The 6th District Court of Appeals yesterday vacated the conviction of a former Toledo pharmacist who was accused of illegally selling bottles of cough syrup containing codeine.
The appellate court ruled that because cough syrup is not a controlled substance, Thomas Hutton can't be convicted of drug trafficking, because he sold the item at his central-city drug store.
Mr. Hutton was convicted in July, 2000, on 35 counts of drug trafficking by a jury in Lucas County Common Pleas Court. Judge Judith Lanzinger placed the longtime pharmacy owner on community control for five years.
Mr. Hutton, who ran unsuccessfully for City Council in 1997, was accused of selling thousands of bottles of cough syrup containing codeine from 1992 to 1996 at his store, Hutton Pharmacy, 2101 Dorr St.
The Ohio State Board of Pharmacy revoked Mr. Hutton's license in 1997.
The appellate court's decision reversed a ruling that it made in the same case in 1998 after Judge Lanzinger dismissed a 100-count indictment against Mr. Hutton.
Lucas County prosecutors appealed the decision. The appellate court reversed Judge Lanzinger's decision, remanding it back to the lower court. The appeals court said under some circumstances a pharmacist who unlawfully dispenses controlled substances could be convicted of drug trafficking.
In yesterday's decision, the appeals court said Ohio Pharmacy Board regulations on dispensing cough syrup can't be used as an element in prosecuting Mr. Hutton for drug trafficking.
The court, referring to its earlier ruling, said: "We find our decision in the interlocutory appeal correct in general terms, but misleading in view of the evidence presented at trial."
Mark Geudtner, Mr. Hutton's attorney, praised the appellate judges for reversing its earlier decision. "The court had the good sense to recognize their previous decision was wrong, and they decided to make it right this time," Mr. Geudtner said.
"I had argued from the start that what my client was charged with is not a crime; that these narcotics are exempt from drug abuse and trafficking statutes," he said.
John Weglian, chief of the special units division of the county prosecutor's office, said the decision will be appealed to the Ohio Supreme Court.