Opinion
No. 2015–CA–27.
06-10-2016
STATE of Ohio, Plaintiff–Appellee v. Virgil J. VADUVA, Defendant–Appellant.
Ronald C. Lewis, Xenia, OH, for plaintiff-appellee. Charles E. McFarland, New Castle, KY, for defendant-appellant.
Ronald C. Lewis, Xenia, OH, for plaintiff-appellee.
Charles E. McFarland, New Castle, KY, for defendant-appellant.
OPINION
WELBAUM, J.
{¶ 1} Defendant-appellant, Virgil J. Vaduva, appeals from his conviction in the Xenia Municipal Court after a jury found him guilty of panhandling in violation of § 648.12(b)(13) of the Xenia Code of Ordinances (hereafter "XCO § 648.12(b)(13)"). For the reasons outlined below, Vaduva's conviction will be reversed and the matter will be remanded for a new trial.
Facts and Course of Proceedings
{¶ 2} On February 13, 2015, Vaduva was cited for violating XCO § 648.12(b)(13), which prohibits the act of panhandling within 20 feet of an entrance or exit of any public facility. At his arraignment, Vaduva pled not guilty to the panhandling charge, advised the trial court that he wanted to represent himself at trial, and signed a written waiver of his right to counsel. After multiple pretrial hearings, the matter proceeded to a jury trial on March 26, 2015, during which Vaduva continued to represent himself pro se.
{¶ 3} During trial, the City provided testimony from one of the officers who cited Vaduva, Xenia Police Sergeant Jeff Osburn. Osburn testified that on the day in question, he received information from detectives that an individual, later identified as Vaduva, was standing in front of the Xenia City Hall building on East Market Street, holding a cardboard sign and asking people for money. Osburn testified that upon being alerted to this, he looked out the window and personally observed Vaduva's conduct for himself. Thereafter, Osburn and another officer, Captain David Pazynski, made a copy of the panhandling ordinance and walked outside to speak with Vaduva.
{¶ 4} At this point in the proceedings, the City played a video that was recorded and narrated by Vaduva on the day in question. The video documented the series of events that led to Vaduva being cited for panhandling. At the beginning of the video, Vaduva aimed the video camera at himself and showed that he was standing outside Xenia's City Hall building. He then explained that it was his intention to violate Xenia's panhandling ordinance by requesting money in front of that building for purposes of challenging the constitutionality of the ordinance. Vaduva also pointed the camera to a cardboard sign that he was holding, which displayed the handwritten message: "HELP THE POOR NEED $ FOR FOOD." Vaduva then stated that he was going to donate all the money he collected to charity.
{¶ 5} After his introductory speech, Vaduva aimed the video camera at several people walking by him while he asked if they "could spare a couple of dollars." The video showed fifteen different encounters where Vaduva either asked for or accepted money from people walking by. During six of those encounters, Vaduva either mentioned that he was collecting money for charity, "to help people out," or that the money was going to benefit "people in need." During the remaining nine encounters, Vaduva requested money without stating that it was for charity or people in need.
{¶ 6} One of the encounters shown on the video was with Sergeant Osburn and Captain Pazynski. During that encounter, Vaduva asked the officers if they would "give a couple bucks to charity." In response, Pazynski advised Vaduva that he was violating Xenia's panhandling ordinance. Pazynski then showed Vaduva a written copy of the ordinance, explained the ordinance to him, and asked if he understood it. Vaduva replied that he was familiar with the ordinance and that he believed it was unconstitutional. The officers then stated that if Vaduva did not leave they would have to cite him for the violation. Vaduva, however, explained that he was not going to leave and that he was waiting to be cited for the offense so that he could challenge the constitutionality of the panhandling ordinance in court.
