State v. Allen , 2022 Ohio 1419 ( 2022 )

[Cite as State v. Allen, 2022-Ohio-1419.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 29273
:
v. : Trial Court Case No. 2021-CR-1392
:
LATRICE ALLEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 29th day of April, 2022.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellant
ANGELINA N. JACKSON, Atty. Reg. No. 0077937, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
Attorney for Defendant-Appellee
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DONOVAN, J.
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{¶ 1} The State of Ohio appeals from an order of the Montgomery County Court of
Common Pleas, which dismissed Latrice Allen’s indictment for one count of possession
of marijuana (at least 200 grams but less than 1000 grams), a felony of the fifth degree.
{¶ 2} The incident which formed the basis for the indictment occurred on April 23,
2021. While at the Dayton International Airport, Allen was found in possession of over
1,000 grams of marijuana-infused products. The marijuana that Allen possessed came
in several forms, including two marijuana-infused suckers, two plastic bottles of marijuana
liquid, and eight packages containing marijuana-infused gummies. Allen told the
authorities that she had purchased the marijuana products at a “gas station” before
traveling to the airport.
{¶ 3} Allen was indicted for possession of marijuana on June 24, 2021. At her
arraignment on July 22, 2021, Allen stood mute, and the trial court entered a plea of not
guilty on her behalf. On August 23, 2021, Allen filed a motion to dismiss the indictment
against her pursuant to Crim.R. 48(B). Allen argued that the trial court should grant her
motion because “just a few months after the charges [sic] were incurred in this case,”
Allen was issued a card by the Ohio Medical Marijuana Registry “that would render any
future possession of the same amount of marijuana to be completely legal under Ohio
law.” Appellee’s Brief p. 2. The State filed responses to Allen’s motion to dismiss on
August 24 and September 2, 2021.
{¶ 4} On September 25, 2021, the trial court granted Allen’s motion to dismiss the
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indictment against her. The trial court found as follows: 1) because Allen had obtained
a medical marijuana card in the interim, any future marijuana possession by her would be
legal; 2) no one was harmed by her possession of marijuana; and 3) no meaningful
punishment could be imposed for Allen’s crime. In light of its rationale, the trial court
dismissed Allen’s case pursuant to Crim.R. 48(B) “in the interests of justice.” The trial
court also noted that “the primary duty of a prosecutor is to seek justice, not merely to
convict.”
{¶ 5} The State of Ohio now appeals.
{¶ 6} The State’s sole assignment of error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW IN GRANTING ALLEN’S CRIM.R. 48(B) MOTION TO
DISMISS, BECAUSE THE VARIOUS RATIONALES GIVEN BY THE TRIAL
COURT FOR DISMISSING ALLEN’S CASE ARE LEGALLY AND
FACTUAL[LY] UNSUSTAINABLE.
{¶ 7} The State contends that the trial court abused its discretion when it granted
Allen’s Crim.R. 48(B) motion to dismiss because its findings were “legally and factually
false.”
{¶ 8} Crim.R. 48(B), which provides the procedure for the dismissal of a criminal
case by the court over the objections of the State, provides that “if the court over the
objection of the state dismisses an indictment, information, or complaint, it shall state on
the record its findings of fact and reasons for the dismissal.” See State v. Anguiano, 2d
Dist. Darke No. 2011-CA-9, 2012-Ohio-2094, ¶ 9.
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{¶ 9} A trial court's dismissal of an indictment is reviewed for an abuse of
discretion. State v. Busch, 76 Ohio St.3d 613, 616, 669 N.E.2d 1125 (1996). The term
“abuse of discretion” implies a decision that is unreasonable, arbitrary or unconscionable.
State v. Rodriguez, 2d Dist. Darke No. 1722, 2008-Ohio-3377, ¶ 8.
The Ohio Supreme Court has held that Crim.R. 48(B) “does not limit
the reasons for which a trial judge might dismiss a case, and we are
convinced that a judge may dismiss a case pursuant to Crim.R. 48(B) if a
dismissal serves the interest of justice.” Busch * * * at 615. The Court also
stated that trial courts are on “the front lines of the administration of justice
in our judicial system, dealing with the realities and practicalities of
managing a caseload and responding to the rights and interests of the
prosecution, the accused, and victims. A court has the ‘inherent power to
regulate the practice before it and protect the integrity of its proceedings.’ ”
Id. “The Court also stressed the flexibility a trial court should have to
devise a solution in a given case, and went on to state that ‘[t]rial judges
have the discretion to determine when the court has ceased to be useful in
a given case.’ ” State v. Rodriguez * * * at ¶ 10, quoting Busch * * * at 616.
Anguiano at ¶ 11, citing State v. Montiel, 185 Ohio App.3d 362, 2009-Ohio-6589, 924
N.E.2d 375, ¶ 15 (2d Dist.).
{¶ 10} However, a trial court cannot dismiss an indictment pursuant to Crim.R.
48(B) simply because the court finds that no useful purpose would be served by
continuing with the prosecution. State v. Daugherty, 5th Dist. Ashland No. 03COA050,
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2004-Ohio-2005, ¶ 10. Additionally, we have held that “a court has inherent power to
dismiss with prejudice only where it is apparent that the defendant has been denied either
a constitutional or statutory right, the violation of which would, in itself, bar prosecution.”
State v. Today’s Bookstore, Inc., 86 Ohio App.3d 810, 824, 621 N.E.2d 1283 (2d
Dist.1993), citing State v. Sutton, 64 Ohio App.2d 105, 411 N.E.2d 818 (9th Dist.1980).
{¶ 11} As previously stated, the trial court granted Allen’s motion to dismiss the
indictment for the following reasons: 1) because Allen had obtained a medical marijuana
card and any future marijuana possession by her would be legal; 2) no one was harmed
by her possession of marijuana; and 3) no meaningful punishment could be imposed for
Allen’s crime.
{¶ 12} Allen was initially charged with one count of possession of marijuana (at
least 200 grams but less than 1000 grams), in violation of R.C. 2925.11(A) and (C)(3)(c),
a felony of the fifth degree. R.C. 2925.11(B)(2)(a)(iv) defines a “minor possession
offense” as “a violation of this section [R.C. 2925.11] that is a misdemeanor or a felony of
the fifth degree.” Specifically, the record suggests that Allen allegedly possessed
approximately 355 grams of marijuana-infused liquid and approximately 700 grams of
marijuana-infused edibles. At the time she purchased the marijuana products, Allen did
not have a medical marijuana card, so her conduct was illegal. It is of little consequence
that Allen obtained a medical marijuana card approximately two months after she was
indicted for this offense.
{¶ 13} Even if she had had a medical marijuana card at the time of the purchase,
by her own admission, Allen bought the contraband at a “gas station,” not a properly
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licensed retail medical marijuana dispensary. See Ohio Adm.Code 3796:6-2-02(A); R.C.
3796.22(A). Furthermore, the holder of a medical marijuana card is permitted to possess
no more than a 90-day supply of an authorized form of marijuana. See Ohio Adm.Code
3796:8-2-01(A) and 3796:8-2-04(B); R.C. 3796.22(B). If the medical marijuana is in the
form of either an oil or an “edible” for “oral administration” (the type of marijuana Allen
possessed), a 90-day supply constitutes only 9.9 grams of THC content. Ohio Adm.Code
3796:8-2-04(B). As noted, Allen is alleged to have possessed approximately 355 grams
of marijuana-infused liquid and approximately 700 grams of marijuana-infused edibles,
arguably well above the amount that the law would have allowed even if she had had a
medical marijuana card, which she did not. 1 Furthermore, even if Allen had had a
medical marijuana card at the time she was arrested at the airport, she would have been
in violation of the law for transporting contraband into other states.
{¶ 14} Additionally, we find the trial court’s conclusion that Allen’s possession of
drugs was a victimless crime to be incorrect and misleading. “Studies demonstrate the
grave threat that illegal drugs * * * pose to society in terms of violence, crime, and social
displacement.” Harmelin v. Michigan, 501 U.S. 957, 960, 111 S.Ct. 2680, 115 L.Ed.2d
836 (1991). Possession, use, and distribution of illegal drugs represent “one of the
greatest problems affecting the health and welfare of our population.” Treasury Emps. v.
Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). While some
states allow for the recreational use of marijuana, Ohio is not one of those states.
1
Allen suggests in her brief that the levels of THC in the marijuana-infused edibles were
not established by the State; however, that is a matter to be established by the
prosecution at trial.
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Without a medical marijuana card, possession of marijuana in Ohio is illegal, and it is
undisputed that Allen did not have a medical marijuana card on the day she was found to
be in possession of the marijuana-infused products.
{¶ 15} In support of her argument that the trial court did not err when it granted her
motion to dismiss the indictment, Allen cites to two opinions from this Court, State v.
Helmer, 2d Dist. Darke No. 2011-CA-12, 2012-Ohio-2103, and State v. Stokes, 2d Dist.
Darke No. 2011-CA-10, 2012-Ohio-2110. In Helmer, we affirmed the trial court’s
decision granting the defendant’s motion to dismiss the indictment, finding “that dismissal
of the indictment was proper because the State could not cogently explain its reason for
delaying the filing of the indictment against Helmer, nor would the ‘interests of justice’ be
served by prosecuting a two-and-a-half year-old case when in the interim, Helmer had
been convicted and sentenced in a separate case, thus denying him the potential ability
to avail himself of speedy trial provisions and/or the possibility of concurrent sentences.”
