Opinion
Nos. 90 CRB 29096 A, 90 CRB 29096 B.
Decided April 19, 1991.
Melanie J. Reising, Assistant City Prosecutor, for the state.
H. Louis Sirkin, for the defendant.
These matters came before this court on February 26, 1991 for a trial to the bench after the defendant waived in writing his prior demand for a jury trial. This court overruled both the defendant's motion to dismiss and his amended motion to dismiss, along with the state's motion to dismiss or in the alternative to make definite and certain. All pretrial motions were overruled based on State v. McNamee (1984) 17 Ohio App.3d 175, 17 OBR 306, 478 N.E.2d 843.
Defendant was charged by the State of Ohio with violating R.C. 2907.07 (importuning) and R.C. 2907.09 (public indecency) as a result of the actions that the defendant allegedly engaged in on or about August 13, 1990 at Ault Park in Cincinnati, Hamilton County, Ohio. For the reasons set forth in this judgment order, defendant is found not guilty of importuning (90 CRB 29096 A) and guilty of public indecency (90 CRB 29096 B).
Facts
Cincinnati Police Officer Randy Webb of District 2 was working a "covert" detail in plain clothes on August 13, 1990 at the address of 3645 Observatory Avenue (Ault Park) in the Hyde Park area of Cincinnati, Hamilton County, Ohio. Officer Webb's first contact with the defendant was at approximately 10:00 p.m. when the defendant approached Officer Webb and struck up a conversation. The following is a summary of the conversation between Officer Webb and the defendant:
Defendant — What are you into?
Officer — I like a lot of things.
Defendant — Have you been to the park before?
Officer — I have been to Ault Park before.
Defendant — Is there any action at Ault Park?
During the first verbal exchange between the arresting officer and the defendant, Officer Webb observed that defendant's pants were unzipped and that the defendant was fondling and/or stroking himself in or about the crotch area. Officer Webb's testimony was that the defendant's hands were through the zipper portion of his pants.
After a short period of time, Officer Webb walked to a less frequented and more secluded area of Ault Park, followed by the defendant. Defendant made the following comments or observations to Officer Webb, which comments or observations are summarized as follows:
1. Defendant asked Officer Webb whether he had ever been involved in group things in the park;
2. Defendant made a statement to Officer Webb that he found it very exciting with three or four people; and
3. Defendant asked Officer Webb why the two of them shouldn't go back into the woods to have some fun.
Officer Webb further testified that during the second verbal encounter with the defendant, defendant obviously had an erection of his penis and was masturbating himself. Defendant testified that he did have an erection of his penis on the day in question and that he may have been touching his penis when he was engaged in various conversations with Officer Webb.
As a result of the conversations and actions of the defendant that were observed by Officer Webb, defendant Donald Wayne Laney, Jr. was placed under arrest and charged with violating R.C. 2907.07 (importuning), and R.C. 2907.09 (public indecency).
Legal Analysis
Defendant was charged with violating subsection (B) of the importuning statute (R.C. 2907.07), which states as follows:
"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."
The initial issue for this court to decide is whether the communications by the defendant to Officer Webb were obscene or indecent. The Supreme Court of the United States has repeatedly held that the First Amendment guarantees of free speech do not extend to obscene speech. See Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. The tests for determining whether speech or material is obscene were enunciated by the Supreme Court of the United States in the case of Miller v. California (1973), 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, 431, as follows:
"The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest * * *; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." See, also, Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Sable Communications of California Inc. v. Federal Communications Comm. (1989), 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93.
In reviewing the conduct identified in Paris Adult Theatre I v. Slaton, supra, i.e. two films entitled "Magic Mirror" and "It All Comes Out In The End" which had scenes of simulated fellatio, cunnilingus and group sex encounters, which conduct the Georgia Supreme Court characterized as "hard core pornography" and Miller v. California, supra, i.e., brochures for four "adult" books, which brochures consisted of pictures and drawings very explicitly depicting men and women in groups of two or more engaged in a variety of sexual activities, with genitals often prominently displayed, it is obvious that Donald Wayne Laney, Jr.'s conversation with Officer Webb could not be characterized as obscene.
If the language that the defendant used was not obscene but only indecent, that language can only be regulated by the state of Ohio if that language or expression is likely to inflict injury or the utterance of that language is likely to provoke the average person to an immediate retaliatory breach of the peace. See Cincinnati v. Karlan (1974), 39 Ohio St.2d 107, 68 O.O.2d 62, 314 N.E.2d 162; State v. Hoffman (1979), 57 Ohio St.2d 129, 11 O.O.3d 298, 387 N.E.2d 239; Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; and Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284. In determining whether this defendant's language, or any other similar-type language is fighting words, and as such restricted speech, one must look at the circumstances of such utterance. See Lewis v. City of New Orleans (1974), 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214. In addition to reviewing the circumstances of the uttered speech, there is also a two-prong test for determining whether words which are spoken are also "fighting words": (1) The speech must, considered objectively, be abusive and insulting rather than a communication of ideas; and (2) it must actually be used in an abusive manner in a situation which presents an actual danger of a breach of the peace. See Collin v. Smith (N.D.Ill. 1978), 447 F. Supp. 676, affirmed (C.A.7, 1978), 578 F.2d 1197, certiorari denied (1978), 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264.
In 1990, the First District Court of Appeals decided two free speech cases where the defendants were charged with disorderly conduct for the language which was spoken. A review of those two cases would reveal that the language used by those defendants was as rude, abusive, offensive, derisive, vulgar, insulting, crude, profane, and opprobrious as the language spoken by Donald Wayne Laney, Jr., but the First District Court of Appeals held that the language used in those two cases was protected speech under the First and Fourteenth Amendments to the United States Constitution.
