[Cite as State v. Jackson,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. Nos. 27132 27133 Appellee 27158 27200 v.

HARRY E. JACKSON DANNIELLE L. HILEMAN APPEAL FROM JUDGMENT EUGENE B. HOOVER ENTERED IN THE DANIEL I. DEARMENT COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellants CASE No. CR 2012 03 0882 (A) CR 2012 03 0882 (C) CR 2012 03 0882 (D) CR 2012 03 0882 (E)

DECISION AND JOURNAL ENTRY

Dated: December 16, 2015

CARR, Judge.

{¶1} Defendant-Appellants, Harry Jackson, Dannielle Hileman, Eugene Hoover, and

Daniel DeArment (collectively “Appellants”), appeal from their convictions in the Summit

County Court of Common Pleas. This Court affirms.

I.

{¶2} Jackson is the owner of a store in Akron, Ohio, known as The Odd Corner. In

March 2012, the University of Akron Police Department began investigating The Odd Corner

because they suspected that illegal bath salts were being sold there. The department conducted a

controlled buy at the store on March 21, 2012. Hoover, an employee of the store, was working

that day and sold a product called Joy to one of the department’s undercover detectives. Joy 2

comes in a small orange container and consists of a white powder that contains Pentedrone. At

all times relevant to this appeal, Pentedrone was not yet listed as a controlled substance. It was

the State’s position that Pentedrone was an analog of Methcathinone, a schedule I controlled

substance.

{¶3} After successfully purchasing Joy from The Odd Corner, the University of Akron

Police Department secured a warrant to search the store. Its officers arrived on scene on the

morning of March 23, 2012, to conduct additional surveillance and to execute the warrant.

Hileman, the manager at The Odd Corner, was working that day and sold Joy to multiple

customers while members of the police department watched. DeArment was one of the

customers who purchased Joy. He and several others were stopped in their vehicles after leaving

the store. Meanwhile, other members of the police department executed the warrant and found

almost 100 containers of Joy in a back room of the store.

{¶4} A grand jury indicted Appellants on multiple counts of aggravated trafficking in

Pentedrone and/or aggravated possession of Pentedrone. Jackson was also indicted on several

counts of complicity to commit aggravated trafficking in Pentedrone. Appellants’ indictments

identified Pentedrone as a controlled substance analog whose chemical structure was

substantially similar to Methcathinone, a schedule I controlled substance. Under R.C. 3719.013,

controlled substance analogs are treated as schedule I controlled substances to the extent that the

analogs are intended for human consumption.

{¶5} Jackson filed a motion to declare the controlled substance analog statute

unconstitutional and the remaining Appellants joined in his motion. The trial court held a two-

day hearing at which four experts testified: two experts for Appellants and two for the State.

When the hearing concluded, the court took the matter under advisement. The court later denied 3

Appellants’ motion by journal entry, finding the analog statute constitutional as applied and on

its face.

{¶6} After the court rejected Appellants’ challenge to the analog statute, Appellants

filed a motion in limine. Appellants sought to preclude the State’s two experts from testifying at

trial on the basis that their testimony was scientifically unreliable. The State responded in

opposition to Appellants’ motion in limine. Additionally, the State asked the court to preclude

Appellants’ experts from testifying at trial on the basis that their testimony was scientifically

unreliable and/or would confuse or mislead the jury. The court held a hearing on the motions in

limine. Although the court denied Appellants’ motion to exclude the State’s experts, it granted

the State’s motion to exclude Appellants’ experts. Consequently, Appellants’ experts were not

permitted to testify at trial.

{¶7} Appellants were all tried together before a jury, and the jury found them guilty on

all counts. Both Jackson and Hileman were convicted of second-degree felonies because the jury

found that they sold or possessed an amount of Pentedrone that was between five and 50 times

the bulk amount. The court sentenced Jackson to four years in prison and a $25,000 fine.

Hileman was sentenced to two years in prison, and Hoover and DeArment both received

community control. Appellants then appealed from their respective convictions, and this Court

consolidated the four appeals.

{¶8} Appellants collectively raise 21 assignments of error for our review. For ease of

analysis, we consolidate and rearrange the assignments of error.

II.

HILEMAN & HOOVER’S ASSIGNMENT OF ERROR I

THE OHIO CONTROLLED SUBSTANCE ANALOG STATUTE, AS CODIFIED IN R.C. [3]719.013, IS UNCONSTITUTIONALLY VAGUE ON ITS 4

FACE AND AS APPLIED AS IT CONTAINS INSUFFICIENT ENFORCEMENT GUIDELINES AND FAILS TO PROVIDE ADEQUATE NOTICE OF THE TYPE OF CONDUCT PROHIBITED.

JACKSON’S ASSIGNMENT OF ERROR I

THE OHIO CONTROLLED SUBSTANCE ANALOG STATUTE, AS CODIFIED IN R.C. [3]719.013, IS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND AS APPLIED AS IT CONTAINS INSUFFICIENT ENFORCEMENT GUIDELINES AND FAILS TO PROVIDE ADEQUATE NOTICE OF THE TYPE OF CONDUCT PROHIBITED.

DEARMENT’S ASSIGNMENT OF ERROR II

THE OHIO CONTROLLED SUBSTANCE ANALOG STATUTE, AS CODIFIED IN R.C. 3719.013, IS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND AS APPLIED AS IT CONTAINS VAGUE ENFORCEMENT STANDARDS AND FAILS TO PROVIDE ADEQUATE NOTICE OF THE TYPE OF CONDUCT PROHIBITED.

{¶9} In each of the foregoing assignments of error, Appellants argue that the controlled

substance analog statute, R.C. 3179.013, is unconstitutionally vague on its face and as applied to

each of them. We do not agree that the statute is unconstitutionally vague as applied.

Consequently, we do not address Appellants’ argument that the statute is vague on its face.

{¶10} Legislative enactments are afforded a strong presumption of constitutionality.

State v. Collier,

(1991). “[I]f at all possible, statutes must be construed

in conformity with the Ohio and United States Constitutions.”

A party asserting that a

statute is unconstitutional must prove that the statute is unconstitutional beyond a reasonable

doubt.

{¶11} When asserting that a statute is unconstitutional because it is void for vagueness,

the challenging party must show that, “after examining the statute, a person of ordinary

intelligence would not be able to understand what he is required to do under the law.” State v.

Schneider, 9th Dist. Medina No. 06CA0072-M,

, citing State v. Anderson,

(1991). This Court has previously stated: 5

In considering a challenge to [a statute] as void for vagueness, a court is required to determine whether the statute (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement. A statute does not need to avoid all vagueness, and is not void for vagueness simply because it could have been worded more precisely or with additional certainty. Rather, the critical question in all cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law.

(Internal citations and quotations omitted). In re E.D.,

,

(9th Dist.). “Due process requires that the terms of a criminal statute be reasonably clear and

definite and that there be ascertainable standards of guilt on which citizens, courts, and the police

may rely.” Akron v. Rowland,

(1993).

{¶12} Former R.C. 3719.013 provides that “[a] controlled substance analog, to the

extent intended for human consumption, shall be treated for purposes of any provision of the

Revised Code as a controlled substance in schedule I.” The phrase “controlled substance

analog” means a substance (1) whose chemical structure “is substantially similar to the structure

of a controlled substance in schedule I or II,” and (2) about which one of the following is true:

(i) The substance has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

(ii) With respect to a particular person, that person represents or intends the substance to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. 6

R.C. 3719.01(HH)(1). Methcathinone is a schedule I controlled substance. Former R.C.

3719.41(E)(4). During the time frame relevant to this appeal, Pentedrone was not yet listed as a

controlled substance.1

{¶13} The four experts who testified at the constitutionality hearing all agreed on the

chemical structures of Pentedrone and Methcathinone. There is no dispute that the two

structures are identical in all respects but one: Pentedrone contains one additional ethyl group.

The ethyl group is comprised of two carbon atoms and three hydrogen atoms, all of which link to

the existing Methcathinone structure at the same location. Accordingly, while the alkyl chain in

Methcathinone ends in one carbon atom and three hydrogen atoms, Pentedrone’s alkyl chain

extends farther due to the addition of the two carbon and three hydrogen atoms at the end of the

chain. The experts disagreed about the significance of the additional atoms in Pentedrone and

whether they could draw any conclusions about Pentedrone based on the statutory definition of a

controlled substance analog.

{¶14} Lindsay Reinhold, a forensic chemist for NMS Labs, testified as an expert for the

defense. Reinhold testified that, from an objective standpoint, all chemists should be able to

identify the chemical structure of a molecule. Reinhold also opined, however, that it is entirely

subjective whether a given chemist would find two chemical structures substantially similar

because the phrase “substantially similar” is not one that is defined by the field of chemistry.

She testified that any opinion she gave as to substantial similarity would be entirely her own and

that different chemists could interpret that standard in different ways. She offered four different

examples of how a chemist might define “substantially similar” and testified that, in the example

1 Substitute House Bill 334, which took effect on December 20, 2012, specifically named Pentedrone as a Schedule I controlled substance. 7

embodying the strictest definition she could envision, the chemical structures of Pentedrone and

Methcathinone would not be considered substantially similar.

{¶15} Reinhold agreed that certain criteria could be adopted to help define substantial

similarity, such as similarities or differences in the physical chemical properties of two chemical

structures (e.g., their boiling points and melting points). She testified, however, that she would

not be able to draw any scientific conclusions about the similarities between Pentedrone and

Methcathinone if only provided with the dictionary definitions of the words “substantial” and

“similar.” Even so, she agreed that both Pentedrone and Methcathinone were substitute

Cathinones and that Cathinone is a schedule I controlled substance that is commonly found in

bath salts.

{¶16} Anna Tabor, a forensic scientist in the chemistry section at the Bureau of Criminal

Investigation & Identification (“BCI”), testified for the State. Tabor testified that BCI

established a committee to identify various analog drugs and that the committee had classified

Pentedrone as a controlled substance analog. Tabor opined that the chemical structure of

Pentedrone is substantially similar to Methcathinone because the addition of a single ethyl group

is not enough of a distinction to make the two structures dissimilar. She testified that both drugs

are substitute Cathinones and share the same Cathinone backbone. She explained that a

chemical becomes dissimilar to another chemical when its structure “is changed enough to alter

the chemical behavior of the molecule” (e.g., the breaking of the backbone of the chemical

structure). She acknowledged that she could not quantify that standard because different atoms

have different effects and certain minor atom substitutions could cause a substantial change in

the behavior of a molecule. She testified, however, that her training and knowledge of chemistry

allowed her to understand how atoms interact and that she could draw upon that training and 8

knowledge to make substantial similarity determinations. Because the lengthening of the alkyl

chain of Methcathinone by a single ethyl group would not alter the chemical behavior of the

molecule, Tabor was able to conclude that Pentedrone is substantially similar to Methcathinone.

{¶17} Dr. Alfred Staubus, an Emeritus faculty member at The Ohio State University

College of Pharmacy and a Ph.D. in pharmaceutical chemistry, testified for the defense regarding

Pentedrone’s effect on the central nervous system. Dr. Staubus testified that drugs generally

work by binding to receptor sites in the brain. He agreed that receptors are like locks and drugs

are like keys, with both fitting together to produce a certain effect. He testified that even drugs

that bind to the same receptor sites can cause distinct pharmacological effects, depending on

their chemical composition. He offered morphine and codeine as an example. While codeine

only has one more methyl group than morphine, it has about one-tenth the analgesic activity of

morphine. Dr. Staubus testified that the addition of even one methyl or ethyl group can

“dramatically change” the pharmacological effect of a molecule in some instances, but not in

others.

{¶18} Dr. Staubus stated that he would not be able to offer an opinion on whether

Pentedrone has a substantially similar effect on the central nervous system as Methcathinone if

guided only by the standard of substantial similarity. He testified that it would be necessary to

conduct animal studies to know how the pharmacological effects of Pentedrone compare with the

effects of Methcathinone. He further testified that substantial similarity is a vague standard that

lacks a basis in science. According to Dr. Staubus, scientists in pharmacology and toxicology

often consider whether two compounds are “significantly similar,” but only in the context of

applying a quantitative method. He testified that, for any given study,

[y]ou have to read the study to find out what the definition of significant level of similarity is. * * * [I]f we want to establish a law that says that something is 9

significantly similar or different, we can say * * * let’s set the standard that the central nervous system effect of such and such has to be within three standard deviations of each other. That way you can establish whether something is or is not significantly significant at a certain level.

In Dr. Staubus’ opinion, before one can determine similarity, there must be a known analytical

method for correlating the effects of one drug to the effects of another. He offered several

different examples of the tests one could perform that could then be used to establish a

quantitative method for measuring similarity.

{¶19} Dr. John Wyman, the chief toxicologist at the Cuyahoga County Medical

Examiner’s Office, testified for the State regarding Pentedrone’s effect on the central nervous

system. Dr. Wyman testified that Methcathinone is a stimulant that works by binding to the

dopamine, norepinephrine, and serotonin neurotransmitters in the brain and preventing their

reuptake. Methcathinone has known pharmacological effects and Dr. Wyman listed those effects

for the court. While Dr. Wyman testified that he was not aware of any studies about the

pharmacological effects of Pentedrone, he testified that more information was known about

Buphedrone.

{¶20} Dr. Wyman explained that Buphedrone is an analog of Methcathinone.

Buphedrone shares Methcathinone’s basic structure, but extends its alkyl chain by one additional

carbon atom and three additional hydrogen atoms. Accordingly, Buphedrone has one less carbon

atom than Pentedrone. Dr. Wyman testified that Buphedrone has been shown to bind to the same

receptors as Methcathinone and has a similar list of pharmacological effects. The structural

similarity between Buphedrone and Pentedrone caused Dr. Wyman to expect that Pentedrone

would bind to the same receptor sites as Buphedrone and Methcathinone. Given the lack of

formal studies about the pharmacological effects of Pentedrone, however, Dr. Wyman stated that

he felt it would be beneficial to consult the internet. Therefore, he searched for “Pentedrone 10

experience” on the internet. He testified that he uncovered a great number of testimonials about

Pentedrone, “which included descriptions of the effects of Pentedrone that mirrored the effects of

Methcathinone and Buphedrone.” It was Dr. Wyman’s conclusion that Pentedrone is a

structurally similar analog of Methcathinone and causes a “similar or increased pharmacology to

that of Methcathinone.”

{¶21} Appellants argue that the controlled substance analog statute is unconstitutionally

vague because “[t]here is no universally accepted scientific approach to determine what

constitutes substantial similarity in structure or its effects on the nervous system.” They argue

that the statute lends itself to arbitrary enforcement and would not have put a reasonable person

on notice that the distribution or purchase of Pentedrone was illegal.

{¶22} Initially, we note that the vast majority of Appellants’ argument concerns the

statutory definition of “controlled substance analog,” not the controlled substance analog statute

itself. The controlled substance analog statute only provides for the treatment of a controlled

substance analog as a schedule I controlled substance, to the extent that it is intended for human

consumption. See R.C. 3719.013. R.C. 3719.01(H)(H) defines “controlled substance analog”

and is the source of the substantial similarity language with which Appellants take issue.

Accordingly, the constitutionality of the controlled analog statute largely depends upon the

constitutionality of the definition of “controlled substance analog,” as it is contained in R.C.

3719.01(H)(H).

{¶23} Ohio’s statutory scheme with regard to controlled substance analogs is virtually

identical to the Controlled Substance Analogue Enforcement Act of 1986 (“the Federal Act”).

“Under the [Federal Act],

(32)(A), 813 (2000), some substances that have not

been listed as controlled substances, but that are sufficiently similar to a listed substance, are, 11

under certain additional circumstances, treated as Schedule I controlled substances for the

purposes of federal drug law.” United States v. Roberts,

(2d Cir. 2004). To

convict an offender under the Federal Act, the government must prove that

(1) the alleged analogue substance has a chemical structure that is substantially similar to the chemical structure of a controlled substance classified under Schedule I or Schedule II (the chemical structure element); (2) the alleged analogue substance has an actual, intended or claimed stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than such effect produced by a Schedule I or Schedule II controlled substance (the pharmacological similarity element); and (3) the analogue substance is intended for human consumption (the human consumption element).

United States v. McFadden,

(4th Cir. 2014), vacated on other grounds,

McFadden v. United States,

(2015). Accord

(32)(A). “Congress

enacted the [Federal] Act to prevent underground chemists from altering illegal drugs in order to

create new drugs that are similar to their precursors in effect but are not subject to the restrictions

imposed on controlled substances.” United States v. Klecker,

(4th Cir. 2003).

{¶24} Since 1986, numerous Circuit Courts have considered void for vagueness

challenges to the Federal Act and have found it to be constitutional. See, e.g., McFadden at 438-

441 (constitutional as applied to bath salts); United States v. Turcotte,

(7th Cir. 2005) (constitutional as applied to Gamma Butyrolacetone); United States v. Roberts,

(2d Cir. 2004) (constitutional as applied to 1,4-butanediol); Klecker at 71-

72 (constitutional as applied to 5-methoxy-N,N-diisopropyltryptamine, a.k.a. “Foxy”); United

States v. Carlson,

(11th Cir. 1996) (constitutional as applied to 3,4-

Methylenedioxymethamphetamine, a.k.a. MDMA); United States v. Hofstatter,

, 321-

322 (6th Cir. 1993) (constitutional as applied to various precursor chemicals that could be used to

manufacture substances similar to methamphetamine); United States v. Granberry,

(5th Cir. 1990) (constitutional on its face in case involving N-Hydroxy-3,4- 12

methylenedioxyamphetamine). Indeed, Appellants have failed to point to a single Circuit Court

decision in which the Federal Act was found to be unconstitutional. The only federal case upon

which Appellants rely in support of their argument is United States v. Forbes,

(D.Colo. 1992), a case from the Colorado District Court. Otherwise, they argue that the evidence

introduced at the constitutionality hearing about Pentedrone was weaker than the evidence

introduced about other drugs in several of the Circuit Court cases.

{¶25} In United States v. Forbes, a Colorado District Court judge found the Federal Act

to be unconstitutionally vague as applied to alphaethyltryptamine (“AET”). AET was originally

marketed as an anti-depressant in the early 1960s, but was removed from the market when it was

linked to toxic side effects in some patients. Nevertheless, it was still available for purchase

from two chemical manufacturers. The government charged Forbes with distribution of AET

after he allegedly purchased it from a manufacturer for the purpose of distributing it. Because

AET was never classified as a controlled substance, the government sought to establish it as an

analog of either dimethyltryptamine (“DMT”) or diethyltryptamine (“DET”).

{¶26} Forbes filed a motion to dismiss, challenging the Federal Act as being

unconstitutionally vague. At the hearing on his motion, there was a wide range of testimony

about AET’s structure and its effect. The defense experts testified that the chemical structure of

AET was not substantially similar to DMT’s or DET’s chemical structures and that AET did not

have a substantially similar effect on the central nervous system. One of the government’s

experts presented a contrary opinion, but another agreed that AET’s chemical structure was not

substantially similar to DMT’s or DET’s. There also was evidence that the government had

previously declined to prosecute Forbes for the same behavior “due to the conflict within the

government as to AET’s structural similarity to DMT and DET.”

. 13

{¶27} The district court judge found troublesome the fact that there was no consensus

among the scientific community, much less the government’s own experts, about AET’s

structural similarity to DMT/DET or the methodology to be used in order to make that

determination.

. He noted that the chemical structure prong of the Federal Act did not

appear to contain a scienter element so as to tailor its application.

. Further, he noted

that AET actually pre-existed DMT and DET and that Forbes was not one of the “underground

chemists” that Congress sought to stop when it enacted the Federal Act.

The court found

fault with the fact that the only change since the government’s earlier decision not to prosecute

Forbes for the same behavior was “the personalities of the government prosecutors and their

hand-picked [] chemists.”

. The court concluded that the Federal Act, as it applied to

AET, “provide[d] neither fair warning nor effective safeguards against arbitrary enforcement.”

As such, it found the Federal Act unconstitutionally vague as applied to the “unique facts” at

issue in the case.

{¶28} This case differs from Forbes in several respects. First, the State did not present

conflicting evidence about Pentedrone. Tabor testified that Pentedrone’s chemical structure was

substantially similar to the structure of Methcathinone and that a committee at BCI had identified

Pentedrone as a controlled substance analog. Likewise, Dr. Wyman testified that Pentedrone

was structurally similar to Methcathinone and would produce a similar or increased

pharmacological effect. His testimony complimented Tabor’s and vice versa. Their testimony

also was never directly contradicted. That is, no one testified that the structure of Pentedrone

was dissimilar to that of Methcathinone or that it would not produce a substantially similar

effect. The defense experts only testified that they were unable to draw any scientific

conclusions about Pentedrone, given that substantial similarity was an amorphous and 14

unscientific term. Accordingly, the type of expert testimony in this matter differed significantly

from the type of expert testimony in Forbes.

{¶29} Second, unlike AET, there was no evidence that Pentedrone was ever available

for purchase for a significant length of time without restriction or that it was ever marketed for a

legitimate purpose. On the contrary, the drug was so new that no formal studies had yet been

conducted on it to determine its effect. Moreover, there is no suggestion that any of Appellants

were lulled into the same false sense of security as Forbes regarding their dealings with

Pentedrone. The government’s change of heart concerning whether to prosecute Forbes for the

same behavior was a significant factor that the Forbes Court relied upon in concluding that the

Federal Act was unconstitutional as applied. See Forbes,

. The “unique

facts” upon which the district court judge based his decision in Forbes are absent from the case

at hand. See

.

{¶30} Finally, the analysis in Forbes regarding a lack of scienter in the definition of

“controlled substance analogue” is unavailing. See

. The fact that the definitional

portion of a statute does not contain a mens rea element does not mean that a defendant can be

convicted in the absence of a culpable mental state. Several federal courts have looked to the

intended for human consumption element of the Federal Act as an “intent requirement [that]

tends to defeat any vagueness challenge based on the potential for arbitrary enforcement.”

Klecker,

, citing Carlson,

. The Ohio controlled substance analog

statute contains the same element. See Former R.C. 3719.013. Moreover, the individual statutes

that Appellants were alleged to have violated each contained a culpable mental state. Appellants

could only be convicted if they knowingly possessed or trafficked in Pentedrone. See Former

R.C. 2925.11(A)(C)(1) and 2925.03(A)(C)(1). See also Roberts,

(criticizing 15

defendants’ argument that the Federal Act did not give them fair notice of proscribed behavior

where the government had to prove that they knowingly or intentionally distributed a controlled

substance). As such, Forbes is distinguishable from the case at hand and we are not persuaded

that it has reasoned application here.

{¶31} The Twelfth District recently rejected a void for vagueness challenge to the

definition of “controlled substance analog” and relied upon federal case law to do so. See State

v. Shalash, 12th Dist. Warren No. CA2013-06-052,

. We agree that the

federal case law interpreting the Federal Act is instructive and constitutes persuasive authority in

this matter. See Williams v. Akron,

,

, ¶ 31 (while not bound

by it, Ohio courts “often look to federal court interpretation of federal statutes analogous to Ohio

statutes”). Consequently, we consider the evidence introduced at the constitutionality hearing in

conjunction with the federal case law.

{¶32} As previously noted, the first question a court must ask in performing a vagueness

analysis is whether the statute at issue “provides sufficient notice of its proscriptions to facilitate

compliance by persons of ordinary intelligence * * *.” In re E.D.,

,

quoting Norwood v. Horney,

,

, ¶ 84. Both the Fourth and

Sixth Circuits have rejected vagueness challenges to the Federal Act where there was evidence

that the chemical diagrams of the alleged analog and controlled substance at issue had noticeable

similarities and there was expert testimony that the two had substantially similar chemical

structures. See McFadden,

; Hofstatter,

. The same

evidence exists in this matter.

{¶33} Both the State and Appellants introduced two-dimensional diagrams of the

chemical structures of Pentedrone and Methcathinone. There is no dispute that their chemical 16

structures are identical, except that Pentedrone has a longer alkyl chain. The State’s witnesses

testified that Pentedrone was structurally similar to Methcathinone because both share the

Cathinone backbone, and Tabor explained that the lengthening of Methcathinone’s alkyl chain

by a single ethyl group would not be enough to alter the chemical behavior of the molecule.

Both she and Dr. Wyman were able to use their training and knowledge of chemistry to conclude

that Pentedrone is substantially similar to Methcathinone. See United States v. Washam,

(8th Cir. 2002) (“[S]ome level of difference is acceptable between an analog[]’s

chemical structure and a proscribed chemical’s structure.”). While there was testimony that the

phrase “substantially similar” does not lend itself to a uniform definition, due process does not

require “absolute certainty in every case in which a person seeks to experiment in reaching the

outermost boundaries of lawful conduct.” United States v. Niemoeller, S.D.Indiana No. IP 02-

09-CR-1 H/F,

, *4 (Jan. 24, 2003). See also Perez v. Cleveland,

(1997) (“The void-for-vagueness doctrine does not require statutes to be drafted

with scientific precision.”). So long as a reasonable person would have sufficient notice of a

statute’s prescriptions, it is not unconstitutionally vague. See In re E.D. at ¶ 9, quoting Norwood

at ¶ 84. Here, “the similarities in [the] structures [of Pentedrone and Methcathinone] would put a

reasonable person on notice that [Pentedrone] might be regarded as a [Methcathinone] analog[],

particularly if that person intended * * * that [Pentedrone] be ingested as a [stimulant].” Klecker,

.

{¶34} With respect to pharmacological similarity, Dr. Wyman opined that Pentedrone

would have a substantially similar effect on the central nervous system as Methcathinone. He

was unable to point to any formal studies about the effects of Pentedrone because there were

none yet in existence. He did testify, however, that Pentedrone differed from Buphedrone by 17

only one atom and that Buphedrone has been shown to bind to the same receptors as

Methcathinone and has a similar list of pharmacological effects. Both he and Tabor were able to

rely upon their scientific knowledge and training to conclude that the lengthening of the alkyl

chain of Methcathinone by a single ethyl group would not be enough to alter the chemical

behavior of the molecule.

{¶35} The second question a court must consider in analyzing a vagueness challenge is

whether the statute at issue “is specific enough to prevent official arbitrariness or discrimination

in its enforcement.” In re E.D. at ¶ 9, quoting Norwood at ¶ 84. To convict Appellants, the State

would have to prove that they intended Pentedrone for human consumption and knowingly

possessed or trafficked in it. See Former R.C. 3179.013 and 2925.11(A)(C)(1) and

2925.03(A)(C)(1). Both elements of proof tend to negate Appellants’ argument that the

controlled substance analog statute lends itself to arbitrary or discriminatory enforcement. See

State v. Barnhardt, 9th Dist. Lorain No. 05CA008706,

. See also

McFadden,

; Roberts,

; Klecker,

; Hofstatter,

. Moreover, “[a]rbitrary and discriminatory enforcement further is prevented by the

additional statutory requirements that the government prove (1) substantial chemical similarity

between the alleged analog[] substance and the controlled substance, and (2) actual, intended, or

claimed pharmacological similarity of the alleged analog[] substance and the controlled

substance.” McFadden at 441.

{¶36} Although certain chemists might disagree as to the meaning of “substantially

similar,” we cannot conclude that a lack of consensus among experts renders the controlled

substance analog statute unconstitutionally vague. When words in a statute are not defined, they

are to be “construed according to the rules of grammar and common usage.” R.C. 1.42. 18

“Similar” means “having characteristics in common” or “alike in substance or essentials.”

Merriam-Webster’s Collegiate Dictionary 1161 (11th Ed. 2004). Meanwhile, “substantial” is

defined as “being largely but not wholly that which is specified.” Id. at 1245. Both Tabor and

Dr. Wyman were able to rely on the common meaning of the phrase “substantially similar,” in

conjunction with their knowledge and training, to conclude that Pentedrone is substantially

similar to Methcathinone. Appellants have not shown that the State’s case against them was the

result of arbitrary or discriminatory enforcement.

{¶37} The federal courts have recognized the difficulty the legislature faces in drafting

analog statutes, “[g]iven the creativity of amateur chemists.” Hofstatter,

. To be

effective, controlled substance analog statutes must retain some degree of elasticity. Otherwise,

“there is a genuine potential that the creation of such substances could outpace any efforts by

authorities to identify and catalog them.” McFadden at 441. Having reviewed the record and the

relevant authority, we cannot conclude that Appellants have proven beyond a reasonable doubt

that the analog statute is unconstitutionally vague as applied to them. See State v. Collier,

(1991). Consequently, the trial court did not err by finding the statute

constitutional as applied. Because we have determined that the statute is constitutional as

applied to Appellants, we need not consider whether it is unconstitutionally vague in all its

applications. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

(1982).

