[Cite as State v. Mobarak, 2016-Ohio-4632.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                Plaintiff-Appellant,                :
                                                                      No. 16AP-162
v.                                                  :              (C.P.C. No. 13CR-532)

Ahmad Mobarak,                                      :           (ACCELERATED CALENDAR)

                Defendant-Appellee.                 :



                                              D E C I S I O N

                                     Rendered on June 28, 2016


                On brief: Ron O'Brien, Prosecuting                Attorney,    and
                Stephen L. Taylor, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, the State of Ohio, appeals a decision of the Franklin
County Court of Common Pleas in which the trial court dismissed criminal charges
against defendant-appellee, Ahmad Mobarak, on the grounds that the conduct underlying
the charges was not criminal at the time Mobarak engaged in it. Because we have
previously addressed this precise legal issue, and because the law is clear on the subject,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On February 1, 2013, Ahmad Mobarak was indicted for one count of
aggravated trafficking in drugs and one count of aggravated possession of drugs for
activity that allegedly occurred on August 15, 2012.               Specifically, the indictment
referenced a compound called MDPPP, allegedly a "[c]ontrolled substance analog" as
defined in R.C. 3719.01. The State did not allege in the indictment that MDPPP was a
controlled substance at the time but that it was analogous to a controlled substance.
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No. 16AP-162
      {¶ 3} Mobarak pled "not guilty" on February 8, 2013. (Feb. 8, 2013 Plea Form.)
On May 11, 2014, Mobarak filed a motion to dismiss based in part on the argument that
on August 15, 2012, it was not a criminal offense under Ohio law to possess or sell a
"controlled substance analog." (May 11, 2014 Mot. to Dismiss at 1.) The trial court
granted the motion in an entry filed on March 3, 2016.
      {¶ 4} The State now timely appeals.
II. ASSIGNMENT OF ERROR
      {¶ 5} The State assigns a single error for review:

               THE TRIAL COURT ERRED IN GRANTING THE MOTION
               TO DISMISS WHEN THE STATUTORY SCHEME IN
               EXISTENCE AT THE TIME OF THE OFFENSES
               PROHIBITED TRAFFICKING AND POSSESSION OF
               SCHEDULE I SUBSTANCES THAT WERE CONTROLLED
               SUBSTANCE ANALOGS.

III. DISCUSSION
      {¶ 6} Currently, the statutes that Mobarak was accused of violating prohibit the
sale and possession of controlled substance analogs.        R.C. 2925.03(A) prohibits the
following:

               (A) No person shall knowingly do any of the following:

               (1) Sell or offer to sell a controlled substance or a controlled
               substance analog;

               (2) Prepare for shipment, ship, transport, deliver, prepare for
               distribution, or distribute a controlled substance or a
               controlled substance analog, when the offender knows or has
               reasonable cause to believe that the controlled substance or a
               controlled substance analog is intended for sale or resale by
               the offender or another person.

(Emphasis added). R.C. 2925.11(A) similarly provides:

               (A) No person shall knowingly obtain, possess, or use a
               controlled substance or a controlled substance analog.

(Emphasis added). Current R.C. 2925.01(A) of R.C. Title 29 now adopts the definition of
"controlled substance analog" that is and was previously defined in R.C. 3719.01(HH):
      {¶ 7} As used in this chapter:
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No. 16AP-162
                  (A)    "Administer," "controlled substance," "controlled
                  substance analog," "dispense," "distribute," "hypodermic,"
                  "manufacturer,"     "official   written   order,"   "person,"
                  "pharmacist," "pharmacy," "sale," "schedule I," "schedule II,"
                  "schedule III," "schedule IV," "schedule V," and "wholesaler"
                  have the same meanings as in section 3719.01 of the Revised
                  Code.

