[Cite as State v. Black, 2016-Ohio-7914.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellant,                      :     CASE NO. CA2016-04-032

                                                  :            OPINION
    - vs -                                                     11/28/2016
                                                  :

IAN BENJAMIN BLACK,                               :

        Defendant-Appellee.                       :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 15 CR 31345



David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellant

Jeffrey A. Berndt, 575 South High Street, Columbus, Ohio 43215, for defendant-appellee



        HENDRICKSON, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Warren County

Common Pleas Court. The state charged defendant-appellee, Ian Benjamin Black, with

possession and trafficking of hashish-infused chocolate candy bars, which are commonly

known as "edibles." Black retained an expert witness to scientifically determine the weight of

hashish within each edible and asked the court to order the state to provide the expert with

samples of the edibles. Black then intended to submit evidence of the weight of the hashish
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and argue that he could only be charged with the actual amount of hashish and not the total

weight of each candy bar. The state opposed Black's request on various grounds. The court

granted Black's motion but stayed its decision while permitting the state to file this appeal.

The state asserts the following assignment of error:

       {¶ 2} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS

DISCRETION WHEN IT DENIED THE STATE'S MOTION IN LIMINE AND PERMITTED

APPELLEE TO OBTAIN AN [INDEPENDENT] WEIGHING OF THE CONTROLLED

SUBSTANCE HASHISH FOR PURPOSES OF INTRODUCING EVIDENCE OF AN

ALTERNATIVE WEIGHT AT TRIAL[.]

       {¶ 3} The state alleges that Black possessed and held for sale marijuana and various

marijuana related products, which were seized at Black's drive-thru beverage store. Included

among the marijuana products were around 150 hashish-infused chocolate candy bars in

assorted flavors. These edibles were apparently professionally manufactured in a marijuana-

legal state but then illegally imported to Ohio. The labeling on each edible indicated it

contained 100 milligrams of hashish.

       {¶ 4} The weight of all edibles seized exceeded 2,000 grams. This gram weight

enhanced Black's possession and trafficking charges to felonies of the second degree.

However, if the labeling claim of 100 milligrams of hashish per candy bar was accurate, the

total weight of hashish would have been far less than 2,000 grams. Assuming the weight of

the chocolate and other "filler" noncontraband substances was excluded, the state could only

prove a lesser felony. Accordingly, Black retained an expert witness who could purportedly

scientifically determine the weight of hashish within the edibles.

       {¶ 5} Black moved the court to order the state to provide his expert with a sample of

the edibles so that they could be reweighed. Through a contemporaneously filed motion in

limine, the state argued that Black should not be allowed to present evidence of the weight of
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hashish within the candy bars. The state also argued that Black's expert did not have the

proper government credentials to receive and test the alleged contraband. The court ruled in

Black's favor. It denied the state's motion in limine and found that Black had a statutory right

to have the edibles reweighed by his expert.

       {¶ 6} Decisions involving the admissibility of evidence are reviewed for an abuse of

discretion. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 122. Similarly, decisions

granting or denying a motion in limine are reviewed for an abuse of discretion. Illinois

Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526 (1994). For an abuse of discretion to

have occurred, the trial court must have taken action that is unreasonable, arbitrary, or

unconscionable. State ex rel. Hamilton Cty. Bd. of Commrs. v. State Emp. Relations Bd.,

102 Ohio St.3d 344, 2004-Ohio-3122, ¶ 17.

       {¶ 7} Initially, the state argues that the court's ruling allowing Black's expert to

reweigh the edibles was unauthorized by statute. In its decision, the court relied on R.C.

2925.51, which provides in relevant part:

            (E) Any person who is accused of a violation of this chapter or of
            Chapter 3719. of the Revised Code is entitled, upon written request
            made to the prosecuting attorney, to have a portion of the
            substance that is, or of each of the substances that are, the basis of
            the alleged violation preserved for the benefit of independent
            analysis performed by a laboratory analyst employed by the
            accused person, or, if the accused is indigent, by a qualified
            laboratory analyst appointed by the court. Such portion shall be a
            representative sample of the entire substance that is, or of each of
            the substances that are, the basis of the alleged violation and shall
            be of sufficient size, in the opinion of the court, to permit the
            accused's analyst to make a thorough scientific analysis concerning
            the identity of the substance or substances. * * *
            (F) In addition to the rights provided under division (E) of this
            section, any person who is accused of a violation of this chapter or
            of Chapter 3719. of the Revised Code that involves a bulk amount
            of a controlled substance, or any multiple thereof, or who is
            accused of a violation of section 2925.11 of the Revised Code,
            other than a minor misdemeanor violation, that involves marihuana,
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            is entitled, upon written request made to the prosecuting attorney, to
            have a laboratory analyst of the accused's choice, or, if the accused
            is indigent, a qualified laboratory analyst appointed by the court
            present at a measurement or weighing of the substance that is the
            basis of the alleged violation. Also, the accused person is entitled,
            upon further written request, to receive copies of all recorded
            scientific data that result from the measurement or weighing and
            that can be used by an analyst in arriving at conclusions, findings,
            or opinions concerning the weight, volume, or number of unit doses
            of the substance subject to the measurement or weighing.
       {¶ 8} Accordingly, R.C. 2925.51 provides that a defendant may, upon written request:

(1) have a representative sample of the alleged contraband substance provided to their own

laboratory analyst for the purposes of identifying the substance; and (2) have their own

laboratory analyst present at the weighing of the alleged contraband substance. Contrary to

the trial court's decision, R.C. 2925.51 does not provide a defendant with a right to reweigh

an alleged contraband substance. State v. Baker, 12th Dist. Fayette No. CA2010-11-033,

2011-Ohio-3431, ¶ 12 ("a person accused of violating R.C. Chapter 2925 is entitled to an

independent analysis of the drugs, he is not entitled to an independent weighing thereof").

(Emphasis sic.)

       {¶ 9} Next, the state argues that the court erred in denying its liminal motion, which

asked the court to preclude Black from attempting to admit evidence or argue that the weight

of the charged contraband was "anything other than the total amount of the hashish candy

bar." We recently examined this issue in the context of a case involving heroin possession

and trafficking. In State v. Waver, 12th Dist. Butler No. CA2015-08-155, 2016-Ohio-5092, we

found that the statute under which the defendant was convicted did not require the weight of

the "filler" to be separated from the controlled substance and that it was not error to include

the filler in the total weight of the amount charged. Id. at ¶ 43.

       {¶ 10} Here, with respect to possession and trafficking of hashish, the statutory



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language and the result is the same as in Waver.1 The statutes prohibiting the possession

and sale of hashish provide "[i]f the drug involved in the violation is hashish or a compound,

mixture, preparation, or substance containing hashish, whoever violates division (A) of this

section is guilty of [trafficking in or possession of] hashish."                      R.C. 2925.03(C)(7);

2925.11(C)(7).       (Emphasis ours.) A hashish-infused candy bar meets most of these

additional statutory definitions and the state properly included any filler in the total amount

charged against Black. Thus, we find that the trial court committed an error of law, and thus,

abused its discretion, in denying the state's motion in limine.

        {¶ 11} Finally, the state argues that the court erred in its decision to permit Black's

expert to possess the edibles for purposes of reweighing it. However, this argument is moot

given our decision with respect to the state's first two arguments. As set forth above, we find

merit in the state's assignment of error. We reverse the decision of the trial court and

remand for proceedings consistent with this opinion.

        {¶ 12} Judgment reversed and remanded.


        M. POWELL, P.J., and RINGLAND, J., concur.




1. In Waver, we noted that, with respect to cocaine, the issue of whether filler materials must be excluded from
the charged weight was presently before the Ohio Supreme Court. Id. at ¶ 44. See State v. Gonzales, 6th Dist.
Wood No. WD-13-086, 2015-Ohio-461, motion to certify allowed, 143 Ohio St.3d 1402, 2015-Ohio-2747, and
appeal allowed, 143 Ohio St.3d 1403, 2015-Ohio-2747.
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