[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Gonzales, Slip Opinion No. 2016-Ohio-8319.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-8319

THE STATE OF OHIO, APPELLANT, v. GONZALES, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Gonzales, Slip Opinion No. 2016-Ohio-8319.] 

Criminal law—Cocaine-possession offenses—R.C. 2925.11(C)(4)(b) through (f)—

State must prove that weight of cocaine without filler meets the statutory 

threshold—Judgment affirmed. 

(Nos. 2015-0384 and 2015-0385—Submitted February 9, 2016—Decided 

December 23, 2016) 

APPEAL from and CERTIFIED by the Court of Appeals for Wood County, No. 

WD-13-086, 2015-Ohio-461. 

__________________ 

LANZINGER, J.

{¶ 1} In this case, we are asked to resolve a conflict between the appellate 

districts presented by the following certified question: “Must the state, in 

prosecuting cocaine offenses involving mixed substances under R.C. 

2925.11(C)(4)[(b)] through (f), prove that the weight of the cocaine meets the 
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2

statutory threshold, excluding the weight of any filler materials used in the 

mixture?”1

 We answer the certified-conflict question in the affirmative and affirm 

the judgment of the Sixth District Court of Appeals. 

I. Case Background

{¶ 2} Drug enforcement agents arranged a reverse transaction, in which a 

confidential source sold two imitation bricks of cocaine to appellee, Rafael 

Gonzales. One of the bricks contained a compartment holding a baggie of cocaine 

weighing 139.2 grams, of which three to 20 grams were the weight of the baggie 

itself. The other brick contained a tracking device. Because he was alleged to have 

possessed more than 100 grams of cocaine, Gonzales was indicted on one firstdegree-felony count of cocaine possession under R.C. 2925.11(A) and 

2925.11(C)(4)(f). The allegation that Gonzales had possessed at least 100 grams 

of cocaine supported a major-drug-offender (“MDO”) specification in the 

indictment. R.C. 2941.1410(A). R.C. 2929.01(W) includes in its definition of 

MDO “an offender” convicted of possessing “at least one hundred grams of 

cocaine.” 

{¶ 3} On the day of trial, Gonzales, through counsel, filed a motion in 

limine to preclude the state’s expert and a lay witness from testifying that the 

substance tested was cocaine, because counsel had received the lab report from the 

state less than 48 hours before the trial. The trial court excluded the lab report and 

expert witness, but permitted lay-witness testimony to identify the substance in the 

brick as cocaine if a proper foundation was established. 

{¶ 4} At trial, the confidential source and several law enforcement officers 

testified that exhibit 13 was a baggie of cocaine. Some witnesses acknowledged 

 

1

 The certified-conflict question as posed by the Sixth District Court of Appeals references R.C. 

2925.11(C)(4)(a) to R.C. 2925.11(C)(4)(f). Subdivision (a), however, does not have a weight 

requirement so that possession of any amount of cocaine is a felony of the fifth degree. We have 

modified the question to include only those provisions that have a weight requirement. 
January Term, 2016 

3

that cocaine is often mixed with other substances or filler material. No evidence 

was presented, however, regarding the purity of exhibit 13—that is, whether, or 

how much, this cocaine was mixed with filler. The defense asked the trial court to 

read the statutory definition of “cocaine” in R.C. 2925.01(X) to the jurors, and to 

instruct them that to convict Gonzales of first-degree felony possession, they must 

find that Gonzales possessed at least 100 grams of actual cocaine, rather than a 

cocaine mixture. The trial court denied both motions. 

{¶ 5} The jury found Gonzales guilty of possession of cocaine and further 

found that the amount of cocaine involved equaled or exceeded 100 grams. 

Gonzales was immediately sentenced to a mandatory term of 11 years. See R.C. 

2929.13(F)(5) and 2929.14(A)(1). 

{¶ 6} Gonzales filed a notice of appeal to the Sixth District Court of 

Appeals. In reversing the judgment, the appellate court vacated the 11-year 

mandatory prison sentence that Gonzales received as an MDO pursuant to R.C. 

2925.11(C)(4)(f) because the amount of cocaine was 100 grams or more. It 

remanded the case for resentencing. The appellate court held that in prosecuting 

cocaine offenses under R.C. 2925.11(C)(4)(a) [sic] through (f), the state is required 

to prove that the weight of the actual cocaine possessed by the offender met the 

statutory threshold. 2015-Ohio-461, ¶ 47. Although the state submitted evidence 

on the weight of the baggie’s contents, it did not offer any evidence on whether that 

weight included ingredients other than cocaine. Id. at ¶ 46-47. As a result, the 

Sixth District held that the penalty enhancement under R.C. 2925.11(C)(4)(f) must 

be reversed and vacated. Id. at ¶ 47. 

{¶ 7} The Sixth District, sua sponte, certified a conflict with the judgment 

of the Second District in State v. Smith, 2d Dist. Greene No. 2010-CA-36, 2011-

Ohio-2568. We recognized the conflict, 143 Ohio St.3d 1402, 2015-Ohio-2747, 34 

N.E.3d 131, and accepted the state’s discretionary appeal, 143 Ohio St.3d 1403, 

2015-Ohio-2747, 34 N.E.3d 132. The sole issue before this court is whether, in 
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4

prosecutions for possession of cocaine, the offense level is determined by the 

weight of only the actual cocaine or whether it is determined by the total weight of 

the cocaine plus any filler. 

