State v. Mosley , 55 Ohio App. 2d 178 ( 1977 )

Effective July 1, 1976, the Ohio General Assembly has provided that a defendant is guilty of trafficking in drugs if he either knowingly sells or offers to sell a controlled substance. Obviously, the General Assembly believed that trafficking in drugs involves the offer to sell just as much as it does the sale of controlled substances, and that this serious crime should be attacked from both avenues. Hence, two offenses are created by R. C. 2925.03, each of an equal stature. If a sale of a controlled substance occurs after an offer of sale is made, there may still be two counts in the indictment; one, of the offer to sell a controlled substance, and the other, the sale thereof, as R. C. 2941.04 provides that the two offenses may be charged in the indictment. However, R. C. 2941.25 permits the defendant to be convicted of only one when the same conduct of defendant can be construed to constitute two or more allied defenses of similar import, as would be the case with an offer to sell followed by a sale.

Thus, knowingly offering to sell a controlled substance is a crime. R. C. 2901.22(B) defines "knowingly" as follows:

"A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. * * *"

In this case, the stipulated evidence clearly shows that the defendant offered to sell heroin while aware that his conduct would probably cause a certain result — i. e., inducing the purchaser to complete the buy. The mere fact that the seller, at the time of the offer, intended to flim-flam the purchaser by providing a noncontrolled substance rather than the controlled substance which was offered for sale is of no importance. The defendant was out on the street trafficking in drugs and offering to sell a controlled substance, heroin. This is an entirely different situation from one where the seller offers to sell a substance, described as a controlled substance, which is observed by the purchaser and which is actually not a controlled substance. The intent then is to offer for sale the substance which the buyer has and it is the actual substance that decides the issue of whether the offer was for sale of a controlled substance. In this case, there being no actual substance involved during the offer to sell, the words themselves are proof that the offer to sell was of a controlled substance. This case is similar to the one where the seller actually exhibits a substance which is tested by the prospective buyer and found to be heroin, but the seller secretly intends to rip-off the buyer by substituting a harmless substance at the actual sale. According to the dissent, there would be no crime of offer to sell committed because of the drug trafficker's secret intent to sell an uncontrolled substance. Such a holding effectively emasculates the offer to sell part of the statute.

The case herein is distinquishable from the federal cases relied upon by appellant, primarily United States v. Oviedo (C. A. 5, 1976), 525 F.2d 881, in that the federal statutes made the attempt to sell a crime rather than the offer to sell. I agree with the court in Oviedo that if a sale of a noncontrolled substance takes place after an offer to sell a controlled substance is made, there is insufficient proof of an attempt to sell a controlled substance. The best evidence of the intent of the defendant is what actually occurred at the sale. Appellant argues that his original intent was to make the purchaser believe that he was selling heroin while actually flim-flamming her. We accept that to be a fact, and this lack of intent provides a defense for a charge of sale or attempted sale of heroin, as in Oviedo, but not for the crime of offering a controlled substance for sale. The moral of this story is simply that if you knowingly make a bona fide (on its face) offer to sell heroin, you have committed the crime regardless of what happens thereafter or what your subjective intent was.

The statute in question is quite clear and is not unconstitutionally vague, nor does it constitute a violation of the defendant's right of free speech. The offer to sell heroin is no more constitutionally protected than the offer to sell sex. The end result of the offer to sell heroin is generally far more serious than the former. As Justice Oliver Wendell Holmes so aptly reflected many years ago, not every form of speech is constitutionally protected by the First Amendment. See Frohwerk v. United States (1919),249 U.S. 204. Certainly, speech which is used as the instrumentality for committing a crime is not so protected.

The defendant's own stipulation convicts him. The defendant offered to sell the undercover police agent hereoin, a controlled substance. The defendant's secret intention of really selling something else does not matter.

The judgment of the trial court should be affirmed.