State v. Kroner

• Decision Date: 07 September 1988
• Docket Number: Nos. C-870558 and C-870559,s. C-870558 and C-870559
• Citation: 49 Ohio App.3d 133,551 N.E.2d 212
• Parties: The STATE of Ohio, Appellee, v. KRONER, Appellant.
• Court: Ohio Court of Appeals

Page 133

49 Ohio App.3d 133

551 N.E.2d 212

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

Nos. C-870558 and C-870559.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 7, 1988.

Syllabus by the Court

1. R.C. 2905.05, criminal child enticement, is not facially vague because it provides reasonable notice of the conduct it prohibits. Further, since the statute does not criminalize a substantial amount of constitutionally protected speech, it is not overbroad.

2. R.C. 2905.05, the criminal child enticement statute, is not unconstitutional as applied in a case where the defendant drives up to a thirteen-year-old girl, opens the door to his vehicle, exposes his penis to her, and invites her to "go for a ride."

3. Unless it is patent from the record that the trial judge unreasonably ignored the requirements of the applicable sentencing statute, or specific acts or lapses in disregard of the statute are shown, a sentence that is within the penalties provided by law will not be set aside on appeal.

4. Under R.C. 2929.22(E), a trial court may impose a fine in addition to imprisonment upon conviction of a misdemeanor offense where the fine is "specifically adopted to deterrence of the offense or the correction of the offender."

Richard A. Castellini, City Sol., Terrence R. Cosgrove, City Prosecutor, and Julie F. Bissinger, for appellee.

Porter & McKinney and Robert C. Porter III, Cincinnati, for appellant.

PER CURIAM.

Defendant-appellant, James E. Kroner, was convicted of criminal child enticement, R.C. 2905.05, and public indecency, R.C. 2907.09. After a bench trial, the judge sentenced Kroner to one hundred eighty days' imprisonment and fined him $1,000 on the child enticement charge, and to thirty days' imprisonment and a $250 fine on the public indecency charge. The court ordered the sentences to run consecutively.

The evidence at the trial was primarily provided by the victim, a thirteen-year-old girl. The girl testified that, as she was walking down a street near her home in Cincinnati, Kroner drove up to her in a van, opened the passenger door, exposed his penis and invited her to go for "a ride" with him. The girl testified that she refused and Kroner drove off, but that he returned a few minutes later and again asked her, without exposing himself, if she would like to go for a ride.

Kroner admitted asking the girl if she wanted a ride, but testified that he never exposed himself and that he only offered her a ride because he thought she had missed her school bus and needed a ride to school.

Kroner contends in the first of his three assignments of error that the criminal child enticement statute is vague and overbroad. ¹ We have previously held that the statute is not facially vague because it provides reasonable notice of the conduct it prohibits. State v. Bertke (Aug. 10, 1988), Hamilton App. No. C-870524, unreported, 1988 WL 83491.

Beyond this, we find that the statute is not unconstitutional as applied in this case. As we see it, the type of conduct in which Kroner allegedly engaged is precisely the type of conduct the statute was designed to punish. The type of conduct covered by the statute can be ascertained with sufficient ease to avoid discriminatory enforcement by the police. See Smith v. United States (1977), 431 U.S. 291, 309, 97 S.Ct. 1756, 1768, 52 L.Ed.2d 324.

Furthermore, the statute is not overbroad. While the statute criminalizes speech, and therefore implicates First Amendment free speech rights, only a statute which is substantially overbroad should be invalidated. New York v. Ferber (1982), 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113. When a statute is challenged as being overbroad, a court's first task is to determine whether the statute reaches a substantial amount of constitutionally protected activity. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362.

Kroner has reasserted the same scenario that this court rejected in Bertke to demonstrate that the criminal child enticement statute can possibly be construed to impinge on First Amendment rights of free speech. ² The United States Supreme Court has held that statutes are not invalid merely because of the possibility of a single impermissible application. Houston v. Hill (1987), 482 U.S. 451, 458, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398. We hold that the statute does not criminalize a substantial amount of constitutionally protected speech, and that it does not accord the police unconstitutional discretion in enforcement. See State v. Harris (1983), 11 Ohio App.2d 294, 11 OBR 558, 465 N.E.2d 478. Accordingly, we find the statute is not vague or overbroad either facially or as applied to Kroner; therefore, the first assignment of error is overruled.

In the second assignment of error Kroner contends the trial court erred in sentencing him to the maximum possible terms of confinement and in fining him the maximum amounts allowed by law. The first contention Kroner raises is that the trial court erred by not considering the sentencing criteria of R.C. 2929.22. Absent a contrary showing, a judge is presumed to have followed the applicable statute. State v. Gould (1980), 68 Ohio App.2d 215, 216-217, 22 O.O.3d 344, 345, 428 N.E.2d 866, 867.

We find no error in the record before us. Unless it is patent from the record that the judge unreasonably ignored the requirements of the sentencing statute, or specific acts or lapses in disregard of the statute are shown, this court will not reverse a sentence that is within the penalties provided for by law. State v. Brown (Oct. 8, 1986),...