Preble ruling reversed by District Court


MIDDLETOWN — The Twelfth District Court of Appeals has reversed the granting of a motion for intervention in lieu of conviction in favor of a Preble County man charged with carrying a concealed weapon and discharging a firearm on or near prohibited premises.

Charles E. Tolson was charged with carrying a concealed weapon and discharging a firearm on or near prohibited premises after police responded to a report that two men were seen shooting guns at Water Works Park. Officers identified Tolson as a suspect. Tolson acknowledged to the officers that he was carrying a gun. The officers found the gun concealed in the rear waistline of his pants. Tolson admitted to firing the gun.

Police noted that Tolson smelled of alcohol, but that Tolson claimed he drank only one beer hours earlier.

Tolson subsequently asked that the trial court order him into treatment rather than convicting him of the crimes. The trial court granted the motion.

The state appealed to the Twelfth District and argued that the trial court erred in granting the motion for intervention in lieu of conviction without finding that drugs or alcohol played a factor in the offenses with which Tolson was charged.

Writing for a unanimous court, Judge Robert P. Ringland found that the statute permitting intervention in lieu of conviction requires that the trial court find that drugs or alcohol were a factor in the commission of the offenses. Judge Ringland concluded that the trial court failed to make such a finding before granting the motion. Presiding Judge Robin N. Piper and Judge Robert A. Hendrickson concurred in the opinion.

The decision of the Twelfth District Court of Appeals reversed the granting of a motion for intervention in lieu of conviction in favor of Tolson.

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