State v. Donoho ( 2018 )

[Cite as State v. Donoho, 2018-Ohio-4950.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-G-0151
- vs - :
TYLER KYNON DONOHO, :
Defendant-Appellant. :
Criminal Appeal from the Chardon Municipal Court, Case No. 2017 CRB 00063.
Judgment: Affirmed.
James M. Gillette, City of Chardon Police Prosecutor, PNC Bank Building, 117 South
Street, Suite 208, Chardon, OH 44024 (For Plaintiff-Appellee).
William Carlin and Mark W. Biggerman, Carlin & Carlin, 29325 Chagrin Blvd., Suite 305,
Pepper Pike, OH 44122 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Tyler Kynon Donoho, appeals from the judgment entered by the
Chardon Municipal Court on January 18, 2018, denying his emergency motion to modify
the conditions of his probation. Appellant raises one assignment of error for our review:
The Trial Court erred in denying Defendant’s Motion to Modify the
Conditions of his Probation due to a change of circumstances so as
to permit the Defendant’s therapeutic use of THC as recommended
and prescribed by a state licensed physician.
For the reasons that follow, the trial court’s judgment is affirmed.
{¶2} On January 23, 2017, two complaints were filed in the Chardon Municipal
Court, whereby appellant was charged with one minor misdemeanor, Disorderly Conduct,
in violation of R.C. 2917.11(A)(1), and one first-degree misdemeanor, Aggravated
Menacing, in violation of R.C. 2903.21(A). On June 13, 2017, appellant pled no contest
to Aggravated Menacing, and the Disorderly Conduct charge was dismissed.
{¶3} The municipal court sentenced appellant to 180 days in jail, granted credit
for time already served, and suspended the remaining 107 days of the sentence.
Appellant was placed under community control sanctions for two years. No appeal was
taken from the court’s final sentencing order.
{¶4} Relevant to the matter at hand, one of the terms of appellant’s community
control is the following:
I will NOT consume alcohol or possess, use, purchase, or have
under my control any narcotic drug, mind altering substance or other
controlled substance, including any instrument, device or other
object used to administer drugs or to prepare them for administration,
unless it is lawfully prescribed for me by a licensed physician and
taken in accordance with the prescribed dosage.
 I agree not to abuse any over the counter medication or
mind altering substances and to inform my Probation
Officer of any un-prescribed drugs.
 Upon request, I will submit to a RANDOM breath, urine, or
blood test to detect the presence of alcohol or drugs in my
body and pay all required fees. If consuming Alcohol &/or
Drugs are suspected – MUST submit to breath, blood or
urine testing device by a Law Enforcement Officer or
qualified Agent of Chardon Municipal Court.
 The Probation Department can call me at random to
submit to an alcohol or drug test. I understand I have one
(1) hour to report to the Probation Department to submit to
a test. Any positive, diluted or adulterated results will be
reported to the Court and may result in a violation of
probation against me. Also, my failure to appear when
requested will result in a warrant for my arrest.
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Appellant signed an acknowledgment, indicating he understood that “failure to obey any
term or any Court imposed condition can cause further Court action and the original
sentence may be ordered into execution” and that, “until such terms are modified, they
shall remain in effect as written above.”
{¶5} On November 8, 2017, the matter came on for hearing upon the municipal
court’s own motion charging appellant with violation of his probation. The court found
there was probable cause to believe that appellant had consumed THC based on
appellant’s admission to his probation officer. Appellant was arrested and denied bond.
{¶6} A hearing on the violation was held on November 15, 2017. Dr. Jane Li-
Conrad, D.O., was subpoenaed on behalf of appellant, with a request she bring
appellant’s complete file; no transcript of this hearing has been provided on appeal. The
municipal court dismissed the violation and ordered appellant to be released from jail. He
was granted credit for the seven days he was held in jail, leaving 100 days on appellant’s
suspended sentence. The court ordered appellant to remain under community control for
the remainder of the two years originally ordered, with no change to the original terms
and conditions. No appeal was taken from this final order.
{¶7} On January 4, 2018, appellant filed a “Motion in Limine,” requesting the
municipal court to issue an order “precluding the consideration of any tests, including
urine tests, that are positive for marijuana with regard to any potential probation violation.”
(Emphasis added.) The motion begins by stating:
As set forth below, Tyler has a prescription from a psychiatrist, Dr.
Noah Miller (“Dr. Miller”), for Marinol. The Affidavit and Curriculum
Vitae of Dr. Miller as well as the prescription for Marinol and
recommendation for marijuana are attached hereto as exhibit “A.”
