State v. WyantState v. Wyant
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(Nos. 91-199, 91-1519 and 91-1211/91-1589--Submitted April 15, 1992--Decided August 26, 1992.)
Appeal from the Court of Appeals for Delaware County, No. 90-CA-2.
Certified by the Court of Appeals for Montgomery County, Nos. 12239, 12259 and 12260.
Appeal from and Certified by the Court of Appeals for Franklin County, Nos. 90AP-473, 90AP-474, 90AP-475, 90AP-477, 90AP-478, 90AP-479 and 90AP-480.
Wyant Case: case No. 91-199
On May 29, 1989 appellant David Wyant and his wife rented campsite L-16 at Alum Creek State Park. On May 31, the Wyants’ relatives came to join them, and rented L-17, the adjoining campsite. On June 2, Wyant rerented his site, but released the relatives’ site, as they were to leave that day. Later in the day plans changed, and Wyant attempted to rerent site L-17. He was told that the site had been rented to someone else, and so he rented L-18.
Site L-17 had been rented to the complaining witnesses, Jerry White, and his girlfriend, Patricia McGowan. White and McGowan are black; everyone in the Wyant party is white. There was little contact between the groups for most of the evening of June 2nd, but sometime between 10:30 and 11:45 p.m., White went to park officials to complain of loud music coming from the Wyant campsite. A park official went to site L-16 and asked Wyant to turn off the radio. Wyant complied.
Fifteen or twenty minutes later the radio came on again,
Wyant was indicted and convicted on one count of ethnic intimidation,
May Case: case No. 91-1519
Defendant James May, Jr. was charged with ethnic intimidation predicated on aggravated menacing. He moved to dismiss. The trial court dismissed on the grounds that
Plessinger/Staton Case: case No. 91-1519
Defendants Aaron Plessinger and Mark Staton were charged with ethnic intimidation predicated on aggravated menacing. They moved to dismiss on the grounds that
Van Gundy Case: case Nos. 91-1211/91-1589
Defendants Clancy Van Gundy, Casey Van Gundy, Franklin D. Clay, Robert Blazer, Bryan Krebs, Charles Culp, and Terry Breedlove, Jr. were each charged with seven counts of ethnic intimidation predicated on aggravated menacing. Clancy Van Gundy was also charged with felonious assault. He was tried and convicted on this charge. See State v. Van Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604. The trial court dismissed the ethnic intimidation counts, holding that
W. Duncan Whitney, Prosecuting Attorney, and Sue Ann Reulbach, for appellee in case No. 91-199.
Lee C. Falke, Prosecuting Attorney, and Lorine M. Reid, for appellant in case No. 91-1519.
Michael Miller, Prosecuting Attorney, Joyce S. Anderson and Katherine J. Press, for appellants in case Nos. 91-1211/91-1589.
Lee I. Fisher, Attorney General, Simon B. Karas and Eric
Randall M. Dana, Ohio Public Defender, Susan B. Gellman and Robert L. Lane, for appellant in case No. 91-199.
Terry L. Lewis, for appellee James B. May, Jr. in case No. 91-1519.
Gary C. Schaengold, for appellee Mark J. Staton in case No. 91-1519.
Gary W. Crim, for appellee Aaron L. Plessinger in case No. 91-1519.
Wonnell, Janes & Wonnell Co., L.P.A., and Harold E. Wonnell, for appellee Clancy Van Gundy in case Nos. 91-1211/91-1589.
Andrew E. Lyles, for appellee Casey Van Gundy in case Nos. 91-1211/91-1589.
Samuel B. Weiner, for appellee Franklin D. Clay in case Nos. 91-1211/91-1589.
James Kura, Franklin County Public Defender, Allen V. Adair and Carole B. Schneider, for appellee Robert Eric Blazer in case Nos. 91-1211/91-1589.
Tyack & Blackmore Co., L.P.A., and Thomas M. Tyack, for appellee Bryan Krebs in case Nos. 91-1211/91-1589.
Arnold S. White, Daniel T. Kobil and Susan B. Gellman, for appellee Charles Culp in case Nos. 91-1211/91-1589.
Terry Breedlove, Jr., pro se, in case Nos. 91-1211/91-1589.
