STATE OF OHIO, Plаintiff-Appellee, - vs - HAMZA SHALASH, Defendant-Appellant.
CASE NO. CA2014-12-146
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
9/21/2015
[Cite as State v. Shalash, 2015-Ohio-3836.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 12CR28290
Rion, Rion and Rion, Jon Paul Rion, Nicole L. Rutter-Hirth, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402, for defendant-appellant
OPINION
PIPER, P.J.
{¶ 1} Defendant-appellant, Hamza Shalash, appeals his conviction in the Warren County Court of Common Pleas on multiple counts of aggravated trafficking in controlled substance analogs and one count of engaging in a pattern of corrupt activity, for which he was sentenced to 11 years in prison. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 3} Appellant appealed his conviction to this court, arguing the trial court erred in denying his motion in limine to exclude the state‘s expert witness testimony without holding a Daubert hearing. State v. Shalash, 12th Dist. Warren No. CA2013-06-052, 2014-Ohio-2584, ¶ 15-16. We agreed with appellant‘s argument, reversed his conviction, and remanded the matter for further proceedings. Id. at ¶ 55.
{¶ 4} On remand, the trial court held a Daubert hearing, during which both parties presented expert testimony regarding the scientific reliability of determining whether controlled substance analogs were “substantially similar” to controlled substances, both in terms of composition and in the effect controlled substance analogs have on persons who use them. Afterwards, the trial court issued a decision ruling that the state‘s “expert testimony will be admitted.” The trial court found that (1) the “visual assessment/comparison method” used by the state‘s experts is no different than forensic methods employed by chemists for decades; (2) the procedures used by the Miami Valley Regional Crime
{¶ 5} Appellant then moved to dismiss the case on the ground that the sale of controlled substance analogs was not criminalized at the time he sold them. The trial court denied appellant‘s motion to dismiss. With the court participating in a discussion between the parties regarding several issues including appellant‘s anticipated appeal, appellant pled no contest to the charges in the indictment. The trial court accepted appellant‘s no cоntest plea, found him guilty as charged, and sentenced him to an aggregate 11-year prison term.
{¶ 6} Appellant now appeals, assigning the following as error:
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN FAILING TO GRANT SHALASH‘S MOTION TO DISMISS BECAUSE CONTROLLED SUBSTANCE ANALOGS WERE NOT CRIMINALIZED AT THE TIME SHALASH WAS ALLEGED TO HAVE COMMITTED THESE OFFENSES.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ERRED IN HOLDING THE STATE COULD PRESENT EXPERT TESTIMONY AT TRIAL THAT THE SUBSTANCES AT ISSUE WERE SUBSTANTIALLY SIMILAR TO CONTROLLED SUBSTANCES BECAUSE THIS EVIDENCE WAS UNRELIABLE.
{¶ 11} In his first assignment of error, Shalash argues the trial court erred in denying his motion to dismiss the charges against him, because controlled substance analogs were
{¶ 12} In support of his argument, appellant relies on State v. Smith, 10th Dist. Franklin Nos. 14AP-154 and 14AP-155, 2014-Ohio-5303. In that case, Smith was indicted on five counts of aggravated possession of controlled substance analogs and five counts of aggravated trafficking in controlled substance analogs. Id. at ¶ 2. Smith moved to dismiss the indictment, assеrting that controlled substance analogs were not criminalized at the time his alleged offenses occurred, and therefore he could not be convicted of the offenses for which he had been indicted. Id. at ¶ 3. The trial court agreed with Smith‘s arguments and granted his motion to dismiss the indictments and charges against him. Id. The state appealed the trial court‘s decision to the Tenth District Court of Appeals, which upheld the trial court‘s decision. Id. at ¶ 1, 22.
{¶ 13} The Tenth District observed that, in 2011, the General Assembly enacted House Bill 64, which became effective on October 17, 2011. Id. at ¶ 7. The court acknowledged that House Bill 64 created a definition of “controlled substance analоg” in
{¶ 14} The Tenth District noted in Smith that “[c]ourts apply the ‘rule of lenity’ when faced with ambiguity in a criminal statute[,]” id. at ¶ 9, and that under the rule of lenity, “‘ambiguity in a criminal statute is construed strictly so as to apply the statute only to conduct that is clearly proscribed.‘” (Emphasis added by the Tenth District.) Id., quoting State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 10.
{¶ 15} The Tenth District observed that at the time of Smith‘s alleged acts,
{¶ 16} The Tenth District further found that the ambiguity under the law as amended by House Bill 64 is also demonstrated by comparing the treatment of controlled substance analogs with the treatment of certain chemical compounds referred to as ‘spice.‘” Id. at ¶ 13. The court noted that unlike the amendments it made to Chapter 2925 in order to criminalize spice, the General Assembly “did not amend
{¶ 18} The Tenth District further found that “the placement of the relevant provisions within the overall statutory structure [of House Bill 64] also demonstrates a notable distinction between [that measure and the federal Controlled Substance Analogue Enforcement Act (CSAEA) of 1986].” Id. at ¶ 15. The court observed that under the CSAEA of 1986, “all of the relevant provisions, including the definition of ‘controlled substance analogue’ and the requirement that such analogues be treated as controlled substances, were placed into the same portion of federal law that contained the prohibitions on possession and sale of controlled substances[.]” Id. The court noted that “[b]y contrast, House Bill 64 placed the controlled substance analog provisions in Chapter 3719 separate from the prohibitions and penalties set forth in Chapter 2925, and failed to incorporate any explicit cross-references in Chapter 2925 to the controlled substance analog provisions.” Id.
{¶ 19} “Applying the rule of lenity,” the Tenth District concluded that, at the time Smith committed his offenses, i.e., from February 2012 through July 2012, ”
{¶ 20} Appellant requests that we follow Smith in this case. We decline to do so.
{¶ 21} When reviewing a trial court‘s decision regarding a motion to dismiss, this court applies a de novo standard of review, meaning that we give no deference to the trial court‘s decision. State v. Hubbard, 12th Dist. Preble No. CA2004-12-018, 2005-Ohio-6425, ¶ 6.
{¶ 22} The primary goal of statutory construction is to determine the General Assembly‘s intent. State v. Kormos, 12th Dist. Clermont No. CA2011-08-059, 2012-Ohio-3128, ¶ 14. The first step in determining legislative intent is to look at the language of the statute. Id. If the meaning of the statute is clear and definite, then the statute must be applied as written. Id. However, if the language of thе statute is ambiguous and subject to more than one meaning, then further interpretation is needed. Id.
{¶ 23} In House Bill 64, which became effective on October 11, 2011, the General Assembly amended
{¶ 24} The plain and clear language of
{¶ 25} Additionally, since the words in
{¶ 26} Ironically, the court in Smith cited the interplay and integration between Chapters 3719 and 2925 and the сanon of statutory construction, expressio unius est exclusio alterius, in support of its observation that, by creating a definition of “controlled
{¶ 27} Additionally, it has also long been held that the maxim “[l]ike other canons of statutory construction[,] * * * is only an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention on the part of the lawmaker is apparent.” Wachendorf, 149 Ohio St. at 239-240. Here, a contrary intention on the part of the General Assembly is apparent from
{¶ 28} As
{¶ 29} In his second assignment of error, appellant argues the trial court erred in denying his motion in limine to prohibit the state from presenting expert testimony showing that the alleged controlled substance analogs were “substantially similar” to controlled substances. Specifically, he contends that the expert testimony is unreliable under Daubert. However, before addressing the substantive arguments raised by appellant in his second
{¶ 30} A trial court‘s ruling on a motion in limine, including a motion to exclude expert testimony, is a tentative, interlocutory, and precautionary ruling that reflects the trial court‘s anticipated treatment of an evidentiary issue that may arise at trial. State v. Harris, 12th Dist. Butler No. CA2007-11-280, 2008-Ohio-4504, ¶ 27. A motion in limine is directed to the trial court‘s discretion on an evidentiary issue that might arise at trial but that has not yet been presented in full context. Id. Generally, a trial court‘s ruling on a motion in limine does not preserve for review any error the trial court may have made in ruling on the motion; rather, any claimed error “must be preserved at trial by an objection, proffer, or ruling on the record[,]” and “[f]ailing to object to the admissibility of the evidence at trial waives any error except plain error.” Id. However, not all motions in limine are alike. See State v. Johnston, 2d Dist. Montgomery No. 26016, 2015-Ohio-450, ¶ 14-16; State v. Echard, 9th Dist. Summit No. 24643, 2009-Ohio-6616, ¶ 14-31, Dickson, J., dissenting.
{¶ 31} A definitive or exclusionary motion in limine has been called “the functional equivalent” of a motion to suppress. State v. Johnston, 2015-Ohio-450 at ¶ 16, citing State v. French, 72 Ohio St.3d 446, 450 (1995). A motion in limine may be used “as the functional equivalent of a motion to suppress evidence that is either not competent or improper due to some unusual circumstance not rising to the level of a constitutional violation.” (Emphasis sic.) Id. “‘The essential difference between a Crim.R. 12[(C)] motion [e.g., a pretrial motion to suppress] and a motion in limine is that the former is capable of resolution without а full trial, while the latter requires consideration of the issue in the context of the other evidence.’ (Emphasis deleted.)” Johnston at ¶ 17, quoting State v. Hall, 57 Ohio App.3d 144, 146 (8th Dist.1989).