{¶ 7} After giving Vaduva a warning, the officers left the scene to prepare a citation. Meanwhile, Vaduva continued asking people for money in front of the City Hall building. A few minutes later, the officers returned with a citation charging Vaduva with a fourth-degree misdemeanor for violating the panhandling ordinance. At the end of the video, a written caption appeared on the screen advising that Vaduva had collected $41.98 that day. The caption also decried the criminal nature of his conduct.
{¶ 8} Sergeant Osburn testified that the video was an accurate portrayal of what had occurred on the day in question. Osburn further testified that he measured Vaduva's distance from the doors of the City Hall building and that Vaduva was standing within 20 feet of the doors.
{¶ 9} Following Osburn's testimony and the admission of the video into evidence, the City rested. Vaduva then moved for a Crim.R. 29 acquittal on grounds that the City failed to establish that he engaged in panhandling as that term is defined in the ordinance. Specifically, Vaduva claimed that the definition of "panhandling" requires the money requested to be for his personal benefit, not a charity. The trial court disagreed with Vaduva's interpretation of the panhandling definition and overruled his motion.
{¶ 10} Thereafter, in his defense, Vaduva called Captain Pazynski to testify as if on cross-examination. Vaduva inquired whether Pazynski remembered asking Vaduva what charity the money would be donated to after he issued the citation. Pazynski responded that he did not recall that conversation. The trial court then allowed Vaduva to replay the video for the jury. After playing the video, Vaduva rested.
{¶ 11} During closing arguments, the City recited the definition of "panhandling" in XCO § 604.01 to the jury and advised the jury that the definition required it to prove either a request for personal financial assistance or a request for money. In doing so, the City implied that a request for money satisfied the definition whether or not the money was for Vaduva's personal use. Vaduva objected to the City's interpretation of the definition and the trial court overruled his objection. The City then went on to state that it had satisfied every element of the panhandling offense because it had shown that Vaduva requested money within twenty feet of a public facility.
{¶ 12} After closing arguments, the trial court provided the jury with written jury instructions that included the following instruction:
Before Virgil J. Vaduva can be found guilty of "Panhandling" the City of Xenia must establish beyond a reasonable doubt the following:
1) On or about February 13, 2015
2) In Xenia, Greene County, Ohio
3) Virgil J. Vaduva
4) Did recklessly solicit for panhandling
5) Within 20 feet of the entrance or exit of any public facility.
Charge by Court to Jury (Mar. 26, 2015), p. 2.
{¶ 13} The trial court's jury instructions provided the definition of "panhandling" in XCO § 604.01, which is: "To request verbally, in writing, or by gesture or other actions, money, items of value, a donation, or other personal financial assistance." No further instructions were provided to the jury with respect to the panhandling definition.
{¶ 14} After deliberating, the jury found Vaduva guilty of the panhandling offense. Vaduva then filed a motion to vacate the jury verdict on grounds that the City failed to establish that he engaged in "panhandling" as defined in XCO § 604.01. Specifically, Vaduva argued that the phrase "or other personal financial assistance" in the definition indicates that the money he requested had to be for his personal use, not a charitable donation.
{¶ 15} On March 30, 2015, the trial court issued a written decision overruling Vaduva's motion to vacate. In its decision, the trial court found that the plain language of the panhandling definition does not require the money requested to be for personal use because the adjective "personal" in the definition only modifies the phrase "financial assistance" and not "money, items of value [or] a donation." The trial court then sentenced Vaduva to a suspended thirty-day jail term on the condition that Vaduva completes 100 hours of community service within 90 days and has no future violations within two years. The trial court also ordered Vaduva to pay a $500 fine and court costs.
{¶ 16} Vaduva now appeals from his conviction, raising three assignments of error for review. First Assignment of Error
{¶ 17} Vaduva's First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN DENYING DEFENDANT VADUVA'S RULE 29 MOTION AND MOTION TO VACATE THE JURY VERDICT.