II. Legal Analysis 

Standard of Review 

{¶ 8} The interpretation of a statute is a matter of law, and thus we review 

the court of appeals’ decision de novo, including consideration of the statute’s 

ambiguity. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, 

¶ 9. Our main objective is to determine and give effect to the legislative intent. 

State ex rel. Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of 

Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). To accomplish this task, 

we first must look at the language of the statute itself. Provident Bank v. Wood, 36 

Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). If the language is clear and 

unambiguous, we must apply it as written. “[I]t is the duty of this court to give 

effect to the words used, not to delete words used or to insert words not used.” 

Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 

127, 254 N.E.2d 8 (1969). 

{¶ 9} It is also a cardinal rule of statutory construction that a statute should 

not be interpreted to yield an absurd result. State ex rel. Dispatch Printing Co. v. 

Wells, 18 Ohio St.3d 382, 384, 481 N.E.2d 632 (1985); Slater v. Cave, 3 Ohio St. 

80, 83 (1853) (“where the literal construction of a statute would lead to gross 

absurdity, or where, out of several acts touching the same subject matter, there arise 

collaterally any absurd consequences, manifestly contradictory to common reason, 

the obvious intention of the law must prevail over a literal interpretation * * *”). 

See also R.C. 1.47(C) (“In enacting a statute, it is presumed that * * * [a] just and 

reasonable result is intended”). Principles of statutory construction require that 

courts interpret statutes to reflect a consistent legislative intent. 
January Term, 2016 

5

{¶ 10} We have, however, emphasized that “ ‘where there is ambiguity in a 

criminal statute, doubts are resolved in favor of the defendant.’ ” State v. Young, 

62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 

U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This canon of strict 

construction, also known as the rule of lenity, is codified in R.C. 2901.04(A), which 

provides that sections of the Revised Code that define offenses or penalties “shall 

be strictly construed against the state, and liberally construed in favor of the 

accused.” Under the rule, ambiguity in a criminal statute is construed so as to apply 

the statute only to conduct that is clearly proscribed. United States v. Lanier, 520 

U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). 

The Statute—R.C. 2925.11(C)(4) 

{¶ 11} Gonzales was convicted of possession of cocaine in violation of R.C. 

2925.11, which provides: 

 (A) No person shall knowingly obtain, possess, or use a 

controlled substance or a controlled substance analog. 

 * * * 

 (C) Whoever violates division (A) of this section is guilty of 

one of the following: 

 * * * 

 (4) If the drug involved in the violation is cocaine or a 

compound, mixture, preparation, or substance containing cocaine, 

whoever violates division (A) of this section is guilty of possession 

of cocaine. The penalty for the offense shall be determined as 

follows: 

 (a) Except as otherwise provided in division (C)(4)(b), (c), 

(d), (e), or (f) of this section, possession of cocaine is a felony of the 

fifth degree, and division (B) of section 2929.13 of the Revised 
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6

Code applies in determining whether to impose a prison term on the 

offender. 

 (b) If the amount of the drug involved equals or exceeds five 

grams but is less than ten grams of cocaine, possession of cocaine is 

a felony of the fourth degree, and division (B) of section 2929.13 of 

the Revised Code applies in determining whether to impose a prison 

term on the offender. 

 (c) If the amount of the drug involved equals or exceeds ten 

grams but is less than twenty grams of cocaine, possession of 

cocaine is a felony of the third degree, and, except as otherwise 

provided in this division, there is a presumption for a prison term for 

the offense. If possession of cocaine is a felony of the third degree 

under this division and if the offender two or more times previously 

has been convicted of or pleaded guilty to a felony drug abuse 

offense, the court shall impose as a mandatory prison term one of 

the prison terms prescribed for a felony of the third degree. 

 (d) If the amount of the drug involved equals or exceeds 

twenty grams but is less than twenty-seven grams of cocaine, 

possession of cocaine is a felony of the second degree, and the court 

shall impose as a mandatory prison term one of the prison terms 

prescribed for a felony of the second degree. 

 (e) If the amount of the drug involved equals or exceeds 

twenty-seven grams but is less than one hundred grams of cocaine, 

possession of cocaine is a felony of the first degree, and the court 

shall impose as a mandatory prison term one of the prison terms 

prescribed for a felony of the first degree. 

 (f) If the amount of the drug involved equals or exceeds one 

hundred grams of cocaine, possession of cocaine is a felony of the 
January Term, 2016 

7

first degree, the offender is a major drug offender, and the court shall 

impose as a mandatory prison term the maximum prison term 

prescribed for a felony of the first degree. 

(Emphasis added.) The possession of any amount of cocaine is at least a felony of 

the fifth degree. 

{¶ 12} This version of R.C. 2925.11(C)(4)(f) was enacted as part of 

Am.Sub.H.B. No. 86 (“H.B. 86”), effective September 30, 2011. Previous versions 

of R.C. 2925.11 had set forth the degrees of the cocaine-possession offense using a 

range of the amount of the drug possessed and differentiated cocaine from crack 

cocaine. See 1998 Am.Sub.S.B. No. 66, 147 Ohio Laws, Part III, 6772, 6820-6821. 

