[Cite as State v. Cook, 2020-Ohio-432.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 5-19-26

        v.

MATTHEW G. COOK,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2018 CR 00125

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: February 10, 2020




APPEARANCES:

        Brian A. Smith for Appellant

        Lora L. Manon for Appellee
Case No. 5-19-26


SHAW, P.J.

           {¶1} Defendant-appellant, Matthew G. Cook (“Cook”), brings this appeal

from the July 24, 2019, judgment of the Hancock County Common Pleas Court

sentencing him to twenty-four months in prison after Cook pled no contest to, and

was convicted of, Aggravated Possession of Drugs in violation of R.C. 2925.11(A),

a felony of the third degree, and Possession of Marijuana in violation of R.C.

2925.11(A), a felony of the fifth degree. On appeal, Cook argues that the trial court

erred by overruling his suppression motion, and that the trial court erred by

declining to waive a mandatory fine.

                                                Background

           {¶2} On or about August 22, 2017, Cook posted pictures on Facebook of a

gloved hand holding palm-sized suspected “Psilocyn” mushrooms. There was a

written post accompanying the pictures that stated, “I’m probably gonna catch a lot

of shit for this, but I’m doing this to prove a point because I have faith, and I

understand my purpose.”1 (State’s Ex. 4).

           {¶3} At the time of the posting, Cook was on post-release control for an

unrelated crime, subjecting him to warrantless searches. Officer Benjamin Bowers

of the Adult Parole Authority monitored Cook’s Facebook page and observed the

post related to mushrooms. Afterward, Officer Bowers went to Cook’s residence



1
    The post continued, quoting various bible verses.

                                                        -2-
Case No. 5-19-26


with the intention of searching for illegal, psychedelic mushrooms. On the way over

to Cook’s residence, Officer Bowers called for assistance with the search.

       {¶4} At Cook’s residence, Officer Bowers asked Cook where the mushrooms

were and Cook directed him toward a bedroom at the rear of the residence. When

he reached the door, Officer Bowers observed a sign posted on the door stating,

“Stop!! Do Not Enter!! Property of the Church of Life Protected Under the 1st

Amendment[.] [S]ervant of the Church only!!” (State’s Ex. 10). Officer Bowers

located what he felt was a significant illegal mushroom manufacturing operation in

Cook’s residence. He then called the Findlay City Police Department for additional

assistance due to fear of airborne spores or other chemicals.

       {¶5} Lieutenant Ryan Doe of the Findlay City Police Department responded

to the scene. He acquired gloves, an oxygen tank, and “booties” from the fire

department, which had also responded due to potential hazmat issues. Lieutenant

Doe then searched Cook’s residence more thoroughly while wearing a self-

contained breathing apparatus.

       {¶6} Lieutenant Doe found mushrooms in various states of cultivation

throughout the house and in a detached garage. Lieutenant Doe also found various

components for growing mushrooms such as chemicals in the kitchen refrigerator

and fertilizer in a separate refrigerator in the detached garage. In addition, he located

a dehydrator with drying mushrooms in the garage. The dehydrator contained a


                                          -3-
Case No. 5-19-26


“warning” that it was “protected” under the First Amendment, as did the

refrigerator, which stated “Do Not Enter!! Protected under the 1st Amendment &

Religious Freedom Restoration Act 1993.” (State’s Ex. 17).

           {¶7} In one of the bedrooms Lieutenant Doe found two pressure cookers,

mason jars, and numerous plastic “totes of mushrooms growing inside.”2                               In

addition to illegal mushrooms, Lieutenant Doe discovered marijuana in three

separate locations in the residence.

           {¶8} The scene was photographed and the evidence was collected. Cook

made statements at the scene that the officers were violating his First Amendment

rights, and that the mushrooms were part of his religion.

           {¶9} On April 10, 2018, Cook was indicted for Illegal Manufacture of Drugs,

specifically Psilocyn, a Schedule I controlled substance, in violation of R.C.

2925.04(A), a felony of the second degree, Aggravated Possession of Drugs,

specifically Psilocyn, in violation of R.C. 2925.11(A), a felony of the third degree,

and Possession of Marijuana in violation of R.C. 2925.11(A), a felony of the fifth

degree.

           {¶10} On May 14, 2018, Cook, acting pro se at the time, filed a motion to

dismiss the indictment arguing that the indictment violated his religious rights. He

also filed a separate motion to suppress on that same date, arguing the evidence was



2
    A separate officer actually testified to the terminology of “totes of mushrooms.” (Tr. at 82).

                                                       -4-
Case No. 5-19-26


collected in violation of numerous rights, including his religious rights. Cook

contended, inter alia, that he used mushrooms and marijuana for religious purposes

and thus they were protected under the First Amendment.            An attorney was

subsequently appointed for Cook as he was indigent, and Cook pled not guilty to

the charges.

       {¶11} On August 7, 2018, the State filed a response to Cook’s motion to

dismiss and his suppression motion, arguing that Cook’s “religious” beliefs were

not sincerely held and that, in any event, there was a compelling government interest

in criminalizing the manufacture and possession of Psilocyn. The State

supplemented its response on September 28, 2018.

       {¶12} A hearing was held on the suppression motion/motion to dismiss on

August 15, 2018, August 27, 2018, and October 1, 2018. After the hearing

concluded, the matter was submitted to the trial court for a decision.

       {¶13} On January 16, 2019, the trial court filed a thorough written decision

denying Cook’s motions. (Doc. No. 360.) The trial court found that there was

absolutely no basis for dismissal of the indictment as it was not defective. The trial

court then proceeded to analyze Cook’s religious freedom arguments related to

suppression of the evidence, finding that Cook’s “beliefs as to his consumption of

psychedelic mushrooms [wa]s an attempt to justify his otherwise illegal actions.”

(Doc. No. 36).


                                         -5-
Case No. 5-19-26


       {¶14} The trial court determined that while Cook’s faith may have been

sincere, “the right to the free exercise of religious practices must give way to

legitimate state regulatory interests.” (Id.) The trial court found that the regulatory

interests of the state outweighed Cook’s interest in “heighten[ing] his abilities to

introspect and reach deeper insights.” (Id.) The trial court reasoned that psilocybin

mushrooms have dangerous properties and as a Schedule I controlled substance they

had no medical value. In addition, the trial court found that other religious sects

have practiced other forms of “less self-destructive behavior such as prayer or

meditation in an effort to reach enlightenment.” (Id.)

       {¶15} After his initial suppression motion and motion to dismiss were

denied, Cook filed a second suppression motion/motion to dismiss, citing federal

authority related to the “Religious Land Use and Institutionalized Persons Act of

2000”, 42 USC 2000cc-1(a)(1)-(3). The trial court conducted a brief hearing on the

motion on June 24, 2019, finding that the newly cited authority was wholly

irrelevant to this matter and did not merit suppression.

       {¶16} On July 12, 2019, Cook filed yet another pro se motion to suppress,

rehashing arguments he had made previously. On July 15, 2019, the state filed a

memorandum in response.

       {¶17} On July 15, 2019, a hearing was held. At the inception of the hearing,

the trial court found that Cook’s newest suppression motion was untimely, that it


                                         -6-
Case No. 5-19-26


was improperly filed since Cook was represented by counsel and he did not present

it through counsel, and that the motion was merely a retread of prior arguments.

         {¶18} Subsequently the parties indicated to the trial court that they had

reached a plea agreement wherein Cook would plead no contest to all of the charges

in the indictment and in exchange the state would agree that the Illegal

Manufacturing and Aggravated Possession of Psilocyn charges were allied offenses

of similar import, that they merged for the purposes of sentencing, and that the state

would elect to proceed to sentencing on the lower, third degree felony of Aggravated

Possession. The state also agreed to recommend a twenty-four month prison term.

The agreement was reduced to writing, and was signed by the parties and the trial

court.

         {¶19} The trial court conducted a Crim.R. 11 colloquy with Cook, wherein

Cook entered no contest pleas pursuant to the plea agreement. After questioning

Cook, the trial court found that Cook’s pleas were knowing, voluntary, and

intelligent. The trial court accepted Cook’s pleas and found him guilty.

         {¶20} The matter proceeded directly to sentencing. The trial court found that

the Illegal Manufacturing and the Aggravated Possession charges merged for

purposes of sentencing, the state elected to proceed on the Aggravated Possession

charge, and Cook was sentenced to serve twenty-four months in prison on that third

degree felony. Cook was ordered to serve eleven months in prison on the Possession


                                          -7-
Case No. 5-19-26


of Marijuana conviction, concurrent with his other prison term. The trial court also

imposed the mandatory minimum fine of $5,000 for the Aggravated Possession

charge; however, Cook requested that the fine be waived and the trial court stated

that it would consider a written motion on the matter.

