State v. SnyderState v. Snyder
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- Before:
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{¶ 1} Defendant-appellant, Geoffrey D. Snyder (“Snyder”), appeals from the judgment of conviction and sentence of five years to community control of the Court of Common Pleas of Allen County for the charge of importuning, pursuant to
{¶ 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 14-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 36-year-old coroner from Monroe County, Ohio. During the initial Internet conversation, Snyder told “Sarah 420 Hottie” that he was 27 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,
{¶ 5} Snyder was indicted on November 15, 2002, for importuning, in violation of
“The trial court committed an error of law by denying the motion to dismiss and to find [sic] R.C.Section 2907.07(E)(2) unconstitutional.
“The trial court committed an error of law by denying the motion to dismiss and to find [sic] R.C.Section 2907.07(E)(2) as applied by Section 2950.01(D)(iv) [sic] unconstitutional.”
{¶ 6} In his first assignment of error, Snyder asserts that
{¶ 7}
“(E) No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity with the offender when the offender is eighteen years of age or older and either of the following applies:
“(2) The other person is a law enforcement officer posing as a person who is thirteen years of age or older but less than sixteen years of age, the offender believes that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the age the law enforcement officer assumes in posing as the person who is thirteen years of 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), 62 Ohio St.3d 267, 581 N.E.2d 552. “The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt in order to prevail.”
State v. Anderson
(1991), 57 Ohio St.3d
{¶ 9} Snyder’s first argument is that
{¶ 10} The proper standard for determining whether a statute is vague is found in Connally v. Gen. Constr. Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, and Grayned v. Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222. In Connally, the Supreme Court stated that a vague statute is one “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.” Connally, 269 U.S. at 391, 46 S.Ct. 126, 70 L.Ed. 322. In Grayned, the Supreme Court distinguished the vagueness and overbreadth doctrines, pointing out that “[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined,” whereas “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Grayned, 408 U.S. at 108, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222.
{¶ 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), 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214. Snyder has failed to make such a showing.
{¶ 12} Upon our review of
{¶ 13} Snyder cites
State v. Swann
(2001), 142 Ohio App.3d 88, 753 N.E.2d 984, as authority for the elements of solicitation. In the
Swann
case, “solicit” was defined as “to entice, urge, lure or ask.” Id. at 89, 753 N.E.2d 984. While Snyder may argue that he did not “solicit” Officer Kinkle during their online conversations, this does not demonstrate that
{¶ 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,
408 U.S. at 108, 92 S.Ct. 2294, 33 L.Ed.2d 222. Snyder argues that
{¶ 15} Since Snyder failed to make his required showing, we conclude that
{¶ 16} Snyder’s next two arguments are closely connected. Snyder argues that
{¶ 17} Our analysis of whether a statute is overbroad requires us to determine whether the statute “is susceptible [of] application to speech protected by the First Amendment.”
Phipps,
58 Ohio St.2d at 275, 12 O.O.3d 273, 389 N.E.2d 1128. If we find that the statute does apply to speech protected by the
{¶ 18} The right involved in this cause is the right of free speech under the First and Fourteenth Amendments to the United States Constitution. It is well settled in Ohio that the application of the overbreadth doctrine is limited to the First Amendment context.
Collier,
62 Ohio St.3d at 272, 581 N.E.2d 552;
Schall v. Martin
(1984), 467 U.S. 253, 268, 104 S.Ct. 2403, 81 L.Ed.2d 207. In determining whether a statute violates the First Amendment, our first inquiry under the analysis to determine whether a statute is overbroad, we must determine whether the statute regulates the content of speech or the conduct related to the speech.
Kelleys Island v. Joyce
(2001), 146 Ohio App.3d 92, 765 N.E.2d 387;
Dayton v. Van Hoose
(Dec. 8, 2000), 2d Dist. No. 18053, 2000 WL 1803867. If a statute attempts to regulate pure First Amendment rights (e.g., speech, expressive conduct, or association), it must be narrowly tailored and designed to further a compelling interest of the state.
Broadrick v. Oklahoma
(1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830. However, “where conduct and not merely speech is involved, * * * the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615, 93 S.Ct. 2908, 37 L.Ed.2d 830. Therefore, Snyder must show that the potential application of
{¶ 19}
{¶ 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, 492 U.S. at 126, 109 S.Ct. 2829, 106 L.Ed.2d 93. “It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.” Id.
{¶ 22} In his brief, Snyder relies on the United States Supreme Court case of
Reno v. Am. Civ. Liberties Union
(1997), 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874, to support his argument that
{¶ 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), 413 U.S. 15, 93 S.Ct. 2607, 37
“In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute’s scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection.” Id. at 874, 117 S.Ct. 2329, 138 L.Ed.2d 874.
{¶ 24} “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), 177 Misc.2d 712, 728, 677 N.Y.S.2d 672. The
Reno
court was concerned with the “international, geographically borderless nature of the Internet’s reach, regardless of the speaker’s intent.” Id. at 729, 677 N.Y.S.2d 672.
