State v. Chappell

[Cite as State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991.]

THE STATE OF OHIO, APPELLANT, v. CHAPPELL, APPELLEE.

[Cite as State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991.]

Criminal law — Possession of criminal tools — R.C. 2923.24(A) — Meaning of

phrase “with purpose to use [substance, device, instrument, or article]

criminally” — Purpose to use item criminally can arise from intended

violation of federal as well as Ohio law.

(No. 2009-2131 — Submitted September 28, 2010 — Decided

December 15, 2010.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 92455, 2009-Ohio-5371.

__________________

SYLLABUS OF THE COURT

In accordance with the plain and ordinary meaning of the term “criminally,” as

the term is used in R.C. 2923.24(A), the purpose to use an item criminally

can arise from an intended violation of federal law.

__________________

O’CONNOR, J.

{¶ 1} This appeal involves the construction of the term “criminally” in

R.C. 2923.24(A), which proscribes the possession of criminal tools, i.e., the

possession of “any substance, device, instrument, or article, with purpose to use it

criminally.” Appellant, the state of Ohio, asserts that the plain meaning of the

word “criminally” embraces all criminal purposes, including the purpose to

violate federal as well as state or municipal law. 1

1. With regard to the state’s assertion that the intent to use an item criminally under R.C. 2923.24

can arise from an intended violation of municipal law, the state did not raise this argument in the

courts below. Moreover, this case involves an alleged intended violation of federal law only, not

municipal law, and the Eighth District’s holding addressed only violations of federal law. Thus,

SUPREME COURT OF OHIO

{¶ 2} Conversely, appellee, Welton Chappell, contends that the state

cannot use intended violations of federal criminal statutes or municipal ordinances

to prove that the defendant intended to use the item “criminally.” Chappell

maintains that the purpose to use must be limited to offenses defined in the Ohio

Revised Code and that the state lacks jurisdiction to prosecute a defendant under a

federal statute.

{¶ 3} We hold that, in accordance with the plain and ordinary meaning

of the term “criminally,” as the term is used in R.C. 2923.24, the purpose to use

an item criminally can arise from an intended violation of federal law. We

therefore reverse the judgment of the court of appeals and remand this matter to

the trial court for further proceedings consistent with this court’s opinion.

Relevant Background

{¶ 4} Chappell was indicted on two counts of criminal simulation in

violation of R.C. 2913.32, one count of receiving stolen property in violation of

R.C. 2913.51, and one count of possessing criminal tools in violation of R.C.

2923.24. The charges arose after police found in excess of 1,000 bootleg DVDs

and CDs, other “sleeves,” computers, a laptop computer, and other items in

Chappell’s vehicle while executing a search warrant.

{¶ 5} The matter proceeded to trial, and after granting Chappell’s motion

for acquittal on the receiving-stolen-property count, the trial court declared a

mistrial on the remaining counts after the jury was unable to reach a verdict.

there is no actual controversy related to an intended violation of municipal law. Our duty is

limited to determining whether the intent to use an item criminally under R.C. 2923.24 can arise

from an intended violation of federal law. This conclusion is consistent with our duty not to issue

advisory opinions as well as “ ‘the cardinal principle of judicial restraint--if it is not necessary to

decide more, it is necessary not to decide more.’ ” State ex rel. LetOhioVote.org v. Brunner, 123

Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK Laboratories, Inc. v. United

States Drug Enforcement Adm. (C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part

and in judgment). We therefore decline to address this portion of the state’s proposition.

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Chappell subsequently moved to dismiss the indictment, and the trial court

dismissed all of the charges with the exception of possessing criminal tools.

{¶ 6} Chappell also moved for a supplemental bill of particulars,

requesting that the state identify the specific statute that Chappell intended to

violate with the criminal tools. The state supplemented its bill of particulars and

advised that it intended to introduce evidence that the underlying felony was

Chappell’s purpose to violate federal copyright law under Section 506, Title 17,

U.S.Code. Chappell moved to dismiss the criminal-tools count on the grounds

that (1) the indictment did not charge him with violating the federal statute, (2)

only a defendant’s purpose to violate an offense defined in the Ohio Revised

Code can support a charge of possessing criminal tools, and (3) federal copyright

laws expressly preempt any state statutes on the same subject.

{¶ 7} The trial court conducted a hearing on the motion and rejected

Chappell’s arguments pertaining to the specificity of the indictment and

preemption. The trial court, however, found Chappell’s remaining argument to be

persuasive and held that the purpose to use an item criminally must come from an

intended violation of state law, not federal law. The trial court then granted

Chappell’s motion to dismiss the charge of possessing criminal tools.

