State v. Davis

Per Curiam.

I

In State v. Wolpe (1984), 11 Ohio St. 3d 50, 52, this court determined that the state has no burden to separate any portion of the marijuana plant when determining weight for purposes of statutory drug offenses. Wolpe is dispositive of the issue certified to this court for review. We must therefore reverse the determination of the court of appeals on this issue, since the state properly determined the weight of the marijuana in the possession of appellee.

*35II

The second issue presented is whether the affirmative defense of personal use, as set forth in R.C. 2925.03(F), may be asserted by a defendant charged with possession of three times the bulk amount of marijuana. We find that the defense may not be asserted by such a defendant, and thus reverse on this issue as well.

R.C. 2925.03(F) reads as follows:

“It shall be an affirmative defense as provided in section 2901.05 of the Revised Code, to a charge under this section for possession in bulk amount of a controlled substance or for cultivating marihuana that the substance which gave rise to the charge is in such amount, in such form, or is prepared, compounded, or mixed with substances which are not controlled substances in such a manner, or is possessed or cultivated in any other circumstances whatsoever as to indicate that the substance was solely for personal use.” (Emphasis added.)

Thus, if the defense of personal use is proven, the defendant cannot be found guilty under R.C. 2925.03.

R.C. 2925.03(F) specifically refers to possession of a bulk amount of a controlled substance; nowhere in the statute is there any reference to possession of three times the bulk amount. “When the wording of a statute is clear and unambiguous on its face, judicial interpretation is not required; rather, the court must give effect to the words used. * * *” Dougherty v. Torrence (1982), 2 Ohio St. 3d 69, 70. “* * * In ascertaining the legislative intent of a statute, ‘It is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used.’ (Emphasis added.)” Bernardini v. Bd. of Edn. (1979), 58 Ohio St. 2d 1, 4 [12 O.O.3d 1],

Nevertheless, the court of appeals herein concluded that the General Assembly did not intend to restrict the availability of the personal use defense to the exclusion of those charged with three times bulk possession offenses. R.C. 2925.01(E)(3) is cited, which defines “bulk amount” as: “An amount equal to or exceeding two hundred grams of marihuana * * (Emphasis added.)

By defining bulk amount in the disjunctive, this reasoning holds, the legislature did not mean for bulk amount to be a static figure. Thus, it is argued, “bulk amount” as used in R.C. 2925.03(F) means any amount over two hundred grams.

This reasoning has no merit. The General Assembly has specifically created a distinction between bulk amount and three times the bulk amount. R.C. 2925.03(A)(4) and (A)(6). Its use of the term “bulk amount” in R.C. 2925.03(F) refers back to the definition set forth in R.C. 2925.01(E)(3). Had it been otherwise, R.C. 2925.03(F) would have read in pertinent part:

“* * * [The defense may be asserted by those charged] under this section for possessing a bulk amount [or any greater amount) of a controlled substance * * (Emphasis and bracketed material added.)

The statute does not include the words “or greater,” however. By not *36permitting those charged with possession of three times the bulk amount to assert the personal use defense, the legislature has created a presumption that such possession cannot be for personal use. In the instant case, this presumption is reasonable, in view of the fact that three times the bulk amount of marijuana is six hundred grams or greater. The legislature is entitled to prohibit those charged with possession of six hundred grams or greater from using the defense. R.C. 2925.03 is aimed at the prevention of trafficking in controlled substances; it is reasonable to presume that possession of six hundred grams or greater of marijuana will lead to eventual trafficking.

In that the defense set forth in R.C. 2925.03(F) is clear on its face as not available to persons charged with possession of three times the bulk amount of a controlled substance, we reverse on the second issue as well.

For the reasons stated above, the judgment of the court of appeals is reversed.

Judgment reversed.

Celebrezze, C.J., Locher, Holmes, C. Brown, Douglas and Wright, JJ., concur. Sweeney, J., dissents in part.