City of Columbus v. Fabich

• Citation: 166 N.E.3d 101
• Decision Date: 31 December 2020
• Docket Number: No. 19AP-441,19AP-441
• Parties: City of COLUMBUS, Plaintiff-Appellee, v. Sean FABICH, Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

166 N.E.3d 101

City of COLUMBUS, Plaintiff-Appellee,

v.Sean FABICH, Defendant-Appellant.

No. 19AP-441

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on December 31, 2020

On Brief: April F. Campbell, Dublin, for appellant. Argued: April F. Campbell.

On Brief: Zachary M. Klein, City Attorney, Bill R. Hedrick, and Orly Ahroni, Columbus, for appellee. Argued: Orly Ahroni.

DECISION

BRUNNER, J.,

{¶ 1} Defendant-appellant, Sean Fabich, appeals a judgment of the Franklin County Municipal Court issued on June 27, 2019, following a jury verdict, convicting him of one count of disorderly conduct and one count of ethnic intimidation and sentencing him to serve 60 days in jail, 30 days on house arrest, and suspending a further 90 days of jail time on condition of 2 years of probation. Because we find that the slur commonly known as the "n-word" is a "fighting word" when uttered under the circumstances in this case, we affirm Fabich's conviction for disorderly conduct. We further find that plaintiff-appellee's, City of Columbus's, ethnic intimidation ordinance, as applied to a predicate offense of disorderly conduct, is constitutional because it does not punish the content of fighting words but instead punishes the biased motive or reason for the fighting words being uttered without regard to the content of the words. Fabich's repeated utterance of racially charged fighting words and other racially charged words demonstrates that a motive underlying the disorderly conduct was racial. Consequently, we affirm Fabich's conviction for ethnic intimidation as sufficiently supported and not against the manifest weight of the evidence. We find that the trial court erred by failing to permit Fabich to allocute and plainly erred by failing to sentence on each offense of conviction. We accordingly decline to address as moot whether the record supported the trial court's sentencing restriction that Fabich not own or reside with animals. We overrule Fabich's first, second, third, fourth, and fifth assignments of error. We sustain his sixth assignment of error. And we find moot his seventh assignment of error.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 21, 2018, a complainant-victim, Willis Brown, filed a pair of complaints against Fabich alleging that, on November 1, 2018, Fabich had repeatedly called Brown, "Nigger¹ Brown," and told him to "go back to the plantation." (Nov. 21, 2018 Compls. at 1, 3.) The complaints charged violations of Columbus City Code, Sections 2317.11(A)(2) (disorderly conduct) and 2331.08(A) (ethnic intimidation). Id. Fabich apparently pled "not guilty" the same day (though the plea form is unsigned and contains only the typed name and contact information for Fabich's counsel). (Nov. 21, 2018 Plea Form.)

{¶ 3} Prior to trial, Fabich moved to dismiss the case, arguing that even if the complaints were taken at face-value, the ordinances that he was charged with violating were unconstitutional under the First Amendment to the U.S. Constitution. (Apr. 11, 2019 Mot. to Dismiss.) The City filed a memorandum contra and the parties orally argued the motion before voir dire on the first day of trial. (May 15, 2020 Memo. Contra; May 20, 2019 Hearing & Voir Dire Tr. at 2-11.) The trial court denied the motion and the case proceeded to trial. (May 20, 2019 Hearing & Voir Dire Tr. at 2-11.)

{¶ 4} At trial, four witnesses testified and a video showing a portion of the encounter between Brown and Fabich was introduced as an exhibit.² The complainant, Willis Brown, was the first to testify.

{¶ 5} Brown testified that he lived on North Monroe Avenue and was a Near East Area Commissioner for his neighborhood. (Tr. at 29-34.) Fabich, he said, was a long-time neighbor who lived on the same street approximately one block away. (Tr. at 37.) Brown recounted that he and another neighbor, Dana Moessner, were admiring landscaping that Moessner had done for Fabich's next door neighbor when Fabich pulled up in his car. (Tr. at 38.) According to Brown, Fabich got out of the car and expressed the opinion that Brown and Moessner (who was also an area commissioner) were not good commissioners. (Tr. at 40.) Brown said he and Moessner ignored Fabich. Id. Fabich then stated that Brown was just a "nigger" and that from then on, according to Fabich, his name would be "Nigger Brown." Id. Brown said Fabich, who was about 20 feet away, repeated the slur many times, that Brown felt the statements were made in an attempt to provoke him, and that he, in fact, felt provoked. (Tr. at 40-44.) Brown said he verbally responded, demanding respect, but did not respond physically. (Tr. at 42-45.) Yet, he admitted that, given the provocation offered by Fabich, he was tempted to engage physically. (Tr. at 42-44.)

