3). Had it been otherwise, R.C. 2925.03(F) would have read in pertinent part:
“* * * [The defense may be asserted by thоse charged] under this section for possessing a bulk amount [or any greater amount) of a controlled substance * * (Emphasis and bracketed material added.)
The statute does not include the words “or greater,” however. By not
In that the defense set forth in R.C. 2925.03(F) is clear on its face as not available to persons charged with possession of three times the bulk amount of a controlled substance, we reverse on the second issue as well.
For the reasons stated above, the judgment of the court of appeals is reversed.
Judgment reversed.
Dissenting Opinion
dissenting in part.
Because I believe that the per curiam opinion has totally misconstrued the manifest intent of the General Assembly, and has created an impermissible and unconstitutional conclusive presumption of guilt in removing the availability оf the personal use defense provided for in R.C. 2925.03(F), I must vigorously dissent.
R.C. 2925.01, the definitional provisions for the entire chapter dealing with drug offenses, states in relevant рart:
“As used in this chapter:
“(E) ‘Bulk amount’ of a controlled substance means any of the following:
“(3) An amount equal to or exceeding two hundred grams of marihuana, * * *.” (Emphasis added.)
Given this precise language, it is clear that the General Assembly determined that a bulk amount of marijuana is not intended to be a set figure, but, rather, that it would encompass an amount weighing two hundred grams or more. It is also clear from the language in this statute thаt this definition is intended to apply to all marijuana offenses listed in R.C. Chapter 2925. With this in mind, the court of appeals below correctly reasoned that sincе R.C. 2925.03 is aimed primarily at dealers of controlled substances, the personal use defense set forth in subsection (F) should apply to any charge brought under this sеction.
While the majority opinion enunciates the proper test in determining
A careful review of the provision under which defendant stands accused, R.C. 2925.03(A)(6),
The majority’s restrictive and hypertechnical interpretation of these prоvisions effectively creates a conclusive presumption of drug trafficking for anyone charged with possession of marijuana in excess of two hundrеd grams, and precludes that person so accused from ever asserting or proving that such possession was merely for personal use.
The creаtion of conclusive presumptions has long been disfavored in American jurisprudence for the reason that such shortcuts to proof, inter alia, do violence to the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. See Heiner v. Donnan (1932),
Nevertheless, perhaps the most compelling rationаle for affirming the decision of the court of appeals is found in R.C. 2901.04(A), which requires that “[sections of the Revised Code defining offenses or penalties shall bе strictly construed against the state, and liberally construed in favor of the accused.” The per curiam opinion has completely ignored this legislative directive, and has instead done just the opposite. Such judicial inattentiveness totally undermines the intent of the drafters of the Criminal Code provisions, and should not be countenanced by this court.
In my view, an otherwise constitutional provision which was duly enacted by the legislative branch has been rendered unconstitutional under the majority’s faulty and inconsistent interpretation.
Therefore, based upon the foregoing, I would affirm the unanimous decision of the court of appeаls in remanding the cause for a new trial, in order to allow the defendant to proceed with his statutorily authorized affirmative defense as provided in R.C. 2925.03(F).
Notes
This prоvision states that no person shall knowingly “[p]ossess a controlled substance in an amount equal to or exceeding three times the bulk amount.”
This subsection states: “Where the offender has violated division (A)(5) or (A)(6) of this section, aggravated trafficking is a felony of the second degree and the court shall imposе a sentence of actual incarceration of three years and if the offender has previously been convicted of a felony drug abuse оffense, aggravated trafficking is a felony of the first degree, and the court shall impose a sentence of actual incarceration of five years.”