{¶ 18} Under his First Assignment of Error, Vaduva contends the trial court erred in overruling his Crim.R. 29 motion for acquittal and motion to vacate on grounds that it misinterpreted the language of the panhandling definition in XCO § 604.01 so as to include no personal use element. According to Vaduva, the definition of "panhandling" requires requests for money to be for the requestor's personal use, and he claims that his requests for money did not qualify as "panhandling" because he was requesting money for a charity. As a result of the alleged misinterpretation, Vaduva claims that the City failed to establish an essential element of the panhandling offense and that the weight of the evidence does not support his conviction.
Interpretation of "Panhandling" in XCO § 604.01
{¶ 19} "The interpretation of a statute or ordinance is a question of law for the court that requires us to employ a de novo standard of review." (Citations omitted.) Miamisburg v. Wood, 137 Ohio App.3d 623, 625, 739 N.E.2d 410 (2d Dist.2000). Accordingly, we afford no deference to the trial court's interpretation. Salgado v. Montgomery Cty. Sheriff, 2d Dist. Montgomery Nos. 26502, 26572, 2015-Ohio-3387, 2015 WL 5000131, ¶ 9.
{¶ 20} That said, "[i]f the language is clear and unambiguous, we must apply it as written." State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9. "A statute is ambiguous when it is reasonably susceptible to more than one meaning." State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 38, citing State v. Jordan, 89 Ohio St.3d 488, 492, 733 N.E.2d 601 (2000). " ‘ "[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." ’ " Straley at ¶ 10, quoting State v. Young, 62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). Therefore, in interpreting criminal statutes, we must, strictly construe them against the state and liberally construe them in favor of the accused. Wood at 625–626, 739 N.E.2d 410, citing State v. Hill, 70 Ohio St.3d 25, 31, 635 N.E.2d 1248 (1994). The same rule is applicable to criminal ordinances. Id., citing Vermilion v. Stevenson, 7 Ohio App.3d 170, 454 N.E.2d 965 (6th Dist.1982), paragraph one of the syllabus.
{¶ 21} As previously noted, Vaduva was convicted of panhandling in violation of XCO § 648.12(b)(13), which provides: "No person shall solicit for panhandling in any of the following manners: * * * Within 20 feet of the entrance or exit of any public facility." Again, the term "panhandling" is defined in the Code as: "To request verbally, in writing, or by gesture or other actions, money, items of value, a donation, or other personal financial assistance." XCO § 604.01.
{¶ 22} Vaduva contends that to qualify as "panhandling" under the definition in XCO § 604.01, an individual must request funds for his or her personal use. In support of this claim, Vaduva points to the phrase "or other personal financial assistance" in the definition. Vaduva claims that the word "other" links the modifier "personal" to the previously listed items in the definition, i.e., "money, items of value, [and] a donation." Therefore, Vaduva maintains that he did not engage in panhandling because he was requesting money for a charity, not himself.
{¶ 23} The trial court, on the other hand, found that the conjunctive "or" in the definition creates alternative ways to "panhandle" and, as a result, the word "personal" only modifies the phrase "financial assistance," and not "money, items of value [and] a donation." As a result, the trial court held that the plain language of the definition does not require the City to prove that Vaduva was requesting money, items of value or a donation for personal gain.
{¶ 24} After a thorough review of the ordinance, we find that both interpretations are reasonable. In turn, the definition of "panhandling" in XCO § 604.01 qualifies as an ambiguous provision since it can reasonably be interpreted to have two different meanings. It is, therefore, appropriate for this court to review and interpret the definition using the relevant rules of statutory construction.
