State v. Dario

• Decision Date: 20 September 1995
• Docket Number: No. C-940844,C-940844
• Citation: 106 Ohio App.3d 232,665 N.E.2d 759
• Court: Ohio Court of Appeals
• Parties: The STATE of Ohio, Appellee, v. DARIO, Appellant.

Page 232

106 Ohio App.3d 232

665 N.E.2d 759

The STATE of Ohio, Appellee, v. DARIO, Appellant.

No. C-940844.

Court of Appeals of Ohio First District, Hamilton County.

Decided Sept. 20, 1995.

Fay D. Dupuis, City Solicitor, Terrence R. Cosgrove and Kevin O. Donovan, Cincinnati, for appellee.

H. Fred Hoefle, Cincinnati, for appellant Edwin Dario.

PER CURIAM.

This appeal follows appellant's conviction for menacing by stalking, in violation of R.C. 2903.211.

The record reveals that appellant and the victim had been cohabiting for approximately three years. On March 14, 1994, when the victim tried to leave the residence, appellant beat her with a coat hanger, threatened to kill her and tried to strangle her. Two weeks later, a quarrel took place during which appellant used a knife to "tear things up" at the residence. On April 24, 1994, while appellant was out of town, the victim left the residence and moved in with some friends. The victim told her friends that she was afraid that appellant would try to kill her.

The same day, appellant called the home where the victim was staying. Later, appellant came to the home and confronted the victim as she and her friend were trying to leave. Appellant blocked the friend's car, pounded on the car window and screamed at the victim. Appellant left but returned later that evening. When the victim stated that she did not want to see appellant again, he threatened to ruin her career and told her she was "finished."

Appellant appeared in the lobby of the bank where the victim was employed the following day. Because she did not want a scene at work, the victim directed appellant outside the building. Appellant threatened to go back inside the bank and cause a scene. He left only after the victim agreed to meet appellant at a counselor's office. The victim later called the counselor and said that she would not participate in any meeting with appellant.

On April 26, 1994, appellant left flowers on the victim's doorstep with a note which stated "I'll do anything to get you back." The following day, appellant called the victim at work and stated that he would "get her back." The victim made it clear that the relationship was over. Subsequently, appellant left more flowers and a letter for the victim.

Appellant called the home in which the victim was staying on April 28, 1994. The victim again told appellant that the romance was over. The victim testified, "I thought he would potentially kill me. He had tried before. There had been physical abuse in our relationship. I was scared for my life."

On May 1, 1994, the victim signed a complaint and affidavit charging appellant with menacing by stalking. Following a bench trial, appellant was found guilty as charged and sentenced as appears of record. Appellant raises six assignments of error for our review.

Appellant's first assignment of error alleges that R.C. 2903.211, Ohio's antistalking statute, is unconstitutionally vague and overbroad. Initially, we note that there is a strong presumption in favor of the constitutionality of statutes. State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224; State v. Bertke (Aug. 10, 1988), Hamilton App. No. C-870524, unreported, 1988 WL 83491. The party challenging a statute must prove that it is unconstitutional beyond a reasonable doubt. Id.; Hilton v. Toledo (1980), 62 Ohio St.2d 394, 16 O.O.3d 430, 405 N.E.2d 1047. Where there is more than one possible interpretation of a statute, the court must construe the statute so as to save it from constitutional infirmities. State v. Sinito (1975), 43 Ohio St.2d 98, 72 O.O.2d 54, 330 N.E.2d 896.

Bearing in mind these general principles, we turn to appellant's argument that the antistalking statute is void for vagueness. The vagueness doctrine, which is premised on the due process provision of the Fourteenth Amendment, ¹ requires a statute to give "fair notice of offending conduct." A statute is void for vagueness if it " 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' * * * [or if] it encourages arbitrary and erratic arrests and convictions." Papachristou v. Jacksonville (1972), 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (quoting United States v. Harriss [1954], 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996). A criminal statute must define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 908. The Supreme Court of Ohio stated in State v. Tanner (1984), 15 Ohio St.3d 1, 3, 15 OBR 1, 2-3, 472 N.E.2d 689, 691:

"Three 'values' rationales are advanced to support the 'void for vagueness' doctrine. * * * These values are first, to provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute; second, to preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints; and third, to ensure that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited."

The Constitution demands more clarity of laws which threaten to inhibit constitutionally protected conduct. Grayned v. Rockford (1972), 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227-228. A statute is not void solely because it could have been drafted more precisely. State v. Dorso (1983), 4 Ohio St.3d 60, 4 OBR 150, 446 N.E.2d 449; State v. Bertke, supra. If a statute specifies no standard of conduct and is vague in all its applications, then it is unconstitutional for vagueness. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362; State v. Anderson, supra.

R.C. 2903.211 provides in pertinent part:

"(A) No person by engaging in a pattern of conduct shall knowingly cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.

" * * *

"(C) As used in this section:

(1) "Pattern of conduct" means two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents."

Appellant argues that R.C. 2903.211 is unconstitutionally vague because the phrases "pattern of conduct" and "closely related in time" are so "loosely defined" that the statute gives neither reasonable notice to ordinary citizens of what is prohibited nor reasonable standards for those charged with its enforcement. As a result, appellant argues, the statute chills or inhibits the exercise of constitutional rights.

The elements of menacing by stalking, R.C. 2903.211, are: (1) by engaging in a pattern of conduct, (2) to knowingly, (3) cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person. State v. Davidson (June 28, 1995), Montgomery App. No. 14638, unreported, 1995 WL 396455. The statute defines "pattern of conduct" as "two or more actions or incidents closely related in time." Words in statutes are to be read in context and accorded their ordinary meanings. R.C. 1.42; State v. Bertke, supra.

A statute that is vague in some applications can be salvaged by a scienter requirement. Hoffman Estates, supra, 455 U.S. at 499, 102 S.Ct. at 1193, 71 L.Ed.2d at 372. The level of intent required by a statute can mitigate any perceived vagueness, both facial and as applied. Id. R.C. 2903.211 requires that the offender "knowingly cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person." "Knowingly" is one of the culpable mental states defined in R.C. 2901.22(B), which states:

"A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist."

Taking the statute as a whole, we hold that "pattern of conduct" is sufficiently defined as "two or more actions or incidents." The language is simple and easily understood. One action or incident is not sufficient to invoke the statute. The phrase "closely related in time," while it may have a variety of shades of meaning depending upon the context of its use, is not unduly vague as used in the statute. The statute does not attempt to define the exact time frame within which the two or more actions or incidents must occur. However, in failing to set forth a time frame, R.C. 2903.211 is not different from other statutes which leave equally vexing questions unanswered. The question of whether the actions or incidents are "closely related in time" is a question best reserved for the trier of fact considering the evidence in the context of all the circumstances in the case. See Connecticut v. Culmo (1993), 43 Conn.Supp. 46, 642 A.2d 90. Any ambiguity in the phrase "closely related in time" is not sufficient to render its meaning incomprehensible to persons of ordinary intelligence.

Further, the statute requires that the offender act knowingly. In order to be convicted under the statute, the offender must be aware that his conduct will probably cause the other person to believe the offender will cause him or her physical harm or mental distress. The scienter requirement vitiates any claim that the statute's purported vagueness could mislead a person of ordinary intelligence into misunderstanding what is prohibited. Viewing the statute in its entirety, we hold that a person of ordinary intelligence would be able to discern what conduct is prohibited. The statute on its face does not implicate speech or expression or freedom of movement, it criminalizes conduct...