City of Cincinnati v. Hoffman

285 N.E.2d 714, 31 Ohio St. 2d 163, 60 Ohio Op. 2d 117, 1972 Ohio LEXIS 410

• Court: Ohio Supreme Court
• Decided: July 19, 1972
• Docket: No. 71-424
• Status: Published

Opinions

Heebert, J.

These arrests came amid a confrontation between demonstrators and police officers, subsequent to the unceremonious hauling down of an American flag by someone in the crowd. As is not unusual, the evidence concerning events immediately preceding the arrests is conflicting and the testimony voluminous. Repetition here of what was maintained at the trial by one side or the other would serve no fair or useful purpose, since the jury found guilt from evidence which is legally sufficient to sustain its verdicts.

Appellants question the constitutional validity of the respective ordinances under which they were prosecuted and convicted. Appellant Brown was found guilty of violating Section 901-d4, which states:

“It shall be unlawful for any person to willfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person or the citizens of the city or any portion thereof.”

Brown asserts that the foregoing ordinance is vague, indefinite, overbroad and lacking in proper guidelines for enforcement, and that it is violative of the Fourteenth Amendment to the Constitution of the United States.

It is fundamental that “no man * * * be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss (1954), 347 U. S. 612, 617. Thus, in order to comport with that concept of due process of law, a criminal statute or ordinance must be phrased in terms of readily ascertainable standards of guilt, so that men of common intelligence will not have to guess at its meaning. Connolly v. General Construction Co. (1926), 269 U. S. 385; Palmer v. Euclid (1971), 402 U. S. 544, 91 S. Ct. 1563.

In Cincinnati v. Coates (1970), 21 Ohio St. 2d 66, 255 N. E. 2d 247, a majority of this court held:

“A city ordinance making it ‘unlawful for three or more persons to assemble * * * on * * * sidewalks * * * and' there conduct themselves in a manner annoying to persons passing by’ is not vague or uncertain but is, on its face, sufficiently clear to inform a person of common intelligence of the nature of the acts prohibited by the ordinance.”

“Annoying,’’ the majority said at page 69 in the opinion in Coates, “is a widely used and well understood word; it is not necessary to guess its meaning. ‘Annoying’ is the present participle of the transitive verb ‘annoy’ which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.”

Subsequently, however, this court’s decision was reversed by the United States Supreme Court in Coates v. Cincinnati (1971), 402 U. S. 611, 29 L. Ed. 2d 214, on the ground that the ordinance was unconstitutionally vague and broad. The ordinance was held vague for the reason that it subjected the exercise of the right of assembly to an unascertainable standard, i. e., “conduct that annoys some people does not annoy others.” The ordinance was found overbroad in that it authorized punishment of constitutionally protected conduct, i. e., the right of the people to gather in public places free from indiscriminate “enforcement of a prohibition against annoying conduct.” Appellant Brown urges us to examine Section 901-d4 against the backdrop of the result in Coates and subsequent Supreme Court cases. See Gooding v. Wilson (1972), U. S. , 31 L. Ed. 2d 408; Cohen v. California (1971), 403 U. S. 35, 29 L. Ed. 2d 284.

In our opinion, the case at bar is readily distinguishable from Coates. The Coates ordinance simply prohibited “annoying” conduct; the instant ordinance prohibits willful disorderly conduct which is performed with the intent to abuse or annoy.. The plain meaning of this ordinance, in requiring that the proscribed conduct be done with intent to abuse or annoy, is that the specified intent governs the reading of the entire section. The injection of scienter provides a precise and comprehensible standard which is well within the ability of a person of common intelligence to understand. Conduct that is willfully performed in a “noisy, boisterous, rude, insulting or other disorderly manner,” is clearly chargeable to its initiator when gauged against his own preconceived intent to annoy or abuse.

We gain a considerable measure of support in this regard from the recent decision in Colten v. Kentucky (June 12, 1972), 32 L. Ed. 2d 584.

In that case, Colten was charged with violating Ky. Rev. Stat. Section 437.016(1)(f), which states:

“ (1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

t Í * * #

“ (f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.. * #

In affirming Colten’s conviction, the Supreme Court quoted the following interpretation of the statute by the Kentucky Court of Appeals:

<£ ‘As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We think that the plain meaning of the statute, in requiring that the proscribed conduct be done “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,” is that the specified intent must be the dominant intent. Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of the constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise.’ ”

Although Colten had engaged in conduct sheltered by the First Amendment earlier on the day he was arrested, the court agreed with the finding of the Kentucky court, that “ * * * at the time of his arrest, ‘ Colten was not undertaking to exercise any constitutionally protected freedom.’ Rather, he ‘appears to have had no purpose other than to cause inconvenience and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right.’ ”

Neither did the court, in Colten, find the statute im-permissibly vague or broad, The court said:

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. We agree with the Kentucky court when it said: ‘We believe that citizens who desire to obey the statute will have no difficulty in understanding it * * *’ Colten v. Commonwealth, 467 S. W. 2d 374, 378 (Ky. 1971).” (Emphasis added.)

Colten also urged the court to strike down the Kentucky statute on the authority of Cox v. Louisiana (1965), 379 U. S. 536. In that case, a breach of the peace statute was invalidated because it permitted conviction for disobedience of a police order to disperse, the order having been given because the defendant had expressed unpopular views. In answering Colten’s contention, the Supreme Court said:

“As the Kentucky statute was construed by the state court * * * a crime is committed only where there is no bona fide intention to exercise a constitutional right — in which event, by definition, the statute infringes no protected speech or conduct — or where the interest so clearly outweighs the collective interest sought to be asserted that the latter must be deemed insubstantial. * * * Individuals may not be convicted under the Kentucky Statute merely for expressing unpopular or annoying ideas. '* * *” (Emphasis added.)

We reach the same result with regard to Section 901-d4. As reasonably construed, the ordinance neither prohibits the lawful exercise of any constitutional right nor escapes the understanding of any person of “common intelligence” who desires to obey it.

Appellants Hoffman and Berliner were prosecuted and convicted under Section 901-r2 of the Code of Ordinances of the city of Cincinnati, which states, in part:

“No person shall resist, hinder, obstruct, or abuse any police officer while such officer is engaged in the lawful performance of his duties.”

Appellants’ argument that the above language is unconstitutionally vague is not well taken. However, then-contentions do not rest solely upon that ground.

This ordinance purports to impose criminal liability upon any person who, under any circumstances, violates the proscription contained therein. The efficacy of the section, as a local police regulation, is derived from the power of an Ohio municipality to enact such laws under Section 3 of Article XVIII of the Ohio Constitution and is no longer dependent upon any individual legislative grant thereof. West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, 205 N. E. 2d 382. Section 3, Article XVIII, states: “Municipalities shall have authority to * * * adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with the general laws. ”

Pursuant to that constitutional mandate, this court has held that municipalities are authorized to adopt local police regulations which do not conflict with state statutes. Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N. E. 519; Akron v. Scalera (1939), 135 Ohio St. 65, 19 N. E. 2d 279; Greenberg v. Cleveland (1918), 98 Ohio St. 282, 120 N. E. 829; Cleveland v. Raffa (1968), 13 Ohio St. 2d 112, 235 N. E. 2d 138.

In the field of regulation and control, the rationale of the Sokol and Scalera cases is that, in order for such a conflict to arise, the state statute must positively permit what the ordinance prohibits, or vice versa, regardless of the extent of state regulation concerning the same object. See Cleveland v. Raffa, supra, at page 114.

Appellants urge that Section 901-r2 imposes an absolute criminal liability which is in direct conflict with a “general law,” i. e., R. C. 2917.33, which states, in part:

“No person shall * * * knowingly and willfully resist, obstruct, or abuse a sheriff, or other officer in the execution of his office.”

The contrariety depicted by appellants concerns their view that one who unknowingly and unwillfully resists, obstructs, or abuses an officer would be innocent under the state law, but guilty under the Cincinnati ordinance. Under such a concept, and standing alone, 901-r2 does not satisfy either the federal constitutional doctrine that “awareness of what one is doing is a prerequisite for the infliction of punishment” (Smith v. California [1959], 361 U. S. 147, 162), or comport with the principles underlying the “home rule” provision of the Ohio Constitution.

In the instant case, however, 901-r2 did not stand solely on its own terms. At the close of the trial of this cause, both in a special charge and in the general charge, the jury was explicitly admonished by the trial judge to inject the Revised Code scienter standards into their deliberations on the question of liability under the Cincinnati ordinance. In the special charge, he directed as follows:

“The first special charge is as follows:

“In a violation under Section 901-r2 of the Code of Ordinances referred to as resisting an officer, unless you find beyond a reasonable doubt the person charged thereunder knew that the person he is alleged to have resisted, hindered, obstructed, or abused was in fact a police officer while such officer was engaged in the lawful performance of his duties, then you must find the defendant charged not guilty.

“The second special charge is as follows: In a violation of Section 901-r2 of the Code of Ordinances of the city of Cincinnati captioned ‘Resisting an Officer,’ the city is charged with the duty of proving beyond a reasonable doubt that the defendant intended to resist, hinder, obstruct or abuse any police officer while such officer was engaged in the lawful performance of his duty; such intent cannot be met by the mere proof that the person resisted, hindered, obstructed and abused was a police officer.. Rather, additional evidence indicating the witting consciousness of the defendant that he was involved with a police officer while such officer was engaged in the lawful performance of his duty, that he intended to resist, hinder, obstruct, or abuse such police officer and that he did in fact resist, hinder, obstruct or abuse such officer, must all be adduced beyond a reasonable doubt. Unless each and every one of the foregoing elements is sustained by evidence that convinces you beyond a reasonable doubt then it is your duty to find the defendant not guilty.

“Special Charge No. 3: It does not constitute resisting, hindering, obstructing or abusing a police officer under Section 901-r2 to be merely present and in the way when a police officer is engaged in the lawful performance of his duties; nor is it a violation to orally communicate dissatisfaction or disaffection for the officer while such officer is engaged in the lawful performance of his duties, unless such expression is made in such manner as to in fact be an act constituting resistance, hinderance, obstruction or abuse.”

Additionally, in the general charge, the trial judge instructed the jury:

“You have previously been charged under the special charge that unless you find beyond a reasonable doubt in the resisting-an-officer charge or obstructing-an-officer charge that the person charged thereunder knew that the person he is alleged to have resisted or obstructed was in fact a police officer while such officer was engaged in the lawful performance of his duties, then you must find the defendant charged ‘not guilty,’ if you cannot find those situations.

“In Special Charge No. 2, which, by the way, you will have your special charges in the room when you deliberate, it is indicated that in violation of 901-r2 of the Code of Ordinances, captioned, ‘Resisting an Officer,’ the city is charged with the duty of proving beyond a reasonable doubt that the defendant intended to resist or obstruct while such officer was engaged in the lawful performance of his duty.

“Such intent cannot be met by the mere proof that the person resisted, hindered, obstructed and abused was a police officer. Rather, additional evidence indicating the witting consciousness of the defendant that he was involved with a police officer while snch officer was engaged in the lawful performance of his duty, that he intended to resist, hinder, obstruct or abuse such police officer and that he did in fact resist, hinder, obstruct or abuse such police officer. This must be adduced beyond a reasonable doubt.

“Now, in regard to the intent in those charges of resisting an officer or obstructing an officer and with regard to the intent necessary in the charge against Michele Brown for disorderly conduct and against Joyce Reichman for boisterous conduct, I will indicate to you the following: That the intent in these charges is an essential element. Intent is a decision of the mind to knowingly do an act with a conscious objective of accomplishing a specific result. ’ ’

It is a well-established principle of law that a statute may operate unconstitutionally under one application, but validly under another. Dahnke-Walker Milling Co. v. Bondurant (1921), 257 U. S. 282; Alabama State Federation of Labor v. McAdory (1945), 325 U. S. 450; State, ex rel. Herbert, v. Ferguson (1944), 142 Ohio St. 496, 52 N. E. 2d 980; State v. Wetzel (1962), 173 Ohio St. 16, 179 N. E. 2d 773. In State, ex rel. Herbert, v. Ferguson, it was held that, “Where, under one state of facts, the operation of a statute is constitutional, a court will not declare it invalid because under another state of facts, not involved, its operation would be unconstitutional.”

Furthermore, in construing a statute, judicial limitations placed upon the written text are as important as the text itself in terms of prosecution and conviction under the relevant sections. See State v. Jacobellis (1962), 173 Ohio St. 22, 179 N. E. 2d 777, reversed on other grounds, Jacobellis v. Ohio (1964), 378 U. S. 184; State v. Saylor (1966), 6 Ohio St. 2d 139, 216 N. E. 2d 622. Thus, the syllabus of State v. Ross (1967), 12 Ohio St. 2d 37, 231 N. E. 2d 299, which was before this court upon a demurrer to an indictment, states:

“Where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient. (Sections 2941.05 and 2905.34, Revised Code.)”

And, at page 39 in the opinion in Ross:

‘ ‘ The result of this judicial limitation is that the crime has an element of specific intent which is not found within the literal words of the statute. * * #

“ * * * p]ven tpg statute specifically provided that the statutory language would always be sufficient, the courts might still require more to put the defendant on notice of the offense charged. Code of Georgia, Section 27-701; Barton v. State, 79 Ga. App. 380, 53 S. E. 2d 707; Stone v. State, 76 Ga. App. 96, 45 S. E. 2d 89.”

Under the careful, curative charge to the jury in this case, the ordinance was fully and clearly extended to contain all the elements of the crime as set out in R. C. 2917.33. Hence, under the facts at bar, the ordinance was properly employed and escaped the conflict alleged.

*

We find no reversible error in the selection of the jury in this cause (see Hoyt v. Florida [1961], 368 U. S. 57) and do not find that the trial court abused its discretion in denying the motions for change of venue.

Judgments affirmed.

O’Neill, C. J., Schneider, Kerns, Stern and Leach, JJ., concur. Brown, J., dissents. Kerns, J., of the Second Appellate District, sitting for Corrigan, J.,

In actuality, the prosecution was the party most likely to be prejudiced by the absence of scienter in the ordinance. Cf. State v. Stanton (1968), 15 Ohio St. 2d 215, 239 N. E. 2d 92. Its burden of proof was increased, under the court’s charge, beyond that for which it would have logically prepared under the literal terms of the ordinance. However, the record reflects that pre-trial discussions between the court and all counsel encompassed the question of whether the word “unlawfully,” contained in the affidavits, necessarily included the element of mens rea. The record shows further that both the prosecution and defense proceeded upon the assumption that the charges did include that salient ingredient, as is shown by the testimony and special instructions requested by the defense and given by the court.