801 N.E.2d 876 | Ohio Ct. App. | 2003
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *455 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *456 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *457 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *458
{¶ 2} On September 10, 2002, Investigator Jeff Kinkle of the Lima Police Department logged on to the Internet and entered a chat room, using Yahoo Instant Messenger, under the screen name "Sarah 420 Hottie." Investigator Kinkle had created a fictitious profile for the screen name that designated "Sarah 420 Hottie" as a fourteen year old girl from Lima, Ohio. The screen name had been assumed as part of a Lima Police Department sting operation on importuning. Later that same day, a subject, using the screen name "Man That Heals," logged on and entered the same chat room. "Man That Heals" initiated a conversation, via Instant Messenger, with "Sarah 420 Hottie." "Man That Heals" was subsequently identified by police as Snyder, a thirty-six year old coroner from Monroe County, Ohio. During the initial Internet conversation, Snyder told "Sarah 420 Hottie" that he was twenty-seven years old and that he liked young girls.
{¶ 3} On September 12, 2002, Snyder logged on to the Internet again and communicated with "Sarah 420 Hottie." During this conversation, Snyder described to "Sarah" various sexual activity that Snyder wished to engage in with her. A potential meeting for Snyder and "Sarah" was also discussed. On September 14, 2002, Snyder again communicated via the Internet with "Sarah 420 Hottie." The conversation included more discussion of sexual activity, including how Snyder was dying to perform oral sex on "Sarah" and that he also wanted to engage in sexual intercourse with her, among other sexual acts. The two also discussed possible times and places to meet.
{¶ 4} Snyder then initiated conversations with "Sarah 420 Hottie" on September 15, 17, 18, 19 and 23, 2002. Finally, on September 25, 2002, a meeting was ultimately arranged between Snyder and "Sarah" to take place on the following day at a restaurant in Lima, Ohio. On September 26, 2002, Snyder arrived at the predetermined location, a Kewpee Restaurant on Bellefontaine Street in Lima, *459 Ohio, and approached a police informant who was posing as "Sarah." Snyder was then arrested by police for the offense of importuning. Upon being interviewed by police, Snyder admitted that he had communicated online with "Sarah 420 Hottie."
{¶ 5} Snyder was indicted on November 15, 2002 for importuning, in violation of R.C.
The trial court committed an error of law by denying the motion todismiss and to find (sic) R.C. Section
{¶ 6} In his first assignment of error, Snyder asserts that R.C.
{¶ 7} R.C.
(E) No person shall solicit another by means of a telecommunicationsdevice, as defined in section
* * *
(2) The other person is a law enforcement officer posing as a personwho is thirteen years of age or older but less than sixteen years ofage, the offender believes that the other person is thirteen years of ageor older but less than sixteen years of age or is reckless in thatregard, and the offender is four or more years older than the age the lawenforcement officer assumes in posing as the person who is thirteen yearsof age or older but less than sixteen years of age.
{¶ 8} There is a strong presumption that all legislative enactments are constitutional. State v. Collier (1991),
{¶ 9} Snyder's first argument is that R.C.
{¶ 10} The proper standard for determining if a statute is vague is found in Connally v. General Constr. Co. (1926),
{¶ 11} Snyder has the burden of showing that the statute is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati
(1971),
{¶ 12} Upon our review of R.C.
{¶ 13} Snyder cites State v. Swann (2001),
{¶ 14} There is, however, an additional inquiry that this court must make in determining whether a statute is unconstitutionally vague. That inquiry is whether the statute contains explicit standards as guidance for those who apply them, thereby preventing arbitrary and discriminatory enforcement. Grayned,
{¶ 15} Since Snyder failed to make his required showing, we conclude that R.C.
{¶ 16} Snyder's next two arguments are closely connected. Snyder argues that R.C.
{¶ 17} Our analysis of whether a statute is overbroad requires us to determine if the statute "is susceptible to application to speech that is protected by the
{¶ 18} The right involved in this cause is the right of free speech under the
{¶ 19} R.C.
{¶ 20} Our second inquiry then becomes whether R.C.
{¶ 21} In order to serve its interest and still withstand constitutional scrutiny, the State must choose the least restrictive means to accomplish the compelling interest. Sable Communications,
{¶ 22} In his brief, Snyder relies on the United States Supreme Court case of Reno v. American Civil Liberties Union (1997),
{¶ 23} The Reno court found that the CDA banned matter that was "indecent" or "patently offensive" without incorporating all of the required elements under the standard set forth in Miller v. California
(1973),
In contrast to Miller and our other previous cases, the CDA thuspresents a greater threat of censoring speech that, in fact, falls outsidethe statute's scope. Given the vague contours of the coverage of thestatute, it unquestionably silences some speakers whose messages would beentitled to constitutional protection.
Id. at 874. "In holding the CDA unconstitutional, the Supreme Court found that the statute was both vague and overbroad in chilling all communication through the Internet, between adults as well as children."People v. Barrows (1998),
{¶ 24} R.C.
{¶ 25} In the Barrows case, also cited by Snyder in support of his claim that R.C.
