State v. Phipps

• Citation: 389 N.E.2d 1128,58 Ohio St.2d 271,12 O.O.3d 273
• Decision Date: 06 June 1979
• Docket Number: No. 78-554,78-554
• Parties: , 12 O.O.3d 273 The STATE of Ohio, Appellant, v. PHIPPS, Appellee.
• Court: United States State Supreme Court of Ohio

Page 271

58 Ohio St.2d 271

389 N.E.2d 1128, 12 O.O.3d 273

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

No. 78-554.

Supreme Court of Ohio.

June 6, 1979.

Syllabus by the Court

1. Under R.C. 2907.07(B), persons may not be punished for "solicit(ing) a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicitation is offensive to the other person, or is reckless in that regard," unless the solicitation, by its very utterance, inflicts injury or is likely to provoke the average person to an immediate retaliatory breach of the peace. (Cincinnati v. Karlan, 39 Ohio St.2d 107, 314 N.E.2d 162; and State v. Hoffman, 57 Ohio St.2d 129, 387 N.E.2d 239, approved and followed.)

2. R.C. 2907.07(B) is not void for vagueness in violation of the Fourteenth Amendment to the United States Constitution.

On November 22, 1976, Kenneth Phipps, the defendant-appellee herein, was convicted of the charge of importuning under R.C. 2907.07(B).

The evidence admitted at trial discloses that, on October 27, 1976, the defendant stopped his car at a downtown corner in Cincinnati and said to the only individual standing on a nearby sidewalk, a male adult, "Hop in, let's go have sex." The stranger looked into the back seat and Phipps retorted: "You look paranoid, come on in, I want to suck your dick." After the person got in the car, Phipps made the specific proposal again, along with some other conversation. At this point, the stranger identified himself as a police officer and arrested the defendant. At trial, the officer testified that he was offended by the defendant's remarks. Upon this evidence, Phipps was convicted by the Hamilton County Municipal Court.

Upon appeal, defendant's conviction was reversed. The Court of Appeals found R.C. 2907.07(B) to be in violation of the First Amendment to the United States Constitution, as an overbroad restriction on speech. The court held that Phipps' solicitation was protected speech, and that the prosecution had not established a sufficiently compelling state interest to justify the regulation of this speech activity.

The Court of Appeals also held the importuning statute to be unconstitutionally vague, as denying the defendant the due process rights secured to him by the Fourteenth Amendment.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Thomas A. Luebbers, City Sol., Paul J. Gorman and Dolores Jechura Hildebrandt, Cincinnati, for appellant.

Douglass L. Custis, Cincinnati, for appellee.

LOCHER, Justice.

The state presents two propositions of law concerning the First and Fourteenth Amendments to the United States Constitution for consideration in this cause. In part I, Infra, the state argues that R.C. 2907.07(B) does not violate the Due Process Clause; that is to say, the state maintains that the statute is not void for vagueness, and, therefore provides adequate notice of what is proscribed. In part II, Infra, the state contends that R.C. 2907.07(B) is not overbroad in violation of the Freedom of Speech Clause.

I.

The Court of Appeals found R.C. 2907.07(B) to be vague because the solicitation is not a crime unless the other person finds it offensive. The wording of the statute, the court found, denies the defendant notice of what is proscribed, because the criminal nature of the solicitation depends upon the subjective reaction of the person solicited.

We disagree with the appellate court and hold that R.C. 2907.07(B) is not void for vagueness. While the United States Supreme Court has not always made a clear distinction between the doctrines of overbreadth and vagueness, we believe the proper standard for determining if a statute is vague is found in Connally v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, and Grayned v. Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222. In Connally v. General Construction Co., the Supreme Court stated, 269 U.S. at page 391, 46 S.Ct. at page 127, that a vague statute is one "which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." See Zwickler v. Koota (1967), 389 U.S. 241, 249, 88 S.Ct. 391, 19 L.Ed.2d 444; Cameron v. Johnson (1968), 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182; Colten v. Kentucky (1972), 407 U.S. 104, 110-111, 92 S.Ct. 1953, 32 L.Ed.2d 584; Broadrick v. Oklahoma (1973), 413 U.S. 601, 607, 93 S.Ct. 2908, 37 L.Ed.2d 830. In Grayned v. Rockford, the Supreme Court distinguished the vagueness and overbreadth doctrines, pointing out that it is a basic principle of due process that "an enactment is void for vagueness if its prohibitions are not clearly defined," whereas "(a) clear and precise enactment may nevertheless be 'overbroad' if in its reach its prohibits constitutionally protected conduct." Id., 408 U.S. at pages 108 and 114, 92 S.Ct. at pages 2298 and 2302.

