State v. Romage

• Decision Date: 06 March 2014
• Docket Number: Nos. 2012–1958,2012–2042.,s. 2012–1958
• Citation: 7 N.E.3d 1156,138 Ohio St.3d 390
• Court: Ohio Supreme Court
• Parties: The STATE of Ohio, Appellant, v. ROMAGE, Appellee.

138 Ohio St.3d 390

7 N.E.3d 1156

The STATE of Ohio, Appellant,

v.ROMAGE, Appellee.

Nos. 2012–1958, 2012–2042.

Supreme Court of Ohio.

Submitted Oct. 9, 2013.

Decided March 6, 2014.

Held Unconstitutional

R.C. 2905.05(A)

Syllabus of the Court

Ohio's child-enticement statute, R.C. 2905.05(A), is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of constitutionally protected activity.

Richard C. Pfeiffer Jr., Columbus City Attorney, Lara N. Baker–Moorish, City Prosecuting Attorney, and Melanie R. Tobias, Director of Criminal Appeals Unit, for appellant.

Riddell Law, L.L.C., Douglas E. Riddell Jr., and Bridget Purdue Riddell, Columbus, for appellee.

Ron O'Brien, Franklin County Prosecuting Attorney, Steven L. Taylor, Chief Counsel, Appellate Division, and Laura R. Swisher, Assistant Prosecuting Attorney, urging reversal for amici curiae Ohio Prosecuting Attorneys Association and Franklin County Prosecuting Attorney Ron O'Brien.

Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant State Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.

LANZINGER, J.

{¶ 1} In this case, we must determine the constitutionality of R.C. 2905.05(A), Ohio's statute that defines the crime of child enticement. We hold that the statute is unconstitutional and affirm the judgment of the Tenth District Court of Appeals.

I. Introduction

{¶ 2} Appellee, Jason Romage, was charged with criminal child enticement, a violation of R.C. 2905.05(A). On October 18, 2010, a Columbus police officer filed a complaint in the Franklin County Municipal Court that alleged that Romage, “without privilege to do so, knowingly solicit[ed a] child under fourteen years of age * * * to accompany [him], * * * without the express or implied permission of the parent, guardian, or legal custodian of the child.” The complaint specifically alleged that he had asked a child to carry some boxes to his apartment in exchange for money, conduct allegedly constituting a violation of R.C. 2905.05(A). Romage entered a not-guilty plea.

{¶ 3} Before trial, Romage filed a motion to dismiss the complaint attacking the criminal child-enticement statute on grounds that it was overbroad. Romage cited decisions of appellate courts in Ohio that had struck down R.C. 2905.05(A) or substantially similar city ordinances for the same reason. See State v. Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 18 (2d Dist.); Cleveland v. Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035, 2009 WL 2462647, ¶ 7–9, 16. The trial court agreed and dismissed the complaint.

{¶ 4} The Tenth District Court of Appeals upheld the judgment of the trial court, holding that R.C. 2905.05(A) is unconstitutional because it “sweeps within its prohibitions a significant amount of constitutionally protected activity.” 10th Dist. Franklin No. 11AP–822, 2012-Ohio-3381, 974 N.E.2d 120, ¶ 14. The court determined that the statute's use of the term “solicit” was the problem, since “[t]he common meaning of that term encompasses ‘merely asking.’ ” Id. at ¶ 10.

{¶ 5} The Tenth District certified that its judgment conflicted with the judgment of the First District Court of Appeals in State v. Clark, 1st Dist. Hamilton No. C–040329, 2005-Ohio-1324, 2005 WL 678565. We agreed that a conflict exists on the issue whether R.C. 2905.05(A) is unconstitutionally overbroad. 134 Ohio St.3d 1465, 2013-Ohio-553, 983 N.E.2d 366. We also accepted the state's discretionary appeal. 134 Ohio St.3d 1467, 2013-Ohio-553, 983 N.E.2d 367.