{¶ 25} We have held that "[w]hen there is a listing of specific terms followed by a catchall word or phrase which is linked to the specific terms by the word ‘other,’ and the statute is to be strictly construed, we apply the doctrine of ejusdem generis." Moulton Gas Serv., Inc. v. Zaino, 97 Ohio St.3d 48, 2002-Ohio-5309, 776 N.E.2d 72, ¶ 14. " ‘Under the rule of ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.’ " (Emphasis omitted.) Id., quoting State v. Aspell, 10 Ohio St.2d 1, 225 N.E.2d 226 (1967), paragraph two of the syllabus. "The doctrine is equally applicable to the opposite sequence, where general words are followed by a list of specific ones." (Citation omitted.) State ex rel. Barno v. Crestwood Bd. of Edn., 134 Ohio App.3d 494, 505, 731 N.E.2d 701 (11th Dist.1998)
{¶ 26} In Wood, 137 Ohio App.3d 623, 739 N.E.2d 410, this court applied the doctrine of ejusdem generis to an ordinance provision that is similar to the instant case. The ordinance at issue in Wood defined "litter" as "garbage, trash, waste, rubbish, ashes, cans, bottles, wire, paper, cartons, boxes, automobile parts, furniture, glass, or anything else of an unsightly or unsanitary nature. " (Emphasis added.) Id. at 625, 739 N.E.2d 410. We stated that "[i]n defining ‘litter,’ the ordinance * * * lists several specific items, followed by the more general terms, i.e., ‘anything else of an unsightly or unsanitary nature.’ " (Emphasis sic.) Id. at 626, 739 N.E.2d 410. We held that under "the doctrine of ejusdem generis, ‘unsightly or unsanitary’ would essentially modify the specific items previously listed."Id.
{¶ 27} Similar to the definition of "litter" in Wood, which uses the word "else," the definition of "panhandling" in the instant case uses the word "other" to link the phrase "personal financial assistance" to "money, items of value, [and] a donation." In following the doctrine of ejusdem generis, the word "other" causes the phrase "personal financial assistance" to modify the previously listed items. Therefore, "money, items of value, [and] a donation" should be interpreted as being of the same class or character as "personal financial assistance." At the very least, the language in the definition of "panhandling" creates an ambiguity which must be liberally construed in favor of Vaduva. Accordingly, we agree with Vaduva's interpretation and interpret the definition of "panhandling" to require a request for money, items of value, or a donation to be for the requestor's personal use.
Vaduva's Crim.R. 29 Motion
{¶ 28} Crim.R. 29(A) requires a trial court to enter a judgment of acquittal on the charged offense "if the evidence is insufficient to sustain a conviction[.]" A sufficiency of the evidence argument challenges whether the prosecution has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997).
{¶ 29} " ‘An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ " State v. Campbell, 2d Dist. Montgomery No. 26575, 2016-Ohio-598, 2016 WL 685270, ¶ 6, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "The issue of whether a conviction is supported by sufficient evidence is a question of law, which we review de novo." Id., citing Thompkins at 386, 678 N.E.2d 541.
{¶ 30} In ruling on Vaduva's motion for acquittal, the trial court was required to determine whether the City presented adequate evidence of each element of the panhandling offense in question. Again, Vaduva was charged with violating XCO § 648.12(b)(13), which provides: "No person shall solicit for panhandling * * * [w]ithin 20 feet of the entrance or exit of any public facility."
{¶ 31} Vaduva does not dispute that he was asking people for money while standing within 20 feet of a public facility's entrance or exit, as that is clearly demonstrated by the video that was entered into evidence. Rather, Vaduva contends that his conduct does not qualify as panhandling because he was not collecting money for himself, but for a charity. Since we agree with Vaduva's interpretation of the panhandling definition, we must review the evidence admitted by the City and determine whether the trial court should have granted an acquittal in light of the proper definition.
