dissenting.
{¶ 48} Because I determine that R.C. 2925.03 imposes strict liability for trafficking in a controlled substance in the vicinity of schools, I respectfully dissent from the majority’s opinion.
{¶ 49} I agree with the majority that the issue before us demands analysis of discrete language and that “in the vicinity of a school” is, in fact, a discrete part of R.C. 2925.03. I disagree, however, as to the applicability of R.C. 2901.21(B) and the relevance of the statutory language analyzed by the majority. Further, by applying State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, and State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, I determine that R.C. 2925.03(C)(5)(b) imposes strict liability.
{¶ 50} R.C. 2901.21(B) states: ‘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 * * *. When the section [defining an offense] neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient * *
{¶ 51} In Maxwell, we determined that R.C. 2907.321(A)(6) imposes strict liability for bringing obscene material into the state. In reaching this conclusion, we noted the irrelevance of R.C. 2901.21(B) when a statutory section identifies a standard of culpability. In part because R.C. 2907.321(A) specifies “knowledge” as the mens rea for the offense, we reasoned that R.C. 2901.21(B) cannot “operate to supply the mental element of recklessness to R.C. 2907.321(A)(6).” Maxwell at ¶ 22.
{¶ 52} In light of Maxwell, R.C. 2901.21(B) cannot operate to supply the mental element of recklessness to R.C. 2925.03(C)(5)(b) because R.C. 2925.03 *168includes a mental element in defining Lozier’s offense. R.C. 2925.03(A) requires the mens rea of knowingly selling or offering to sell a controlled substance. R.C. 2925.03(C)(5)(b) then provides a sentencing enhancement “if the offense [of knowingly selling or offering to sell LSD] was committed in the vicinity of a school * * *.” Although the statute’s enhancement provision does not specify a degree of culpability, the section defining Lozier’s offense does. Thus, R.C. 2925.03(A)’s knowledge requirement precludes imputing recklessness to R.C. 2925.03(C)(5)(b) via R.C. 2901.21(B). See Maxwell at ¶ 21.
{¶ 53} Having resolved that R.C. 2901.21(B) is inapplicable here, we still must determine the degree of culpability required for a sentencing enhancement under R.C. 2925.03(C)(5)(b). In Wac, the statute in question stated that no person shall “[e]ngage in bookmaking, or knowingly engage in conduct that facilitates bookmaking.” R.C. 2915.02(A)(1). The defendant in Wac had wanted the knowledge requirement for engaging in conduct that facilitates bookmaking imputed to the discrete prohibition against engaging in bookmaking. We reasoned that the exclusion of a mental element from the proscription against bookmaking juxtaposed with the inclusion of a mental element pertaining to facilitating bookmaking indicates the General Assembly’s intent to impose strict liability for the offense of bookmaking.
{¶ 54} In Maxwell, we applied Wac in determining that R.C. 2907.321(A)(6) imposes strict liability for bringing “into this state any obscene material that has a minor as one of its participants * * R.C. 2907.321(A) states that to be convicted of pandering obscenity involving a minor, the offender must have known the material to be obscene. We held that the knowledge requirement applied to the offender’s understanding of the nature of the material but not to the act of bringing such material into the state because subsections (A) and (A)(6) are discrete from each other. Following Wac, we decided that in light of subsection (A)’s knowledge requirement, the omission of a mental element from subsection (A)(6) subjects conduct under that provision to strict liability.
{¶ 55} Both Wac and Maxwell stand for the propositions that a mental element cannot be imputed from one discrete clause to another and that the exclusion of a mental element from a discrete clause indicates the applicability of strict liability where the section defining the offense includes a mental element. I would follow Wac and Maxwell and hold that the knowledge requirement of R.C. 2925.03(A) cannot be imputed to R.C. 2925.03(C)(5)(b), and that the exclusion of a mental element from R.C. 2925.03(C)(5)(b), in light of R.C. 2925.03(A)’s knowledge requirement, subjects the described conduct to strict liability.
{¶ 56} Rather than following Wac and Maxwell, today’s majority errs by analyzing a definitional section that does not bear on the issue before us. In Wac and Maxwell, we confined our analysis to the section that defines the offense, *169whereas today’s majority departs to a wholly other section. The discrete language at issue here is found in R.C. 2925.03, the section that defines Lozier’s offense, not in the definitional section.
Robert D. Rinfret, Holmes County Prosecuting Attorney, and Jeffrey A. Mullen, Assistant Prosecuting Attorney, for appellant. J. Dean Carro, for appellee.{¶ 57} After choosing discrete provisions in an irrelevant section, the majority posits that the General Assembly has defined those provisions in a manner that imposes divergent degrees of culpability. This position is wholly unfounded because, for the reason provided below, the recklessness standard of R.C. 2901.21(B) cannot apply to a definitional section such as R.C. 2925.01.
{¶ 58} By its own terms, R.C. 2901.21(B) applies only to sections that define offenses. R.C. 2925.01, the section to which the majority applies R.C. 2901.21(B), does not define an offense; it simply defines terms used in R.C. Chapter 2925. As a corollary, R.C. 2901.21(B) cannot apply to R.C. 2925.01, and the linchpin that supposedly connects recklessness to R.C. 2925.03(C)(5)(B) is dissolved.
{¶ 59} I find further support for my position that R.C. 2925.03(C)(5)(b) describes a strict liability offense in United States v. Falu (C.A.2, 1985), 776 F.2d 46, which resolved the same issue presented herein within the context of former Section 845(a), Title 21, U.S.Code, a federal statute that was analogous to R.C. 2925.03.1 In Falu, the district court resolved that Section 845(a) imposed strict liability. Although I would not subjugate my independent judicial analysis to that of my learned colleagues on the federal bench, I recognize that the universal purpose of enhancing penalties for trafficking in drugs in the vicinity of schools is to protect children from the pariahs that are drug dealers. Thus, the Falu court found, “[A] requirement that the dealer know that a sale is geographically within the prohibited area would undercut this unambiguous legislative design.” Falu at 50. I wholeheartedly agree, and I believe that the same rationale applies to requiring recklessness.
{¶ 60} For the foregoing reasons, I dissent.
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.. Section 845(a) has been somewhat revised and has been moved to Section 860(a), Title 21, U.S.Code. It now provides: “Any person who violates section 841(a)(1) of this title * * * by distributing * * * a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school * * * js * * * subject to (1) twice the maximum punishment authorized by section 841(b).”