THE STATE OF OHIO, APPELLANT, v. GONZALES, APPELLEE.
Nos. 2015-0384 and 2015-0385
Supreme Court of Ohio
Submitted February 9, 2016—Decided December 23, 2016
2016-Ohio-8319
Rеporter‘s Note: This decision was vacated on March 6, 2017. See opinion on reconsideration that appears at 150 Ohio St.3d 277, 2017-Ohio-777, 81 N.E.3d 418.
{¶ 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
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
{¶ 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
{¶ 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
{¶ 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
{¶ 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 detеrmined by the total weight of the cocaine plus any filler.
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 аrise collaterally any absurd consequences, manifestly contradictory to common reason, the obvious intention of the law must prevail over a literal interpretation“). See also
{¶ 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
The Statute—R.C. 2925.11(C)(4)
{¶ 11} Gonzales was convicted of possession of cocaine in violation of
(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 оf 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 оffender 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.
(e) If the amount of the drug involved equals or exceeds twenty-seven grams but is less than one hundred grams of cocaine, possession of cocaine is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved equals or exceeds one hundred grams of cocaine, possession of cocaine is a felony of the first degree, the
offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
(Emphasis added.) The possession of any amount of cocaine is at least a felony of the fifth degree.
{¶ 12} This version of
{¶ 13} The state argues that the Sixth District Court of Appeals misinterpreted
{¶ 14} The state and its amici note that Ohio‘s state labs perform aggregate/qualitative analyses but not purity/quantitative analyses of drugs. They contend that it will take a significant amount of time for state labs to become accredited to do the purity testing mandated by the Sixth District‘s decision and
The Conflict Cases
{¶ 15} In this case, the Sixth District agreed with the state that the plain language of
“Cocaine” means any of the following:
(1) A cocaine salt, isomer, or derivative, a salt of a cocaine isomer or derivative, or the base form of cocaine;
(2) Coca leaves or a salt, compound, derivative, or preparation of coca leaves, including ecgonine, a salt, isomer, or derivative of ecgonine, or a salt of an isomer or derivative of ecgonine;
(3) A salt, compound, derivative, or preparation of a substance identified in division (X)(1) or (2) of this section that is chemically equivalent to or identical with any of those substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves if the extractions do not contain cocaine or ecgonine.
Because the definition of “cocaine” does not include a “mixture,” the Sixth District concluded that “a defendant may be held liable for cocaine offenses under
{¶ 16} The Second District in Smith, 2011-Ohio-2568, 2011 WL 2112609, at ¶ 12, rejected the defendant‘s argument that the weight of “the drug involved” should not include parts of the substance other than the actual cocаine. Smith‘s argument centered on the definition of “drug” incorporated from
{¶ 17} The state fails to point to any ambiguity in the statute. Without that, we must simply apply the statute as it is written, without delving into legislative intent. Although the state argues that the Sixth District‘s interpretation would lead to absurd or unjust results and that cocaine should not be treated differently from any other controlled substance, we cannot agree. Subsections (C)(4)(b) through (f) are written differently from the other subsections of
{¶ 18} The dissent contends that we are ignoring the reality that powder cocaine is a compound of several substances. The chemical makeup of cocaine is not the issue, however. The question is whether the filler material added to cocaine is considered рart of the drug involved for violations of
{¶ 19} The dissent also contends that a “compound” is the same thing as a “mixture,” and therefore the definition of “cocaine” encompasses cocaine mixed with filler material. But if “mixture” is the same as “compound,” the General Assembly would not have needed to put both terms into the definitions of marihuana or methamphetamine. See
{¶ 20} We find nothing in the language of
{¶ 21} The dissent alleges that this holding conflicts with our decisions in State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, and Garr v. Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063. But both cases are easily distinguishable based on their facts. In Chandler, the substance that was sold as crack cocaine was actually baking soda. We held that imposing the penalty enhancement as a major drug offender when the substance did not contain any cocaine was contradictory to the language of
{¶ 22} While the state‘s arguments concerning legislative intent and the consequences of the Sixth District‘s interpretation are persuasive in regard to
{¶ 23} The judgment of the Sixth District Court of Appeals is affirmed.
Judgment affirmed.
PFEIFER and O‘NEILL, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
O‘CONNOR, C.J., dissents, with an opinion joined by O‘DONNELL and FRENCH, JJ.
