State v. Hurd

734 N.E.2d 365, 89 Ohio St. 3d 616

Opinions

Pfeifer, J.

Appellee Hurd was charged with making false representations in regard to registering securities by description. R.C. 1707.44(B)(1). The evidence presented at trial established that any false representations that were made were in regard to registering transactions by description. In its appeal, the state has asked us to determine, for the purposes of imposing criminal liability pursuant to R.C. 1707.44(B)(1), that making false representations in regard to registering transactions by description is the equivalent of making false representations in regard to registering securities by description. For the reasons that follow, we decline the invitation.

Former R.C. 1707.44(B) provided: '

“No person shall knowingly make or cause to be made any false representation concerning a material and relevant fact, in any oral statement or in any prospectus, circular, description, application, or written statement, for any of the following purposes:

“(1) Complying with sections 1707.01 to 1707.45 of the Revised. Code, in regard to registering securities by description.” 140 Ohio Laws, Part I, 1145.

When a statute is plain and unambiguous, as is R.C. 1707.44(B)(1), “there is no occasion for resorting to rules of statutory interpretation.” Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413, paragraph five of the syllabus; Storer Communications, Inc. v. Limbach (1988), 37 Ohio St.3d 193, 194, 525 N.E.2d 466, 467. Accordingly, despite the state’s entreaties, we will not examine “the General Assembly’s manifest intent as evidenced by the legislative purpose, the practical consequences of the lower Court’s construction, the statute’s language, its structure, the absence of any other direct prohibition and the overall statutory scheme.” Instead, we will apply the statute as written and conduct no further investigation. State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 997-998.

We are further constrained in interpreting R.C. 1707.44(B)(1) by R.C. 2901.04(A), which states that “[s]ections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” However, “[t]he canon in favor of strict construction of criminal statutes is not an obstinate rule which overrides common sense and evident statutory purpose.” State v. Sway (1984), 15 Ohio St.3d 112, 115, 15 OBR 265, 268, 472 N.E.2d 1065, 1068.

For purposes of this appeal, we assume that Hurd made false representations. However much our society and our legal system abhor false representations, our General Assembly has not criminalized all such conduct. It may seem that we are mired in a Borgesian Labyrinth or Kafkaesque Castle, where there is a wrongdoing and yet no way to punish the perpetrator.

However, the statute, R.C. 1707.44(B), is clear. The General Assembly differentiates between securities “requiring registration by description,” R.C. 1707.05, and transactions “requiring registration,” R.C. 1707.06. When confronted with an “evident statutory purpose,” we have at times extended the scope of criminal statutes to include analogous conduct. See Sway, supra; State v. Warner (1990), 55 Ohio St.3d 31, 564 N.E.2d 18. Here, however, the General Assembly makes a clear distinction, rendering us unable to determine that securities “requiring registration by description” and transactions “requiring registration” are analogous.

The General Assembly could have included false representations in regard to transactions by description among the prohibitions of R.C. 1707.44(B) or prohibited all false representations made for the purpose of “[cjomplying with sections 1707.01 to 1707.45 of the Revised Code.” R.C. 1707.44(B)(1). The General Assembly did neither, and we will riot, we cannot, pretend that it did.

Unfortunately for the state and all those appalled by the acts committed by various employees of DSI, our review of the record yields the inescapable conclusion that any false representations made by Hurd were not made “in regard to registering securities by description.” R.C. 1707.44(B)(1). Accordingly, Hurd cannot be convicted of violating R.C. 1707.44(B)(1). Further, the making of false representations in regard to registering transactions by description, something we assume Hurd to have done, is not “defined as an offense in the Revised Code,” R.C. 2901.03(A). Accordingly, Hurd cannot be convicted of making false representations in regard to registering transactions by description.¹ We affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas and F.E. Sweeney, JJ., concur. Resnick, Cook and Lundberg Stratton, JJ., dissent.

Footnotes

1

. It is possible that Hurd could have been charged with making false representations for the purpose of “selling” securities, R.C. 1707.44(B)(4), making false statements “with purpose to mislead a public official in performing the public official’s official function,” R.C. 2921.13(A)(3), making false statements “with purpose to secure the issuance by a governmental agency of a license, permit, authorization, certificate, registration, release, or provider agreement,” R.C. 2921.13(A)(5), or making false statements “in writing on or in connection with a report or return [which] is required or authorized by law,” R.C. 2921.13(A)(7).