dissenting. The intent of the defendant Scott was only to offer for sale and to sell that which was actually exhibited, i.e., a non-controlled substance. The record contains no evidence that defendant had the intent to make a sale of an actual controlled substance or had the present ability to effect such a sale. Such a factual posture requires acquittal and discharge of the defendant as a matter of law.
Defendant was charged with “offering] to sell a con*444trolled substance” pursuant to R. C. 2925.03(A)(1). This statute must be “strictly construed against the state, and liberally construed in favor of the accused,” as mandated by R. C. 2901.04(A). If the General Assembly had intended to criminalize the offer to sell a substance represented to be a controlled substance, but admittedly not a controlled substance, it could have so specified. This the General Assembly did not do. By finding such an intent, this court indulges in judicial legislation.
This defendant intended only to offer and sell that which was actually exhibited, a non-controlled substance. Despite his false representation that it was a controlled substance, defendant has not violated R. C. 2925.03. The rationale behind this conclusion was cogently expressed by Justice (then Judge) Holmes in his dissent to State v. Mosley (1977), 55 Ohio App. 2d 178, 186:
“ * * * The crime that was committed here was of the nature of larceny by trick, fraudulent sale, or of like kind. There could be no trafficking of a controlled drug on the facts specifically presented here, as there was no controlled drug involved — and what is of greater importance, the defendant knew at the time of offering the ersatz substance for sale that it was not a controlled substance.
(( * * *
“However, there was no mens rea established here for a finding of a sale of a controlled drug, or for a finding of an attempted sale of such a controlled drug. This was a completed sale of a baking soda mixture, which is not a violation of the criminal code as charged.”
Mosley and the decision of this court today convert a confidence man, thief, and perpetrator of fraud, such as defendant here, into a drug offender. Scott should have been prosecuted and convicted of theft, as proscribed in R. C. 2913.02, as follows:
“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
U * * *
“(3) By deception; * * * ”
*445R. C. 2913.01(A) defines “deception” to fit the conduct of defendant Scott.
The conclusion that defendant Scott committed no drug offense is consistent with the statutory construction statutes applicable here, namely, R. C. 1.47 which requires that “[a] just and reasonable result is intended” in enacting a statute, and R. C. 1.49 which requires that “[i]f a statute is ambiguous, the court, in determining the intention of the legislature, may consider * * * [t]he object sought to be attained,” and “[t]he consequences of a particular construction.” The purpose, result and object sought to be attained by the General Assembly could not be to turn the crime of theft by deception into the more serious drug offense.
W. Brown, J., concurs in the foregoing dissenting opinion.