[Cite as State v. Bays, 2013-Ohio-4177.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13-COA-005
LARRY E. BAYS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Case No. 12-CRI-114
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: September 23, 2013
APPEARANCES:
For Defendant-Appellant For Plaintiff-Appellee
ERIN N. POPLAR RAMONA J. ROGERS
Erin Poplar Law, LLC ASHLAND COUNTY PROSECUTOR
1636 Eagle Way 110 Cottage St.
Ashland, Ohio 44805 Ashland, Ohio 44805
ANDREW N. BUSH
Assistant Prosecuting Attorney
110 Cottage St.
Ashland, Ohio 44805
Ashland County, Case No. 13-COA-005 2
Hoffman, P.J.
{¶1} Defendant-appellant Larry E. Bays appeals his conviction and sentence
entered by the Ashland County Court of Common Pleas, on five counts of aggravated
trafficking in drugs, three counts of aggravated possession of drugs, one count of
possessing criminal tools, and one count of tampering with evidence, following a jury
trial. Plaintiff-appellee is the state of Ohio.
PROCEDURAL HISTORY AND FACTS
{¶2} On September 21, 2012, Appellee filed a Complaint against Appellant.
The trial court conducted a bond hearing on September 24, 2012, and found Appellant
to be indigent. On September 28, 2012, the Ashland County Grand Jury indicted
Appellant on five counts of aggravated trafficking in drugs, in violation of R.C.
2925.03(A)(1), felonies of the fourth degree; three counts of aggravated possession of
drugs, in violation of R.C. 2925.11(A), felonies of the fifth degree; three counts of
possessing criminal tools, in violation of R.C. 2923.24(A), felonies of the fifth degree;
and one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of
the third degree.
{¶3} Appellant entered a plea of not guilty to the indictment at his arraignment
on October 3, 2012. Appellant, through counsel, filed a Motion for Appropriation of
Funds for Consulting Defense Experts, and a Motion to Dismiss, asserting the statute
under which he was indicted was unconstitutionally vague. After Appellee filed
memoranda in opposition to both motions, the trial court denied Appellant’s motion via
Judgment Entry filed November 7, 2012.
Ashland County, Case No. 13-COA-005 3
{¶4} The matter proceeded to jury trial on December 11, 2012. The following
evidence was adduced at trial.
{¶5} On January 16, 2012, the Ashland Police Department conducted a
controlled buy at the Loudonville Tobacco Shop which is owned and operated by
Appellant and his wife. The police informant purchased a substance identified as AM-
2201, an alleged synthetic marijuana. During the transaction, Appellant compared the
substance to “pot”. The following day, police executed a search warrant at Loudonville
Tobacco Shop and the attached residence, and seized various boxes of synthetic
drugs, a cash register and a safe containing money. During an interview with police,
Appellant admitted he did not charge tax on the synthetic drugs, he did not display such
on the shelves of his store, and he knew people were smoking the substances. Police
sent the drugs to BCI for testing.
{¶6} On May 14, 2012, the Ashland Police Department attempted to make
another controlled buy from Appellant at the Loudonville Tobacco Shop. Appellant
refused to sell the synthetic drugs at that time. After the attempted purchase, Appellant
spoke with the informant, advising her he knew she was with the police and “we got our
asses busted and we don’t do that anymore”. The conversation was recorded. Later
that same day, using another informant, police made a controlled purchase of AM-2201.
A controlled buy was also made on May 21, 2012. The drugs from both buys were sent
to BCI for testing.
{¶7} Police executed a search warrant at Loudonville Tobacco Shop and
Appellant’s residence on May 29, 2012, seizing additional amounts of AM-2201. The
drugs were found hidden behind the insulation of an unfinished wall. Video taken from
Ashland County, Case No. 13-COA-005 4
Appellant’s surveillance system revealed images of Appellant leaving the shop, walking
through his residence, out the back door, then hiding the synthetic drugs as the police
arrived.
{¶8} Subsequently, the police conducted two additional controlled buys on
September 7, and 13, 2012. A third search warrant was executed on September 21,
2012, during which additional amounts of AM-2201 were found.
{¶9} Dr. John Sprague, Professor of Pharmacology and Dean of the College of
Pharmacy at Ohio Northern University, described how synthetic marijuana such as AM-
2201 is manufactured. Dr. Sprague explained traditional marijuana and synthetic
marijuana such as AM-2201 bind with the same receptors in the brain and cause similar
effects on the brain. Dr. Sprague noted small changes in the chemical structures of
synthetic drugs will greatly strengthen the intensity of those drugs. Dr. Sprague noted
AM-2201 is forty times more potent than marijuana. The doctor further discussed the
similarities in the chemical structures of AM-2201 and JWH-018, a synthetic drug listed
on Schedule I of Ohio’s drug laws.
{¶10} After hearing all the evidence and deliberating, the jury found Appellant
guilty of five counts of aggravated trafficking in drugs, three counts of aggravated
possession of drugs, one count of possessing criminal tools, and one count of
tampering with evidence. The jury found Appellant not guilty on two counts of
possessing criminal tools. The trial court memorialized Appellant’s convictions via
Judgment Entry filed December 14, 2012. The trial court ordered a pre-sentence
investigation report and scheduled a sentencing hearing for February 11, 2013. At the
sentencing hearing, the trial court imposed an aggregate prison term of three years.