{¶ 32} In Johnston, the appellant, Johnston, was charged with a number of crimes,
{¶ 33} After holding a hearing, the trial court granted the state‘s motion in limine and issued an order excluding the testimony of Johnston‘s psychologist on the ground that it was improper under
{¶ 34} On appeal, Johnston argued the trial court “erred and abused its discretion” in granting the state‘s motion in limine and excluding the testimony of his expert psychologist and that his psychologist‘s opinion on the issues of insanity and involuntary intoxication should have been permitted. Id. at ¶ 12. The state argued the trial court‘s ruling on the motion in limine was a preliminary, interlocutory order, and therefore, was not reviewable on appeal. Id.
{¶ 35} The Second District Court of Appeals rejected the state‘s argument, finding that
{¶ 36} The court also observed that this was not a situation where the admissibility of the expert testimony could have been determined only in the context of the other evidence presented at trial and that the admission of the expert evidence was not dependent on a foundation being laid at trial; instead, “[l]ike a suppression hearing, all the evidence and testimony necessary to make this decision was presented at the evidentiary hearing where [Johnston‘s psychologist] was fully questioned and cross-examined by the parties.” Id. at ¶ 24. Therefore, the court found that “the motion was assessed in its full evidentiary/testimonial context and a conclusive ruling was thereafter made.” Id.
{¶ 37} Additionally, the court noted that “during Johnston‘s plea hearing, the trial сourt indirectly indicated that Johnston would be able to appeal the evidentiary ruling excluding [his psychologist‘s] testimony and the state did not disagree.” Id. at ¶ 25. The court concluded that “Johnston‘s challenge to the trial court‘s evidentiary ruling excluding [his psychologist‘s] testimony was preserved for appeal despite being labeled in limine, as it is the equivalent of a suppression ruling that was fully developed and ripe for determination.” Id. at ¶ 26.
{¶ 38} Having examined the case law on this issue, we conclude that a trial court‘s ruling on a motion in limine may be preserved for review by a no contest plea if (1) the motion in limine is being used as the “functional equivalent” of a motion to suppress evidence that is either improper or not competent due to some circumstance not rising to the level of a constitutional violation, (2) there is a clear understanding between the trial court and the parties that the trial court‘s ruling on the evidentiary issue presented will be preserved for
{¶ 39} Applying this rule to the case before us, we conclude that all of these requirements have been met. Therefore, the trial court‘s refusal to grant appellant‘s motion in limine, which was the “functional equivalent” of a motion to suppress, to prohibit the state from presenting expert testimony on whether controlled substance analogs were substantially similar to controlled substances was preserved for review. We now turn to the issue of whether the trial court erred in denying appellant‘s motion in limine.
{¶ 40} The specific issue at the Daubert hearing was whether the state should be prohibited from presenting expert testimony regarding the controlled substance analogs being substantially similar to controlled substances. The proposed testimony involved both the substances’ chemical and molecular structure and the effect the substances have on the central nervous systems of the persons using them. The trial court, applying the factors listed in Daubert, determined that the expert testimony that the state wanted to present on this issue was reliable, and thus denied appellant‘s request to prohibit the state from presenting the expert testimony.
{¶ 41} Appellant argues the trial court erred or abused its discretion when it refused to prohibit the state from presenting this expert testimony at trial. Specifically, appellant argues (1) the term “substantially similar” has no commonly accepted definition, (2) the scientific technique or methodology used to determine whether a controlled substance analog is substantially similаr to a controlled substance is not generally accepted, and (3) there was insufficient evidence to prove that the controlled substance analogs have the same or greater effect on the central nervous system of persons who use them as a controlled substance would have.
{¶ 43} The issue raised by appellant in his motion in limine involved whether to admit or exclude expert testimony. Therefore, the “applicable legal standard” in this case is
{¶ 44}
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relаtes to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.
{¶ 45} The Ohio Supreme Court has held that “[c]ourts should favor the admissibility of expert testimony whenever it is relevant and the criteria of
{¶ 46} The Ohio Supreme Court has set forth four factors to be considered by courts “in evaluating the reliability of scientific evidence: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.” Id. at 211, citing Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998), citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594, 113 S.Ct. 2786 (1993). “[N]one of these factors is a determinative prerequisite to admissibility.” Nemeth, citing Miller at 612-613 and Daubert at 593.
{¶ 47} The Ohio Supreme Court also stated in Nemeth as follows:
Relevant evidence based on valid principles will satisfy the threshold reliability standard for the admission of expert testimony. The credibility to be afforded these prinсiples and the expert‘s conclusions remain a matter for the trier of fact. The reliability requirement in
Evid.R. 702 is a threshold determination that should focus on a particular type of scientific evidence, not the truth or falsity of an alleged scientific fact or truth. “‘In other words, the court need not make the initial determination that the expert testimony or the evidence proffered is true before submitting the information to the jury.‘” State v. Pierce, 64 Ohio St.3d at 501, 597 N.E.2d at 115, quoting United States v. Jakobetz (C.A.2, 1992), 955 F.2d 786, 796-797.
{¶ 49} The state also presented the expert testimony of Dr. Jon Sprague, who has a PhD in pharmacology and toxicology. Dr. Sprague testified that for 25 years, he has researched controlled substance analogs such as synthetic cannabinoids, synthetic cathinones, ecstasy, and bath salts. Dr. Sprague testified as to both the molecular structure of controlled substance analogs and the effects that the controlled substance analogs have on the central nervous system of persons who use them and whether thesе controlled substance analogs have the same or greater effect on a person‘s central nervous system that a controlled substance would have.
{¶ 50} Appellant presented the expert testimony of Joseph P. Bono, “a forensic science consultant in the area of forensic science laboratory operations and the issues associated with purported controlled substance analogs.” Bono holds a bachelor‘s degree in chemistry and a master‘s degree in political science. Bono stated that the term “substantially
{¶ 51} Appellant also presented the expert testimony of Dr. Robert Belloto, a forensic chemist, who testified that there is no scientific test for determining whether two substances are “substantially similar” and that a mathematical or statistical test needs to be created to quantify what constitutes substantial similarity. Dr. Belloto also testified that there is not a test for determining whether two substances will have similar pharmacological effects on persons who use them.
{¶ 52} As to appellant‘s argument that the term “substantially similar” has no commonly accepted definition, we note that courts have consistently determined that this term is to be defined by its plain, ordinary meaning. See, e.g., United States v. Brown, 279 F.Supp.2d 1238, 1240-1241 (S.D.Ala.2003) (since the federal controlled substance analogue act does not indicate the term “substantially similar” is to be defined as it is used scientifically, the words will be defined as they are used in everyday language); United States v. Bays, N.D.Tex. No. 3:13-CR-0357-B, 2014 WL 3764876, *3 (there is no indication that Congress intended for the words “substantially similar” in the federal controlled substance analogue act to have a specialized or scientific meaning, and therefore the words should be given their ordinary meaning).
{¶ 53} As to appellant‘s argument that the method MVRCL uses to determine whether a controlled substance analog is substantially similar to a controlled substance is not generally accepted, we note that both Ehlers and Dr. Sprague testified that the visual comparison method, including the use of 2-D models, is generally accepted in the scientific community. This same conclusion has been reached by a number of federal courts. See, e.g., United States v. Brown, 415 F.3d 1257, 1267 (11th Cir.2005); Bays at *8. Dr. Sprague also testified that his methodology for determining whether a controlled substance analog has the same or greater effect on a user‘s central nervous system that a controlled substance would have has been peer reviewed and is generally accepted in the scientific community.
{¶ 54} As to appellant‘s argument that there was insufficient evidencе to prove that the controlled substance analogs have the same or greater effect on a user‘s central nervous system that a controlled substance would have, we note that Dr. Sprague testified that he considers the “binding” or “affinity” of the controlled substance analog to receptors in the brain and how this binding or affinity is measured by the “KI value[,]” and that the lower the KI value a substance has, the more potent the substance is. Dr. Sprague testified that he uses the “KI value” to determine whether a controlled substance analog has the same or greater effect on a person‘s central nervous system that a controlled substance wоuld have and that use of the “KI value” is generally accepted in the scientific community.
{¶ 55} Dr. Sprague also testified that research has been done on the substances at issue in this case to compare the level of “affinity,” and that the levels in question have been verified in studies on rodents. Dr. Sprague testified that this methodology is generally accepted in the scientific community and that the results of the studies have been presented in peer-reviewed publications. A number of federal courts have upheld the use of these methods in determining the physiological effects of controlled substance analogues. See,
{¶ 56} In light of the foregoing, the state presented sufficient evidence to show that the expert testimony it intended to introduce at appellant‘s trial met the standards set forth in
{¶ 57} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.