Opposition Brief — Ohio v. Wyant

a

IN THE

SUPREME COURT OF THE UNITED STATES

STATE

OF OHIO,

Petitioner,

Be

DAVID WYANT,

Respondent.

STATE

JAMES MAY,

OF OHIO,

Petitioner,

Vv.

om., @€. Bikes

Respondent.

STATE

OF OHIO,

Petitioner,

Ve

CLANCY VAN GUNDY, et. al.,

Respondent.

BRIEF IN OPPOSITION

TO THE STATE OF OHIO'S

PETITION FOR A WRIT OF CERTIORARI

SUBMITTED ON BEHALF OF RESPONDENT ROBERT ERIC BLAZER

CODEFENDANT IN STATE OF OHIO vs.

CLANCY VAN GUNDY, et. al.

Allen V. Adair

Franklin County Public

Defender's Office

373 South High Street

Twelfth Floor

Columbus, Ohio 43215

Phone: 614-462-3960

Counsel for Respondent

Robert Eric Blazer

QUESTIONS PRESENTED FOR REVIEW

1. Whether Section 2927.12 of the Ohio Revised Code, increasing

the penalty for certain offenses when the offender was motivated

by bias, violates the First Amendment of the United States

Constitution by impermissibly punishing the content of speech.

2. Whether Section 2927.12 of the Ohio Revised Code is

unconstitutionally vague, thus denying due process, and whether

it works to deny equal protection of the law, both contrary to

the Fourteenth Amendment of the United States Constitution.

Ne

LIST OF PARTIES

The immediate parties to the prosecution involving

respondent Robert Blazer are the State of Ohio, herein

represented by the Ohio Attorney General as counsel of record,

and codefendants Clancy Van Gundy, Casey Van Gundy, Franklin D.

Clay, Bryan Krebs, Charles Culp and Terry Breedlove, Jr. Parties

to the companion cases are as indicated in the petition.

ii

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED........

STATEMENT OF THE CASE......ccccccvcccccccces Terrreen ey Tt

REASONS WHY THE WRIT SHOULD BE DENIED......ccccccccecce

I. The decision of the Supreme Court of Ohio is

consistent with this Court's decision in R.A.V.

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A. The Gnio Statute... eccosvvssevrssseessvesvzases

B. The Decision of the Ohio Supreme Court........

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II. The Ohio ethnic intimidation statute is

constitutionally defective on additional grounds

not addressed by the Supreme Court of Ohio..........

III. Remaining Issues Raised by the Petition........

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APPENDIX:

State v. Wyant 64 Ohio St. 3d 566 (1992)............

State v. Van Gundy, et. al., unreported opinion of

the Court of Appeals of Ohio, Tenth Appellate

District (FPLENKLIN COUNECY) «a cccacencsdewscsenevscees

State v. Van Gundy, et. al., unreported opinion of

the Court of Common Pleas, Franklin County, Ohio....

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iii

15

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TABLE OF AUTHORITIES

CASES

Beauharnais v. Illinois, 343 U.S. 250 (1952).........

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).....

Connally v. General Construction Co., 269 U.S. 385

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Dawson v. Delaware, 503 U.S. , 222 S&S. CE. 1093,

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Grayned v. City of Rockford, 408 U.S. 104 (1972).....

en we. rer, C50 U.8, F747 (19B2) ..vacvcsceces

Posadas de Puerto Rico Associates v. Tourism Co.

Pn, OPS Wels S28 (A986)... co ccececscccess

Roberts v. United States Jaycees, 468 U.S. 609

Teen Te cea b ew veee bed eeeseeess

R.A.V. v. City of St. Paul, Minnesota

505 U.S. Oe A ee a ee oe

State v. Mitchell Wis. , 485 N.W. 2d 807

SOE reas ces oe er egy UUW kao 4.6 Wdce kee

erento we. fseees, 3397 U.S. 1 (1949). ccccesceces

West Virginia State Board of Education v. Barnette,

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STATUTES

Section 750.147, Michigan Comp. Laws Ann..........e.

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Section 166.165, Oregon Revised Statutes.............

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PAGE NO.

10

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14

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TABLE OF AUTHORITIES, CONT.

CONSTITUTIONAL PROVISIONS PAGE NO.

Article I, Sec 11, Ohio Constitution...... ctesvedcnaee . Ee

First Amendment, United States Constitution.......... 10-13, 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

No. 92-568

STATE OF OHIO,

Petitioner,

Vv.

DAVID WYANT,

Respondent.

STATE OF OHIO,

Petitioner,

Vv.

JAMES MAY, JR., et. al.,

Respondent.

STATE OF OHIO,

Petitioner,

Vv.

CLANCY VAN GUNDY, et. al.,

Respondent.

BRIEF IN OPPOSITION TO THE STATE OF CdIO'S

PETITION FOR A WRIT OF CERTIORARI

SUBMITTED ON BEHALF OF RESPONDENT ROBERT ERIC BLAZER

CODEFENDANT IN STATE OF OHIO vs.

CLANCY VAN GUNDY, et. al.

Respondent Robert Blazer respectfully requests that a writ

of certiorari not issue to review the judgment of the Supreme

Court of Ohio entered in this proceeding on August 26, 1992. In

addition to the First Amendment issue which was the basis for the

decision of the Supreme Court of Ohio, respondent advances

additional grounds, briefed and argued in the Ohio courts,

supporting the decision in his favor.

OPINIONS BELOW

Respondent Robert Blazer was one of seven codefendants in

the prosecution styled State of Ohio v. Van Gundy, et. al.

The opinion of the Supreme Court of Ohio relates to this and two

companion cases and is published as State v. Wyant, 64 Ohio St.

34 S66, =WN.E. 2@ £(3992). The opinion of the Court of

Appeals of Ohio, Tenth Appellate District (Franklin County) is

unpublished, as is the decision of the trial court, which was the

Franklin County Court of Common Pleas. All three opinions are

included in the appendix.

JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. Section

1257(3). Petitioner's invocation of 28 U.S.C. Section 1257(a)

appears erroneous. The petition has been filed in a timely

manner.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

(1) The statute at issue is Ohio Revised Code Sec. 2927.12:

"(A) No person shall violate section 2903.21, 2903.22,

2909.06, or 2909.07, or division (A)(3), (4), or (5) of

section 2917.21 of the Revised Code by reason of the race,

color, religion, or national origin of another person or

group of persons. |

"(B) Whoever violates this section is guilty of ethnic

intimidation. Ethnic intimidation is an offense of the next

higher degree that the offense the commission of which is a

necessary element of ethnic intimidation."

(2) The predicate offense for which respondent was prosecuted was

aggravated menacing, defined as followed by Section 2903.21 of

the Ohio Revised Code:

"(A) No person shall knowingly cause another to believe

that the offender will cause serious physical harm to the

person or property of such other person or member of his

immediate family.

"(B) Whoever violates this section is guilty of

aggravated menacing, a misdemeanor of the first degree."

(3) The First Amendment to the United States Constitution states:

"Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assembly, and to petition

the Government for a redress of grievances."

(4) Article I, Section 11 of the Ohio Constitution provides:

"Every citizen may freely speak, write, and publish his

sentiments on all subjects, being responsible for the abuse

of the right; and no law shall be passed to restrain or

abridge the liberty of speech, or of the press. In all

criminal prosecutions for libel, the truth may be given in

evidence to the jury, and if it shall appear to the jury

that the matter charged as libelous is true, and was

published with good motives, and for justifiable ends, the

party shall be acquitted."

(5) Section 1 of the Fourteenth Amendment to the United States

Constitution provides in part:

",..nor shall any State deprive any person of life.

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws."

STATEMENT OF THE CASE

Respondent Blazer was one of seven codefendants, each

charged with seven counts of ethnic intimidation. The substance

of the charges was that "by reason of the race, color, religion

or national origin" of each of the named victims, each defendant

3

had caused the victim to believe that the defendants,

individually or collectively, would cause them to suffer serious

physical harm. Each count constituted a felony of the fourth

degree, carrying a potential prison term of up to eighteen

months, which, if run consecutively, could total as much as ten

and one-half years of imprisonment. Only codefendant Clancy Van

Gundy was charged with the additional offense of felonious

assault. Because there was no trial in this case the facts

Giving rise to charges are not a matter of record, though it may

be inferred from the indictment that there was a confrontation

between two groups of people and that one of the codefendants

assaulted one of the alleged victims.

Respondent Blazer, along with the other defendants, moved

to dismiss on constitutional grounds. Following a hearing on

March 14, 1990, the judge ruled in respondent's favor and

subsequently issued an opinion, stating in part:

"xekxethe statute provides no objective standard of conduct

to guide a citizen and his counsel as to the actions

proscribed. (Sec.) 2927.12 0O.R.C. does not make clear the

interplay between it and the related sections of the code to

which it refers, does not set forth an acceptable culpable

mental state nor does it make clear what must be done

'knowingly', does not define ‘by reason of', and does not

specify whether the race or ethnicity of another refers to

the victim or someone other than the victim. It would also

invite arbitrary enforcement and selective prosecution.

"The statute violates the Due Process and Equal

Protection Clauses in that, as it is written, it bears no

reasonable relationship to a legitimate public purpose.

Further, the law cannot pass Constitutional muster because

the punishment of one convicted of committing an act of

violence against another would not be enhanced if 'by reason

of' the race, etc. of another, although the punishment would

be enhanced against one convicted of merely threatening to

do so."

After further noting the probable chilling effect of the statute

upon First Amendment rights of speech and association, the court

dismissed the ethnic intimidation counts as to all of the

defendants. The felonious assault count against Clancy Van Gundy

remained and Mr. Van Gundy has since been convicted of that

charge.

The Court of Appeals affirmed the judgment of the trial

court in an opinion rendered April 16, 1991. As did the trial

court, the Court of Appeals found the statute void for vagueness

under the Due Process Clause of the Fourteenth Amendment in that

it failed to give a person of ordinary intelligence fair warning

as to what conduct is prohibited, and because it encouraged

arbitrary and discriminatory enforcement. The court also found

R.C. 2927.12 infringed upon free speech as guaranteed by the

First Amendment. It did not address the Equal Protection

argument briefed by counsel.

The case was certified to the Supreme Court of Ohio to be

considered together with cases from two other counties. Before

the state supreme court claims were advanced that: (1) the ethnic

intimidation statute was unconstitutionally vague, (2) that it

infringed upon First Amendment rights, (3) that it was

unconstitutionally overbroad, (4) that, applying equal protection

considerations, it did not serve a compelling state interest, (5)

that the statute could not be saved by application of a

presumption of constitutionality, and (6) that it could not be

saved by a narrowing interpretation. Other parties advanced

similar arguments. The decision of the Supreme Court of Ohio was

rendered August 26, 1992, approximately two months after the

issuance of this court's decision in R.A.V. v. City of St. Paul,

Minnesota 505 U.S. , 112 S. Ct. 2538. The decision addressed

only the First Amendment issue and affirmed the judgment of the

lower courts.

REASONS WHY THE WRIT SHOULD BE DENIED

I. The decision of the Supreme Court of Ohio is consistent with

this Court's decision in R.A.V. v. City of St. Paul, Minnesota.

A. The Ohio Statute

Petitioner attempts to distinguish the Ohio ethnic

intimidation statute from the St. Paul ordinance reviewed in

R.A.V. v. City of St. Paul, Minnesota, 505 U.S. » 222 8. CS.

