[Cite as State v. Black, 2016-Ohio-7914.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellant, : CASE NO. CA2016-04-032 

 : O P I N I O N 

 - vs - 11/28/2016 

 : 

IAN BENJAMIN BLACK, : 

 Defendant-Appellee. : 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 15 CR 31345 

David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice 

Drive, Lebanon, Ohio 45036, for plaintiff-appellant 

Jeffrey A. Berndt, 575 South High Street, Columbus, Ohio 43215, for defendant-appellee 

HENDRICKSON, J. 

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Warren County 

Common Pleas Court. The state charged defendant-appellee, Ian Benjamin Black, with 

possession and trafficking of hashish-infused chocolate candy bars, which are commonly 

known as "edibles." Black retained an expert witness to scientifically determine the weight of 

hashish within each edible and asked the court to order the state to provide the expert with 

samples of the edibles. Black then intended to submit evidence of the weight of the hashish 
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and argue that he could only be charged with the actual amount of hashish and not the total 

weight of each candy bar. The state opposed Black's request on various grounds. The court 

granted Black's motion but stayed its decision while permitting the state to file this appeal. 

The state asserts the following assignment of error: 

{¶ 2} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS 

DISCRETION WHEN IT DENIED THE STATE'S MOTION IN LIMINE AND PERMITTED 

APPELLEE TO OBTAIN AN [INDEPENDENT] WEIGHING OF THE CONTROLLED 

SUBSTANCE HASHISH FOR PURPOSES OF INTRODUCING EVIDENCE OF AN 

ALTERNATIVE WEIGHT AT TRIAL[.] 

{¶ 3} The state alleges that Black possessed and held for sale marijuana and various 

marijuana related products, which were seized at Black's drive-thru beverage store. Included 

among the marijuana products were around 150 hashish-infused chocolate candy bars in 

assorted flavors. These edibles were apparently professionally manufactured in a marijuanalegal state but then illegally imported to Ohio. The labeling on each edible indicated it 

contained 100 milligrams of hashish. 

{¶ 4} The weight of all edibles seized exceeded 2,000 grams. This gram weight 

enhanced Black's possession and trafficking charges to felonies of the second degree. 

However, if the labeling claim of 100 milligrams of hashish per candy bar was accurate, the 

total weight of hashish would have been far less than 2,000 grams. Assuming the weight of 

the chocolate and other "filler" noncontraband substances was excluded, the state could only 

prove a lesser felony. Accordingly, Black retained an expert witness who could purportedly 

scientifically determine the weight of hashish within the edibles. 

{¶ 5} Black moved the court to order the state to provide his expert with a sample of 

the edibles so that they could be reweighed. Through a contemporaneously filed motion in 

limine, the state argued that Black should not be allowed to present evidence of the weight of 
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hashish within the candy bars. The state also argued that Black's expert did not have the 

proper government credentials to receive and test the alleged contraband. The court ruled in 

Black's favor. It denied the state's motion in limine and found that Black had a statutory right 

to have the edibles reweighed by his expert. 

{¶ 6} Decisions involving the admissibility of evidence are reviewed for an abuse of 

discretion. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 122. Similarly, decisions 

granting or denying a motion in limine are reviewed for an abuse of discretion. Illinois 

Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526 (1994). For an abuse of discretion to 

have occurred, the trial court must have taken action that is unreasonable, arbitrary, or 

unconscionable. State ex rel. Hamilton Cty. Bd. of Commrs. v. State Emp. Relations Bd., 

102 Ohio St.3d 344, 2004-Ohio-3122, ¶ 17. 

{¶ 7} Initially, the state argues that the court's ruling allowing Black's expert to 

reweigh the edibles was unauthorized by statute. In its decision, the court relied on R.C. 

