State v. McDonaldState v. McDonald
Lead Opinion
The issue presented by this case is whether
“(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally.
“(B) Each of the following constitutes prima-facie evidence of criminal purpose:
“(1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating such dangerous ordnance, materials, or parts are intended for legitimate use;
“(2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use;
“(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use.
“(C) Whoever violates this sеction is guilty of possessing criminal tools, a felony of the fourth degree.”
Initially, we note the fundamental rule that legislative enactments are entitled to a strong presumption of constitutionality. State, ex rel. Jackman, v. Court of Common Pleas (1967),
The trial court found
Both the trial court and the appellate court failed to address the scienter element of
“(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 nаture.”
As the dissenting judge in the court of appeals below emphasized, “purpose” is the highest of the culpable mental states, placing on the prosecution the heaviest possible burden in establishing mens rea. By including this scienter requirement, the General Assembly has required both control of the article and the specific intention to use the article to commit a crime. These elements provide sufficient notice to persons of ordinary intelligence of the prohibited conduct. Accordingly, we find that
The trial court also found that this statute was unconstitutional because it was impermissibly overbroad, thereby prohibiting constitutionally protected conduct. We find no merit in this claim. Under this statute, the mere possession of an article or device is not the prohibited conduct. State v. Anderson (1981),
Additionally, the trial court based its decision on the fact that the statute granted too much discretion to prosecutors in proceeding with a felony prosecution since violаtion of
The error in this reasoning is that, although a statute may be un
Although there are hypothetical circumstances one can propose where the potential applicability of
Finally, appellees’ contention that the statute grants too much discretion to a prosecutor in charging a crime is not supported by any case law. The general rule is that prosecutorial discretion. as to what offense is charged when two statutes proscribe the same conduct is not unconstitutional unless exercised to discriminate against a particular class of defendants. State v. Wilson (1979),
For the foregoing reasons, we hold that
Judgment reversed and cause remanded.
Notes
We observe that there are statutes prohibiting possession of specific articles, such as
Dissenting Opinion
dissenting. I must respectfully dissent. I agree with the majority that
The majority, inaccurately, grounds its decision upon a claim that “there were no facts revealing the specific circumstances of the several counts.” From this, the leap is made to the following conclusion:
“Although there are hypothetical circumstances one can propose where the potential applicability ofR.C. 2923.24 may be unconstitutional, those circumstances are not before thе court in this case. We simply are not inclined to engage in the exercise of imagining highly speculative and hypothetical circumstances invalidating a legislative enactment prohibiting conduct which the General Assembly clearly has the power to prohibit.”
The majority has not earned the right to this assertion. We need assume no hypothetical circumstances in order to find
Whether
I
The Eighth Amendment to the Constitution of the United States proclaims: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) Section 9, Article I of thе Ohio Constitution contains identical language, and the protection provided under the two clauses is essentially the same. See, e.g., State v. Chaffin (1972),
Deeply ingrained within the prohibition against cruel and unusual punishment is the concept that the penalty for an offense must be proportionally related to its severity. Thus, the Eighth Amendment and its Ohio counterpart prohibit “* * * not only barbaric punishments, but also
II
The equitable notion that crimes and their respective punishments should be proportionally related predates thе adoption of either the United States or the Ohio Constitution. The United States Supreme Court has recently presented a thorough restatement of the storied history of this concept:
“The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence. In 1215 three chapters of Magna Carta were devoted to the rule that ‘amercements’ [fines] may not be excessive. And the principle was repeated and extended in the First Statute of Westminster, 3 Edw. I, ch. 6 (1275). These were not hollow guarantees, for the royal courts relied on them to invalidate disproportionate punishments. See, e.g., Le Gras v. Bailiff of Bishop of Winchester, Y. B. Mich. 10 Edw. II, pl. 4 (C.P. 1316), reprinted in 52 Selden Society 3 (1934). When prison sentences became the normal criminal sanctions, the common law recognized that these, too, must be proportional. See, e.g., Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng. Rep. 1015, 1016 (K.B. 1615) (Croke, J.) (‘imprisonment ought always to be according to the quality of the offence’).