{¶ 6} During Brown's direct testimony, video of a portion of the altercation was played. (Tr. at 50-52, 88; City's Ex. 1.) The video, recorded from across the street and through some trees, shows an indistinct figure (whom the parties agree was Fabich) placing potted plants around his property. (City's Ex. 1 in passim.) The sounds in the video are somewhat distant and difficult to decipher, but Fabich can be heard to repeatedly say, "Bye Nigger Brown," "go away, Nigger Brown," and other similar remarks to someone off screen. Id. in passim. The person off screen (whom the parties apparently do not dispute was Willis Brown) can be heard shouting back at intervals urging Fabich to "be respectful" and not to "call people names." Id. at 1:06-1:09, 1:21-1:28. At one point, Fabich tells the person off screen, "Go back to your plantation." Id. at 0:14-0:21. At another point, he appears to say, "If you're calling me Tarzan, you're Nigger Brown." Id. at 0:56-1:02. Later he says, "If you're going to make fun of my whiteness, we're going to have it out." Id. at 1:19-1:22. Shortly before the end of the recording, Fabich says, "You called me Tarzan. Let's have some race fun." Id. at 1:43-1:47.

{¶ 7} On cross-examination, Brown agreed that Fabich had, at one point, been involved in the community in a beneficial way and that he had known Fabich for quite a number of years. (Tr. at 55-56.) However, when asked if it was safe to say that he did not particularly care for Fabich, Brown said he did not know how to answer. (Tr. at 54.) Brown testified that he did not recall having offered any insult to Fabich but, even after the video was played repeatedly, claimed not to have heard the portion of the video where Fabich referenced having been called names because he was white. (Tr. at 45, 65-71.)

{¶ 8} The next witness to testify was Brian Waderker, who lives directly across North Monroe Avenue from Fabich. (Tr. at 90.) Waderker testified that he was awakened inside his home (the windows were open) by the sound of people yelling racial slurs. (Tr. at 91-92.) He looked out the window to see if everything was okay, heard what Fabich was saying, and decided to start recording, shooting the video that became City Exhibit 1. (Tr. at 92-93.) Waderker testified that the interaction between Fabich and Brown had probably been occurring for about five minutes before he started recording. (Tr. at 93.) Waderker, who had known Fabich and Brown as neighbors for many years, said he felt "a little disappointed" by what he heard Fabich saying. (Tr. at 93, 96.) Waderker confirmed that he heard Fabich call Brown "Nigger Brown" and tell him to "go back to [his] plantation." (Tr. at 93-95.) He also agreed that Fabich said, "If you're going to call me Tarzan, I'm going to call you Nigger Brown." (Tr. at 100.) Waderker said that he found the slavery references to be somewhat threatening but that he was mostly disappointed and did not, based on what he heard, feel compelled to involve himself in an altercation. (Tr. at 103-04, 107-08.)

{¶ 9} The final witness for the City was Dana Moessner, who also lives on North Monroe Avenue and, like Brown, was on the Near East Area Commission. (Tr. at 109.) Moessner said the incident began as he and Brown were standing together near the residence next door to Fabich and that Fabich began the incident by calling Brown "Nigger Brown" before Brown had said anything. (Tr. at 111.) Moessner testified that, based on his facial expressions, Brown appeared shocked, surprised, and bewildered. (Tr. at 112-13.) Moessner said that Brown did not get physically aggressive or move toward Fabich even though Fabich was being very verbally abusive, and Moessner was appalled by what he heard Fabich say. (Tr. at 123-24, 129.) Moessner testified that neither he nor Brown responded verbally to Fabich. (Tr. at 111-13, 120-21.)

{¶ 10} Fabich was the last witness to testify and the only witness to testify for the defense. (Tr. at 180.) He explained that he also lives on North Monroe Avenue and that, on the day in question, he had been driving around purchasing various shrubberies to plant at his home. (Tr. at 180, 191.) Fabich testified that he was engaged in unloading these plants from his car in front of his house when Brown told him, "Tarzan, get your white ass back in the house." (Tr. at 193.) Fabich testified that "Tarzan" is a derogatory term for a white person living in a predominantly black community and that he knew this because Brown had spelled it out for him on prior occasions and because Fabich had looked it up. (Tr. at 195, 201-02, 212.) Fabich said that there had been bad feelings between him and Brown for some time prior to the events underlying the case. (Tr. at 212.) Fabich said the "Tarzan" remark set him off and that he was not fully cognizant of what he was saying during the interaction with Brown as he continued to place his shrubberies. (Tr. at 196-97.) He agreed that the video did not show the alleged "Tarzan" remark by Brown and opined that that was "convenient." (Tr. at 209-10.) He testified that though he felt the "Tarzan" remark was intended to put him in his place, it did not justify calling Brown the n-word and that he regretted having done...