[Cite as State v. Poutney, 2016-Ohio-4866.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103686



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 MARK H. POUNTNEY
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-595264-A

        BEFORE: Boyle, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: July 7, 2016
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 200
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jeffrey Michael Heller
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

      {¶1} Defendant-appellant, Mark Pountney, appeals his conviction. He raises

one assignment of error for our review:

      The state presented insufficient evidence to prove that appellant possessed
      more than five times the bulk amount of the controlled substance fentanyl.

      {¶2} Finding merit to his appeal, we reverse the trial court’s judgment and

remand.

I. Procedural History and Factual Background

      {¶3} In May 2015, Pountney was indicted on five counts: two counts of theft in

violation of R.C. 2913.02(A)(1), one count of identity fraud in violation of R.C.

2913.49(B)(1), with a furthermore clause that the victim was elderly or disabled, and two

counts of drug possession in violation of R.C. 2925.11(A) (possessing between 5 and 50

times the bulk amount of fentanyl and possessing less than the bulk amount of

acetaminophen with codeine).     Pountney waived his right to a jury trial, and the case

proceeded to the bench.

      {¶4} Prior to trial, Pountney stipulated to the allegations in Counts 1, 2, 3, and 5

(the theft counts, identity fraud, and drug possession involving acetaminophen with

codeine). Pountney also stipulated to part of Count 4. Specifically, regarding Count 4,

Pountney stipulated that he knowingly obtained fentanyl, a schedule II drug, and that the

amount obtained was ten three-day patches at 50 micrograms per hour of fentanyl per

patch. But he disputed that the patches amounted to a “bulk amount” of fentanyl or

“some multiple of the bulk amount.”       The case proceeded to a bench trial on the state’s
proof regarding the “bulk amount” of fentanyl.

       {¶5} At the close of the state’s case, the trial court found Pountney guilty of

possessing five times the bulk amount of fentanyl as charged in Count 4. The trial court

also found Pountney guilty of theft and aggravated theft as charged in Counts 1 and 2;

guilty of identity fraud as charged in Count 3; and guilty of drug possession as charged in

Count 5, because Pountney had stipulated to the charges prior to trial.

       {¶6} At sentencing, the trial court merged several of the offenses as the parties

stipulated. The trial court merged Counts 1 and 4, and Counts 2 and 5. The trial court

then merged Counts 2 and 5 into Count 1, but did not merge Count 3 with any other

offense. The state elected to proceed on Count 4, possession of five times the bulk

amount of fentanyl.

       {¶7} The trial court sentenced Pountney to three years in prison on Count 4, and

18 months on Count 3, to be served concurrent to each other.      The trial court imposed a

fine of $7,500 and notified Pountney that he would be subject to three years of mandatory

postrelease control upon his release from prison. It is from this judgment that Pountney

appeals.

II. Sufficiency of the Evidence

       {¶8} Pountney stipulated to possessing ten patches of fentanyl containing 50

micrograms of fentanyl per hour. The trial court found that Pountney possessed between

5 and 50 times the “bulk amount” of fentanyl, which makes the offense a second-degree

felony. R.C. 2925.11(C)(1)(c). In his sole assignment of error, Pountney argues the
state failed to present sufficient evidence that he possessed the requisite “bulk amount” of

fentanyl.

       {¶9} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black’s Law Dictionary 1433 (6th

Ed.1990). When an appellate court reviews a record upon a sufficiency challenge, “the

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶10} R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess,

or use a controlled substance or a controlled substance analog.”    Fentanyl is a schedule

II controlled substance. R.C. 3719.41 SCHEDULE II (B)(9).

       {¶11} Under R.C. 2925.11(C)(1)

       If the drug involved in the violation is a compound, mixture, preparation, or
       substance included in schedule I or II, with the exception of marihuana,
       cocaine, L.S.D., heroin, hashish, and controlled substance analogs, whoever
       violates division (A) of this section is guilty of aggravated possession of
       drugs. The penalty for the offense shall be determined as follows:

       (a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e) of
       this section, aggravated possession of drugs is a felony of the fifth degree,
       and division (B) of section 2929.13 of the Revised Code applies in
       determining whether to impose a prison term on the offender.

       ***
          (c) If the amount of the drug involved equals or exceeds five times the
          bulk amount but is less than fifty times the bulk amount, aggravated
          possession of drugs is a felony of the second degree, and the court shall
          impose as a mandatory prison term one of the prison terms prescribed for a
          felony of the second degree.

          {¶12} Pountney challenges the state’s evidence regarding “bulk amount,” not that

he possessed between “five and fifty times” of the “bulk amount” (essentially because if

the state established the “bulk amount,” then it established “five times the bulk amount”).