{¶ 8} The state appealed, and the Eighth District Court of Appeals

affirmed. State v. Chappell, 8th Dist. No. 92455, 2009-Ohio-5371. Relying on

R.C. 2901.03(A) and 2901.04(A), the appellate court found that “prosecution

under Ohio law must emanate from violations of offenses defined in the Revised

Code.” Id. at ¶ 9. Because violating federal copyright law is not defined as an

offense in the Revised Code, the court of appeals held that the purpose to violate

federal copyright law cannot be prosecuted by the state.

{¶ 9} The case is now before us on our acceptance of a discretionary

appeal to determine whether the state may use violations of federal criminal law

to prove that a person possesses items to use the items criminally in violation of

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R.C. 2923.24. State v. Chappell, 124 Ohio St.3d 1473, 2010-Ohio-354, 921

N.E.2d 245.

Analysis

{¶ 10} R.C. 2923.24 defines the offense of possessing criminal tools and

provides:

{¶ 11} “No person shall possess or have under the person’s control any

substance, device, instrument, or article, with purpose to use it criminally.

{¶ 12} “* * *

{¶ 13} “(C) Whoever violates this section is guilty of possessing criminal

tools. Except as otherwise provided in this division, possessing criminal tools is a

misdemeanor of the first degree. If the circumstances indicate that the substance,

device, instrument, or article involved in the offense was intended for use in the

commission of a felony, possessing criminal tools is a felony of the fifth degree.”

{¶ 14} The inquiry herein turns on the construction of the term

“criminally” in the phrase “with purpose to use it criminally,” as set forth in R.C.

2923.24(A).

{¶ 15} The state advances an expansive definition, contending that the

plain and ordinary meaning of “criminally” includes any social harm that the law

makes punishable, which encompasses intended violations of federal as well as

state law. Conversely, Chappell urges this court to adopt a more restrictive

construction, limiting the term to violations of offenses defined in the Ohio

Revised Code.

{¶ 16} The primary goal in construing a statute is to ascertain and give

effect to the intent of the legislature. State v. Hairston, 101 Ohio St.3d 308, 2004-

Ohio-969, 804 N.E.2d 471, ¶ 11. In interpreting a statute, this court has held that

“the intent of the law-makers is to be sought first of all in the language employed,

and if the words be free from ambiguity and doubt, and express plainly, clearly

and distinctly, the sense of the law-making body, there is no occasion to resort to

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other means of interpretation.” Slingluff v. Weaver (1902), 66 Ohio St. 621, 64

N.E. 574, paragraph two of the syllabus. Where the meaning of the statute is

clear and definite, it must be applied as written. Bailey v. Republic Engineered

Steels, Inc. (2001), 91 Ohio St.3d 38, 40, 741 N.E.2d 121. However, where the

words are ambiguous and are subject to varying interpretations, further

interpretation is necessary. Id.

{¶ 17} The term “criminally” is not defined in the statute. Therefore, it

must be given its plain and ordinary meaning. State v. Anthony, 96 Ohio St.3d

173, 2002-Ohio-4008, 772 N.E.2d 1167, ¶ 11, quoting Sharp v. Union Carbide

Corp. (1988), 38 Ohio St.3d 69, 70, 525 N.E.2d 1386; R.C. 1.42.

{¶ 18} The term “criminally” has varying definitions, including (1)

according to criminal law, (2) in a criminal manner, i.e., in violation of law, and

(3) reprehensively, disgracefully, or shamefully. Webster’s Third New

International Dictionary (1986) 537. The most relevant of the three definitions in

today’s case are “according to criminal law” and “in a criminal manner, i.e., in

violation of law.” When either definition of “criminally” is used in the context of

possessing criminal tools under R.C. 2923.24(A), the statutory language is

susceptible of only one interpretation: the ordinary meaning of “criminally” is not

limited to violations of Ohio law and plainly encompasses violations of any law,

including offenses defined under Ohio law and federal law. If the legislature had

intended the narrow view advocated by Chappell, it could have so provided in

R.C. 2923.24 by expressly stating that the tools must be possessed with the

purpose to use them “in violation of Ohio law” or “criminally in violation of Ohio

law” or “in violation of a criminal offense against the state.” But the General

Assembly did not do so. Because the language set forth by the General Assembly

is clear and definite, we must apply it as written and hold that “criminally,” as it is

used in R.C. 2923.24, encompasses violations of all law, including federal law.

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{¶ 19} This result is not inconsistent with R.C. 2901.03(A) and

2901.04(A) and (D), as Chappell contends and the court of appeals found. R.C.