2538 (1992), essentially arguing that the Ohio statute merely

provides an enhanced penalty for conduct already criminalized,

while the ordinance created a separate substantive offense aimed

at a particular kind of conduct. This is at odds with this

Court's view of the St. Paul ordinance: the R.A.V. opinion

observes that the conduct in question could have been punished

under a number of other laws, listed in a footnote. 112 S. Ct. at

2541 and fn. 1. While the Ohio statute does establish an

increased penalty for conduct proscribed by other statutes, it

does so by defining a new substantive offense, which incorporates

by reference the elements of the lesser oftenses, and adds the

element that the offense committed was motivated by bias. Thus,

the substance of the Ohio statute is identical for purposes of

6

constitutional review to the St. Paul ordinance, as it creates a

"thought crime," in the words of the Ohio Supreme Court, or one

improperly based on the content of speech following this Court's

analysis in R.A.V.

Section 2927.12 of the Ohio Revised Code states:

"(A) No person shall violate section 2903.21, 2903.22,

2909.06, or 2909.07, or division (A)(3), (4), or (5) of

section 2917.21 of the Revised Code by reason of the race,

color, religion, or national origin of another person or

group of persons.

"(B) Whoever violates this section is guilty of ethnic

intimidation. Ethnic intimidation is an offense of the next

higher degree that the offense the commission of which is a

necessary element of ethnic intimidation."

Since no culpable mental state is specified, it would appear that

by operation of Section 2901.21 of the Ohio Revised Code, the

mens rea requirement as to the element of motivation for the

underlying offense is either strict criminal liability or

recklessness.1l

The underlying offense for the seven counts of ethnic

intimidation on which respondent was indicted was aggravated

menacing, defined as follows by Revised Code Section 2903.21:

"(A) No person shall knowingly cause another to believe

that the offender will cause serious physical harm to the

1 Section 2901.22 of the Revised Code defines four culpable

mental states (purposely, knowingly, recklessly, and negligently)

and allows for strict criminal liability. Section 2901.21(B)

provides: "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

such section, then culpability is not requirea 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."

person or property of such other person or member of his

immediate family.

"(B) Whoever violates this section is guilty of

aggravated menacing, a misdemeanor of the first degree."

Briefs submitted in the state courts variously argued that the

knowingly mens rea element carried over to the greater offense or

that recklessness was sufficient as to the motive element, this

being relevant to one of the arguments that the statute failed to

provide an ascertainable standard of guilt and was’ thus

unconstitutionally vague.

B. The Decision of the Ohio Supreme Court

In construing the Ohio statute, this Court is bound by the

construction given it by the Ohio Supreme Court. R.A.V. v. City

of St. Paul, Minnesota, supra, 112 S. Ct. at 2542, citing Posadas

de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S.

328, 339 (1986); New York v. Ferber, 458 U.S. 747, 769, fn. 24

(1982); Terminello _v. Chicago, 337 U.S. 1, 4 (1949). The

syllabus setting forth the holding of the Ohio Supreme Court in

the present case states:

"The effect of R.C. 2927.12 is to create a ‘thought crime,'

in violation of Section 11, Article I of the Ohio

Constitution, and the First and Fourteenth Amendments to the

United States Constitution. "2

In reaching this conclusion, the court evamined both the

aggravated menacing and ethnic intimidation statutes and

concluded: "...The (ethnic intimidation) statute specifies no

2 under Ohio law, the syllabus to an Ohio Supreme Court

opinion states the holding of the court.

8

additional act or conduct beyond what is required to obtain a

conviction under the predicate statutes. Thus the enhanced

penalty results solely from the actor's reason for acting, or his

motive." State v. Wyant, 64 Ohio St. 3d 566, 571 (1992) .3 The

issue to be decided by the court was "...whether a person's

motive for committing a crime can support either a separate,

additional crime, or an enhanced penalty for an existing crime."

Id.

The Court at some length distinguished motive from criminal

intent, concluding that while motive might be evidence of intent,

motive by itself was not otherwise an element of offenses defined

by the Ohio Revised Code. Where the code elsewhere provided for

an enhanced penalty based on aggravating circumstances, the basis

was “an additional act or intent" and not whatever may have

motivated the offender to act as he did. Id. at 574. Looking to

state and federal anti-discrimination laws, the Court concluded

that it was the discriminatory treatment or acts which were to be

punished and not the bigotry leading to those acts. Id. at 575.

The court went on to find that by punishing a person for their

3 The petition, submitted by the Ohio Attorney General, who

before his election to that position had been the sponsor of the

enacting legislation in the Ohio General Assembly, does not

dispute this analysis. At page eight the petition states: "...A

person may think or say anything they want, no matter how

deplorable, and may do so without fear of punishment. Only when

that motivates otherwise criminal conduct may that person be

charged under Ohio law. Then any thought behind the act ‘is

swept up incidentally' within the conduct involved. The conduct

of the person, thus, is not ‘shielded from regulation' by the

fact the actor had a discriminatory idea or philosophy behind

commission of the act."

motives, the ethnic intimidation statue punished thought, which

was protected by the First Amendment. Following discussion of

West Virginia State Board of Education v. Barnette, 319 U.S. 624

(1943), Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),

Beauharnais v. Illinois, 343 U.S. 250 (1952) and additional

cases, the court concluded:

"Applying these principles, we believe that the

government is not free to punish an idea, though it may

punish acts motivated by the idea. It may also punish

unprotected speech expressing the idea." 64 Ohio St. 3d at

578.

Comparing the Ohio statu*se to the ordinance struck down in

R.A.V. and a Wisconsin statute, comparable to, though not as

vaguely drafted as the Ohio statute, which was recently struck

down by the Wisconsin Supreme Court,* the Ohio Supreme Court

stated:

"R.C. 2927.12 constitutes a greater infringement on

speech and thought than either the St. Paul or Wisconsin

‘hate crimes' laws. R.C. 2927.12 specifically punishes

motive, and motive alone, not action or expression. The

Ohio statute singles out racial and religious hatred as a

viewpoint to be punished. It is the regulation of viewpoint

that most particularly violates the Ohio and _ federal

Constitutions." 64 Ohio St. 3d 579.°

As discussed briefly under division II below, the Court did not

address additional issues raised by respondents. The decision

of the Ohio Supreme Court was unanimous, as was the decision of

the Court of Appeals in State v. Van Gundy, et. al.

4 state v. Mitchell Wis. , 485 N.W. 2d 807 (1992).

5 From this passage, as well as other portions of the

opinion, it is clear that the Ohio Supreme Court did not construe

the statute as reaching only "fighting words."

10

Cc. Wyant and R.A.V. Compared

While the decision of the Ohio Supreme Court was issued

after this court's decision in R.A.V. v. City of St. Paul,

Minnesota and makes reference to R.A.V., the Ohio court's

decision rests upon its independent review of Ohio law and

applicable constitutional principles and not the conclusion that

the holding was compelled by this Court's decision. There is no

inconsistency between the decisions. Perhaps the Ohio court had

the easier task because it was not bound by characterization of

the statute as applying only to unprotected speech - so called

"fighting words." In addition, the Court's distinction between

motive and intent under Ohio law served as the foundation for its

hoiding.

The issue of underinclusiveness was not addressed by the

Ohio Supreme Court, thougn it was touched upon in the lower

courts in connection with due process and equal protection

claims. It is beyond reason that the Ohio ethnic intimidation

statute provides an increased penalty, based on motive, for

menacing conduct (itself usually manifested by speech or

expressive conduct), but not for the assault it must be proved

the victim of menacing or aggravated menacing subjectively

believed he would suffer. In any event, the view of the majority

in R.A.V. was that "...the First Amendment imposes not an

‘underinclusiveness' limitation but a ‘content discrimination'

limitation upon a State's prohibition of proscribable speech"

11

(112 S. Ct. at 2545), and it is content discrimination that was

the basis of the decision of the Ohio Supreme Court.

II. The Ohio ethnic intimidation statute is constitutionally

defective on additional grounds not addressed by the Supreme

Court of Ohio.

The Ohio Supreme Court chose to address only the First

Amendment issue:

"The parties also make constitutional challenges :o R.C.

2927.12 on the grounds of (1) vagueness, (2) equal

protection, (3) due process and (4) overbreadth. These

arguments may have merit, especially in view of the

concurring opinion by Justice White in R.A.V. v. St. Paul,

supra...However, because of our holding we need not address

these challenges. 64 Ohio St. 3d 579-580.

The trial court had sustained a motion to dismiss on all of these

grounds. The opinion of the intermediate court of appeals

focused on the First Amendment and vagueness issues, finding both

compelling.

Because of the interrelationship among the issues, much of

what respondent advanced in the lower courts in support of

vagueness, overbreadth and equal precection claims is echoed in

this Court's decision in R.A.V., and, to a lesser extent, in the

opinion of the Ohio Supreme Court.

Vague wren make it difficult for both the citizen who must

conform his conduct to the requirements of the law and for those

authorities charged with enforcement, which must be uniform to

be fair. Connally v. General Construction Co., 269 U.S. 385, 391

(1926); Roberts v. United States Jaycees, 468 U.S. 609, 629

(1984); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

12

Ohio's ethnic intimidation statute is unconstitutionally vague

for a number of reasons. Related to the First Amendment

arguments, the statute's vagueness contributes to its

overbreadth: it fails to adequately distinguish between

constitutionally protected expression and that falling within the

narrow exception made for fighting words, thus allowing

punishment of protected speech. The statute fails to specify

whether the victim must be of a different race, color, religion,

or national origin that the defendant, as do statutes in other

jurisdictions. ® The Ohio law fails to specify a scienter

requirement as to the motive element, making it uncertain

whether the mens rea element of the underlying offense carries

over to the greater offense, or whether recklessness or strict

liability applies, neither of which is appropriate when First

Amendment rights are at stake. (See fn. 1 above.) Not only the

police and members of the public at large are left without

guidance. These shortcomings also create great practical

difficulties for both a defendant, who must prepare to defend at

trial, and for the court, which is given no guidance as to how

the jury must be instructed.

The gist of the equal protection argument was that to

increase the penalty for a criminal offense merely because the

offender is a bigot is a denial of equal protection, as a

6 Compare Oregon Revised Statutes Sec. 166.165(1)(a) (A),

New York Penal Law Sec 240.30(3) and Michigan Comp. Laws Ann.

Sec. 750.147b, all of which explicitly refer to the race,

religion, color, gender or national origin of the victim.

13

compelling state interest is not served by the differential

treatment. Essentially the same rationale was followed by this

Court in determining that the municipal ordinance in R.A.V.

improperly penalized speech based upon its content.

Should the petition be granted, respondent asks that the

parties also be directed to address the vagueness and equal

protection issues.

III. Remaining Issues Raised by the Petition

Petitioner urges the Court to square the opinion of the

Ohio Supreme Court with the decision in Dawson v. Delaware, 503

U.S. , 112 & Ct. 1093, 117 L.Ed. 2d 309. Dawson involved

consideration of the defendant's membership in the Aryan

Brotherhood at the sentencing phase of a death penalty trial.