“The English Bill of Rights repeated the principle of proportionality in language that was later adopted in the Eighth Amendment: ‘excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.’ 1 Wm. & Mary, sess. 2, ch. 2 (1689). Although the precise scope of this provision is uncertain, it at least incorporated ‘the longstanding principle of English law that the punishment . . . should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged.’ R. Perry, Sources of Our Liberties 236 (1959); see 4 W. Blackstone, Commentaries *16-* 19 (1769) (hereinafter Blackstone); see also id., at *16-* 17 (in condemning ‘punishments of unreasonable severity,’ uses ‘cruel’ to mean severe or excessive.) * * *
“When the Framers of the Eighth Amendment adopted the language of the English Bill of Rights, they also adopted the English principle of proportionality. Indeed, one of the consistent themes of the era was that Americans had all the rights of English subjects. See, e.g., 1 J. Continental Cong. 83 (W. Ford ed. 1904) (Address to the People of Great Britain, Sept. 5, 1774) (‘we claim all the benefits secured to the subject by the English constitution’); 1 American Archives 700 (4th series 1837) (Georgia Resolutions, Aug. 10, 1774) (‘his Majesty’s subjects in America * * * are entitled to the same rights, privileges, and immunities with their fellow-subjects in Great Britain’). Thus our Bill of Rights was designed in part to ensure that these rights were preserved. Although the Framers may have intended the Eighth Amendment to go beyond the scoрe of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection-including the right to be free from excessive punishments.” Solem v. Helm, supra, at 284-286 (footnotes omitted).
III
In the landmark case of Weems v. United States (1910),
“* * * [EJven if the minimum penalty of cadena temporal had been imposed, it would have been repugnant to the bill of rights. In other words, the fault is in the law, and, as we are pointed to no other under which a sentence can be imposed, the judgment must be reversed, with directions to dismiss the proceedings.” Id. at 382.
The Weems court did not rely solely upon the inhumane nature of cadena temporal. Rather, it condemned the statute for its excessive length of punishment as well as its type. The court said, “[i]ts punishments come under the condemnation of the bill of rights, both on account of their degree and kind.” (Emphasis added.) Id. at 377.
In Solem v. Helm, supra, the court reaffirmed the principle of proportionality as a cоnstitutional requirement. In Solem, the court said: “In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.” Id. at 290.
This court, also, has recognized the constitutional requirement of proportionality. In State v. Chaffin, supra, paragraph three of the syllabus, we held: “A punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community.”
IV
In Weems, supra, the court acknowledged that it could not substitute its judgmеnt for that of the legislature, but was limited to a determination
“* * * [Prominence is given to the power of the legislature to define crimes and their punishment. We concede the power in most of its exercises. We disclaim the right to assert a judgment against that of the legislature of the expediency of the laws or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case not our discretion but our legal duty, strictly defined and imperative in its direction, is invoked. Then the legislative power is brought to the judgment of a power superior to it for the instant.” (Emphasis added.) Id. at 378-379.
The court then examined the penalties for other crimes to determine whether the statute at issue inflicted punishment in a manner disproportionate to the severity of the offense. Inter alia, the court noted that the maximum penalty under Philippine law for forgery of or counterfeiting government obligations or securities was fifteen years’ imprisonment and a fine. The court found the lack of proрortion between that penalty and the statutorily mandated penalty at issue to be not only deplorable, but unconstitutional:
“* * * In other words, the highest punishment possible for a crime which may cause the loss of many thousand of dollars, and to prevent which the duty of the State should be as eager as to prevent the perversion of truth in a public document, is not greater than that which may be imposed for falsifying a single item of a public account. And this contrast shows more than different exercises of legislative judgment. It is greater than that.-It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.” (Emphasis added.) Id. at 381.
In Solem, supra, the court made explicit what was implicit in Weems, by setting forth three factors to be considered in performing an Eighth Amendment proportionality analysis:
“* * * [A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 292.
The court, reemphasizing a key point from Weems, explained the se'cond factor in greater detail: “If more serious crimes arе subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” (Emphasis added.) Id. at 291.
As it had in Weems, the Solem court recognized that the Eighth Amendment’s proportionality analysis requires a court to, in some sense, second-guess a legislature’s grading of a particular crime and its respec
“There are other accepted principles that courts may apply in measuring the harm caused or threatened to the victim or society. The absolute mаgnitude of the crime may be relevant. * * * New would dispute that a lesser included offense should not be punished more severely than the greater offense. * * * It also is generally recognized that attempts are less serious than completed crimes. * * *” (Emphasis added.) Id. at 292-293 (citations omitted).
The court, in Solem, supra, at 293, calls attention to Roberts v. Collins (C.A. 4, 1976),
“How can it be said that life imprisonment for an assault with intent to commit rape is proportionate to the offense when the greater crime of rape authorizes a sentence of not more than 20 years? It is unthinkable, and shocking to the moral sense of all reasonable men as to what is right and proper, that in this enlightened age jurisprudence would countenance a situation where an offender, either on a plea or verdict of guilty to the charge of rape, could be sentenced to the penitentiary for a period of not more than 20 years, whereas if he were found guilty of the lesser offense of assault with intent to commit rape he could spend the rest of his days in the bastile.” Id. at 632-633,281 P. 2d at 235 .