2901.03 provides:

{¶ 20} “(A) No conduct constitutes a criminal offense against the state

unless it is defined as an offense in the Revised Code.

{¶ 21} “(B) An offense is defined when one or more sections of the

Revised Code state a positive prohibition or enjoin a specific duty, and provide a

penalty for violation of such prohibition or failure to meet such duty.”

{¶ 22} The offense for which Chappell is being prosecuted is possessing

criminal tools, which R.C. 2923.24 “define[s] as an offense” within the meaning

of R.C. 2901.03(A). R.C. 2923.24(B) also states “a positive prohibition” within

the meaning of R.C. 2901.03(B). Finally, R.C. 2923.24(C) provides a penalty for

violating the prohibition by classifying the offense as either a misdemeanor of the

first degree or a felony of the fifth degree, depending on the facts. The state is not

prosecuting Chappell for violating federal copyright law, nor is the state seeking

to have a penalty imposed against Chappell for violating federal copyright law.

And the state is not required to prove that Chappell violated federal copyright law

in order to obtain a conviction against him for possessing criminal tools. Rather,

the state need only show that his purpose was to violate the law. Thus, the

conduct for which Chappell is being prosecuted is a criminal offense under the

Ohio Revised Code in accordance with R.C. 2901.03.

{¶ 23} Any reliance on R.C. 2901.04(A) is also misplaced. R.C.

2901.04(A) states that “[e]xcept as otherwise provided in division (C) or (D) of

this section, sections of the Revised Code defining offenses or penalties shall be

strictly construed against the state, and liberally construed in favor of the

accused.” (Emphasis added.) Division (D) states, “Any provision of the Revised

Code that refers to a section, or to a division of a section, of the Revised Code that

defines or specifies a criminal offense shall be construed to also refer to an

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existing or former law of this state, another state, or the United States, to an

existing or former municipal ordinance, or to an existing or former division of any

such existing or former law or ordinance that defines or specifies, or that defined

or specified, a substantially equivalent offense.”

{¶ 24} Chappell’s emphasis on the directive in division (A) that sections

of the Revised Code defining offenses shall be strictly construed against the state

discounts the entirety of the legislature’s directives in R.C. 2901.04(A) and (D).

R.C. 2901.04(A) is plainly modified by division (D), which was enacted as an

exception to (A) and to provide a rule for interpreting statutory references that

define or specify a criminal offense. See Am.Sub.S.B. No. 146, 150 Ohio Laws,

Part V, 7787-7788 (modifying division (A) of R.C. 2901.04 by adding the phrase

“or (D)” to the phrase “Except as otherwise provided in division (C) of this

section” and enacting new division (D)). R.C. 2901.03 is a provision of the

Revised Code that refers to sections of the Revised Code that define or specify

criminal offenses. Pursuant to R.C. 2901.04(D), a provision such as R.C. 2901.03

that defines a criminal offense shall be construed as referring to existing or former

laws of this state, another state, the United States, or municipalities.

{¶ 25} R.C. 2901.03 and 2901.04 are related and thus must be read in pari

materia. Maxfield v. Brooks (1924), 110 Ohio St. 566, 144 N.E. 725, paragraph

two of the syllabus. In reading statutes in pari materia, this court must give a

reasonable construction that provides the proper effect to each statute. Id. All

provisions of the Revised Code bearing upon the same subject matter should be

construed harmoniously unless they are irreconcilable. Couts v. Rose (1950), 152

Ohio St. 458, 461, 40 O.O. 482, 90 N.E.2d 139. The only harmonious

construction of the statutes is the one advanced by the state, i.e., that R.C.

2901.04(D) expands the definition of criminal offenses in certain circumstances.

Therefore, neither R.C. 2901.03 nor 2901.04 contradicts our determination that

the term “criminally” in R.C. 2923.24 is not limited to violations of offenses

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defined in the Ohio Revised Code. Rather, these statutes lend further credence to

our holding.

{¶ 26} Chappell also argues that he was never indicted by the grand jury

for intending to violate federal copyright law and that the state lacks jurisdiction

to prosecute him under federal copyright laws that preempt any state-law action.

The trial court rejected both of these arguments, and Chappell did not appeal

those aspects of the trial court’s decision. Nor were these issues addressed by the

court of appeals, and Chappell did not seek this court’s discretionary jurisdiction

over these issues. Accordingly, Chappell’s arguments are not properly before this

court, and we will not consider them. Niskanen v. Giant Eagle, Inc., 122 Ohio

St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34.

Conclusion

{¶ 27} For the foregoing reasons, we hold that, in accordance with the

plain and ordinary meaning of the term “criminally,” as the term is used in R.C.

