State v. Tuleta , 2011 Ohio 1923 ( 2011 )

[Cite as State v. Tuleta, 2011-Ohio-1923.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94992
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY TULETA
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED IN PART;
CONVICTIONS VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-520896 and CR-517465
BEFORE: Keough, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT
Edward A. Heffernan
1660 West Second Street
Suite 410
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
James Gutierrez
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Anthony Tuleta (“Tuleta”), appeals his
convictions of drug possession and aggravated theft. Finding merit to the
appeal, we dismiss in part1 and vacate Tuleta’s convictions.
Tuleta’s notice of appeal indicates that in addition to Case No. CR-520896, he is also
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appealing Case No. CR-517465. However, that case was dismissed without prejudice by the State
on May 15, 2009 and reindicted as Case No. CR-520896. Accordingly, we dismiss the appeal as it
pertains to Case No. CR-517465.
{¶ 2} In 2009, Tuleta was indicted on numerous counts of drug
possession and one count of aggravated theft. The indictment and bill of
particulars indicated that the dates of the alleged offenses occurred between
the years of 2003 and 2007. The trial court denied Tuleta’s motion to dismiss
the indictment and the matter proceeded to a jury trial where Tuleta was
found guilty of all charges. The trial court sentenced Tuleta to one year in
prison and five years community control sanctions; the sentence was stayed
pending appeal. Tuleta, raises nine assignments of error on appeal. We
find the first assignment of error dispositive.
{¶ 3} R.C. 2925.11(A), regarding drug possession, prohibits a person
from knowingly obtaining, possessing, or using a controlled substance.
Subsection (B) provides four exceptions to this prohibition. At issue here is
the exception listed in (B)(4). The version of R.C. 2925.11(B)(4) in effect at
the time of alleged offenses provided that R.C. 2925.11(A) does not apply to
“[a]ny person who obtained the controlled substance pursuant to a
prescription issued by a licensed health professional authorized to prescribe
drugs.”2
{¶ 4} In his first assignment of error, Tuleta argues that the trial court
erred in denying his pre-trial motions to dismiss and his Crim.R. 29(A)
In 2008, the General Assembly amended this “prescription drug” exception to exclude only
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those prescriptions that were “lawful.” See Sub.H.B. 195. Reviewing the language of H.B. 195,
motion for judgment of acquittal because a licensed physician prescribed the
controlled substances he allegedly possessed, and therefore the exception set
forth in R.C. 2925.11(B)(4) applies. We agree.
{¶ 5} This court addressed this precise issue in State v. Casshie,
Cuyahoga App. No. 81341, 2002-Ohio-6514. In Casshie, this court upheld
the trial court’s decision dismissing an indictment against the defendant
when the drugs in possession were prescribed by a physician. This court, in
examining R.C. 2925.11, held, “[i]n giving R.C. 2925.11 both a plain and an
ordinary reading, it is clear that under the current statute it is impossible to
convict, let alone prosecute, the defendant under the statute.” Id. at ¶15.
“It is uncontroverted that the defendant ‘knowingly possessed, or used a
controlled substance’ but, as stated, the statute’s exception under (B)(4)
clearly precludes prosecution since the prescriptions were issued by licensed
health professionals authorized to prescribe drugs.” Id. at 17.
{¶ 6} We find no distinction between the case before us and Casshie.
The facts and evidence adduced prior to and at trial revealed that Tuleta was
prescribed the controlled substances by a licensed health professional
authorized to prescribe drugs between January 2003 and April 2007.
Therefore, at all times Tuleta was alleged to have been in possession of
controlled substances, R.C. 2925.11, in effect at the time of the alleged
no retroactivity clause exists, therefore, former R.C. 2925.11(B)(4) applies.
offenses, provided a clear and unequivocal exception prohibiting a person
from being prosecuted for possessing a controlled substance prescribed by a
physician. Accordingly, because Tuleta obtained the controlled substances
pursuant to a prescription issued by a licensed health professional, criminal
charges for drug possession could not be pursued against him.
{¶ 7} Finding that Tuleta could not have been prosecuted for drug
possession, the aggravated theft charge also cannot be maintained because
Tuleta possessed the prescription drugs lawfully. Our decision today does
not affect Medical Mutual’s right to pursue a civil claim against Tuleta, which
he concedes.
{¶ 8} Accordingly, Tuleta’s first assignment of error is sustained.
Finding this assignment of error dispositive, all other assignments of error
are rendered moot.
{¶ 9} Appeal dismissed in part; convictions vacated. The trial court is
instructed to execute a judgment entry vacating Tuleta’s convictions.
It is ordered that appellant recover from appellee his 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR