dissenting.
{¶ 40} I strongly disagree with the majority’s conclusion that R.C. 2925.03(C)(4)(c) through (g) requires that the substance offered actually be cocaine in order to support a penalty enhancement beyond the default fifth-degree felony contained in R.C. 2925.03(C)(4)(a).
{¶ 41} The majority fails to read R.C. 2925.03 in its entirety. As stated in Justice Resnick’s dissent, the intent of the legislature must be determined by the language of the statute. The statute must not be read in a vacuum, but must be read in the context of the whole statute.
{¶ 42} R.C. 2925.03(A) states:
{¶ 43} “No person shall knowingly do any of the following:
{¶ 44} “(1) Sell or offer to sell a controlled substance.”
{¶ 45} This statute criminalizes equally the act of selling a controlled substance and offering to sell a controlled substance. The General Assembly’s enactment of R.C. 2925.03 is designed to penalize both actual drug trafficking and offers to engage in drug trafficking. The statute considers them equivalent, as they are written under the same subsection, and the penalty provisions make no separate distinction.
*232(¶ 46} Our longstanding precedent has not required transfer of a controlled substance to the buyer in order to support a trafficking conviction. State v. Scott (1982), 69 Ohio St.2d 439, 440, 23 O.O.3d 390, 432 N.E.2d 798; State v. Patterson (1982), 69 Ohio St.2d 445, 446, 23 O.O.3d 394, 432 N.E.2d 802; State v. Mughni (1987), 33 Ohio St.3d 65, 66, 514 N.E.2d 870, fn. 1. We have noted that the trafficking conviction is completed upon the knowing offer to sell av controlled substance. Id. at 67-68, 514 N.E.2d 870.
{¶ 47} The majority correctly states that Mughni and its predecessors were decided before the revision of R.C. 2925.03 and the major-drug-offender specification to which R.C. 2925.03(C)(4)(g) specifically refers. However, these cases, with the precedent contained within them concerning the effect of offers and the presence (or lack thereof) of actual drugs at the time of the offer, have been unaltered by the General Assembly in any of these revisions.
{¶ 48} R.C. 2925.03(C) defines the individual trafficking crimes based on the controlled substances offered and prescribes the appropriate penalties (“Whoever violates division (A) of this section is guilty of one of the following”).
{¶ 49} R.C. 2925.03(C)(4) states:
{¶ 50} “If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows [listing the various penalties].” (Emphasis added.)
{¶ 51} The operative language in R.C. 2925.03(C)(4)(g), the provision at issue in today’s holding, states:
{¶ 52} “If the amount of the drug involved equals or exceeds one thousand grams of cocaine that is not crack cocaine or equals or exceeds one hundred grams of crack cocaine * * *, trafficking in cocaine is a felony of the first degree, [and] the offender is a major drug offender * * *.” (Emphasis added.)
{¶ 53} The majority opinion concludes that the language of R.C. 2925.03(C)(4) is satisfied and that the “drug involved in the violation” is cocaine or a compound, mixture, preparation, or substance containing cocaine. However, the majority goes on to hold in a contradictory fashion that R.C. 2925.03(C)(4)(g) requires in excess of 100 grams of actual crack cocaine. In the instant case, the majority held that R.C. 2925.03(C)(4)(g) was not satisfied because the “drugs” sold were actually baking soda.
{¶ 54} The majority opinion acknowledges that the statute must be interpreted by its language, but fails to do so. In R.C. 2925.03(C)(4), and indeed in every numeric subsection of R.C. 2925.03(C), the statute refers to the “drug involved” as defining the specific crime of trafficking. Every penalty enhancement referred to in R.C. 2925.03(C)(4)(c) through (g), and the corresponding provisions *233elsewhere in R.C. 2925.03(C), refer to the “amount of the drug involved” in determining whether the penalty should be enhanced. The statute always presumes that a drug is “involved” for a conviction to occur and a sentence to be prescribed. The majority’s analysis cannot properly identify what amount exists to support the conviction.