V
The Solem court relied upon Sir William Blackstone to set forth the proposition that, except for conspiracy, an inchoate crime should not be punished as severely as the completed offense:
“* * * [T]he greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and of course under this aggravation the punishment should be more severe. * * * And yet, generally, a design to transgress is not so flagrant an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking: so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract; and that if a man stops even here, it is better for him than if he proceeds: for which reason an attempt to rob, to ravish, or to kill * * * is far less penal than theactual robbery, rape, or murder” (Emphasis added.) 4 Blackstone, Commentaries on the Laws of England (1857), at 15.
This principle was the decisive factor in State v. Blackmon (1963),
VI
Having examined the relevant constitutional precedent, the task is to apply these teachings to the case sub judice. In so doing, it is apparent that
A
Ohio’s criminal tools statute,
The gravamen of
Under the constitutional mandate of proportionality, one would expect the penalties for a violation of
B
Moreover,
“No person shall:
“(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking;
“(2) Establish, promote, or oрerate, or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit;
“(3) Knowingly procure, transmit, exchange, or engage in conduct that facilitates the procurement, transmission, or exchange of, information for use in establishing odds or determining winners in connection with bookmaking or with any scheme or game of chance conducted for profit;
“(4) Engage in betting or in playing any scheme or game of chance, except a charitable bingo game, as a substantial source of income or livelihood;
“(5) With purрose to violate division (A)(1), (2), (3), or (If) of this section, acquire, possess, control, or operate any gambling device.” (Emphasis added.)
In State v. Pirkey (1955),
It is inconceivable that the penalties for violations of
C
I would hold that the- application of
“(A) No person shall possess or have under his control any substance, device, instrument, or artiсle, with purpose to use it criminally.
“(C) Whoever violates this section is guilty of possessing criminal tools, a felony of the fourth degree.”
See
See State v. Young (1980),
“The lower courts have properly pointed out that the criteria chosen by the General Assembly to mark the boundaries of the statute are extremely broad and bring many activities within the statute that would not normally be considered to be conduct engaged in by organized crime. Five persons who participate in a betting pool each time they attend a football game would fall within this definition of a criminal syndicate because their cоnduct constitutes a violation ofR.C. 2915.04 , governing public gaming. These persons, however, without clear notice fromR.C. 2923.04 , have no way of knowing that they are committing a felony of the first degree and are thus subject to a possible jail sentence of 25 years and a $10,000 fine. The nature of their conduct itself does not indicate to them the penalties that are possible.R.C. 2923.0b maíces no distinctions in its sentencing provisions but requires the same sanctions regardless of the nature and gravity of the underlying offense. * * *” (Emphasis added.) Id. at 378, 16 O.O. 3d at 421,406 N.E. 2d at 504-505 .
Chaffin predates Solem by some eleven years. Therefore, as Solem makes no mention of the Chaffin requirement that the sense of justice of the community be shocked, the status of such requirеment is unclear. Nonetheless, it is clear that the legislature retains wide discretion as to the penalty to be accorded to an offense. See Solem, supra, at 290, fn. 16.
As the majority observes, the Committee Comment to
“No person shall have or keep in his possession tools, implements, or other things used by burglars for house breaking, forcing doors, windows, locks, or buildings, or other places where goods, wares, merchandise, or money are kept, with the intention of using such tools or imрlements burglariously.
“Whoever violates this section shall be imprisoned not less than one nor more than five years.”
See, also, State v. Talley (1985),
All statutes prohibiting possession of burglar’s tools define a crime that is inchoate to the offense of burglary. See Annotation, Validity, Construction, and Application of Statutes Relating to Burglars’ Tools (1970),
The substantial step required to establish an attempted offense is not satisfied by the mere, passive possession of a substance. Cf. State v. Woods (1976),
For instance, under Ohio law criminal attempt is punished less severely than the completed offense. See
Though not essential to resolution of this case, it is interesting to examine
A credible argument can be made that
“The issue here is whether both statutes requirе the state to prove identical elements while prescribing different penalties. Judge Jackson, writing for the majority of the appellate court below, clearly stated that the test is ‘whether, if the defendant is charged with the elevated crime, the state has the burden of proving an additional element beyond that required by the lesser offense.’ Therefore, if the statutes prohibit identical activity, require identical proof, and yet impose different penalties, then sentencing a person under the statute with the higher penalty violates the Equal Protection Clause.” (Emphasis added.) Id. at 55-56, 12 O.O. 3d at 54,388 N.E. 2d at 748 .
See, also, Cleveland v. Huff (1984),
Concurrence Opinion
conсurring. I concur in the well-reasoned decision of the Chief Justice and do so specifically on the basis that the trial court and the court of appeals, in a two-to-one decision, neglected to deal with that part of
I write also to make note of my agreement with the discussion of the issue now before us found in State v. Anderson (Apr. 6, 1982), Franklin App. No. 81AP-799, unreported, and the recent well-reasoned opinion of Judge Ford in State v. Oliver (1987),