Prosecutors must prove that the actual weight of cocaine, excluding any filler materials, meets statutory levels when prosecuting cocaine-possession cases, the Ohio Supreme Court ruled today.

Justice Judith Ann Lanzinger wrote the lead opinion in which the Court resolved a certified conflict between two appellate courts and affirmed the Sixth District Court of Appeals’ ruling.

Justice Sharon L. Kennedy wrote an opinion concurring in judgment only. Unlike the lead and dissenting opinion, she found the statutory language ambiguous and that applying the rules of statutory construction resulted in the conclusion that the actual weight of cocaine had to be proven.

Chief Justice Maureen O’Connor dissented with an opinion joined by Justices Terrence O’Donnell and Judith L. French.

Brick Weight v. Baggie Weight
After a confidential source for drug enforcement agents sold two imitation bricks of cocaine to Rafael Gonzales, he was indicted on one first-degree-felony count of cocaine possession and was alleged to have possessed at least 100 grams of cocaine, which supported an enhanced penalty for Gonzales as a major-drug offender. One of the two bricks contained a compartment holding a baggie of cocaine weighing 139.2 grams with the baggie weighing between 3 to 20 grams itself. The other brick contained a tracking device.

At trial, no evidence was presented regarding the purity of the baggie of cocaine. The defense asked the trial court to read R.C. 2925.01(X) – the statutory definition of cocaine – to jurors and to instruct them that to convict Gonzales of first-degree-felony possession, they had to find Gonzales possessed at least 100 grams of actual cocaine, rather than a cocaine mixture. The trial court denied both motions.

Gonzales was found guilty of cocaine possession in an amount equal to or exceeding 100 grams. With the specification as a major drug offender, the defendant was sentenced to a mandatory prison term of 11 years.

He appealed to the Sixth District Court of Appeals, which reversed the trial court’s judgment, vacated the mandatory prison sentence as a major-drug offender, and remanded the case for resentencing. The appeals court decision held that the state was required to prove that the weight of the actual cocaine possessed met the statutory threshold.

The Sixth District’s decision requiring proof of actual cocaine weight in possession cases is in conflict with the Second District’s ruling in State v. Smith, in which the Second District ruled the weight of the involved drug could include substances other than actual cocaine. The Ohio Supreme Court acknowledged the conflict and accepted the state’s discretionary appeal.

Statutory Analysis
The Court explained it first must consider a statute’s language before trying to determine and give effect to the statute’s legislative intent.

“If the language is clear and unambiguous, we must apply it as written,” Justice Lanzinger stated. Citing a 1969 Ohio Supreme Court decision, she added, “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.”

The Court majority also stated that any ambiguous language in a criminal statute must be determined in favor of the defendant.

Gonzales was convicted of cocaine possession under a statute that states, “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.”

At a minimum, a conviction for cocaine possession in any amount is a fifth-degree felony. On the other end of the statutory threshold, cocaine possession equal to or exceeding 100 grams is a first-degree felony, the offender is a major-drug offender, and sentencing calls for a mandatory, maximum prison term.

State Says Decision Renders an ‘Absurd Result’
In response to the Sixth District’s decision, the state argued that the literal interpretation of the statute by the appellate court created an “absurd result” because state labs do not analyze drugs for purity and/or quantity, and it contends that analyzing for such would hamper efforts to prosecute cocaine trafficking and possession cases. The state also maintained that the legislature did not intend to require a purity analysis in prosecution of cocaine possession and that statutes as written authorize the aggregate weight to determine the offense level and penalty as long as cocaine is detected.

Calling the appellate decision a misinterpretation of the cocaine-possession statutes, 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” and because the drug can be a mixture, the state reasoned that the weight requirements in R.C. 2925.11(C)(4)(b) through (f) do not refer to the weight of pure cocaine only.

Justice Lanzinger wrote, however: “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.”

Justice Lanzinger further wrote that the state is persuasive in its arguments regarding legislative intent and the consequences of the Sixth District interpretation in regard to what the statute “should say.” The arguments, though, are insufficient to overcome what the statute “clearly does say,” she stated. “The remedy is to be found in the legislature, not a tortured judicial interpretation of a statute unambiguous on its face.”

She concluded, “Given the unambiguous language of the statute, we answer the certified conflict question in the affirmative and hold 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 fillers materials, meets the statutory threshold.”

Joining Justice Lanzinger in the lead opinion were Justices Paul E. Pfeifer and William M. O’Neill.

Justice Kennedy Offers Separate Concurring Opinion
Justice Kennedy stated that she concurred in the judgment because she must. She disagreed with the conclusions by both the majority and dissent that the statutory language is unambiguous and noted that a conflict between appellate courts suggests ambiguity.

Justice Kennedy examined legislative history to determine the intention of the General Assembly.  She noted that the Ohio Legislative Service Commission recognized that one aspect of the statute was “to remove the presumption of a term of incarceration for fourth-degree felony drug offenses” and that the director of the Department of Rehabilitation and Correction called the legislation “a day of hope.” Justice Kennedy reasoned “that the requirement that prosecutors prove the ‘grams of cocaine’ signals the legislature’s intention.” 

She concluded by stating “it is not the role of the courts ‘to establish legislative policies or to second-guess the General Assembly’s policy choices’” and that if the General Assembly’s intent was to include the “‘compound, mixture, preparation, or substance containing cocaine,’ into the weight threshold for punishing possession of cocaine, then the General Assembly has the opportunity to specify a different remedy or change the definition of ‘cocaine’ to include this language.”

Powder Cocaine Is Not Pure by Nature
Drug-possession penalties are determined according to the amount of the drug involved, Chief Justice O’Connor wrote in her dissenting opinion, holding that the majority opinion “introduces a purity or weight requirement for cocaine possession that is not found in the language of the statute or supported by the reality of how cocaine is produced, distributed, or consumed.”  Giving effect to the whole statute, the plain language describes the drug in broad terms, she wrote. “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.”

Chief Justice O’Connor explained that the statutory definition of cocaine recognizes that powder cocaine is a compound of several ingredients, including coca paste, hydrochloric acid, water, potassium salt, and ammonia. Before distribution, she stated, powder cocaine is diluted by adding sugars, local anesthetics, other drugs, or inert substances.

Consequently, powder cocaine is not pure and fillers that reduce the purity level of cocaine are not intended to be removed before consumption. “Quality varies,” Chief Justice O’Connor stated. “But this variation does not change the fact that a range of concentrations renders usable cocaine.”

Therefore, Chief Justice O’Connor, stated, “If the General Assembly had been concerned about purity, rather than total weight, it would have said so.”

2015-0384. State v. Gonzales, Slip Opinion No. 2016-Ohio-8319.

View oral argument video of this case.

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