§ 235.22 Disseminating indecent material to minors in the firstdegree A person is guilty of disseminating indecent material to minors in thefirst degree when: 1. knowing the character and content of the communication which, inwhole or in part, depicts actual or simulated nudity, sexual conduct orsado-masochistic abuse, and which is harmful to minors, he intentionallyuses any computer communication system allowing the input, output,examination or transfer, of computer data or computer programs from onecomputer to another, to initiate or engage in such communication with aperson who is a minor; and 2. by means of such communication he importunes, invites or induces aminor to engage in sexual intercourse, deviate sexual intercourse, orsexual contact with him, or to engage in a sexual performance, obscenesexual performance, or sexual conduct for his benefit.
N.Y. Penal Code § 235.22. The following amendments to the statute have been made subsequent to the decision in the Barrows case.
§ 235.22 Disseminating indecent material to minors in the firstdegree 2. [Eff. until Nov. 1, 2003. See, also, subd. 2 below.] by means ofsuch communication he importunes, invites or induces a minor to engage insexual intercourse, deviate sexual intercourse, or sexual contact withhim, or to engage in a sexual performance, obscene sexual performance, orsexual conduct for his benefit. 2. [Eff. Nov. 1, 2003. See, also, subd. 2 above.] by means of suchcommunication he importunes, invites or induces a minor to engage insexual intercourse, oral sexual conduct or anal sexual conduct, or sexual *465 contact with him, or to engage in a sexual performance, obscene sexualperformance, or sexual conduct for his benefit. N.Y. Penal Code § 235.22.
{¶ 26} As Snyder states in his brief, the Barrows court held Penal Law § 235.22 invalid for overbreadth and stated its concern that the restrictions of the statute would have a "chilling effect" on protected speech. Barrows,
{¶ 27} Under the same logic of the Barrows case, R.C.
{¶ 28} Therefore, the statute is narrowly tailored and does not have a "chilling effect" on speech because the offender would have to believe that he is soliciting a minor for sexual activity, a criminal act, before his conduct would be regulated by R.C.
{¶ 29} Furthermore, R.C.
{¶ 30} Snyder's next argument challenges the constitutionality of R.C.
{¶ 31} One of the cases that Snyder relies on in support of his argument is People v. Barrows (1998),
{¶ 32} Likewise, we conclude that R.C.
{¶ 33} In his final argument challenging the constitutionality of R.C.
{¶ 34} The Supreme Court of Ohio has stated that "[t]he defense of entrapment is established where the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute." State v. Doran (1983),
{¶ 35} Snyder asserts that he did not solicit "Sarah," rather he only described sexual conduct in which he has engaged or likes to engage. Snyder argues that it was the law enforcement in this case that was the soliciting party. Snyder asserts that Officer Jeff Kinkle was the one to "entice, urge, lure, or ask," when he asked Snyder to describe what he would do if he and "Sarah" met.
{¶ 36} As previously pointed out, Ohio law does not recognize merely affording opportunities or facilities for committing an offense as a legal defense. Laney,
The law permits a police officer to go as far as to suggest an offenseand to provide the opportunity for the defendant to commit the offense.If the defendant is already disposed to commit the offense and actspursuant to a criminal idea or purpose of his own, then there is noentrapment and the defendant can be found guilty.
Laney,
{¶ 37} There is no evidence in the record that supports Snyder's contention that the criminal design originated with Officer Jeff Kinkle and that he implanted the idea of sexual activity with a fourteen year old girl with Snyder. Officer Kinkle merely provided the opportunity for Snyder to commit the offense of importuning by creating a screen name and profile and signing on to Yahoo Instant Messenger. Snyder was the party that initiated conversation with "Sarah 420 Hottie" and brought up the topic of sexual activity. Officer Kinkle merely agreed to Snyder's proposal to meet in person. Therefore, we conclude that law enforcement officers did not entrap Snyder into committing the offense of importuning. In addition, we find that R.C.
{¶ 38} Having found no merit with Snyder's challenges to the constitutionality of R.C.
{¶ 39} In his second assignment of error, Snyder argues that R.C.
{¶ 40} R.C.
[n]o person shall solicit another, not the spouse of the offender, toengage in sexual conduct with the offender, when the offender is eighteenyears of age or older and four or more years older than the otherperson, and the other person is thirteen years of age or older but lessthan sixteen years of age, whether or not the offender knows the age ofthe other person. R.C.
{¶ 41} As discussed earlier in the opinion, R.C.
(D) "Sexually oriented offense" means any of the following:
(1) Any of the following violations of offenses committed by aperson eighteen years of age or older:
(b) Any of the following offenses involving a minor, in thecircumstances specified:
(vi) A violation of division (D) or (E) of section
{¶ 42} A violation of R.C.
{¶ 43} It is also important to note that "[u]nder the Equal Protection Clause, a legislative distinction need only be created in such a manner as to bear a rational relationship to a legitimate state interest." Id. A higher level of scrutiny need only be used when a suspect class or fundamental constitutional right is involved. Id. Sex offenders are not considered a suspect class. Id.; Cutshall v. Sundquist
(C.A. 6, 1999),
{¶ 44} The state interest purportedly achieved by the difference in classification under R.C.
{¶ 45} We, therefore, conclude that the General Assembly had a rational basis for creating the distinction between R.C.
{¶ 46} Finding no merit with Snyder's assignments of error, the judgment of the Common Pleas Court of Allen County is affirmed.
Judgment affirmed.
WALTERS and CUPP, JJ., concur. *471