State v. Patterson

432 N.E.2d 802, 69 Ohio St. 2d 445

• Court: Ohio Supreme Court
• Decided: February 24, 1982
• Docket: Nos. 81-556 and 81-557
• Status: Published

Opinions

Per Curiam.

In State v. Scott (1982), 69 Ohio St. 2d 439, we observed that the nature of the substance delivered does not necessarily determine whether a defendant has “offered] to sell a controlled substance.” “A person can ‘offer to sell a controlled substance’ in violation of R. C. 2925.03(A)(1) without transferring a controlled substance to the buyer.” Scott, supra. That same reasoning applies to cases arising under R. C. 2925.03(A)(1), (5) or (7), because the controlling language in all three subsections is the same: offer to sell a controlled substance.

The trial court, in cases Nos. 81-556 and 557, dismissed the indictments against appellants solely because the bills of particulars in both cases indicated that appellants did not transfer a controlled substance.¹ Appellants argue that the record does not indicate that either of them had the requisite criminal intent because controlled substances were not present. Yet, the language common to R. C. 2925.03(A)(1), (5) and (7) establishes two offenses: (1) knowingly selling a controlled substance; and (2) knowingly offering to sell a controlled substance.

“Knowingly” is an adverb which modifies the verb “offer.” R. C. 2901.22(B) defines “knowingly”; and, as we pointed out in Scott, supra, “offer” is a common word which does not require statutory definition. It is clear on the face of the statute that a culpable mental state must exist with respect to the act of offering. See R. C. 2901.22(B). One’s understanding of the nature of the substance does not necessarily determine whether he or she knowingly offered to sell a controlled substance. We will not read the additional element of knowledge of the nature of the substance into R. C. 2925.03 (A)(1), (5) or (7). That is, under our holding in Scott, supra, the failure to transfer a controlled substance is not an automatic or absolute defense to an indictment alleging that the defendant offered to sell a controlled substance.

Triers of fact should consider the totality of circumstances and decide whether, in a particular scenario, there is sufficient evidence to prove beyond a reasonable doubt that the accused has knowingly offered to sell a controlled substance. For example, the dialogue and course of conduct of the accused, as well as the nature of the goods transferred, may be relevant to this determination. Individually, no aspect of any of these examples is the ultimate fact. Collectively, they may or may not prove that the accused knowingly offered to sell a controlled substance. We modify the rulings of the Court of Appeals, therefore, and remand the causes to the trial court in order to permit a fact finder to make that decision in these cases.

Through R. C. Chapter 2925, the General Assembly has attempted to extirpate the malevolent traffic in drugs within Ohio. This is strong legislation, not an insipid gesture. R. C. 2925.03(A) criminalizes participation at all levels of commerce in drugs. Under R. C. 2925.03(A)(1), (5) or (7), one who knowingly offers to sell a controlled substance markets drugs. Failure to deliver does not ipso facto exonerate the accused. It would be improper for this court to amend that provision and insert a “fraudulent transfer” defense. The General Assembly easily could have done so had they been concerned with protecting “consumers” or giving “con-men” different treatment. They did not, and neither should we.

Accordingly, we modify the judgments of the Court of Appeals and remand the causes for further proceedings consistent with this opinion.

Judgment accordingly.

Celebrezze, C. J., Sweeney, Locher and Krupansky, JJ., concur. Holmes, J., concurs in judgment. W. Brown and C. Brown, JJ., dissent.

1 We note, however, that a bill of particulars is not equivalent to a response to a request for discovery in a civil case. See State v. Wilson (1972), 29 Ohio St. 2d 203, 207.