{¶ 32} The video evidence admitted by the City depicts Vaduva explaining that he was going to donate all the money he collected to a local charity. However, nine out of Vaduva's fifteen encounters with people involved him asking if they "could spare a couple of dollars" without mentioning any charity or that he was collecting money for people in need. In addition, the video shows that the handwritten cardboard sign Vaduva was holding did not state that he was acting on behalf of a charity, but instead appeared to be the kind of sign that is often held by beggars. Therefore, the video, viewed in a light most favorable to the prosecution, presents evidence of nine encounters in which he did not request money for charity, despite his initial statement otherwise. Accordingly, we find that even in light of the correct definition of "panhandling," the motion for acquittal was appropriately overruled and that the matter properly went to a jury to determine whether Vaduva engaged in panhandling as that term is defined in XCO § 604.01 and whether Vaduva violated the panhandling restriction in XCO § 648.12(b)(13).{¶ 33} However, as a result of the trial court's misinterpretation of the panhandling definition, the jury was misinformed about what the City had to prove to establish that Vaduva engaged in the act of panhandling. The jury received the misinformation during the City's closing argument when the City advised, over Vaduva's objection, that it only had to demonstrate that Vaduva was requesting money, and that the request did not necessarily have to be for his personal use. The jury instructions did not cure the mistake, but merely provided the definition of "panhandling" in XCO § 604.01 without any further explanation. Thus, the jury instructions essentially omitted an element of the offense, as the jury was not instructed that the request for money, items of value, or a donation had to be for the requestor's personal use.
{¶ 34} A defendant is entitled to jury instructions upon all elements that must be proved to establish the crime with which he is charged. State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980). When the trial court fails to instruct the jury on each element of the charged offense, "an appellate court must review the instructions as a whole and the entire record to determine whether a manifest miscarriage of justice has occurred as a result of the error in the instructions." State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 17, citing Adams at paragraph three of the syllabus.
{¶ 35} After reviewing the record in this case, it is clear that the misinformation provided to the jury during closing arguments and the trial court's omission of the personal use element in its jury instructions created a manifest miscarriage of justice, as the jury was led to believe that one engages in panhandling under the Code by simply making any request for money. Therefore, we sustain Vaduva's First Assignment of error, in part, and reverse his conviction for panhandling in violation of XCO § 648.12(b)(13), but remand the matter for a new trial where the jury is properly instructed on all elements of the panhandling offense at issue.
Second Assignment of Error
{¶ 36} Vaduva's Second Assignment of Error is as follows:
IN ALLOWING A DEFENDANT TO BE PROSECUTED UNDER AN ORDINANCE THAT VIOLATED THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION['S] PROHIBITION OF THE ABRIDGMENT OF FREEDOM OF SPEECH, THE TRIAL COURT ERRED.
{¶ 37} Under his Second Assignment of Error, Vaduva raises a constitutional challenge to XCO § 648.12(b)(13), claiming it violates his freedom of speech as guaranteed by the First Amendment both facially and as applied. Upon reviewing the record, we conclude that Vaduva failed to properly raise his constitutional challenge during the trial court proceedings.
{¶ 38} "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. " ‘[J]ustice is far better served when [the reviewing court] has the benefit of briefing, arguing, and lower court consideration before making a final determination.’ " State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. Nevertheless, reviewing courts have discretion to consider a forfeited constitutional challenge to a statute. Id. at ¶ 16. "Even where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it." In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶ 39} In this case, the record indicates that at a hearing on March 2, 2015, Vaduva requested a trial continuance so that he could further prepare his defense, which he claimed was largely based on a "constitutional approach." After the trial court granted the continuance there was no further discussion or pleading filed concerning Vaduva's constitutional challenge. The matter then proceeded to a pretrial conference on March 23, 2015, during which the City moved to prohibit Vaduva from contesting the constitutionality of the panhandling ordinance at trial. Vaduva, still proceeding pro se, indicated that he wanted to argue at trial that the panhandling ordinance was unconstitutional on free speech grounds, claiming that his act of uttering words on a public sidewalk for money is protected speech. The visiting judge presiding over the pretrial conference granted the City's motion in limine, finding that a jury trial was not the correct forum for Vaduva to raise his constitutional challenge. The visiting judge also suggested that Vaduva obtain legal advice from counsel, which Vaduva rejected.