{¶ 25} In the
Barrows
case, also cited by Snyder in support of his claim that
Ҥ 235.22 Disseminating indecent material to minors in the first degree
“A person is guilty of disseminating indecent material to minors in the first degree when:
“1. knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor; and
“2. by means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, deviate sexual intercourse, or sexualcontact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit.” NY Penal Code Section 235.22.
{¶ 26} The following amendments to the statute have been made subsequent to the decision in the Barrows case.
Ҥ 235.22 Disseminating indecent material to minors in the first degree
“2. [Eff. until Nov. 1, 2003. See, also, subd. 2 below.] by means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, deviate sexual intercourse, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit.
“2. [Eff. Nov. 1, 2003. See, also, subd. 2 above.] by means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit.” NY Penal Code Section 235.22.
{¶ 27} As Snyder states in his brief, the
Barrows
court held Penal Law Section 235.22 invalid for overbreadth and stated its concern that the restrictions of the statute would have a “chilling effect” on protected speech.
Barrows,
177 Misc.2d at 730, 677 N.Y.S.2d 672. Snyder asserts in his brief that we cannot avoid this aspect of the
Barrotes
holding and instead choose to limit our analysis to the one-on-one communications between Snyder and “Sarah.” According to Snyder, “[t]his would ignore the facial challenge to
{¶ 29} Furthermore,
{¶ 30} Snyder’s next argument challenges the constitutionality of
{¶ 31} One of the cases that Snyder relies on in support of his argument is
People v. Barrows
(1998), 177 Misc.2d 712, 677 N.Y.S.2d 672, which, as we mentioned earlier, has been reversed in part by the New York Court of Appeals. While the New York Supreme Court found that Penal Law Section 235.22 violated the Commerce Clause, the court of appeals held that “the statute represents a legitimate exercise of the state’s police power and does not discriminate against or burden interstate trade.”
Barrows,
273 A.D.2d at 247, 709 N.Y.S.2d 573. The
Barrows
court based its decision on the holding of
Foley,
{¶ 32} Likewise, we conclude that
{¶ 33} In his final argument challenging the constitutionality of
{¶ 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), 5 Ohio St.3d 187, 5 OBR 404, 449 N.E.2d 1295, paragraph one of syllabus. The defense of entrapment is not established when government officials “merely afford opportunities or facilities for the commission of the offense” and it is shown that the accused was predisposed to commit the offense.
Sherman v. United States
(1958), 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848. Therefore, the “police officer [must] plant[ ] in the mind of the defendant the original idea or purpose, thus furnishing from the start the incentive (moving force) to commit an offense that the defendant had not
{¶ 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 law enforcement in this case who 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, 61 Ohio Misc.2d at 695, 583 N.E.2d 479; see, also, State v. Dutton Drugs, Inc. (1965), 3 Ohio App.2d 118, 32 O.O.2d 204, 209 N.E.2d 597, and Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413:
“The law permits a police officer to go as far as to suggest an offense and to provide the opportunity for the defendant to commit the offense. If the defendant is already disposed to commit the offense and acts pursuant to a criminal idea or purpose of his own, then there is no entrapment and the defendant can be found guilty.” Laney, 61 Ohio Misc.2d at 695, 583 N.E.2d 479.
{¶ 37} Officer Jeff Kinkle sat dormant when he entered the Ohio Chat Room on Yahoo Instant Messenger and did not initiate conversations with Snyder. In fact, Snyder initiated every conversation with “Sarah 420 Hottie” and brought up the sexual topics. Snyder is also the party who initiated conversation about meeting in person. 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 14-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-
{¶ 38} Having found no merit with Snyder’s challenges to the constitutionality of
{¶ 39} In his second assignment of error, Snyder argues that
{¶ 40}
“No person shall solicit another, not the spouse of the offender, to engage in sexual conduct with the offender, when the offender is eighteen years of age or older and four or more years older than the other person, and the other person is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of the other person.”R.C. 2907.07(C) .
{¶ 41} As discussed earlier in the opinion,
“(D) ‘Sexually oriented offense’ means any of the following:
“(1) Any of the following violations of offenses committed by a person eighteen years of age or older:
* *
“(b) Any of the following offenses involving a minor, in the circumstances specified:
U* * *
“(vi) A violation of division (D) or (E) ofsection 2907.07 of the Revised Code.”
{¶ 42} A violation of
{¶ 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), 193 F.3d 466, 482;
Artway v. Atty. Gen. of New Jersey
(C.A.3, 1996), 81 F.3d 1235, 1267. Chapter 2950 is not considered to implicate a fundamental right either.
Williams,
88 Ohio St.3d at 530, 728 N.E.2d 342. Therefore, we apply the rational-basis standard and grant substantial deference to the General Assembly. Id. at 531, 728 N.E.2d 342. The burden is on Snyder to prove that there is no rational basis between the distinctions made in
{¶ 44} The state interest purportedly achieved by the difference in classification under
{¶ 45} We, therefore, conclude that the General Assembly had a rational basis for creating the distinction between
{¶ 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.