State v. Young

• Decision Date: 18 June 1980
• Docket Number: Nos. 79-728 and 79-1124,s. 79-728 and 79-1124
• Citation: 406 N.E.2d 499,62 Ohio St.2d 370,16 O.O.3d 416
• Parties: , 16 O.O.3d 416 The STATE of Ohio, Appellant, v. YOUNG, Appellee. The STATE of Ohio, Appellant, v. FORBES et al., Appellees.
• Court: Ohio Supreme Court

Page 370

62 Ohio St.2d 370

406 N.E.2d 499, 16 O.O.3d 416

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

The STATE of Ohio, Appellant, v. FORBES et al., Appellees.

Nos. 79-728 and 79-1124.

Supreme Court of Ohio.

June 18, 1980.

Syllabus by the Court

R.C. 2923.04 fails to establish ascertainable standards of guilt and is, therefore, void for vagueness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Two cases have been consolidated herein. In the one cause (case No. 79-728), defendant-appellee, Carolyn N. Young, was indicted with 23 other individuals for violating R.C. 2923.04, this state's organized crime statute. Following her indictment, appellee moved to dismiss the charge on the basis that R.C. 2923.04 was unconstitutional. The motion was denied by the Court of Common Pleas of Hamilton County. Appellee then entered a plea of no contest to the charge of engaging in organized crime. She was found guilty. The Court of Appeals for Hamilton County held R.C. 2923.04(A)(1), (2), (3) and (5) to be unconstitutional and reversed the conviction and discharged appellee.

In the second cause (case No. 79-1124), defendant-appellees, George L. Forbes Ceasar Moss, James H. Boyd, Carlton Rush, Curtis J. Watkins, Carl Bayer, David E. Cohen, Raymond Bona, Eugene L. Hazen, Thomas Layer, Ernie Mills, and Virgil Shively, were indicted for engaging in organized crime in violation of R.C. 2923.04(A)(1), (2), (3) and/or (5). Upon appellees' motion, and pursuant to a hearing, the Court of Common Pleas of Cuyahoga County declared the statute unconstitutional and dismissed the indictments against appellees. Upon appeal, this determination was affirmed by the Court of Appeals for Cuyahoga County.

The judgments of these two appellate courts were found to be in conflict with the unreported decisions of the Court of Appeals for Summit County in State v. Byars (December 21, 1977, No. 8543) and the Court of Appeals for Fairfield County in State v. Houlihan (November 1, 1978, No. 11 CA 78), and the records of these causes were certified to this court for review and final determination.

Subsequent to certification of both cases, the state of Ohio (hereinafter appellant) moved this court for an order consolidating the two cases, and, on September 12, 1979, the motion was allowed.

Simon L. Leis, Jr., Pros. Atty., Leonard Kirschner, Thomas P. Longano and F. David Albanese, Cincinnati, for appellant in case No. 79-728.

John T. Corrigan, Pros. Atty., and George J. Sadd, Asst. Pros. Atty., for appellant in case No. 79-1124.

Brett Goodson, Cincinnati, for appellee in case No. 79-728.

Berkman, Gordon, Kancelbaum, Levy & Murray, Bernard A. Berkman and J. Michael Murray, Cleveland, for appellees in case No. 79-1124.

PAUL W. BROWN, Justice.

In recent years the growing problem of organized crime has received heightened attention by this state, and indeed by our entire nation. Many legislative bodies, including the United States Congress, have sought to combat these criminal activities through the enactment of legislation designed to reach deep within criminal organizations. To this effect, our General Assembly enacted R.C. 2923.04. We so preface this opinion only to make clear that our examination of this provision relates only to its constitutional posture and is not intended as an indictment of the General Assembly's well-intended motives.

Appellees' primary contention in the instant cause is that the statute is unconstitutionally vague under the Fourteenth Amendment to the United States Constitution. It is well established that criminal statutes are void for vagueness under the Due Process Clause of the Fourteenth Amendment if they fail to contain "ascertainable standards of guilt." Winters v. New York (1948), 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840. See, also, Columbus v. Thompson (1971), 25 Ohio St.2d 26, 30, 266 N.E.2d 571.

We noted last term that "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)." State v. Phipps (1979), 58 Ohio St.2d 271, 273, 389 N.E.2d 1128, 1130. In Connally v. General Construction Co., supra, the United States Supreme Court, at page 391, 46 S.Ct. at page 127, stated:

"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute 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, violates the first essential of due process of law. * * * " (Citations omitted.)

The standard was further examined in Grayned v. Rockford, supra, 408 U.S. at pages 108-109, 92 S.Ct. at pages 2298-2299, wherein it was explained that:

"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 that 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. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. 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."

The statute in question must be reviewed against this constitutional background. ¹ R.C. 2923.04 provides that:

"(A) No person, with purpose to establish or maintain a criminal syndicate or to facilitate any of its activities, shall do any of the following:

"(1) Organize or participate in organizing a criminal syndicate or any of its activities;

"(2) Provide material aid to a criminal syndicate or any of its activities, whether such aid is in the form of money or other property, or credit;

"(3) Manage, supervise, or direct any of the activities of a criminal syndicate, at any level of responsibility;

"(4) Furnish legal, accounting, or other managerial services to a criminal syndicate;

"(5) Commit, or conspire or attempt to commit, or act as an accomplice in the commission of, any offense of a type in which a criminal syndicate engages on a continuing basis;

"(6) Commit, or conspire or attempt to commit, or act as an accomplice in the commission of, any offense of violence;

"(7) Commit, or conspire or attempt to commit, or act as an accomplice in the commission of bribery in violation of section 2921.02 of the Revised Code.

"(B) Whoever violates this section is guilty of engaging in organized crime, a felony of the first degree.

"(C) As used in this section, 'criminal syndicate' means five or more persons collaborating to promote or engage in any of the following on a continuing basis:

"(1) Extortion or coercion in violation of section 2905.11 or 2905.12 of the Revised Code;

"(2) Compelling or promoting prostitution, or procuring in violation of section 2907.21, 2907.22, or 2907.23 of the Revised Code;

"(3) Any theft offense as defined in section 29.13.01 of the Revised Code;

"(4) Any gambling offense as defined in section 2915.01 of the Revised Code;

"(5) Illegal trafficking in drugs of abuse, in intoxicating or spirituous liquor, or in deadly weapons or dangerous ordnance as defined in section 2923.11 of the Revised Code;

"(6) Lending at usurious interest, and enforcing repayment by illegal means;

"(7) Any offense, for the purpose of gain.

"(D) A criminal syndicate retains its character as such even though one or more of its members does not know the identity of one or more other members, and even though its membership changes from time to time."

The complexity of R.C. 2923.04 is readily apparent, and it is therefore necessary to analyze individually the various components of this statute to determine its constitutionality as a whole. For reasons stated hereinafter, it is our considered opinion that such an examination results in the inescapable conclusion that the statute is deficient in at least five respects and, thus, cannot pass constitutional muster.

While this court will attempt to construe the language of a statute in order to sustain its validity, "it must be recognized that a court, in interpreting a legislative enactment, may not simply rewrite it * * *." Seeley v. Expert, Inc. (1971), 26 Ohio St.2d 61, 71, 269 N.E.2d 121, 128. See, also, Crane v. Cedar Rapids & Iowa City Ry. Co. (1969), 395 U.S. 164, 167, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176.

We also note that "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." United States v. Bass (1971), 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488. The standards for vagueness also require more precision in the criminal context, than in other situations, such as in a regulatory context. Salem v. Liquor Control Comm. (1973), 34 Ohio St.2d 244, 246 298 N.E.2d 138.

With these principles of statutory construction in mind we turn to R.C. 2923.04(A). First, in viewing division (A) of R.C. 2923.04, we recognize that a person must act with a "purpose to establish or maintain a criminal syndicate or to facilitate any of its activities," to be brought within the statute's prohibitions. The General Assembly clearly provided a scienter requirement of "purpose" as defined by R.C. 2901.22(A). The statute, however, does not demand that this purpose must be manifested in the...