The Court found this was not relevant to any of the aggravating

factors, enumerated by statute, or to rebut any of the mitigation

advanced. In circumstances where such evidence would be

relevant, the Court concluded that the First and Fourteenth

Amendments did not erect a per _se barrier to introduction of

evidence as to membership in a racist organization. Should

Ohio's ethnic intimidation statute be upheld, or should some

related provision be found to pass constitutional muster, Dawson

would be instructive as to the admissibility of evidence proving

bias on the part of the offender. However, it does not bear upon

the determination whether or not such statutes infringe upon

rights protected by the First Amendment.

14

As to the final issue raised by the petition, while

respondent does not strenuously argue that the decision of the

Ohio Supreme Court rests on independent state grounds, this

court's attention is directed to the following paragraph in the

opinion:

"The freedoms of speech, press, religion and assembly are

guaranteed in the First Amendment because they share a core

value: the freedom of an individual to frame his thoughts

and beliefs. The Constitution of Ohio is even more

specific; it guarantees to every citizen freedom to 'speak,

write, and publish his sentiments on all subjects.' It

follows that a citizen of Ohio is free to have 'sentiments

on all subjects.'" 64 Ohio St. 3d 577.

This suggests the possibility that were this court to conclude

that the statute was acceptable under the First Amendment, the

Ohio Supreme Court might still conclude it was in violation of

the state Constitution.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

Allen V. Adair

Franklin County Public

Defenders Office

373 South High Street

Twelfth Floor

Columbus, Ohio 43215

Phone: (614) 462-3960

Counsel for Respondent

Robert Eric Blazer

15

APPENDIX

OPINION OF THE SUPREME COURT OF OHIO

566 SUPREME COURT, JANUARY TERM, 1992 [64 Ohio St.3d

Statement of the Case

Tue State oF Onto, APPELLEE, v. WYANT, APPELLANT.

Tue State OF Onto, APPELLANT, v. May, APPELLEE.

Tue State OF On10, APPELLANT, v. STATON ET AL, APPELLEES.

Tue State oF On10, APPELLANT, v. VAN GUNDY ET AL, APPELLEES.

[Cite as State v. Wyant (1992), 64 Ohio St.3d 566.)

Criminal law—Ethnic intimidation—R.C. 2927.12 unconstitutional.

The effect of R.C. 2927.12 is to create a “thought crime,” in violation of

Section 11, Article I of the Ohio Constitution, and the First and Four-

teenth Amendments to the United States Constitution.

See: West’s Ohio Digest, Extortion and Threats 25.

(Nos. 91-199, 91-1519 and 91-1211/91-1589—Submitted

April 15, 1992—Decided August 26, 1992.)

AppeaL from the Court of Appeals for Delaware County, No. 90-CA-2.

CerTIFIED by the Court of Appeals for Montgomery

County, Nos. 12239, 12259 and 12260.

AppeaL from and CertiFieD by the Court of Appeals for Franklin

County, Nos. 90AP-473, 90AP-474, 90AP-475, 90AP-477,

90AP-478, 90AP-479 and 90AP-480.

Wyant Case: case No. 91-199

On May 29, 1989 appellant David Wyant and his wife rented campsite L-16

at Alum Creek State Park. On May 31, the Wyants’ relatives came to join

them, and rented L-17, the adjoining campsite. On June 2, Wyant rerented

his site, but released the relatives’ site, as they were to leave that day. Later

in the day plans changed, and Wyant attempted to rerent site L-17. He was

told that the site had been rented to someone else, and so he rented L-18.

Site L-17 had been rented to the complaining witnesses, Jerry White, and

his girlfriend, Patricia McGowan. White and McGowan are black; everyone

in the Wyant party is white. There was little contact between the groups for

most of the evening of June 2nd, but sometime between 10:30 and 11:45 p.m.,

White went to park officials to complain of loud music coming from the Wyant

campsite. A park official went to site L-16 and asked Wyant to turn off the

radio. Wyant complied.

Fifteen or twenty minutes later the radio came on again, and White and

McGowan heard racial epithets and threats made in a loud voice by Wyant.

A-1

64 Ohio -St.3d] STATE .v. WYANT 567

Statement of the Case

Specifically, Wyant was heard to say: “We didn’t have this problem until

those niggers moved in next to us,” “I ought to shoot that black mother

fucker,” and “I ought to kick his black ass.” White and McGowan complained

to park officials and left the park.

Wyant was indicted and convicted on one count of ethnic intimidation, R.C.

2927.12, predicated on aggravated menacing, and sentenced to one and one-

half years’ imprisonment. The court of appeals affirmed the conviction. The

cause is before the court pursuant to the allowance of a motion for leave to

appeal.

May Case: case No. 91-1519

Defendant James May, Jr. was charged with ethnic intimidation predicated

on aggravated menacing. He moved to dismiss. The trial court dismissed on

the grounds that R.C. 2927.12 is unconstitutional. The May case was consol-

idated with the Plessinger/Staton case on appeal.

Plessinger/Staton Case: case No. 91-1519

Defendants Aaron Plessinger and Mark Staton were charged with ethnic

intimidation predicated on aggravated menacing. They moved to dismiss on

the grounds that R.C. 2927.12 is unconstitutional, and on the authority of the

court’s decision in the May case. The trial court dismissed. Upon motion by

the state, the court of appeals consolidated the May case with the Plessing-

er/Staton case. The court of appeals affirmed the trial court’s dismissal of

the ethnic intimidation charges, but reversed and remanded for prosecution on

the aggravated menacing charges. Finding its judgment to be in conflict with

that of the Fifth District Court of Appeals in State v. Wyant (Dec. 6, 1990),

Delaware App. No. 90-CA-2, unreported, 1990 WL 200270, the court certified

the record of the case to this court for review and final determination.

Van Gundy Case: case Nos. 91-1211/91-1589

Defendants Clancy Van Gundy, Casey Van Gundy, Franklin D. Clay, Robert

Blazer, Bryan Krebs, Charles Culp, and Terry Breedlove, Jr. were each

charged with seven counts of ethnic intimidation predicated on aggravated

menacing. Clancy Van Gundy was also charged with felonious assault. He

was tried and convicted on this charge. See State v. Van Gundy (1992), 64

Ohio St.3d 230, 594 N.E.2d 604. The trial court dismissed the ethnic intimi-

dation counts, holding that R.C. 2927.12 is unconstitutional. The court of

appeals affirmed, and, also finding its judgment to conflict with State v.

Wyant, certified the record of the case to this court for review and final

determination. This cause is also before the court pursuant to a motion for

leave to appeal (case No. 91-1211). We hereby allow the motion.

568 SUPREME COURT, JANUARY TERM, 1992 [64 Ohio St.3d

. Statement of the Case

W. Duncan Whitney, Prosecuting Attorney, and Sue Ann Reulbach, for

appellee in case No. 91-199. -

Lee C. Falke, Prosecuting Attorney, and Lorine M. Reid, for appellant in

case No. 91-1519.

Michael Miller, Prosecuting Attorney, Joyce S. Anderson and Katherine J.

Press, for appellants in case Nos. 91-1211/91-1589.

Lee I. Fisher, Attorney General, Simon B. Karas and Eric A. Walker as

supplementary counsel, for appellee in case No. 91-199 and appellants in case

Nos. 91-1211/91-1589 and 91-1519.

Randall M. Dana, Ohio Public Defender, Susan B. Gellman and Robert L.

Lane, for appellant in case No. 91-199.

Terry L. Lewis, for appellee James B. May, Jr. in case No. 91-1519.

Gary C. Schaengold, for appellee Mark J. Staton in case No. 91-1519.

Gary W. Crim, for appellee Aaron L. Plessinger in case No. 91-1519.

Wonnell, Janes & Wonnell Co., L.P.A., and Harold E. Wonnell, for

appellee Clancy Van Gundy in case Nos. 91-1211/91-1589.

Andrew E. Lyles, for appellee Casey Van Gundy in case Nos. 91-1211/91-

1589.

Samuel B. Weiner, for appellee Franklin D. Clay in case Nos. 91-1211/91-

1589.

James Kura, Franklin County Public Defender, Allen V. Adair and Carole

B. Schneider, for appellee Robert Eric Blazer in case Nos. 91-1211/91-1589.

Tyack & Blackmore Co., L.P.A., and Thomas M. Tyack, for appellee Bryan

Krebs in case Nos. 91-1211/91-1589.

Arnold S. White, Daniel T. Kobil and Susan B. Gellman, for appellee

Charles Culp in case Nos. 91-1211/91--1589.

Terry Breedlove, Jr., pro se, in case Nos. 91-1211/91-1589.

Bruce W. Sanford and Robert M. O'Neil, urging reversal for amicus

curiae, Thomas Jefferson Center for the Protection of Free Expression in

case No. 91-199.

Thomas A. Schaffer and Annabelle Whiting Hall, urging reversal for

amicus curiae, National Association of Criminal Defense Lawyers in case No.

91-199, and affirmance in case Nos. 91-1211/91-1589.

Reinhart Law Office and Harry R. Reinhart; Eslocker, Grim, Hodson &

Dioguardi and Nicholette Dioguardi, urging reversal for amicus curiae,

Ohio Association of Criminal Defense Lawyers in case No. 91-199 and

affirmance in case Nos. 91-1211/91-15839.

64 Ohio St.3d] STATE -v. WYANT ‘569

‘Opinion, per H. Brown, J.

Kevin Francis O'Neill, Ohio'Legal Director, urging reversal: for amicus

curiae, American Civil Liberties Union of Ohio Foundation, Inc. in case No.

91-199. '

Robert D. Horowitz, Stark County Prosecuting Attorney, Kristine Wilson

Rohrer and John E. Murphy, Executive Director; and Paul Coz, urging

affirmance for amici curiae, Ohio Prosecuting Attorney’s Association, Frater-

nal Order of Police and Buckeye State Sheriff's Association in case No. 91-

199.

Ronald J. O'Brien, City Attorney, Marcee C. McCreary, City Prosecutor,

and Thomas K. Lindsey, urging reversal for amicus curiae, city of Columbus

in case Nos. 91-1211/91-1589.

Jones, Day, Reavis & Pogue, Steven T. Catlett and Richard A. Cordray;

Schwartz, Kelm, Warren & Rubenstein and Nelson E. Genshaft; Ruth L.

Lansner, Steven M. Freeman and Michael Sandburg, urging reversal for

amicus curiae, Anti-Defamation League in case Nos. 91-1211/91-1589.

Alphonse A. Gerhardstein, urging reversal for amici curiae, Housing

Opportunities Made Equal (HOME), East Suburban Council for Open Commu-

nities, Toledo Fair Housing Center, Cincinnati Human Relations Commission

and National Fair Housing Alliance in case Nos. 91-1211/91-1589.

Herbert R. Brown, J. The principal issue before us is the constitutionality

of the ethnic intimidation statute, R.C. 2927.12. Before undertaking an

analysis of the statute, however, we express our abhorrence for racial and

ethnic hatred, and especially for crimes motivated by such hatred. We fully

accept the premise which prompted the enactment of the legislation before us:

that bigotry, whether expressed merely in words or by violence, does harm to

its victims and to society as a whole.

The ethnic intimidation statute is a well-intentioned response to a society-

threatening problem. However, the legislative response to this problem must

not violate the Ohio and United States Constitutions. For the following

reasons, we find R.C. 2927.12 unconstitutional.