II. Analysis

{¶ 6} The state, as appellant, argues that the court of appeals erred in its judgment because R.C. 2905.05(A) may be interpreted as being constitutional by applying a narrow definition of the word “solicit” or by severing that word from the statute. Romage maintains that even without the word “solicit,” R.C. 2905.05(A) sweeps within its prohibitions a significant amount of innocent activity protected by the First Amendment. He argues that the statute would require rewriting to be made constitutional, which this court cannot do.

Burden of proof in a facial challenge

{¶ 7} We acknowledge at the outset that enactments of the General Assembly enjoy a strong presumption of constitutionality. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas, 9 Ohio St.2d 159, 161, 224 N.E.2d 906 (1967). Thus, a statute will be upheld unless proven beyond a reasonable doubt to be unconstitutional. State v. Warner, 55 Ohio St.3d 31, 43, 564 N.E.2d 18 (1990), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Facial challenges present a higher hurdle than as-applied challenges because, in general, for a statute to be facially unconstitutional, it must be unconstitutional in all applications. Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.

{¶ 8} An exception to the general rule of presumed constitutionality is recognized for laws so broadly written that they “may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.” Members of Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). This exception is known as the overbreadth doctrine. For a statute to be facially invalid on overbreadth grounds, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Id. at 801, 104 S.Ct. 2118.

“A clear and precise enactment may * * * be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” [ Grayned v. Rockford ], 408 U.S. [104,] 114, 92 S.Ct. [2294,] 33 L.Ed.2d [222 (1972) ]. In considering an overbreadth challenge, the court must decide “whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.” Id., 408 U.S. at 115, 92 S.Ct. at 2302, 33 L.Ed.2d at 231.

Akron v. Rowland, 67 Ohio St.3d 374, 387, 618 N.E.2d 138 (1993). A statute will be invalidated as overbroad only when its overbreadth has been shown by the defendant to be substantial. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). We recognize that in construing legislative enactments, courts are bound to interpret them in such a way that they are constitutional, if it is reasonably possible to do so. State ex rel. Dickman:State ex rel. Jackman.

The purpose and effect of the criminal child-enticement statute

{¶ 9} The statute at issue in this case, R.C. 2905.05(A), provides:¹

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor's lawful duties in that capacity.

(Emphasis added.)

{¶ 10} In other words, anyone other than the legal custodian of a child, those listed in subsection (A)(2), or those who have the legal custodian's express permission who asks a child under 14 to go with him or her risks a criminal charge. Undoubtedly, R.C. 2905.05(A) has an admirable purpose, which is “to prevent child abductions or the commission of lewd acts with children.” Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 17. We have held that “protection of members of the public from sexual predators and habitual sex offenders is a paramount governmental interest.” State v. Cook, 83 Ohio St.3d 404, 406, 700 N.E.2d 570 (1998). Certainly, the safety and general welfare of children is even more deserving of governmental protection. But a statute that defines criminal conduct should not include what is constitutionally protected activity. Even though the state has a legitimate and compelling interest in protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected expression and activity is unconstitutionally overbroad. Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). R.C. 2905.05(A) is such a statute. Although the statute uses the word “knowingly,” the word modifies “solicit.” The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act.

{¶ 11} Romage argues that this statute criminalizes many innocent acts, and in so arguing, he specifically points to the statute's use of the word “solicit.” “The common, ordinary meaning of the word ‘solicit’ encompasses ‘merely asking.’ ” State v. Carle, 11th Dist. Ashtabula No. 2007–A–0008, 2007-Ohio-5376, 2007 WL 2909750, at ¶ 17, citing Black's Law Dictionary 1427 (8th Ed.2004). R.C. 2905.05(A) fails to require that the prohibited solicitation occur with the intent to commit any unlawful act, and there is no requirement that the offender be aggressive toward the victim. With respect to those who are not specificallyexempted (i.e., legal custodians, those with permission from a legal custodian, and those listed under R.C. 2905.05(A)(2)), the statute prohibits anyone from asking any child to accompany the person in any manner and for any reason. The statute's broad...