THE STATE OF OHIO, APPELLANT, v. GONZALES, APPELLEE.
Nos. 2015-0384 and 2015-0385
2016-Ohio-8319
KENNEDY, J., concurring in judgment only.
{¶ 24} I concur only in the judgment of the lead opinion today because I must.
{¶ 25} “Where a statute is found to be subject to various interpretations, * * * a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at legislative intent.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 190, 404 N.E.2d 159 (1980). “The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the lawmaking body which enacted it.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph onе of the syllabus.
{¶ 26} However, the intent of the General Assembly must be determined primarily from the language of the statute itself. Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). If the statute is ambiguous, the court “may” consider the “matters” listed in
{¶ 27} Through enactment of
{¶ 29} I disagree with the conclusions of the lead opinion and the dissent that the language of the statute is unambiguous. When the language of the specific prohibition by class of controlled substance is read in conjunction with the corresponding penalty provision, the statute is ambiguous. See Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000) (conflict among the appellate courts regarding the meaning of statutory phrase suggests that the language is ambiguous). The specific penalty provision uses the phrase “grams of cocaine.”
{¶ 30} The state of Ohio argues that “the drafters made a probable slight faux * * * pas” in amending this provision, and “reading the statute in any way” other than that the General Assembly requires a mere “aggregate weight” test “belies the legislative intent of the law.”
{¶ 31} When a statute is ambiguous,
{¶ 32} The Ohio Legislative Service Commission recognized that one aspect of 2011 Am.Sub.H.B. No. 86 (“H.B. 86“) was to eliminate “the distinction between the criminal penalties provided for drug offenses involving crack cocaine and * * * powder cocaine,” but a second аspect of the law was to remove the presumption of a term of incarceration for fourth-degree felony drug offenses. Ohio Legislative Service Commission, Bill Analysis, Am.Sub.H.B. 86, as passed by the General Assembly, at 9.
{¶ 33} Heralded as a significant piece of legislation that would drastically reduce prison population by ensuring that low-level nonviolent drug offenders
{¶ 34} In achieving this reduced prison population by eliminating presumptive prison sentences for some nonviolent drug offenders, the requirement that prosecutors prove the “grams of cocaine” signals the legislature‘s intention: only drug offenders possessing the spеcific grams of pure cocaine identified in
{¶ 35} The General Assembly specifically used the language “grams of cocaine” without any further qualifiers. If the General Assembly had intended to include the “compound, mixture, preparation, or substance containing cocaine,”
{¶ 36} Therefore, I concur in judgment only.
THE STATE OF OHIO, APPELLANT, v. GONZALES, APPELLEE.
Nos. 2015-0384 and 2015-0385
2016-Ohio-8319
O‘CONNOR, C.J., dissenting.
{¶ 37} Under
{¶ 38} Powder cocaine is a compound of several ingredients:
[C]ocaine powder is derived by dissolving the coca paste in hydrochloric acid and water. To this mixture a potassium salt (potassium permanganate) is added. The potassium salt causes undesired substances to separate from the mixture. These substances are then discarded. Ammonia is
added to the remaining solution, and a solid substance—the powder cocaine—separates from the solution. The powder cocaine is removed and allowed to dry. Prior to distribution, powder cocaine typically is “cut,” or * * * diluted, by adding one or more adulterants: sugars, local anesthetics (e.g., benzocaine), other drugs, or other inert substances. Consequently, the purity level of powder cocaine may vary considerably.
(Footnotes omitted.) United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 12 (Feb. 1995), http://www.ussc.gov/research/congressional-reports/1995-report-congress-cocaine-and-federal-sentencing-policy (accessed Oct. 25, 2016). See also Ohio Substance Abuse Monitoring Network, Drug Abuse Trends in the Cleveland Region 81 (Jan.-June 2014), http://www.documentcloud.org/documents/1659531-drug-abuse-trends-in-the-cleveland-region.html#document/p1 (accessed Nov. 2, 2016) (cocaine powder in the Cleveland area is cut with lidocaine, procaine, and levamisole, a livestock dewormer); Ohio Substance Abuse Monitoring Network, Drug Abuse Trends in the Columbus Region 102 (Jan.-June 2014), http://mha.ohio.gov/Portals/0/assets/Research/OSAM-TRI/Columbus%20Jan%202015.pdf (accessed Nov. 2, 2016) (in the Columbus area, cocaine is cut with lidocaine, procaine, levamisole, baby formula, and “anything that is white and powdered“).