Bruce W. Sanford and Robert M. O‘Neil, urging reversal for amicus curiae, Thomas Jefferson Center for the Protection of Free Expression in case No. 91-199.
Thomas A. Schaffer and Annabelle Whiting Hall, urging reversal for amicus curiae, National Association of Criminal Defense Lawyers in case No. 91-199, and affirmance in case Nos. 91-1211/91-1589.
Reinhart Law Office and Harry R. Reinhart; Eslocker, Grim, Hodson & Dioguardi and Nicholette Dioguardi, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers in case No. 91-199 and affirmance in case Nos. 91-1211/91-1589.
Kevin Francis O‘Neill, Ohio Legal Director, urging reversal for amicus curiae, American Civil Liberties Union of Ohio Foundation, Inc. in case No. 91-199.
Robert D. Horowitz, Stark County Prosecuting Attorney, Kristine Wilson Rohrer and John E. Murphy, Executive Director; and Paul Cox, urging affirmance for amici curiae, Ohio Prosecuting Attorney‘s Association, Fraternal Order of Police and Buckeye State Sheriff‘s Association in case No. 91-199.
Ronald J. O‘Brien, City Attorney, Marcee C. McCreary, City Prosecutor, and Thomas K. Lindsey, urging reversal for amicus curiae, city of Columbus in case Nos. 91-1211/91-1589.
Jones, Day, Reavis & Pogue, Steven T. Catlett and Richard A. Cordray; Schwartz, Kelm, Warren & Rubenstein and Nelson E. Genshaft; Ruth L. Lansner, Steven M. Freeman and Michael Sandburg, urging reversal for amicus curiae, Anti-Defamation League in case Nos. 91-1211/ 91-1589.
Alphonse A. Gerhardstein, urging reversal for amici curiae, Housing Opportunities Made Equal (HOME), East Suburban Council for Open Communities, Toledo Fair Housing Center, Cincinnati Human Relations Commission and National Fair Housing Alliance in case Nos. 91-1211/91-1589.
The ethnic intimidation statute is a well-intentioned response to a society-threatening problem. However, the legislative response to this problem must not violate the Ohio and United States Constitutions. For the following reasons, we find
I
The Statute
“(A) No person shall violate section
2903.21 ,2903.22 ,2909.06 , or2909.07 , or division (A)(3), (4), or (5) of section2917.21 of the Revised Code by reason of the race, color, religion, or national origin of another person or group of persons.“(B) Whoever violates this section is guilty of ethnic intimidation. Ethnic intimidation is an offense of the next higher degree than the offense the commission of which is a necessary element of ethnic intimidation.”
The statute creates enhanced criminal penalties for some people who commit aggravated menacing (
The predicate offenses to ethnic intimidation are already punishable acts under other statutes. Thus the enhanced penalty must be for something more than the elements that constitute the predicate offense. Our analysis begins with the identification of the “something more” that is punished under
II
Criminalization of Motive
Motive, in criminal law, is not an element of the crime. In their textbook, 1 Substantive Criminal Law (1986) 318, Section 3.6, LaFave and Scott argue that if defined narrowly enough, motive is not relevant to substantive criminal law, although procedurally it may be evidence of guilt, or, in the case of good motive, may result in leniency. Other thought-related concepts such as intent and purpose are used in
There is a significant difference between why a person commits a crime and whether a person has intentionally done the acts which are made criminal. Motive is the reasons and beliefs that lead a person to act or refrain from acting. The same crime can be committed for any of a number of different motives. Enhancing a penalty because of motive therefore punishes the person‘s thought, rather than the person‘s act or criminal intent.
Application of the Ohio and United States Constitutions to the statute before us requires careful attention to the distinctions between motive and intent as well as the line which separates a thought from an act. These distinctions can best be understood in the context of specific applications which arise in criminal jurisprudence.
A
Motive versus Criminal Intent
Culpable mental state, or intent, is usually required to find one guilty of a crime.7 “Intent” refers to the actor‘s state of mind or volition at the time he acts. Did A intend to kill B when A‘s car hit B‘s, or was it an accident? This is not the same as A‘s motive, which is why A intentionally killed B.8 When A murders B in order to obtain B‘s money, A‘s intent is to kill and the motive is to get money. LaFave and Scott, supra, at 319. One can have motive without intent, or intent without motive. For instance, the wife of a wealthy but disabled man might have a motive to kill him, and yet never intend to do so. A psycopath, on the other hand, may intend to kill and yet have no motive.