Further, in support of this Motion is the Affidavit and narrative report
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of Willard Donoho, the father of Tyler and are attached hereto as
exhibit “B.”
Appellant then describes the purpose of the motion, which “is to bring before the Court
the circumstances of Tyler, Tyler’s prescription and recommendation for marijuana and
the rationale for the prescription and recommendation as set forth in the Affidavit and
report of Dr. Miller * * * and the Affidavit and narrative of Willard Donoho.” Appellant
requests the municipal court to “issue a ruling on whether the Court will recognize the
prescription and recommendation for marijuana, so that if Tyler tests positive for THC, the
Court will consider that a violation of his probation [sic].”
{¶8} By judgment entry issued on January 11, 2018, the municipal court denied
the motion, stating it will find appellant in violation of his probation if he tests positive for
“THC and/or cannabis and/or marijuana.”
{¶9} As a result, appellant filed an “Emergency Motion to Modify Conditions of
Probation” on January 17, 2018. In support of the motion, appellant “incorporate[d] by
reference, as if fully restated herein the Affidavits, Memorandum and Brief” from the
Motion in Limine. The Emergency Motion to Modify includes no additional exhibits and
asserts the following:
The Defendant has now come under the medical care of Dr. Noah
Miller (Psychiatrist) that consists of a recommendation for medical
marijuana and a prescription for Marinol, which essentially means
therapeutic use of the chemical, THC. Mr. Donoho, however is
currently taking the FDA-approved Marinol, which is a cannabinoid,
as prescribed by Dr. Miller. In other words, he is taking a synthetic
THC.
On 1-11-18, the Court denied Mr. Donoho’s Motion in Limine, and
held that Mr. Donoho would be in violation of the terms of his
probation if he tests positive for THC. However, the fact that Mr.
Donoho now has a prescription, and recommendation for THC,
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constitutes a change in circumstances and warrants the modification
of the terms of his probation.
{¶10} By judgment entered January 18, 2018, the municipal court denied the
Emergency Motion to Modify, stating the court will not amend the terms of appellant’s
probation so as to permit appellant’s therapeutic use of THC as recommended and
prescribed.
{¶11} Appellant filed a notice of appeal from this entry and argues the municipal
court’s denial of his motion was an abuse of discretion, i.e., a “failure to exercise sound,
reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
{¶12} We find no basis upon which to conclude the municipal court abused its
discretion.
{¶13} Ohio Revised Code Chapter 3796, “Medical Marijuana,” became effective
on September 8, 2016. “Medical marijuana” and “marijuana” are distinct substances.
“Medical marijuana” is defined as “marijuana that is cultivated, processed, dispensed,
tested, possessed, or used for a medical purpose.” R.C. 3796.01(A)(2). The definition
of “marijuana” is adopted from R.C. 3719.01(O), which provides: “‘Marihuana’ means all
parts of a plant of the genus cannabis, whether growing or not; the seeds of a plant of
that type; the resin extracted from a part of a plant of that type; and every compound,
manufacture, salt, derivative, mixture, or preparation of a plant of that type or of its seeds
or resin.”
{¶14} “Medical marijuana” is a Schedule II Controlled Substance. R.C.
3796.01(B). “Marijuana,” on the other hand, is a Schedule I Controlled Substance, as are
hallucinogenics containing cannibinoids, THC, and synthetics or derivatives thereof. R.C.
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3719.41 Schedule I (C)(19) & (27). Marinol is the brand name for a federally-approved
medicine that contains “dronabinol,” a synthetic form of THC and a Schedule III Controlled
Substance. R.C. 3719.41 Schedule III (F)(1) (“Dronabinol (synthetic) in sesame oil and
encapsulated in a soft gelatin capsule in a United States food and drug administration
approved drug product”).
{¶15} Pursuant to R.C. 3719.06(A)(1)(a), a “licensed health professional
authorized to prescribe drugs” may prescribe Schedule II and Schedule III controlled
substances “if acting in the course of a professional practice, in accordance with the laws
regulating the professional’s practice, and in accordance with rules adopted by the state
board of pharmacy[.]”
{¶16} “Medical marijuana,” a Schedule II controlled substance, is only permitted
by law to be cultivated or processed in Ohio by an entity that is licensed by the department
of commerce and is only permitted to be dispensed in Ohio at a retail medical marijuana
dispensary that is licensed by the state board of pharmacy. R.C. 3796.09(A) & R.C.
