State v. Burnett
| Decision Date | 23 December 1999 |
| Docket Number | 981003,1 |
| Parties | IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO |
| Court | Ohio Court of Appeals |
GEORGE BURNETT, Defendant-Appellant.
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 23, 1999
Fay D. Dupuis, Cincinnati City Solicitor, Terrence R. Cosgrove, Cincinnati Prosecuting Attorney, and Jennifer Bishop, Assistant Prosecutor, for Plaintiff-Appellee,
Bruce F. Thompson, for Defendant-Appellee.
Please note: We have sua sponte removed this case from the accelerated calendar.
Raising three assignments of error, defendant-appellant George Burnett appeals the trial court's judgment convicting him of criminal trespass in violation of R.C. 2911.21.
On February 7, 1998, Burnett was arrested for a drug-related offense in Over-the-Rhine, an area of the city of Cincinnati that had been designated by ordinance as a "Drug-Exclusion Zone."[1] As a result the arrest, Burnett was issued a "Notice of Exclusion" that prohibited him from entering Over-the-Rhine for ninety days. The notice also provided that Burnett would be subject to arrest for criminal trespass if he was found within Over-the-Rhine within the specified ninety-day period.
On February 25, 1998, following his conviction for the drug offense, Burnett was issued a second Notice of Exclusion pursuant to Cincinnati Municipal Code Chapter 755. This notice prohibited Burnett from entering Over-the-Rhine for one year and provided that violation of the exclusion order would subject him to prosecution for criminal trespass.
Thereafter, on June 23, 1998, while Burnett's one-year exclusion remained in effect, police observed him in Over-the-Rhine. As a result, he was arrested and charged with criminal trespass. After the trial court overruled Burnett's motion to dismiss the charge, the case was tried to the bench; Burnett was found guilty as charged. This appeal, in which Burnett raises three assignments of error, followed.
In his second assignment of error, Burnett asserts that the trial court erred in failing to grant his pretrial motion to dismiss the trespass charge, given that the charge was dependent upon his violation of the one-year exclusion notice that was issued pursuant to Cincinnati Municipal Code Chapter 755, an enactment that he contends is unconstitutional.
If Burnett is correct in his assertion that Cincinnati Municipal Code Chapter 755 is unconstitutional, it follows that the Notice of Exclusion issued to him was of no force. And if the exclusion notice was of no effect, Burnett possessed every right to be present in Over-the-Rhine, and no basis for the trespass charge existed. Accordingly, we must examine Burnett's several challenges to the constitutionality of Cincinnati Municipal Code Chapter 755 to determine whether the trial court erred in denying his pretrial motion to dismiss the trespass charge. Before we turn to this examination, we provide a brief history of the law.
In September 1996, in an effort to curb the concentration of drug-related activity associated with specific areas of Cincinnati, the city council modified the Cincinnati Municipal Code by ordaining Chapter 755, entitled "Drug-Exclusion Zones."[2] Chapter 755 permits the council to designate specific areas within the city as drug-exclusion zones based on the higher incidence of drug-related crimes in those areas.[3] To date, the only designated drug-exclusion zone is Over-the-Rhine.[4] Pursuant to this designation, a person arrested within Over-the-Rhine for drug abuse, or any drug-abuse-related activity, is subject to exclusion from the public streets, sidewalks, and other public ways within Over-the-Rhine for a period of ninety days.[5] And where that person is later convicted of the drug offense, he or she is then subject to a second exclusion, which continues for a period of one year.[6] Furthermore, if an excluded person is found in Over-the-Rhine during one of these two exclusion periods, that person is subject to immediate arrest for criminal trespass pursuant to R.C. 2911.21.[7] In addition, Chapter 755 sets forth procedures for the issuance of notices of exclusion, for appealing from the issuance of such notices, and for obtaining variances from the exclusions.
For purposes of clarity, we note that although Chapter 755 contains two distinct exclusion provisions, one applying to individuals arrested in Over-the-Rhine for drug crimes and another applying to individuals convicted of drug crimes, the facts of the instant case implicate only the latter provision, as it was the one-year exclusion that triggered Burnett's arrest for trespass. Accordingly, our holding today is limited solely to a determination of the constitutionality of Chapter 755's one-year exclusion provision for convictions. We make no pronouncement regarding the constitutionality of the ninety-day exclusion for arrests. That issue will be addressed when it is properly before this court.
Burnett contends that the facial overbreadth of Chapter 755 violates the right of peaceable assembly guaranteed by the First Amendment to the United States Constitution and by Section 3, Article I of the Ohio Constitution.[8] Presumably, this challenge contemplates instances wherein an individual wishing to exercise his or her right to assemble peaceably for expressive purposes in Over-the-Rhine is prevented from doing so by virtue of an exclusion order issued pursuant to Chapter 755.
In the context of the First Amendment, the United States Supreme Court has altered its traditional rules of standing to permit attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.[9] Litigants, therefore, may challenge a law not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the law's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.[10] While the Supreme Court has entertained facial-overbreadth challenges in cases involving statutes that, "by their terms," sought to regulate "spoken words," and in cases where statutes, "by their terms, purport[ed] to regulate the time, place, and manner of expressive or communicative conduct,"[11] it has cautioned that application of the overbreadth doctrine to void a law is "strong medicine" that should be employed "sparingly and only as a last resort."[12] Accordingly, the Court has held that "particularly 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."[13]
Chapter 755, by its own terms, does not target speech or expressive conduct; rather, it is a regulation of general conduct. As previously acknowledged, though, there are conceivable instances where the ordinance could affect expressive conduct such as the right of peaceable assembly. Judged in relation to the ordinance's predominantly legitimate application to nonexpressive conduct, however, these instances of encroachment are not substantial and, therefore, do not serve to justify invalidating the entire ordinance. Accordingly, we reject Burnett's overbreadth challenge.
Burnett next asserts that Chapter 755 infringes on his fundamental right to travel in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and in violation of Section 1, Article I of the Ohio Constitution. In response, the state correctly notes that Chapter 755 implicates only intrastate travel, which, unlike interstate travel,[14] has never been officially recognized by the Unites States Supreme Court as a constitutionally guaranteed fundamental right. These facts would not necessarily end the inquiry, however, as many of the federal circuit courts have addressed the question - some holding that intrastate travel is a fundamental right[15] and others holding that it is not.[16] But, given the circumstances of this case, we need not determine whether intrastate travel is a fundamental right because, under either the rational-basis scrutiny appropriate in evaluating impingements on nonfundamental rights or the heightened scrutiny appropriate in evaluating impingements on fundamental rights of this type,[17] Chapter 755's one-year exclusion passes constitutional muster. The city's interest in curbing drug-related activity is significant. And the one-year exclusion from Over-the-Rhine is not only rationally related to this interest, but is a narrowly tailored way of achieving the interest. It is limited not only in duration, but also in geographic scope to an area of the city demonstrated to have a significantly higher incidence of drug-abuse-related crimes than other similarly situated or sized areas of the city, and is triggered only when an individual is convicted of a drug-abuse-related crime committed within that specific area.[18] Moreover, the ordinance permits variances from the exclusion to be granted for reasons such as residence or employment in Over-the-Rhine, or for drug-abuse-related counseling services.[19] Accordingly, we reject Burnett's claims that Chapter 755 violates his right to intrastate travel under the United States and Ohio Constitutions.
In his final constitutional challenge, Burnett contends that, in enacting Chapter 755, the city has impermissibly usurped the state legislature's authority, as conferred by Article II of the Ohio Constitution, to determine the range of...
To continue reading
Request your trial