[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. 

 1

Tuleta’s notice of appeal indicates that in addition to Case No. CR-520896, he is also 

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) 

 2

In 2008, the General Assembly amended this “prescription drug” exception to exclude only 

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