       {¶21} On July 16, 2019, Cook filed a written motion to waive the mandatory

fine pursuant to R.C. 2929.18(B)(1), arguing that he was indigent.

       {¶22} On July 16, 2019, the trial court filed an order granting Cook’s motion

to waive the mandatory fine. (Doc. No. 64).

       {¶23} On July 24, 2019, the trial court filed its judgment entry memorializing

Cook’s convictions and sentence. However, in the entry, the trial court stated that

Cook would be assessed the mandatory fine of $5,000 despite the trial court’s prior

contrary order. Cook now brings this appeal, asserting the following assignments

of error for our review.

                            Assignment of Error No. 1
       Because the trial court erred in finding that the State’s interest in
       regulating Appellant’s use of controlled substances outweighed
       Appellant’s right to the free exercise of his religion, the trial court
       erred in denying Appellant’s Motion to Suppress, in violation of
       Article I, Sections 7 and 14 of the Ohio Constitution and the First
       and Fourteenth Amendments to the United States Constitution.

                          Assignment of Error No. 2
       Because the trial court did not properly weigh Appellant’s
       indigency in determining whether to waive the mandatory fine
       imposed under R.C. 2929.18(B)(1), Appellant’s sentence was not
       supported by the record.


                                        -8-
Case No. 5-19-26


                              First Assignment of Error

       {¶24} In his first assignment of error, Cook argues that the trial court erred

by denying his suppression motion(s). Specifically, he contends that he had sincere

religious beliefs, that the use of Psilocyn mushrooms and marijuana were central to

his religious practices, and that the State’s restriction of the use of these substances

“encroached” on his religious beliefs. (Appt.’s Br. at 12).

                                   Standard of Review

       {¶25} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–

Ohio–5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier

of fact and, as such, is in the best position to evaluate the evidence and the credibility

of witnesses. Id. citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). When

reviewing a motion to suppress, “an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Burnside at

¶ 8 citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). With respect

to the trial court’s conclusions of law, however, our standard of review is de novo,

and we must independently determine whether the facts satisfy the applicable legal

standard. Id. citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th

Dist.1997).




                                           -9-
Case No. 5-19-26


                                       Analysis

       {¶26} The United States Constitution states that “Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercise

thereof[.]” Section 7, Article I of the Ohio Constitution provides that “[a]ll men

have a natural and indefeasible right to worship Almighty God according to the

dictates of their own conscience.”

       {¶27} The Supreme Court of Ohio has determined that the Ohio

Constitution’s Free Exercise Clause “goes beyond that provided by the federal

Constitution’s Free Exercise Clause.” State v. Mole, 149 Ohio St.3d 215, 2016-

Ohio-5124, ¶ 84, citing Humphrey v. Lane, 89 Ohio St.3d 62, 67, 2000-Ohio-435.

The Supreme Court of Ohio has held that pursuant to Section 7, Article I of the Ohio

Constitution, “the standard for reviewing a generally applicable, religion-neutral

state regulation that allegedly violates a person’s right to free exercise of religion is

whether the regulation serves a compelling state interest and is the least restrictive

means of furthering that interest.” Humphrey at syllabus.

       {¶28} Before we determine whether a regulation serves a compelling state

interest through the least restrictive means, a defendant must establish a prima facie

free exercise claim. In order to “state a prima facie free exercise claim, the

[defendant] must show that his religious beliefs are truly held and that the

governmental enactment has a coercive affect against him in his practice of his


                                          -10-
Case No. 5-19-26


religion.” Humphrey at 68, citing State v. Whisner, 47 Ohio St.2d 181, 200 (1976).

If the defendant makes this prima facie showing, then the burden shifts to the State

to prove that the regulation furthers a compelling state interest. Id. at 69. Once that

“aspect has been satisfied, the state must prove that its regulation is the least

restrictive means available of furthering that state interest.” Id.

       {¶29} In this case, the trial court held a suppression hearing over multiple

dates wherein Cook presented his free exercise claim. At the hearing, Cook testified

regarding his “religious” beliefs. He stated that his religion was “Shamanism.” (Tr.

at 10). He then described Shamanism’s main purpose as “spiritual healing” starting

with the “self.” (Id. at 11). “The whole purpose is a sole journey to [] discover who

you really are.” (Id.) Cook indicated that his purpose in Shamanism was to rid

himself of all his negative energy and heal himself so he could make himself a better

person to make the world a better place. (Id.) Cook testified that he studied the

Bible, the Quran, and the Torah, and many other religious texts.