I

The Statute

R.C. 2927.12 reads:

“(A) No person shall violate section 2903.21, 2903.22, 2909.06, or 2909.07, or

division (AX3), (4), or (5) of section 2917.21 of the Revised Code by reason of

the race, color, religion, or national origin of another person or group of

persons.

570 SUPREME COURT, JANUARY TERM, 1992 (64: Ohio St.3d

_ Opinion, per .H. Brown, J.

- “(B) Whoever violates-this section is guilty.of ethnic intimidation. .. Ethnic

intimidation is an offense of the next higher degree than. the offense the

commission of which is a necessary element of ethnic intimidation.”

The statute creates enhanced -criminal penalties for some péople “who

commit aggravated menacing (R.C. 2903.21),' menacing (R.C. 2903.22),? crimi-

nal damaging or endangering (R.C. 2909.06),’ criminal mischief (R.C. 2909.07),‘

or certain types of telephone harassment (R.C. 2917.21{AJ{(3], [4], or [5]).*

The predicate offenses to ethnic intimidation are already punishable acts

under other statutes. Thus the enhanced penalty must be for something more

1. R.C. 2903.21 (aggravated menacing) reads in part:

“(A) No person shall knowingly cause another to believe that the offender will cause serious

physical harm to the person or property of such other person or member of his immediate

family.” ;

2. R.C. 2903.22 (menacing) reads in part:

“(A) No person shall knowingly cause another to believe that the offender will cause physical

harm to the person or property of such other person or member of his immediate family.”

3. R.C. 2909.06 (criminal damaging or endangering) reads in part:

“(A) No person shall cause, or create a substantial risk of physical harm to any property of

another without his consent:

“(1) Knowingly, by any means;

“(2) Recklessly, by means of fire, explosion, flood, poison gas, poison, radioactive material,

caustic or corrosive material, or other inherently dangerous agency or substance.”

4. R.C. 2909.07 (criminal mischief) reads in part:

“(A) No person shall:

“(1) Without privilege to do so, knowingly move, deface, damage, destroy, or otherwise

improperly tamper with the property of another.”

5. R.C. 2917.21 (telephone harassment) reads in part:

“(A) No person shall knowingly make or cause to be made a telephone call, or knowingly

permit a telephone call to be made from a telephone under his control, to another, if the caller

does any of the following:

“(3) During the telephone call, violates section 2903.21 of the Revised Code;

“(4) Knowingly states to the recipient of the telephone call that he intends to cause damage

to or destroy public or private property, and the recipient of the telephone call, any member of

the family of the recipient of the telephone call, or any other person who resides at the premises

to which the telephone call is made owns, leases, resides, or works in, will at the time of the

destruction or damaging be near or in, has the responsibility of protecting, or insures the

property that will be destroyed or damaged;

“(5) Knowingly makes the telephone call to the recipient of the telephone call, to another

person at the premises to which the telephone call is made, or to the premises to which the

telephone call is made, and the recipient of the telephone call, or another person at the premises

to which the telephone call is made, has previously told the caller not to call the premises to

which the telephone call is made or not to call any persons at the premises to which the

telephone call is made.” ‘

{64 Ohio ‘St.3d] STATE: y.. WYANT : ‘571

Opinion, ‘per H. Brown, J.

than the elements that constitute the predicate offense. Our analysis begins

with the identification of the “something more” that is punished under R.C.

2927.12, but which is not an element of the-underlying statutory offense.

R.C. 2927.12 adds only that the violation of one of the predicate statutes. be

“by reason of the race, color, religion, or national origin of another person or

group of persons.” (Emphasis added.) The statute specifies no additional act

or conduct beyond what is required to obtain a conviction under the predicate

statutes. Thus the enhanced penalty results solely from the actor’s reason

for acting, or his motive.*. We must decide whether a person’s motive for

committing a crime can support.either a separate, additional crime, or an

enhanced penalty for an existing crime.

II

Criminalization of Motive

Motive, in criminal law, is not an element of the crime. In their textbook, 1

Substantive Criminal Law (1986) 318, Section 3.6, LaFave and Scott argue that

if defined narrowly enough, motive is not relevant to substantive criminal law,

although procedurally it may be evidence of guilt, or, in the case of good

motive, may result in leniency. Other thought-related concepts such as intent

and purpose are used in the criminal law as elements of crimes or penalty-

enhancing criteria, but motive itself is not punished. /d. at 318-324; see, also,

State v. Lampkin (Oct. 3, 1990), Hamilton App. No. C-890273, unreported, at

5, 1990 WL 143466: “While motive may be relevant as a mitigating factor in

the penalty phase, it is irrelevant to the guilt-phase determination * * °”;

Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your

Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws

(1991), 39 UCLA L.Rev. 333..

There is a significant difference between why a person commits a crime and

whether a person has intentionally done the acts which are made criminal.

Motive is the reasons and beliefs that lead a person to act or refrain from

acting. The same crime can be committed for any of a number of different

motives. Enhancing a penalty because of motive therefore punishes the

person’s thought, rather than the person's act or criminal intent.

Application of the Ohio and United States Constitutions to the statute

before us requires careful attention to the distinctions between motive and

intent as well as the line which separates a thought from an act. These

distinctions can best be understood in the context of specific applications

which arise in criminal jurisprudence.

6. Webster’s Ninth New Collegiate Dictionary (1984) 981, defines “reason” in part as “a rational

ground or motive.”

572 SUPREME COURT; JANUARY TERM, 1992'[64' Ohio" St'd

Opinion: per H. Brown, ‘J.

PAS

Motive versus Criminal Intent |

Culpable mental state, or intent, is usually required to find one guilty of a

crime.’ “Intent” refers to the actor’s state of mind or volition at the time he

acts. Did A intend to kill B-when A’s car hit B’s, or was it an accident? This

is not the same as A’s motive, which is why A intentionally killed B.. When A

murders B in order to obtain B’s money, A’s intent is to kill and the motive is

to get money. LaFave and Scott, supra, at 319. One can have motive

without intent, or intent without motive. For instance, the wife of a wealthy

but disabled man might have a motive to kill him, and yet never intend to do

so. A psycopath, on the other hand, may intend to kill and yet have no

motive.

B

Motive versus Purpose to Commit Another Criminal Act

Purpose to cornmit an additional criminal act is frequently seen in criminal

statutes as a basis for enhanced penalty or as creating a separate, more

7. The Ohio statute on culpable mental states, R.C. 2901.22, reads:

“(A) A person acts purposely when it is his specific intention to cause a certain result, or,

when the gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his specific intention to engage in conduct

of that nature.

“(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct

will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.

“(C) A person acts recklessly when, with heedless indifference to the consequences, he

perversely disregards a known risk that his conduct is likely to cause a certain result or is likely

to be of a certain nature. A person is reckless with respect to circumstances when, with

heedless indifference to the consequences, he perversely disregards a known risk that such

circumstances are likely to exist. .

“(D) A person acts negligently when, because of a substantial lapse from due care, he fails to

perceive or avoid a risk that his conduct may cause a certain result or may be of a certain

nature. A person is negligent with respect to circumstances when, because of a substantial

lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.

“(E) When the section defining an offense provides that negligence suffices to establish an

element thereof, then recklessness, knowledge, or purpose is also sufficient culpability for such

element. When recklessness suffices to establish an element of an offense, then knowledge or

purpose is also sufficient culpability for such element. When knowledge suffices to establish

an element of an offense, then purpose is also sufficient culpability for such element.”

8. Black’s makes the distinction as well; under the definition of “intent” it states: “Intent and

motive should not be confused. Motive is what prompts a person to act, or fail to act. Intent

refers only to the state of mind with which the act is done or omitted.” Black’s Law Dictionary

(6 Ed.1990) 810.

64 Ohio .St.8d] STATE -y.:WYANT: 573

Opinion, per H..Brown,.J.

' serious crime... For example, burglary is a trespass “with purpose”. to commit

a;theft offense or felony.* . Purpose in this context is not the.same as motive.

What is being punished is the act of trespass, .plus the- additional act of theft,

or the intent to commit theft.. Upon trespassing, A’s intent is to commit theft,

but the pare may be to pay debts, to buy.drugs, or to annoy the owner of

the property."*.. The object of the purpose is itself a crime. Thus the penalty

is not enhanced solely to punish the thought or motive.

Criminal penalties are often enhanced using the concept of an aiiiiting

circumstance. These also are distinguishable from motive. For example,

under R.C. 2929.04, any of a number of aggravating circumstances can

9. The Ohio statutes on aggravated burglary and burglary, respectively, state:

“2911.11 ' Aggravated burglary.

“(A) No person, by force, stealth, or deception, shall trespass in an a structure, as

defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied

portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01

of the Revised Code, or any felony, when any of the following apply:

“(1) The offender inflicts, or attempts or threatens to inflict physical harm on another.

“(2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11

of the Revised Code, on or about his person or under his control;

“(3) The occupied structure involved is the permanent or temporary habitation of any person,

in which at the time any person is present or likely to be present.

“(B) Whoever violates this section is guilty of aggravated burglary, an aggravated felony of

the first degree.”

“2911.12 Burglary.

“(A) No person, by force, stealth, or deception, shall do any of the folowing:

“(1) Trespass in an occupied structure or in a separately secured or separately occupied

portion thereof, with purpose to commit therein any theft offense or any felony;

“(2) Trespass in a permanent or temporary habitation of any person when any person is

present or likely to be present, with purpose to commit in the habitation any misdemeanor that

is not a theft offense;

“(3) Trespass in a permanent or temporary habitation of any person when any person is

present or likely to be present.

“(B) As used in this section:

“(1) ‘Occupied structure’ has the same meaning as in section 2909.01 of the Revised Code.

“(2) ‘Theft offense’ has the same meaning as in section 2913.01 of the Revised Code.

“(C) Whoever violates this section is guilty of burglary. A violation of division (A1) of this

section is an aggravated felony of the second degree. A violation of division (AX2) of this

section is a felony of the third degree. A violation of division (AX3) of this section is a felony of

the fourth degree.”

10. LaFave and Scott characterize purpose as a “medial end”:

“* * * While some have taken the contrary view, it is undoubtedly better, for purposes of

analysis, to view such crimes as not being based upon proof of a bad motive. This can be

accomplished by taking the view that intent relates to the means and motive to the ends, but

that where the end is the means to yet another end, then the medial end may also be considered

in terms of intent.” (Emphasis sic, footnotes omitted) LaFave and Scott, 1 Substantive

Criminal Law (1986) 320.

574 SUPREME COURT; ‘JANUARY TERM, 1992 [64 ‘Ohio St.3d

Opinion;' per H. Brown;J.

increase : the eile: for aggravated murder’ to death." - Among these’ is

murder -committed “for the purpose of” escaping another offense. R-C.

2929.04(A\(3). -The basis for enhancing the penalty in this case is once again

an additional act or intent. Escaping another offense is in itself a-crime. The

enhanced penalty for murder does not stem from motive (ie., preference of

life on the street to life in prison), but from the additional act of escape, or the

intent to escape.

Cc

Motive versus Criminal Act

R.C. 2929.04(A)(2) declares murder for hire to be an aggravating circum-

stance. This is not properly seen as enhancing the penalty for a mercenary

motive. Hiring is a transaction. The greater punishment is for the additional

act of hiring or being hired to kill. The motive for the crime (such as jealousy,

greed or vengeance) is not punished.