{¶38} Before concluding, we note that each of Appellants’ briefs contains a reference to

two controlled substance analog cases from the Franklin County Court of Common Pleas.

Appellants claim that the Franklin County Court dismissed the indictments in each case

“because, until December 2012 when the Legislature created the offenses of dealing or 19

possessing analog substances in H.B. 334, the Legislature had not specifically defined selling or

possessing an analog substance as a crime under R.C. Title 29 * * *.” Hileman and Hoover’s

brief only mentions the foregoing cases in passing, but both Jackson and DeArment ask this

Court to review the foregoing argument for plain error (acknowledging that they did not raise it

in the court below). Neither, however, actually develops a plain error argument, and the issue

they appear to be raising falls outside the scope of their stated assignments of error. As such, we

decline to address it. See State v. Miller, 9th Dist. Summit No. 27048,

.

Hileman and Hoover’s first assignment of error, Jackson’s first assignment of error, and

DeArment’s second assignment of error are overruled.

DEARMENT’S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEARMENT’S MOTION TO SUPPRESS THE FRUITS OF UNIVERSITY OF AKRON POLICE’S ILLEGAL STOP OF DEARMENT’S VEHICLE, AND DEARMENT’S UN-MIRANDIZED STATEMENTS TO UNIVERSITY OF AKRON POLICE.

{¶39} In his first assignment of error, DeArment argues that the trial court erred by

denying his motion to suppress. Specifically, he argues that the police lacked reasonable

suspicion to stop his vehicle and elicited incriminating statements from him in the absence of a

Miranda warning. We do not agree that the trial court erred by denying DeArment’s motion to

suppress.

{¶40} The Ohio Supreme Court has held:

Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills,

(1992). Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning,

(1982). Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, 20

whether the facts satisfy the applicable legal standard. State v. McNamara,

(4th Dist. 1997).

State v. Burnside,

,

, ¶ 8. Accord State v. Hobbs,

,

(Burnside applied). Accordingly, this Court reviews the trial

court’s factual findings for competent, credible evidence and considers the court’s legal

conclusions de novo. State v. Conley, 9th Dist. Lorain No. 08CA009454,

,

citing Burnside at ¶ 8.

Reasonable Suspicion

{¶41} The Fourth Amendment to the United States Constitution and Section 14, Article

1 of the Ohio Constitution proscribe unreasonable searches and seizures. To justify an

investigative stop, an officer must point to “specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.” Maumee v.

Weisner,

(1999), quoting Terry v. Ohio,

(1968). This

Court has repeatedly recognized that “[a]n officer may stop a vehicle to investigate a suspected

violation of a traffic law.” State v. Slates, 9th Dist. Medina No. 25019,

, ¶ 23,

quoting Akron v. Tomko, 9th Dist. No. 19253,

, *2 (Nov. 3, 1999). “Where a

police officer stops a vehicle based on probable cause that a traffic violation has occurred or was

occurring, the stop is not unreasonable under the Fourth Amendment * * * even if the officer had

some ulterior motive for making the stop, such as a suspicion that the violator was engaging in

more nefarious criminal activity.” Dayton v. Erickson,

(1996), syllabus.

{¶42} Detective Angela Paonessa testified that the University of Akron Police

Department began investigating The Odd Corner after several individuals claimed to have

purchased illegal bath salts there. Detective Paonessa participated in a controlled buy at the store

during which she bought one container of Joy and witnessed several others buying Joy. She then 21

obtained a search warrant for the store and returned the following day to execute the warrant.

Several members of the police department accompanied Detective Paonessa while others

remained on standby in the vicinity of the store.

{¶43} Detective Paonessa testified that individuals began arriving and waiting in the

parking lot of The Odd Corner approximately twenty minutes before the store was scheduled to

open. She identified DeArment as one of the individuals she observed waiting. She testified

that, when the store opened at about 11:15 a.m., DeArment entered the store with the others and

was inside for approximately two minutes. After he exited the store, Detective Paonessa

contacted one of the standby officers by radio and asked him to follow DeArment.

{¶44} Officer Lawrence Kouri testified that he began following DeArment, per

Detective Paonessa’s instructions. He followed DeArment onto Route 8 south and, later, onto 77

north. Officer Kouri testified that he observed DeArment execute an improper lane change near

the Main Street exit. Specifically, he watched DeArment cut left across two lanes of travel to

avoid exiting the highway. Officer Kouri testified that the highway was moderately busy at the

time and that DeArment’s improper lane change could have caused an accident. He testified that

he stopped DeArment’s vehicle based on the traffic violation he observed.

{¶45} DeArment argues that Officer Kouri lacked reasonable suspicion and/or probable

cause to stop his vehicle. According to DeArment, when Officer Kouri later testified at trial, he

admitted that Detective Paonessa had ordered him to stop DeArment, not just to follow him.

Therefore, DeArment argues that Officer Kouri stopped his vehicle based on Detective

Paonessa’s orders, not the traffic violation he observed. He further argues that his mere presence

at The Odd Corner on the morning the police planned to execute their warrant did not give rise to 22

reasonable suspicion to stop him. Consequently, he argues that Officer Kouri’s traffic stop

violated his Fourth Amendment rights.

{¶46} Initially, we note that DeArment never renewed his motion to suppress. The trial

court ruled on his pre-trial motion to suppress based strictly on the testimony that Officer Kouri

gave at the suppression hearing. DeArment never asked the court to reconsider its ruling on the

basis that Officer Kouri’s trial testimony differed from his testimony at the suppression hearing.

This Court, therefore, must focus strictly on the evidence the trial court had before it when it

ruled on DeArment’s motion to suppress. See State v. Gartrell, 3d Dist. Marion No. 9-14-02,

.

{¶47} “Trial testimony * * * has no bearing upon a court’s suppression ruling. Our

review of a trial court’s suppression ruling is limited to the testimony produced at the

suppression hearing.” State v. Jackson, 9th Dist. Summit No. 26234,

.

Accordingly, we reject DeArment’s argument insofar as it depends upon Officer Kouri’s trial

testimony. At the suppression hearing, Officer Kouri testified that he stopped DeArment’s

vehicle because he observed DeArment make an improper lane change. DeArment has not

argued that he did not, in fact, execute an improper lane change, and this Court has held that

“[a]n officer may stop a vehicle to investigate a suspected violation of a traffic law.” Slates,

, at ¶ 23, quoting Tomko,

, *2. Even if Officer Kouri had some

ulterior motive for stopping DeArment, the traffic violation provided a constitutional basis for

the stop. See Erickson,

, at syllabus. As such, the trial court did not err by

rejecting DeArment’s challenge to the stop of his vehicle. 23

Custodial Interrogation

{¶48} Miranda warnings are required only when an officer engages in custodial

interrogation. State v. Prunchak, 9th Dist. Medina No. 04CA0070-M,

.

“Custody” for purposes of entitlement to Miranda rights exists only where there is a “‘restraint

on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler,

(1983), quoting Oregon v. Mathiason,

(1977). “[A]

traffic stop alone does not render the person in ‘custody’ within the meaning of Miranda.” State

v. Strehl, 9th Dist. Medina No. 10CA0063-M,

. More specifically, “an

individual detained at a traffic stop is not in ‘custody’ for Miranda purposes until the individual

has been formally arrested or subjected to a functional equivalent of a formal arrest.” Prunchak

at ¶ 27. Accord State v. Farris,

,

, ¶ 13, citing Berkemer v.

McCarty,

(1984). “Relevant inquiries are whether the suspect is free to leave

the scene, the purpose, place and length of the questioning, and whether a reasonable person in

the suspect’s position would have considered himself to be in custody.” Akron v. Wilkerson, 9th

Dist. Summit No. 15434,

, *1 (Aug. 12, 1992).

{¶49} Officer Kouri testified that, after he stopped DeArment’s vehicle, he approached

and spoke with DeArment. He testified that it was his practice to ask drivers where they are

coming from and that he asked DeArment the same question. DeArment responded that he was

coming from The Odd Corner. Officer Kouri then asked if DeArment had bought anything

there, and DeArment indicated that he had. When Officer Kouri asked DeArment what he had

bought at the store, DeArment told him that he had purchased Joy and indicated that it was in the

driver’s sleeve door. Officer Kouri estimated that the entire exchange lasted approximately 30 to

40 seconds. He testified that he never placed DeArment in handcuffs or arrested him. 24

Approximately ten minutes after their conversation, a detective arrived on scene, questioned

DeArment, and ultimately decided to arrest him. Officer Kouri testified that the detective arrived

before he had finished processing the traffic violation that he had observed.

{¶50} DeArment argues that the trial court should have suppressed the statements that

he made to Officer Kouri because he was in custody at the time Officer Kouri questioned him

and Officer Kouri failed to Mirandize him. Yet, “a traffic stop alone does not render [a] person

in ‘custody’ within the meaning of Miranda.” Strehl,

. For DeArment to

have been in custody, he must have been “formally arrested or subjected to a functional

equivalent of a formal arrest.” Prunchak at ¶ 27. DeArment has failed to point to any facts

beyond the traffic stop itself in support of his custody argument. See App.R. 16(A)(7). The

record reflects that Officer Kouri briefly questioned DeArment for approximately 30 to 40

seconds and that he did so immediately after stopping him. Officer Kouri did not remove

DeArment from his vehicle, indicate that he was under arrest, or place him in handcuffs or his

police cruiser before questioning him. Even if Officer Kouri’s questions were designed to elicit

an incriminating response, Miranda only applies if a suspect is subjected to custodial

interrogation. State v. Simin, 9th Dist. Summit No. 26016,

. DeArment

has not demonstrated that he was in custody at the time that he answered Officer Kouri’s

questions. See id. at ¶ 15. See also Cuyahoga Falls v. Stephenson, 9th Dist. Summit No. 18011,

, *3 (June 18, 1997); State v. Bandy, 9th Dist. Summit No. 13431,

, *2 (June 1, 1988). As such, the trial court did not err by denying his motion to suppress.

DeArment’s first assignment of error is overruled. 25

HILEMAN & HOOVER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN PERMITTING DR. TABOR AND DR. WYMAN TO TESTIFY ON BEHALF OF THE PROSECUTION BECAUSE THEIR TESTIMONY WAS BASED ON UNRELIABLE SCIENTIFIC THEORIES AND METHODS, IN VIOLATION OF OHIO EVID. R. 702.

JACKSON’S ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN PERMITTING DR. WYMAN AND ANNA TABOR TO TESTIFY BECAUSE THEIR TESTIMONY WAS BASED ON UNRELIABLE METHODS, IN VIOLATION OF OHIO EVID.R. 702.

DEARMENT’S ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN PERMITTING DR. TABOR AND DR. WYMAN TO TESTIFY ON BEHALF OF THE PROSECUTION BECAUSE THEIR TESTIMONY WAS BASED ON UNRELIABLE SCIENTIFIC THEORIES AND METHODS, IN VIOLATION OF OHIO EVID.R. 702.

{¶51} In each of the foregoing assignments of error, Appellants argue that the trial court

abused its discretion by allowing two of the State’s expert witnesses to testify at trial.

Specifically, they argue that the court should have excluded the testimony of Tabor and Dr.

Wyman because it was not scientifically reliable. We do not agree that the court abused its

discretion by admitting their testimony.

{¶52} Evid.R. 702 governs the admissibility of expert testimony in Ohio. The rule

permits a witness to testify as an expert if all of the following apply:

(A) The witness’ testimony either relates 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; [and] 26

(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information.2

Evid.R. 702. This appeal only concerns subdivision (C)’s reliability requirement, which is

distinct from the rule’s qualification requirements. See Valentine v. Conrad,

,

, ¶ 17. “Because even a qualified expert is capable of rendering scientifically

unreliable testimony, it is imperative for a trial court, as gatekeeper, to examine the principles

and methodology that underlie an expert’s opinion.”

{¶53} “In evaluating the reliability of scientific evidence, several factors are to be

considered: (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.” Miller v. Bike Athletic Co.,

(1998), citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993).

Nevertheless, the foregoing “list of specific factors neither necessarily nor exclusively applies to

all experts or in every case.” Kumho Tire Co., Ltd. v. Carmichael,

(1999).

“[T]he test of reliability is ‘flexible,’”

and “the trial court may, at its discretion, consider the

[] factors to the extent relevant.” State v. Drummond,

,

, ¶

118. The Ohio Supreme Court has cautioned that “the reliability requirement * * * should not be

used to exclude all evidence of questionable reliability * * *.”

. The ultimate focus

must be “on whether the opinion is based upon scientifically valid principles, not whether the

expert’s conclusions are correct or whether the testimony satisfies the proponent’s burden of

proof at trial.”

at paragraph one of the syllabus.

2 Subdivision (C) contains additional reliability requirements “[t]o the extent that the testimony reports the result of a procedure, test, or experiment * * *.” 27

{¶54} “[A] trial judge must have considerable leeway in deciding in a particular case

how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co.,

Ltd. at 152. Consequently, “[t]he determination of the admissibility of expert testimony is within

the discretion of the trial court.” Valentine at ¶ 9. An abuse of discretion is more than an error

of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore,

(1983). When applying the abuse of

discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v.

Ohio State Med. Bd.,

(1993).

Anna Tabor

{¶55} Tabor, a forensic scientist in BCI’s chemistry section, testified that she was asked

to test certain evidence in this case for the presence or absence of controlled substances. To do

so, Tabor tested small samples of the evidence using a gas chromatograph/mass spectrometer and

a gas chromatograph flame ionization detector. She confirmed that the procedures she employed

to analyze the samples were commonly used in the field of forensic chemistry. She also

confirmed that the instruments she used had been calibrated properly and did not malfunction

when she performed her tests.

{¶56} Tabor testified that the gas chromatograph/mass spectrometer was unable to

identify all of the components of the sample she tested, but that it did identify three: Pentedrone,

acetaminophen, and caffeine. She explained that she then took another sample of the evidence

and used the gas chromatograph flame ionization detector to confirm the presence of Pentedrone.

After the ionization detector confirmed the presence of Pentedrone, Tabor testified that she then

had to determine whether Pentedrone was a controlled substance. To do so, she consulted an

analog list generated by a chemistry committee at BCI. Tabor testified that the list was available 28

on BCI’s server and was comprised of numerous substances that BCI had determined were

substantially similar to particular controlled substances.

