Separating Actual Cocaine From The Filler: A Look At How The Ohio Supremes Are Requiring The State To Prove The Weight Of Cocaine Without Any Filler

She don’t lie, She don’t lie, She don’t lie….Cocaine!!  That’s right ladies and gentleman.  I am going to be talking about that Nose Candy…that Yeyo…that Cocaine!

In State v. Gonzales, 2016-Ohio-8319, the Ohio Supreme Court was asked, “Must the state, in prosecuting cocaine offense involving mixed substances under R.C. 2925.11(C)(4)(b) through (f), prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?”

In Gonzales, Gonzales was busted for buying a baggie of cocaine from a confidential informant.  The baggie of cocaine weighed 139.2 grams, of which 3 to 20 grams were the weight of the baggie itself.  Because Gonzales was alleged to have possessed more than 100 grams of cocaine, Gonzales was indicted on one first-degree felony count of cocaine possession under R.C. 2925.11(A) and 2925.11(C)(4)(f).  To make matters better for Gonzales, since it was alleged that he possessed at least 100 grams of cocaine he was labeled a major-drug-offender (MDO), a specification in the indictment.

R.C. 2929.01(W) includes in its definition of MDO “an offender” convicted of possessing “at least one hundred grams of cocaine.”

At trial, the confidential informant and several law enforcement officers testified that exhibit 13 was the baggie of cocaine Gonzales purchased.   Some witnesses acknowledged that cocaine is often mixed with other substances or filler material.  No evidence was presented regarding the purity of exhibit 13.  Meaning, whether the cocaine was mixed with a filler and if so, how much of the substance was filler.

Based on this, the defense asked the trial court to read the statutory definition of “cocaine” in R.C. 2925.01(X) to the jurors, and to instruct them that to convict Gonzales of first-degree felony possession, they must find that Gonzales possessed at least 100 grams of actual cocaine, rather than a cocaine mixture.  The trial court denied both motions.

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.

Gonzales appealed to the Sixth District Court of Appeals.  The appellate court reversed the judgment and remanded the case for resentencing.  The appellate court held that in prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), the state is required to prove that the weight of the actual cocaine possessed by the offender met the statutory threshold.  Since this was not accomplished, the appellate court held that the penalty enhancement under R.C. 2925.11(C)(4)(f) must be reversed and vacated.

The state makes a discretionary appeal to the Ohio Supremes based on a certified conflict between Gonzales’ case out of the Sixth District and State v. Smith, 2011-Ohio-2568, out of the Second District.

Unfortunately, the vast majority of the Ohio Supremes’ opinion is just some good ole fashion statutory interpretation.  So hang in there and try not to fall asleep.

The Ohio Supremes open up with that it is their “main objective is to determine and give effect to the legislative intent.”  State ex rel. Solomon v. Police & Fireman’s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62 (1995).  To accomplish this task, “we must first look at the language of the statute itself.”  Provident Bank v. Wood, 36 Ohio St.2d 101 (1973).  If the language is clear and unambiguous, we must apply it as written. “It 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 (1969).  It is also a cardinal rule of statutory construction that a statute should not be interpreted to yield an absurd result.  State ex re. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382 (1985).

The Court, 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 (1980).  This canon of strict construction, also known as the rule of lenity, is codified in R.C. 2901.04(A), which provides that sections of the Revised Code that define offenses or penalties “shall be strictly construed against the state, and liberally construed in favor of the accused.”  Under the rule, ambiguity in a criminal statute is construed so as to apply the statute only to conduct that is clearly proscribed.  United States v. Lanier, 520 U.S. 259 (1997).

Alright!!  Now that we have that basic case law about statutory interpretation, let’s dive into some legal analysis.

Gonzales was convicted of possession of cocaine in violation of R.C. 2925.11, which provides:

(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:


(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.  (Original emphasis)

Remember this case is about possession of cocaine as it relates to felony of the first degree.  The possession of any amount of cocaine is at least a felony of the fifth degree.  Thus, fillers would not matter for a felony of the fifth degree.

The state argued that R.C. 2925.11(C)(4) recognizes that the “drug involved” can be “cocaine or a compound, mixture, preparation, or substance containing  cocaine.”  Because the drug involved can be a mixture, the state reasons that the weight requirements in R.C. 2925.11(C)(4)(b) through (f) do not refer to the weight of pure cocaine only.  The state further argued that the literal interpretation of the statute adopted by the Sixth District creates an absurd result and that the General Assembly did not intend to require a purity analysis of cocaine in prosecutions for possession of cocaine.

Speaking of purity, the state argued that Ohio’s state labs perform aggregate/qualitative analyses by not purity/quantitative analyses of drugs.  The state contended 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 that this process will hamper efforts to prosecute cocaine trafficking and possession cases.

The Ohio Supremes, however were not buying the state’s argument.  To begin, the Court found that the state failed to point to any ambiguity in the statute.  Without that, the Court found that they must simply apple the statute as it is written, without delving into legislative intent.

The Court first takes on the state’s claim 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.

Looking at subsections (C)(4)(b) through (f), the Court points out that these sections are written differently from the other subsections of R.C. 2025.11.  For example, the term “drug involved” is modified by the words “of cocaine.”  The state, according to the Court, was quick to call this a faux pas on the part of the General Assembly when it amended R.C. 2925.11(C)(4) in House Bill 86.  The Court did not agree with this assertion.

The Court pointed out that while House Bill 86 eliminated the separate sentencing scheme for crack cocaine, it also significantly lowered the amount of cocaine necessary to trigger an elevation sentence.  However, House Bill 86 was designed to reduce prison sentences for nonviolent offenders, and lowering the amount of cocaine needed to elevate a prison sentence would be inconsistent with this purpose.  The Court goes on to point out that “if the statute requires that state to prove the weight of the actual cocaine, and not simply the weight of a compound or mixture containing cocaine, then the legislative objectives are accomplished.”

The Court went on to hold that they found nothing in the language of R.C. 2925.11(C)(4)(f) to be ambiguous.  By its plain terms, the Court explained, the statute prohibits the possession of 100 grams or more of cocaine.

The Court found that in order to read the statute as the state would have them do, the Court would need to either delete the phrase “of cocaine” or add the phrase “or a compound, mixture, preparation of substance containing cocaine.”

The Court also recognized that this interpretation of R.C. 2925.11(C)(4)(f) may make the prosecution of possession of cocaine offenses harder for the state because state laboratories are not equipped or certified to do a purity analysis, it does not render prosecutions impossible.

Concluding, the Court found the state’s arguments concerning legislative intent and the consequences of the Sixth District’s interpretation are persuasive in regard to what the statute should say, the arguments are insufficient to overcome what the statute clearly does say.

With that, the Ohio Supremes punted the underlying problem to the General Assembly by stating “the remedy is to be found in the legislature, not a tortured judicial interpretation of a statute unambiguous on its face.”

In the end, however, the Ohio Supremes held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.

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