{¶ 55} The majority holds, without analysis, that the penalty statute “presumes that a detectable amount of the controlled substance is present.” There is no authority for this singular position, and indeed, none is cited. The “amount of the drug involved” is more properly construed as the “amount of the drug involved in the offer,” at which time the trafficking crime is complete, Mughni, 33 Ohio St.3d at 67-68, 514 N.E.2d 870, and without which the sale cannot occur.
{¶ 56} The majority’s interpretation totally ignores one crucial aspect of the hierarchy of criminal penalties for drug trafficking based upon the identity and amount of the controlled substance involved. R.C. 2925.03(A)(1) criminalizes both selling and an “offer to sell.” (Emphasis added.) Under long-standing precedent, as described above, a criminal offer to sell may occur and be completed with no transfer and, indeed, no evidence of the presence of any controlled substance. The penalty statutes are the same for both an offer and a sale and make no distinction between an offer of a controlled substance that turns out to be an actual controlled substance and an offer of a controlled substance that turns out to be a harmless surrogate. The presence of baking soda apparently is the “red herring” that has led to the majority’s flawed reasoning.
{¶ 57} Under the majority’s holding today, every offer to sell a controlled substance when the substance is not actually controlled is presumed to draw the minimum available penalty, which can be enhanced only by using factors other than calculation of the amount. As described above, this holding is logically inconsistent with the language of the statute and thwarts the practical and regular implementation of R.C. 2925.03 as detailed below.
{¶ 58} In State v. Pimental, 8th Dist. No. 84034, 2005-Ohio-384, 2005 WL 273009, the defendant was convicted of trafficking cocaine with a major-drug-offender specification pursuant to R.C. 2925.03(C)(4)(g) solely as a result of his telephone conversations with a confidential informant arranging the deal, followed by his arrival at the informant’s prearranged location. Although Pimental did not raise the specific issue as error before the court today, he did challenge the manifest weight of the evidence presented.
{¶ 59} In State v. Jeter, 6th Dist. No. E-02-047, 2004-Ohio-1332, 2004 WL 541527, a defendant was charged with and convicted of a first-degree felony (pursuant to R.C. 2925.03(C)(6)(e)) for trafficking in heroin based on his agreement to sell one ounce of heroin to an undercover officer in the vicinity of a school. The defendant accepted money for the deal and pointed to the car in *234which the drugs were contained. No drugs were ever recovered. Again, Jeter did not challenge the enhancement of his sentence to a first-degree felony. He did, however, challenge the sufficiency of the evidence. The court affirmed the jury’s verdict.
John D. Ferrero, Stark County Prosecuting Attorney, Kathleen 0. Tatarsky, and Amy S. Andrews, Assistant Prosecuting Attorneys, for appellant. Fredrick M. Pitinii, for appellee Kenyan Chandler, in case No. 2004-1325. George Urban, for appellee Phillip Bledsoe, in case No. 2004-1746. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Franklin E. Crawford, Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney General. David H. Bodiker, Ohio Public Defender, and Katherine A. Szudy, Assistant State Public Defender, urging affirmance for amicus curiae Ohio Public Defender in case No. 2004-1325. William F. Schenck, Greene County Prosecuting Attorney, and Cheri L. Stout, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association in case No. 2004-1746.{¶ 60} Defendants are regularly charged with, convicted of, and sentenced for trafficking, and their penalties are enhanced based on the classification of drugs offered and the quantity of those drugs discussed in the offer when the drugs were never recovered, when no drugs were ever present, and when no drugs were actually transferred.
{¶ 61} The majority’s holding today gives two drug dealers a free pass where none was intended. The majority’s holding will eviscerate the ability to properly sentence serious criminals for serious crimes and will encourage drug transactions to be completed in new and creative ways, such that if the dealer is caught, the drugs are not discovered. If the drugs cannot be discovered, only the minimum penalty may be imposed. Today’s decision is incorrect and benefits only the criminals.
{¶ 62} Accordingly, the judgment of the court of appeals should be reversed.
Resnick and Lundberg Stratton, JJ., concur in the foregoing dissenting opinion.