B
Motive versus Purpose to Commit Another Criminal Act
Purpose to commit an additional criminal act is frequently seen in criminal statutes as a basis for enhanced penalty or as creating a separate, more serious crime. For example, burglary is a trespass “with purpose” to commit a theft offense or felony.9 Purpose in this context is not the same as motive. What is being punished is the act of trespass, plus the additional act of theft, or the intent to commit theft. Upon trespassing, A‘s intent is to commit theft, but the motive may be to pay debts, to buy drugs, or to annoy the owner of the property.10 The object of the purpose is itself a crime. Thus the penalty is not enhanced solely to punish the thought or motive.
Criminal penalties are often enhanced using the concept of an aggravating circumstance. These also are distinguishable from motive. For example, under
C
Motive versus Criminal Act
Some aggravating circumstances involve the identity of the victim, such as a peace officer or governmental official.
Under the above analysis, the legislature could decide that blacks are more valuable than whites, and enhance the punishment when a black is the victim of a criminal act. Such a statute would pass First Amendment analysis because the motive or the thought which precipitated the attack would not be punished. However,
D
Motive in the Antidiscrimination Laws
Federal and state laws against discrimination in employment, housing and education do prohibit acts committed with a discriminatory motive. However, they are analytically distinct in several ways from the statute in question here. It is the act of discrimination that is targeted, not the motive.
There are two theories by which a case can be made under the federal laws against employment discrimination; these are characterized as “disparate impact” and “disparate treatment.” Under a disparate-impact analysis, an employment practice that is neutral on its face, but falls more harshly on a protected group, can be used to show employment discrimination. Griggs v. Duke Power Co. (1971), 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Teamsters v. United States (1977), 431 U.S. 324, 335-336, 97 S.Ct. 1843, 1854-1855, 52 L.Ed.2d 396, 415, fn. 15. No discriminatory motive is necessary under this analysis.
Under a disparate-treatment analysis, the employer treats some people less favorably than others because of race, color, religion, sex or national origin. Discriminatory motive is necessary to this theory. Id. However, proof of discriminatory motive can be inferred from differences in treatment. Arlington Hts. v. Metro. Hous. Dev. Corp. (1977), 429 U.S. 252, 265-266, 97 S.Ct. 555, 563-564, 50 L.Ed.2d 450, 464-465. It is discriminatory treatment that is the object of
III
The Constitutional Objection to Punishment of Thought
Neither the United States nor the Ohio Constitution explicitly prohibits the punishment of thought. Both guarantee the right to freedom of speech.12 Federal First Amendment jurisprudence has long recognized that freedom of speech presupposes freedom of thought. As Justice Stewart said in Abood v. Detroit Bd. of Edn. (1977), 431 U.S. 209, 234-235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261, 284:
“[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one‘s beliefs should be shaped by his mind and his conscience rather than coerced by the State.”
Likewise, Justice Jackson in West Virginia State Bd. of Edn. v. Barnette (1943), 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 1639, stated as follows:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion * * *.”
And Justice Marshall in Stanley v. Georgia (1969), 394 U.S. 557, 565-566, 89 S.Ct. 1243, 1248-1249, 22 L.Ed.2d 542, 550, stated as follows:
“* * * Our whole constitutional heritage rebels at the thought of giving government the power to control men‘s minds.
“* * * [The State] cannot constitutionally premise legislation on the desirability of controlling a person‘s private thoughts.”
Such statements are made in the context of cases in which laws regulate speech or expressive conduct of some kind. The question before us is not whether the government can regulate the conduct itself. Clearly the government can, and has already done so by criminalizing the behavior in the predicate statutes.13 The issue here is whether the government can punish the conduct more severely based on the thought that motivates the behavior.
Under the First Amendment there are unprotected forms of expression. The state is allowed to punish those utterances that “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035. It does not follow, however, that there are unprotected forms of belief.