(Emphasis added.) R.C. 2925.01(A).
          {¶ 8} However, the bill that added "controlled substance analog" phrasing to the
three above-referenced sections of R.C. Title 29 was not enacted until December 26, 2012,
after August 15, 2012 when Mobarak was alleged to have committed the offenses at issue.
2012 Am.Sub.H.B. No. 334.1 In the preamble of the legislation, one of the stated purposes
was "to create the offenses of trafficking in and possession of controlled substance
analogs." (Emphasis added) Id.; see also, e.g., GMC v. Wilkins, 102 Ohio St.3d 33, 2004-
Ohio-1869, ¶ 32; Ohio State Bldg. & Constr. Trades Council v. Cuyahoga Cty. Bd. of
Commrs., 98 Ohio St.3d 214, 2002-Ohio-7213, ¶ 1, 94; Ritchey Produce Co. v. State Dept.
of Admin. Servs., 85 Ohio St.3d 194, 260 (1999) (all considering stated legislative purpose
in the preamble of an enactment). Although the term, "[c]ontrolled substance analog"
was defined in R.C. Title 37, before December 26, 2012 nothing in the criminal title made
it a crime to possess or sell controlled substance analogs.
          {¶ 9} As the law existed in August 2012 (when Mobarak's illegal conduct was
alleged to have occurred), R.C. Title 37 regulated the licensing and use of controlled
substances. Within that title, R.C. 3719.01 set out over 40 definitions. Several of these
were plainly inapplicable to R.C. Title 29, for example, "[c]ategory III license" and
"[h]ospital." R.C. 3719.01(J) and (FF). Also included in those definitions was a definition
of "[c]ontrolled substance analog." R.C. 3719.01(HH). The pre-December 2012 definition
in R.C. 3719.01 of that term was (in general paraphrase) a substance substantially similar
to a Schedule I or II substance which has or is intended to have a substantially similar or
greater effect than a Schedule I or II substance. R.C. 3719.01(HH).
          {¶ 10} However, the pre-December 2012 version of R.C. Title 29 had explicitly
adopted only 17 of the more than 40 definitions in R.C. 3719.01:


1   Reported at 2011 Ohio HB 334.
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No. 16AP-162
                (A) "Administer," "controlled substance," "dispense,"
                "distribute," "hypodermic," "manufacturer," "official written
                order," "person," "pharmacist," "pharmacy," "sale," "schedule
                I," "schedule II," "schedule III," "schedule IV," "schedule V,"
                and "wholesaler" have the same meanings as in section
                3719.01 of the Revised Code.

R.C. 2925.01(A) (pre December 2012). Notably absent from this list was the term,
"controlled substance analog." Despite the fact that the health, safety, morals title (Title
37) of the Ohio Revised Code contained a definition of "controlled substance analog" in
August 2012, the criminal title (Title 29) of the Ohio Revised Code did not contain, adopt
or even reference a definition of "controlled substance analog," and it did not prohibit the
possession or sale of a "controlled substance analog." See, e.g., R.C. 2925.01 through
2925.58 (2012). The maxim of expressio unius est exclusio alterius,2 and the rule of
lenity, as set forth in R.C. 2901.04(A), are to be applied in this circumstance.

                The "rule of lenity" is a principle of statutory construction
                codified in R.C. 2901.04(A), which provides, in relevant part
                that: "sections of the Revised Code defining offenses or
                penalties shall be strictly construed against the state, and
                liberally construed in favor of the accused." Application of the
                rule of lenity prevents a court from interpreting a criminal
                statute so as to increase the penalty it imposes on an offender
                where the intended scope of the statute is ambiguous. State v.
                Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, ¶ 38, citing
                Moskal v. United States, 498 U.S. 103, 107-08 (1990). Under
                the rule, ambiguity in criminal statutes "is construed strictly
                so as to apply the statute only to conduct that is clearly
                proscribed." Id. at ¶ 38, citing United States v. Lanier, 520
                U.S. 259, 266 (1997).

