State v. Diana

357 N.E.2d 1090, 48 Ohio St. 2d 199, 2 Ohio Op. 3d 387, 1976 Ohio LEXIS 735
CourtOhio Supreme Court
DecidedDecember 15, 1976
DocketNo. 76-246
StatusPublished
Cited by18 cases

This text of 357 N.E.2d 1090 (State v. Diana) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Diana, 357 N.E.2d 1090, 48 Ohio St. 2d 199, 2 Ohio Op. 3d 387, 1976 Ohio LEXIS 735 (Ohio 1976).

Opinion

Corrigan, J.

I.

The sole item of controversy in this appeal is the contention of appellants that R. C. 2921.12, under which they were convicted on one eount of the indictment, is unconstitutional.

Appellants claim the statute presents three constitutional infirmities, viz.:

(1) the statute is vague;

(2) the statute is overbroad; and

(3) the statute violates the Fifth Amendment privilege against self-incrimination.

R. C. 2921.12 provides:

“(A) No person, knowing that an official proceeding or investigation is in progress, or is about to he or likely to be instituted, shall do any of the following:
“(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or. availability as evidence in such proceeding or investigation;
“(2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation.
. “(B) Whoever violates this section is guilty of tampering with evidence, a felony of the third' degree.”

II.

Before addressing appellants’ broad-gauge attack, on R. C. 2921.12, one must examine the-note worthy facts giving rise to this appeal.

When the police officers went to 1953 .Oakland Bark Avenue to execute the search warrant, they,.-appeared si[202]*202multaneously at the side door and the front door of the house. After knocking, the officer at the front door said, “police officer,” following which the scuffling of feet inside was heard. At the same time, the officer at the side door shouted to the occupants that they were police officers with a search warrant. Thereupon, entrance was gained to the house by breaking down both doors.

At the time the officers entered, appellaht Diana was seen in the bathroom talking on the telephone, at which time she slammed the bathroom door shut. The police broke open the bathroom door and found Diana stuffing water-soluble paper into the commode. These papers were described in the record as tally sheets called in to the banker by lieutenants who, in turn, received the bets and numbers from the number writers. There was further testimony that Diana was also chewing something in her mouth and had a half-sheet of paper in her hand.

At this time, too, appellant Susi was seen in the kitchen, where she was burning pieces of paper in a fire on the stove. The pieces of paper were identified as adding machine tape by the police witnesses who retrieved the unburned pieces of paper and also the charred paper, which was reconstructed as far as possible and photographed in the police laboratory.

Before the trial, appellants filed motions to suppress the evidence secured under the search warrant for the reason that the affidavit for the search warrant fails to show probable cause to believe that the items sought to be searched for were on the premises to be searched and that the search was improper and in violation of appellants’ rights under the Fourth and Fourteenth Amendments to the United States Constitution.

These motions to suppress were overruled by the trial court.

The second and third gambling counts of the indictment upon which appellants were convicted each charge á previous conviction on a gambling offense, in addition to the Current charge.

[203]*203From the facts, it appears that the only parts of the challenged statute involved here are R. C. 2921.12(A) (1) and (B).

Ill.

"We consider first appellants' vagueness argument as to R. C. 2921.12(A) (1). Appellants complain that “official investigation” is not defined, “so one must speculate as to what all is included therein”; that “evidence” is also an undefined term. The landmark decision concerning “vagueness” in our constitutional jurisprudence is the case of Connolly v. General Construction Co. (1926), 269 U. S. 385, 391, which articulates:

“* * # [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process.”

In the frame of facts in the record before us, it would seem that appellants herein are persons of uncommon intelligence in the area of gambling. The record establishes that they have been through prior legal proceedings in connection with the crime of gambling, and it follows that they surely know what the word “evidence,” as used in R. C. 2921.12(A) (1), means. And, it would be an exercise in naivete on our part to accept the appellants’ suggestion that their constitutional rights have been violated because the phrase “official investigation” is not defined in R. C. 2921.12(A)(1). If these females of the gambling sorority, apparently graduated to criminality as professional gamblers, do not apprehend that the serving of a search warrant heralds the beginning of an investigation of a crime involving them, because they are the only persons named in the search warrant as conducting the criminal gambling operation at the place searched, then the Introduction of Through the Looking-Glass of Lewis Carroll’s Alice should be revisited by all persons connected with the administration of justice in order to be fortified by what Alice found there:

[204]*204‘ ‘ Child of the pure, unclouded brow And dreaming eyes of wonder!
Though time be fleet and I and thou Are half a life asunder,
Thy loving smile will surely hail The love gift of a fairy tale.”

IV.

Equally fanciful is the suggestion of appellants that R. C. 2921.12(A) (1) is unconstitutional because of over-breadth.

. There is a comprehensive discussion of the “over-breadth doctrine” applicable to statutes in Broadrick v. Oklahoma (1973), 413 U. S. 601.

,, Broadrick involved interpretation of an Oklahoma statute patterned after the Federal Hatch Act, both of which regulated political activity of public employees. In upholding the statute as not being either overbroad or vague, the majority and dissenting opinions went into extensive discussion as to the applicability of the overbreadth doctrine.

The majority cited past opinions relating to over-breadth which were almost exclusively concerned with the First Amendment to the United States Constitution.

The overbreadth doctrine is closely connected with rights in the First Amendment because a statute may be deemed unconstitutional on its face when that statute fails to distinguish between conduct that may be proscribed and conduct that must be permitted. At page 615, in Broadrick, the following language appears:

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Bluebook (online)
357 N.E.2d 1090, 48 Ohio St. 2d 199, 2 Ohio Op. 3d 387, 1976 Ohio LEXIS 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-diana-ohio-1976.