State v. Snyder

155 Ohio App.3d 453

2003-Ohio-6399

801 NE 2d 876

2003-Ohio-6399

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

No. 1-03-41.

Court of Appeals of Ohio, Third District, Allen County.

Decided December 1, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jana E. Gutman, Allen County Assistant Prosecuting Attorney, for appellee. William F. Kluge, for appellant.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

THOMAS F. Bryant, Presiding Judge.

{¶ 1} Defendant-appellant, Geoffrey D. Snyder ("Snyder"), appeals from the judgment of conviction and sentence of five years to community control of the Court of Common Pleas of Allen County for the charge of importuning, pursuant to R.C. 2907.07(E)(2).

{¶ 2} On September 10, 2002, Investigator Jeff Kinkle of the Lima Police Department logged on to the Internet and entered a chat room, using Yahoo Instant Messenger, under the screen name "Sarah 420 Hottie." Investigator Kinkle had created a fictitious profile for the screen name that designated "Sarah 420 Hottie" as a 14-year-old girl from Lima, Ohio. The screen name had been assumed as part of a Lima Police Department sting operation on importuning. Later that same day, a subject, using the screen name "Man That Heals," logged on and entered the same chat room. "Man That Heals" initiated a conversation, via Instant Messenger, with "Sarah 420 Hottie." "Man That Heals" was subsequently identified by police as Snyder, a 36-year-old coroner from Monroe County, Ohio. During the initial Internet conversation, Snyder told "Sarah 420 Hottie" that he was 27 years old and that he liked young girls.

{¶ 3} On September 12, 2002, Snyder logged on to the Internet again and communicated with "Sarah 420 Hottie." During this conversation, Snyder described to "Sarah" various sexual activity that Snyder wished to engage in with her. A potential meeting for Snyder and "Sarah" was also discussed. On September 14, 2002, Snyder again communicated via the Internet with "Sarah 420 Hottie." The conversation included more discussion of sexual activity, including how Snyder was dying to perform oral sex on "Sarah" and that he also wanted to engage in sexual intercourse with her, among other sexual acts. The two also discussed possible times and places to meet.

{¶ 4} Snyder then initiated conversations with "Sarah 420 Hottie" on September 15, 17, 18, 19, and 23, 2002. Finally, on September 25, 2002, a meeting was ultimately arranged between Snyder and "Sarah" to take place on the following day at a restaurant in Lima, Ohio. On September 26, 2002, Snyder arrived at the predetermined location, a Kewpee Restaurant on Bellefontaine Street in Lima, Ohio, and approached a police informant who was posing as "Sarah." Snyder was then arrested by police for the offense of importuning. Upon being interviewed by police, Snyder admitted that he had communicated online with "Sarah 420 Hottie."

{¶ 5} Snyder was indicted on November 15, 2002, for importuning, in violation of R.C. 2907.07(E)(2). On November 19, 2002, Snyder entered a written plea of not guilty. Snyder withdrew this plea and entered a plea of no contest to the charge on May 6, 2003. A sentencing hearing was held on July 1, 2003, and Snyder was sentenced to five years of community control. It is from this judgment that Snyder now appeals, asserting the following two assignments of error:

"The trial court committed an error of law by denying the motion to dismiss and to find sic R.C. Section 2907.07(E)(2) unconstitutional.

"The trial court committed an error of law by denying the motion to dismiss and to find sic R.C. Section 2907.07(E)(2) as applied by Section 2950.01(D)(iv) sic unconstitutional."

{¶ 6} In his first assignment of error, Snyder asserts that R.C. 2907.07(E)(2) should be found unconstitutional, and he sets forth several arguments to support this assertion, including that the statute is void for vagueness, invalid for overbreadth, invalid on First Amendment grounds, violative of the Commerce Clause, and permits the entrapment of innocent citizens by law enforcement officers, thereby violating substantive due process rights.

