Columbus v. Fabich , 2020 Ohio 7011 ( 2020 )

[Cite as Columbus v. Fabich, 2020-Ohio-7011.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Columbus, :
Plaintiff-Appellee, :
No. 19AP-441
v. : (M.C. No. 2018CRB-23744)
Sean Fabich, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 31, 2020
On Brief: April F. Campbell, for appellant. Argued: April F.
Campbell.
On Brief: Zachary M. Klein, City Attorney, Bill R. Hedrick,
and Orly Ahroni, for appellee. Argued: Orly Ahroni.
APPEAL from the Franklin County Municipal Court
BRUNNER, J.,
{¶ 1} Defendant-appellant, Sean Fabich, appeals a judgment of the Franklin
County Municipal Court issued on June 27, 2019, following a jury verdict, convicting him
of one count of disorderly conduct and one count of ethnic intimidation and sentencing him
to serve 60 days in jail, 30 days on house arrest, and suspending a further 90 days of jail
time on condition of 2 years of probation. Because we find that the slur commonly known
as the "n-word" is a "fighting word" when uttered under the circumstances in this case, we
affirm Fabich's conviction for disorderly conduct. We further find that plaintiff-appellee's,
City of Columbus's, ethnic intimidation ordinance, as applied to a predicate offense of
disorderly conduct, is constitutional because it does not punish the content of fighting
words but instead punishes the biased motive or reason for the fighting words being uttered
without regard to the content of the words. Fabich's repeated utterance of racially charged
fighting words and other racially charged words demonstrates that a motive underlying the
No. 19AP-441 2
disorderly conduct was racial. Consequently, we affirm Fabich's conviction for ethnic
intimidation as sufficiently supported and not against the manifest weight of the evidence.
We find that the trial court erred by failing to permit Fabich to allocute and plainly erred by
failing to sentence on each offense of conviction. We accordingly decline to address as moot
whether the record supported the trial court's sentencing restriction that Fabich not own
or reside with animals. We overrule Fabich's first, second, third, fourth, and fifth
assignments of error. We sustain his sixth assignment of error. And we find moot his
seventh assignment of error.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 21, 2018, a complainant-victim, Willis Brown, filed a pair of
complaints against Fabich alleging that, on November 1, 2018, Fabich had repeatedly called
Brown, "Nigger1 Brown," and told him to "go back to the plantation." (Nov. 21, 2018
Compls. at 1, 3.) The complaints charged violations of Columbus City Code, Sections
2317.11(A)(2) (disorderly conduct) and 2331.08(A) (ethnic intimidation). Id. Fabich
apparently pled "not guilty" the same day (though the plea form is unsigned and contains
only the typed name and contact information for Fabich's counsel). (Nov. 21, 2018 Plea
Form.)
{¶ 3} Prior to trial, Fabich moved to dismiss the case, arguing that even if the
complaints were taken at face-value, the ordinances that he was charged with violating were
unconstitutional under the First Amendment to the U.S. Constitution. (Apr. 11, 2019 Mot.
to Dismiss.) The City filed a memorandum contra and the parties orally argued the motion
before voir dire on the first day of trial. (May 15, 2020 Memo. Contra; May 20, 2019
Hearing & Voir Dire Tr. at 2-11.) The trial court denied the motion and the case proceeded
to trial. (May 20, 2019 Hearing & Voir Dire Tr. at 2-11.)
{¶ 4} At trial, four witnesses testified and a video showing a portion of the
encounter between Brown and Fabich was introduced as an exhibit.2 The complainant,
Willis Brown, was the first to testify.
1 Because the impact of this word is a question within this case, where it appears as a portion of a direct quote,
we shall repeat the word as it was said. However, in all other instances we shall refer to it as the "n-word."
2 The transcript of the trial that took place beginning on May 21, 2019, was prepared in two consecutively
paginated volumes. Due to the consecutive pagination, we find it unnecessary to cite the volume number and
shall merely reference the relevant page number. For example, (Tr. at 25).
No. 19AP-441 3
{¶ 5} Brown testified that he lived on North Monroe Avenue and was a Near East
Area Commissioner for his neighborhood. (Tr. at 29-34.) Fabich, he said, was a long-time
neighbor who lived on the same street approximately one block away. (Tr. at 37.) Brown
recounted that he and another neighbor, Dana Moessner, were admiring landscaping that
Moessner had done for Fabich's next door neighbor when Fabich pulled up in his car. (Tr.
at 38.) According to Brown, Fabich got out of the car and expressed the opinion that Brown
and Moessner (who was also an area commissioner) were not good commissioners. (Tr. at
40.) Brown said he and Moessner ignored Fabich. Id. Fabich then stated that Brown was
just a "nigger" and that from then on, according to Fabich, his name would be "Nigger
Brown." Id. Brown said Fabich, who was about 20 feet away, repeated the slur many times,
that Brown felt the statements were made in an attempt to provoke him, and that he, in
fact, felt provoked. (Tr. at 40-44.) Brown said he verbally responded, demanding respect,
but did not respond physically. (Tr. at 42-45.) Yet, he admitted that, given the provocation
offered by Fabich, he was tempted to engage physically. (Tr. at 42-44.)
{¶ 6} During Brown's direct testimony, video of a portion of the altercation was
played. (Tr. at 50-52, 88; City's Ex. 1.) The video, recorded from across the street and
through some trees, shows an indistinct figure (whom the parties agree was Fabich) placing
potted plants around his property. (City's Ex. 1 in passim.) The sounds in the video are
somewhat distant and difficult to decipher, but Fabich can be heard to repeatedly say, "Bye
Nigger Brown," "go away, Nigger Brown," and other similar remarks to someone off screen.
Id. in passim. The person off screen (whom the parties apparently do not dispute was Willis
Brown) can be heard shouting back at intervals urging Fabich to "be respectful" and not to
"call people names." Id. at 1:06-1:09, 1:21-1:28. At one point, Fabich tells the person off
screen, "Go back to your plantation." Id. at 0:14-0:21. At another point, he appears to say,
"If you're calling me Tarzan, you're Nigger Brown." Id. at 0:56-1:02. Later he says, "If
you're going to make fun of my whiteness, we're going to have it out." Id. at 1:19-1:22.
Shortly before the end of the recording, Fabich says, "You called me Tarzan. Let's have
some race fun." Id. at 1:43-1:47.
{¶ 7} On cross-examination, Brown agreed that Fabich had, at one point, been
involved in the community in a beneficial way and that he had known Fabich for quite a
number of years. (Tr. at 55-56.) However, when asked if it was safe to say that he did not
No. 19AP-441 4
particularly care for Fabich, Brown said he did not know how to answer. (Tr. at 54.) Brown
testified that he did not recall having offered any insult to Fabich but, even after the video
was played repeatedly, claimed not to have heard the portion of the video where Fabich
referenced having been called names because he was white. (Tr. at 45, 65-71.)
{¶ 8} The next witness to testify was Brian Waderker, who lives directly across
North Monroe Avenue from Fabich. (Tr. at 90.) Waderker testified that he was awakened
inside his home (the windows were open) by the sound of people yelling racial slurs. (Tr.
at 91-92.) He looked out the window to see if everything was okay, heard what Fabich was
saying, and decided to start recording, shooting the video that became City Exhibit 1. (Tr.
at 92-93.) Waderker testified that the interaction between Fabich and Brown had probably
been occurring for about five minutes before he started recording. (Tr. at 93.) Waderker,
who had known Fabich and Brown as neighbors for many years, said he felt "a little
disappointed" by what he heard Fabich saying. (Tr. at 93, 96.) Waderker confirmed that
he heard Fabich call Brown "Nigger Brown" and tell him to "go back to [his] plantation."
(Tr. at 93-95.) He also agreed that Fabich said, "If you're going to call me Tarzan, I'm going
to call you Nigger Brown." (Tr. at 100.) Waderker said that he found the slavery references
to be somewhat threatening but that he was mostly disappointed and did not, based on
what he heard, feel compelled to involve himself in an altercation. (Tr. at 103-04, 107-08.)
{¶ 9} The final witness for the City was Dana Moessner, who also lives on North
Monroe Avenue and, like Brown, was on the Near East Area Commission. (Tr. at 109.)
Moessner said the incident began as he and Brown were standing together near the
residence next door to Fabich and that Fabich began the incident by calling Brown "Nigger
Brown" before Brown had said anything. (Tr. at 111.) Moessner testified that, based on his
facial expressions, Brown appeared shocked, surprised, and bewildered. (Tr. at 112-13.)
Moessner said that Brown did not get physically aggressive or move toward Fabich even
though Fabich was being very verbally abusive, and Moessner was appalled by what he
heard Fabich say. (Tr. at 123-24, 129.) Moessner testified that neither he nor Brown
responded verbally to Fabich. (Tr. at 111-13, 120-21.)
{¶ 10} Fabich was the last witness to testify and the only witness to testify for the
defense. (Tr. at 180.) He explained that he also lives on North Monroe Avenue and that,
on the day in question, he had been driving around purchasing various shrubberies to plant
No. 19AP-441 5
at his home. (Tr. at 180, 191.) Fabich testified that he was engaged in unloading these
plants from his car in front of his house when Brown told him, "Tarzan, get your white ass
back in the house." (Tr. at 193.) Fabich testified that "Tarzan" is a derogatory term for a
white person living in a predominantly black community and that he knew this because
Brown had spelled it out for him on prior occasions and because Fabich had looked it up.
(Tr. at 195, 201-02, 212.) Fabich said that there had been bad feelings between him and
Brown for some time prior to the events underlying the case. (Tr. at 212.) Fabich said the
"Tarzan" remark set him off and that he was not fully cognizant of what he was saying
during the interaction with Brown as he continued to place his shrubberies. (Tr. at 196-97.)
He agreed that the video did not show the alleged "Tarzan" remark by Brown and opined
that that was "convenient." (Tr. at 209-10.) He testified that though he felt the "Tarzan"
remark was intended to put him in his place, it did not justify calling Brown the n-word and
that he regretted having done so. (Tr. at 197, 204-07.) Fabich said that although he insulted
Brown, he repeatedly told Brown to go home because he wanted him to leave, not because
he was intending to provoke a fight. (Tr. at 211-12.)
{¶ 11} During the course of instructing the jury, the trial court gave the following
instruction on causation:
Causation. Cause is an -- is an essential element of the offense.
Cause is an act or failure to act which in a natural and
continuous sequence directly produces the physical harm to
person and without which it would not have occurred.
(Tr. at 245-46.) During deliberations, the jury asked a question, "Does causation always
require/imply physical harm as the definition of caution states?" (Tr. at 255.) At the time
the question was posed, the trial court declined to offer further instructions, despite
argument by the City that physical harm was an inappropriate inclusion in the instruction.
(Tr. at 255-58.) However, on May 28, following further briefing and argument from the
City about the erroneous nature of the instruction, the trial court gave the jury a revised
causation instruction:
Cause is an essential element of the offense. Cause is an act or
failure to act, which, in a natural and continuous -- continuous
sequence, directly produces the inconvenience, annoyance, or
alarm to another by making an offensively coarse utterance,
gesture or display or by communicating unwarranted and
grossly abusive language to any person when the words are
No. 19AP-441 6
likely, by their very utterance, to inflict injury or to provoke the
average person to an immediate breach of the peace and
without which it would not have occurred.
(May 28, 2019 Reinstruction Hearing Tr. at 19.)
{¶ 12} Shortly after the revised instruction was given, the jury reached a verdict
finding Fabich guilty of both ethnic intimidation and disorderly conduct. Id. at 20-21;
May 28, 2019 Verdict Forms.
{¶ 13} On June 26, 2019, the trial court sentenced Fabich. (June 26, 2019
Sentencing Tr.) During the sentencing hearing, the trial court asked if there were any
preliminary matters and the parties indicated there were none. (June 26, 2019 Sentencing
Tr. at 4-5.) However, the trial court did not specifically inquire if Brown or Fabich wished
to say anything and neither Brown nor Fabich was given the opportunity to speak before
the trial court pronounced sentence. Id. at 4-6. On request of the prosecution, Brown was
permitted to speak after the sentence was imposed. Id. at 10. Other than saying "good
morning" at the outset of the proceeding, Fabich remained silent throughout the
sentencing. Id. at 2, in passim.
{¶ 14} The trial court ultimately sentenced Fabich to 60 days in jail (with 17 days of
jail-time credit), 30 days on house arrest, and suspended a further 90 days of jail time on
condition of 2 years of probation. (June 26, 2019 Sentencing Tr. at 5-6; June 27, 2019
Entry.) The trial court did not designate which offense corresponded with which part of the
sentence or pronounce individual sentences for each crime. One of the specified terms of
probation was that Fabich not own any animals or reside where animals are present.
(June 27, 2019 Entry at 2.)
{¶ 15} Fabich now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 16} Fabich presents seven assignments of error for review:
[1.] Fabich's Ethnic Intimidation conviction should be reversed
because it impermissibly regulates content-based speech.
[2.] Fabich's Ethnic Intimidation conviction should be reversed
because the code is constitutionally vague and overbroad.
[3.] Fabich's convictions should be reversed because they are
unconstitutional as applied to him.
No. 19AP-441 7
[4.] The trial court committed reversible error by changing the
jury instructions on the third day of deliberation.
[5.] The evidence against Fabich was legally insufficient and
weighed manifestly against his convictions.
[6.] The trial court abused its discretion by not allowing for
allocution at Fabich's sentencing.
[7.] The trial court abused its discretion by imposing a
probation condition that Fabich not own animals or reside
where animals are present.
III. DISCUSSION
A. First, Second, and Third Assignments of Error - Whether the Ethnic
Intimidation and Disorderly Conduct Ordinances are Unconstitutional,
Especially when Predicated On a Purely Speech-Based Incident
1. Introduction and Caselaw History of Ethnic Intimidation in Ohio
{¶ 17} The ethnic intimidation ordinance, Columbus City Code Section 2331.08, is
an additional offense that can be added to the prosecution of a predicate or underlying
offense where the victim's race, sex, sexual orientation, gender identity or expression, color,
religion, national origin, ancestry, age, disability, familial status or military status is a
motive, reason, or purpose for the offense. This City code section provides:
(A) No person shall violate Sections 2303.13 [assault], 2303.22
[menacing], 2307.06 [sexual imposition], 2309.06 [criminal
damaging or endangering], 2309.07 [criminal mischief],
2311.21 [criminal trespass], 2313.02 [theft], 2313.03
[unauthorized use of a vehicle], 2313.04 [unauthorized use of
property], 2317.03 [riot], 2317.11 [disorderly conduct], 2317.12
[disturbing a lawful meeting], 2323.30 [discharging weapons],
or 2329.01 [littering], of the Columbus City Codes, by reason of
or where one of the motives, reasons or purposes for the
commission of the offense is the victim's race, sex, sexual
orientation, gender identity or expression, color, religion,
national origin, ancestry, age, disability, familial status or
military status.
