690 N.E.2d 917 (Ohio App. 1 Dist. 1996), C-950777, State v. Singh

• Citation: 690 N.E.2d 917, 117 Ohio App.3d 381
• Opinion Judge: GORMAN, Judge.
• Party Name: The STATE of Ohio, Appellee, v. SINGH, Appellant.
• Attorney: Fay D. DuPuis, Cincinnati City Solicitor, Terrence R. Cosgrove, City Prosecutor, and Lisa Allen, Cincinnati, for appellee., Kenneth G. Hawley, Cincinnati, for appellant. Fay D. DuPuis, Cincinnati City Solicitor, Terrence R. Cosgrove, City Prosecutor, and Lisa Allen, for appellee. Kenneth G. Hawle...
• Judge Panel: DOAN, P.J., concurs. PAINTER, Judge, concurring separately.
• Case Date: December 31, 1996
• Court: Ohio Court of Appeals

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690 N.E.2d 917 (Ohio App. 1 Dist. 1996)

117 Ohio App.3d 381

The STATE of Ohio, Appellee,

v.

SINGH, Appellant.

No. C-950777.

Court of Appeals of Ohio, First District, Hamilton.

December 31, 1996

[117 Ohio App.3d 383] Syllabus by the Court

1. The Religious Freedom Restoration Act of 1993 ("RFRA"), Section 2000bb et seq., Title 42, U.S.Code provides a statutory right to the exercise of religion free from a substantial burdening by the government; one whose religious exercise has been burdened may assert that violation as a defense in a judicial proceeding in federal or state court, including in a criminal prosecution.

2. Under RFRA, if an accused shows that he is subject to a law of general application

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which places a substantial burden on the exercise of his religion, then the government must demonstrate, in discharging its burden of going forward with the evidence and its burden of persuasion, that the application of the burden to the accused furthers a compelling governmental interest, and that the application is the least restrictive means of furthering that compelling interest.

3. A trial court errs when it summarily and without explanation refuses to recognize the application of RFRA to the prosecution of a religiously observant Sikh for carrying a kirpan, or symbolic sword, does not conduct an inquiry into whether the state has carried its burdens under the act, and refuses to instruct the jury as to the state's burdens under RFRA.

4. A trial court errs when it instructs the jury that there is no religious defense to charges of carrying a concealed weapon, when the facts indicate the applicability of RFRA.

5. In a prosecution for carrying a concealed weapon, where there is no evidence that the accused possessed or carried a symbolic sword with a two-and-one-half-inch dulled blade, sheathed and sewn fast to his waistband, as a weapon, and no evidence that it was designed or adapted for use as a weapon, no rational trier of fact could have found the essential element of a deadly weapon proved beyond a reasonable doubt.

Fay D. DuPuis, Cincinnati City Solicitor, Terrence R. Cosgrove, City Prosecutor, and Lisa Allen, Cincinnati, for appellee.

Kenneth G. Hawley, Cincinnati, for appellant.

GORMAN, Judge.

Defendant-appellant Harjinder Singh claims that his criminal prosecution for carrying a concealed weapon, pursuant to R.C. 2923.12(A), violated the Religious Freedom Restoration Act of 1993 ("RFRA"), Section 2000bb et seq., Title 42, U.S.Code, ^[*] which requires the state to demonstrate that its substantial burdening [117 Ohio App.3d 384] of the free exercise of religion furthers a compelling governmental interest. Dr. Singh, a Cincinnati-area veterinarian and member of the Sikh religion, was charged with this offense when Hamilton County Sheriff's deputies detected his kirpan, or symbolic sword, required to be carried by all religiously observant Sikhs. The kirpan, with a two-and-one-half-inch dulled blade, was sheathed and sewn fast to the waistband of his undergarment. Singh also asserts that the state failed to prove that the kirpan was designed or adapted as anything but a religious symbol: a complete failure of proof on an essential element of the charged offense. We agree and reverse his conviction.

Singh's ordeal began when, as a party to civil litigation in the Hamilton County Court of Common Pleas, he was held in contempt for failure to answer questions in a judgment-debtor examination by a judge of that court and remanded to the custody of the sheriff. Singh was handcuffed and frisked in the courtroom. Deputies then removed him to the intake area of the Justice Center.

In the intake area, a routine and more detailed search was conducted to prepare Singh to enter the general jail population. Ordinarily deputies would remove any items which could be used to hurt other inmates or guards such as belts and shoe laces. Typically, these items are stored and returned to the prisoner upon his release from the Justice Center. During this search Singh refused to remove his jewelry or his turban. Deputies finally located the kirpan after unfastening Singh's pants and seized it. Despite Singh's belated explanation that his faith required him to carry the kirpan, he was charged with carrying a concealed weapon.

Following one mistrial, at Singh's second jury trial in the Hamilton County Municipal Court, the state presented three witnesses: the court bailiff and the two deputies who had conducted the searches. Singh presented the expert testimony of Dr. John W.

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Spellman, a professor of Asian studies at the University of Windsor and a consultant to the Canadian Ministry of Justice on issues relating to Sikhism.

Spellman testified that Sikhism is an ancient religion now practiced by eighteen million people worldwide. The largest community of Sikhs is in India. Approximately 150,000 Sikhs live in the United States. He testified that a central tenet of the Sikh religion requires a baptized follower to wear at all times five symbols of his faith: kesh (long hair), kangha (comb), kasha (undergarment), kalha (bracelet), and a kirpan, or symbolic sword. He testified, without equivocation, that a kirpan is designed and worn as a religious symbol, much as a crucifix, once an instrument of torture, is designed and worn as a religious symbol by Christians. [117 Ohio App.3d 385]

The jury returned a verdict of guilty and the court entered a judgment of conviction for carrying a concealed weapon. This appeal, in which Singh raises nine assignments of error, followed.

In four interrelated assignments of error, ¹ Singh claims that the trial court erred in failing to allow him to assert the defenses established by RFRA and in refusing to instruct the jury on these defenses.

The Act provides a statutory right to the exercise of religion free from a substantial burdening by the government. Section 2000bb(b)(1), Title 42, U.S.Code; First Amendment to the United States Constitution (forbidding the prohibition of free exercise). A person whose religious exercise has been burdened in violation of RFRA may assert that violation as a defense in a judicial proceeding in federal or state court. Sections 2000bb-1(c) and 2000bb-3(a), Title 42, U.S.Code; Abdur-Rahman v....