2925.51, which provides in relevant part: 

(E) Any person who is accused of a violation of this chapter or of 

Chapter 3719. of the Revised Code is entitled, upon written request 

made to the prosecuting attorney, to have a portion of the 

substance that is, or of each of the substances that are, the basis of 

the alleged violation preserved for the benefit of independent 

analysis performed by a laboratory analyst employed by the 

accused person, or, if the accused is indigent, by a qualified 

laboratory analyst appointed by the court. Such portion shall be a 

representative sample of the entire substance that is, or of each of 

the substances that are, the basis of the alleged violation and shall 

be of sufficient size, in the opinion of the court, to permit the 

accused's analyst to make a thorough scientific analysis concerning 

the identity of the substance or substances. * * * 

(F) In addition to the rights provided under division (E) of this 

section, any person who is accused of a violation of this chapter or 

of Chapter 3719. of the Revised Code that involves a bulk amount 

of a controlled substance, or any multiple thereof, or who is 

accused of a violation of section 2925.11 of the Revised Code, 

other than a minor misdemeanor violation, that involves marihuana, 
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is entitled, upon written request made to the prosecuting attorney, to 

have a laboratory analyst of the accused's choice, or, if the accused 

is indigent, a qualified laboratory analyst appointed by the court 

present at a measurement or weighing of the substance that is the 

basis of the alleged violation. Also, the accused person is entitled, 

upon further written request, to receive copies of all recorded 

scientific data that result from the measurement or weighing and 

that can be used by an analyst in arriving at conclusions, findings, 

or opinions concerning the weight, volume, or number of unit doses 

of the substance subject to the measurement or weighing. 

{¶ 8} Accordingly, R.C. 2925.51 provides that a defendant may, upon written request: 

(1) have a representative sample of the alleged contraband substance provided to their own 

laboratory analyst for the purposes of identifying the substance; and (2) have their own 

laboratory analyst present at the weighing of the alleged contraband substance. Contrary to 

the trial court's decision, R.C. 2925.51 does not provide a defendant with a right to reweigh 

an alleged contraband substance. State v. Baker, 12th Dist. Fayette No. CA2010-11-033, 

2011-Ohio-3431, ¶ 12 ("a person accused of violating R.C. Chapter 2925 is entitled to an 

independent analysis of the drugs, he is not entitled to an independent weighing thereof"). 

(Emphasis sic.) 

{¶ 9} Next, the state argues that the court erred in denying its liminal motion, which 

asked the court to preclude Black from attempting to admit evidence or argue that the weight 

of the charged contraband was "anything other than the total amount of the hashish candy 

bar." We recently examined this issue in the context of a case involving heroin possession 

and trafficking. In State v. Waver, 12th Dist. Butler No. CA2015-08-155, 2016-Ohio-5092, we 

found that the statute under which the defendant was convicted did not require the weight of 

the "filler" to be separated from the controlled substance and that it was not error to include 

the filler in the total weight of the amount charged. Id. at ¶ 43. 

{¶ 10} Here, with respect to possession and trafficking of hashish, the statutory 
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language and the result is the same as in Waver.

1 The statutes prohibiting the possession 

and sale of hashish provide "[i]f the drug involved in the violation is hashish or a compound, 

mixture, preparation, or substance containing hashish, whoever violates division (A) of this 

section is guilty of [trafficking in or possession of] hashish." R.C. 2925.03(C)(7); 

2925.11(C)(7). (Emphasis ours.) A hashish-infused candy bar meets most of these 

additional statutory definitions and the state properly included any filler in the total amount 

charged against Black. Thus, we find that the trial court committed an error of law, and thus, 

abused its discretion, in denying the state's motion in limine. 

{¶ 11} Finally, the state argues that the court erred in its decision to permit Black's 

expert to possess the edibles for purposes of reweighing it. However, this argument is moot 

given our decision with respect to the state's first two arguments. As set forth above, we find 

merit in the state's assignment of error. We reverse the decision of the trial court and 

remand for proceedings consistent with this opinion. 

{¶ 12} Judgment reversed and remanded. 

 M. POWELL, P.J., and RINGLAND, J., concur. 

 

1. In Waver, we noted that, with respect to cocaine, the issue of whether filler materials must be excluded from 

the charged weight was presently before the Ohio Supreme Court. Id. at ¶ 44. See State v. Gonzales, 6th Dist. 

Wood No. WD-13-086, 2015-Ohio-461, motion to certify allowed, 143 Ohio St.3d 1402, 2015-Ohio-2747, and 

appeal allowed, 143 Ohio St.3d 1403, 2015-Ohio-2747.