[Cite as State v. Tuleta, 2011-Ohio-1923.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 94992




                                     STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                  ANTHONY TULETA
                                                   DEFENDANT-APPELLANT




                                   JUDGMENT:
                               DISMISSED IN PART;
                              CONVICTIONS VACATED



                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                           Case Nos. CR-520896 and CR-517465

        BEFORE:            Keough, J., Boyle, P.J., and Sweeney, J.
       RELEASED AND JOURNALIZED: April 21, 2011

ATTORNEY FOR APPELLANT

Edward A. Heffernan
1660 West Second Street
Suite 410
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Mary McGrath
      James Gutierrez
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

       {¶ 1} Defendant-appellant, Anthony Tuleta (“Tuleta”), appeals his

convictions of drug possession and aggravated theft. Finding merit to the

appeal, we dismiss in part1 and vacate Tuleta’s convictions.


         Tuleta’s notice of appeal indicates that in addition to Case No. CR-520896, he is also
       1


appealing Case No. CR-517465. However, that case was dismissed without prejudice by the State
on May 15, 2009 and reindicted as Case No. CR-520896. Accordingly, we dismiss the appeal as it
pertains to Case No. CR-517465.
       {¶ 2} In 2009, Tuleta was indicted on numerous counts of drug

possession and one count of aggravated theft. The indictment and bill of

particulars indicated that the dates of the alleged offenses occurred between

the years of 2003 and 2007. The trial court denied Tuleta’s motion to dismiss

the indictment and the matter proceeded to a jury trial where Tuleta was

found guilty of all charges. The trial court sentenced Tuleta to one year in

prison and five years community control sanctions; the sentence was stayed

pending appeal.       Tuleta, raises nine assignments of error on appeal.                   We

find the first assignment of error dispositive.

       {¶ 3} R.C. 2925.11(A), regarding drug possession, prohibits a person

from knowingly obtaining, possessing, or using a controlled substance.

Subsection (B) provides four exceptions to this prohibition. At issue here is

the exception listed in (B)(4). The version of R.C. 2925.11(B)(4) in effect at

the time of alleged offenses provided that R.C. 2925.11(A) does not apply to

“[a]ny person who obtained the controlled substance pursuant to a

prescription issued by a licensed health professional authorized to prescribe

drugs.”2

       {¶ 4} In his first assignment of error, Tuleta argues that the trial court

erred in denying his pre-trial motions to dismiss and his Crim.R. 29(A)



        In 2008, the General Assembly amended this “prescription drug” exception to exclude only
       2


those prescriptions that were “lawful.” See Sub.H.B. 195. Reviewing the language of H.B. 195,
motion for judgment of acquittal because a licensed physician prescribed the

controlled substances he allegedly possessed, and therefore the exception set

forth in R.C. 2925.11(B)(4) applies. We agree.

        {¶ 5} This court addressed this precise issue in State v. Casshie,

Cuyahoga App. No. 81341, 2002-Ohio-6514. In Casshie, this court upheld

the trial court’s decision dismissing an indictment against the defendant

when the drugs in possession were prescribed by a physician. This court, in

examining R.C. 2925.11, held, “[i]n giving R.C. 2925.11 both a plain and an

ordinary reading, it is clear that under the current statute it is impossible to

convict, let alone prosecute, the defendant under the statute.” Id. at ¶15.

“It is uncontroverted that the defendant ‘knowingly possessed, or used a

controlled substance’ but, as stated, the statute’s exception under (B)(4)

clearly precludes prosecution since the prescriptions were issued by licensed

health professionals authorized to prescribe drugs.” Id. at 17.

        {¶ 6} We find no distinction between the case before us and Casshie.

The facts and evidence adduced prior to and at trial revealed that Tuleta was

prescribed the controlled substances by a licensed health professional

authorized to prescribe drugs between January 2003 and April 2007.

Therefore, at all times Tuleta was alleged to have been in possession of

controlled substances, R.C. 2925.11, in effect at the time of the alleged


no retroactivity clause exists, therefore, former R.C. 2925.11(B)(4) applies.
offenses, provided a clear and unequivocal exception prohibiting a person

from being prosecuted for possessing a controlled substance prescribed by a

physician. Accordingly, because Tuleta obtained the controlled substances

pursuant to a prescription issued by a licensed health professional, criminal

charges for drug possession could not be pursued against him.

      {¶ 7} Finding that Tuleta could not have been prosecuted for drug

possession, the aggravated theft charge also cannot be maintained because

Tuleta possessed the prescription drugs lawfully. Our decision today does

not affect Medical Mutual’s right to pursue a civil claim against Tuleta, which

he concedes.

      {¶ 8} Accordingly, Tuleta’s first assignment of error is sustained.

Finding this assignment of error dispositive, all other assignments of error

are rendered moot.

      {¶ 9} Appeal dismissed in part; convictions vacated.    The trial court is

instructed to execute a judgment entry vacating Tuleta’s convictions.

      It is ordered that appellant recover from appellee his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR
