Columbus man charged with drug trafficking wins appeal

From the Akron Legal News, July, 16, 2016

ANNIE YAMSON
Special to the Legal News
Published: July 13, 2016

The 10th District Court of Appeals recently affirmed the dismissal of drug charges against a Columbus man.

The defendant, Ahmad Mobarak, was indicted on Feb. 1, 2013 in the Franklin County Court of Common Pleas on one count of trafficking in drugs and one count of aggravated possession of drugs of activity that allegedly occurred on Aug. 15, 2012.

The indictment referred to a compound known as MDPPP, a synthetic stimulant, referred to as a “controlled substance analog” under the law.

Mobarak pleaded not guilty and then filed a motion to dismiss which the trial court granted due to the fact that possessing or selling a controlled substance analog was not illegal in Ohio until December 2012.

In its appeal to the 10th District Court, the state argued that the trial court should not have dismissed the charges because MDPPP was a controlled substance when Mobarak trafficked it.

“Prior to December 2012, it was not a crime to possess or sell controlled substance analogs in Ohio, and therefore, we are constrained to find that Mobarak could not be charged with a crime that was defined as such after he allegedly committed the acts in question,” Judge Jennifer Brunner wrote on behalf of the court of appeals.

The state argued that the statute prior to December 2012 “clearly prohibited” the sale or possession of analogs but the reviewing court, consulting the plain language of the statute, saw otherwise.

“This argument contravenes R.C. 2901.04, which requires strict reading of R.C. Title 29 in whatever iteration existed at the time of and subsequent to its codification,” Brunner wrote.

The court of appeals ruled that, by failing to incorporate the definition of “controlled substance analog” into R.C. 2925.01, the General Assembly excluded that definition from applying in the context of criminal drug offense statutes.

“In short, the Revised Code edition that existed prior to December 2012, though it did define ‘controlled substance analog,’ did not make it a crime to possess or sell controlled substance analogs,” Brunner wrote. “Though our reasoning stands on its own based on the law as it existed prior to December 2012, one clear confirmation of the reliability of our reasoning is that, what the legislature drafted House Bill No. 334, it explained that the bill’s purpose was ‘to create the offenses of trafficking in and possession of controlled substance analogs.’”

Based on its reasoning and its own precedent, the 10th District Court overruled the state’s appeal and affirmed the dismissal of the charges against Mobarak.

Judges Gary Tyack and Betsy Luper Schuster concurred.

The case is cited State v. Mobarak, 2016-Ohio-4632.