2923.24(A), the purpose to use an item criminally can arise from an intended

violation of federal law.

{¶ 28} Accordingly, we reverse the judgment of the court of appeals and

remand this matter to the trial court for further proceedings consistent with this

opinion.

Judgment reversed

and cause remanded.

LUNDBERG STRATTON, O’DONNELL, LANZINGER, and CUPP, JJ., concur.

BROWN, C.J., and PFEIFER, J., dissent.

__________________

BROWN, C.J., dissenting.

{¶ 29} The majority concludes that the language of R.C. 2923.24(A) is

unambiguous and that the ordinary meaning of “criminally” is “in a criminal

manner, i.e., in violation of law.” Based upon that broad definition of

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“criminally,” the majority holds that a charge of possessing criminal tools may be

based on the use of criminal tools with the intent to violate federal law. The term

“criminally” as used in R.C. 2923.24 is not defined explicitly in the Ohio Revised

Code. I concede that the term could be defined as the majority suggests if the

definition could be properly applied without reference to other relevant statutory

provisions. But terms used in statutes cannot be defined in a vacuum, divorced

from their relevant statutory context.

{¶ 30} R.C. 2901.03(A) abrogated all common-law offenses and

established that only statutorily defined conduct may be found to be criminal in

Ohio. R.C. 2901.03(A) provides, “No conduct constitutes a criminal offense

against the state unless it is defined as an offense in the Revised Code.” The

majority’s definition does not take into account that the General Assembly has

expressed its intent as to what constitutes a crime under Ohio law. Rather than

defining the adverb “criminally” to correspond with the General Assembly’s

definition of “criminal offense,” the majority unnecessarily expands the definition

of “criminally” to include violations of any law.2

{¶ 31} R.C. 2923.24(C) provides further support for the conclusion that

the General Assembly intended “criminally” to be defined in accordance with

R.C. 2901.03. R.C. 2923.24(C) provides, “Whoever violates this section is guilty

of possessing criminal tools. Except as otherwise provided in this division,

possessing criminal tools is a misdemeanor of the first degree. If the

circumstances indicate that the substance, device, instrument, or article involved

2. Although the majority contends that its analysis addresses only the issue whether a criminal-

tools charge can arise from an intended violation of federal law, nothing in its analysis supports

such a limitation. See majority opinion at ¶ 1, fn. 1. In fact, the majority holds, “[T]he statutory

language [of R.C. 2923.24(A)] is susceptible of only one interpretation: the ordinary meaning of

‘criminally’ is not limited to violations of Ohio law and plainly encompasses violation of any law,

including offenses defined under Ohio law and federal law.” (Emphasis sic.) Majority opinion at

¶ 18. Therefore, the majority’s analysis and definition of “criminally” are so broad as to include

intended violations of municipal ordinances, the laws of other states, and the laws of foreign

jurisdictions.

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in the offense was intended for use in the commission of a felony, possessing

criminal tools is a felony of the fifth degree.” (Emphasis added.)

{¶ 32} For the purposes of the Revised Code, R.C. 2901.02 classifies

offenses into categories and limits the category of “felony” to the following: (1)

aggravated murder and murder as defined in the Revised Code, (2) any offense

specifically classified as a felony in the Revised Code, and (3) any offense in the

Revised Code not specifically classified as a felony if imprisonment for more than

one year may be imposed as a penalty. R.C. 2901.02(C), (D), and (E). R.C.

2923.24(C) clearly frames the offense of possessing criminal tools in the context

of criminal offenses as classified in the Revised Code.

{¶ 33} Indeed, if R.C. 2923.24(A) is read so broadly as to include the

violation of any law, as held by the majority, application of R.C. 2923.24(C)

produces strange results. R.C. 2923.24(C) and the definition of “felony” in R.C.

2901.02 mandate that only those criminal-tools convictions that are based upon

the intent to use tools in the commission of a felony defined in the Revised Code

may be classified as a felony of the fifth degree. All other criminal-tools offenses,

presumably including those based upon the intent to use a criminal tool to violate

the laws of any other jurisdiction, must then be classified as a misdemeanor of the

first degree. If the General Assembly had intended for a criminal-tools charge to

be based on the intent to violate the criminal laws of any jurisdiction, as the

majority holds, why would the offense be treated differently based solely upon

whether the underlying offense is an Ohio offense or an offense under the law of

some other jurisdiction?

