[Cite as State v. Bays, 2013-Ohio-4177.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 13-COA-005
LARRY E. BAYS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Ashland County Court of
                                               Common Pleas, Case No. 12-CRI-114


JUDGMENT:                                      Vacated and Remanded


DATE OF JUDGMENT ENTRY:                         September 23, 2013


APPEARANCES:


For Defendant-Appellant                        For Plaintiff-Appellee


ERIN N. POPLAR                                 RAMONA J. ROGERS
Erin Poplar Law, LLC                           ASHLAND COUNTY PROSECUTOR
1636 Eagle Way                                 110 Cottage St.
Ashland, Ohio 44805                            Ashland, Ohio 44805

                                               ANDREW N. BUSH
                                               Assistant Prosecuting Attorney
                                               110 Cottage St.
                                               Ashland, Ohio 44805
Ashland County, Case No. 13-COA-005                                                     2

Hoffman, P.J.


       {¶1}    Defendant-appellant Larry E. Bays appeals his conviction and sentence

entered by the Ashland County Court of Common Pleas, on five counts of aggravated

trafficking in drugs, three counts of aggravated possession of drugs, one count of

possessing criminal tools, and one count of tampering with evidence, following a jury

trial. Plaintiff-appellee is the state of Ohio.

                              PROCEDURAL HISTORY AND FACTS

       {¶2}    On September 21, 2012, Appellee filed a Complaint against Appellant.

The trial court conducted a bond hearing on September 24, 2012, and found Appellant

to be indigent.     On September 28, 2012, the Ashland County Grand Jury indicted

Appellant on five counts of aggravated trafficking in drugs, in violation of R.C.

2925.03(A)(1), felonies of the fourth degree; three counts of aggravated possession of

drugs, in violation of R.C. 2925.11(A), felonies of the fifth degree; three counts of

possessing criminal tools, in violation of R.C. 2923.24(A), felonies of the fifth degree;

and one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of

the third degree.

       {¶3}    Appellant entered a plea of not guilty to the indictment at his arraignment

on October 3, 2012. Appellant, through counsel, filed a Motion for Appropriation of

Funds for Consulting Defense Experts, and a Motion to Dismiss, asserting the statute

under which he was indicted was unconstitutionally vague.            After Appellee filed

memoranda in opposition to both motions, the trial court denied Appellant’s motion via

Judgment Entry filed November 7, 2012.
Ashland County, Case No. 13-COA-005                                                    3


       {¶4}   The matter proceeded to jury trial on December 11, 2012. The following

evidence was adduced at trial.

       {¶5}   On January 16, 2012, the Ashland Police Department conducted a

controlled buy at the Loudonville Tobacco Shop which is owned and operated by

Appellant and his wife. The police informant purchased a substance identified as AM-

2201, an alleged synthetic marijuana. During the transaction, Appellant compared the

substance to “pot”. The following day, police executed a search warrant at Loudonville

Tobacco Shop and the attached residence, and seized various boxes of synthetic

drugs, a cash register and a safe containing money. During an interview with police,

Appellant admitted he did not charge tax on the synthetic drugs, he did not display such

on the shelves of his store, and he knew people were smoking the substances. Police

sent the drugs to BCI for testing.

       {¶6}   On May 14, 2012, the Ashland Police Department attempted to make

another controlled buy from Appellant at the Loudonville Tobacco Shop.         Appellant

refused to sell the synthetic drugs at that time. After the attempted purchase, Appellant

spoke with the informant, advising her he knew she was with the police and “we got our

asses busted and we don’t do that anymore”. The conversation was recorded. Later

that same day, using another informant, police made a controlled purchase of AM-2201.

A controlled buy was also made on May 21, 2012. The drugs from both buys were sent

to BCI for testing.

       {¶7}   Police executed a search warrant at Loudonville Tobacco Shop and

Appellant’s residence on May 29, 2012, seizing additional amounts of AM-2201. The

drugs were found hidden behind the insulation of an unfinished wall. Video taken from
Ashland County, Case No. 13-COA-005                                                  4


Appellant’s surveillance system revealed images of Appellant leaving the shop, walking

through his residence, out the back door, then hiding the synthetic drugs as the police

arrived.

       {¶8}   Subsequently, the police conducted two additional controlled buys on

September 7, and 13, 2012. A third search warrant was executed on September 21,

2012, during which additional amounts of AM-2201 were found.

       {¶9}   Dr. John Sprague, Professor of Pharmacology and Dean of the College of

Pharmacy at Ohio Northern University, described how synthetic marijuana such as AM-

2201 is manufactured.     Dr. Sprague explained traditional marijuana and synthetic

marijuana such as AM-2201 bind with the same receptors in the brain and cause similar

effects on the brain. Dr. Sprague noted small changes in the chemical structures of

synthetic drugs will greatly strengthen the intensity of those drugs. Dr. Sprague noted

AM-2201 is forty times more potent than marijuana. The doctor further discussed the

similarities in the chemical structures of AM-2201 and JWH-018, a synthetic drug listed

on Schedule I of Ohio’s drug laws.

       {¶10} After hearing all the evidence and deliberating, the jury found Appellant

guilty of five counts of aggravated trafficking in drugs,   three counts of aggravated

possession of drugs, one count of possessing criminal tools, and one count of

tampering with evidence.     The jury found Appellant not guilty on two counts of

possessing criminal tools.   The trial court memorialized Appellant’s convictions via

Judgment Entry filed December 14, 2012.       The trial court ordered a pre-sentence

investigation report and scheduled a sentencing hearing for February 11, 2013. At the

sentencing hearing, the trial court imposed an aggregate prison term of three years.
Ashland County, Case No. 13-COA-005                                                       5


The trial court memorialized Appellant’s sentence via Judgment Entry-Sentence filed

February 14, 2013.

       {¶11} It is from this conviction and sentence Appellant appeals, raising the

following assignments of error:

       {¶12} “I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

DEFENDANT-APPELLANT               WHEN     IT   OVERRULED         HIS     MOTION       FOR

APPROPRIATION OF FUNDS FOR CONSULTING DEFENSE EXPERTS.

       {¶13} “II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

DEFENDANT-APPELLANT WHEN IT OVERRULED HIS MOTION TO DISMISS.

       {¶14} “III. THE CONVICTION SHOULD BE OVERTURNED DUE TO THE

INEFFECTIVE ASSISTANCE OF COUNSEL.”

                                                 I

       {¶15} In his first assignment of error, Appellant contends the trial court erred in

overruling his motion for appropriation of funds for consulting defense experts.

       {¶16} The decision to grant funds for expert assistance to indigent defendants is

left to the sound discretion of the trial court.” State v. Mason (1998), 82 Ohio St. 3d 144,

150, 1998 -Ohio- 370 (Citation omitted).

       {¶17} As a matter of due process, indigent defendants are entitled to receive the

“raw materials” and the “basic tools of an adequate defense.” Ake v. Oklahoma (1985),

470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53, 62. “While Ake involved the

provision of expert psychiatric assistance only, the case now is generally recognized to

support the proposition that due process may require that a criminal defendant be

provided other types of expert assistance when necessary to present an adequate
Ashland County, Case No. 13-COA-005                                                      6

defense.” Mason, supra at 149. In accordance with the United States Supreme Court’s

decision in Ake, the Mason Court held:

             [D]ue process, as guaranteed by the Fifth and Fourteenth

      Amendments to the United States Constitution and Section 16, Article I of

      the Ohio Constitution, requires that an indigent criminal defendant be

      provided funds to obtain expert assistance at state expense only where

      the trial court finds, in the exercise of a sound discretion, that the

      defendant has made a particularized showing (1) of a reasonable

      probability that the requested expert would aid in his defense, and (2) that

      denial of the requested expert assistance would result in an unfair trial. Id.

      {¶18} In denying Appellant’s motion for appropriation of funds for consulting

defense experts, the trial court found an expert would not aid in Appellant’s defense.

The trial court reasoned:

             The analysis required to define the substance in question as a

      “controlled substance analog” is not [sic] one that is objective and

      scientific in nature. In other words, the chemical structure either is or is not

      chemically similar to a schedule I controlled substance, and should not be

      a matter subject to bias or interpretation. November 7, 2012 Judgment

      Entry at 3.

      {¶19} We disagree with the trial court. We find without an expert, Appellant

could neither verify nor challenge the reliability of Appellee’s expert’s conclusions or

techniques, and as such, may have been denied defenses to the charges. While the

chemistry may be scientific, the conclusion of what is or is not “substantially similar”
Ashland County, Case No. 13-COA-005                                                          7


involves a subjective analysis/conclusion; one which laymen are unqualified to make

and may be subject to dispute among experts. Giving Appellant access to a scientific

consultant would even the playing field in the interest of fundamental fairness to ensure

a fair trial. Accordingly, we vacate Appellant’s conviction and sentence, and remand the

matter to the trial court to allow Appellant to consult with an expert at the state’s

expense, and, if necessary, conduct a hearing regarding the probative value of his or

her opinion. Following such consultation, the trial court may reenter the conviction and

sentence if it finds Appellant had not been prejudiced by the initial lack of an expert for

consultation.

       {¶20} Appellant’s first assignment of error is sustained.

                                                  II

       {¶21} In his second assignment of error, Appellant asserts the trial court erred in

overruling his motion to dismiss because as R.C. 3719.01(HH), which served as the

basis of the charges against him, is unconstitutionally vague.

       {¶22} Having sustained Appellant’s first assignment of error, we need not

address his constitutional argument as a basis for relief. “No court should * * * indulge

the constitutional issue if the litigant is entitled to relief upon other grounds.” Burt Realty

Corp. v. Columbus (1970), 21 Ohio St.2d 265, 269, 50 O.O.2d 491, 493, 257 N.E.2d

355, 358; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St.2d 207, 34

O.O.2d 420, 215 N.E.2d 403.

       {¶23} Appellant’s second assignment of error is overruled.
Ashland County, Case No. 13-COA-005                                                       8


                                                III

       {¶24} In his final assignment of error, Appellant raises an ineffective assistance

of counsel claim. Specifically, Appellant contends trial counsel was ineffective for failing

to request a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

       {¶25} Based upon our disposition of Assignment of Error I, we find Appellant’s

third assignment of error to be premature.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur

                                              ___________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              ___________________________________
                                              HON. SHEILA G. FARMER


                                              ___________________________________
                                              HON. CRAIG R. BALDWIN
Ashland County, Case No. 13-COA-005                                                 9


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
LARRY E. BAYS                             :
                                          :
       Defendant-Appellant                :         Case No. 13-COA-005


       For the reasons stated in our accompanying Opinion, the   judgment   of     the

Ashland County Court of Common Pleas is vacated and the matter remanded to the trial

court for further proceedings in accordance with our Opinion and the law.        Costs

waived.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