The freedoms of speech, press, religion and assembly are guaranteed together in the First Amendment because they share a core value: the freedom of an individual to frame his thoughts and beliefs. The Constitution of Ohio is even more specific;
By enacting
Within constitutional bounds, the legislature determines what constitutes a crime. We review that determination only to see if it comports with the Ohio and United States Constitutions. If the thought or motive behind a crime can be separately punished, the legislative majority can punish virtually any viewpoint which it deems politically undesirable, for example, a crime committed because the perpetrator (a) dislikes homosexuals, (b) likes homosexuals, (c) likes or dislikes the elderly--and so on. It requires little imagination to see the ramifications.
We recognize and are sensitive to the emotionally charged nature of the issues involved. We reemphasize that we in no way condone the acts and alleged acts that bring these cases before us. However, the very reason for the First Amendment and Section 11, Article I is to protect the individual against a state that is hostile simply because of the person‘s belief. The constitutional protection accorded to beliefs is most important when the beliefs are reviled by society. As Justice Douglas of this court has said:
“This guarantee of freedom is one of our most cherished rights and, as such, has been and continues to be under attack by persons, well-meaning and otherwise, who see attempted curtailment as being in the ‘public good.’ * * * It is important to often repeat that the freedoms * * * guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.” Local Lodge 1297 v. Allen (1986), 22 Ohio St.3d 228, 236, 22 OBR 407, 414, 490 N.E.2d 865, 872 (Douglas, J. concurring)
Justice Black, in his seminal dissent in Beauharnais v. Illinois (1952), 343 U.S. 250, 274, 72 S.Ct. 725, 739, 96 L.Ed. 919, 936, put the issue as follows:
“* * * The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books and even to the burning of ‘witches.‘”
Justice Black‘s position has become the accepted one in First Amendment jurisprudence. Justice Burger addressed the issue in Houchins v. KQED, Inc. (1978), 438 U.S. 1, 13, 98 S.Ct. 2588, 2596, 52 L.Ed.2d 553, 564: “We must not confuse what is ‘good,’ ‘desirable,’ or ‘expedient’ with what is constitutionally commanded by the First Amendment.”
Applying these principles, we believe that the government is not free to punish an idea, though it may punish acts motivated by the idea. It may also punish unprotected speech expressing the idea.
The United States Supreme Court recently addressed the constitutionality of another so-called “hate crimes” law. R.A.V. v. St. Paul (1992), 505 U.S. 377, 112 S.Ct. 2538, 120 L.E.2d 305. The St. Paul ordinance reads:
“‘Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.‘” Id., 505 U.S. at 380, 112 S.Ct. at 2541, 120 L.Ed.2d at 315.
The St. Paul ordinance is aimed at specific conduct; that is, conduct which will arouse anger, alarm or resentment on the basis of race, color, creed, religion or gender. The Minnesota Supreme Court rejected an overbreadth claim because the ordinance had been construed to include only unprotected “fighting words.” Despite this construction, the United States Supreme Court found the ordinance facially unconstitutional under the First Amendment. Justice Scalia, writing for the court, said that even the few limited categories of unprotected speech are not “entirely invisible to the Constitution.” Id. at 383-84, 112 S.Ct. at 2543, 120 L.Ed.2d at 318. The government may not regulate even fighting words based on a hostility toward the message they contain. Any proscription of fighting words must not be based on content. The court observed that the St. Paul ordinance went beyond content discrimination to viewpoint discrimination.
Quite recently the Supreme Court of Wisconsin struck down the Wisconsin “hate crimes” statute as “unconstitutionally infring[ing] upon free speech.” State v. Mitchell (June 23, 1992), 169 Wis.2d 153, 485 N.W.2d 807, 808. The Wisconsin law is a penalty-enhancement statute with some similarities to
Based upon the foregoing authorities and our analysis of
Conduct motivated by racial or religious bigotry can be constitutionally punished under the criminal code without resort to constructing a thought crime. In fact, the behavior which is alleged in each case before us can be punished under the criminal statutes identified in
The parties also make constitutional challenges to
IV
The Specific Cases Before Us
Having so held, we turn to the specific cases which are before us. Constitutional protection of thought does not shield a citizen from punishment for proscribed acts. Although the ethnic intimidation statute is invalid, the predicate offenses are punishable. As these offenses are mentioned specifically in
In case No. 91-199, the jury was instructed that it could find David Wyant guilty of ethnic intimidation only if it first found him guilty of aggravated menacing. The verdict indicates that the jury found him guilty of aggravated menacing.