{¶ 34} Finally, general rules of statutory construction of criminal statutes

weigh in favor of a narrower definition of “criminally.” R.C. 2901.04(A) requires

that sections of the Revised Code that define offenses be construed strictly against

the state and liberally in favor of the accused. In light of the other statutory

provisions that support a definition of the term “criminally” as the commission of

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a criminal offense defined in the Revised Code, application of R.C. 2901.04(A)

requires that this court adopt the narrower definition of “criminally” propounded

by the trial court and the court of appeals. State v. Chappell, 8th Dist. No. 93298,

2010-Ohio-2465.

{¶ 35} The majority’s reliance upon R.C. 2901.04(D) to justify its

disregard for R.C. 2901.04(A) and its conclusion that a violation of any law may

support a conviction of possessing criminal tools is unavailing. The majority is

correct that R.C. 2901.04(D) sets forth an exception to the directive contained in

R.C. 2901.04(A). But that exception is irrelevant to the issues before the court in

this case. The plain language of R.C. 2901.04(D) demonstrates that the exception

applies only when a provision of the Revised Code refers specifically to “a

section, or to a division of a section, of the Revised Code” that defines or

specifies a criminal offense. (Emphasis added.) R.C. 2923.24 contains no

specific reference to a section or division of a section of the Revised Code, and

R.C. 2901.04(D) cannot be used in this case to negate the requirement that the

definitions of criminal offenses be construed strictly against the state and liberally

in favor of the accused.

{¶ 36} The majority’s convoluted interpretation of R.C. 2901.04(D) also

disregards the plain language of R.C. 2901.03(A). Despite the fact that R.C.

2901.03(A) unambiguously provides that “[n]o conduct constitutes a criminal

offense against the state unless it is defined as an offense in the Revised Code,”

the majority attempts to use R.C. 2901.04(D) to expand the definition of a crime

to include violations of existing or former laws of this state, other states, the

United States, and municipalities. Such an interpretation renders the actual

language of R.C. 2901.03(A) meaningless and thwarts the clearly expressed intent

of the General Assembly.

{¶ 37} Perhaps more troubling than the majority’s disregard for the plain

language of the relevant statutory provisions is the majority’s encroachment on

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the jurisdiction of the federal courts. It is undisputed that Ohio courts lack

jurisdiction over federal criminal prosecutions and the enforcement of federal

criminal laws. Yet the majority’s holding poises Ohio courts to encroach upon

the federal arena in cases involving Ohio defendants charged with possessing

criminal tools.

{¶ 38} The facts of the case before us present just one example of how a

state court prosecution for possessing criminal tools based upon an intended

violation of federal law may include improper forays into issues of federal law.

In order to prove that Chappell committed the offense of possessing criminal

tools, the state must prove that his purpose in using the tools at issue was to

violate federal copyright law. In few cases will the state be presented with a neat

confession from such a defendant that it was his purpose to violate federal

copyright law or that it was his purpose to violate Section 506, Title 17,

U.S.Code. Instead, the state will be presented with direct or circumstantial

evidence that a defendant, for example, intended to copy and sell a DVD or other

copyrighted work, as in this case. It will then fall to the state to demonstrate to

the trier of fact that those specific actions of the defendant constitute a crime

under Section 506, Title 17, U.S.Code. In doing so, the state will be put in the

position of presenting a federal criminal case to a state jury or judge, and when a

jury is involved, the state court will be instructing the jury on federal criminal

law, all in the pursuit of trying an Ohio defendant for an Ohio offense. In

resolving inevitable disputes regarding whether the underlying actions of the

defendant constitute a federal crime, state courts will be called upon to interpret

and apply federal criminal law.

{¶ 39} This court and other Ohio courts have no authority or expertise in

federal criminal law. Therefore, this court ought to avoid an interpretation of

R.C. 2923.24 that entangles Ohio courts in matters intended for federal courts,

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particularly when the statutory language can clearly be interpreted to avoid such a

result.

{¶ 40} Based upon the language of R.C. 2901.03(A), 2923.24(C), and

2901.02, I cannot conclude that the General Assembly intended the term

“criminally” to be afforded the expansive dictionary definition adopted by the

majority. “Criminally” must be defined in conjunction with other provisions of

the Revised Code and limited strictly to conduct that constitutes a criminal

offense against the state as defined in the Revised Code. Any other definition

leads to absurd results that improperly expand the jurisdiction of Ohio’s courts.

Accordingly, I dissent.

PFEIFER, J., concurs in the foregoing opinion.

__________________

William D. Mason, Cuyahoga County Prosecuting Attorney, and Thorin

Freeman, Assistant Prosecuting Attorney, for appellant.

Joseph T. McGinness, for appellee.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,

and Emily S. Schlesinger, Deputy Solicitor, urging reversal for amicus curiae,

Ohio Attorney General.

______________________

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