{¶ 40} Two days later, on March 25, 2015, a second pretrial conference was held before the presiding judge. At that proceeding, the judge indicated it was his understanding that Vaduva wanted to challenge the constitutionality of the panhandling ordinance and advised Vaduva that he had an absolute right to do so. Thereafter, the judge had the following discussion with Vaduva on the record.
THE COURT: * * * I cannot give you legal advice—
THE DEFENDANT: Right.
THE COURT:—but I would just say you may not—you may not be getting to where you want to get—
THE DEFENDANT: Of course.
THE COURT:—so far. Because I believe Judge Barber, who sat in for me Monday, indicated to you, correctly from my perspective, that a—a jury, a jury does not decide the constitutionality or unconstitutionality—
THE DEFENDANT: Right.
THE COURT:—of a law. That's—that's a judicial determination.
THE DEFENDANT: Sure.
THE COURT: If that is your desire—and again, you absolutely have that right to challenge it. I'm not—I want that to be clear. Again, as I said, if that's your goal, you may not be getting to where you want to get.
THE DEFENDANT: Right.
THE COURT: I don't say that critically. I'm just asking you to—
THE DEFENDANT: Of course.
THE COURT:—to perhaps rethink is this—is this an issue I should talk to an attorney about.
THE DEFENDANT: Right. Right.
* * *
So your Honor, that's not my main defense. I have other issues that, you know, I will bring up. This is actually a fairly minor side issue, the constitutionality; but I would like to have the freedom to at least mention it. So if you are not going to allow me to at least mention—because the—I am here today because of a First Amendment issue. That's why I'm here. The reason I—I stood in front of the courthouse with a sign asking people
to donate to charity was because I believe this is a First Amendment right. So to—you know. To claim like Judge Barber—to claim that I may not bring up the First Amendment concern to—to the Court during a trial is—is a little bit—I don't even know how to describe it since that's why I'm here to begin with. So you know, throughout, you know, all the pieces I wrote about this—and I've been very honest and open to everyone about, you know why I'm here, it is because of First Amendment so—
THE COURT: And again, I want to—the record to be clear, you absolutely have the right to challenge.
THE DEFENDANT: Okay.
THE COURT: My concern is—
THE DEFENDANT: Your concern is that it is not a good defense—
THE COURT: No, no.
THE DEFENDANT:—and I totally get that.
THE COURT: No, not at all. No. You have misinterpreted what I said.
THE DEFENDANT: Okay. I'm sorry. I apologize.
* * *
THE COURT: But I want the record to be abundantly clear I am not telling you it is not a good defense.
THE DEFENDANT: Got it.
THE COURT: What I am making clear—what I'm trying to make clear—is what I believe Judge Barber was trying to make clear and that is that a jury does not determine whether this panhandling statue is unconstitutional because it violates your First Amendment freedom of speech right.
THE DEFENDANT: I totally understand.
THE COURT: A jury does not make that determination.
* * *
So if you want to raise the issue of constitutionality because of violating your First Amendment right to free speech, the only thing I'm saying is that it is not a determination that a jury—
THE DEFENDANT: Yes.
THE COURT:—gets to make.
THE DEFENDANT: Yes.
* * *
THE COURT: So again, but please don't walk out of here saying the judge told me it's not a good defense. That—
THE DEFENDANT: Got it.
THE COURT: That is not what I am saying in any way, shape, or form.
THE DEFENDANT: Got it.
THE COURT: And again, I guess I would encourage you to consider do I perhaps want to consult with an attorney who may be able to advise me as the best way to make sure—
THE DEFENDANT: Sure.
THE COURT:—that issue is properly presented and I'll leave it at that.
THE DEFENDANT: Understood. * * *
Pretrial Trans. (Mar. 25, 2015), p. 2–7.
