Opinion
No. C 92 CRB 21640.
Decided October 1, 1992.
Edward Geiser, Assistant Prosecuting Attorney, for plaintiff.
Joseph L. Emmrich and Public Defender's Office, for defendant.
On August 31, 1992, a trial to the court was held in the above-captioned matter. The defendant was charged by the state of Ohio with inducing panic in violation of R.C. 2917.31. For the reasons set forth below, defendant is found not guilty.
LEGAL ANALYSIS
The defendant was charged with inducing panic in violation of R.C. 2917.31. That statute states as follows:
"(A) No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:
"(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;
"(2) Threatening to commit any offense of violence;
"(3) Committing any offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm.
"(B) Division (A)(1) of this section does not apply to any person conducting an authorized fire or emergency drill.
"(C) Whoever violates this section is guilty of inducing panic, a misdemeanor of the first degree. If violation of this section results in physical harm to any person, inducing panic is a felony of the fourth degree."
The pertinent facts which gave rise to this litigation are not materially disputed. Those facts are as follows:
1. On June 22, 1992 the Delhi Township Police Department received a report of "suspicious persons" at the Delhi Shopping Center;
2. That report, to which the Delhi Township Police Department responded, identified one of the suspicious persons as dressed in a trench coat, wearing sunglasses and a red beret;
3. An officer with the Delhi Township Police Department, who was dispatched to the Delhi Shopping Center, observed the defendant dressed as described in the radio broadcast outside the Delhi Kroger Store, pointing what appeared to be a gun at an individual;
4. A Delhi Township Police Officer twice ordered the defendant to "drop the fucking gun";
5. Defendant eventually dropped the object as ordered, whereupon it was discovered that the apparent gun or firearm was actually a cap pistol; and
6. Two of the defendant's companions, including the individual who was the potential victim of this fiasco, testified that they knew that the defendant was only "armed" with a cap pistol and that they were not in fear of their own safety.
In arriving at this court's verdict, the following were determined to be established beyond a reasonable doubt for possible appeal purposes:
A. Police Officer John Grimme honestly believed that defendant was armed with a "firearm" as same is defined in R.C. 2923.11(B);
B. To a reasonable and prudent person, the cap pistol which was ultimately recovered from the defendant appears to be an operable firearm or handgun because of its size and its woodlike-looking handle; and
C. Police Officer John Grimme was justified in believing that his safety and that of the patrons of the Delhi Kroger Store was in jeopardy at the time and place in question.
This court is keenly aware that a casual observer might not be able to distinguish a toy cap gun or pistol from a handgun capable of inflicting death or serious injuries. This court is sympathetic to the macabre situation that Officer John Grimme faced on June 22, 1992, not knowing whether deadly force would be used or who would use it. But, the facts presented at trial must lead this court, or any other court, to find as a matter of law that the actions of the defendant do not constitute a violation of R.C. 2917.31.
This court has found no reported decision on point which could provide guidance either to a trial court or to an appellate court. There is a dearth of Ohio cases dealing with or interpreting R.C. 2917.31. Most of the reported cases, as do the Committee Comments to R.C. 2917.31, focus on subdivision (A)(1) of that statute. See Cincinnati v. Lattimore (1972), 32 Ohio App.2d 113, 61 O.O.2d 103, 288 N.E.2d 334.
The only two cases from the First Appellate District which are elucidating are State v. Moore (Dec. 21, 1983), Hamilton App. No. C-830253, unreported, 1983 WL 2388, and State v. Dalton (June 26, 1992), Hamilton App. No. C-910927, unreported. In Moore, defendant was charged and convicted of two offenses arising out of the same conduct, i.e., causing serious public alarm by committing an offense with reckless disregard of the likelihood that its commission would cause serious public alarm, R.C. 2917.31(A)(3), and carrying a firearm (to wit: a .22 caliber rifle) while under the influence of alcohol in violation of R.C. 2923.15. The First Appellate District upheld the conviction in Moore because "the record discloses conduct that violated each of the statutes independently of the violation of the other statute."
The second case, State v. Dalton, although a disorderly conduct case, is the most similar, factually, to the case before this court. The facts in Dalton are that on April 2, 1991, Cincinnati Police Officer Thomas Cameron responded to Children's Hospital to investigate a report of "a man with a gun." Officer Cameron, along with members of the hospital security force, encountered the defendant in a room with five or six other people. Officer Cameron observed in plain view in the defendant's waist band a blue steel pistol, which was later found to be fully loaded. Defendant was charged with disorderly conduct because Police Officer Cameron was alarmed for his safety and that of the other people in the room. Dalton's conviction was upheld by the First District Court of Appeals on both the sufficiency and the manifest weight of the evidence.
Comparing State v. Moore to the facts before this court, it is apparent that Roosevelt Moore was charged with two separate offenses while the within defendant, Matthew D. Cordell, was only charged with inducing panic. Subsections (A)(2) and (3) of the inducing panic statute specifically require that the accused threaten to commit any offense of violence or commit any offense with reckless disregard that the commission of said offense will cause serious public inconvenience or alarm. Testimony before this court would indicate that Cordell's conduct was not in violation of any other section of the Ohio Revised Code other than the charge on which defendant was ultimately arrested.
The testimony of defendant's two accomplices or companions clearly demonstrates that they knew the defendant was in possession only of a cap gun and that the actions of the defendant presented no risk of physical harm to them. Therefore, the intended or potential victims of the defendant's pranks or juvenile activities were not threatened, put in fear or inconvenienced by the actions of Matthew D. Cordell. Likewise, the record is devoid of any testimony that the general public was inconvenienced or put in alarm by defendant's actions.
The state of Ohio suggests that Police Officer Grimme was either the victim of violence, i.e., aggravated menacing (R.C. 2903.21) or menacing (R.C. 2903.22) or that Police Officer Grimme was seriously inconvenienced by the actions of the defendant. The case of State v. Miller (1980), 67 Ohio App.2d 127, 21 O.O.3d 436, 426 N.E.2d 497, although a case involving an interpretation of the disorderly conduct section, refutes the state's position that a police officer can either be the unintended victim of violence or the person seriously inconvenienced by the defendant's action. The Miller court held that where a deputy sheriff, in his official capacity, observes two individuals involved in a "wrestling altercation" and one of the individuals is charged with violating R.C. 2917.11(A)(1), in that he "did recklessly cause inconvenience to * * * [the deputy sheriff] by engaging in turbulent behavior," the charge cannot stand and the defendant must be discharged since the deputy sheriff was not "inconvenienced" thereby, i.e., to the deputy sheriff, the altercation created not an inconvenience, but a job.
The rationale of the Miller court is more persuasive than the arguments and suggestions of the state of Ohio that Police Officer Grimme was the victim of violence thereby triggering the within charge. If the state's position is accepted or drawn to its logical conclusion, every time a police officer responds to anything other than a routine traffic investigation a potential defendant could be charged with inducing panic and the charge which prompted the dispatch, i.e., domestic violence, robbery, etc.
There is no question in this court's mind that the defendant is guilty of stupidity, juvenile behavior, bad judgment, etc. The remaining issue to resolve is whether the defendant's conduct can constitutionally be subject to criminal sanctions under current Ohio law.
There was no pretrial motion filed with the court attacking the constitutionality of the inducing panic statute. It is well established that the burden of showing the unconstitutionality of a statute is upon the person challenging the validity of what is prohibited. See State v. Longhorn World Championship Rodeo, Inc. (1985), 19 Ohio App.3d 115, 19 OBR 203, 483 N.E.2d 196, and State ex. rel. Euclid-Doan Bldg. Co. v. Cunningham (1918), 97 Ohio St. 130, 119 N.E. 361.
The two generally recognized avenues of attacking the constitutionality of legislation are to demonstrate that the statute is void on its face or in its application. The basis in determining whether a statute or ordinance is unconstitutional on its face, i.e., void for vagueness, was succinctly set forth by the United States Supreme Court in the case of Grayned v. Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222, where the court held that pursuant to basic principles of due process, a law is void for vagueness if its prohibitions are not clearly defined. In other words, persons of common intelligence must guess at the meaning of the statute.
The language contained in R.C. 2917.31 is clearly understandable so as to prevent innocent people from being trapped by not having a fair warning of what is required of residents of the state of Ohio. Additionally, the statute as drafted by the legislators for the state of Ohio is precise so as not to impermissibly delegate basic policy matters or enforcement to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the intended dangers of arbitrary and discriminatory application. See Grayned v. Rockford, supra.
The vexing problem that this court confronts is how the defendant's conduct can be punished without applying R.C. 2917.31 in a discriminatory manner? See Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629. If two juveniles were playing "cops and robbers" and engaged in similar conduct as the defendant and his companions were engaged in, such conduct would not be considered criminal. Does the state of Ohio, in reaction to the perceived problems this case presents, require that when a person applies for a temporary driver's license at age sixteen or registers to vote at age eighteen, cap pistols and sheriff badges must be surrendered?
There is no easy answer for any court or state legislature to constitutionally classify who may be criminally liable for conduct such as is before this court. Each potential or suggested classification will face fierce constitutional scrutiny, even a classification which would allow only juveniles to display or possess cap guns. See 17 Ohio Jurisprudence 3d (1980), Constitutional Law, Section 622; Jones v. Ohio Dept. of Rehab. Corr. (1989), 61 Ohio Misc.2d 673, 583 N.E.2d 469; Ellenwood v. Flower Mem. Hosp. (1991), 62 Ohio Misc.2d 43, 587 N.E.2d 1006; Hutton v. Rygalski (1989), 62 Ohio App.3d 125, 574 N.E.2d 1128.
If the state of Ohio wishes to criminalize actions and/or conduct similar to that of the defendant, then it should pass legislation similar to New York City Administrative Code 436-5.0, which states in more pertinent part as follows:
"It shall be unlawful for any person to sell or offer for sale, possess or use or attempt to use or give away, any toy or imitation pistol or revolver which substantially duplicates an actual pistol or revolver, unless said imitation or toy pistol or revolver shall be colored in colors other than black, blue, silver or aluminum, and further provided that the barrel of said toy or imitation pistol or revolver shall be closed with the same material of which the toy or imitation pistol or revolver is made for a distance of not less than one-half inch from the front end of said barrel." See, also, Matter of Michael R. (1984), 61 N.Y.2d 316, 473 N.Y.S.2d 783, 461 N.E.2d 1270.
Because of the important and substantial interests which are involved in this decision which will affect future law enforcement activities, the state of Ohio is urged to appeal this decision pursuant to State v. Bistricky (1990), 51 Ohio St.3d 157, 555 N.E.2d 644, where the Supreme Court held as follows:
"We therefore hold that a court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is not appealed."
Judgment accordingly.