3796.10(A). Further, “[p]atients and caregivers shall purchase medical marijuana only
from a medical marijuana dispensary with an active certificate of operation issued by the
state board of pharmacy, or where authorized pursuant to a reciprocity agreement
established pursuant to section 3796.16 of the Revised Code.” Ohio Adm.Code 3796:7-
2-05(D) (emphasis added).
{¶17} Appellant, however, has not presented any evidence establishing that
“medical marijuana” is either cultivated, processed, or dispensed by licensed facilities in
the state of Ohio at the present time or that any reciprocity agreements have been
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established with other states. Further, appellant is prohibited from leaving the state under
the terms of his community control.
{¶18} As a result, any positive result for THC on a drug test would be the result of
appellant having used (1) “marijuana,” a Schedule I controlled substance, which is a clear
violation of Ohio law, or (2) Marinol, a Schedule III controlled substance, which requires
a valid prescription from a licensed health professional, pursuant to R.C.
3719.06(A)(1)(a).
{¶19} Appellant admits the trial court would be unable to distinguish whether a
positive result for THC resulted from the use of Marinol, which may be permissible, or
from the use of “marijuana,” which is not permissible. Therefore, it was not an abuse of
discretion for the trial court to deny a modification of appellant’s community control. If
appellant tests positive for THC and is charged with a violation of the terms of his
community control, he is permitted at that time to raise the affirmative defense that he is
using Marinol in accordance with a valid prescription. In that event, the trial court should
include in the record what factors it considers in determining whether appellant has
violated the terms of his community control.
{¶20} Appellant’s sole assignment of error is not well taken.
{¶21} The judgment of the Chardon Municipal Court is hereby affirmed.
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion,
COLLEEN MARY O’TOOLE, J., dissents.
____________________
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DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶22} I concur in the decision to affirm the lower court’s ruling. I write separately
to more fully explain the reasons why Donoho has no valid grounds to seek modification
of the terms of his probation to permit the use of medical marijuana.
{¶23} Donoho cannot prevail for several reasons. First, the use of medical
marijuana is not yet legal in Ohio. While R.C. 3796.22(A)(1) provides that a person “[w]ho
obtains medical marijuana from a retail dispensary licensed under this chapter” may use
such marijuana, Donoho’s counsel failed to demonstrate that there are any approved
dispensaries in Ohio at this time. Dispensaries must be approved and licensed by the
Ohio Board of Pharmacy pursuant to R.C. 3796.10, which sets forth detailed regulations
for approving such dispensaries. Since the procedures set forth for purchasing and using
medical marijuana in Ohio are strict and comprehensive, the lack of a current legal
method for obtaining medical marijuana precludes Donoho’s argument that his probation
terms should not prohibit his use of this drug.
{¶24} Second, since Donoho cannot presently obtain marijuana legally within
Ohio, it must be emphasized that transporting marijuana to Ohio from another state would
also be illegal. Federal law does not recognize marijuana as a legal substance and
transportation of marijuana across state lines is violative of federal law. See 21 U.S.C.
812 Schedule I (c)(10) (classifying marijuana as a schedule I controlled substance); 21
U.S.C. 841(a)(1) (prohibiting the distribution of a controlled substance); and 18 U.S.C.
1952(a)(3) and (b) (prohibiting travel in interstate commerce with intent to carry on
“unlawful activity,” including a business enterprise involving narcotics or controlled
substances).
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{¶25} Further, as noted above, the use of medical marijuana is permitted only
when an individual obtains the marijuana from “a retail dispensary licensed under this
chapter [Chapter 3796].” R.C. 3796.22(A)(1). Licensed dispensaries are permitted to be
located in specific geographic regions or districts within Ohio, as established by the Ohio
Board of Pharmacy. Ohio Adm.Code 3796:6-1-01(E).1 There is no evidence that any
licensing of dispensaries outside of the state of Ohio has occurred which would permit a
resident of Ohio to purchase marijuana from another state for use in Ohio at this time.
{¶26} Finally, the terms of Donoho’s probation prohibited his travel out of the state
of Ohio. Thus, he could not travel to another state where marijuana was legally sold in
order to obtain medical marijuana.
{¶27} For the foregoing reasons, the lower court’s decision should be affirmed.
1. Pursuant to the Ohio Board of Pharmacy, districts have been created in four separate regions of Ohio.
https://www.medicalmarijuana.ohio.gov/Documents/Dispensaries/Dispensary%20Districts/Medical%20Ma
rijuana%20Dispensary%20Districts.pdf (accessed Nov. 8, 2018).
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