{¶ 39} Purity levels of powder cocaine trend downward as the drug is separated into smaller volumes for distribution. For example, in 1995, when purity levels were considered relatively high, a kilogram of cocaine powder averaged 85 percent pure, an ounce averаged 70 percent pure, and a gram averaged 63 percent pure. Abstract, National Criminal Justice Reference Serv., United States Justice Dept., Drug Enforcement Administration, Illegal Drug Price/Purity Report, United States: Jan. 1992–Mar. 1995 (1995), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=158868 (accessed Nov. 16, 2016). Thus, even in kilogram volume, much more than would typically be possessed for individual consumption, powder cocaine is not pure.
{¶ 40} Importantly, the fillers, or adulterants, that reduce the purity level of cocaine along the distribution chain are not intended to be removed before consumption. Quality varies, but this variation does not change the fact that a range of concentrations renders usable cocaine. See Drug Abuse Trends in the Columbus Region at 102 (A participant in the focus group interviews stated, “* * * ‘[Quality of cocaine] just depends who you get it from * * * [current quality is] garbage‘“). (Brackets sic and emphasis deleted.) The fillers are inherent in the usable drug. That anything less than what is actually sold and consumed as cocaine would determine the penalty for cocaine possession is illogical and contrary to reality.
{¶ 42} This description is consistent with the General Assembly‘s definition of cocaine to include “[a] salt, compound, derivative, or preparation of [a cocaine salt, isomer, or derivative].” (Emphasis added.)
{¶ 43} The lead opinion agrees with the appellate court‘s analysis, ignoring definitions to achieve an overly narrow reading of the statute. Specifically, the lead opinion concludes that in the penalty portion of the statute, “[i]f the amount of the drug involved equals or exceeds оne hundred grams of cocaine,” the term “drug involved” is modified by the words “of cocaine.” Lead opinion at ¶ 17. The opinion further concludes that the term “of cocaine” means “actual cocaine, excluding the weight of any filler materials.” Id. at ¶ 22. And the lead opinion asserts that a “compound” and “mixture” of cocaine are distinct. Id. at ¶ 19.
{¶ 44} But the statutory definition of “cocaine” is a “compound, derivative, or preparation” containing cocaine.
{¶ 45} “[W]ords in a statute do not exist in a vacuum.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19. The words must be read in context and construed according to common usage.
{¶ 46} Doing so here requires us to give effect to the statutory definitions of “cocaine” and “drug involved,” which include a mixture. Read as a whole, the statute clearly seeks to penalize the amount of compounded cocaine in the offender‘s possession, regardless of whether the form of the drug is pure or mixed.
{¶ 48} The lead opinion‘s conclusion that the General Assembly would treat the weight of cocaine differently from how the drug is treated and sold on the street renders the statute‘s penalty-by-weight distinctions irrelevant. For example, imagine two drug offеnders who each possess 150 grams of powder cocaine. The first has a 60-percent-pure product and the second a 70-percent-pure product. Under the lead opinion‘s arbitrary distinction of separating “cocaine” from filler, they would be penalized differently. The first would possess a net weight of 90 grams of cocaine salt and be subject to a first-degree felony with a prison term chosen among those prescribed for a first-degree felony. See
{¶ 49} We are aware of only two states that require purity testing of cocaine to determine the penalty level of the offense. In both, the relevant statutes expressly require pure weight. For example in Georgia, a cocaine-trafficking offense exists for “any mixture with a purity of 10 percent or more of cocaine.”
{¶ 50} Ohio‘s cocaine-possession statute resembles neither of these states’ schemes. Thus, we note these examples to demonstrate how rarely a legislature adopts such an approach and the clear intent it expresses when it does.
{¶ 51} Additionally, the lead opinion does not adequately explain why it today interprets the cocaine-possession statute differently from how this court interpreted substantially similar language in an earlier cocaine-trafficking statute,
O‘DONNELL and FRENCH, JJ., concur in the foregoing opinion.
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, Jeremiah S. Ray, and Ronald J. Mayle, 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 Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.