[Cite as State v. Allen,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 29273 : v. : Trial Court Case No. 2021-CR-1392 : LATRICE ALLEN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :

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OPINION

Rendered on the 29th day of April, 2022.

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

ANGELINA N. JACKSON, Atty. Reg. No. 0077937, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

.............

DONOVAN, J. -2-

{¶ 1} The State of Ohio appeals from an order of the Montgomery County Court of

Common Pleas, which dismissed Latrice Allen’s indictment for one count of possession

of marijuana (at least 200 grams but less than 1000 grams), a felony of the fifth degree.

{¶ 2} The incident which formed the basis for the indictment occurred on April 23,

2021. While at the Dayton International Airport, Allen was found in possession of over

1,000 grams of marijuana-infused products. The marijuana that Allen possessed came

in several forms, including two marijuana-infused suckers, two plastic bottles of marijuana

liquid, and eight packages containing marijuana-infused gummies. Allen told the

authorities that she had purchased the marijuana products at a “gas station” before

traveling to the airport.

{¶ 3} Allen was indicted for possession of marijuana on June 24, 2021. At her

arraignment on July 22, 2021, Allen stood mute, and the trial court entered a plea of not

guilty on her behalf. On August 23, 2021, Allen filed a motion to dismiss the indictment

against her pursuant to Crim.R. 48(B). Allen argued that the trial court should grant her

motion because “just a few months after the charges [sic] were incurred in this case,”

Allen was issued a card by the Ohio Medical Marijuana Registry “that would render any

future possession of the same amount of marijuana to be completely legal under Ohio

law.” Appellee’s Brief p. 2. The State filed responses to Allen’s motion to dismiss on

August 24 and September 2, 2021.

{¶ 4} On September 25, 2021, the trial court granted Allen’s motion to dismiss the -3-

indictment against her. The trial court found as follows: 1) because Allen had obtained

a medical marijuana card in the interim, any future marijuana possession by her would be

legal; 2) no one was harmed by her possession of marijuana; and 3) no meaningful

punishment could be imposed for Allen’s crime. In light of its rationale, the trial court

dismissed Allen’s case pursuant to Crim.R. 48(B) “in the interests of justice.” The trial

court also noted that “the primary duty of a prosecutor is to seek justice, not merely to

convict.”

{¶ 5} The State of Ohio now appeals.

{¶ 6} The State’s sole assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A

MATTER OF LAW IN GRANTING ALLEN’S CRIM.R. 48(B) MOTION TO

DISMISS, BECAUSE THE VARIOUS RATIONALES GIVEN BY THE TRIAL

COURT FOR DISMISSING ALLEN’S CASE ARE LEGALLY AND

FACTUAL[LY] UNSUSTAINABLE.

{¶ 7} The State contends that the trial court abused its discretion when it granted

Allen’s Crim.R. 48(B) motion to dismiss because its findings were “legally and factually

false.”

{¶ 8} Crim.R. 48(B), which provides the procedure for the dismissal of a criminal

case by the court over the objections of the State, provides that “if the court over the

objection of the state dismisses an indictment, information, or complaint, it shall state on

the record its findings of fact and reasons for the dismissal.” See State v. Anguiano, 2d

Dist. Darke No. 2011-CA-9,

. -4-

{¶ 9} A trial court's dismissal of an indictment is reviewed for an abuse of

discretion. State v. Busch,

,

(1996). The term

“abuse of discretion” implies a decision that is unreasonable, arbitrary or unconscionable.

State v. Rodriguez, 2d Dist. Darke No. 1722,

.

The Ohio Supreme Court has held that Crim.R. 48(B) “does not limit

the reasons for which a trial judge might dismiss a case, and we are

convinced that a judge may dismiss a case pursuant to Crim.R. 48(B) if a

dismissal serves the interest of justice.” Busch * * * at 615. The Court also

stated that trial courts are on “the front lines of the administration of justice

in our judicial system, dealing with the realities and practicalities of

managing a caseload and responding to the rights and interests of the

prosecution, the accused, and victims. A court has the ‘inherent power to

regulate the practice before it and protect the integrity of its proceedings.’ ”

“The Court also stressed the flexibility a trial court should have to

devise a solution in a given case, and went on to state that ‘[t]rial judges

have the discretion to determine when the court has ceased to be useful in

a given case.’ ” State v. Rodriguez * * * at ¶ 10, quoting Busch * * * at 616.

