Summary
In Reeder, the defendant and victim were involved in an argument, the defendant jabbed and pushed the victim, used abusive language and threatened to send the victim to jail.
Summary of this case from City of Bellevue v. MeggittOpinion
No. 84-1025
Decided June 19, 1985.
Criminal law — Disorderly conduct — R.C. 2917.11(A)(1) — Constitutional "Turbulent," construed.
O.Jur 3d Criminal Law §§ 8, 2157, 2167.
The term "turbulent" in Ohio's disorderly conduct statute, R.C. 2917.11(A)(1), does not render the statute unconstitutionally vague because the enactment fairly informs a person of ordinary intelligence and understanding what conduct is prohibited by law.
APPEAL from the Court of Appeals for Allen County.
Appellee, William F. Reeder, was involved in an altercation with a customer at appellee's workplace, the Allen County Humane Center. The customer went to the center to obtain a refund for an animal which had died shortly after it was purchased there. An argument ensued and appellee jabbed and pushed the customer, used abusive language, and threatened to send him to jail.
A complaint was filed which alleged disorderly conduct by appellee. Upon consideration of the evidence, the trial court found appellee guilty of disorderly conduct in violation of R.C. 2917.11(A)(1). Specifically, the court noted that appellee at the least acted "reckless[ly]" and that his conduct "at the very least, is turbulent * * *."
On appeal, the court of appeals held that R.C. 2917.11(A)(1) is unconstitutionally vague in that its use of the words "turbulent behavior" does not sufficiently define the prohibited conduct. Inasmuch as the trial court based its finding of guilt, at least in part, on appellee's "turbulent" conduct, the court of appeals reversed the conviction and discharged appellee.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Richard E. Siferd, director of law, for appellant.
William F. Kluge, for appellee.
The portion of Ohio's disorderly conduct statute, R.C. 2917.11, at issue herein provides:
"(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another, by doing any of the following:
"(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior." (Emphasis added.)
We note that the portion of Ohio's disorderly conduct statute at issue herein is very similar to Section 250.2(1)(a) of the Model Penal Code (1974) 584, which uses the synonymous term "tumultuous."
In reversing the conviction, the court of appeals stated that it had previously held that "`* * * the term "turbulent behavior" is not sufficiently definite to inform those of common intelligence of the point at which their conduct becomes impermissible and a violation of the ordinance and is therefore unconstitutionally vague.'" Findlay v. Zink (Aug. 5, 1980), Hancock App. No. 5-79-35, unreported, at 5.
We first note that this case does not concern the prohibited speech-and-expression portion of the statute contained in subdivision (A)(2) which was considered by this court in State v. Hoffman (1979), 57 Ohio St.2d 129 [11 O.O.3d 298]. Rather, the portion challenged today prohibits certain behavior, the definition of which the appellate court found to be unconstitutionally vague.
Under the vagueness doctrine, statutes which do not fairly inform a person of what is prohibited will be found unconstitutional as violative of due process. Connally v. General Constr. Co. (1926), 269 U.S. 385; Columbus v. Thompson (1971), 25 Ohio St.2d 26 [54 O.O.2d 162]. However, "* * * [i]mpossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. De George (1951), 341 U.S. 223, 231-232.
Both parties support their contentions concerning the meaning of "turbulent" by drawing our attention to various dictionary definitions of the word. However, we are completely satisfied that a person of ordinary intelligence and understanding has no difficulty in ascertaining that the legislature did not seek to prohibit stormy seas, turbulent weather or the restless character of mankind. An etymologist or literary scholar would no doubt find a wealth of enjoyment and challenge locked away in the history and derivation of the work "turbulent." The courts however will assume the legislature is using a word in its ordinary meaning and our task is to accord "* * * its common, ordinary and usually accepted meaning in the connection in which it is used * * *." Mutual Bldg. Invest. Co. v. Efros (1949), 152 Ohio St. 369 [40 O.O. 389], paragraph one of the syllabus. See, also, Youngstown Club v. Porterfield (1970), 21 Ohio St.2d 83, 86 [50 O.O.2d 198].
We further note that the General Assembly did not use the word "turbulent" in a vacuum. The legislature included other explicit words in defining what conduct the statute prohibits ( i.e., "fighting," "threatening harm," "violent * * * behavior"). In determining whether a statute fairly informs a reasonable person of what is prohibited, courts should consider the challenged phrase in the context it is used in the law, and not as it stands alone.
In short, a person does not have to engage in guesswork to determine what conduct the General Assembly seeks to prohibit here. The word "turbulent," in the context of Ohio's disorderly conduct statute, refers to tumultuous behavior or unruly conduct characterized by violent disturbance or commotion.
The United States Supreme Court rejected a vagueness challenge to Kentucky's disorderly conduct statute which is similar to Ohio's in Colten v. Kentucky (1972), 407 U.S. 104. The court at 110 noted, inter alia, that "* * * [t]he root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. * * *"
So construed, we find the use of the term "turbulent," in Ohio's disorderly conduct statute, R.C. 2917.11(A)(1), does not render the statute unconstitutionally vague because the enactment fairly informs a person of ordinary intelligence and understanding what conduct is prohibited by law.
Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.
SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.