State v. Cornwell

776 N.E.2d 572

149 Ohio App.3d 212

2002 Ohio 5178

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

No. 00-C.A.-223.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided September 23, 2002.

Dionne Almasy, Youngstown City Prosecutor, and Anthony J. Farris, Chief Assistant Prosecutor, for appellee.

Samuel G. Amendolara, Youngstown, for appellant.

WAITE, Judge.

{¶ 1} This timely appeal arises from the conviction of Sean Cornwell, appellant, in Youngstown Municipal Court for violating a loud-music ordinance. Appellant argues on appeal that the ordinance is unconstitutionally vague and overbroad and violates the First Amendment. For the following reasons, we overrule appellant's assignment of error and affirm the judgment of the trial court.

{¶ 2} On June 2, 2000, appellant was cited for a violation of former Youngstown Municipal Ordinance ("Ord.") 539.07(b)(1). This ordinance has since been substantially amended, but at the time appellant was cited the ordinance stated as follows:

{¶ 3} "No person shall play any radio, music player or an audio system in a motor vehicle at such volume as to disturb the quiet, comfort or repose of other persons or at a volume which is plainly audible to persons other than the occupants of said vehicle."

{¶ 4} On September 25, 2000, appellant's counsel made an oral motion to dismiss the charge on constitutional grounds. The court denied the motion, and appellant immediately entered into a Crim.R. 11 plea agreement. Appellant pleaded no contest to the charge. The court determined that this was appellant's fourth offense for the same crime, and sentenced him to 60 days in jail and a $600 fine. Appellant filed this timely appeal on October 17, 2000.

{¶ 5} Appellant presents a single assignment of error for our review:

{¶ 6} "The trial court erred by entering judgment against appellant since Section 539.07 of the Youngstown Municipal Ordinances is unconstitutional pursuant to the First, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution."

{¶ 7} Appellant raises three issues regarding the constitutionality of Ord. 539.07(b)(1). We begin our review by noting that all "legislation enjoys a presumption of constitutionality." State v. Thompson (2001), 92 Ohio St.3d 584, 586, 752 N.E.2d 276. Any doubts about the constitutionality of a statute should be resolved in favor of a construction that upholds its validity. State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 446 N.E.2d 449.

{¶ 8} Ord. 539.07(b)(1) contains two distinct limitations on the sound level of audio equipment in an automobile. The first provision prohibits maintaining the audio system in a car "at such a volume as to disturb the quiet, comfort or repose of other persons." The second provision prohibits using the audio system "at a volume which is plainly audible to persons other than the occupants of said vehicle." Appellant was charged with playing "loud and disturbing music from an automobile" in violation of Ord. 539.07(b)(1). This charge encompasses both provisions of Ord. 539.07(b)(1). Appellant focuses exclusively on the phrase "plainly audible" in the second part of Ord. 539.07(b)(1). Based on the record, it appears that the trial court was justified in convicting appellant under the first provision found in Ord. 539.07(b)(1). Since we determine that the first part of Ord. 539.07(b)(1) is constitutionally sound and provides ample justification for appellant's conviction, it is not necessary for us to consider the constitutionality of the second part of the ordinance in this appeal.

{¶ 9} The record plainly reflects that appellant pleaded no contest to the loudmusic violation. A plea of no contest is an admission of the facts set forth in the complaint or indictment. State v. Bird (1998), 81 Ohio St.3d 582, 584, 692 N.E.2d 1013. Therefore, appellant admitted that he was playing loud and disturbing music in and from his automobile so as to violate Ord. 539.07(b)(1).

{¶ 10} Appellant's first argument asserts that the loud-music ordinance is impermissibly vague. "[A]n enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. Rockford (1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222.

{¶ 11} "Under the vagueness doctrine, which is premised on the Fourteenth Amendment due-process requirement that a `law give fair notice of offending conduct,' a statute is void for vagueness if it `"fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" * * * [or if] it encourages arbitrary and erratic arrests and convictions.' Papachristou v. Jacksonville (1972), 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115-116 (quoting United States v. Harriss [1954], 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989)." Cincinnati v. Thompson (1994), 96 Ohio App.3d 7, 24, 643 N.E.2d 1157.

{¶ 12} In Dorso, supra, the Ohio Supreme Court was faced with a "void for vagueness" challenge of a Cincinnati noise ordinance. The court was asked to determine whether the phrase "to disturb the peace and quiet" was so subjective and dependent on the personal sensitivities of the listener that, essentially, the ordinance provided no measurable standard of conduct. 4 Ohio St.3d at 63, 4 OBR 150, 446 N.E.2d 449.