State v. Goins, 10th Dist. No. 14AP-747, 2015-Ohio-3121, ¶ 46. Prior to December 2012, it
was not a crime to possess or sell controlled substance analogs in Ohio, and therefore, we
are constrained to find that Mobarak could not be charged with a crime that was defined
as such after he allegedly committed the acts in question. See State v. Mustafa, 10th Dist.
No. 15AP-465, 2015-Ohio-5370; State v. Mobarak, No. 14AP-517, 2015-Ohio-3007; State



2 This legal maxim or principle of interpretation is that when particularized items are expressed, those that
are not expressed are inferred to be excluded.
                                                                                            5
No. 16AP-162
v. Mohammad, 10th Dist. No. 14AP-662, 2015-Ohio-1234; State v. Smith, 10th Dist. No.
14AP-154, 2014-Ohio-5303.
       {¶ 11} Contrary to this law, the State argues that the statutes prior to December
2012 were not ambiguous and did clearly prohibit the possession or sale of controlled
substance analogs.     The State primarily relies upon R.C. 3719.013 to support this
argument since, even prior to December 2012, that statute provided that a controlled
substance analog was to be treated, "for purposes of any provision of the Revised Code as
a controlled substance in schedule I." R.C. 3719.013. Prior to December 2012, there did
exist in the Ohio Revised Code an offense of possessing or selling a Schedule I controlled
substance. Thus, the State argues that the language of R.C. 3719.013            supports its
indictment against Mobarak for the offenses of possessing or selling a controlled
substance analog prior to the enactment of versions of R.C. 2925.03(A) and R.C.
2925.11(A) containing the positive prohibition on possessing or selling "controlled
substance analog[s]." (State Brief at 4-13.)
       {¶ 12} This argument contravenes R.C. 2901.04, which requires strict reading of
R.C. Title 29 in whatever iteration existed at the time of and subsequent to its codification.
Before December 2012, R.C. Title 29 did not define Schedule I drugs for which criminal
prosecution was permitted to include those drugs also listed in R.C. 3719.013. As it
existed prior to December 2012, R.C. 2925.01(A) adopted the definition of "schedule I," as
set forth "in section 3719.01 of the Revised Code," not as set forth in R.C. 3719.013 . R.C.
2925.01(A) (2012). At that time, R.C. 3719.01(BB) defined "[s]chedule I" as, "established
pursuant to section 3719.41 of the Revised Code, as amended pursuant to section 3719.43
or 3719.44 of the Revised Code." R.C. 3719.01(BB) (2012). None of these statutes (R.C.
3719.41, 3719.43, or 3719.44), as they existed in August 2012, included controlled
substance analogs within Schedule I, and none of these statutes as they existed in August
2012, referenced a modification to the definition of Schedule I set forth in R.C. 3719.013.
R.C. 3719.41 (2012); R.C. 3719.43 (2012); R.C. 3719.44 (2012); see also R.C. 2925.01
through 2925.58 (2012). A required, strict reading of the plain language of the statutes
prevents us from inferring otherwise. Further, even if R.C. 3719.013's inclusion of the
words "any purpose" were to be understood to be an attempted modification of the
criminal title prior to December of 2012, it at best would be ambiguous.
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No. 16AP-162
           {¶ 13} Despite this, the State contends that the law prior to 2012 was unambiguous
in prohibiting the possession and sale of controlled substance analogs and, therefore, not
in need of interpretation or construction. We reiterate our previous holding in Mobarak
that a number of ambiguities led to the conclusion that the law prior to 2012 did not
clearly prohibit the possession or sale of controlled substance analogs. In Mobarak3 we
reasoned:

                   We noted the following ambiguities existed in the criminal
                   statutes: (1) by failing to incorporate the definition of
                   "controlled substance analog" in R.C. 3719.01(HH) into R.C.
                   2925.01, while specifically incorporating other definitions of
                   terms from R.C. Chapter 3719, the General Assembly excluded
                   that definition from applying in the context of the criminal
                   drug offense statutes; (2) R.C. 3719.01 expressly limits the
                   definitions contained therein, including the definition of
                   "controlled substance analog" under R.C. 3719.01(HH), to
                   "[a]s used in this chapter"—i.e., Chapter 3719 of the Revised
                   Code; (3) the preamble to H.B. No. 64 indicated that one of its
                   purposes was "to define a 'controlled substance analog' for
                   purposes of the Controlled Substances Law," suggesting that
                   the definition created in the legislation was limited to that
                   portion of the Revised Code and did not extend to the criminal
                   drug offense statutes. H.B. No. 64; (4) R.C. Chapter 3719
                   generally relates to the civil regulation of controlled
                   substances, not to criminal enforcement, and there were no
                   cross-references or any other indicators in R.C. Chapter 2925
                   to provide notice that the treatment of controlled substance
                   analogs under R.C. Chapter 3719 also applied to R.C. 2925; (5)
                   R.C. 3719.01(HH)(2)(a) states that "controlled substance
                   analog" does not include "[a] controlled substance," which
                   seemingly contradicts R.C. 3719.013; and (6) unlike the
                   federal Controlled Substance Analogue Enforcement Act of
                   1986, in which all of the relevant provisions were placed into
                   the same portion of federal law that contained the
                   prohibitions on possession and sale of controlled substances,
                   H.B. No. 64 placed the controlled substance analog provisions
                   in R.C. Chapter 3719, separate from the prohibitions and
                   penalties set forth in R.C. Chapter 2925, and failed to
                   incorporate any explicit cross-references in R.C. Chapter 2925
                   to the controlled substance analog provisions. Applying the
                   rule of lenity, which requires the court to construe ambiguity
                   in criminal statutes strictly so as to apply only to conduct that

3   Not the same defendant as in this case.
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No. 16AP-162
               is clearly proscribed, we concluded in Smith that, during the
               period from February through July 2012 when the defendant
               was alleged to have possessed and sold A-PVP, R.C. 2925.03
               and 2925.11 did not adequately state a positive prohibition
               and provide a penalty for violation of such prohibition on the
               sale or possession of controlled substance analogs. Therefore,
               we found the acts defendant was alleged to have committed in
               Smith were not clearly defined as criminal offenses under the
               law as it existed at the time.