For example, prior to H.B. 86, former R.C. 2925.11(C)(4)(f) read: “If the amount 

of the drug involved exceeds one thousand grams of cocaine that is not crack 

cocaine * * *, possession of cocaine is a felony of the first degree * * *.” (Emphasis 

added.) Id. at 6821. However, H.B. 86 amended several sections of the criminal 

code to decrease the offense classifications, thereby reducing the penalty or 

punishment for some offenses. The words “that is not crack cocaine” were removed 

from R.C. 2925.11, while “of cocaine” remained. As we previously noted, “one of 

the purposes of H.B. 86 was to ‘eliminate the difference in criminal penalties for 

crack cocaine and powder cocaine.’ Title, H.B. 86.” State v. Limoli, 140 Ohio St.3d 

188, 2014-Ohio-3072, 16 N.E.3d 641, ¶ 3. 

{¶ 13} The state argues that the Sixth District Court of Appeals 

misinterpreted R.C. 2925.11(C)(4)(f) by requiring proof of the weight of the 

amount of actual cocaine in exhibit 13, to the exclusion of any filler material. It 

points out that R.C. 2925.11(C)(4) recognizes that the “drug involved” can be 

“cocaine or a compound, mixture, preparation, or substance containing cocaine.” 

Because the drug involved can be a mixture, the state reasons that the weight 

requirements in R.C. 2925.11(C)(4)(b) through (f) do not refer to the weight of pure 
SUPREME COURT OF OHIO

8

cocaine only. The state contends that the appellate court improperly focused on the 

words “of cocaine” in R.C. 2925.11(C)(4)(f) to limit the drug involved to actual 

cocaine. The state would explain the inclusion of the phrase “of cocaine” as a 

holdover from the prior version of the statute, in which the legislature distinguished 

between powder cocaine and crack cocaine. It argues that the literal interpretation 

of the statute adopted by the Sixth District creates an absurd result and that the 

General Assembly did not intend to require a purity analysis of cocaine in 

prosecutions for possession of cocaine. 

{¶ 14} The state and its amici note that Ohio’s state labs perform 

aggregate/qualitative analyses but not purity/quantitative analyses of drugs. They 

contend that it will take a significant amount of time for state labs to become 

accredited to do the purity testing mandated by the Sixth District’s decision and 

that this process will hamper efforts to prosecute cocaine trafficking and possession 

cases. The state believes that R.C. 2925.11(C)(4)(b) through (f) authorize the 

aggregate weight of the substance to determine the offense level and penalty as long 

as there is a detectible amount of cocaine. 

The Conflict Cases

{¶ 15} In this case, the Sixth District agreed with the state that the plain 

language of R.C. 2925.11(C)(4) allows a jury to consider the total weight of the 

substance in the baggie containing cocaine. 2015-Ohio-461, ¶ 41. However, to be 

convicted of the MDO specification, the offender must possess an amount that 

equals or exceeds “at least one hundred grams of cocaine.” (Emphasis added.) R.C. 

2929.01(W) and 2925.11(C)(4)(f); see also R.C. 2925.01(X) (defining cocaine). 

The appellate court compared this language to the provisions for marihuana and 

heroin in R.C. 2925.11 and found that those subsections did not modify “drug 

involved” with “of marihuana” or “of heroin.” Id. at ¶ 42. See also R.C. 

2925.11(C)(3)((b) and (6)(b). It also noted that the definition of “cocaine” in R.C. 

2925.01(X) and 3719.41 differs from that of many other drugs, in that most other 
January Term, 2016 

9

drugs are defined broadly to include a mixture of the drug within that particular 

drug’s definition. 2015-Ohio-461, at ¶ 43. For example, “marihuana” is defined 

as “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.” R.C. 2925.01(AA) and 3719.01(O). In contrast, R.C. 

2925.01(X) provides: 

 “Cocaine” means any of the following: 

 (1) A cocaine salt, isomer, or derivative, a salt of a cocaine 

isomer or derivative, or the base form of cocaine; 

 (2) Coca leaves or a salt, compound, derivative, or 

preparation of coca leaves, including ecgonine, a salt, isomer, or 

derivative of ecgonine, or a salt of an isomer or derivative of 

ecgonine; 

 (3) A salt, compound, derivative, or preparation of a 

substance identified in division (X)(1) or (2) of this section that is 

chemically equivalent to or identical with any of those substances, 

except that the substances shall not include decocainized coca leaves 

or extraction of coca leaves if the extractions do not contain cocaine 

or ecgonine. 

Because the definition of “cocaine” does not include a “mixture,” the Sixth District 

concluded that “a defendant may be held liable for cocaine offenses under R.C. 

2925.11 for only that portion of the disputed substance that is chemically identified 

as cocaine.” 2015-Ohio-461 at ¶ 45. 

{¶ 16} The Second District in Smith, 2011-Ohio-2568, at ¶ 12, rejected the 

defendant’s argument that the weight of “the drug involved” should not include 
SUPREME COURT OF OHIO

10 

parts of the substance other than the actual cocaine. Smith’s argument centered on 

the definition of “drug” incorporated from 4729.01(E)(3) in R.C. 2925.01(C), 

which includes “[a]ny article, other than food, intended to affect the structure or 

any function of the body of humans or animals.” (Emphasis added.) Because 

cocaine may be mixed with food like baking soda, sugar, or corn starch, Smith had 

argued that the state was required to prove the weight of the cocaine that he had 

sold apart from any food. 2011-Ohio-2568 at ¶ 11. The Second District disagreed, 

stating that the drug involved was an off-white chunky substance containing 

cocaine and was not typical food or drink. Id. at ¶ 12. It also relied on some preH.B. 86 cases to conclude that the state was not required to segregate the cocaine 

from the other ingredients in the substance to prove the weight of the drug. Id. 