{¶57} Tabor testified that BCI’s analog list contained an entry for Pentedrone and

informed her that its chemical structure was substantially similar to the chemical structure of

Methcathinone. Accordingly, she personally compared the chemical structures of the two

molecules using two-dimensional models. She testified that the only difference between the two

molecules was the addition of an ethyl group consisting of two carbon and five hydrogen atoms.

Tabor stated that the ethyl group was a neutral addition to the molecule. She testified that her

education and training allowed her to conclude that the two structures were substantially similar.

While Tabor acknowledged that the phrase “substantially similar” was not a scientific term of

art, she testified that BCI relied upon the common meaning of the phrase to make its analog

determinations.

{¶58} Because Tabor did not serve on the chemistry committee responsible for

generating BCI’s analog list, the State also called Jennifer Acurio to testify at the motion in

limine hearing. Acurio testified that she was also a forensic chemist at BCI and had almost 19

years of experience working at BCI and another forensic science laboratory in Chicago. She

explained that, after the analog law went into effect in October 2011, the chemists at BCI

decided to form a committee to help identify analogs. The goal of the committee was to compile

a master list that all of BCI’s laboratories could rely upon to achieve consistency in their

determinations. The committee consisted of five chemists and three supervisors who also were

scientists. Acurio served on the committee.

{¶59} Acurio explained the process of how a given compound would be added to BCI’s

list and, therefore, be considered substantially similar to a particular controlled substance. She 29

testified that each member of the committee would compare the chemical structure of a given

compound with that of a known controlled substance using two-dimensional models. The

committee would then report its results to all of the other forensic chemists at BCI and ask them

to review the two structures for substantial similarity. The committee did so regardless of the

outcome of their initial review so that the other chemists would have the opportunity to agree or

disagree with their findings. Acurio testified that there were 12 other forensic chemists at BCI

and the committee would only add a compound to the analog list if both the committee members

and the other forensic chemists unanimously agreed that the chemical structures at issue were

substantially similar.

{¶60} Acurio testified that she believed the process BCI used to identify analogs was a

commonly accepted process in the scientific community and similar to the process the Drug

Enforcement Agency (“DEA”) employed. She testified that BCI scientists used the standard

dictionary definitions of “substantially” and “similar” to evaluate compounds, but also were

guided by three criteria that came from a DEA presentation on structural similarity. Acurio

explained that, in applying those criteria, a BCI chemist would: (1) look to see if the core

structure of a controlled substance was present in the new compound under examination; (2)

ensure that the core structure constituted a substantial portion of the new compound; and (3)

examine the functional groups on the new compound (e.g., an ethyl group) to ensure that they

were similar to the functional groups of the controlled substance. She testified that the addition

of the ethyl group in Pentedrone constituted “a small addition to the [Methcathinone] molecule”

and that she could rely on her knowledge of chemistry to conclude that the addition would not

have a significant impact on the core structure of the molecule. 30

{¶61} Appellants argue that the court erred by allowing Tabor to testify because her

testimony failed to satisfy Evid.R. 702(C)’s admissibility requirement. They argue that Tabor’s

testimony was scientifically unreliable because “[n]o evidence was presented that [] BCI’s

method of analyzing a two-dimensional diagram of the molecules and applying a dictionary

definition of ‘substantially similar’” meets the four criteria outlined in Daubert and adopted by

the Ohio Supreme Court in Miller. See Miller,

, citing Daubert,

.

{¶62} As previously noted, the test of scientific reliability is a flexible one, and the

factors outlined in Daubert “neither necessarily nor exclusively appl[ly] to all experts or in every

case.” Kumho Tire Co., Ltd.,

. A trial court must ensure that an expert’s opinion

is based on scientifically valid principles, but it has “considerable leeway” in determining how to

measure reliability.

. “[E]ven if [an expert’s] opinion has neither gained general

acceptance by the scientific community nor has been the subject of peer review, these are not

prerequisites to admissibility under Daubert * * *. Rather, they are just factors for a court to

consider in determining reliability.” (Internal citations omitted.)

.

{¶63} The trial court determined that Tabor’s testimony was based on established

scientific principles. The court noted that Tabor had used scientifically accepted methods and

instruments to test the actual samples in this case. Further, it noted that there was testimony to

support the conclusion that a side-by-side comparison of two molecules using two-dimensional

models was a generally accepted method in the field of chemistry for the comparison of

molecules. The court found that Acurio’s testimony strengthened the State’s position because it

showed that substantial similarity determinations at BCI, while not published outside the 31

institution, were subject to internal peer review. Consequently, it concluded that Tabor’s

testimony was scientifically reliable.

{¶64} Having reviewed the record, we cannot conclude that the trial court abused its

discretion by admitting Tabor’s testimony. Tabor relied upon her scientific knowledge and

training to test the actual samples in this case using scientifically established methods and

equipment. She also relied upon her scientific knowledge to compare the chemical structures of

Pentedrone and Methcathinone. Although Appellants argued that three-dimensional models are

more accurate than two-dimensional models, both Tabor and Acurio testified that the use of two-

dimensional models for visual comparison is a generally accepted method in the scientific

community. They also testified that the use of three-dimensional models here would not have

impacted their conclusion that Pentedrone’s structure was substantially similar to

Methcathinone’s structure.

{¶65} To conclude that Pentedrone was substantially similar to Methcathinone, Tabor

relied upon her education and training, in conjunction with an analog list that BCI had produced.

There is no dispute that the list has not been published outside of BCI. There was testimony,

however, about the internal method by which all of BCI’s forensic chemists and committee

members had to unanimously agree to the structural similarity of a compound before it was

placed on the list. There also was testimony that the chemists at BCI used criteria from the DEA

in making their substantial similarity determinations. Both Acurio and Tabor were able to rely

on their knowledge of chemistry to conclude that the additional ethyl group in Pentedrone would

not result in a substantial change to the Methcathinone molecule. See United States v. Brown,

(11th Cir. 2005) (court did not abuse its discretion in qualifying expert

who made substantial similarity determination based on visual assessment of two-dimensional 32

models in conjunction with his expert knowledge of chemistry). See also McFadden,

(expert testified to substantial similarity based on his comparison of two-dimensional

diagrams and his expert knowledge of chemistry). To the extent Appellants found fault with

Tabor’s testimony, “[v]igorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of attacking shaky

but admissible evidence.”

. The trial court’s decision to admit her testimony was

not unreasonable, arbitrary, or unconscionable. See Blakemore,

. Insofar as

they relate to Tabor, Appellants’ assignments of error lack merit.

Dr. John Wyman

{¶66} Dr. Wyman identified himself as the chief toxicologist for the Cuyahoga County

Medical Examiner’s Office. Dr. Wyman, who holds a Ph.D. in comparative pharmacology and

toxicology, explained that pharmacology and toxicology are the studies of either the beneficial

effects (pharmacology) or the adverse effects (toxicology) that chemicals have on living systems.

When identifying the effects that a new molecule might have as compared to the effects of a

known molecule, Dr. Wyman testified that pharmacologists first compare the chemical structures

of the two molecules, noting the extent of their differences and similarities. Using commonly

accepted principles of chemistry and pharmacology, pharmacologists then predict the expected

pharmacological effects the new molecule might have based on (1) the known effects of the

similar molecule, and (2) the typical effects of the elements added to or subtracted from the

similar molecule to create the new molecule. Finally, to validate their predictions,

pharmacologists look to pharmacological studies that others have already conducted on the new

molecule or conduct their own studies to fully understand the effects of the molecule on the

body. 33

{¶67} In seeking to draw a conclusion about the pharmacological effect of Pentedrone,

Dr. Wyman first reviewed and compared the two-dimensional chemical structures of Pentedrone

and Methcathinone. He testified that the two molecules were 86 percent identical on the basis of

molar mass and that one creates Pentedrone by adding an additional ethyl group to the existing

Methcathinone structure.3 Dr. Wyman testified that Methcathinone is a member of the

Cathinone family, and that Cathinones have known pharmacological effects. He stated that peer-

reviewed scientific articles exist about the pharmacological effects of Cathinones and that those

effects are commonly accepted in the field of pharmacology. Further, he stated that it is

commonly accepted in the fields of pharmacology and toxicology that Methcathinone causes

pharmacological effects similar to the known effects of Cathinones.

{¶68} Dr. Wyman noted that, in addition to comparing Pentedrone’s structure to

Methcathinone’s structure, he also considered another closely-related molecule named

Buphedrone. He testified that one creates Buphedrone by adding one carbon atom to

Methcathinone’s structure at the same location where one adds atoms to create Pentedrone.

Whereas one adds two carbon atoms to that location to create Pentedrone, one only adds one

carbon atom to that same location to create Buphedrone. Thus, Buphedrone and Pentedrone

differ by only one carbon atom. Dr. Wyman testified that Buphedrone is pharmacologically

active and has been documented as causing pharmacological effects similar to Methcathinone

and Cathinones in general. With that in mind, he considered what would be the effect of adding

an additional carbon atom to the existing Buphedrone structure, thereby creating Pentedrone.

{¶69} Dr. Wyman explained that increasing the length of an alkyl chain through the

addition of a carbon atom increases the solubility of the molecule in fat. He further explained

3 As previously noted, an ethyl group consists of two carbon and three hydrogen atoms. 34

that the greater fat solubility a molecule has, the greater its ability to be absorbed into the body.

Dr. Wyman opined that such a change would also increase the binding affinity of the drug,

giving it the ability to form a stronger bond with receptors in the body and cause a similar or

greater effect than its parent molecule. By way of example, he testified that heroin, while

structurally similar to morphine, travels more quickly to the brain due to the fact that the heroin

molecule has greater fat solubility. Because Pentedrone is created by adding carbon atoms and

lengthening Methcathinone’s alkyl chain, Dr. Wyman concluded that Pentedrone’s additional

ethyl group would increase its binding affinity and produce pharmacological effects that were

either similar to or greater than Methcathinone. He confirmed that the general principle that

increased fat solubility increases binding affinity is a commonly accepted principle in his field.

In reaching his conclusion about Pentedrone’s fat solubility and binding affinity, Dr. Wyman

testified that he relied upon commonly accepted principles of chemistry, pharmacology, and

toxicology.

{¶70} Dr. Wyman testified that no pharmacological studies were available on

Pentedrone because it was a relatively new molecule and such studies take a significant period of

time to perform. He testified, however, that he was able to apply the body of studies about

Cathinones, Methcathinone, and Buphedrone to Pentedrone, in conjunction with his personal

comparison of their structures and his knowledge and training in chemistry, pharmacology, and

toxicology. Dr. Wyman testified that, while there are always exceptions to the general rule about

how molecules will behave in the body, structurally similar molecules generally bind to the same

receptor sites in the body and cause similar effects. At the motion in limine hearing, he testified

that he could only think of about ten examples where the general rule did not hold true. He

explained that relevant considerations in his comparison of Pentedrone and Methcathinone 35

included the size of the functional group present in Pentedrone in relation to the molar mass of

the entire molecule, the type of functional group at issue (i.e., that it was an ethyl group rather

than a reactive group), and the fact that the core structure of the Methcathinone molecule had not

been altered.

{¶71} Because no pharmacological studies about Pentedrone were available, Dr.

Wyman testified that he consulted the internet in the hopes of confirming his opinion about the

pharmacological effects of Pentedrone. He testified that he found a wealth of information in the

form of testimonials, describing the effects of Pentedrone after ingestion. Dr. Wyman conceded

that information found on the internet is inherently suspect, but noted that many of the

testimonials he read employed technical language that he associated with scientifically trained

individuals. He testified that, given the wealth of testimonials he viewed and the uniformity of

their descriptions about the effects of Pentedrone, the testimonials had “to be given some

credence.”

{¶72} Dr. Wyman ultimately concluded that, in his opinion, Pentedrone would have a

substantially similar effect on the central nervous system as Methcathinone. He conceded that

his opinion would not be considered scientifically reliable if viewed through the lens of the

scientific method because no formal studies had yet been performed on Pentedrone and he could

not validate his conclusions through testing. Nevertheless, Dr. Wyman expressed confidence in

his opinion about Pentedrone due to its foundations in accepted science. He reiterated that, in

reaching his conclusion, he relied upon: (1) commonly accepted principles of chemistry,

pharmacology, and toxicology; (2) the commonly accepted method of comparing the structural

relationships of two molecules through two-dimensional representations; (3) commonly accepted

principles about the effects of an ethyl group; (4) peer-reviewed, commonly accepted 36

pharmacological studies about the effects of Cathinones; and (5) the commonly accepted

pharmacological effects of Methcathinone and Buphedrone. He also rejected the notion that the

lack of an exact scientific definition for “substantially similar” impeded his ability to analyze and

form conclusions about Pentedrone. Indeed, Dr. Wyman testified that the analog statute would

be unworkable if it contained a more specific definition because, as soon as an exact definition

existed, a chemist would create an exception to the definition. To reach his conclusion, he

indicated that he employed the everyday meaning of the words “substantially” and “similar.”

{¶73} Appellants argue that the court erred by allowing Dr. Wyman to testify because

his testimony failed to satisfy Evid.R. 702(C)’s admissibility requirement. They argue that Dr.

Wyman’s testimony was scientifically unreliable because he could only make predictions about

Pentedrone’s effect on the central nervous system. They note that Dr. Wyman could not validate

his predictions through testing and no peer-reviewed studies or data on the effects of Pentedrone

exist. According to Appellants, Dr. Wyman admitted that his own testimony was scientifically

unreliable and further admitted that, in certain instances, very small changes in molecules could

cause a great difference in their pharmacological effects. Finally, Appellants criticize Dr.

Wyman for relying on the internet in conducting his analysis.

{¶74} We once again note that the test of scientific reliability is a flexible one, and the

factors outlined in Daubert “neither necessarily nor exclusively appl[ly] to all experts or in every

case.” Kumho Tire Co., Ltd.,

. A trial court must ensure that an expert’s opinion

is based on scientifically valid principles, but it has “considerable leeway” in determining how to

measure reliability.

. “[E]ven if [an expert’s] opinion has neither gained general

acceptance by the scientific community nor has been the subject of peer review, these are not 37

prerequisites to admissibility under Daubert * * *. Rather, they are just factors for a court to

consider in determining reliability.” (Internal citations omitted.) Miller,

.

{¶75} The trial court acknowledged that Dr. Wyman’s opinion had not been peer-

reviewed and that little, if any, scientific research had been done on Pentedrone as of the date of

the hearing. Because pharmacological studies simply cannot keep pace with designer drugs,

however, the court noted that there had to be “a certain element of practicality” involved when

deciding whether to admit testimony about designer drugs. The court noted that generally

accepted scientific principles provided the foundation for Dr. Wyman’s testimony. It further

noted that none of the factors set forth in Daubert are dispositive when determining scientific

reliability. The court indicated that it had considered the reliability factors and relevant case law

and was satisfied that Dr. Wyman’s opinion was scientifically reliable. Consequently, the court

allowed his testimony.

{¶76} We are mindful that the admission of expert testimony is a matter that rests

squarely within the trial court’s sound discretion. See Kumho Tire Co., Ltd.,

.

Having reviewed the record, we cannot conclude that the trial court abused its discretion by

admitting Dr. Wyman’s testimony. Dr. Wyman readily agreed that his opinion did not conform

to the traditional scientific method and that it currently could not be validated due to the lack of

pharmacologic studies on Pentedrone. Yet, neither Daubert, nor Evid.R. 702(C) requires

application of the scientific method as a prerequisite to admissibility. The key inquiry is

“whether the [expert’s] opinion is based upon scientifically valid principles * * *.”

at

paragraph one of the syllabus. Dr. Wyman testified that he was “absolutely confident” in the

conclusion that he had drawn because it sounded in accepted scientific principles. See State v.

Nemeth,

(1998) (“Relevant evidence based on valid principles will 38

satisfy the threshold reliability standard for the admission of expert testimony.”). He testified

that he applied his education and training in commonly accepted principles of chemistry and

pharmacology to compare the structural relationship of Pentedrone and Methcathinone and drew

his conclusion based upon the minor difference in their structures, commonly accepted principles

about the effects of an ethyl group, and the commonly accepted pharmacological effects of

Cathinones, Methcathinone, and Buphedrone. See Valentine,

, 2006-Ohio-

3561, at ¶ 18 (scientists “may draw inferences from a body of work” so long as “any such

extrapolation accords with scientific principles and methods”). To the extent he acknowledged

that there are times when small changes to a molecule can dramatically change its

pharmacological effect, he specifically opined that the additional ethyl group in Pentedrone

would merely increase the fat solubility of the molecule. Thus, the trial court properly could

have determined that the issue was one of sufficiency or weight rather than admissibility. See,

e.g., State v. Poole, 9th Dist. Medina No. 2336-M,

, *6 (June 7, 1995).

{¶77} Finally, this Court must consider Appellants’ argument that Dr. Wyman’s

testimony was scientifically unreliable because it was based, in large part, on unverified internet

testimonials. Initially, we note that Appellants have only presented us with the foregoing

argument in the context of the trial court’s discretionary decision to permit Dr. Wyman to testify.

Appellants have not argued that the court erred by admitting the internet evidence at trial.

Indeed, the record reflects that Appellants did not object to the admissibility of that testimony

when it was presented at trial. Their sole argument is that the court abused its discretion by

allowing Dr. Wyman to testify. Accordingly, we must confine our analysis to that specific issue.

{¶78} This Court is troubled by the notion that internet testimonials of unknown origin

could serve as a reliable reference source for an expert seeking to form an opinion based on 39

scientifically valid principles. Under the facts of this case, however, Dr. Wyman testified that he

consulted the internet strictly in the hopes of verifying the conclusion that he had already formed.

He testified that he was “absolutely confident” in his conclusion because it was grounded in (1)

commonly accepted principles of chemistry, pharmacology, and toxicology; (2) the commonly

accepted method of comparing the structural relationships of two molecules through two-

dimensional representations; (3) commonly accepted principles about the effects of an ethyl

group; (4) peer-reviewed, commonly accepted pharmacological studies about the effects of

Cathinones; and (5) the commonly accepted pharmacological effects of Methcathinone, and

Buphedrone. Thus, scientifically valid principles formed the basis for his conclusion. Having

carefully reviewed the record, we cannot conclude that the trial court’s decision to allow Dr.

Wyman to testify as an expert was unreasonable, arbitrary, or unconscionable. Blakemore,

.

{¶79} To the extent Appellants found fault with Dr. Wyman’s testimony, “[v]igorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

Daubert,

. Appellants have not shown that the trial court went so far as to abuse

its discretion in admitting his testimony. Accordingly, insofar as they relate to Dr. Wyman,

Appellants’ assignments of error lack merit. Hileman and Hoover’s second assignment of error,

Jackson’s second assignment of error, and DeArment’s third assignment of error are overruled.

HILEMAN & HOOVER’S ASSIGNMENT OF ERROR III

THE TRIAL COURT VIOLATED APPELLANTS HILEMAN’S AND HOOVER’S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS WHEN IT PROHIBITED THE DEFENSE FROM CALLING THEIR PROFFERED EXPERT WITNESSES. 40

JACKSON’S ASSIGNMENT OF ERROR IV

THE TRIAL COURT VIOLATED JACKSON’S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS WHEN HE WAS PROHIBITED FROM CALLING PROFFERED EXPERT WITNESSES.

DEARMENT’S ASSIGNMENT OF ERROR IV

THE TRIAL COURT VIOLATED DEARMENT’S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS WHEN IT PROHIBITED DEARMENT AND HIS CO-DEFENDANTS FROM CALLING THEIR PROFFERED EXPERT WITNESSES.

{¶80} In each of the foregoing assignments of error, Appellants argue that the court

erred when it refused to allow them to present expert testimony at trial. Specifically, they argue

that the trial court, by not permitting Lindsay Reinhold and Dr. Alfred Staubus to testify, violated

their Sixth Amendment right to present evidence in their own defense. We do not agree.

{¶81} “Due process requires [] ‘that criminal defendants be afforded a meaningful

opportunity to present a complete defense.’” State v. Hale,

, 2008-Ohio-

3426, ¶ 46, quoting California v. Trombetta,

(1984). It is the right of any

criminal defendant “to offer testimony of witnesses on his behalf.” State v. Barrios, 9th Dist.

Lorain No. 06CA009065,

, quoting State v. Moon,

(9th Dist. 1991). Accord Sixth Amendment to the U.S. Constitution. Yet, “[a] defendant’s

right to present relevant evidence is not unlimited, but rather is subject to reasonable

restrictions.” United States v. Scheffer,

(1998). “The accused does not have

an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible

under standard rules of evidence.” Taylor v. Illinois,

(1988). “The

determination of the admissibility of expert testimony is within the discretion of the trial court[,

and] * * * [s]uch decisions will not be disturbed absent abuse of discretion.” Valentine,

,

, at ¶ 9. An abuse of discretion is more than an error of 41

judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore,

. When applying the abuse of discretion standard, this

Court may not substitute its judgment for that of the trial court. Pons,

.

{¶82} As previously noted, Evid.R. 702 permits a witness to testify as an expert if all of

the following apply:

(A) The witness’ testimony either relates 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; [and]

(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information * * *.

“[E]xpert testimony must assist the trier of fact in determining a fact issue or understanding the

evidence.” Miller,

. “[W]ith regard to reliability, helpfulness turns on

whether the expert’s technique or principle [is] sufficiently reliable so that it will aid the jury in

reaching accurate results.” (Alteration sic) (Internal quotations and citations omitted.)

. Moreover, “[e]ven when its relevance is shown through a proper foundation, a court must

carefully weigh whether the expert testimony violates Evid.R. 403(A) * * *.” State v. Haines,

,

. The rule provides that evidence “[a]lthough

relevant, * * * is not admissible if its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).

{¶83} By agreement of the parties, the trial court did not rule on the State’s motion to

exclude Appellants’ experts until the first day of trial. The parties stipulated that the court would

base its admissibility decision on the testimony that Reinhold and Dr. Staubus gave at the

constitutionality hearing. Thus, if allowed, the two experts would testify that “substantially 42

similar” could be defined any number of ways and, due to the lack of a concrete definition, they

were unable to form an opinion as to whether Pentedrone had either a substantially similar

chemical structure or a substantially similar effect on the central nervous system as

Methcathinone. Appellants argued that their experts’ testimony would aid the jury because it

would cast doubt on the ability of the State’s experts to draw any conclusions about Pentedrone

and the ability of ordinary people to know that Pentedrone was an illegal substance.

{¶84} The State opposed Reinhold’s and Dr. Staubus’ testimony on the basis that it did

not meet Evid.R. 702’s admissibility requirements. The State argued that the testimony was

scientifically unreliable because the experts did not intend to testify about any methodology,

technique, or principle that would link their expertise to the specific facts of the case. In fact, the

crux of their testimony was that they could not form any opinion about the categorization of

Pentedrone as an analog (i.e., that it was or was not substantially similar to Methcathinone). The

State also urged that their testimony, if allowed, would suggest to the jurors that they, as lay

people, should not be able to reach a conclusion about an analog when learned scientists could

not.

{¶85} After hearing arguments from both parties, the trial court excluded Reinhold’s and

Dr. Staubus’ testimony. The court agreed with the State’s position that their testimony did not

meet Evid.R. 702’s admissibility requirements. Additionally, the court rejected Appellants’

argument that the testimony would be helpful to the jury. The court noted that, while certain

scientists in the field might be troubled by the prospect of applying the “substantially similar”

standard, the reality of the situation was that the jury would have to follow the court’s

instructions and apply the common meaning of the phrase. Consequently, the court granted the

State’s motion to exclude the testimony. 43

{¶86} Appellants argue that the trial court violated their due process rights by excluding

the testimony of Reinhold and Dr. Staubus. They argue that both experts were highly qualified

and that their testimony “would have dispelled the misconceptions created by the State’s

witnesses.” Specifically, both would have stressed the lack of consensus in the field about how

to apply the phrase “substantially similar” in the absence of a scientific definition. In doing so,

Appellants argue, both experts would have brought into question the ability of the State’s experts

to draw any conclusions about the classification of Pentedrone as a controlled substance analog.

{¶87} While a defendant has a constitutional right to introduce relevant evidence in his

defense, the right is qualified in nature. See Scheffer,

. “The accused does not

have an unfettered right to offer testimony that is incompetent, privileged, or otherwise

inadmissible under standard rules of evidence.” Taylor,

. Accordingly, so long

as the trial court properly found Reinhold’s and Dr. Staubus’ testimony inadmissible under the

evidentiary rules, the court did not offend Appellants’ rights to a fair trial by excluding their

testimony. See

{¶88} For expert testimony to be admissible, it “must assist the trier of fact in

determining a fact issue or understanding the evidence.” Miller,

.

Additionally, it must not run afoul of Evid.R. 403(A) by being overly confusing or misleading.

See Haines,

,

. The trial court found that Reinhold’s

and Dr. Staubus’ testimony failed in both respects. Having reviewed the record, we must

conclude that the court acted within its sound discretion when it excluded their testimony. That

is because, even assuming that their testimony satisfied the strictures of Evid.R. 702, the record

supports the conclusion that it would have been overly confusing or misleading to the jury. 44

{¶89} The parties stipulated that the trial court would base its admissibility

determination on the testimony that Reinhold and Dr. Staubus gave at the constitutionality

hearing. The purpose of offering that testimony, however, was to challenge the analog statute on

the grounds of vagueness. Neither Reinhold nor Dr. Staubus opined that Pentedrone was not an

analog of Methcathinone. In fact, they lacked any opinion about the identification of Pentedrone

as an analog. The point of their proffered testimony was that the language of the analog statute

was too vague to allow for such a determination. Yet, vagueness was not a question for the jury.

Once the court determined as a matter of law that the analog statute was constitutional, the only

question for the jury was the guilt or innocence of Appellants. To answer that question, the jury

had to apply the analog statute and determine whether Pentedrone was or was not substantially

similar to Methcathinone. Testimony aimed at showing that such a task was impossible would

have been confusing or misleading to the jury. See Evid.R. 403(A). That testimony related to

the constitutionality of the statute, not to whether the State had proven its case beyond a

reasonable doubt.

{¶90} Although Appellants were not able to call their own experts at trial, they were

able to fully cross-examine the State’s experts. Both of the State’s experts admitted on cross-

examination that different scientists might apply the phrase “substantially similar” in different

ways and, consequently, might reach different conclusions. Appellants were free to question the

validity of their opinions based on those admissions. They were not free, however, to reexamine

the issue of vagueness at trial by interjecting testimony aimed at attacking the constitutionality of

the analog statute. Because Reinhold’s and Dr. Staubus’ testimony would have been confusing

and/or misleading to the jury, the trial court did not abuse its discretion by excluding it. Hileman 45

and Hoover’s third assignment of error, Jackson’s fourth assignment of error, and DeArment’s

fourth assignment of error are overruled.

HILEMAN & HOOVER’S ASSIGNMENT OF ERROR IV

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT TOOK JUDICIAL NOTICE OF TWO OF THE STATE’S EXHIBITS AND PRESENTED THEM TO THE JURY WITHOUT ANY QUALIFYING INSTRUCTION, MERITING REVERSAL.

JACKSON’S ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT TOOK JUDICIAL NOTICE OF STATE’S EXHIBIT 2 WITHOUT ANY QUALIFYING INSTRUCTION, MERITING REVERSAL.

{¶91} In the foregoing assignments of error, Hileman, Hoover, and Jackson argue that

the trial court erred by taking judicial notice of State’s Exhibit 2 without giving the jury a proper

qualifying instruction. Because they have forfeited the foregoing argument and have not asserted

a claim of plain error on appeal, we reject their assignments of error.

{¶92} Under Evid.R. 201, a court may take judicial notice of an adjudicative fact when

it is “either (1) generally known within the territorial jurisdiction of the trial court or (2) capable

of accurate and ready determination by resort to sources whose accuracy cannot reasonably be

questioned.” Evid.R. 201(B). The decision whether to take judicial notice of an adjudicative

fact is a matter within the discretion of the trial court. State v. Johnson, 9th Dist. Summit No.

22688,

. When a court takes judicial notice in a criminal case, the jury

must be instructed “that it may, but is not required to, accept as conclusive any fact judicially

noticed.” Evid.R. 201(G).

{¶93} State’s Exhibit 2 is a one-page document that purports to be a lab report from

Research Triangle Park Laboratories, Inc. (“Research Triangle”). The lab report, dated March 6,

2012, is addressed to The Odd Corner and consists of an analysis performed on 5.1 grams of Joy. 46

It contains a list of various controlled substances that were “Not Detected” in the Joy sample and

two substances that were detected: “Pentedrone 88% and Caffeine 12% * * *.” The State sought

to introduce the lab report in order to compare it to State’s Exhibit 3, a Research Triangle lab

report seized from the wall of The Odd Corner on the day the police executed their warrant. The

two exhibits are identical in all respects but one: Exhibit 3 does not contain the one line of

analysis indicating that the Joy sample contained “Pentedrone 88% and Caffeine 12% * * *.”