       {¶30} Cook testified that he began practicing Shamanism at seventeen when

he “met God” on a bad LSD “trip” and God set the path before him. Cook was

thirty-six at the time of the hearing. He testified that he attempted to share his beliefs

through Facebook primarily. He also indicated that he had become a minister

through an online process.




                                          -11-
Case No. 5-19-26


       {¶31} When asked if he had a “worship service,” Cook testified that it was a

“personal” service wherein he would take mushrooms and meditate “on basically

everything.” (Id.) He indicated that he wanted to “bring out all the things that don’t

need to be there that are interfering with [his] life, that way once [he is] free of those

[he] can live in line of God[.]” (Id.)

       {¶32} Cook further clarified, stating that he had studied every form of

religion “to fully understand what it means to love, to serve, to honor, to respect, to

not judge people[.]” (Tr. at 12). He stated that he modeled himself after Jesus,

Buddha, Krishna, and all forms of religions. Cook testified that his ancestors were

Shamans, though he admitted he was raised Catholic. He stated that his religion

was not just an “every Sunday thing” it was a “24-hour thing.” (Id. at 13).

       {¶33} Nevertheless, Cook stated that he would hold an “observance” once a

week for Jesus and all the other masters that had come before him. At that time, a

Saturday night or Sunday, he would take four grams of mushrooms and “smoke a

joint” to intensify and open his mind. He indicated that on Easter he would take the

mushrooms and watch Passion of the Christ.

       {¶34} Cook testified that he practiced at home with nobody around while

others were sleeping. He testified that he did not distribute any drugs, and that he

was currently the only member of the church that he wants to build. Cook stated

that Christmas, Easter, the solstices and full moons were holidays to him.


                                          -12-
Case No. 5-19-26


       {¶35} As to the mushrooms and marijuana specifically, Cook stated that he

used them to reach a higher state of consciousness and to “break [him]self free of

old patterns and behaviors.” (Tr. at 19). He testified that the hallucinogens heal

him by communicating with God. He also indicated that he smoked marijuana daily

because it helped keep his mood stable and it focused his manic states.

       {¶36} Cook admitted that he was listed as the CEO for a company he started

called “Limitless Existence.” He stated that “Limitless Existence” would be a

gourmet mushroom company, but not for psychedelics.

       {¶37} The trial court pressed Cook regarding his beliefs, stating that his use

of the hallucinogens sounded more like a rehabilitation practice than a religion, but

Cook stated that healing was the purpose of Shamanism. The trial court also pressed

cook stating that other religions achieved enlightenment without hallucinogens.

Cook responded by stating that he was a “narcissistic sociopath with psychotic

behavior and mood swings.” (Tr. at 50). Cook testified that he needed the

hallucinogens to slow down his mind.

       {¶38} Additional testimony was presented at the suppression hearings from

various officers. Some indicated that Cook spoke during the search of his house

regarding using the mushrooms for religious purposes. One officer testified that he

searched for Cook on a database of registered ministers but did not find him.




                                        -13-
Case No. 5-19-26


       {¶39} Following the hearing, the trial court summarized and analyzed the

evidence presented in its entry on the matter. As to Cook’s arguments regarding

marijuana being religiously protected, the trial court began by noting that case

authority did not support Cook’s claim that marijuana was religiously protected and

the trial court declined to extend the law.

       {¶40} Regarding Cook’s claims related to mushrooms, the trial court began

by analyzing whether Cook could state a prima facie free exercise claim by

establishing that his religious beliefs were truly held and whether the governmental

enactment had a coercive affect against him in his religious practice. The trial court

found that Cook’s beliefs, while “outside the religious mainstream”, were sincerely

held. Nevertheless, the trial court found that other religious sects had practiced less

self-destructive behavior to reach enlightenment. Thus it would seem that while the

trial court found that Cook’s beliefs were sincerely held, there may not have been a

coercive impact on his religious practice. Regardless, the trial court found that there

was a compelling government interest in regulating the drugs at issue and that on

balance, the regulatory interest of the state outweighed Cook’s, particularly given

the drug’s status as a Schedule I controlled substance.

       {¶41} To determine the “sincerity” of a defendant’s religious beliefs, the test

is “whether a given belief * * * occupies a place in the life of its possessor parallel

to that filled by the orthodox belief in God[.]” United States v. Seeger, 380 U.S.