In case Nos. 91-1519 and 91-1211/91-1589, although the defendants cannot be tried under
Based on the foregoing, in case No. 91-199 we reverse the court of appeals, vacate sentence on the conviction for ethnic intimidation, and remand for sentencing on the charge of aggravated menacing. We affirm the judgment of the court of appeals in case No. 91-1519. In case Nos. 91-1211/91-1589, we affirm the dismissal for ethnic intimidation, but remand for further proceedings on the underlying aggravated menacing charges.
Judgments accordingly.
In Case Nos. 91-199 and 91-1519:
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and Resnick, JJ., concur.
In Case Nos. 91-1211 and 91-1589:
Moyer, C.J., Utz, Holmes, Douglas, Wright and Resnick, JJ., concur.
Eugene J. Utz, J., of the First Appellate District, sitting for Sweeney, J.
FOOTNOTES:
Notes
1
“(A) No person shall knowingly cause another to believe
2
“(A) No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of such other person or member of his immediate family.”
3
“(A) No person shall cause, or create a substantial risk of physical harm to any property of another without his consent:
“(1) Knowingly, by any means;
“(2) Recklessly, by means of fire, explosion, flood, poison gas, poison, radioactive material, caustic or corrosive material, or other inherently dangerous agency or substance.”
4
“(A) No person shall:
“(1) Without privilege to do so, knowingly move, deface, damage, destroy, or otherwise improperly tamper with the property of another.”
5
“(A) No person shall knowingly make or cause to be made a telephone call, or knowingly permit a telephone call to be made from a telephone under his control, to another, if the caller does any of the following:
* * *
“(3) During the telephone call, violates section
“(4) Knowingly states to the recipient of the telephone call that he intends to cause damage to or destroy public or private property, and the recipient of the telephone call, any member of the family of the recipient of the telephone call, or any other person who resides at the premises to which the telephone call is made owns, leases, resides, or works in, will at the time of the destruction or damaging be near or in, has the responsibility of protecting, or insures the property that will be destroyed or damaged;
“(5) Knowingly makes the telephone call to the recipient of the telephone call, to another person at the premises to which the telephone call is made, or to the premises to which the telephone call is made, and the recipient of the telephone call, or another person at the premises to which the telephone call is made, has previously told the caller not to call the premises to which the telephone call is made or not to call any persons at the premises to which the telephone call is made.”
7 The Ohio statute on culpable mental states,
“(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 nature.
“(B) A person acts knowingly, regardless of his purpose,
“(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
“(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.
“(E) When the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, or purpose is also sufficient culpability for such element. When recklessness suffices to establish an element of an offense, then knowledge or purpose is also sufficient culpability for such element. When knowledge suffices to establish an element of an offense, then purpose is also sufficient culpability for such element.”
9 The Ohio statutes on aggravated burglary and burglary, respectively, state:
”
“(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section
“(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
“(2) The offender has a deadly weapon or dangerous ordnance, as defined in section
“(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.
“(B) Whoever violates this section is guilty of aggravated burglary, an aggravated felony of the first degree.”
”
“(A) No person, by force, stealth, or deception, shall do any of the following:
“(1) Trespass in an occupied structure or in a separately secured or separately occupied portion thereof, with purpose to
“(2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense;
“(3) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present.
“(B) As used in this section:
“(1) ‘Occupied structure’ has the same meaning as in section
“(2) ‘Theft offense’ has the same meaning as in section
“(C) Whoever violates this section is guilty of burglary. A violation of division (A)(1) of this section is an aggravated felony of the second degree. A violation of division (A)(2) of this section is a felony of the third degree. A violation of division (A)(3) of this section is a felony of the fourth degree.”
11
“(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section
“(1) The offense was the assassination of the president of the United States or person in line of succession to the presidency, or of the governor or lieutenant governor of this state, or of the president-elect or vice president-elect of the United States, or of the governor-elect or lieutenant governor-elect of this state, or of a candidate for any of the foregoing offices. * * *
“(2) The offense was committed for hire.
“(3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.
* * *
“(6) The victim of the offense was a peace officer, as defined in section