Some aggravating circumstances involve the identity of the victim, such as

a peace officer or governmental official. R.C. 2929.04(A)(1), (6). The legisla-

ture has decided, in these instances, that acts against certain individuals are

more serious criminal acts. Imposing a higher penalty for killing the Gover-

nor than for killing an ordinary citizen is similar to imposing a higher penalty

for stealing a painting worth $1,000 than for stealing one worth only $5.

Under the above analysis, the legislature could decide that blacks are more

valuable than whites, and enhance the punishment when a black is the victim

of a criminal act. Such a statute would pass First Amendment analysis

because the motive or the thought which precipitated the attack would not be

punished. However, R.C. 2927.12 could not have been written that way

11. R.C. 2929.04 reads in part:

“(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more

of the following is specified in the indictment or count in the indictment pursuant to section

2941.14 of .the Revised Code and proved beyond a reasonable doubt:

“(1) The offense was the assassination of the president of the United States or person in line

of succession to the presidency, or of the governor or lieutenant governor of this state, or of the

president-elect or vice president-elect of the United States, or of the governor-elect or lieutenant

governor-elect of this state, or of a candidate for any of the foregoing offices. * * *

“(2) The offense was committed for hire.

“(3) The offense was committed for the purpose of escaping detection, apprehension, trial, or

punishment for another offense committed by the offender.

“(6) The victim of the offense was a peace officer, as defined in section 2935.01 of the

Revised Code, whom the offender had reasonable cause to know or knew to be such, and either

the victim, at the time of the commission of the offense, was engaged in his duties, or it was the

offender’s specific purpose to kill a peace officer.”

64 Ohio St3d]) STATE v. WYANT 575

. Opinion, per H. Brown, J.

because such a statute would not survive analysis under the Equal Protection

Clause. of ,the- Fourteenth Amendment to the United. States Constitution.

D

Motive in the Antidiscrimination Laws

Federal and state laws against discrimination in employment, housing and

education do prohibit acts committed with a discriminatory motive. However,

they are analytically distinct in several ways from the statute in question

here. It is the act of discrimination that is targeted, not the motive.

There are two theories by which a case can be made under the federal laws

against employment discrimination; these are characterized as “disparate

impact” and “disparate treatment.” Under a disparate-impact analysis, an

employment practice that is neutral on its face, but falls more harshly on a

protected group, can be used to show employment discrimination. Griggs v.

Duke Power Co. (1971), 401 U.S. 424, 91 S.Ct. 849, 28.L.Ed.2d 158; Teamsters

v. United States (1977), 431 U.S. 324, 335-336, 97 S.Ct. 1843, 1854-1855, 52

L.Ed.2d 396, 415, fn. 15. No discriminatory motive is necessary under this

analysis.

Under a disparate-treatment analysis, the empioyer treats some people less

favorably than others because of race, color, religion, sex or national origin.

Discriminatory motive is necessary to this theory. Jd However, proof of

discriminatory motive can be inferred from differences in treatment. Arling-

ton Hts. v. Metro. Hous. Dev. Corp. (1977), 429 U.S. 252, 265-266, 97 S.Ct.

555, 563-564, 50 L.Ed.2d 450, 464-465. It is discriminatory treatment that is

the object of punishment, not the bigoted attitude per se. “* * * Congress

directed the thrust of the Act to the consequences of employment practices,

not simply the motivation.” Griggs, supra, 401 U\S. at 432, 91 S.Ct. at 854, 28

L.Ed.2d at 165. It is the act of discrimination which is punished, not the

thoughts (or bigotry) of the actor. Bigoted motive by itself is not: punished,

nor does proof of motive enhance the penalty when a discriminatory act is

being punished.

Ill

The Constitutional Objection to Punishment of Thought

Neither the United States nor the Ohio Constitution explicitly prohibits the

punishment of thought. Both guarantee the right to freedom of speech.”

12. The First Amendment to the United States Constitution reads:

576 SUPREME COURT, JANUARY TERM, 1992 (64 Ohio St.3d

Opinion,’ per H. Brown, J.

Federal First Amendment jurisprudence has long recognized that freedom of

speech presupposes freedom of thought. As Justice Stewart said in Abood v.

Detroit Bd. of Edn. (1977), 481 U.S. 209, 234-235, 97 S.Ct. 1782, 1799, 52

L.Ed.2d 261, 284:

“[A]t the heart of the First Amendment is the notion that an individual

should be free to believe as he will, and that in a free society one’s beliefs

should be shaped by his mind and his conscience rather than coerced by the

State.”

Likewise, Justice Jackson in West Virginia State Bd. of Edn. v. Dornetie

(1943), 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 1639, stated as

follows:

“If there is any fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion * * °.”

And Justice Marshall in Stanley v. Georgia (1969), 394 U.S. 557, 565-566, 89

S.Ct. 1243, 1248-1249, 22 L.Ed.2d 542, 550, stated as follows:

“* * * Our whole constitutional heritage rebels at the thought of giving

government the power to control men’s minds.

“* * * (The State] cannot constitutionally premise legislation on the desira-

bility of controlling a person’s private thoughts.”

Such statements are made in the context of cases in which laws regulate

speech or expressive conduct of some kind. The question before us is not

whether the government can regulate the conduct itself. Clearly the govern-

ment can, and has already done so by criminalizing the behavior in the

predicate statutes." The issue here is whether the government can punish

the conduct more severely based on the thought that motivates the behavior.

Under the First Amendment there are unprotected forms of expression.

The state is allowed to punish those utterances that “are no essential part of

any exposition of ideas, and are of such slight social value as a step to truth

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.”

Section 11, Article I of the Ohio Constitution reads:

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being

responsible for the abuse of the right; and no law shall be passed to restrain or abridge the

liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given

in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is

true, and was published with good motives, and for justifiable ends, the party shall be

acquitted.”

13. The parties do not contest that the predicate offenses are punishable.

64 Ohio .St.3d] STATE v. WYANT 577

Opinion, per H. Brown, J.

that any benefit that may be derived from them is clearly outweighed by the

social interest in order and morality.” . Chaplinsky v..New Hampshire (1942),

315 US. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035. It does not follow,

however, that there are unprotected forms of belief.

. The freedoms of speech, press, religion and assembly are nemeumes

together in the First Amendment because they share a core value: the

freedom of an individual to frame his thoughts and beliefs. The Constitution

of Ohio is even more specific; it guarantees to every citizen freedom to

“speak, write, and publish his sentiments on all subjects.” It follows that a

citizen of Ohio is free to have “sentiments on all subjects.”

By enacting R.C. 2927.12, the state has infringed this basic liberty. Once

the proscribed act is committed, the government criminalizes the underlying

thought by enhancing the penalty based on viewpoint. This is dangerous. If

the legislature can enhance a penalty for crimes committed “by reason of”

racial bigotry, why not “by reason of” opposition to abortion, war, the elderly

(or any other political or moral viewpoint)? ™

Within constitutional bounds, the legislature determines what constitutes a

crime. We review that determination only to see if it comports with the Ohio

and United States Constitutions. If the thought or motive behind a crime can

be separately punished, the legislative majority can punish virtually any

viewpoint which it deems politically undesirable, for example, a crime commit-

ted because the perpetrator (a) dislikes homosexuals, (b) likes homosexuals, (c)

likes or dislikes the elderly—and so on. It requires little imagination to see

the ramifications.

We recognize and are sensitive to the emotionally charged nature of the

issues involved. We reemphasize that we in no way condone the acts and

alleged acts that bring these cases before us. However, the very reason for

the First Amendment and Section 11, Article I is to protect the individual

against a state that is hostile simply because «{ the person’s belief. The

constitutional protectic: accorded to beliefs is most important -when the

beliefs are reviled by society. As Justice Douglas of this court has said:

“This guarantee of freedom is one of our most cherished rights and, as

such, has been and continues to be under attack by persons, well-meaning and

otherwise, who see attempted curtailment as being in the ‘public good.’ * * *

It is important to often repeat that the freedoms * * * guaranteed by the

14. As Judge West of the Franklin County Court of Common Pleas said:

“{TJhis statute would enhance the punishment of a crime based upon the thoughts of the

defendant, a hideous legal concept and inimical to American jurisprudence.” State v. Van

Gundy (Mar. 28, 1990), Franklin C.P. No. 89-CR-11-6166, unreported.

578 SUPREME COURT, JANUARY TERM, 1992 [64 Ohio St.3d

Opinion, per H. Brown, J.

First Amendment must be accorded to the ideas we-hate or sooner or=later

they will be denied ‘to the ideas we cherish.” -Local Lodge ‘1297 -v.-Allen

(1986), 22 Ohio St.3d 228, 236, 22 OBR 407, 414, 490 N:E.2d 865, ‘Ste: —_—

J., concurring).

Justice Black, i in his seminal dissent in pipeanie, v. Illinois (1952), 343

US. 250, 274, 72 S.Ct. 725, 739, 96, L.Ed. 919, 936, put the issue as follows:

“* * * The motives behind the state law may have been to do good. But

the same can be said about most laws making opinions punishable as crimes.

History indicates that urges to do good have led to the burning of books and

even to the burning of ‘witches.’ ”’

Justice Black’s position has become the accepted one in First Amendment

jurisprudence. Justice Burger addressed the issue in Houchins pv. KQED,

Inc. (1978), 438 U.S. 1, 13, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553, 564: “We must

not confuse what is ‘good,’ ‘desirable,’ or ‘expedient’ with what is constitution-

ally commanded by the First Amendment.”

Applying these principles, we believe that the government is not free to

punish an idea, though it may punish acts motivated by the idea. It may also

punish unprotected speech expressing the idea.

The United States Supreme Court recently addressed the constitutionality

of another so-called “hate crimes” law. R.A.V. v. St. Paul (1992), 505 U.S.

——, 112 S.Ct. 2538, 120 L.Ed.2d 305. The St. Paul ordinance reads:

“Whoever places on public or private property a symbol, object, appella-

tion, characterization or graffiti, including, but not limited to, a burning cross

or Nazi swastika, which one knows or has reasonable grounds to know

arouses anger, alarm or resentment in others on the basis of race, color,

creed, religion or gender commits disorderly conduct and shall be guilty of a

misdemeanor.’”’ /d., 505 U.S. at ——, 112 S.Ct. at 2541, 120 L.Ed.2d at 315.

The St. Paul ordinance is aimed at specific conduct; that is, conduct which

will arouse anger, alarm or resentment on the basis of race, color, creed,

religion or gender. The Minnesota Supreme Court rejected an overbreadth

claim because the ordinance had been construed to include only unprotected

“fighting words.” Despite this construction, the United States Supreme

Court found the ordinance facially unconstitutional under the First Amend-

ment. Justice Scalia, writing for the court, said that even the few limited

categories of unprotected speech are not “entirely invisible to the Constitu-

tion.” Jd. at ——, 112 S.Ct. at 2543, 120 L.Ed.2d at 318. The government

may not regulate even fighting words based on a hostility toward the message

they contain. Any proscription of fighting words must not be based on

A-13

64 Ohio-St.3d] STATE-v. WYANT | 579

Opinion, per H. Brown, J.

content. The court observed that the St. Paul ordinance went beyond content

discrimination ‘to viewpoint discrimination.

Quite recently the Supreme Court of Wisconsin struck down the Wisconsin

“hate crimes” statute as “unconstitutionally infring[ing] upon free speech.”