Ashland County, Case No. 13-COA-005 5
The trial court memorialized Appellant’s sentence via Judgment Entry-Sentence filed
February 14, 2013.
{¶11} It is from this conviction and sentence Appellant appeals, raising the
following assignments of error:
{¶12} “I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF
DEFENDANT-APPELLANT WHEN IT OVERRULED HIS MOTION FOR
APPROPRIATION OF FUNDS FOR CONSULTING DEFENSE EXPERTS.
{¶13} “II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF
DEFENDANT-APPELLANT WHEN IT OVERRULED HIS MOTION TO DISMISS.
{¶14} “III. THE CONVICTION SHOULD BE OVERTURNED DUE TO THE
INEFFECTIVE ASSISTANCE OF COUNSEL.”
I
{¶15} In his first assignment of error, Appellant contends the trial court erred in
overruling his motion for appropriation of funds for consulting defense experts.
{¶16} The decision to grant funds for expert assistance to indigent defendants is
left to the sound discretion of the trial court.” State v. Mason (1998), 82 Ohio St. 3d 144,
150, 1998 -Ohio- 370 (Citation omitted).
{¶17} As a matter of due process, indigent defendants are entitled to receive the
“raw materials” and the “basic tools of an adequate defense.” Ake v. Oklahoma (1985),
470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53, 62. “While Ake involved the
provision of expert psychiatric assistance only, the case now is generally recognized to
support the proposition that due process may require that a criminal defendant be
provided other types of expert assistance when necessary to present an adequate
Ashland County, Case No. 13-COA-005 6
defense.” Mason, supra at 149. In accordance with the United States Supreme Court’s
decision in Ake, the Mason Court held:
[D]ue process, as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution and Section 16, Article I of
the Ohio Constitution, requires that an indigent criminal defendant be
provided funds to obtain expert assistance at state expense only where
the trial court finds, in the exercise of a sound discretion, that the
defendant has made a particularized showing (1) of a reasonable
probability that the requested expert would aid in his defense, and (2) that
denial of the requested expert assistance would result in an unfair trial. Id.
{¶18} In denying Appellant’s motion for appropriation of funds for consulting
defense experts, the trial court found an expert would not aid in Appellant’s defense.
The trial court reasoned:
The analysis required to define the substance in question as a
“controlled substance analog” is not [sic] one that is objective and
scientific in nature. In other words, the chemical structure either is or is not
chemically similar to a schedule I controlled substance, and should not be
a matter subject to bias or interpretation. November 7, 2012 Judgment
Entry at 3.
{¶19} We disagree with the trial court. We find without an expert, Appellant
could neither verify nor challenge the reliability of Appellee’s expert’s conclusions or
techniques, and as such, may have been denied defenses to the charges. While the
chemistry may be scientific, the conclusion of what is or is not “substantially similar”
Ashland County, Case No. 13-COA-005 7
involves a subjective analysis/conclusion; one which laymen are unqualified to make
and may be subject to dispute among experts. Giving Appellant access to a scientific
consultant would even the playing field in the interest of fundamental fairness to ensure
a fair trial. Accordingly, we vacate Appellant’s conviction and sentence, and remand the
matter to the trial court to allow Appellant to consult with an expert at the state’s
expense, and, if necessary, conduct a hearing regarding the probative value of his or
her opinion. Following such consultation, the trial court may reenter the conviction and
sentence if it finds Appellant had not been prejudiced by the initial lack of an expert for
consultation.
{¶20} Appellant’s first assignment of error is sustained.
II
{¶21} In his second assignment of error, Appellant asserts the trial court erred in
overruling his motion to dismiss because as R.C. 3719.01(HH), which served as the
basis of the charges against him, is unconstitutionally vague.
{¶22} Having sustained Appellant’s first assignment of error, we need not
address his constitutional argument as a basis for relief. “No court should * * * indulge
the constitutional issue if the litigant is entitled to relief upon other grounds.” Burt Realty
Corp. v. Columbus (1970), 21 Ohio St.2d 265, 269, 50 O.O.2d 491, 493, 257 N.E.2d
355, 358; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St.2d 207, 34
O.O.2d 420, 215 N.E.2d 403.
{¶23} Appellant’s second assignment of error is overruled.
Ashland County, Case No. 13-COA-005 8
III
{¶24} In his final assignment of error, Appellant raises an ineffective assistance
of counsel claim. Specifically, Appellant contends trial counsel was ineffective for failing
to request a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
{¶25} Based upon our disposition of Assignment of Error I, we find Appellant’s
third assignment of error to be premature.
By: Hoffman, P.J.
Farmer, J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. CRAIG R. BALDWIN
Ashland County, Case No. 13-COA-005 9
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LARRY E. BAYS :
:
Defendant-Appellant : Case No. 13-COA-005
For the reasons stated in our accompanying Opinion, the judgment of the
Ashland County Court of Common Pleas is vacated and the matter remanded to the trial
court for further proceedings in accordance with our Opinion and the law. Costs
waived.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. CRAIG R. BALDWIN