{¶ 17} The state fails to point to any ambiguity in the statute. Without that, 

we must simply apply the statute as it is written, without delving into legislative 

intent. Although the state argues that the Sixth District’s interpretation would lead 

to absurd or unjust results and that cocaine should not be treated differently from 

any other controlled substance, we cannot agree. Subsections (C)(4)(b) through (f) 

are written differently from the other subsections of R.C. 2925.11: the term “drug 

involved” is modified by the words “of cocaine.” The state is quick to call this a 

faux pas on the part of the General Assembly when it amended R.C. 2925.11(C)(4) 

in H.B. 86, but we are not as sure. As an amicus arguing in support of Gonzales 

points out, while H.B. 86 eliminated the separate sentencing scheme for crack 

cocaine, it also significantly lowered the amount of cocaine necessary to trigger an 

elevation in sentence. H.B. 86, however, was designed to reduce prison sentences 

for nonviolent offenders, and lowering the amount of cocaine needed to elevate a 

prison sentence would be inconsistent with this purpose, according to the Ohio 

Public Defender. If the statute requires the state to prove the weight of the actual 

cocaine, however, and not simply the weight of a compound or mixture containing 

cocaine, then the legislative objectives are accomplished. 
January Term, 2016 

11 

{¶ 18} The dissent contends that we are ignoring the reality that powder 

cocaine is a compound of several substances. The chemical makeup of cocaine is 

not the issue, however. The question is whether the filler material added to cocaine 

is considered part of the drug involved for violations of R.C. 2925.11(C)(4). For a 

violation of R.C. 2925.11(C)(4)(a), the amount of filler material versus the amount 

of cocaine is irrelevant because there is no weight requirement. Possession of any 

amount of cocaine is a fifth-degree felony. To be guilty of a higher degree felony, 

however, R.C. 2925.11(C)(4)(b) through (f) require that a person possess a certain 

amount “of cocaine.” 

{¶ 19} The dissent also contends that a “compound” is the same thing as a 

“mixture,” and therefore the definition of “cocaine” encompasses cocaine mixed 

with filler material. But if “mixture” is the same as “compound,” the General 

Assembly would not have needed to put both terms into the definitions of 

marihuana or methamphetamine. See R.C. 2925.01(AA) and 3719.01(O); R.C. 

2925.01(II). The rules of statutory construction require courts to give each word in 

a statute or regulation effect. E. Liverpool v. Columbiana Cty. Budget Comm., 105 

Ohio St.3d 410, 2005-Ohio-2283, 827 N.E.2d 310, ¶ 8. We therefore cannot 

consider a “compound” to be a “mixture” of cocaine and filler material. 

{¶ 20} We find nothing in the language of R.C. 2925.11(C)(4)(f) to be 

ambiguous. By its plain terms, the statute prohibits the possession of 100 grams or 

more of cocaine. In order to read the statute as the state would have us do, we 

would need to either delete the phrase “of cocaine” or add the phrase “or a 

compound, mixture, preparation of substance containing cocaine.” While we 

recognize that this interpretation of R.C. 2925.11(C)(4)(f) may make the 

prosecution of possession of cocaine offenses harder for the state because state 

laboratories are not equipped or certified to do a purity analysis, it does not render 

prosecutions impossible. In another case from the Sixth District, the state used 

laboratory reports from a facility in Chicago, Illinois that specified the total weight 
SUPREME COURT OF OHIO

12 

of the substances involved and a percent of actual cocaine in those substances. See 

State v. Sanchez, 6th Dist. No. S-14-030, 2016-Ohio-542, ¶ 15. 

{¶ 21} The dissent alleges that this holding conflicts with our decisions in 

State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, and 

Garr v. Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449, 933 

N.E.2d 1063. But both cases are easily distinguishable based on their facts. In 

Chandler, the substance that was sold as crack cocaine was actually baking soda. 

We held that imposing the penalty enhancement as a major drug offender when the 

substance did not contain any cocaine was contradictory to the language of R.C. 

2925.03(C)(4)(g) (trafficking offenses). Because there was no cocaine involved, 

we were not presented with the question whether the weight of a mixed substance 

that included cocaine was sufficient to declare a defendant a major drug offender. 

Similarly, Garr involved an offer-to-sell drug-trafficking case in which no drugs 

were recovered during the investigation of the crime. Again, because there was no 

substance to be weighed, we were not asked whether the total weight of the 

substance or the weight of actual cocaine counted. 

{¶ 22} While the state’s arguments concerning legislative intent and the 

consequences of the Sixth District’s interpretation are persuasive in regard to what 

the statute should say, the arguments are insufficient to overcome what the statute 

clearly does say. The remedy is to be found in the legislature, not a tortured judicial 

interpretation of a statute unambiguous on its face. Given the unambiguous 

language of the statute, we answer the certified conflict question in the affirmative 

and hold that in prosecuting cocaine-possession offenses under R.C. 