We find R.C. 2907.07(B) to be neither so vague that men of common intelligence must necessarily guess at its meaning, nor unclearly or imprecisely written. The statute meets the constitutional requirement that a person of ordinary intelligence be given a reasonable opportunity to know what is prohibited and to act accordingly. R.C. 2907.07(B) states:

"No person shall solicit a person of the same sex to engage in Sexual activity with the offender, when the offender Knows such solicitation is Offensive to the other person, or is Reckless in that regard." (Emphasis added.)

The operative words of the statute are "sexual activity," "knows," "offensive" and "reckless." The phrase "sexual activity" and the word "knows" are clearly defined in the Revised Code.

The phrase "sexual activity" is defined in R.C. 2907.01(C) as "sexual conduct or sexual contact, or both." R.C. 2907.01(A) defines "sexual conduct" as "vaginal intercourse between a male and female and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(B) defines "sexual contact" as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast, for the purpose of sexually arousing or gratifying either person."

The word "knows" is precisely defined in R.C. 1301.01(Y), which states, in part:

"A person 'knows' or has knowledge of * * * (a) fact when he has actual knowledge of it. 'Discover' or 'learn' or a word or phrase of similar import refers to knowledge rather than to reason to know. * * *"

Similarly, the words "offensive" and "reckless," while not specifically defined in the Revised Code (see R.C. 2901.22(C)), are words commonly understood by men of common intelligence. Webster's Third New International Dictionary defines the word "offensive" as that which is disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness," and that which "calls forth a determination to resist, rebel * * * ." Also, "reckless" is defined as "lacking in caution" or " irresponsible, wild. " Black's Law Dictionary (Rev. 4 Ed.) defines "reckless" as "careless, heedless, inattentive; indifferent to consequences."

With these definitions in mind, it is difficult to conceive of a more clearly and precisely written statute. If a defendant has actual knowledge that the solicitation will be outrageous to the taste and sensibilities of the person solicited, which may cause that person to resist, or the defendant acts heedlessly and indifferently to the consequences, then he has violated R.C. 2907.07(B).

The example given by Presiding Judge Palmer, in dissenting to the appellate court's majority opinion, is instructive with regard to reckless solicitation. He stated:

" * * * If an individual stands outside a church on Sunday morning and solicits sexual activity from each person exiting from the portals, he may not 'know' that the solicitations are offensive to these strangers, but he is certainly acting with heedless indifference to the consequences by perversely disregarding a known risk that such solicitations will be offensive."

II.

The defendant-appellee successfully asserted in the Court of Appeals that R.C. 2907.07(B) is overbroad in that it could conceivably be applied unconstitutionally to others in situations not then before the court. Standing in First Amendment cases to challenge the constitutionality of statutes in such a manner is an exception to traditional standing doctrine and is designed to insulate all individuals from the "chilling effect" that overbroad statutes have upon the exercise of our First Amendment freedoms; Freedman v. Maryland (1965), 380 U.S. 51, 56-57, 85 S.Ct. 734, 13 L.Ed.2d 649; Dombrowski v. Pfister (1965), 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22. The consequences of such a departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute challenged on the ground of overbreadth is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Broadrick v. Oklahoma, supra, 413 U.S. 601, at page 613, 93 S.Ct. 2908, 37 L.Ed.2d 830. Specifically, if this court finds the statute to be overbroad, it may not be applied to the appellee herein until a satisfactorily limiting construction is placed on the legislation. Gooding v. Wilson (1972), 405 U.S. 518, 521-522, 92 S.Ct. 1103, 31 L.Ed.2d 408.

Our inquiry here, therefore, is to determine if R.C. 2907.07(B) is susceptible to application to speech protected by the First Amendment. If we find that it is, we must then determine if the statute is capable of being authoritatively construed so as to apply only to unprotected speech.

The state argues...