{¶ 41} Throughout this discussion, the trial court made it clear that Vaduva could challenge the constitutionality of the panhandling ordinance, but that he would have to use an avenue other than a jury trial to raise the issue. The trial court even explained that the issue was a judicial determination. Despite the trial court providing him with this information and encouraging him on several occasions to seek the advice of an attorney, Vaduva continued to represent himself pro se and never raised the issue before the trial court, as he made no oral motion nor filed any written motion discussing the basis or merits of his constitutional challenge. Rather, Vaduva merely requested the trial court to reconsider his ability to raise the issue before the jury, which the court denied.
{¶ 42} We have consistently held that " ‘[l]itigants who choose to proceed pro se are presumed to know the law and correct procedure, and are held to the same standards as other litigants.’ " Preston v. Shutway, 2013-Ohio-185, 986 N.E.2d 584, ¶ 12 (2d Dist.), quoting Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, 2002 WL 1729892, ¶ 20. (Other citation omitted.) A pro se litigant " ‘cannot expect or demand special treatment from the judge, who is to sit as an impartial arbiter.’ " Galluzzo v. Braden, 2d Dist. Champaign No. 2011 CA 30, 2012-Ohio-3980, 2012 WL 3777022, ¶ 8, quoting Burgin v. Eaton, 2d Dist. Montgomery No. 24757, 2011-Ohio-5951, 2011 WL 5822715, ¶ 19. " ‘If the courts treat pro se litigants differently, the court begins to depart from its duty of impartiality and prejudices the handling of the case as it relates to other litigants represented by counsel.’ " Harshman Dynasty, L.L.C. v. Mason, 2d Dist. Montgomery No. 25873, 2014-Ohio-1108, 2014 WL 1337598, ¶ 26, quoting State of Ohio, Crime Victims Reparations Fund v. Pryor, 10th Dist. Franklin No. 07AP–90, 2007-Ohio-4275, 2007 WL 2372361, ¶ 9. (Other citations omitted.)
{¶ 43} Although we have discretion to review Vaduva's waived constitutional challenge for plain error, we defer to the notion that courts should decide constitutional questions only when necessary. (Citations omitted.) State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 28. The Supreme Court of Ohio has consistently held that " ‘when a case can be decided on other than a constitutional basis, we are bound to do so.’ " State v. Swidas, 133 Ohio St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254, ¶ 14, quoting State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71 Ohio St.3d 504, 507, 644 N.E.2d 361 (1994). Because this case can be resolved in the manner discussed under the First Assignment of Error, we decline to review Vaduva's waived constitutional challenge.
{¶ 44} Vaduva's Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 45} Vaduva's Third Assignment of Error is as follows:
THE TRIAL COURT ERRED IN DENYING DEFENDANT VADUVA THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION RIGHT TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.
{¶ 46} Under his Third Assignment of Error, Vaduva contends he did not knowingly, intelligently, and voluntarily waive his right to trial counsel. Because our resolution of Vaduva's First Assignment of Error is dispositive of the appeal, the issues raised under Vaduva's Third Assignment of Error are rendered moot.
{¶ 47} Vaduva's Third Assignment of Error is overruled.
Conclusion
{¶ 48} Having partially sustained Vaduva's First Assignment of Error, his conviction for panhandling is reversed and the matter is remanded for a new trial where the jury is properly instructed on all elements of the panhandling offense at issue.
DONOVAN, P.J., concurs.
HALL, J., concurring.
{¶ 49} I concur. In my view, the definition of panhandling in XCO § 604.01, "to request * * * money * * * or other personal assistance " limits only activity which is directed to result in personal gain. In this case there was sufficient evidence from which the jury could reasonably conclude the appellant sought personal gain by asking for money without discernible and verifiable qualification.
{¶ 50} The trial court correctly instructed the jury on the definition of panhandling as contained in the ordinance. It was the prosecution, in closing, that argued it could prevail by proving either a request for personal gain or for money (regardless of personal gain). That, in my view was an error that was uncorrected in the presence of the jury requiring reversal. Accordingly, I concur, albeit by a slightly different analysis.