2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that 

the weight of the actual cocaine, excluding the weight of any filler materials, meets 

the statutory threshold. 

{¶ 23} The judgment of the Sixth District Court of appeals is affirmed. 

Judgment affirmed. 
January Term, 2016 

13 

PFEIFER and O’NEILL, JJ., concur. 

KENNEDY, J., concurs in judgment only, with an opinion. 

O’CONNOR, C.J., dissents, with an opinion joined by O’DONNELL and 

FRENCH, JJ. 

_________________ 

KENNEDY, J., concurring in judgment only. 

{¶ 24} I concur only in the judgment of the lead opinion today because I 

must. 

{¶ 25} “Where a statute is found to be subject to various interpretations, 

* * * a court called upon to interpret its provisions may invoke rules of statutory 

construction in order to arrive at legislative intent.” Meeks v. Papadopulos, 62 Ohio 

St.2d 187, 190, 404 N.E.2d 159 (1980). “The object of judicial investigation in the 

construction of a statute is to ascertain and give effect to the intent of the lawmaking 

body which enacted it.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), 

paragraph one of the syllabus. 

{¶ 26} However, the intent of the General Assembly must be determined 

primarily from the language of the statute itself. Stewart v. Trumbull Cty. Bd. of 

Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). If the statute is 

ambiguous, the court “may” consider the “matters” listed in R.C. 1.49 to identify 

the legislature’s intent: the object that the legislature sought to attain, the 

circumstances surrounding the law’s enactment, legislative history, preceding law, 

the consequences of constructing the law in a certain way, and the statute’s 

administrative construction. Id. 

{¶ 27} Through enactment of R.C. 2925.11(A), the General Assembly set 

forth a general provision that no person shall “knowingly obtain, possess, or use a 

controlled substance or a controlled substance analog.” Thereafter, the legislature 

enacted specific prohibitions based on the class and amount of a controlled 
SUPREME COURT OF OHIO

14 

substance or controlled substance analog in the offender’s possession. See

R.C.2925.11(C). 

{¶ 28} At issue here is R.C. 2925.11(C)(4), which provides, “If the drug 

involved in the violation is cocaine or a compound, mixture, preparation, or 

substance containing cocaine, whoever violates division (A) of this section is guilty 

of possession of cocaine.” The General Assembly also enacted specific penalty 

provisions related to the possession of cocaine which, depending on the weight of 

the drug involved, categorized possession into classifications by a degree of felony. 

See R.C. 2925.11(C)(4)(b) through (f). 

{¶ 29} I disagree with the conclusions of the lead opinion and the dissent 

that the language of the statute is unambiguous. When the language of the specific 

prohibition by class of controlled substance is read in conjunction with the 

corresponding penalty provision, the statute is ambiguous. See Symmes Twp. Bd. 

of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000) (conflict 

among the appellate courts regarding the meaning of statutory phrase suggests that 

the language is ambiguous). The specific penalty provision uses the phrase “grams 

of cocaine.” R.C. 2925.11(C)(4)(b) through (f). As noted in the lead opinion, the 

definition of “cocaine” does not include a mixture of the drug. Opinion at ¶ 15. 

See R.C. 2925.01(X). Therefore, if the General Assembly had intended to classify 

possession by degree of felony to include the “compound, mixture, preparation, or 

substance containing cocaine,” then it could have easily included that language in 

the provision or changed the definition of “cocaine” to include this language. 

However, the legislature did not. The General Assembly limited the classification 

by degree of felony to “grams of cocaine” only. 

{¶ 30} The state of Ohio argues that “the drafters made a probable slight 

faux pas” in amending this provision, and to “read the statute in any * * * way” 

other than that the General Assembly requires a mere “aggregate weight” test 

“belies the legislative intent of the law.” 
January Term, 2016 

15 

{¶ 31} When a statute is ambiguous, R.C. 1.49 allows us to consider other 

matters to determine the intention of the General Assembly, including legislative 

history. “Although this court is not bound by” the analyses prepared by the Ohio 

Legislative Service Commission, “we may refer to them when we find them helpful 

and objective.” Meeks, 62 Ohio St.2d at 191, 404 N.E.2d 159. 

{¶ 32} The Ohio Legislative Service Commission recognized that one 

aspect of 2011 Am.Sub.H.B. No. 86 (“H.B. 86”) was to eliminate “the distinction 

between the criminal penalties provided for drug offenses involving crack cocaine 

and * * * powder cocaine,” but a second aspect of the law was to remove the 

presumption of a term of incarceration for fourth-degree felony drug offenses. Ohio 

Legislative Service Commission, Bill Analysis, Am.Sub.H.B. 86, as passed by the 

General Assembly, at 9. 

{¶ 33} Heralded as a significant piece of legislation that would drastically 

reduce prison population by ensuring that low-level nonviolent drug offenders 

would not be subjected to mandatory prison terms, the director of the Department 

of Rehabilitation and Correction called H.B. No. 86 “a day of hope.” Johnson, Law 

to Cut Prison Population, Columbus Dispatch (June 30, 2011) 1B. 

{¶ 34} In achieving this reduced prison population by eliminating 

presumptive prison sentences for some nonviolent drug offenders, the requirement 

that prosecutors prove the “grams of cocaine” signals the legislature’s intention: 

only drug offenders possessing the specific grams of pure cocaine identified in R.C. 