{¶ 7} R.C. 2907.07(E)(2) provides:

"(E) No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity with the offender when the offender is eighteen years of age or older and either of the following applies:

"(2) The other person is a law enforcement officer posing as a person who is thirteen years of age or older but less than sixteen years of age, the offender believes that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the age the law enforcement officer assumes in posing as the person who is thirteen years of age or older but less than sixteen years of age."

{¶ 8} There is a strong presumption that all legislative enactments are constitutional. State v. Collier (1991), 62 Ohio St.3d 267, 581 N.E.2d 552. "The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt in order to prevail." State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224; see, also, Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d 430, 405 N.E.2d 1047.

{¶ 9} Snyder's first argument is that R.C. 2907.07(E)(2) is void for vagueness. In his brief, Snyder lays out a jumbled argument in which he asserts that there was no solicitation on his part during the instant messaging conversations held between himself and Officer Kinkle. Snyder then goes on to argue that the statute does not limit law enforcement tactics and is overbroad. Lacking in Snyder's argument is any explanation as to why R.C. 2907.07(E)(2) is void for vagueness.

{¶ 10} The proper standard for determining whether a statute is vague is found in Connally v. Gen. Constr. 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. In Connally, the Supreme Court stated that a vague statute is one "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." Connally, 269 U.S. at 391, 46 S.Ct. 126, 70 L.Ed. 322. In Grayned, the Supreme Court distinguished the vagueness and overbreadth doctrines, pointing out that "it is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined," whereas "a clear and precise enactment may nevertheless be `overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned, 408 U.S. at 108, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222.

{¶ 11} Snyder has the burden of showing that the statute is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati (1971), 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214. Snyder has failed to make such a showing.

{¶ 12} Upon our review of R.C. 2907.07(E)(2), we find that it is "neither so vague that men of common intelligence must necessarily guess at its meaning, nor unclearly or imprecisely written. The statute meets the constitutional requirement that a person of ordinary intelligence be given a reasonable opportunity to know what is prohibited and to act accordingly." State v. Phipps (1979), 58 Ohio St.2d 271, 273, 12 O.O.3d 273, 389 N.E.2d 1128. R.C. 2907.07(E)(2) clearly informs a person of reasonable intelligence that adults are prohibited from using a telecommunications device to solicit a minor for sexual activity, even if the alleged minor being solicited is in actuality a law enforcement officer posing as a minor. "Telecommunications device" is defined as "any instrument, equipment, machine, or other device that facilitates telecommunication, including, but not limited to, a computer, computer network, computer chip, computer circuit, scanner, telephone, cellular telephone, pager, personal communications device, transponder, receiver, radio, modem, or device that enables the use of a modem." R.C. 2913.01(Y). This definition clearly sets forth what constitutes a "telecommunications device," and the method by which Snyder was convicted of soliciting a minor is included in the definition.

{¶ 13} Snyder cites State v. Swann (2001), 142 Ohio App.3d 88, 753 N.E.2d 984, as authority for the elements of solicitation. In the Swann case, "solicit" was defined as "to entice, urge, lure or ask." Id. at 89, 753 N.E.2d 984. While Snyder may argue that he did not "solicit" Officer Kinkle during their online conversations, this does not demonstrate that R.C. 2907.07(E)(2) is vague. R.C. 2907.07(E)(2) clearly defines the conduct that is considered to be the offense of importuning. Snyder fails to show that a person of reasonable intelligence would not be able to ascertain from the text of R.C. 2907.07(E)(2) what conduct is prohibited. Rather, Snyder appears to argue that his conduct did not fall within the parameters of R.C. 2907.07(E)(2) because he did not "solicit." We address later in our discussion the affirmative defense of entrapment raised by Snyder.

{¶ 14} There is, however, an additional inquiry that this court must make in determining whether a statute is unconstitutionally vague. That inquiry is whether the statute contains explicit standards as guidance for those who apply them, thereby preventing arbitrary and discriminatory enforcement. Grayned, 408 U.S. at 108, 92 S.Ct. 2294, 33 L.Ed.2d 222. Snyder argues that R.C. 2907.07(E)(2) does not limit the tactics that law enforcement officers are permitted to use in finding violations of the statute. Snyder asserts that...