{¶ 13} The Dorso court stated:

{¶ 14} "[W]e construe the Cincinnati ordinance at issue to prohibit the playing of music, amplification of sound, etc., in a manner which could be anticipated to offend the reasonable person, i.e., the individual of common sensibilities. Specifically, we find the ordinance to proscribe the transmission of sounds which disrupt the reasonable conduct of basic human activities, e.g., conversation or sleep. Our construction of the ordinance does not permit the imposition of criminal liability upon a party whose conduct disturbs only the hypersensitive. Thus, the standard hereby adopted vitiates the claimed vagueness of the ordinance." Id. at 63-64, 4 OBR 150, 446 N.E.2d 449.

{¶ 15} Many other courts have held that noise statutes that are based on the "reasonable person" standard are sufficiently clear to withstand a "void for vagueness" challenge. Kovacs v. Cooper (1949), 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Kelleys Island v. Joyce (2001), 146 Ohio App.3d 92, 765 N.E.2d 387; Edison v. Jenkins (June 7, 2000), 5th Dist. No. CA893, 2000 WL 873692; State v. Boggs (June 25, 1999), 1st Dist. No. C-980640, 1999 WL 420108; State v. Linares (1995), 232 Conn. 345, 655 A.2d 737; Price v. State (Ind.1993), 622 N.E.2d 954 Beaufort v. Baker (1993), 315 S.C. 146, 432 S.E.2d 470; Madison v. Baumann (1991), 162 Wis.2d 660, 470 N.W.2d 296.

{¶ 16} Additionally, the fact that Ord. 539.07(b)(1) does not define the phrase "disturb the quiet, comfort, or repose" does not render the ordinance impermissibly vague. This phrase is substantially synonymous with "disturbing the peace." Statutes that prohibit "disturbing the peace" are construed, if possible, to apply only to conduct that is actually intended to create a disturbance and to exclude conduct that would only be disturbing to an unduly sensitive person. Dorso, 4 Ohio St.3d at 64, 4 OBR 150, 446 N.E.2d 449.

{¶ 17} "`The ter[m] "disturb the peace" * * * [has] long been understood to mean disruption of public order by acts that are themselves violent or that tend to incite others to violence. Thus, one may be guilty of disturbing the peace * * * if he engages in "tumultuous" conduct, i.e., violent conduct that * * * endangers public safety or order. He may also be guilty of disturbing the peace through "offensive" conduct if by his actions he * * * incites others to violence or engages in conduct likely to incite others to violence.'" State v. Starsky (1970), 106 Ariz. 329, 331, 475 P.2d 943, quoting In re Bushman (1970), 1 Cal.3d 767, 773, 83 Cal.Rptr. 375, 463 P.2d 727.

{¶ 18} The offense of "disturbing the peace" has been understood, from its common-law origin up to the present, to include a wide variety of conduct that destroys or threatens public order and tranquility. United States v. Woodard (C.A.7, 1967), 376 F.2d 136, 141. Whether conduct is deemed to "disturb the peace" is measured by the reasonableness of the conduct as viewed in the light of the surrounding facts and circumstances. Id.; Dorso, 4 Ohio St.3d at 64, 4 OBR 150, 446 N.E.2d 449.

{¶ 19} There seems to be no significant difference between part one of Ord. 539.07(b)(1) and the statute that was upheld in Dorso. Therefore, for the reasons set forth in Dorso, appellant's "void-forvagueness" argument is rejected.

{¶ 20} Appellant's second argument is that the statute is unconstitutionally overbroad on its face. The overbreadth doctrine is a very narrow concept applied only where First Amendment rights are at stake. Cleveland v. Trzebuckowski (1999), 85 Ohio St.3d 524, 528, 709 N.E.2d 1148.

{¶ 21} "A court may strike down an overly broad government enactment in its entirety, even if the party before the court has not engaged in activities protected by the First Amendment, `"if in its reach it prohibits constitutionally protected conduct."' Cleveland v. Trzebuckowski (1999), 85 Ohio St.3d 524, 528, 709 N.E.2d 1148, quoting Grayned v. Rockford (1972), 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231. The [overbreadth] doctrine allows such challenges because if an overly broad enactment is left in place, other persons may refrain from exercising their constitutionally protected rights for fear of criminal sanctions. Village of Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 634, 100 S.Ct. 826, 835, 63 L.Ed.2d 73, 85-86. Overbreadth, however, is `manifestly strong medicine' that is employed `sparingly, and only as a last resort.' Broadrick v. Oklahoma (1973), 413 U.S. 601, 613, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830, 841." Junction 615, Inc. v. Ohio Liquor Control Comm. (1999), 135...