[Cite as State v. Mustafa, 2015-Ohio-5370.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellant,            :
                                                                   No. 15AP-465
v.                                               :            (C.P.C. No. 13CR-0537)

Edreese Mustafa,                                 :          (REGULAR CALENDAR)

                 Defendant-Appellee.             :

State of Ohio,                                   :

                 Plaintiff-Appellant,            :

v.                                               :                 No. 15AP-466
                                                              (C.P.C. No. 13CR-0536)
Mohammad Mustafa,                                :
                                                            (REGULAR CALENDAR)
                 Defendant-Appellee.             :

                                              DECISION

                                   Rendered on December 22, 2015


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellant.

                 McNamara Law Office, Dennis W. McNamara, and Colin E.
                 McNamee, for appellee.

                  APPEALS from the Franklin County Court of Common Pleas


HORTON, J.
        {¶ 1} Plaintiff-appellant, State of Ohio ("the state") appeals from a judgment of
the Franklin County Court of Common Pleas granting a motion to dismiss the charges and
indictments against defendants-appellees, Edreese Mustafa and Mohammad Mustafa
Nos. 15AP-465 and 15AP-466                                                                 2


("appellees"). Because Ohio law did not clearly define the acts alleged in the indictments
as crimes at the times set forth in the indictments, we affirm.
       {¶ 2} The appellees were indicted for trafficking and possessing bath salts from
their business "The Smoke Shop." In a five count indictment, Mohammad Mustafa was
indicted on two counts of trafficking in spice (Counts 1 and 2), one count of aggravated
trafficking as a fourth-degree felony (Count 3), one count of aggravated trafficking as a
first-degree felony (Count 4), and one count of aggravated possession as a first-degree
felony (Count 5).
       {¶ 3} Counts 1 and 2 alleged that on February 8 and 15, 2012, Mohammad
Mustafa knowingly sold or offered to sell a controlled substance included in Schedule I, to
wit: AM2201, which is an analog controlled substance as defined in R.C. 3719.01,
commonly known as spice.
       {¶ 4} Count 3 alleged that on February 15, 2012, Mohammad Mustafa did
knowingly sell or offer to sell a controlled substance included in Schedule I, to wit: a-PVP,
which is an analog controlled substance as defined in R.C. 3719.01, commonly known as
bath salts.
       {¶ 5} Count 4 alleged that on May 2, 2012, Mohammad Mustafa did knowingly
prepare for shipment, ship, transport, deliver, prepare for distribution or distribute a
controlled substance included in Schedule I, to wit: a-PVP, which is an analog controlled
substance as defined in R.C. 3719.01, commonly known as bath salts, in an amount equal
to or exceeding 50 times the bulk amount but less than 100 times the bulk amount.
       {¶ 6} Count 5 alleged that on May 2, 2012, Mohammad Mustafa did knowingly
obtain, possess or use a controlled substance included in Schedule I, to wit: a-PVP which
is an analog controlled substance as defined in R.C. 3719.01, commonly known as bath
salts, in an amount equal to or exceeding 50 times the bulk amount but less than 100
times the bulk amount.
       {¶ 7} Edreese Mustafa was indicted as a co-defendant on Counts 2, 3, 4, and 5.
       {¶ 8} The appellees filed motions to dismiss contending it was not a crime at the
times in question to traffic or possess AM2201 and a-PVP as controlled substance analogs.
The state opposed the motions. The trial court granted the motions based on this court's
earlier decision in State v. Smith, 10th Dist. No. 14AP-154, 2014-Ohio-5303, in which this
Nos. 15AP-465 and 15AP-466                                                                3


court held that in the time period from February 8 to July 25, 2012, R.C. 2925.03 and
2925.11, statutes prohibiting the sale, distribution and possession of controlled
substances, did not adequately state a positive prohibition on the sale or possession of
controlled substance analogs.
       {¶ 9} Smith was followed by State v. Mohammad, 10th Dist. No. 14AP-662, 2015-
Ohio-1234, in which another panel of this court held that the statutory definition of
controlled substance in R.C. 2925.01 did not include or expressly incorporate the
definition of a controlled substance analog prior to December 2012, and therefore the trial
court properly dismissed a charge relating to possession of bath salts. Mohammad was
followed by State v. Mobarak, 10th Dist. No. 14AP-517, 2015-Ohio-3007, in which
another panel of this court held that possession and trafficking of controlled substance
analogs had not yet been criminalized as of the time of the offenses charged in the
indictment.
       {¶ 10} The state is appealing for the fourth time on the same issue, assigning as
error the following:
              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.

       {¶ 11} Once again, the state reiterates that R.C. 3719.013 (effective October, 2011),
required that analogs be treated as Schedule I controlled substances for purposes of any
provision in the Revised Code. The state contends that this language criminalized
possession and trafficking in analogs prior to December of 2012.
       {¶ 12} In December of 2012, the General Assembly amended R.C. 2925.03 and
2925.11, to insert controlled substance analog language into the trafficking and possession
statutes. The General Assembly also amended R.C. 3719.013 to cross-reference the
offenses of trafficking and possession of controlled substance analogs.
       {¶ 13} In Ohio, no conduct constitutes a criminal offense against the state unless it
is defined in the Revised Code. R.C. 2901.03(A). In order for certain conduct to constitute
an offense, one or more sections of the Revised Code must state a positive prohibition or
Nos. 15AP-465 and 15AP-466                                                               4


enjoin a specific duty, and the Revised Code must provide a penalty for violation of such
prohibition or failure to meet such duty. R.C. 2901.03(B). At the time the appellees
committed the offenses alleged in the indictment, the relevant statutes did not contain the
term "controlled substance analogs." Former R.C. 2925.03 and 2925.11 did not adequately
state a positive prohibition on the sale or possession of controlled substance analogs.
Smith at ¶ 12; Mohammad at ¶ 8, 13; Mobarak at ¶ 9.
      {¶ 14} This court's prior decisions in Smith, Mohammad, and Mobarak determine
the outcome of this appeal. We are aware that the Twelfth District Court of Appeals has
disagreed with our reading of the statutes. State v. Shalash, 12th Dist. No. CA2014-12-
146, 2015-Ohio-3836. However, for all the reasons discussed in our three previous
decisions, we disagree with the analysis of the Shalash court and continue to adhere to
our precedent.
      {¶ 15} The single assignment of error is overruled, and the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.


                         BROWN, P.J. and SADLER, J., concur.
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