Anguiano at ¶ 11, citing State v. Montiel,

,

,

(2d Dist.).

{¶ 10} However, a trial court cannot dismiss an indictment pursuant to Crim.R.

48(B) simply because the court finds that no useful purpose would be served by

continuing with the prosecution. State v. Daugherty, 5th Dist. Ashland No.

, -5-

. Additionally, we have held that “a court has inherent power to

dismiss with prejudice only where it is apparent that the defendant has been denied either

a constitutional or statutory right, the violation of which would, in itself, bar prosecution.”

State v. Today’s Bookstore, Inc.,

,

(2d

Dist. 1993), citing State v. Sutton,

,

(9th Dist. 1980).

{¶ 11} As previously stated, the trial court granted Allen’s motion to dismiss the

indictment for the following reasons: 1) because Allen had obtained a medical marijuana

card and any future marijuana possession by her would be legal; 2) no one was harmed

by her possession of marijuana; and 3) no meaningful punishment could be imposed for

Allen’s crime.

{¶ 12} Allen was initially charged with one count of possession of marijuana (at

least 200 grams but less than 1000 grams), in violation of R.C. 2925.11(A) and (C)(3)(c),

a felony of the fifth degree. R.C. 2925.11(B)(2)(a)(iv) defines a “minor possession

offense” as “a violation of this section [R.C. 2925.11] that is a misdemeanor or a felony of

the fifth degree.” Specifically, the record suggests that Allen allegedly possessed

approximately 355 grams of marijuana-infused liquid and approximately 700 grams of

marijuana-infused edibles. At the time she purchased the marijuana products, Allen did

not have a medical marijuana card, so her conduct was illegal. It is of little consequence

that Allen obtained a medical marijuana card approximately two months after she was

indicted for this offense.

{¶ 13} Even if she had had a medical marijuana card at the time of the purchase,

by her own admission, Allen bought the contraband at a “gas station,” not a properly -6-

licensed retail medical marijuana dispensary. See Ohio Adm.Code 3796:6-2-02(A); R.C.

3796.22(A). Furthermore, the holder of a medical marijuana card is permitted to possess

no more than a 90-day supply of an authorized form of marijuana. See Ohio Adm.Code

3796:8-2-01(A) and 3796:8-2-04(B); R.C. 3796.22(B). If the medical marijuana is in the

form of either an oil or an “edible” for “oral administration” (the type of marijuana Allen

possessed), a 90-day supply constitutes only 9.9 grams of THC content. Ohio Adm.Code

3796:8-2-04(B). As noted, Allen is alleged to have possessed approximately 355 grams

of marijuana-infused liquid and approximately 700 grams of marijuana-infused edibles,

arguably well above the amount that the law would have allowed even if she had had a

medical marijuana card, which she did not. 1 Furthermore, even if Allen had had a

medical marijuana card at the time she was arrested at the airport, she would have been

in violation of the law for transporting contraband into other states.

{¶ 14} Additionally, we find the trial court’s conclusion that Allen’s possession of

drugs was a victimless crime to be incorrect and misleading. “Studies demonstrate the

grave threat that illegal drugs * * * pose to society in terms of violence, crime, and social

displacement.” Harmelin v. Michigan,

,

,

(1991). Possession, use, and distribution of illegal drugs represent “one of the

greatest problems affecting the health and welfare of our population.” Treasury Emps. v.

Von Raab,

,

,

(1989). While some

states allow for the recreational use of marijuana, Ohio is not one of those states.

1 Allen suggests in her brief that the levels of THC in the marijuana-infused edibles were not established by the State; however, that is a matter to be established by the prosecution at trial. -7-

Without a medical marijuana card, possession of marijuana in Ohio is illegal, and it is

undisputed that Allen did not have a medical marijuana card on the day she was found to

be in possession of the marijuana-infused products.

{¶ 15} In support of her argument that the trial court did not err when it granted her

motion to dismiss the indictment, Allen cites to two opinions from this Court, State v.

Helmer, 2d Dist. Darke No. 2011-CA-12,

, and State v. Stokes, 2d Dist.

Darke No. 2011-C

. In Helmer, we affirmed the trial court’s

decision granting the defendant’s motion to dismiss the indictment, finding “that dismissal

of the indictment was proper because the State could not cogently explain its reason for

delaying the filing of the indictment against Helmer, nor would the ‘interests of justice’ be

served by prosecuting a two-and-a-half year-old case when in the interim, Helmer had

been convicted and sentenced in a separate case, thus denying him the potential ability

to avail himself of speedy trial provisions and/or the possibility of concurrent sentences.”