{¶94} The State received Exhibit 2 from defense counsel during discovery, but was

unable to find anyone at Research Triangle who was willing to authenticate the document.4 The

State asked the trial court to take judicial notice of its contents, strictly for purposes of

comparing its contents to the contents of State’s Exhibit 3. Because the exhibit came from

defense counsel, the State argued that its accuracy could not reasonably be questioned. See

Evid.R. 201(B)(2). Appellants opposed the State’s request on the basis that the lab report

amounted to unauthenticated hearsay. After multiple discussions outside the presence of the

jury, the court stated that it would take judicial notice of the lab report and admitted State’s

Exhibit 2.

{¶95} Initially, we note that Hileman, Hoover, and Jackson have not presented this

Court with an argument that Exhibit 2 was not an adjudicative fact of which the court could take

judicial notice. Their argument is that the court erred in its instructions to the jury. Specifically,

they argue that the trial court erred by taking judicial notice of State’s Exhibit 2 in the absence of

an instruction to the jury that it could, but was not required to, accept the lab report as

conclusive. See Evid.R. 201(G). We limit our discussion accordingly.

4 The State informed the court that it was Research Triangle’s policy to only retain the records of any reports it produced for 30 days. 47

{¶96} It is not clear from the record that the court ever told the jury it was taking judicial

notice of State’s Exhibit 2. All of the conversations that the parties and the court had about the

exhibit took place outside the presence of the jury, and all of the citations in Appellants’ briefs

refer to those discussions. Although the court told the parties that it would take judicial notice of

the exhibit, Appellants have failed to point to any place in the record where the court actually

instructed the jury to that effect. See 1980 Staff Notes to Evid.R. 201 (“Subdivisions (C), (D),

(E), and (F), of [Evid.R. 201] * * * reflect the view that if a court takes judicial notice of an

adjudicative fact, no countervailing evidence may be admitted to oppose the fact noticed and the

judge instructs the jury to find the fact judicially noticed.”). (Emphasis added.) Moreover, the

record reflects that they failed to object on the basis that the court’s jury instructions were

incomplete.

{¶97} “On appeal, a party may not assign as error the giving or the failure to give any

instructions unless the party objects before the jury retires to consider its verdict, stating

specifically the matter objected to and the grounds of the objection.” Crim.R. 30(A). If a

defendant fails to object to the court’s giving of an instruction or failure to give an instruction, he

or she forfeits all but plain error on appeal. See State v. Webb, 9th Dist. Summit No. 27424,

, ¶ 26. Further, this Court will not undertake a plain error analysis when an

appellant has failed to assert a claim of plain error. See State v. Griffin, 9th Dist. Lorain No.

11CA010128,

.

{¶98} To the extent Hileman, Hoover, and Jackson believe that the court’s jury

instructions were incomplete, it was their burden to raise that issue by making a timely objection.

See Crim.R. 30(A). The record reflects that they failed to object on the basis that the court failed

to issue an instruction under Evid.R. 201(G). See Evid.R. 201(G) (jury in criminal case must be 48

instructed that “it may, but is not required to, accept as conclusive any fact judicially noticed”).

Likewise, they did not object on the basis that the court failed to instruct the jury that it was

taking judicial notice of the contents of State’s Exhibit 2; a prerequisite to the issuance of the

corresponding instruction under Evid.R. 201(G). Because Hileman, Hoover, and Jackson failed

to preserve their objection(s), they are limited to a claim of plain error on appeal. Yet, they have

not argued plain error, and we will not undertake a plain error analysis on their behalf. See

Griffin at ¶ 39. Accordingly, Hileman and Hoover’s fourth assignment of error and Jackson’s

third assignment of error are overruled.

HILEMAN & HOOVER’S ASSIGNMENT OF ERROR V

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT PENTEDRONE WAS A CONTROLLED SUBSTANCE ANALOG, AND THAT APPELLANTS HILEMAN AND HOOVER BELIEVED IT WAS A CONTROLLED SUBSTANCE THEREBY VIOLATING THEIR RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.

JACKSON’S ASSIGNMENT OF ERROR VII

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT PENTEDRONE WAS AN ANALOG CONTROLLED SUBSTANCE, THEREBY VIOLATING JACKSON’S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.

DEARMENT’S ASSIGNMENT OF ERROR V

DEARMENT’S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND MUST BE REVERSED.

{¶99} In each of the foregoing assignments of error, Appellants argue that their

respective convictions are based on insufficient evidence. Specifically, they argue that the State

failed to prove that Pentedrone has a substantially similar or greater effect on the central nervous

system as Methcathinone. Additionally, Hileman, Hoover, and DeArment argue that the State

failed to prove that they knowingly sold (Hileman and Hoover) or possessed (DeArment) a

controlled substance. We disagree. 49

{¶100} “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar,

,

, ¶ 113, citing State v. Thompkins,

(1997).

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks,

(1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Edwards, 9th Dist. Summit No. 25679,

.

Substantially Similar Effect on the Central Nervous System

{¶101} “A controlled substance analog, to the extent intended for human consumption,

shall be treated for purposes of any provision of the Revised Code as a controlled substance in

schedule I.” Former R.C. 3719.013. For purposes of this appeal, the phrase “controlled

substance analog” means a substance that has (1) a chemical structure that “is substantially

similar to the structure of a controlled substance in schedule I”; and (2) “a stimulant, depressant,

or hallucinogenic effect on the central nervous system that is substantially similar to or greater

than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a

controlled substance in schedule I * * *.” R.C. 3719.01(HH)(1)(a), (b)(i). Methcathinone is a

schedule I controlled substance. Former R.C. 3719.41(E)(4).

{¶102} Appellants argue that the State did not present sufficient evidence of Pentedrone’s

effect on the central nervous system. They argue that all of the State’s evidence was anecdotal in 50

nature and did not establish beyond a reasonable doubt that Pentedrone had a substantially

similar or greater pharmacological effect than Methcathinone.

{¶103} Dr. John Wyman testified that he is the chief toxicologist at the Cuyahoga County

Medical Examiner’s Office, holds a Ph.D. in Toxicology and Comparative Pharmacology, and is

Board Certified in both General Toxicology and Forensic Toxicology. Prior to joining the

Medical Examiner’s Office in Cleveland, Dr. Wyman spent two years as the chief toxicologist in

Dayton and seven years as the chief toxicologist in Columbus. Dr. Wyman explained that his

office is responsible for helping the pathologist determine cause of death by detecting any drugs

or chemicals that might be in the body and quantifying them to see if they are present in lethal

levels. He testified that he became involved in the case at hand when the State asked him to use

his knowledge and training as a forensic toxicologist to offer an opinion on the pharmacological

effects of Pentedrone as compared to Methcathinone.

{¶104} Dr. Wyman testified that a pharmacological effect occurs when a drug binds to

receptors in the body. He summarized that the location to which a drug binds, the manner in

which it binds, and the strength with which it binds are all factors that will affect how the drug

and the receptors in the body interact. According to Dr. Wyman, Methcathinone causes a

pharmacological effect because it binds to dopamine and serotonin neurotransmitters in the body

and prevents their reuptake. The effect of the drug is similar to that of methamphetamine and

cocaine in that it increases feelings of euphoria, alertness, empathy, and sense of communication.

Negative side effects of the drug include appetite and thirst suppression, hypertension, an

elevated heart rate, and a loss of cognitive ability. Dr. Wyman testified that Methcathinone is a

schedule I controlled substance because it has no medical value and a high potential for abuse. 51

{¶105} Dr. Wyman described the chemical structure of Methcathinone and noted that it

was almost identical to two other structures: Buphedrone and Pentedrone. He explained that

Buphedrone is made by adding a methyl group (one carbon) to Methcathinone and Pentedrone is

made by adding an ethyl group (two carbons) to Methcathinone. According to Dr. Wyman,

Buphedrone has been shown to have pharmacological effects similar to Methcathinone.

Specifically, it has been shown to increase feelings of euphoria, alertness, empathy, and sense of

communication while also increasing heart rate and decreasing the user’s appetite and thirst. Dr.

Wyman admitted that Pentedrone was too new for there to have been any pharmacological

studies performed on it, but predicted within a reasonable degree of scientific certainty that

Pentedrone would have a substantially similar or greater pharmacological effect than

Methcathinone. He emphasized that Pentedrone and Buphedrone only differ by one carbon atom

and Buphedrone has been shown to have effects similar to Methcathinone. Additionally, Dr.

Wyman testified that both Methcathinone and Pentedrone were substitute Cathinones and shared

the same Cathinone backbone. He stated that it was common practice in his field, when

confronted with a new designer drug, to compare the chemical structure of the new drug with

that of a known controlled substance for purposes of forming an opinion about the

pharmacological effect of the new drug.

{¶106} Dr. Wyman testified that his comparison of the chemical structures of Pentedrone

and Methcathinone, in conjunction with his training and experience, allowed him to conclude

that Pentedrone’s effect on the central nervous system would be substantially similar to or

greater than Methcathinone’s effect. He opined that the ethyl group in Pentedrone would simply

increase the molecule’s solubility in fat and, therefore, would most likely increase its binding

affinity at the receptor site. He offered multiple examples in support of his theory and explained 52

that molecules with greater fat solubility have an easier time crossing cell membranes so they

result in a quicker effect.

{¶107} At trial, the State also introduced the testimony of three individuals, all of whom

admitted that they had purchased Joy at The Odd Corner in March 2012. Gary Mills testified

that he had been using bath salts for about a year when the police arrested him in conjunction

with his purchase of Joy at The Odd Corner. Mills indicated that, in addition to Joy, he had used

at least three other types of bath salts and had watched people use bath salts on “[t]housands of

occasions.” He testified that bath salts gave him a “very euphoric feeling” as well as an

abundance of energy. According to Mills, a quarter to a half gram of bath salts would allow an

average individual to stay awake for three or four days. He testified that the feeling he got from

using Joy was not as intense as the feeling he got from some of the other bath salts he had tried,

but that Joy had the same overall effect as other bath salts and satisfied his habit.

{¶108} William Kimble testified that he began using bath salts in the spring of 2011 and

purchased Joy from The Odd Corner on March 21, 2012. At the time, Kimble used bath salts

almost every day. He testified that he learned from several friends that The Odd Corner was

selling Joy. When the police stopped Kimble on March 21st, he had already used Joy from The

Odd Corner on at least one occasion. He testified that Joy “was like really strong cocaine” and

gave him “a speed buzz.” According to Kimble, the effects he felt from Joy were comparable to

the effects he had felt from other bath salts on prior occasions.

{¶109} Eric Hinman testified that he had used Joy five to six times a month for a period

of two months when the police stopped him in connection with the warrant they executed at The

Odd Corner on March 23, 2012. He testified that he had been a drug user for about four years at

that point and primarily used heroin and crack cocaine. According to Hinman, Joy made him 53

“really energetic, like a cocaine buzz, crack buzz,” but also caused him to hallucinate and suffer

from paranoia. He testified that he purchased Joy specifically from The Odd Corner on at least

four or five occasions.

{¶110} Viewing all of the evidence in a light most favorable to the prosecution, we must

conclude that the State set forth evidence from which a rational trier of fact could have

concluded that Pentedrone’s effect on the central nervous system is substantially similar to or

greater than Methcathinone’s effect. See Jenks,

at paragraph two of the

syllabus. The State could not produce direct evidence to that effect because, at the time of trial,

no pharmacological studies about the effects of Pentedrone existed. It is well established,

however, that “[c]ircumstantial evidence and direct evidence inherently possess the same

probative value.”

at paragraph one of the syllabus. The testimony outlined above constituted

circumstantial evidence of Pentedrone’s pharmacological effect. Dr. Wyman was able to draw

on his extensive training and knowledge in his field to predict the effect of Pentedrone, based on

its chemical structure and the known effects of other chemicals whose structures were virtually

identical. He specifically opined that Pentedrone would have a pharmacological effect on the

central nervous system that was substantially similar to or greater than the effect of

Methcathinone. Additionally, the State introduced the testimony of three individuals who had

ingested Joy after they purchased it from the Odd Corner. Their testimony, by itself, could not

establish the pharmacological effect prong of the analog statute because there was no evidence

about the chemical composition of the other bath salts or drugs that they were comparing to Joy.

Nevertheless, they were all able to describe in general terms the effects they felt after having

ingested the Joy they purchased from The Odd Corner. The effects they described mirrored the

effects that Dr. Wyman predicted Pentedrone would cause upon ingestion. To the extent 54

Appellants’ cast the State’s evidence as unreliable, their argument sounds in weight rather than

sufficiency. See State v. Browning, 9th Dist. Summit No. 26687,

. The

record supports the conclusion that the State satisfied its burden of production on the element of

pharmacological effect. As such, Appellants’ arguments to the contrary lack merit.

{¶111} DeArment’s brief also contains a blanket statement that the State failed to prove

that Pentedrone’s chemical structure is substantially similar to Methcathinone’s chemical

structure. In analyzing whether a drug constitutes an analog of a controlled substance, the

chemical structure element is distinct from the pharmacological element. See R.C.

3719.01(HH)(1). This Court will not engage in a sufficiency analysis on the chemical structure

element of the statute when DeArment has not done so. It is an appellant’s burden to “set[] forth

an argument on appeal and point[] this [C]ourt to applicable, legal authority in support of that

argument.” State v. Raber,

,

, ¶ 30 (9th Dist.). Because

DeArment has not satisfied his burden, we will not address his blanket statement that the State

failed to prove the chemical structure element. See Cardone v. Cardone, 9th Dist. Summit No.

18349,

, *8 (May 6, 1998) (“If an argument exists that can support [an]

assignment of error, it is not this [C]ourt’s duty to root it out.”).

Knowingly Trafficking in or Having Possession of a Controlled Substance

{¶112} Under Former R.C. 2925.03(A)(1), “[n]o person shall knowingly * * * [s]ell or

offer to sell a controlled substance * * *.” “A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” Former R.C. 2901.22(B). If the drug involved in the sale or offer

of sale under Former R.C. 2925.03(A)(1) is “any compound, mixture, preparation, or substance 55

included in schedule I,” the violation of the statute constitutes aggravated trafficking. Former

R.C. 2925.03(C)(1). See also Former R.C. 3719.013 (controlled substance analog to be treated

as schedule I controlled substance if intended for human consumption).

{¶113} Under Former R.C. 2925.11(A), “[n]o person shall knowingly obtain, possess, or

use a controlled substance * * *.” “‘[P]ossession’ means having control over a thing or

substance.” R.C. 2925.01(K). If the drug being obtained, possessed, or used under Former R.C.

2925.11(A) is “a compound, mixture, preparation, or substance included in schedule I,” the

violation of the statute constitutes aggravated possession. Former R.C. 2925.11(C)(1). See also

Former R.C. 3719.013 (controlled substance analog to be treated as schedule I controlled

substance if intended for human consumption).

{¶114} Hileman, Hoover, and DeArment argue that there was insufficient evidence of

their culpability because, at the time they either sold or possessed Joy, they believed it to be a

legal substance. Because it was the State’s burden to prove that they knowingly sold or

possessed a controlled substance, they argue that their respective convictions are based on

insufficient evidence.

{¶115} Detective Angela Paonessa, a detective with the University of Akron Police

Department, testified that her department began investigating The Odd Corner after the Akron

Police Department’s Vice Unit provided them with intelligence that Joy bath salts were being

sold there. Detective Paonessa went to the store on March 21, 2012, for the purpose of

conducting a controlled buy. Dressed in plain clothes, Detective Paonessa entered the store

around 5:00 p.m. while other officers waited outside and monitored her progress via a wire. She

identified Hoover as the employee who was working at the store when she entered it. While

Detective Paonessa walked around the store, she observed a couple approach the counter and ask 56

Hoover for Joy. Hoover entered the back room, returned with an orange container of Joy, and

sold it to the man and woman.

{¶116} Detective Paonessa stepped into line behind the man and woman as they were

purchasing the Joy. Once they left, she too approached the counter and asked Hoover for Joy.

Hoover entered the back room, came out with an orange container of Joy, and told Detective

Paonessa that the cost was $36.20. Detective Paonessa then asked Hoover if she could purchase

K2,5 but he responded that the owner of The Odd Corner “doesn’t want to mess with that”

because it was not possible to “really control what they’re putting in that stuff.” Nevertheless,

Hoover informed Detective Paonessa that she could purchase K2 at a particular store in Canton if

she went there and asked for “Mad Monkey.” When Detective Paonessa asked Hoover if the Joy

she bought was “good,” he responded affirmatively and stated that he “could open a store just

selling [it]” because he could not “keep it on the shelves.”

{¶117} Detective Paonessa testified that she secured a warrant for The Odd Corner the

following day and came to the store on the morning of March 23, 2012, to execute the warrant.

She arrived approximately one and a half hours before the store was scheduled to open so that

she could conduct surveillance. She testified that the store was set to open at 11:00 a.m., but cars

began pulling into the parking lot at about 10:40 a.m. One of those cars belonged to DeArment,

who waited in this car alongside the other customers who arrived early.

{¶118} At approximately 11:15 a.m., Hileman arrived and opened the store. Detective

Paonessa testified that, as soon as Hileman opened the door to her car, the people who had been

waiting in the parking lot got out of their cars. She agreed that it was her impression that the

people waiting in their cars recognized Hileman. She testified that the group went inside the

5 K2 is also referred to as spice and is another drug of abuse. 57

store with Hileman and, approximately two minutes later, people started coming out. Detective

Paonessa radioed other officers to follow the people leaving the store and continued her

surveillance for another half an hour before executing the warrant.

{¶119} Detective Paonessa testified that the search of The Odd Corner uncovered

numerous items, including almost 100 containers of Joy, over $3,000 in cash, and register tapes

spanning from October 2011 up to the day of the search. As part of her investigation, Detective

Paonessa reviewed all of the register tapes and The Odd Corner’s bank records. She discovered

that the cash register at the store had a button labeled “Joy,” which, when pressed, rang up as a

sale for a “t-shirt” at a price of $36.20, including tax. Using the register tapes, Detective

Paonessa compiled a spreadsheet of the sales of Joy from October 19, 2011, to March 23, 2012.

Her spreadsheet reflected the following sales: (1) from October 19, 2011, to October 31, 2011,

66 units of Joy were sold for a total of $3,299.34, not including tax; (2) from November 1, 2011,

to November 30, 2011, 76 units of Joy were sold for a total of $3,799.24, not including tax; (3)

from December 1, 2011, to December 31, 2011, 76 units of Joy were sold for a total of

$3,799.24, not including tax; (4) from January 1, 2012, to January 23, 2012, 238 units of Joy

were sold for a total of $6,322.14, not including tax; (4) from February 2, 2012, to February 29,

2012, 359 units of Joy were sold for a total of $12,202.41, not including tax; and (5) from March

1, 2012, to March 23, 2012, 977 units of Joy were sold for a total of $33,208.23, not including

tax. Thus, from October 19, 2011, to March 23, 2012, The Odd Corner sold $62,630.60 worth of

Joy, not including the tax on those sales. Over half of that amount came from the sales that took

place during the first three weeks of March 2012.

{¶120} Detective Paonessa testified that she spoke with Hileman after her arrest and

Hileman indicated that she was the manager of The Odd Corner. Hileman described Joy as “a 58

novelty item” and said that she did not know what its purpose was. When Detective Paonessa

asked Hileman whether she cared that Joy was making people sick she responded: “I don’t know

what people do with it. They’re adults.” Nevertheless, Hileman admitted that she once received

a call from a mother who was upset that the store had sold Joy to her son. Hileman told

Detective Paonessa that she refused to sell Joy to him the next time he came into the store.

{¶121} Hileman informed Detective Paonessa that The Odd Corner purchased Joy from a

company in Indiana whose contact person was a man named William Wetzel. In reviewing The

Odd Corner’s bank statements, Detective Paonessa uncovered numerous checks written to

Wetzel, which were signed by either Hileman or Jackson. From October 29, 2011 to March 16,

2012, The Odd Corner purchased 2100 units of Joy from Wetzel at a total cost of $16,800.

Accordingly, the store purchased Joy at a cost of $8 per unit and sold it at a price of $36.20 per

unit. Hileman told Detective Paonessa that Jackson was generally responsible for calling Indiana

to order more Joy and placed orders approximately one to two times per week.

{¶122} Officer Lawrence Kouri testified that he assisted in the execution of Detective

Paonessa’s search warrant on March 23, 2012. After receiving a radio call from Detective

Paonessa, Officer Kouri began following a dark-colored Mazda that was leaving The Odd Corner

parking lot. The Mazda was one of the vehicles that Detective Paonessa had observed at the

store at approximately 10:40 a.m. Officer Kouri later stopped the Mazda and spoke to the driver,

DeArment. DeArment admitted that he had come from The Odd Corner and had purchased Joy.

Officer Kouri confiscated one container of Joy from DeArment, and Detective Jason Hill arrived

on scene. Detective Hill testified that DeArment admitted he had purchased Joy, but claimed to

have purchased it for a female whose identity he would not disclose. DeArment informed 59

Detective Hill that he had driven 50 miles from Wooster to come to The Odd Corner and was

headed back to Wooster when Officer Kouri stopped him.

{¶123} Each container of Joy from The Odd Corner was small, plastic, and orange.

There was testimony that the containers were stored in a back room near the cash register so that

they were not visible to the general public. Each container had the word “Joy” stamped on its lid

along with the words “Not for Human Consumption.” Inside each plastic container was a baggie

containing approximately .5 grams of white powder. There is no dispute that the samples of Joy

taken from The Odd Corner and DeArment and tested at BCI all tested positive for the presence

of Pentedrone.

{¶124} Captain Brian Taylor testified that he was on scene at The Odd Corner on March

23, 2012, to aid in the execution of the search warrant. During the search, he discovered a paper

publicly displayed on the wall behind the cash register. The paper, dated March 6, 2012, and

labeled State’s Exhibit 3, consisted of a lab analysis report from Research Triangle, detailing the

analysis the lab had performed on a 5.1 gram sample of Joy. State’s Exhibit 3 contained a long

list of illegal substances that were “Not Detected” in Joy. Through Detective Paonessa,

however, the State also introduced State’s Exhibit 2. State’s Exhibit 2 consisted of a virtually

identical lab analysis report from Research Triangle. The only difference between the two

exhibits was that State’s Exhibit 2 contained one additional line of lab analysis, indicating that

Joy contained “Pentedrone 88% and Caffeine 12% * * *.” State’s Exhibit 2 was not placed on

display in the store.

{¶125} Viewing all of the evidence in a light most favorable to the prosecution, we must

conclude that the State set forth evidence from which a rational trier of fact could have

concluded that Hileman, Hoover, and DeArment knowingly sold or possessed a controlled 60

substance (Pentedrone) rather than a substance that they believed to be legal. See Jenks,

at paragraph two of the syllabus. Despite its immense popularity, the Joy that was for

sale at The Odd Corner was kept in a back room such that it was not on display to the general

public and had to be asked for by name. Each small container of Joy cost $36.20 and was

labeled with the words “Not for Human Consumption.” One could infer that the language on

each container harkened back to the statutory requirement that controlled substance analogs be

“intended for human consumption.” See R.C. 3719.013. Moreover, one could draw conclusions

about the culpability of those involved based on the fact that the cash register at The Odd Corner

had a specific button for Joy sales, but rung up the sales as sales of t-shirts.

{¶126} With respect to Hileman, there was evidence that she repeatedly signed checks for

the purchase of large amounts of Joy at a modest cost before reselling it to customers of The Odd

Corner at a substantial mark-up. There was evidence that the store sold an astronomical 977

containers of Joy in the first three weeks of March alone and that people crowded the parking lot

in the morning waiting for the store to open. Detective Paonessa observed a crowd follow

Hileman into the store and emerge quickly thereafter, having strictly purchased Joy. Hileman

herself admitted that she had once received a phone call from an angry mother whose son

became sick from the Joy the store had sold him.

{¶127} With respect to Hoover, there was evidence that he told Detective Paonessa that

he “could open a store just selling [Joy]” because he could not “keep it on the shelves.”

Detective Paonessa witnessed Hoover sell Joy multiple times during the short time that she was

at the store to make the controlled buy.

{¶128} With respect to DeArment, there was evidence that he drove 50 miles one way

just to purchase Joy from The Odd Corner. He arrived at the store approximately 20 minutes 61

before it even opened and waited in the parking lot until Hileman arrived. Once he successfully

purchased Joy, DeArment left immediately to return to Wooster. Moreover, while he claimed to

have purchased Joy for someone else, he refused to disclose her identity.

{¶129} As previously noted, “[a] person acts knowingly, regardless of his purpose, when

he is aware that his conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when he is aware that such circumstances

probably exist.” Former R.C. 2901.22(B). Based on the evidence outlined above, a rational trier

of fact could have concluded that Hileman, Hoover, and DeArment knowingly sold or purchased

a controlled substance (Pentedrone) rather than a legal one. As such, their argument lacks merit.

Hileman and Hoover’s fifth assignment of error, Jackson’s seventh assignment of error, and

DeArment’s fifth assignment of error are overruled.

HILEMAN & HOOVER’S ASSIGNMENT OF ERROR VI

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE RELIED UPON BY THE STATE TO PROVE THE EFFECT OF PENTEDRONE ON THE CENTRAL NERVOUS SYSTEM WAS UNRELIABLE AND THE CIRCUMSTANCES OF THE SALES DID NOT SHOW INTENT TO SELL A CONTROLLED SUBSTANCE.

JACKSON’S ASSIGNMENT OF ERROR VIII

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE RELIED UPON BY THE STATE TO PROVE THE EFFECT OF PENTEDRONE ON THE CENTRAL NERVOUS SYSTEM WAS UNRELIABLE.

DEARMENT’S ASSIGNMENT OF ERROR VI

DEARMENT’S CONVICTION IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE, AND SO HIS CONVICTION MUST BE REVERSED AND HIS CASE REMANDED FOR A NEW TRIAL.

{¶130} In each of the foregoing assignments of error, Appellants argue that their

respective convictions are against the manifest weight of the evidence. Specifically, they argue 62

that the State produced unreliable evidence in support of its contention that Pentedrone’s

pharmacological effect is substantially similar to or greater than Methcathinone’s effect.

Additionally, Hileman, Hoover, and DeArment argue that the jury lost its way when it concluded

that they knowingly sold (Hileman and Hoover) or possessed (DeArment) a controlled

substance. We do not agree that Appellants’ convictions are against the weight of the evidence.

{¶131} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins,

.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.”

, quoting Tibbs v. Florida,

(1982).

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins,

. Accord

.

{¶132} Appellants did not present any witnesses in their defense. Instead, they relied

upon extensive cross-examination of the State’s witnesses. In the foregoing assignments of

error, they ask this Court to review for manifest weight the same arguments that they previously

made in support of their challenge to the sufficiency of the evidence.

{¶133} To the extent Appellants challenge the State’s evidence about the

pharmacological effects of Pentedrone, we note that the jury was in the best position to judge the 63

credibility of Dr. Wyman and the three individuals who described the effects they felt after using

Joy. See State v. Prade, 9th Dist. Summit No. 26775,

(“[W]itness and

expert credibility determinations as well as the proper weight to afford those determinations fall

squarely within the province of the trier of fact.”). Dr. Wyman explained, in detail, how he was

able to form an opinion about the pharmacological effects of Pentedrone based on his education,

training, and knowledge of toxicology and pharmacology in conjunction with his review of the

structural relationship of Pentedrone to other molecules that it closely resembled. He testified in

depth about the known pharmacological effects of Methcathinone and Buphedrone.

Additionally, he testified about the effects of ethyl groups and their tendency to simply increase

the fat solubility of molecules. Dr. Wyman readily acknowledged that no pharmacological

studies were yet available on Pentedrone, but he gave numerous examples in support of his

conclusion and drew upon a considerable amount of experience. Likewise, the three individuals

who testified that they had ingested Joy and were able to testify about the effects they felt after

ingesting Joy. All three described having experienced effects that matched the effects that Dr.

Wyman predicted Pentedrone would cause. Thus, the jury reasonably could have concluded that

Dr. Wyman was correct in his opinion about the pharmacological effects of Pentedrone and that

the effects the three individuals felt were due to the Pentedrone in Joy. After a thorough review

of the record, we cannot conclude that the jury lost its way and committed a manifest miscarriage

of justice when it concluded that Pentedrone’s effect on the central nervous system was

substantially similar to or greater than Methcathinone’s effect.

