State v. Scott

432 N.E.2d 798, 69 Ohio St. 2d 439

• Court: Ohio Supreme Court
• Decided: February 24, 1982
• Docket: No. 81-136
• Status: Published

Opinions

Locher, J.

I.

This cause presents one issue; whether the trial court properly entered a verdict of guilty against appellant under R. C. 2925.03, which provides:

“(A) No person shall knowingly do any of the following:

“(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount as defined in section 2925.01 of the Revised Code. * * * ” (Emphasis added.)

Appellant argues that the judgment of the trial court is erroneous because he did not transfer a controlled substance. We disagree. Appellant’s position would require that this court engraft an additional element of proof to the portion of. R. C. 2925.03(A)(1) which prohibits offers to sell. That is, appellant would have us require that an offer to sell includes a transfer of a controlled substance. We decline this invitation to indulge in judicial legislation.

R. C. 1.42 provides, in pertinent part: “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” (Emphasis added.) Webster’s New Collegiate Dictionary (1976) defines the verb “offer” as “to declare one’s readiness or willingness” when it is used with an infinitive object. In R. C. 2925.03(A)(1), the infinitive object is “to sell a controlled substance.” The proscribed conduct is offering to sell a controlled substance, not offering the controlled substance. Therefore, our analysis of the statute should not turn on whether appellant transferred a controlled substance.

Rather, R. C. 2925.03 demonstrates a clear legislative intent to define commerce in controlled substances as criminal. For example: R. C. 2925.03(A)(8) defines financing another “for the purpose of selling or offering to sell” controlled substances as criminal; R. C. 2925.03(A)(3) criminalizes the production of controlled substances; R. C. 2925.03(A)(2) is directed at the transportation and distribution of controlled substances. All of this would serve little purpose if the final stages of commerce were not criminalized as well {i.e., possession, R. C. 2925.03[A] [4] and [6], as well as marketing— offering to sell — and exchange — selling, R. C. 2925.03 [A][1], [5] and [7]).

Consistent with this purpose, the General Assembly defined each of these stages of commerce in controlled substances as aggravated trafficking, including R. C. 2925.03(A)(1). Appellant marketed speed. He offered to sell speed to the agent and serve as a link in the chain of supply. By using the phrase “offer to sell” in the disjunctive with “sell” throughout R. C. 2925.03, the General Assembly expressly and properly prohibited appellant’s conduct as a form of trafficking in drugs.²

II.

Likewise, appellant’s argument that R. C. 2925.03(A)(1) is unconstitutionally vague fails. “All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Rose v. Locke (1975), 423 U. S. 48, 50. As discussed above, R. C. 2925.03(A)(1) is clear on its face. “Offer” is a common word whose meaning need not be statutorily defined. Therefore, appellant received his fair warning that the Revised Code defines his offering to sell a controlled substance as the crime of aggravated trafficking.

Accordingly, we affirm the judgment of the Court of Appeals.

Judgment affirmed.

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

2 In State v. Mosley (1977), 55 Ohio App. 2d 178, the lead opinion stated, at 183:

“ * * * The fact that defendant did not actually produce heroin is no more pertinent to the prosecution of the cause or an element of the crime than would be the requirement that an act of intercourse would be required to obtain a conviction in a charge involving soliciting for prostitution. The statute makes it a crime to offer to sell heroin. The defendant made an offer to sell heroin, thereby violating the law. The crime was committed when the offer was made, not when the transaction was consummated. * * * ”

Attempt and conspiracy are examples of crimes which do not require completed acts in all instances. See R. C. Chapter 2923; e.g., State v. Marian (1980), 62 Ohio St. 2d 250.