State v. Lozier, 101 Ohio St.3d 161 (Ohio 3/3/2004)

Decision Date03 March 2004
Docket NumberNo. 2002-0900.,2002-0900.
Citation101 Ohio St.3d 161,2004 Ohio 732
PartiesThe State of Ohio, Appellant, v. Lozier, Appellee.
CourtOhio Supreme Court

Robert D. Rinfret, Holmes County Prosecuting Attorney, and Jeffrey A. Mullen, Assistant Prosecuting Attorney, for appellant.

J. Dean Carro, for appellee.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Rebecca L. Thomas, Assistant Solicitor, urging reversal for amicus curiae Ohio Attorney General.

David H. Bodiker, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, urging affirmance for amicus curiae Ohio Public Defender.

PFEIFER, J.

Factual and Procedural Background

{¶1} On February 14, 2001, the Holmes County Grand Jury indicted defendant-appellee, Chad A. Lozier, for trafficking in drugs in violation of 2925.03(A). All five counts against appellee contained a specification that appellee sold drugs within the vicinity of a school, which enhances the penalty under R.C. 2925.03(C)(5)(b). Count 4 was eventually dismissed. Appellee withdrew his initial plea of not guilty and entered pleas of no contest to the remaining counts.

{¶2} The sales at issue occurred at appellee's former home, which is located approximately 745 feet from the Holmes County Job and Family Services building. That building housed, on its third floor, a remedial education program known as "Project Stay." The state stipulated that it had no evidence that appellee knew of the existence of Project Stay and that there was nothing to mark it or to identify it as a school to the public.

{¶3} The trial court ruled that Project Stay was, in fact, a school. The court also ruled that whether appellee knew that he was selling drugs in the vicinity of the school was irrelevant, since the specification for trafficking within the vicinity of a school is written in terms of strict liability. Appellee was convicted on four counts of trafficking with the sentence-enhancement specifications.

{¶4} Appellee appealed from his convictions to the Fifth District Court of Appeals, arguing that the trial court had erred in finding that R.C. 2925.03(C)(5)(b) imposes strict liability. The appellate court agreed and reversed the judgment of the trial court, concluding that the culpable mental state associated with R.C. 2925.03(C)(5)(b) is "knowingly."

{¶5} Upon the state's motion, the court of appeals certified a conflict between its holding and the holding of the Ninth District in State v. Rogers (Apr. 14, 1999), Summit App. No. 19176, 1999 WL 239100. In its motion to certify a conflict in the court of appeals, the state argued that "the issue proposed for certification is whether [R.C.] 2925.03(C)(5)(b) is a strict liability statute." Despite its holding that "knowingly" is the culpable mental state for R.C. 2925.03(C)(5)(b), the court of appeals phrased the certified question in terms of recklessness: "Whether the culpable mental state of recklessness applies to R.C. 2925.03(C)(5)(b)?"

{¶6} Recognizing a conflict between appellate districts, this court granted jurisdiction and ordered briefing on that issue. 96 Ohio St.3d 1446, 2002-Ohio-3512, 771 N.E.2d 260.

Law and Analysis

{¶7} The sole issue raised in this appeal is whether R.C. 2925.03(C)(5)(b), which elevates trafficking in LSD to a fourth degree felony if the offense is committed "in the vicinity of a school," imposes strict criminal liability on a defendant. We make our determination against the backdrop of R.C. 2901.04(A), which states that "sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."

{¶8} The case against appellee begins with his violation of R.C. 2925.03(A), which itself requires a mental state of "knowingly":

{¶9} "No person shall knowingly do any of the following:

{¶10} "(1) Sell or offer to sell a controlled substance;

{¶11} "(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person."

{¶12} R.C. 2925.03(C)(5)(b) is in play because appellee was selling LSD, and because he was selling that substance in the vicinity of a school. The relevant statutory language is as follows:

{¶13} "(C) Whoever violates division (A) of this section is guilty of one of the following:

{¶14} "* * *

{¶15} "(5) If the drug involved in the violation is L.S.D. or a compound, mixture, preparation, or substance containing L.S.D., whoever violates division (A) of this section is guilty of trafficking in L.S.D. The penalty for the offense shall be determined as follows:

{¶16} "* * *

{¶17} "(b) * * * [I]f the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in L.S.D. is a felony of the fourth degree, and division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender."

{¶18} The mental state of the offender is a part of every criminal offense in Ohio except for those plainly imposing strict liability. R.C. 2901.21(A)(2) requires that, in order to be found guilty of a criminal offense, a person must have "the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense."

{¶19} R.C. 2901.21(B) addresses strict liability statutes and those statutes that do not address a culpable mental state. That statute reads:

{¶20} "When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense."

{¶21} Thus, recklessness is the catchall culpable mental state for criminal statutes that fail to mention any degree of culpability, except for strict liability statutes, where the accused's mental state is irrelevant. However, for strict liability to be the mental standard, the statute must plainly indicate a purpose to impose it.

{¶22} In State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, the majority decided that the language of R.C. 2907.321(A)(6) plainly indicated a purpose to impose strict liability. That statute provides:

{¶23} "(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

{¶24} "* * *

{¶25} "(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers."

{¶26} Maxwell involved a defendant who had downloaded onto his computer obscene images; although he knew that the images were obscene, he argued that he did not know that he was downloading them from a computer system in another state, thereby importing the images into Ohio. The majority in Maxwell found that, as to importing images, the statute imposed strict liability. The Maxwell majority relied on State v. Wac (1981), 68 Ohio St.2d 84, 86, 22 O.O.3d 299, 428 N.E.2d 428, in holding that where the General Assembly indicates a mental state in one part of a statute, and does not indicate any mental state in another part of that statute, that indicates an intent to impose strict liability in that other part. Maxwell at ¶ 27-29.

{¶27} In Maxwell, the court found that the knowledge element of R.C. 2907.321(A) was separated out in order to apply only to "the character of the material or performance involved," noting that "knowledge is a requirement only for the discrete clause within which it resides." Id., 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, at ¶ 29. The court held that the knowledge element did not apply to the "[n]o person * * * shall do any of the following" portion of the statute. Since knowledge was required in one part of the statute and not in the other, the Maxwell majority determined that the General Assembly therefore intended to impose strict liability in the subsection of the statute without the knowledge requirement. Id. at ¶ 30.

{¶28} The statute in the present case is structurally more similar to the statute analyzed in Wac. In Wac, this court considered the mental element in R.C. 2915.02(A)(1). That statute provides:

{¶29} "(A) No person shall do any of the following:

{¶30} "(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking."

{¶31} This court found that the inclusion of the element of "knowingly" for "conduct that facilitates bookmaking" but not in regard to "bookmaking" operated to " `plainly indicate[ ] a purpose to impose strict liability' " on bookmaking per se. Wac, 68 Ohio St.2d at 86, 22 O.O.3d 299, 428 N.E.2d 428. The court in Wac "recognized that the clause `or knowingly engage in conduct that facilitates bookmaking' was a discrete clause and that the knowledge required by that clause could not be inserted into the previous clause, `engage in bookmaking.' "Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, ¶ 28.

{¶32} Here, we are dealing with another pair of discrete clauses separated by "or." The phrase at issue in R.C. 2925.03(C)(5)(b) reads:

{¶33} "[I]f the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in L.S.D. is a felony of the fourth degree, and division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender." (Emphasis added.)

{¶34} Standing alone, "in the vicinity of a school or in the vicinity of a juvenile" does...

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