2925.11(C)(4) were eligible for incarceration, not drug offenders whose product 

had a detectable amount. Compare State v. Chandler, 109 Ohio St.3d 223, 2006-

Ohio-2285, 846 N.E.2d 1234, syllabus. 

{¶ 35} The General Assembly specifically used the language “grams of 

cocaine” without any further qualifiers. If the General Assembly had intended to 

include the “compound, mixture, preparation, or substance containing cocaine,” 

R.C. 2925.11(C)(4), into the weight threshold for punishing possession of cocaine, 
SUPREME COURT OF OHIO

16 

then the General Assembly has the opportunity to specify a different remedy or 

change the definition of “cocaine” to include this language. “It is not the role of 

the courts ‘to establish legislative policies or to second-guess the General 

Assembly’s policy choices.’ ” Stetter v. R.J. Corman Derailment Servs., L.L.C., 

125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35, quoting Groch v. 

Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-54, 883 N.E.2d 377, ¶ 212. 

“[O]ur role, as members of the judiciary, requires fidelity to the separation-ofpowers doctrine.” State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 

734, ¶ 28 (O’Conner, C.J., concurring). “[W]e must respect that the people of Ohio 

conferred the authority to legislate solely on the General Assembly.” Id., citing 

Sandusky City Bank v. Wilbor, 7 Ohio St. 481, 487-488 (1857), and Article II, 

Section 1, Ohio Constitution. 

{¶ 36} Therefore, I concur in judgment only. 

_________________ 

O’CONNOR, C.J., dissenting. 

{¶ 37} Under R.C. 2925.11, drug possession is penalized according to the 

amount of the drug involved. The lead opinion’s interpretation introduces a purity 

or weight requirement for cocaine possession that is not found in the language of 

the statute or supported by the reality of how cocaine is produced, distributed, or 

consumed. Thus, I respectfully dissent. 

{¶ 38} Powder cocaine is a compound of several ingredients: 

[C]ocaine powder is derived by dissolving the coca paste in 

hydrochloric acid and water. To this mixture a potassium salt 

(potassium permanganate) is added. The potassium salt causes 

undesired substances to separate from the mixture. These 

substances are then discarded. Ammonia is added to the remaining 

solution, and a solid substance—the powder cocaine—separates 
January Term, 2016 

17 

from the solution. The powder cocaine is removed and allowed to 

dry. Prior to distribution, powder cocaine typically is “cut,” or 

diluted, by adding * * * one or more adulterants: sugars, local 

anesthetics (e.g., benzocaine), other drugs, or other inert substances. 

Consequently, the purity level of powder cocaine may vary 

considerably. 

(Footnotes omitted.) United States Sentencing Commission, Special Report to the 

Congress: Cocaine and Federal Sentencing Policy 12 (Feb.1995), 

http://www.ussc.gov/research/congressional-reports/1995-report-congresscocaine-and-federal-sentencing-policy (accessed Oct. 25, 2016). See also Ohio 

Substance Abuse Monitoring Network, Drug Abuse Trends in the Cleveland 

Region 81 (Jan.-June 2014), http://www.documentcloud.org/documents/1659531-

drug-abuse-trends-in-the-cleveland-region.html#document/p1 (accessed Nov. 2, 

2016) (cocaine powder in the Cleveland area is cut with lidocaine, procaine, and 

levamisole, a livestock dewormer); Ohio Substance Abuse Monitoring Network, 

Drug Abuse Trends in the Columbus Region 102 (Jan.-June 2014), 

http://mha.ohio.gov/Portals/0/assets/Research/OSAMTRI/Columbus%20Jan%202015.pdf (accessed Nov. 2, 2016) (in the Columbus 

area, cocaine is cut with lidocaine, procaine, levamisole, baby formula, and 

“anything that is white and powdered”). 

{¶ 39} Purity levels of powder cocaine trend downward as the drug is 

separated into smaller volumes for distribution. For example, in 1995, when purity 

levels were considered relatively high, a kilogram of cocaine powder averaged 85 

percent pure, an ounce averaged 70 percent pure, and a gram averaged 63 percent 

pure. Abstract, National Criminal Justice Reference Serv., United States Justice 

Dept., Drug Enforcement Administration, Illegal Drug Price/Purity Report, United 

States: Jan.1992—Mar.1995 (1995), https://www.ncjrs.gov/App/publications 
SUPREME COURT OF OHIO

18 

/abstract.aspx?ID=158868 (accessed Nov. 16, 2016). Thus, even in kilogram 

volume, much more than would typically be possessed for individual consumption, 

powder cocaine is not pure. 

{¶ 40} Importantly, the fillers, or adulterants, that reduce the purity level of 

cocaine along the distribution chain are not intended to be removed before 

consumption. Quality varies, but this variation does not change the fact that a range 

of concentrations renders usable cocaine. See Drug Abuse Trends in the Columbus 

Region at 102 (A participant in the focus group interviews stated, “ ‘[Quality of 

cocaine] just depends who you get it from * * * [current quality is] garbage’ ”). 

(Brackets sic and emphasis deleted.) The fillers are inherent in the usable drug. 

That anything less than what is actually sold and consumed as cocaine would 

determine the penalty for cocaine possession is illogical and contrary to reality. 

{¶ 41} Indeed, the plain language of the statute demonstrates that the 

General Assembly understood the composition of cocaine and the nature of its 

distribution, because it defined the offense and the drug in broad terms: “If the drug 

involved in the violation is cocaine or a compound, mixture, preparation, or 

substance containing cocaine, whoever violates division (A) of this section is guilty 

of possession of cocaine.” (Emphasis added.) R.C. 2925.11(C)(4). 

{¶ 42} This description is consistent with the General Assembly’s 

definition of cocaine to include “[a] salt, compound, derivative, or preparation of [a 

cocaine salt, isomer, or derivative].” (Emphasis added.) R.C. 2925.01(X)(3). See 

also R.C. 3719.41 (Schedule II(A)(4)). The Sixth District concluded that this 

definition of cocaine does not include the entire mixture. 2015-Ohio-461 at ¶ 45. 

But the statutory definition of cocaine plainly encompasses a compound that 

includes cocaine. And “compound” means “something (as a substance * * *) that 

is formed by a union of * * * ingredients.” Webster’s Third New International 

Dictionary 466 (1986). In other words, a compound is a mixture. 
January Term, 2016 

19 

{¶ 43} The lead opinion agrees with the appellate court’s analysis, ignoring 

definitions to achieve an overly narrow reading of the statute. Specifically, the lead 

opinion concludes that in the penalty portion of the statute, “[i]f the amount of the 

drug involved equals or exceeds one hundred grams of cocaine,” the term “drug 

involved” is modified by the words “of cocaine.” Opinion at ¶ 17. The opinion 

further concludes that the term “of cocaine” means “actual cocaine, excluding the 

weight of any filler materials.” Id. at ¶ 22. And the court opinion asserts that a 

“compound” and “mixture” of cocaine are distinct. Court opinion at ¶ 19. 

{¶ 44} But the statutory definition of “cocaine” is a “compound, derivative, 

or preparation” containing cocaine. R.C. 2925.01(X)(3). It is a stretch of 

interpretive muscle to conclude that a cocaine mixture—which according to the 

court opinion is cocaine and filler material—in the form that is to be consumed is 

not a cocaine “compound, derivative, or preparation.” Indeed, it is just that: 

cocaine. 

{¶ 45} “[W]ords in a statute do not exist in a vacuum. D.A.B.E., Inc. v. 

Toledo-Lucas County Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 

N.E.2d 536, ¶ 19. The words must be read in context and construed according to 

common usage. R.C. 1.42. And we must interpret the statute as a whole, giving 

effect to all the words in the statute. Commerce & Indus. Ins. Co. v. Toledo, 45 

Ohio St.3d 96, 102-103, 543 N.E.2d 1188 (1989). 

{¶ 46} Doing so here requires us to give effect to the statutory definitions 

of “cocaine” and “drug involved,” which include a mixture. Read as a whole, the 

statute clearly seeks to penalize the amount of compounded cocaine in the 

offender’s possession, regardless of whether the form of the drug is pure or mixed. 

{¶ 47} But under the court opinion’s interpretation of the statute, it does not 

matter how much usable drug Gonzales possessed. Instead, because concentration 

levels vary considerably (but are almost always less than 100 percent), the state 

must—in every case—reverse engineer the compound or mixture of powder 
SUPREME COURT OF OHIO

20 

cocaine to separate its parts and determine purity, even when the state has proven 

the substance to be cocaine under the statutory definition.2

 The court opinion would 

create an arbitrary purity distinction for cocaine-possession offenses even though 

the clear intent of the statute is to establish the appropriate penalty for cocaine 

possession by the weight of the drug compound involved. The greater the “amount 

of the drug involved,” not the purity level of the drug involved, the greater the 

penalty. R.C. 2925.11(C)(4). 

{¶ 48} The lead opinion’s conclusion that the General Assembly would 

treat the weight of cocaine differently from how the drug is treated and sold on the 

street renders the statute’s penalty-by-weight distinctions irrelevant. For example, 

imagine two drug offenders who each possess 150 grams of powder cocaine. The 

first has a 60-percent pure product and the second a 70-percent pure product. Under 

the lead opinion’s arbitrary distinction of separating “cocaine” from filler, they 

would be penalized differently. The first would possess a net weight of 90 grams 

of cocaine salt and be subject to a first-degree felony with a prison term chosen 

among those prescribed for a first-degree felony. See 2925.11(C)(4)(e). The 

second offender would possess 105 net grams of cocaine salt and, along with the 

first-degree felony conviction, would be labeled a major drug offender and subject 

to a mandatory maximum prison term. See 2925.11(C)(4)(f). But both offenders 

possessed 150 grams of cocaine, and the small purity difference would mean little 

 

2

 Gonzales insists he is not arguing that the state must prove purity of a cocaine mixture. But that 

is exactly the effect of having to separate “actual cocaine” from fillers. For example, if the cocaine 

at issue is 10 percent pure, then it is 90 percent filler. In other words, a defendant who possesses 

100 grams of usable cocaine powder that is 10 percent pure would be penalized under the statute for 

possessing only 10 grams, rather than 100 grams. See also People v. McLaurin, 157 Misc.2d 783, 

785, 598 N.Y.S.2d 911 (1993) (describing the procedures used by the New York City Police 

Laboratory to determine the “pure weight” of a cocaine mixture by calculating the aggregate weight, 

grinding the contents of the powder into a homogenous mixture, extracting small sample quantities 

across the mixture, testing the samples by gas chromatography to determine purity, and then 

calculating “pure weight” by multiplying the aggregate weight and the estimated purity). 
January Term, 2016 

21 

or nothing to the buyer or user. If the General Assembly had been concerned about 

purity, rather than total weight, it would have said so. 

{¶ 49} We are aware of only two states that require purity testing of cocaine 

to determine the penalty level of the offense. In both, the relevant statutes expressly 

require pure weight. For example in Georgia, a cocaine-trafficking offense exists 

for “any mixture with a purity of 10 percent or more of cocaine.” Ga.Code.Ann. 

Section 16-13-31(a). In New York, a possession offense can be based on having 

500 milligrams or more of cocaine based on a “pure weight” standard, or by having 

an aggregate weight of one-eighth ounce or more of cocaine regardless of the purity 

of the drug. N.Y. Penal Law Section 220.06. 

{¶ 50} Ohio’s cocaine-possession statute resembles neither of these state’s 

schemes. Thus, we note these examples to demonstrate how rarely a legislature 

adopts such an approach and the clear intent it expresses when it does. 

{¶ 51} Additionally, the lead opinion does not adequately explain why it 

today interprets the cocaine-possession statute differently from how this court 

interpreted substantially similar language in an earlier cocaine-trafficking statute, 

R.C. 2925.03(C)(4)(g), 2000 Am.H.B. No. 528, 148 Ohio Laws, Part III, 5767, 

5772, in 2006.3 Quoting that statute, in State v. Chandler, 109 Ohio St.3d 223, 

2006-Ohio-2285, 846 N.E.2d 1234, ¶ 18, we held that the penalty provisions for 

cocaine trafficking required that “the substance involved in the violation is to be

cocaine or, at the very least, a ‘compound, mixture, preparation, or substance 

containing cocaine.’ ” See also Garr v. Warden, Madison Corr. Inst., 126 Ohio 

 

3

 At the time, the statute stated, “If the amount of the drug involved * * * exceeds one hundred 

grams of crack cocaine * * *, trafficking in cocaine is a felony of the first degree * * *.” (Emphasis 

added.) Although the cocaine-trafficking and cocaine-possession statutes no longer make a 

distinction between crack cocaine and other forms of the drug, the language in both statutes today 

that requires a certain amount “of cocaine” for a mandatory prison sentence is not materially 

different. Compare R.C. 2925.11(C)(4)(f) (possessing 100 or more grams of cocaine is a firstdegree felony with a mandatory prison sentence) with 2925.03(C)(4)(g) (trafficking in 100 grams 

or more of cocaine is a first-degree felony with the same mandatory prison sentence). 
SUPREME COURT OF OHIO

22 

St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063, ¶ 28 (limiting Chandler to those 

cases in which the substance offered for sale is recovered and subjected to testing). 

And, despite the opinion’s insistence that Chandler is distinguishable, that case 

rested on statutory interpretation, not facts. And the court announced in its syllabus 

the legal principle that, to be sentenced as a major drug offender, “[a] substance 

offered for sale must contain some detectable amount of the relevant controlled 

substance.” Chandler at syllabus. The lead opinion identifies no basis for 

announcing a divergent statutory interpretation of the same language in the cocainepossession statute. And until the appellate court’s decision in this case, Chandler 

has remained a basis for trafficking and possession convictions that have relied on 

the total weight of the substance containing the drug. See, e.g., State v. Jackson, 

9th Dist. Lorain No. 15CA010828, 2016-Ohio-7637, ¶ 17, 19; State v. Reese, 5th 

Dist. Muskingum No. CT2015-0046, 2016-Ohio-1591, ¶ 6. We have accepted a 

jurisdictional appeal in Reese and have held it for the resolution of this case. 146 

Ohio St.3d 1427, 2016-Ohio-4606, 52 N.E.3d 1203. 

{¶ 52} Here, there is no dispute that the substance in the baggie was cocaine. 

The only dispute is how much of the contents of the baggie was filler. As a result 

of the lead opinion’s interpretation, the offense level for cocaine possession will be 

determined by an amount that is less than the amount of cocaine in the offender’s 

possession. This result gives effect to neither the statute as a whole nor the intent 

of the legislature as expressed in the words of the statute. Because the plain 

language of the statute requires us to answer the certified question in the negative 

and hold that the offense level is determined by the total weight of the cocaine plus 

any filler, I dissent. 

 O’DONNELL and FRENCH, JJ., concur in the foregoing opinion. 

_________________ 

 Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold 

and Gwen K. Howe-Gebers, Assistant Prosecuting Attorneys, for appellant. 
January Term, 2016 

23 

 Mayle Ray & Mayle L.L.C., Andrew R. Mayle, Jeremiah S. Ray, and 

Ronald J. Mayle, for appellee. 

 Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, 

Michael J. Hendershot, Chief Deputy Solicitor, and Hannah C. Wilson, Deputy 

Solicitor, urging reversal for amicus curiae Ohio Attorney General Michael 

DeWine. 

 Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel 

T. Van, Assistant Prosecuting Attorney, urging reversal for amici curiae Ohio 

Prosecuting Attorney’s Association and Cuyahoga County Prosecutor’s Office. 

 Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant State 

Public Defender, urging affirmance for amicus curiae Office of the Ohio Public 

Defender. 

_________________