State v. Mitchell (1992), —- Wis.24d ——, ——, 485 N.W.2d 807, 808. The

Wisconsin law is a penalty-enhancement statute with some similarities to R.C.

2927.12. The Wisconsin statute does not use the phrase “by reason of,” but

instead permits a penalty enhancement for certain crimes when the defendant

“{iJntentionally selects” the victim “because of the race, religion, color,

disability, sexual orientation, national origin or ancestry” of the victim.

Wis.Stat. 939.645 (1989-90). Despite this wording, the Wisconsin court said:

“(The statute] is expressly aimed at the bigoted bias of the actor. Merely

because the statute refers in a literal sense to the intentional ‘conduct’ of

selecting, does not mean the court must turn a blind eye to the intent and

practical effect of the law—punishment of offensive motive or thought.” Jd.

at ——, 485 N.W.2d at 813. The analysis by the Wisconsin court applies with

greater force to the Ohio statute. R.C. 2927.12 refers to the actor’s reasons in

direct, rather than indirect, terms and is more clearly aimed at punishment of

bigoted thought.

R.C. 2927.12 constitutes a greater infringement on speech and thought than

either the St. Paul or Wisconsin “hate crimes” laws. R.C. 2927.12 specifically

punishes motive, and motive alone, not action or expression. The Ohio statute

singles out racial and religious hatred as a viewpoint to be punished. It is the

regulation of viewpoint that most particularly violates the Ohio and federal

Constitutions.

Based upon the foregoing authorities and our analysis of the statute, we

find that the effect of R.C. 2927.12 is to create a “thought crime.” This

violates Section 11, Article I of the Ohio Constitution, and the First and

Fourteenth Amendments to the United States Constitution.

Conduct motivated by racial or religious bigotry can be constitutionally

punished under the criminal code without resort to constructing a thought

crime. In fact, the behavior which is alleged in each case before us can be

punished under the criminal statutes identified in R.C. 2927.12. We agree

with Justice Scalia when he observed that the government “has sufficient

means at its disposal to prevent such behavior without adding the First

Amendment to the fire.” R.A.V. v. St. Paul, supra, 505 US. at ——, 112

S.Ct. at 2550, 120 L.Ed.2d at 326.

The parties also make constitutional challenges to R.C. 2927.12 on the

grounds of (1) vagueness, (2) equal protection, (3) due process and (4) over-

breadth. These arguments may have merit, especially in view of the concur-

A-14

- 580 SUPREME COURT,-JANUARY. TERM, 1992 [64 Ohio St.3d

Opinion, per -H. Brown, J.

ring opinion by Justice White in:R.A.V. v.: St Paul, supra, 505 U.S. at ——,

112 S.Ct. at 2550, 120 L.Ed.2d at 327. -However, because of-our: holding » we

need not address these —

IV

The Specific Cases Before Us

Having so held, we turn to the specific cases which are before us. Constitu-

tional protection of thought does not shield a citizen from punishment for

proscribed acts. Although the ethnic intimidation statute is invalid, the

predicate offenses are punishable. As these offenses are mentioned specifi-

cally in R.C. 2927.12, they constitute lesser included offenses to ethnic

intimidation.

In case No. 91-199, the jury was instructed that it could find David Wyant

guilty of ethnic intimidation only if it first found him guilty of aggravated

menacing. The verdict indicates that the jury found him guilty of aggravated

menacing.

In case Nos. 91-1519 and 91-1211/91-1589, although the defendants cannot

be tried under R.C. 2927.12, the lesser included offenses remain viable

charges.

Based on the foregoing, in case No. 91-199 we reverse the court of appeals,

vacate sentence on the conviction for ethnic intimidation, and remand for

sentencing on the charge of aggravated menacing. We affirm the judgment

of the court of appeals in case No. 91-1519. In case Nos. 91-1211/91-1589,

we affirm the dismissal for ethnic intimidation, but remand for further

proceedings on the underlying aggravated menacing charges.

Judgments accordingly.

In Case Nos. 91-199 and 91-1519:

Moyer, C.J., SweeNEY, Hotmes, Doucias, Wricut and Resnick, JJ., concur.

In Case Nos. 91-1211 and 91-1589:

Moyer, C.J., Utz, Hotmes, Doucias, Wricut and Resnick, JJ., concur.

EuceNE J. Utz, J., of the First Appellate District, sitting for Sweeney, J.

ee __

DECISION OF THE COURT

OF APPEALS

DISTRICT (FRANKLIN COUNTY) - OF OHIO, TENTH APPELLATE

Nos. 9OAP-473, 90AP-474, 9OAP-475, SOAP-477, 2

QOAP-478, 9OAP-479 and 90AP-480

State of Ohio, :

Plaintiff—Appellant,

Vv. : No. 90AP-478

Bryan Krebs, : (REGULAR CALENDAR)

Defendant—Appel lee.

State of Ohio,

Plaintiff-Appel lant,

Vv. No. 9OAP-479

Charles Culp, (REGULAR CALENDAR)

Defendant-Appel lee.

State of Ohio,

Plaintiff-Appellant,

Vv. : No. S0AP-480

Terry Breedlove, Jr., : (REGULAR CALENDAR)

Defendant—Appel lee.

optIN ION

Rendered on April 16, 1991

MR. MICHAEL MILLER, Prosecuting Attorney, and MR. ALAN C.

TRAVIS, for appellant.

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appel lant,

Vv. : No. 90AP-473

Clancy Van Gundy, : (REGULAR CALENDAR)

Defendant—Appel lee.

State of Ohio,

Plaintiff-Appellant,

Vv. No. SOAP-474

Casey Van Gundy, ; (REGULAR CALENDAR)

Defendant-Appel lee.

State of Ohio,

Plaintiff-Appel lant,

v. : No. SOAP-475

Franklin 0. Clay, : (REGULAR CALENDAR)

Defendant-Appel lee.

State of Ohio,

Plaintiff-Appellant,

v. , No. SOAP-477

Robert Eric Blazer, (REGULAR CALENDAR)

Defendant-Appel lee.

* Nos. 9OAP-473, 90AP-474, 90AP-475, 90AP-477,

QOAP-478, 90AP-479 and 90AP-480

WONNELL, JANES & WONNELL, and MR. HAROLD WONNELL, for

appellee Clancy Van Gundy.

MR. ANDREW LYLES, for appellee Casey Van Gundy.

MR. SAMUCL WEINER, for appellee Franklin Clay.

MR. JAMES KURA, Public Defender, and MR. ALAN V. ADAIR, for

appellee Robert Eric Blazer...

MR. DANIEL T. KOBIL, for appellee Charles Culp, Clancy

Van Gundy, Casey Van Gundy, Franklin D0. Clay, and Bryan

Krebs.

MS. SUSAN B. GELLMAN; WHITE & STOREY, and MR. ARNOLO WHITE,

for appellee Charles Culp.

THOMAS M. TYACK & ASSOCIATES, and MR. THOMAS M. TYACK, for

appellee Bryan Krebs.

MR. TERRY BREEDLOVE, JR., fro se.

HAHN, LOESER & PARKS, and MR. LEE I. FISHER; JONES, DAY,

REAVIS & POGUE, and MR. RICHARD A. CORDRAY, for amicus

curiae Senator Lee I. Fisher.

MR. LEE FISHER, Attorney General, MR. SIMON B. KARAS and MR.

ERIC A. WALKER, for amicus curiae Attorney General.

SHEPPARD AND BALE, and MR. ALAN WAYNE SHEPPARD, for amicus

curiae Ohio Council of Churches.

JONES, DAY, REAVIS & POGUE, and MR. STEVEN T. CATLETT, for

amicus curiae Anti-Defamation League. .

MR. ALPHONSE A. GERHARDSTEIN, for amicus curiae Housing

Opportunities Made Equal.

HR. RONALD J. O'BRIEN, City Attorney, MR. JANES J. FAIS,

City Prosecutor, and MR. THOMAS K. LINDSEY, for amicus

curiae City of Columbus.

+ Nos. 9OAP-473, SOAP-474, 9OAP-475, SOAP-477, 4

QOAP-478, SOAP-479 and 90AP-480

MR. HARRY R. REINHART; ESLOCKAR, GRIM, HOOSON & DIOGUARDI,

and MS. WNICOLETTE DIOGUARDI, for amicus curiae Ohio

Association of Criminal Defense Lawyers.

APPEALS from the Franklin County Court of Common Pleas.

BOWMAN, P.J.

On November 8, 1989, the Franklin County Grand Jury returned an eight-

count indictment against appellees, Clancy Van Gundy, Casey Van Gundy, Franklin

Clay, Robert Blazer, Bryan Krebs, Charles Culp and Terry Breedlove, Jr., charging

each of them with seven counts of ethnic intimidation, R.C. 2927.12. The charges

were predicated on the underlying offense of aggravated menacing, R.C. 2903.21,

in that appellees did knowingly cause the victims to believe that appellees would

cause serious physical harm to them by reason of their race, color, religion or

national origin. Clancy Van Gundy was also charged with felonious assault, R.C.

2903.11, in that he did knowingly cause serious physical harm to one of the

victims, Jason Harris, and with a specification, pursuant to R.C. 2941.143, in

that Clancy Van Gundy did, during the commission of the felonious assault, cause

physical harm to Jason Harris.

On March 14, 1990, a hearing was held before the trial court on

appelle s' motion to dismiss the seven counts of ethnic intimidation on the basis

that Lie ethnic intimidation statute was unconstitutional. After arguments, the

court found that R.C. 2927.12 was unconstitutionally overbroad and vague and

granted appellees’ motion to dismiss the seven counts of ethnic intimidation.

EES ————————a

Nos. 90AP-473, 9OAP-474, 90AP-475, SOAP-477, 5

9O0AP-478, SOAP-479 and 90AP-480

Thereafter, on March 28, 1990, the trial court issued a written opinion

stating that R.C. 2927.12 was unconstitutional because it was vague, it violated

the due process and equal protection clauses, and it had a chilling effect upon

the First Amendment rights of free speech and association. The trial court

dismissed Counts Two through Eight of the indictments against all of the

appellees; however, Count One of the indictment, pertaining to the felonious

assault charge and specification as to appellee, Clancy Van Gundy, was not

dismissed and was to be tried at a later date.’

On April 26, 1990, appellant, the state of Ohio, appealed the dismissal

of Counts Two through Eight of the indictments as to all appellees.” Appellant

asserts the following assignment of error:

“OHIO REVISED CODE, SECTION 2927.12, ETHNIC INTIMIDATION,

VIOLATES NO CONSTITUTIONAL PROVISION AND IS NOT VAGUE OR

OVERBROAD.“

The issue presented to this court is whether R.C. 2927.12 is void for

vagueness or is overbroad. Appellant asserts that the statute is neither vague

nor overbroad and, therefore, the trial court erred in holding it

* Van Gundy's subsequent conviction for felonious assault was affirmed by

this court in State v. Van Gundy (Dec. 20, 1990), Franklin App. No. 90AP-556,

unreported (1990 Opinions 5876).

* This court notes that appellee, Terry Breedlove, Jr., has failed to file

a brief in this case. However, inasmuch as the facts and issues have been

briefed by the remaining appellees and are identical to all parties, this court

need not accept appellant's statement of the facts and issues as correct as to

appellee, Breedlove, based on his failure to file a brief. See App. R. 18(C).

“Nos. YOAP-473, SOAP-474, SOAP-475, 90AP-477, 6

- 9OAP-478, SOAP-479 and 90AP-480

unconstitutional, and in dismissing the counts of ethnic intimidation against

appellees.

R.C. 2927.12 provides:

"(A) No person shall violate section 2903.21 [aggravated

menacing], 2903.22 [menacing], 2909.06 (criminal damaging or

endangering], or 2909.07 [criminal mischief], or division

(A)(3), (4), or (5) of section 2917.21 [telephone

harassment] of the Revised Code by reason of the race,

color, religion, or national origin of another person or

group of persons.

“(8) Whoever violates this section is guilty of ethnic

intimidation. Ethnic intimidation is an offense of the next

higher degree than the offense the commission of which is a

necessary element of ethnic intimidation.“

The Due Process Clause of the Fourteenth Amendment requires reasonable

definiteress in the language of a statute. Roth v. United States (1957), 354

U.S. 476. In United States v. Harriss (1954), 347 U.S. 612, the United States

Supreme Court stated that the constitutional requirement of definiteness is

violated by a criminal statute that fails to give a person of ordinary

intelligence fair notice that his contemplated conduct is forbidden by the

statute. The vagueness doctrine contemplates that criminal responsibility should

not attach where an individual could not, with reasonable certainty, understand

that his proposed conduct is disapproved of when measured against the language

of the statute. See State v. Loless (1986), 31 Ohio App. 3d 5.

However, a statute is not void for vagueness merely because it could

have been more precisely worded. Roth, supra. The legislature need not define

every word of a statute, and words of ordinary usage will be given the meaning

Nos. QOAP-473, QYOAP-474, SOAP-475, 9OAP-477, j

9OAP-478, SOAP-479 and 90AP-480

commonly actributed to them. State v. Dorso (1983), 4 Ohio St. 3d 60. The test

is whether the language conveys a sufficiently definite warning as to the

proscribed conduct when measured by common understanding and practices. Jordan

v. DeGeorge (1951), 341 U.S. 223.

The root of the vagueness doctrine is a rough idea of fairness. Colten

v. Commonwealth of Kentucky (1972), 407 U.S. 104. The vagueness doctrine implies

that a statute must be written so a man of common intelligence can ascertain what

cynduct is prohibited, and that the law must provide sufficient standards to

prevent arbitrary and discriminatory enforcement. Connally v. General Const. Co.

(1926), 269 U.S. 385; Papachristou v. City of Jacksonville (1972), 405 U.S. 156.

In Connally, supra, the court stated that the dividing line between

what is lawful and unlawful cannot be left to conjecture. The crime, and the

elements constituting the crime, must be so clearly expressed that an ordinary

person can intelligently choose, in advance, what course of conduct he may

lawfully pursue.

Under the void for vagueness doctrine, the statute must define the

criminal offense with sufficient definiteness *hat ordinary people can understand

what conduct is prohibited; however, in addition, the void for vagueness doctrine

also requires that the statute must provide explicit standards for those who

apply it so that arbitrary and discriminatory enforcement is prevented. It is

this second aspect of the void for vagueness doctrine, the requirement that the

legislature establish minimal guidelines to govern law enforcement, that the

courts have recently recognized as being the more important aspect of the

Nos. 90AP-473, 90AP-474, SOAP-475, S0AP-477, 8

9OAP-478, SOAP-479 and 90AP-480

doctrine. Kolender v. Lawson (1983), 461 U.S. 352. Where the legislature fails

to provide these minimal guidelines, a criminal statute may permit a standardless

sweep that allows policemen, prosecutors and juries to pursue their personal

prejudices. Smith v. Goguen (1974), 415 U.S. 566. A vague law impermissibly

delegates basic policy matters to policemen, judges and juries for resolution on

an ad hoc and subjective basis, and with the danger of arbitrary and

discriminatory application. Grayned v. City of Rockford (1972), 408 U.S. 104.

This court finds that R.C. 2927.12 is void for vagueness under the Oue

Process Clause of the Fourteenth Amendment. The statute itself does not give a

person of ordinary intelligence fair warning as to what conduct is prohibited.

The statute states that no person shall violate any one of the enumerated

sections “*** by reason of the race, color, religion, or national origin of

another person or group of persons." However, the statute does not indicate upon

whose sensitivity a violation must depend: the sensitivity of the judge or jury;

the sensitivity of the prosecutor; the sensitivity of the arresting officer; or

the sensitivity of a hypothetical reasonable man. In addition, the statute does

not give any indication who the other “person or group of persons“ must be: the

victim; a passerby; a group of people from the accused's past; the police; or

anyone else. As such, the person must be able to foresee whether or not others,

i.e., the police, prosecutor, court or jury, will at some later time determine

that his or her actions were motivated by the race, color, religion or national

origin of this unknown, undetermined person or the other group of persons.

‘Nos. 90AP-473, 90AP-474, 90AP-475, 9OAP-477, 9

90AP-478, 90AP-479 and 90AP-480

More importantly, the statute is void for vagueness because it

encourages arbitrary and discriminatory enforcement. The statute vests virtual

complete discretion in the hands of the state to determine whether a suspect

committed the alleged acts based on the race, color, religion or national origin

of another person or a group of persons. The statute fails to establish

standards by which police officers may determine whether or not a suspect has

allegedly committed a crime as a result of the race, color, religion or national

origin of another person or group of persons. As such, the statute confers on

the police a virtually unrestrained power to arrest and charge persons with a

violation of ethnic intimidation. See Lewis v. City of New Orleans (1974), 415

U.S. 130 (Powell, J., concurring in result). Thus, the determination of whether

or not a person should be charged with ethnic intimidation is entrusted to the

moment-by-moment judgment of the police in any given situation. See Kolender,

supra. The statute also furnishes a convenient tool for harsh and discriminatory

enforcement by local prosecuting officials against particular groups who are

deemed to merit their displeasure. See Thornhill v. Alabama (1940), 310 U.S. 88.

Another aspect affecting whether or not R.C. 2927.12 is constitutional

is its infringement on the First Amendment right of freedom of speech. It is

fundamental that statutes which regulate First Amendment activities must be

narrowly drawn to address only the specific evil at hand. Broadrick v. Oklahoma

(1973), 413 U.S. 601. A law regulating speech will be deemed overbroad if it

sweeps within its ambit a substantial amount of protected speech along with that

speech which it may legitimately regulate. City of Houston v. Hill (1987), 482

Nos. 9OAP-473, SOAP-474, 9O0AP-475, SOAP-477, 10

9O0AP-478, S0AP-479 and 90AP-480

U.S. 451. The Supreme Court has consistently held that statutes punishing speech

or conduct solely on the ground that they are unseemly or offensive are

unconstitutionally overbroad. Doe v. University of Michigan (E.D. Mich. 1989),

721 F. Supp. 852.

In Grayned, supra, the Supreme Court stated that the cases make it .

clear that, in assessing the reasonableness of a regulation, a court must weigh

heavily the fact that communication is involved. As a result, the regulation

must be narrowly tailored to further the state's legitimate interests.

Undifferentiated fear or apprehension of disturbance is not enough to overcome

the right to freedom of expression, and that particular expressive activity

cannot be prohibited because of a desire_to avoid the discomfort and

unpleasantness that always accompanies an unpopular viewpoint. See Tinker v. Des

Moines School Dist. (1969), 393 U.S. 503.

The Supreme Court has applied the overbreadth doctrine in the First

Amendment area when the challenged law has had a “chilling effect" on

constitutionally preferred liberties. Dombrowski v. Pfister (1965), 380 U.S.

479; NAACP v. Button (1963), 371 U.S. 415; Thornhill, supra. Freedom of speech

is among the fundamental personal rights and liberties which are protected by the

Fourteenth Amendment from invasion by state action. Staub v. City of Baxley

(1958), 355 U.S. 313. | :

Appellant asserts that R.C. 2927.12 does not regulate speech but,

rather, enhances the penalty for unlawful conduct committed for an improper

motive or purpose, i.e., because of the race, color, national origin or religion

Nos. 9OAP-473, SOAP-474, 9OAP-475, S0AP-477, ll

9O0AP-478, SO0AP-479 and 90AP-480

of a person or group of persons. Appellant asserts that an individual cannot be

charged with ethnic intimidation unless he has already committed unlawful conduct

by committing one of the enumerated crimes contained in the statute and, thus,

speech is not curtailed. This court disagrees. What the ethnic intimidation

statute is punishing by enhancement of the penalty for the listed criminal

offenses is the spoken or written word or expression thereof by conduct.

In Texas v. Johnson (1989), 109 Sup. Ct. 2533, 2544, the court stated:

“If there is a bedrock principle underlying the First

Amendment, it is that the Government may not prohibit the

expression of an idea simply because society finds the idea

itself offensive or disagreeable. ***"

In Board of Education v. Barnette (1943), 319 U.S. 624, at 642, the

court stated:

“If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein. ***“

In Terminiello v. Chicago (1949), 337 U.S. 1, the Supreme Court stated

that a principal function of free speech under our system of government is to

invite dispute. Free speech may indeed thus serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with conditions as they

are, or even stirs people to anger. Merely advocating force does not remove

speech from the protection of the First Amendment. NAACP v. Claiborne Hardware

Co. (1982), 458 U.S. 886. While the underlying conduct, i.e., assault, menacing

threats and the like, are crimes and may be punished, the government may not, by

Nos. SOAP-473, SOAP-474, SOAP-475, QOAP-477, 12

QOAP-478, S0AP-479 and 90AP-480

enhancing penalties, prohibit expression simply because it disagrees with its

message. Johnson, supra.

This court finds that R.C. 2927.12 is unconstitutional on its face.

The statute makes a crime out of what, under the constitution, cannot be a crime

since it is aimed directly at activity protected by the constitution. The First

and Fourteenth Amendments do not permit a state to make criminal the exercise of

the right of speech or conduct simply because its exercise may be annoying or

offensive. Coates v. City of Cincinnati (1971), 402 U.S. 611, Further, because

speech or conduct can be used to show the motivation behind a person's actions,

a finding of quilt under R.C. 2927.12 is based on an undifferentiated mix

partially for what is said and partially for what is illegally done and, as such,

a conviction under the statute cannot stand. Cleveland v. Mechanic (1971), 26

Ohio App. 2d 138. See, also, State v. Johnson (1982), 6 Ohio App. 3d 56.

In most instances, the words or conduct of a person charged with ethnic

intimidation will be the only indicia of his attitude or opinion on a subject,

and this attitude or opinion is inseparably intertwined with the content of the

statements or the conduct. Also, in most cases, it will solely be because of

what a person says or what a person does that the police will perceive that a

person's actions were motivated by the race, color, religion or national origin

of another person or group of persons. Further, in most cases, it will be clear

that, but for the remarks or the conduct, the individual would not be charged

with ethnic intimidation, although he could be charged with the underlying

crimes. The First Amendment's Free Speech Clause cannot be laid aside simply on

Nos. 9OAP-473, 90AP-474; 90AP-475, 9OAP-477, 13

9OAP-478, 90AP-479 and 90AP-480

the basis that the speaker was penalized not for his speech but for a state of

mind manifested thereby. See Tygrett v. Washington (1974), 543 F. 2d 840.

