State v. Wohlever , 27 Ohio App. 3d 192 ( 1985 )

Defendant-appellant, Johna Wohlever, was indicted for aggravated trafficking in drugs under R.C. 2925.03(A). The amended indictment read that the defendant knowingly sold or offered to sell a controlled substance, to wit: "Psilocybe Mushrooms, a Schedule I controlled substance in an amount less than bulk amount as defined in R.C. 2925.01, in violation of R.C.2925.03(A)(1), a felony of the third degree."

A jury trial was had and the defendant was found guilty and sentenced. Defendant raises a single assignment of error:

"The court erred as a matter of law in failing to grant the defendant's motion for acquittal at the conclusion of the state's case and again after the return of the verdict."

This court has no record of the trial court's proceedings before it, but none is necessary since defendant's sole contention is that the indictment was defective on its face. Defendant argues that Psilocybe mushrooms are not one of the controlled substances listed in Schedule I of R.C. 3719.41; hence, an essential element in the crime of drug trafficking is missing from the indictment.

Every element of a crime must be alleged in order for the indictment to charge a criminal offense. Harris v. State (1932),125 Ohio St. 257. A judgment of conviction based on an indictment which does not charge an offense is void for lack of subject matter jurisdiction. State v. Cimpritz (1953), 158 Ohio St. 490 [49 Ohio Op. 418].

In claiming the indictment here is defective, defendant relies upon a rule laid down by the Supreme Court that the indictment must include the type of controlled substance. State v. Headley (1983), 6 Ohio St. 3d 475, 479. In Headley, defendant's indictment on a charge of aggravated trafficking referred simply to "controlled substances" and the court found error in the state's failure to name the type of controlled substances involved. In the present case, the indictment alleges defendant sold or offered for sale "Psilocybe Mushrooms, a Schedule I controlled substance." But Psilocybe mushrooms are not among the substances listed in R.C. 3719.41 and possession of Psilocybe mushrooms is nowhere proscribed. Further, the state does not dispute that there are species of Psilocybe mushrooms which contain no hallucinogens. Psilocybin and psilocyn are controlled substances listed under Schedule I(C), hallucinogens, in R.C.3719.41. But the indictment here not only does not mention these specific substances, it does not name the type of substance — hallucinogens.

The state argues that analysis of the mushrooms showed they contained both psilocybin and psilocyn. Although such evidence may have been presented, it is immaterial. The indictment does not include that information. The legislature has clearly detailed substances which are controlled and Psilocybe mushrooms are not among them. The scientific report defendant cites in support of her argument is not in the record, but surely a court can take note of what the scientific community knows — that Psilocybe mushrooms are a genus of mushrooms that includes both hallucinogenic and non-hallucinogenic species. The sale of non-hallucinogenic mushrooms is not illegal. Thus, an indictment that does not specify a mushroom that is of a hallucinogenic type does not charge a crime.

A criminal charge based solely upon the selling of Psilocybe mushrooms, without describing their prohibited nature or even their classification as a hallucinogen, results in a description which is fatally defective. Defendant is entitled to be apprised of the essential facts constituting the offense for which she is called upon to defend. Since neither the particular controlled substance nor the type (hallucinogen) of substance she is accused of selling is named, the indictment did not include all the essential elements and thus did not state a crime.

In view of the foregoing, the defendant's motion to dismiss the indictment should have been granted. The defendant's judgment of conviction is reversed.

Judgment reversed.

QUILLIN, J., concurs.

BAIRD, J. dissents.