Helmer at ¶ 13.

{¶ 16} In Stokes, we affirmed the trial court’s decision granting the defendant’s

motion to dismiss the indictment, finding the State could not cogently explain its reason

for delaying the filing of the indictment against Stokes, and the “interests of justice” would

not have been served by prosecuting a two-and-a-half year-old case when, in the interim,

Stokes had no prior criminal history, had maintained employment, and had voluntarily

participated in substance abuse rehabilitation programs. Id. at ¶ 13.

{¶ 17} In our view, neither Helmer nor Stokes is applicable to Allen’s case, since

Allen was indicted only two months after her arrest for possession of marijuana rather -8-

than the two-and-a-half year delay present in Hemler and Stokes.

{¶ 18} Our duty as members of the judiciary is to interpret and apply the law in both

the civil and criminal context. We are not at liberty to pick and choose which laws we

want to enforce regarding criminal defendants. The purposes and principles of felony

sentencing involve a great deal more than simply punishing the offender. “That is a

sentencing consideration more than a legitimate basis to dismiss the indictment.” State v.

Harris,

,

,

(2d Dist.).

Protecting the public from future crime by a defendant and deterring the offender and

others from committing future crimes are also significant considerations for a trial court

when sentencing a defendant. Here, the trial court failed to take into account all of the

factors with respect to the purposes and principles of felony sentencing. Furthermore,

by granting Allen’s motion to dismiss the indictment, the trial court failed to give due

consideration to the rights of the State in prosecuting its assigned cases. State v.

Congrove, 10th Dist. Franklin No. 06AP-1129,

.

{¶ 19} Lastly, the trial court found that the “interests of justice” required dismissal

of Allen’s indictment because there was “no justification for punishing” Allen and “even

community control sanctions would serve no purpose,” as there was no need for Allen’s

rehabilitation. Order Granting Motion to Dismiss, p. 3. But R.C. 2929.11(A) mandates

that a court sentencing an offender for a felony “shall be guided” by the “overriding

purposes” of “protect[ing] the public from future crime by the offender and others” and

“punish[ing] the offender,” while “using the minimum sanctions that [it] determines [likely

to] accomplish [these] purposes without imposing an unnecessary burden on state or -9-

local government resources.” Accordingly, the “court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution.”

R.C. 2929.11(B) adds that a

felony sentence “shall be reasonably calculated to achieve the two overriding purposes

of felony sentencing * * *, commensurate with and not demeaning to the seriousness of

the offender's conduct and its impact upon [any] victim[s], and consistent with sentences

imposed for similar crimes committed by similar offenders.”

{¶ 20} As previously noted, several states allow for the recreational use of

marijuana, but Ohio does not. At the time Allen was arrested for marijuana possession,

she did not have medical marijuana card. Therefore, Allen’s possession of the

marijuana-infused products was illegal. It is of little, if any, consequence that Allen

obtained a medical marijuana card approximately two months after she was indicted in

this case. While Allen’s possession offense was a low-level felony, it was still illegal in

Ohio, and until such time that the legislature decides to legalize marijuana for recreational

use, possession of marijuana without a medical marijuana card will remain illegal.

{¶ 21} We also find Allen’s argument regarding the “Good Samaritan” law to be

inapplicable, because that law only provides immunity from arrest and prosecution for

those who have overdosed and are in possession of drugs. The law was created in

response to the opioid crisis in Ohio. Quite simply, the “Good Samaritan” law is not

relevant to these proceedings. Furthermore, there is no evidence on this record

suggesting that Allen was somehow targeted as a minority. Rather, Allen was

presumably arrested only after having her bag and/or purse checked at Dayton -10-

International Airport, a process every citizen encounters at an airport.

{¶ 22} In light of the foregoing, dismissal was inappropriate, and the trial court's

conclusion that insufficient reasons existed for prosecution was an abuse of discretion.

See State v. Kauffman, 2 Dist. Darke No. 2021-CA-5,

. The trial

court erred when it granted Allen’s motion to dismiss her indictment pursuant to Crim.R.

48(B).

{¶ 23} Allen’s assignment of error is overruled.

{¶ 24} The judgment of the trial court is reversed, and this matter is remanded for

further proceedings consistent with this opinion.

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WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Angelina J. Jackson Hon. Steven K. Dankof