State v. Mosley

Strausbaugh, P. J. This is an appeal by defendant from a conviction in the Common Pleas Court for the offense of aggravated trafficking in heroin, a violation of R. C. 2925.03(A)(1) (“[n]o person shall knowingly * * * ■offer to sell a controlled substance.”) The record indicates that in the Common Pleas Court a stipulation was entered into between plaintiff and defendant, as follows: “If called to testify, Carol Grelle, a detective in the narcotics bureau of the Columbus Police Department, would testify that at approximately midnight, the evening of November 11, 1976/morning of November 12, 1976, she and an informant, Toni Reilly, were at Church’s Chicken at Kelton and Main Streets here in Columbus. At that time the informant left the car that the two were in and went to a car in which the defendant, as far as she, Carol Grelle, could tell, was the only occupant. The informant had conversation through the driver’s side car window with the Defendant. The informant then returned to the car in which she, Carol Grelle, was waiting. The informant and she, Carole Grelle, then left that location to purchase other heroin and then to return to the Brookside Motel, here in Franklin County, Ohio, in order to meet the Defendant in order to purchase heroin, which purchase to her, Carol Grelle’s understanding had been set up at Church’s Chicken. “At approximately 1:00 a. m. the informant and she, Carol Grelle, were in their room, No. 20, at the Brookside Motel when Walter Jameson knocked on the door and wanted to talk to the informant. Carol Grelle knows and recognized Walter Jameson in that she had purchased *180 heroin from him on two separate occasions two days prior to this incident [which was in fact heroin]. The informant went outside with .Mr. Jameson. A few minutes later she came back in and told Carol Grelle that the Defendant and Mr. Jameson had a ‘football’ to sell — A ‘football’ being a quantity of heroin usually selling for $300-$400. At that time Carol Grelle told the informant that she, Carol Grelle, did not have enough money and that she had just over $100. The informant left the room to talk with the Defendant and. Mr. Jameson. The informant returned to the room approximately five minutes later stating that the Defendant and Mr. Jameson had cut the ‘football’ in half and they would take $150 for two ‘spoons’ — A ‘spoon’ also being a quantity of heroin selling for approximately $75 — $100. At that time the informant and Carol Grelle went outside to the automobile where the Defendant and Mr. Jameson were waiting. The Defendant was sitting in the driver’s seat, Mr. Jameson was sitting in the middle of the front seat, the informant was sitting on the passenger’s side of the front seat, and she, Carol Grelle, was in the middle of the back seat — the car being a Malibu with Ohio plates No. 4906 CN. “Once in the car, the informant introduced Carol Grelle to the Defendant and Carol Grelle told the Defendant that she only had $140. At that time the Defendant put out his hand and Carol Grelle gave the Defendant $140 in twenties. The Defendant then handed Carol Grelle a small plastic bag containing the alleged heroin. Carol Grelle then asked the Defendant how much was there, the Defendant responding ‘about 1% or 2 spoons’. The Defendant further stated, ‘I’m a business man, so I don’t rip people off. I sell good dope. When I have satisfied customers, they come back again.’ The Defendant further said that if she, Carol Grelle, liked the stuff to call the informant and she, the informant, would contact the Defendant and that they could get more. There was some further small talk and the informant and Carol Grelle got out of the automobile and went back into the room at the Motel. “It is further stipulated that the substance was turned *181 into the Columbus Police Property Room under property Number 149996. It was analyzed on November 12, 1976, by Nick Zonakis of the Columbus Police Department and; found not to contain amphetamines, barbiturates, hallucinogens nor narcotics and did not, therefore, contain heroin. Charges were filed and a warrant issued for the Defendant, Louis C. Mosley, on January 23, 1977, for •offer to sell’ as the officers involved were aware that the substance was not heroin. “It is further stipulated that, if called to testify, the Defendant, Louis C. Mosley would testify on the evening/morning of November 11/12 he was at Church’s Chicken at Kelton and Main Streets here in Columbus but that he did not have a conversation with the informant, Toni Reilly, at that time. However, Walter Jameson had a conversation with them in Carol Grelle’s car. About 1:00 a.m. on November 12, 1976, he was at the Brookside Motel parking lot driving a Malibu automobile and was accompanied by Walter Jameson. That conversation took place with Toni Reilly and eventually Carol Grelle got in the car with Toni Reilly. The occupants were in the positions in the car as represented by Carol Grelle. “At that time a transaction, involving two ‘spoons’ of alleged heroin did occur as follows: he, Louis C. Mosley had the plastic bag with the alleged heroin in his pocket. Following discussion about a price for the alleged heroin, at which time a price of $140 was agreed upon, he, Louis C. Mosley passed the bag to Walter Jameson who gave it to Toni Reilly who in turn gave it to Carol Grelle. At that time Carol Grelle gave the $140 to Toni Reilly who gave it to Walter Jameson. Following some further conversation about being straight and not ripping people off, the informant and Carol Grelle left the car and he, Louis C. Mosley and Walter Jameson left together in the car. Walter Jameson did give some of the money he had received [$140] to Louis C. Mosley. “He, Louis C. Mosley, knew what he was involved in selling was not heroin. In fact, what was being sold was a mixture of baking soda, coffee and confectioner’s sugar *182 which he, Louis C. Mosley, had helped mix. It was the preconceived intention of Walter Jameson and Louis C. Mosley to ‘rip off’ Toni Reilly and Carol Grelle.” The record further reveals that when the case was; called for trial the defendant entered a plea of no contest and was found guilty, from which conviction and sentence-this appeal is taken. Defendant’s single assignment of error is: “Trial court erred in finding defendant guilty on his, nolo contendré plea as defendant’s conduct in this case,, as evidenced in the stipulated facts, does not violate the statute under which he was found guilty, or in the alternative, that portion of the statute under which defendant is charged is unconstitional. ” R. C. 2925.03 provides, in part: “(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; * * #. “(C) If the drug involved is any compound, mixture, preparation, or substance included in Schedule I with the exception of marihuana or in Schedule II, whoever violates this section is guilty of aggravated trafficking. “(1) Where the offender has violated division (A)(1) of this section, aggravated trafficking is a felony of the third degree, and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree. # * *” (Emphasis added.) Defendant argues that his constitutional right of free speech was violated when charged with uttering legally harmless words and that the trial court’s interpretation of this statute created a vagueness and overbreadth which violated the due process clause of the constitution. Defendant contends that two essential elements of the crime were missing: mens rea and a legally controlled substance. An examination of the statute in question makes it clear that an offer to sell narcotics is specifically forbidden. *183 Furthermore, we find that the legislature may constitutionally prohibit and make illegal an offer to sell a controlled substance. The question which is unique in this case is where the act has been completed and a harmless substance sold has an offense been committed? In this case, there is evidence that defendant had previously sold heroin and that defendant had an ability to obtain heroin for sale; however, it was defendant’s intention not to sell heroin, but, rather, a rnixure of soda, coffee and sugar. At the sale at the motel the defendant was accompanied by a person from whom the informant had purchased heroin on two separate occasions, two days prior to this incident, which is some indication that defendant had an ability to obtain and produce heroin for sale. 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. There is evidence that defendant’s statements were not made in jest or to express an idea which would involve freedom of speech, or in a manner as not to be taken seriously by others. We cannot say that the act of the legislature in prohibiting a person from offering to sell controlled substances is unreasonable, or that it violates the Constitution of the United States, or the state of Ohio. We, therefore, find defendant’s single assignment of error to be not well taken and the judgment is affirmed. Judgment affirmed. McCormac, J., concurs. Holmes, J., dissents.