Mobarak at ¶ 7.
      {¶ 14} In short, the Revised Code edition that existed prior to December 2012,
though it did define "controlled substance analog," did not make it a crime to possess or
sell controlled substance analogs. Though our reasoning stands on its own based on the
law as it existed prior to December 2012, one clear confirmation of the reliability of our
reasoning is that, when the legislature drafted House Bill No. 334 (which was ultimately
enacted on December 26, 2012) it explained that the bill's purpose was "to create the
offenses of trafficking in and possession of controlled substance analogs." (Emphasis
added.) 2012 Am.Sub.H.B. No. 334.
      {¶ 15} The State notes that the Twelfth District Court of Appeals has now decided
State v. Shalash, 12th Dist. No. CA2014-12-146, 2015-Ohio-3836, which diverted from the
holdings of Smith and its progeny. In considering the State's arguments we also consider
that, in addition to factors already discussed, in Smith, there was a potential vagueness
problem. That is, in Kolender v. Lawson, 461 U.S. 352, 357 (1983), the United States
Supreme Court explained that one requirement for the constitutionality of a penal statute
is that it must define an offense with sufficient definiteness to enable ordinary people to
understand what conduct is prohibited. See also Connally v. Gen. Constr. Co., 269 U.S.
385, 391 (1926).
      {¶ 16} In Smith, the Franklin County Sheriff's Office had conducted the
investigation that led to the charges against the defendant. Yet, the defendant's motions
to dismiss made clear (and the fact was not disputed by the State), that the Columbus
Police Department had also investigated the same conduct of the defendant and had
reached a different conclusion, that the materials sold by the defendant's stores were not
illegal prior to December 2012. Thus, prior to the legislature's enactment "to create the
offenses of trafficking in and possession of controlled substance analogs" in December
                                                                                        8
No. 16AP-162
2012, the Franklin County Sheriff's Office and the Columbus Police Department had
reached diametrically opposite conclusions on whether it was criminal to sell what was
not clearly defined under R.C. Title 29 as "controlled substance analogs" until December
2012. (Emphasis added.) 2012 Am.Sub.H.B. No. 334. Moreover, the Ohio Legislature, by
acting to "create the offense" rather than "clarify" or "modify" the offense in 2012, also
expressed the view that prior to December 2012, it was not a criminal offense to possess
or sell controlled substance analogs. 2012 Am.Sub.H.B. No. 334. Had we decided Smith
differently and somehow held that the definitions in R.C. Title 37 created criminal
liability, there would have been serious question as to how "ordinary people" could have
understood what conduct was prohibited, especially when two law enforcement agencies
for the same general geographical area in the State of Ohio reached different
interpretations in applying the same statutes in whether or not to charge an individual
with a crime. Kolender at 357. The evidence that there existed two diametrically differing
interpretations by competent law enforcement agencies in overlapping political
subdivisions strengthened our conclusion that it was not a crime until after the enactment
of 2012 Am.Sub.H.B. No. 334.
       {¶ 17} Additionally, the Twelfth District Court of Appeals simply held without
explanation that the law prior to 2012 unambiguously made it a crime to possess and sell
controlled substance analogs and that, therefore, no construction or interpretation was
needed. Shalash at ¶ 23-28. With due respect, this analysis put the proverbial cart before
the horse. More analysis was needed, at the very least to explain how under R.C. 2901.04
it conducted a strict construction analysis of the laws applied to charge Shalash with a
crime and how it liberally construed the laws in favor of Shalash as the accused.
       {¶ 18} The Twelfth District Court of Appeals in Shalash also did not explore or
reason why the numerous ambiguities we have noted in our prior decisions comparing the
"before" and "after" statutory schemes are in error. Id. For example, although the Shalash
court quoted R.C. 3719.013 as purporting to define controlled substance analogs as
Schedule I substances for the purposes of "any provision of the Revised Code," the court
in that district did not discuss how this language could be squared with how "Schedule I"
as defined at that time referenced only R.C. 3719.01, 3719.41, 3719.43, and 3719.44(as all
defining the contents of "Schedule I") but did not mention R.C. 3719.013. Nor did the
                                                                                           9
No. 16AP-162
court in Shalash address the fact that R.C. 3719.013, which purported to place controlled
substance analogs on Schedule I, potentially conflicted with R.C. 3719.01(HH)(2)(a),
which plainly provided that "[c]ontrolled substance analog" does not include "[a]
controlled substance." The court in Shalash also did not discuss the ambiguity between
R.C. 3719.013's any purposes language and the fact that "R.C. 3719.01 expressly limits the
definitions contained therein, including the definition of 'controlled substance analog'
under R.C. 3719.01(HH), to '[a]s used in this chapter'—i.e., Chapter 3719 of the Revised
Code." See Mobarak at ¶ 7. Finally, the Shalash court did not discuss how it could already
be a crime to possess or traffic in controlled substance analogs when the legislature (long
before Smith first drew attention to the clarity issues of the statutory scheme then in
existence) thereafter acted to "create the offenses of trafficking in and possession of
controlled substance analogs." (Emphasis added.) 2012 Am.Sub.H.B. No. 334.
       {¶ 19} When a statute instructs us on how the legislature requires certain laws to
be interpreted, we must follow such interpretive laws. We cannot choose our own method
of statutory construction of whether a statute prescribes criminal offenses or penalties
when there exists R.C. 2901.04. Because that section speaks to statutory construction of
criminal offenses and penalties, we cannot unilaterally declare a statute to be
unambiguous without first undertaking analysis by which we strictly construe sections of
the law defining offenses or penalties against the State and liberally construe them in
favor of the accused. R.C. 2901.04(A). Where there exists ambiguity in the definition of a
criminal offense, we must construe its application in favor of the accused and against the
State. Id. We have previously done so in cases such as Smith and Mobarak, and we
continue to follow this charge by finding that the crimes with which this Mobarak have
been charged did not exist at the time he was alleged to have committed them.
       {¶ 20} The State finally notes that the United States Supreme Court recently
decided a case discussing federal statute, 21 U.S.C. 813, which provides that controlled
substance analogs are to be treated "for the purposes of any Federal law as a controlled
substance in schedule I." 21 U.S.C. 813; McFadden v. United States, _ U.S. _, 135 S.Ct.
2298 (2015). This, argues the State, shows that R.C. 3719.013's language was sufficient to
make possession and sale of controlled substance analogs criminal in Ohio also.
However, R.C. 3719.013 is not a part of R.C. Title 29, nor did R.C. Title 29 reference it. In
                                                                                         10
No. 16AP-162
fact, the definition of "Schedule I" adopted by R.C. Title 29 prior to December 2012
expressly included a number of different statutes which together explained the content of
the drug schedules (R.C. 3719.01, 3719.41, 3719.43, and 3719.44) but did not include R.C.
3719.013.
       {¶ 21} By contrast, even in 2011, when the defendant in McFadden was under
investigation, 8 U.S.C. 813 was in the same title and chapter as the positive prohibition on
drug possession and sale. Compare 21 U.S.C. 813 with 21 U.S.C. 841. Moreover, section
841, which contains the prohibition on possession and sale, specifically mentions
controlled substance analogs, and it did so in 2011 as well. 21 U.S.C. 841(b)(7). Despite
the existence of similar language in R.C. 3719.013 and 21 U.S.C. 813, the Ohio Revised
Code and the United States Code differ. The Ohio Revised Code (as it existed before
December 2012) presented a number of ambiguities concerning controlled substance
analogs and their inclusion in the criminal code that were not and are not present in
federal law. Even if the United States Code was unambiguous in its prohibition of
controlled substance analogs in 2011, the Ohio Revised Code was not. Moreover, we have
previously explained why McFadden, which was not a direct challenge to the clarity of the
federal scheme, but rather, concerned a question about scienter, is distinguishable.