                                         -14-
Case No. 5-19-26


163, 166, 85 S.Ct. 850 (1965). It is more than a personal or philosophical belief.

Cook’s beliefs would seem to fall under a personal belief system and his use of

hallucinogens and involvement with mushrooms did seem more for rehabilitation

than religion. In addition, we agree with the trial court’s statement that meditation

or prayer might be other options for him to practice, thus the law regarding

psychedelic mushrooms would not actually be restricting Cook’s beliefs. However,

despite our reservations, we will defer to the trial court’s finding that Cook’s beliefs

were sincerely held given the trial court’s opportunity to interact with him on

numerous occasions.

       {¶42} Even assuming that Cook’s “religious” beliefs are sincerely held, and

even assuming that the law restricts his practice, there is certainly a compelling state

interest in regulating the use of Schedule I controlled substances. Moreover, the

drug laws are facially religion-neutral, and do not target any specific sect of any

religion. Thus we find that they are narrowly tailored. See Trujillo v. Wyoming, 2

P.3d 567, 577 (2000) (finding that neutral drug law of general applicability did not

violate religious beliefs regarding use of mushrooms). For these reasons we cannot

find that the trial court erred in overruling Cook’s suppression motions.

       {¶43} To the extent that Cook argues in his brief that his drug possession

should be religiously protected under the federal constitution, we have already

analyzed the matter under the more stringent state standard. Therefore the result


                                         -15-
Case No. 5-19-26


would be the same and any arguments under the federal constitution are not well-

taken.3 For all of these reasons, Cook’s first assignment of error is overruled.

                                   Second Assignment of Error

         {¶44} In Cook’s second assignment of error, he argues that the trial court

erred by declining to waive a mandatory fine in this matter.

         {¶45} Revised Code 2929.18(B)(1) provides authority for a trial court to

waive a mandatory fine. It reads as follows.

         (B)(1) For a first, second, or third degree felony violation of any
         provision of Chapter 2925., 3719., or 4729. of the Revised Code,
         the sentencing court shall impose upon the offender a mandatory
         fine of at least one-half of, but not more than, the maximum
         statutory fine amount authorized for the level of the offense
         pursuant to division (A)(3) of this section. If an offender alleges in
         an affidavit filed with the court prior to sentencing that the
         offender is indigent and unable to pay the mandatory fine and if
         the court determines the offender is an indigent person and is
         unable to pay the mandatory fine described in this division, the
         court shall not impose the mandatory fine upon the offender.

         {¶46} In this case, at the sentencing hearing, Cook requested that the

mandatory $5,000 fine be waived for his Aggravated Possession conviction. The

trial court stated that it would consider a written motion if one was filed, but at the

time of the sentencing hearing a written motion had not been filed so the trial court

imposed the fine.



3
 In addition, we find, as the trial court did, that any arguments based on the Religious Freedom Restoration
Act of 1993 are unavailing here. Notably, perhaps accepting this, Cook does not make any RFRA arguments
on appeal as he did to the trial court.

                                                   -16-
Case No. 5-19-26


       {¶47} The day after the sentencing hearing, prior to a judgment entry being

filed, Cook filed a written request to have his fine waived pursuant to R.C.

2929.18(B)(1). He alleged that he was indigent.

       {¶48} The very next day the trial court filed an “ORDER” stating “After

review and upon due consideration this Court finds said Motion to Waive

Mandatory Fine to be well-taken and therefore grants the same.” (Doc. No. 64).

       {¶49} Despite granting Cook’s request, the trial court’s final judgment entry,

which was filed just over a week later, imposed the $5,000 fine on Cook. The trial

court has thus issued inconsistent judgments on the matter. It is unclear if the trial

court reconsidered its prior order, or if the inclusion of the fine in the judgment entry

was oversight. Therefore we reverse this matter for the limited purpose of the trial

court clarifying whether a fine should actually be imposed as part of the sentence in

this case. Accordingly, Cook’s second assignment of error is sustained.

                                      Conclusion

       {¶50} For the foregoing reasons the judgment of the Hancock County

Common Pleas Court is affirmed in part, and reversed in part. This cause is

remanded to the trial court for limited further proceedings consistent with this

opinion.

                                                          Judgment Affirmed in Part
                                                              Reversed in Part, and
                                                                  Cause Remanded
PRESTON and ZIMMERMAN, J.J., concur.

                                          -17-