The first case decided by our court of appeals was State v. Maxson (1990), 66 Ohio App.3d 32, 583 N.E.2d 402, where the court of appeals reversed a disorderly conduct conviction. In that case, the trial court found the defendant guilty of disorderly conduct for engaging in the following colloquy with a Cincinnati police officer:
"I am tired of this fucking shit. You're not going to get away with this. I am just tired of this fucking shit."
The second case decided by the First District Court of Appeals is State v. Hampton (1990), 66 Ohio App.3d 30, 583 N.E.2d 400. In that case the court of appeals reversed a trial court's judgment of conviction because the defendant engaged in the following discourse with a Cincinnati police officer:
"Just because you've got a fucking badge you think you can fuck with people"; and "* * * fuck you and your gun, money talks so I'll walk."
Based on the cases cited above, this court holds as a matter of law that the language the defendant engaged in with Officer Webb on August 13, 1990 is protected speech under the First and Fourteenth Amendments to the United States Constitution.
Although the defendant's speech is protected, there is the remaining issue of whether the defendant's solicitation of Officer Webb was offensive. The Supreme Court of Ohio, in the case of State v. Phipps (1979), 58 Ohio St.2d 271, 12 O.O.3d 273, 389 N.E.2d 1128, held that R.C. 2907.07 (importuning) is not unconstitutionally vague. The court stated at 277, 12 O.O.3d at 277, 389 N.E.2d at 1134, when such a solicitation was not protected:
"* * * When a person `knows' that the person solicited will be offended, or the person does so recklessly and heedlessly without regard to the consequences, such solicitations are likely to provoke the average person to retaliation and thereby cause a breach of the peace." See, also, State v. Phipps (Nov. 12, 1980), Hamilton App. No. C-790828, unreported.
Defendant's solicitation of Officer Webb is similar to the fact pattern previously before the First District Court of Appeals in the case of State v. DeFelice (Nov. 23, 1977), Hamilton App. No. C-76736, unreported. The First District Court of Appeals held that Gene DeFelice did not recklessly solicit an undercover police officer when that solicitation was preceded by suggestive physical contact and conversation, and the officer responded with little meaningful protest.
For the reasons stated in this judgment order, the defendant, Donald Wayne Laney, Jr., is found not guilty of the importuning charge that the state of Ohio has filed against him.
The remaining charge pending against the defendant is that of public indecency. That R.C. 2907.09 states in pertinent part as follows:
"(A) No persons shall recklessly do any of the following, under circumstances in which his or her conduct is likely to be viewed by and affront others, not members of his or her household:
"* * *
"(3) Engage in conduct which to an ordinary observer would appear to be sexual conduct or masturbation."
The defendant, in support of his amended motion to dismiss the charge of public indecency, cites the sole case of United States v. Russell (1973), 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, and West Publishing Company's first headnote to this case, as follows:
"Where undercover narcotics agent who was investigating defendant and his confederates for illicitly manufacturing a drug offered them essential ingredient which, although difficult to obtain, was legal to possess and was obtainable, and where criminal enterprise of unlawfully manufacturing and processing the drug was already in process, agent's contribution of the ingredient to such criminal enterprise did not violate fundamental fairness, shocking to universal sense of justice, mandated by the due process clause of the Fifth Amendment."
West Publishing Company's third headnote states as follows:
"Neither fact of deceit nor fact that Government officers or employees afford opportunities or facilities for commission of offense will defeat a prosecution; rather, it is only when Government's deception actually implants criminal design in mind of defendant that defense of entrapment comes into play."
In Ohio, entrapment occurs when a police officer plants in the mind of the defendant the original idea or purpose, thus furnishing from the start the incentive (moving force) to commit an offense that the defendant had not considered and which he would not have carried out except for that incentive (moving force). If the defendant did not himself conceive of committing the offense, and if it was suggested to him by the police officer for the purpose of causing his arrest and prosecution, the defendant must be found not guilty. As such, the whole criminal idea and the purpose of the crime must originate with the police, not the defendant, for the defendant to affirmatively establish the defense of entrapment. See Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; State v. Milbern (Feb. 26, 1987), Montgomery App. No. 9720, unreported, 1987 WL 7046; and State v. McDonald (1972), 32 Ohio App.2d 231, 61 O.O.2d 252, 289 N.E.2d 583.
Ohio law does not recognize, as a legal defense, that law enforcement authorities merely afforded opportunities or facilities for the commission of an offense. See State v. Dutton Drugs, Inc. (1965), 3 Ohio App.2d 118, 32 O.O.2d 204, 209 N.E.2d 597, and Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. The law permits a police officer to go as far as to suggest an offense and to provide the opportunity for the defendant to commit the offense. If the defendant is already disposed to commit the offense and acts pursuant to a criminal idea or purpose of his own, then there is no entrapment and the defendant can be found guilty. This defendant has proved no set of facts or circumstances in the case before this court which would demonstrate that he was illegally entrapped into committing the offense of public indecency.
Based on the above citation and authorities, this court finds as a matter of law that the state of Ohio did not entrap the defendant into committing the offense of public indecency, that Officer Webb's conduct was not so outrageous as to violate any standards of fairness or that the defendant's constitutional rights pursuant to the Fifth Amendment were violated, and that the state of Ohio did prove beyond a reasonable doubt that the defendant engaged in public indecency on or about August 13, 1990.
For the reasons also stated in this opinion, defendant is found guilty of public indecency.
Judgment accordingly.