In City of Cincinnati v. Black (1966), 8 Ohio App. 2d 143, 146-147, the

court, in holding that an ordinance which made it a crime to sell, offer for

sale, or give away a pamphlet or paper which contained an article subjecting to

ridicule or contempt any class or group of citizens on account of race, religious

belief, or which in any manner tends to promote racial hatred or religious

|

bigotry unconstitutional, stated:

“It is thus seen that the ordinance undertakes to control

the extent of free expression in the fields of religious and

political affairs, two fields which have been given the

widest possible latitude by constitutional interpretation;

and also in the field of race relations which, while not

written directly into either the federal or state

Constitutions, has nevertheless in present day society, by

judicial interpretation of the Fourteenth Amendment and by

legislative enactment, received wide-spread public

attention. The ordinance makes it an offense to communicate

hatred and bigotry in the fields of race and religion.

Bigotry and hatred reflect a mental attitude which does not

necessarily become translated into human behavior. Great

honor is almost universally paid to the special commandment

"that ye- love one another,’ but no means has as yet been

found or attempted to compel this highly commendable

viewpoint by law. Obviously any attempt to do so would

border very closely on thought contro] which is resisted

(even to the extent of permitting bigotry and intolerance)

by every legal precept we know."

This court finds that this sentiment is equally applicable in the

instant case. The constitutional protection of the First Amendment does not

depend upon the truth, popularity or social utility of the ideas and beliefs put

forward. Craig v. Harney (1947), 331 U.S. 367. Where First Amendment rights are

Nos. 9OAP-473, SOAP-474, 9OAP-475, Q9OAP-477, 14

9OAP-478, Q90AP-479 and S0AP-480

jeopardized by a state prosecution which, by its very nature, threatens to deter

others from exercising their First Amendment rights, a court will take the

extraordinary step of enjoining the state prosecution. Dombrowski, supra.

This court recognizes that, by holding R.C. 2927.12 unconstitutional,

we have struck down a statute that deals with an extremely significant problem

in our society. The concern of citizens with criminal activity motivated by the

race, color, religion or national origin of another person or group of persons

is certainly a matter requiring the attention of all branches of government.

However, as weighty as this concern may be, it cannot justify legislation that

would otherwise fail to meet constitutional standards for definiteness and

clarity. While the objective of the legislation cannot be questioned and the

conduct sought to be punished is reprehensible, R.C. 2917.12 in its sweeping

reach and its imprecise method of enforcement is incompatible with due process

requirements. These constitutional considerations may not be dismissed merely

because there is a laudatory legislative end sought to be achieved. See State

v. Young (1980), 62 Ohio St. 2d 370, certiorari denied Ohio v. Young (1980), 449_

U.S. 905.

Therefore, based on the foregoing, this court finds that the trial

court did not err in determining that R.C. 2927.12 was unconstitutional. The

statute allows arbitrary and discriminatory action by police, prosecutors, courts

and juries permitting them, on a case-by-case basis, to subjectively determine

whether the conduct or speech or action before them violates the statute. It

does not provide fair warning to a person of ordinary intelligence that

A-29

»

. Nos. 90AP-473, SOAP-474, S0AP-475, SOAP-477, 15

QOAP-478, 9OAP-479 and 9CAP-480

contemplated conduct will violate the statute because it is overbroad and

violates the First Amendment right to free speech and conduct. Accordingly,

appellant's assignment of error is not well-taken and is overruled. The judgment

of the trial court is affirmed.

Judgment affirmed.

YOUNG and KLINE, JJ., concur.

KLINE, J., of the Pickaway County Court of Common Pleas,

Sitting by assignment in the Tenth Appellate District.

Tee ee) ee ee OS INN Me EERE EN 6 BBE ED

- IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

CRIMINAL DIVISION

“sare

11266820

STATE OF OHIO :

PLAINTIFF, :

vs. : CASE NO. 89-CR-11-5166

: A,B,C, D,E/G

CHAhcs CRC : he

CEANCYE=VANTGUNBY, ET AL : JUDGE WEST =.

: : a

DEFENDANTS : nN

ers ]

OPINION 7: 2

This matter came on to be heard by written Motions to! Dismiss

Counts Two through Eight of the Indictments submitted by Defendants

Culp, Clancy Van Gundy, and Breedlove and upon the cral motions of

the other defendar.ts at hearing, for the reasons advanced by counsel

for Culp and Clancy Van Gundy. The Prosecution filed memoranda

contra to the written motions and expressed no opposition to the

other defendants joining in the Motions at hearing.

The reasons advanced i: the Motions to Dismiss were that the

‘statute on its face violates the First, Sixth and Fourteenth

Amendments to the U.S. Constitution and Article One, Section Eleven

of the Ohio Constitution. The Court agrees and sustains the Motion

to dismiss Counts Two through Eight of the Indictment.

Defendants were indicted in felony Counts Two through Eight for

violation of "(2927.12 O.R.C by reason of (2903.21 O.R.C.(a

_misdemeanor) . Motions were filed by various defendants, and the

Court set March 14, 1990 as the date for hearing all pending

motions, including the Motions to Dismiss. No facts were placed in

evidence, and the hearing was based solely on the pleadings and the

law.

owe’ .

° wef oa H Hy

** ef @ ot Bue.

.-

’

~~

Gaz

= The law presumes ~< statute constitutional Courts are

laptrentes to give the words of a statute their plain meaning when

ho expression of legislative intent in published. However, where

a law is so written that persons “of common intelligence! A&E &GEsb

as to its meaning and differ as to its application" it must be

_ Struck as void for vagueness. Connally v. General Construction Co.,

269 U.S. 385, 391. The Court finds that (2927.12 0.R.C. requires

~ : |

a person of normal intelligence to "speculate as the meaning" of

: mw

this penal statute. See State v.Kasnett, 34 0.S.” 193. . oss

_ a)

The Court notes that the statute provides no objective standard |: =:

of conduct to guide a citizen and his counsel as to thezactians

_ proscribed.

between it and the related sections of the code to which it eters.

does not set forth an acceptable culpable mental state nor does it

make clear what must be done "knowingly", does not define "by reason

of", and. does not specify whether the race or ethnicity of another

refers to the victim or someone other than the victim. It would also

invite arbitrary enforcement and selective prosecution.

The statute violates ‘the Due Process and Equal Protection

Clauses in that, as it is written, it bears no reasonable

relationship to a legitimate public purpose. Further, the law

cannot pass Constitutional muster because the punishment of one

convicted of committing an act of violence against another would not

be enhanced if "by reason of" the race, etc. of another, although

the punishment would be enhanced against one convicted of merely

threatening to do so.

The Court also finds that this statute is void because of its

chilling effect upon First Amendment rights of speech and

association. In effect, this statute would enhance the punishment

A-32

(2927.12 O.R.C. does not make clear the interplay

ee

*of ‘a crine based upon the choughts of the defendant, . .ideous legal

acqncept and inimical to American jurisprudence.

The indictments as to all the defendants as set forth in me gy

2

Two though Eight are hereby dismissed. Sateggant Clancy Van Gundy °CO2

still stands accused as indicted in Count. One and his trial shall

All other motions pending are

Wh

JUDGE

yemains set for May 20, 1990.

rendered moot by reason of this opinion.

OS 1 itd 02 wt:.

A-33

FULL TEXT OF STATUTES CITED

Section 750.147, Michigan Comp. Laws Ann.

(1) A person is guilty of ethnic intimidation if that person

maliciously, and with specific intent to intimidate or harass

another person because of that person's race, color, religion,

gender, or national origin, does any of the following:

(a) Causes physical contact with another person.

(b) Damages, destroys, or defaces any real or personal

property of another person.

(c) Threatens, by word or act, to do an act described in

subdivision (a) or (b), if there is substantial cause to believe

that an act described in subdivision (a) or (b) will occur.

Section 240.30(3), New York Penal Law

A person is guilty of aggravated harassment in the second

degree when with intent to harass, annoy, threaten, or alarm

another person, he:

kkk

3. Strikes, shoves, kicks or otherwise subjects another

person to physical contact, or attempts or threatens to do the

same because of the race, color, religion or national origin of

such person."

Section 2901.21, Ohio Revised Code (Requirements for criminal

liability)

(A) Except as provided in division (B) of this section, a

person is not guilty of an offense unless both of the following

apply:

(1) His liability is based on conduct which includes either

a voluntary act, or an omission to perform an act or duty which

he is capable of performing;

(2) He has the requisite degree of culpability for each

element as to which a culpable mental state is specified by the

section defining the offense.

(B) 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

such 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."

A-34

(C) As used in this section:

(1) Possession is a voluntary act if the possessor knowingly

procured or received the thing possessed, or was aware of his

control thereof for a sufficient time to have ended his

possession.

(2) Reflexes, convulsions, body movements) during

unconsciousness or sleep, and body movements that are not

otherwise a product of the actor's volition, are involuntary

acts.

(3) “Culpability" means purpose, knowledge, recklessness, or

negligence, as defined in section 2901.22 of the Revised Code.

Section 2901.22, Ohio Revised Code (Culpable mental states)

(A) A person acts purposely when his specific intention is

to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.

(B) A person acts knowingly, regardless of his purpose, when

he is aware that his conduct will probably cause a certain result

or will probably be of a certain nature. A person has knowledge

of circumstances when he is aware that such circumstances

probably exist.

(C) A person acts’ recklessly when, with a heedless

indifference to the consequences, he perversely disregards a

known risk that his conduct will cause a certain result or is

likely to be of a certain nature. A person is reckless with

respect to circumstances when, with heedless indifference to the

consequences, he perversely disregards a known risk that such

circumstances are likely to exist.

(D) A person acts negligently when, because of a substantial

lapse from due care, he fails to perceive or avoid a risk that

his conduct may cause a certain result or may be of a certain

nature. A person is negligent with regard to circumstances when,

because of a substantial lapse from due care, he fails to

perceive or avoid a risk that such circumstances may exist

(E) When the section defining an offense provides that

negligence suffices to establish an element thereof, then

recklessness, knowledge, or purpose is also sufficient

culpability for such element. When recklessness suffices to

establish an element of an offense, then knowledge or purpose is

also sufficient culpability for such element. When knowledge

suffices to establish an element of an offense, then purpose is

also sufficient culpability for such element.

Section 2903.21, Ohio Revised Code (Aggravated menacing)

(A) No person shall knowingly cause another to believe that

the offender will cause serious physical harm to the person or

property of such other person or member of his immediate family.

(B) Whoever violates this section is guilty of aggravated

menacing, a misdemeanor of the first degree."

Section 2927.12, Ohio Revised Code (Ethnic intimidation)

(A) No person shall violate section 2903.21, 2903.22,

2909.06, or 2909.07, or division (A)(3), (4), or (5) of section

2917.21 of the Revised Code by reason of the race, color,

religion, or national origin of another person or group of

persons.

(B) Whoever violates this section is guilty of ethnic

intimidation. Ethnic intimidation is an offense of the next

higher degree that the offense the commission of which is a

necessary element of ethnic intimidation."

Section 166.165(1) (a) (A), Oregon Revised Statutes

Two or more persons acting together commit the crime of

intimidation in the first degree, if the persons:

(a) (A) Intentionally, knowingly, or recklessly cause

physical injury to another because of their perception of that

person's race, color, religion, national origin or _ sexual

orientation."