 Thus, the crux of this appeal is whether the state established the “bulk amount.”

          {¶13} R.C. 2925.01(D)(1)(d) defines the “bulk amount” for a schedule II drug as

“[a]n amount equal to or exceeding twenty grams or five times the maximum daily dose

in the usual dose range specified in a standard pharmaceutical reference manual of a

compound, mixture, preparation, or substance that is or contains any amount of a

schedule II opiate or opium derivative.”    Here, the state sought to prove the bulk amount

solely under “maximum daily dose in the usual dose range.”

          {¶14} In State v. Montgomery, 17 Ohio App.3d 258, 479 N.E.2d 904 (1st

Dist.1984), the court explained that, as a question of fact, “maximum daily dose” must be

proved “(1) by stipulation, (2) by expert testimony as to what a standard pharmaceutical

reference manual prescribes, or (3) by a properly proven copy of the manual itself.” Id.

at 260.

          {¶15} The state presented an expert, Paul Schad, to establish the “maximum daily

dose in the usual dose range” of fentanyl.      Schad was a compliance specialist for the

Ohio State Board of Pharmacy.       Schad wrote an expert report prior to trial, in which he
opined that the “bulk amount” of the fentanyl patches in this case, 50 micrograms per

hour patches, was two patches. In making this determination, Schad stated that he used a

standard pharmaceutical reference manual called the American Hospital Formulary

Service.   He explained that this manual is “a standard pharmaceutical reference used by

pharmacists.”

       {¶16} R.C. 2925.01(M) defines “standard pharmaceutical reference manual” as

“the current edition, with cumulative changes if any, of references that are approved by

the state board of pharmacy.”         The American Hospital Formulary Service Drug

Information (“AHFS”) is a standard pharmaceutical reference approved by the State

Board of Pharmacy. See O.A.C. 4729-11-07.

       {¶17} Schad testified that the “usual dose range” for a specific drug is determined

by referring to a standard pharmaceutical reference. According to Schad, doctors only

prescribe fentanyl patches to patients who are already taking an opiate or are already

“opiate tolerant.” Because of this, the AHFS manual does not contain a “usual dose

range” for fentanyl patches. Schad explained that this is because “the dosing of fentanyl

patches is based on whatever the dose is of the opiate that the patient is currently taking.”

       {¶18} Schad attached to his report what he referred to as a “fentanyl monograph,”

which was from the 2015 AHFS manual. The fentanyl monograph includes a table that

Schad explained contains “conversions from the different opiates to the dosing” of a

fentanyl patch. The table is as follows:

Table 2: Transdermal Fentanyl Dose Based on
Current Oral Opiate Dosage
Daily Dosage of Oral Opiate            Transdermal Fentanyl
(in mg/day)                            (in mcg/hr)

Morphine sulfate
     60 - 134                                  25
     135 - 224                                 50
     225 - 314                                 75
     315 - 404                                100

Oxycodone hydrochloride
      30 - 67                                 25
      67.5 - 112                              50
     112.5 - 157                              75
     157.5 - 202                             100

Codeine phosphate
      150 - 447                               25
      448 - 747                               50
      748 - 1047                              75
     1048 - 1347                             100

Hydromorphone hydrochloride
     8 - 17                                               25
     17.1 - 28                                            50
     28.1 - 39                                            75
     39.1 - 51                                           100

      {¶19} Schad testified that although the AHFS manual does not have a “usual dose

range” for fentanyl, it does for morphine. Schad testified that because fentanyl is a

“prototype” or “derivative” of morphine, he used the “usual dose range” of morphine as

stated in the AHFS manual to obtain the “usual dose range” for fentanyl. Schad said the

“usual dose range” for morphine is 10 to 30 milligrams every four hours. Thus, Schad

explained that the “maximum daily dose” for morphine is the “usual dose range” (30

milligrams every four hours) multiplied by six times per day, which equals 180
milligrams of morphine in a 24-hour period.

         {¶20} Referring to Table 2 in the fentanyl monograph, Schad pointed to the daily

dose of oral morphine sulfate that included the “maximum daily dose in the usual dose

range,” which would fall under the second line, 135 to 224 milligrams of morphine per

day. Schad stated that using Table 2, the conversion of 180 milligrams of oral morphine

to the fentanyl patch would be the 50 micrograms per hour patch. Schad then calculated

the “maximum daily dose” of the fentanyl patch by multiplying 50 micrograms by 24

hours, which he concluded equals 1,200 micrograms in a 24-hour period.

