498 N.E.2d 221 | Ohio Ct. App. | 1985
This matter is before us on the appeal of defendant-appellant, J. Elliott Van Dyne, from a judgment of the Franklin County Municipal Court finding him guilty on his no contest plea of violating R.C.
The undisputed facts indicate that defendant was cited for possessing an opened container of beer, which contained 3.7 percent alcohol by weight, when he was standing on a public sidewalk in German Village, several feet from his home. When defendant's motion to dismiss was overruled, he filed a no contest plea and was found guilty.
Defendant asserts the following two assignments of error in support of his appeal:
"I. Section
"II. Section
R.C.
"No person shall have in his possession an opened container of beer or intoxicating liquor in a state liquor store, or on the premises of the holder of any permit issued by the department of liquor control, or any other public place. * * *" *96
In support of his first assignment of error, defendant correctly argues that a criminal statute must be written clearly enough that a person of ordinary intelligence is informed of the activity that is proscribed by the statute. However, it is equally well-established that, in determining whether a statute is constitutional, it is not enough to argue that the statute may be applied unconstitutionally to persons other than the person challenging its constitutionality. See Cincinnati v. Hoffman
(1972),
Defendant argues that the statute in question does not advise him what is meant by a "public place." The only question that is relevant to our determination of constitutionality in this case is the issue of whether a sidewalk is a public place and whether defendant should have known that it is such. We are not concerned in this case with defendant's hypothetical assertions that an affirmance of his guilt means that a person standing in the doorway of his home with an open container or a person at sporting events carrying open containers are guilty of violating the same statute. Those issues are not before us and are not decided by this opinion.
In United States v. Grace (1983),
In support of his second assignment of error, defendant argues that the Ohio General Assembly exceeded its police power when it sought to prohibit the conduct of possessing an opened container of alcohol on public property by adopting R.C.
"* * * `No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom,' * * *."
The
The interest of the state in controlling the possession and consumption of alcohol is well-established. The state's interest in regulating possession of opened containers of alcohol in public places, while perhaps not as compelling, is similar to the state's interest in regulating the possession of thievery tools, concealed weapons, and scheduled substances. While the possession of an opened can of beer by defendant in this *97
case perhaps posed no threat to public health or safety, it is the possibility of abuse of the substance in his opened container by others, and his potential abuse of the substance, that gives the state its right to regulate his conduct in a public place. This is the price which he pays for living in a society in which the misconduct of some effects the freedom of us all. The state has a legitimate interest in controlling the places in which people may possess opened containers of liquor or beer. The state has not violated its police power in the adoption of R.C.
For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
REILLY, P.J., and NORRIS, J., concur.