State v. Norman

• Decision Date: 19 November 1981
• Citation: 2 Ohio App.3d 159,441 N.E.2d 292
• Parties: , 2 O.B.R. 175 The STATE of Ohio, Appellee, v. NORMAN, Appellant.
• Court: Ohio Court of Appeals

Page 159

2 Ohio App.3d 159

441 N.E.2d 292, 2 O.B.R. 175

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

Court of Appeals of Ohio, Second District, Montgomery County.

Nov. 19, 1981.

Syllabus by the Court

1. R.C. 4737.01, governing the duty of dealers in secondhand articles, is neither vague nor overbroad and, therefore, is constitutional on its face and as applied to a dealer who buys and sells gold, silver, coins, diamonds, jewelry and stamps.

2. The grant of authority to law enforcement officers in R.C. 4737.01 to conduct warrantless inspections of a dealer's records of transactions furthers legitimate state interests and does not violate the constitutional prohibition against unreasonable searches.

Terry L. Lewis, Prosecutor, for appellee.

Gump & Elliott Co., L.P.A., and Dennis E. Gump, Trotwood, for appellant.

BROGAN, Judge.

This case comes before this court pursuant to an appeal from a decision of the Vandalia Municipal Court, Vandalia, Ohio, Criminal Division. The defendant-appellant was charged on April 8, 1980, by a complaint filed in Vandalia Municipal Court, for an alleged violation of R.C. 4737.01. Prior to trial, a motion to dismiss with supportive memorandum was filed on July 7, 1980, which was overruled by the trial court.

At the scheduled trial stipulations were entered and filed on August 29, 1980, which stipulations state:

"1. The defendant, Robert Norman, lives at 4328 Catalpa Dr., Harrison Township, Montgomery County, State of Ohio.

"2. On April 8, 1980 said Robert Norman was a person/dealer who buys and sells gold and silver, coins, scrap gold and silver, diamonds, jewelry and stamps at the above stated address.

"3. On April 8, 1980, Deputy W. Bartlett a duly authorized law enforcement officer of the Montgomery County Sheriffs' Department went to the home of said Robert Norman and requested to inspect his records with regards to the above stated items which Mr. Norman purchases, sells, exchanges or receives.

"4. Robert Norman, on the above stated date, refused to comply with Deputy Bartlett's request.

"5. Deputy W. Bartlett had not requested nor was in possession of a search warrant.

"6. Exhibit A attached hereto is a telephone book advertisement requested by said Robert Norman under coin dealers dated June 14, 1979."

On September 16, 1980, the trial court found the defendant guilty and on July 16, 1981 imposed a $500 fine and costs. From the judgment and sentence of July 16, 1981 defendant-appellant filed a timely appeal.

Appellant contends the motion to dismiss and the memorandum in support of motion to dismiss should have been sustained in that the statute is unconstitutional on its face and the statute is unconstitutional as applied to the facts and stipulations of the case.

The assignments of error are rather ineptly drawn but we will refer to the motion to dismiss filed in the trial court and infer that counsel assigns as error the trial court's refusal to dismiss the complaint for the reason R.C. 4737.01 is unconstitutional in that it is "void for vagueness" and "overbroad."

Appellant contends that he should not be prosecuted under R.C. 4737.01 in that he could not reasonably understand or anticipate that he was a purchaser and seller of gold and silver, coins, scrap gold and silver, diamonds, jewelry and stamps and would fall within the parameters of this statute.

R.C. 4737.01 reads:

"(A) A person purchasing, selling, exchanging, or receiving secondhand articles of any kind, scrap iron, old metal, canvas, rope, branded bottles, junk, or lead pipe, except plow irons, old stoves, and furniture, shall post in a conspicuous place in or upon his shop, store, wagon, boat, or other place of business, a sign having his name and occupation legibly inscribed thereon, and keep a separate book, open to inspection by any law enforcement officer, in which shall be written, in the English language, at the time of the purchase or exchange of such articles, a description thereof, the name, description, and residence of the person from whom purchased and received, and the day and hour when such purchase or exchange was made. Every entry shall be numbered consecutively, commencing with number one.

"(B) Any person, prior to purchasing any secondhand article of furniture or secondhand electrical or gas appliance or equipment for the purpose of resale to the general public, shall demand to examine the seller's driver's license or identification card issued under sections 4507.50 to 4507.52 of the Revised Code and one additional type of card typically used for identification purposes.

"The purchaser shall keep a written record of the number of the license or identification card and the type and number of the other identification card accepted together with the date of purchase, the name and address of the seller, and a description of the article purchased. The purchaser shall retain the written record for at least one year and shall make the record available for inspection by any law enforcement officer at all reasonable times. For the purposes of this division, the purchaser may utilize the written record he is required to keep where applicable under division (A) of this section and add to it the information required by this division." (Emphasis added.)

Appellant contends the terms "secondhand articles of any kind" and "old metal" are constitutionally too vague to be understood by a person of ordinary intelligence to give fair notice that his contemplated conduct is forbidden by the law. In addition, he contends the statute is unconstitutional because it is overbroad in that it sweeps into its net persons who have no intent to commit any crime, i.e., persons who believe they are performing lawful activities.

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222.

Vague laws may trap the innocent by not providing fair warning. Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Coates v. City of Cincinnati (1971), 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 ; Gregory v. Chicago (1969), 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Edwards v. South Carolina (1963), 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697.

Condemned to the use of words, we can never expect mathematical certainty from our language. It will always be true that fertile legal "imagination can conjure up hypothetical cases in which the meaning of * * * [disputed] terms will be in nice question." American Communications Assn. v. Douds (1950), 339 U.S. 382, 412, 70 S.Ct. 674, 691, 94 L.Ed. 925.

When the vice of a statute is its vagueness, the litigant asserting the vagueness defense must demonstrate that the statute in question is vague as applied to the litigant's conduct without regard to its potentially vague application to others. Parker v. Levy (1974), 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439. "A 'perfectly vague ' statute is one which provides 'no ascertainable standard for inclusion or exclusion' and thus is vague in all its applications. See, e.g. Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971); Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). The ordinance in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), made it illegal for 'three or more persons to assemble [on] any sidewalk [and] there conduct themselves in a manner annoying to persons passing by.' Id. at 611-12, 91 S.Ct. at 1686-87. The 'annoying' criterion is not vague merely in the sense that it is an imprecise but comprehensible normative standard; it specifies no standard at all because one may never know in advance what 'annoys some people [but] does not annoy others.' Id. at 614, 91 S.Ct. at 1688. Being 'perfectly' vague, the ordinance in Coates is vague in all its applications and does not present a problem of third-party standing." Tribe, American Constitutional Law (1978), at pages 720-721. (Emphasis sic.)

As a matter of due process, a law is void on its face if it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.

Lanzetta v. New Jersey (1939), 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, involved a New Jersey statute of the type that seeks to control vagrancy. "These statutes are in a class by themselves, in view of the familiar abuses to which they are put * * *. Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these 'vagrancy statutes' and laws against 'gangs' are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided." Mr. Justice Frankfurter's dissent in Winters v. New York (1948), 333 U.S. 507, at page 540, 68 S.Ct. 665, at page 682, 92 L.Ed. 840.

In the First Amendment area, the objectionable aspects of vagueness need not depend upon the absence of fair notice, for the First Amendment's demand for specificity is...