               [T]he United States Supreme Court in McFadden was not
               asked to directly interpret the 'shall be treated' language in the
               Controlled Substance Analogue Enforcement Act of 1986. The
               issue before the United States Supreme Court concerned the
               knowledge necessary for conviction under the Controlled
               Substances Act ("CSA") when the controlled substance at
               issue is an analog. The United States Supreme Court merely
               assumed that the analog was included as a controlled
               substance for purposes of interpreting the mens rea
               requirement in the CSA. Therefore, we do not find that
               McFadden demands a different result in the present case.

Mobarak at ¶ 10.
       {¶ 22} The State's sole assignment of error is overruled.
IV. CONCLUSION
       {¶ 23} Based on our precedent and the reasoning expressed herein, we again hold
that prior to December 26, 2012 it was not a criminal act to posses or sell controlled
                                                                                          11
No. 16AP-162
substance analogs in Ohio. The State's sole assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.
                             TYACK , J., concurs.
                   LUPER SCHUSTER, J., concurs in judgment only.


LUPER SCHUSTER, J., concurring in judgment only.

       {¶ 24} I concur in judgment only because while I agree with the majority that the
trial court decision should be affirmed, I would do so based solely on the precedent of this
court in State v. Smith, 10th Dist. No. 14AP-154, 2014-Ohio-5303.