{¶134} Hileman, Hoover, and DeArment also argue that the jury lost its way when it

concluded that they knowingly sold or possessed a controlled substance. There was a wealth of

circumstantial evidence, however, tending to show that they acted with the requisite degree of 64

culpability. As previously noted, Joy sales became an extremely lucrative endeavor for The Odd

Corner. The store sold over $33,000 worth of Joy in March 2012 alone, but made no visible

effort to advertise the product. Indeed, the store kept the containers of Joy in a back room such

that customers had to ask for Joy by name. There was testimony that people arrived at the store

well before it opened and waited in the parking lot so that they could buy Joy at the first

available opportunity. DeArment, in particular, drove 50 miles one way just to purchase Joy,

and there was evidence that The Odd Corner had many repeat customers who bought Joy. The

store charged customers approximately four and a half times more for each container of Joy than

it had paid to purchase it. Moreover, each sale was charged as the sale of a t-shirt. There was no

evidence that any customers were provided with a receipt for their purchase and, because the

purchase was documented as one for a t-shirt, none of The Odd Corner’s cash register tapes even

reflected that Joy had ever been sold there.

{¶135} This Court has carefully reviewed all of the evidence in the record. Although

Hileman, Hoover, and DeArment claimed not to have known that Joy contained an illegal

substance, we are unable to conclude that this is the exceptional case where the jury lost its way

by convicting them. See Otten,

. As such, their respective convictions are

not against the manifest weight of the evidence. Hileman and Hoover’s sixth assignment of

error, Jackson’s eighth assignment of error, and DeArment’s sixth assignment of error are

overruled.

HILEMAN’S ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED IN APPLYING THE BULK AMOUNT DEFINITION OF R.C. 2925.01(1) TO APPELLATE (sic) HILEMAN AS THE SECTION DID NOT INCLUDE PENTEDRONE NOR A CONTROLLED SUBSTANCE ANALOG. 65

JACKSON’S ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN APPLYING THE BULK AMOUNT DEFINITION OF R.C. 2925.01(1) AS THE SECTION DID NOT INCLUDE PENTEDRONE NOR A CONTROLLED SUBSTANCE ANALOG.

{¶136} In the foregoing assignments of error, Hileman and Jackson argue that the trial

court erred by using the definition contained in Former R.C. 2925.01(D)(1)(c) to define “bulk

amount” for the jury. According to Hileman and Jackson, the Revised Code did not contain a

definition for the bulk amount of a controlled substance analog at the time of their respective

offenses. Consequently, they argue that they could not have been convicted of second-degree

felonies for selling or possessing a bulk amount of Pentedrone.

{¶137} “An appellate court’s review of the interpretation and application of a statute is de

novo.” Akron v. Frazier,

(9th Dist. 2001). “A de novo review

requires an independent review of the trial court’s decision without any deference to the trial

court’s determination.” State v. Consilio, 9th Dist. Summit No. 22761,

.

{¶138} Hileman and Jackson were convicted of second degree felonies with respect to

their convictions for aggravated trafficking and aggravated possession. The offenses were

second-degree felonies rather than fourth-degree felonies because “the amount of the drug

involved equal[ed] or exceed[ed] five times the bulk amount but [was] less than fifty times the

bulk amount.” Former R.C. 2925.03(C)(1)(d); Former R.C. 2925.11(C)(1)(c). The question is

how the legislature defined “bulk amount” for purposes of a controlled substance analog at the

time that Hileman and Jackson committed their offenses.

{¶139} R.C. 2925.01(D) sets forth the definition of “bulk amount” for a variety of

controlled substances. Certain controlled substances are not included within the subdivision,

however, because the enhancements associated with those substances are governed by other 66

statutory provisions. For instance, Former R.C. 2925.01(D)(1) did not provide bulk amount

definitions for marijuana, cocaine, L.S.D., heroin or hashish. See Former R.C. 2925.01(D)(1).

Instead, the trafficking and possession statutes contained their own provisions for those

substances, outlining the enhancements associated with selling or possessing certain amounts of

them. See Former R.C. 2925.03(C)(3)-(7); Former R.C. 2925.11(C)(3)-(7). During the

timeframe relevant to this appeal, the trafficking and possession statutes did not contain any

provisions that outlined enhancements for selling or possessing certain amounts of controlled

substance analogs. Accordingly, the bulk amount definition contained within Former R.C.

2925.01(D) controlled.

{¶140} Former R.C. 2925.01(D)(1)(c) provided that for “any compound, mixture,

preparation, or substance included in schedule I” a “bulk amount” of the drug consisted of “[a]n

amount equal to or exceeding thirty grams or ten unit doses of a [drug] * * * that is or contains

any amount of a schedule I hallucinogen * * * or a schedule I stimulant or depressant * * *.”

Former R.C. 2925.01(D)(1)(c). Hileman and Jackson argue that the foregoing subsection did not

apply to them because analogs are not schedule I hallucinogens, stimulants, or depressants. They

argue that Former R.C. 3719.41 set forth the five types of schedule I controlled substances, three

of which were hallucinogens, stimulants, and depressants. See Former R.C. 3719.41. According

to Hileman and Jackson, Former R.C. 2925.01(D)(1)(c) only provided the bulk amount definition

for the substances that appeared within Former R.C. 3719.41’s list of schedule I hallucinogens,

stimulants, or depressants. Because neither Pentedrone, nor controlled substance analogs

appeared on Former R.C. 3719.41’s list of schedule I hallucinogens, stimulants, or depressants,

they argue that the trial court erred by relying on the bulk amount definition contained in Former

R.C. 2925.01(D)(1)(c). According to Hileman and Jackson, the Revised Code did not contain a 67

bulk amount definition for Pentedrone or controlled substance analogs at the time they

committed their respective offenses.

{¶141} “[S]ections of the Revised Code defining offenses or penalties shall be strictly

construed against the state, and liberally construed in favor of the accused.” R.C. 2901.04(A).

Yet, “[t]he canon in favor of strict construction of criminal statutes is not an obstinate rule which

overrides common sense and evident statutory purpose. The canon is satisfied if the statutory

language is given fair meaning in accord with the manifest intent of the General Assembly.”

State v. Sway,

(1984).

{¶142} As previously noted, controlled substance analogs that are intended for human

consumption “shall be treated for purposes of any provision of the Revised Code as a controlled

substance in schedule I.” Former R.C. 3719.013. The State prosecuted Appellants under the

theory that Pentedrone is an analog of Methcathinone, and there is no dispute that Former R.C.

3719.41 listed Methcathinone as a schedule I stimulant. Former R.C. 3719.41(E)(4). Because

Former R.C. 3719.013 required Pentedrone to be treated as Methcathinone “for purposes of any

provision of the Revised Code,” it was appropriate for the trial court to treat Pentedrone as it

would treat Methcathinone when determining the issue of bulk amount. Former R.C.

2925.01(D)(1)(c) provided the bulk amount definition for Methcathinone. As such, the court did

not err when it concluded that the same subsection provided the bulk amount definition for

Pentedrone. We reject Hileman and Jackson’s argument to the contrary. Consequently,

Hileman’s seventh assignment of error and Jackson’s fifth assignment of error are overruled.

JACKSON’S ASSIGNMENT OF ERROR VI

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S CONVICTIONS FOR POSSESSING FIVE TIMES THE BULK AMOUNT OF A CONTROLLED SUBSTANCE ANALOG. 68

{¶143} In his sixth assignment of error, Jackson argues that his second-degree felony

convictions for aggravated trafficking and aggravated possession are based on insufficient

evidence because the State failed to prove that he sold or possessed a bulk amount of Pentedrone.

We disagree.

{¶144} “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” Diar,

, 2008-

Ohio-6266, at ¶ 113, citing Thompkins,

.

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Jenks,

at paragraph two of the syllabus. “The test for sufficiency requires a

determination of whether the State has met its burden of production at trial.” Edwards, 2012-

Ohio-901, at ¶ 7.

{¶145} The jury found Jackson guilty of possessing and trafficking in an amount of

Pentedrone that “equal[ed] or exceed[ed] five times the bulk amount but [was] less than fifty

times the bulk amount.” Former R.C. 2925.03(C)(1)(d); Former R.C. 2925.11(C)(1)(c). At the

time Jackson committed his offenses, a “bulk amount” of Pentedrone was “[a]n amount equal to

or exceeding thirty grams or ten unit doses” of the drug. Former R.C. 2925.01(D)(1)(c). A “unit

dose” is “an amount or unit of a compound, mixture, or preparation containing a controlled

substance that is separately identifiable and in a form that indicates that it is the amount or unit

by which the controlled substance is separately administered to or taken by an individual.”

Former R.C. 2925.01(E). Accordingly, to convict Jackson of second-degree felonies based on 69

unit dose, the State had to prove that he trafficked in and possessed between 50 and 500 unit

doses of Pentedrone.

{¶146} Anna Tabor, a forensic scientist in BCI’s chemistry section, testified that the

police sent her 101 containers of Joy for testing. One container was purchased by Detective

Paonessa when she conducted her controlled buy at The Odd Corner. The police confiscated the

second container from DeArment and the third container from a man named Eric Hinman on the

day they executed their warrant at The Odd Corner. They found the remaining 98 containers of

Joy in the back room at The Odd Corner. There was testimony that the police removed one of

the 98 containers for field testing and then shipped the one container they removed along with

the remaining 97 containers to BCI for testing.

{¶147} Tabor testified that she actually tested a total of five containers of Joy: one

container from the package of 97, the one container that the police field tested, and the three

containers from Detective Paonessa, DeArment, and Hinman. According to Tabor, BCI

generally abides by a sampling plan known as hypergeometric sampling when they receive

multiple samples to test from the same source. She admitted, however, that she did not perform

hypergeometric sampling on the package of 97 containers she received for testing. Instead, she

received approval from her supervisors to test only one of the 97 containers. According to

Tabor, her supervisors felt it was unnecessary to perform hypergeometric sampling on the 97

containers due to the nature of the population and the link between the 97 containers and the

other four containers the police seized. She testified that the 97 containers were all “little plastic

boxes” that were labeled “Joy” and were all packaged and sealed in the same fashion.

{¶148} Because she did not test each of the 97 containers seized directly from The Odd

Corner or take a hypergeometric sampling of those containers, Tabor admitted that she could not 70

say within a reasonable degree of scientific certainty whether all of those containers contained

Pentedrone. She testified, however, that each of the five containers of Joy she tested (of the

original 101 submitted to her) held a white powder that tested positive for Pentedrone and

caffeine. Per BCI’s policy, Tabor did not attempt to quantify the amount of Pentedrone that was

present in each of the five containers. Nevertheless, she testified, to a reasonable degree of

scientific certainty, that all five containers of Joy contained Pentedrone.

{¶149} Jackson argues that his second-degree felony convictions for aggravated

trafficking and aggravated possession are based on insufficient evidence because the State failed

to prove bulk amount. As previously noted, Tabor only tested five of the Joy containers she

received. Because Tabor admitted that she did not test the remaining 96 containers and did not

perform hypergeometric sampling on them, Jackson argues that the jury could not infer that any

of them contained Pentedrone.

{¶150} “This Court has previously held that a scientific analysis of a random sampling of

pills from a bulk quantity is sufficient to support an inference that all of the pills contain the

same drug, if the defendant offers no rebuttal.” State v. Mathis, 9th Dist. Summit No. 23507,

. Accord State v. Rush, 9th Dist. Lorain Nos. 3809 & 3818,

, *4 (July 31, 1985) (“Chemical analysis of a random sample of a quantity of drugs is

enough to allow a reasonable inference that all of the tablets contained the same drug * * *, if no

rebuttal is offered.”). “We have never set requirements on the percentage of a substance that

must be analyzed to support such an inference, as it depends on the facts and circumstances of

each case.” State v. Garnett, 9th Dist. Medina No. 12CA0088-M,

.

{¶151} In Garnett, the police seized 49 pills from Garnett and charged him with

trafficking in a bulk amount of oxycodone. Id. at ¶ 2. BCI only tested one of the 49 pills to 71

confirm the presence of oxycodone and, on appeal, Garnett argued that the State was required to

test a larger sampling of the pills to support the inference that they all contained oxycodone. Id.

at ¶ 6. We rejected his argument and held that “where the seized pills were bundled together,

were uniform in color, shape, size, and marking, and were of ‘pharmaceutical grade,’ * * * the

random selection and sampling of only one of the pills was sufficient to support an inference that

all of the pills contained oxycodone.” Id. at ¶ 7. We conclude that the same rationale applies in

the instant appeal.

{¶152} There was testimony at trial that all 101 containers of Joy that the State submitted

to BCI came from The Odd Corner. All of the containers were identical, small orange containers

stamped with the word “Joy,” and each of the five containers Tabor tested contained a white

powder that tested positive for Pentedrone and caffeine. The 98 containers that the police seized

directly from the back room of The Odd Corner were all initially packaged together. The police

removed one for field testing, and Tabor later removed another to test. There was no evidence

that any of the remaining 96 containers had a different appearance. Further, there was no

evidence that any of the actual testing Tabor performed was unreliable. See Garnett at ¶ 7,

quoting State v. Reynolds, 4th Dist. Ross No. 1185,

, *2 (Sept. 26, 1985 (Grey, J.,

concurring) (“[I]f [an] appellant wishes to object to the evidence on the grounds that it is not

random or representative, it is incumbent upon him to introduce by expert witness or otherwise

sufficient evidence to show the unreliability of the testing.”). Based on the foregoing facts and

circumstances, “we conclude that the random selection and sampling of only one of the [97

containers of Joy] was sufficient to support an inference that all of the [remaining 96 containers]

contained [Pentedrone].” Garnett at ¶ 7. 72

{¶153} Viewing the evidence in a light most favorable to the State, we must conclude that

there was evidence from which a rational trier of fact could have concluded that the State proved

that Jackson trafficked in and possessed a bulk amount of Pentedrone. The jury could infer that

all 101 containers of Joy that the police seized contained Pentedrone. Further, the jury

reasonably could have concluded that each container of Joy contained a unit dose of Pentedrone.

See Former R.C. 2925.01(E) (“unit dose” defined). Because the State set forth sufficient

evidence that Jackson trafficked in or possessed between 50 and 150 unit doses of Pentedrone,

we reject his argument that the State failed to prove bulk amount. Consequently, his sixth

assignment of error is overruled.

III.

{¶154} Appellants’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 73

Costs taxed to Appellants.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. WHITMORE, J. CONCUR.

APPEARANCES:

KIRK A. MIGDAL, Attorney at Law, for Appellant.

J. DEAN CARRO, Attorney at Law, for Appellants.

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.