Helmer at ¶ 13.
{¶ 16} In Stokes, we affirmed the trial court’s decision granting the defendant’s
motion to dismiss the indictment, finding the State could not cogently explain its reason
for delaying the filing of the indictment against Stokes, and the “interests of justice” would
not have been served by prosecuting a two-and-a-half year-old case when, in the interim,
Stokes had no prior criminal history, had maintained employment, and had voluntarily
participated in substance abuse rehabilitation programs. Id. at ¶ 13.
{¶ 17} In our view, neither Helmer nor Stokes is applicable to Allen’s case, since
Allen was indicted only two months after her arrest for possession of marijuana rather
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than the two-and-a-half year delay present in Hemler and Stokes.
{¶ 18} Our duty as members of the judiciary is to interpret and apply the law in both
the civil and criminal context. We are not at liberty to pick and choose which laws we
want to enforce regarding criminal defendants. The purposes and principles of felony
sentencing involve a great deal more than simply punishing the offender. “That is a
sentencing consideration more than a legitimate basis to dismiss the indictment.” State v.
Harris, 186 Ohio App.3d 359, 2010-Ohio-837, 928 N.E.2d 456, ¶ 12 (2d Dist.).
Protecting the public from future crime by a defendant and deterring the offender and
others from committing future crimes are also significant considerations for a trial court
when sentencing a defendant. Here, the trial court failed to take into account all of the
factors with respect to the purposes and principles of felony sentencing. Furthermore,
by granting Allen’s motion to dismiss the indictment, the trial court failed to give due
consideration to the rights of the State in prosecuting its assigned cases. State v.
Congrove, 10th Dist. Franklin No. 06AP-1129, 2007-Ohio-3323, ¶ 18.
{¶ 19} Lastly, the trial court found that the “interests of justice” required dismissal
of Allen’s indictment because there was “no justification for punishing” Allen and “even
community control sanctions would serve no purpose,” as there was no need for Allen’s
rehabilitation. Order Granting Motion to Dismiss, p. 3. But R.C. 2929.11(A) mandates
that a court sentencing an offender for a felony “shall be guided” by the “overriding
purposes” of “protect[ing] the public from future crime by the offender and others” and
“punish[ing] the offender,” while “using the minimum sanctions that [it] determines [likely
to] accomplish [these] purposes without imposing an unnecessary burden on state or
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local government resources.” Accordingly, the “court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution.” Id. R.C. 2929.11(B) adds that a
felony sentence “shall be reasonably calculated to achieve the two overriding purposes
of felony sentencing * * *, commensurate with and not demeaning to the seriousness of
the offender's conduct and its impact upon [any] victim[s], and consistent with sentences
imposed for similar crimes committed by similar offenders.”
{¶ 20} As previously noted, several states allow for the recreational use of
marijuana, but Ohio does not. At the time Allen was arrested for marijuana possession,
she did not have medical marijuana card. Therefore, Allen’s possession of the
marijuana-infused products was illegal. It is of little, if any, consequence that Allen
obtained a medical marijuana card approximately two months after she was indicted in
this case. While Allen’s possession offense was a low-level felony, it was still illegal in
Ohio, and until such time that the legislature decides to legalize marijuana for recreational
use, possession of marijuana without a medical marijuana card will remain illegal.
{¶ 21} We also find Allen’s argument regarding the “Good Samaritan” law to be
inapplicable, because that law only provides immunity from arrest and prosecution for
those who have overdosed and are in possession of drugs. The law was created in
response to the opioid crisis in Ohio. Quite simply, the “Good Samaritan” law is not
relevant to these proceedings. Furthermore, there is no evidence on this record
suggesting that Allen was somehow targeted as a minority. Rather, Allen was
presumably arrested only after having her bag and/or purse checked at Dayton
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International Airport, a process every citizen encounters at an airport.
{¶ 22} In light of the foregoing, dismissal was inappropriate, and the trial court's
conclusion that insufficient reasons existed for prosecution was an abuse of discretion.
See State v. Kauffman, 2 Dist. Darke No. 2021-CA-5, 2021-Ohio-3847, ¶ 13. The trial
court erred when it granted Allen’s motion to dismiss her indictment pursuant to Crim.R.
48(B).
{¶ 23} Allen’s assignment of error is overruled.
{¶ 24} The judgment of the trial court is reversed, and this matter is remanded for
further proceedings consistent with this opinion.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Angelina J. Jackson
Hon. Steven K. Dankof