         {¶21} Schad explained that “five times the maximum daily dose” would be the

“maximum daily dose” (1,200 micrograms) multiplied by five, which equals 6,000

micrograms per day.      Schad testified that according to the AHFS manual, each 50

micrograms per hour fentanyl patch contains five milligrams (or 5,000 micrograms) of

fentanyl in the “drug reservoir,” which is released to the patient over a period of three

days. Thus, Schad stated that if “you do the math down to a fraction,” then “five times

the maximum daily dose” would be reached with 1.2 patches.       But because you cannot

divide the patches, it would take two patches to equal “five times the maximum daily

dose.”

         {¶22} Schad further explained that the 2013 controlled substance reference table

attached to his report was published by his organization to provide “bulk amounts” of

fentanyl patches to law enforcement officials and the legal community.    The controlled

substance table states that two patches of a 50 micrograms per hour patch equals the
“bulk amount” of fentanyl.

       {¶23} Schad stated that his opinions were based on a reasonable degree of

scientific certainty, and that to make his findings, he referred to the AHFS manual.

       {¶24} On cross-examination, Schad agreed that if a patient is taking 135 to 180

milligrams per day of an oral opiate, then a doctor will prescribe a 50 micrograms per

hour fentanyl patch as an “initial dose” to the patient.   Schad agreed that according to

the fentanyl monograph in the AHFS manual, the manufacturers of fentanyl patches

consider “the initial dosages of transdermal fentanyl to be conservative estimates.”

Schad further agreed that patients who are prescribed an “initial dose” of transdermal

fentanyl (i.e., wearing a fentanyl patch) can often handle a more potent patch, or even

wear multiple patches, up to 300 micrograms per hour.       But Schad explained that the

true “maximum daily dose” is not the same as the “maximum daily dose in the usual dose

range” to determine the “bulk amount” of a drug.

       {¶25} Schad also admitted on cross-examination that the controlled substance

reference table that is attached to his report is not a standard pharmaceutical reference

manual.

       {¶26} After reviewing Schad’s testimony, we agree with Pountney that the state

failed to establish that he possessed a “bulk amount” of fentanyl. “Bulk amount” is “the

maximum daily dose in the usual dose range specified in a standard pharmaceutical

reference manual.” (Emphasis added.) R.C. 2925.01(D)(1)(d). Schad testified that

there is no “maximum daily dose in the usual dose range” for fentanyl patches in the
standard pharmaceutical reference manual.      R.C. 2925.01(D)(1)(d) explicitly states that

the “maximum daily dose in the usual dose range” is taken directly from what a “standard

pharmaceutical reference manual” specifies it is.    Schad used the AHFS manual, which

is a “standard pharmaceutical reference” manual, to arrive at his opinion.       But Schad

stated that he used the “usual dose range” for morphine to determine the “usual dose

range” for the fentanyl patches.   But R.C. 2925.01(D)(1)(d) does not state that the “usual

dose range” can be determined by using the “usual dose range” of a another drug, even if

the drug at issue is a “prototype” or “derivative” of the other drug that does have a “usual

dose range” specified in the standard pharmaceutical reference manual.

       {¶27} The state argues that this case is analogous to State v. Bange, 4th Dist. Ross

No. 10CA3160, 2011-Ohio-378, where the court held that the state proved the defendant

possessed a bulk amount of oxycodone. But notably in Bange, the expert testified that

the “usual dose range” of oxycodone was specified in the standard pharmaceutical

reference manual.   Here, Schad testified that he used the “usual dose range” of morphine

as specified in the standard pharmaceutical reference manual, not fentanyl’s “usual dose

range” as specified in the standard pharmaceutical reference manual.

       {¶28} The state also argues that this case is distinguishable from State v. Huber,

187 Ohio App.3d 697, 2010-Ohio-2919, 933 N.E.2d 345 (2d Dist.), where the court

found that the state did not prove that the defendant possessed a “bulk amount” of

fentanyl because (1) there were no relevant stipulations, (2) a standard pharmaceutical

manual was not introduced, and (3) no expert testified to what a standard pharmaceutical
reference manual prescribes.     The state contends that an expert did testify in this case as

to what the “bulk amount” of the fentanyl patches was. Although an expert testified in

this case, he did not testify as to what the standard pharmaceutical reference manual

prescribed for the drug at issue.

       {¶29} Accordingly, we sustain Pountney’s sole assignment of error because we

agree that the state failed to prove beyond a reasonable doubt that he possessed the

requisite bulk amount of fentanyl. Thus, Pountney should have been convicted of a

fifth-degree felony drug possession, rather than a second-degree felony drug possession.

R.C. 2925.11(C)(1)(a).

       {¶30} Judgment reversed and the case is remanded with instructions for the trial

court to enter a finding of guilt for Count 4 as a fifth-degree felony drug possession, and

to resentence him accordingly.

       It is ordered that appellant recover from appellee the 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.




MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