***
(C) Whoever violates this section is guilty of ethnic
intimidation, a misdemeanor of the first degree. If the
underlying offense which is a necessary element of ethnic
intimidation is itself a misdemeanor of the first degree, then
upon conviction under this section, the court shall impose a
No. 19AP-441 8
mandatory minimum sentence of at least ten (10) days
imprisonment. If the offender has previously been convicted
under either this section or Section 2927.12, Ohio Revised Code
and the underlying offense is a first degree misdemeanor or the
offense resulted in physical harm to any person, then upon
conviction under this section the court shall impose a
mandatory minimum sentence of at least ninety (90) days
imprisonment.
Columbus City Code Section 2331.08(A) and (C).
{¶ 18} The ordinance has a greater number of listed prohibited motives and a
greater number of possible predicate offenses but is otherwise similar to the ethnic
intimidation offense found in Ohio Revised Code Section 2927.12, which provides:
(A) No person shall violate section 2903.21 [aggravated
menacing], 2903.22 [menacing], 2909.06 [criminal damaging
or endangering], or 2909.07 [criminal mischief], or division
(A)(3), (4), or (5) of section 2917.21 [menacing and threats to
damage or trespass via telecommunications harassment] of the
Revised Code by reason of the race, color, religion, or national
origin of another person or group of persons.
(B) Whoever violates this section is guilty of ethnic
intimidation. Ethnic intimidation is an offense of the next
higher degree than the offense the commission of which is a
necessary element of ethnic intimidation.
R.C. 2927.12.
{¶ 19} In 1992, the Supreme Court of Ohio considered the constitutionality of the
state crime of ethnic intimidation under R.C. 2927.12, based on a predicate offense of
aggravated menacing. State v. Wyant, 64 Ohio St. 3d 566, 566-67 (1992). In that case, the
Court held that R.C. 2927.12 was facially unconstitutional because it criminalized not only
the predicate criminal act but also the thought, motive, or reason for the action. Wyant, 64
Ohio St. 3d at 577, in passim. The Wyant decision was justified, in significant part, by the
United States Supreme Court decision in R. A. V. v. St. Paul, 505 U.S. 377 (1992), and the
Supreme Court of Wisconsin decision in State v. Mitchell, 169 Wis. 2d 153, 485 N.W.2d 807
(1992). The Supreme Court of Ohio summarized those cases and explained its reasoning
in Wyant as follows:
The United States Supreme Court recently addressed the
constitutionality of another so-called "hate crimes" law. R.A.V.
No. 19AP-441 9
v. St. Paul (1992), 505 U.S. , 112 S. Ct. 2538, 120 L. Ed. 2d 305.
The St. Paul ordinance reads:
" 'Whoever places on public or private property a symbol,
object, appellation, characterization or graffiti, including, but
not limited to, a burning cross or Nazi swastika, which one
knows or has reasonable grounds to know arouses anger, alarm
or resentment in others on the basis of race, color, creed,
religion or gender commits disorderly conduct and shall be
guilty of a misdemeanor.' " Id., 505 U.S. at , 112 S. Ct. at 2541,
120 L. Ed. 2d at 315.
The St. Paul ordinance is aimed at specific conduct; that is,
conduct which will arouse anger, alarm or resentment on the
basis of race, color, creed, religion or gender. The Minnesota
Supreme Court rejected an overbreadth claim because the
ordinance had been construed to include only unprotected
"fighting words." Despite this construction, the United States
Supreme Court found the ordinance facially unconstitutional
under the First Amendment. Justice Scalia, writing for the
court, said that even the few limited categories of unprotected
speech are not "entirely invisible to the Constitution." Id. at ,
112 S. Ct. at 2543, 120 L. Ed. 2d at 318. The government may
not regulate even fighting words based on a hostility toward the
message they contain. Any proscription of fighting words must
not be based on content. The court observed that the St. Paul
ordinance went beyond content discrimination to viewpoint
discrimination.
Quite recently the Supreme Court of Wisconsin struck down
the Wisconsin "hate crimes" statute as "unconstitutionally
infring[ing] upon free speech." State v. Mitchell (1992), 169
Wis. 2d 153, , 485 N.W.2d 807, 808. The Wisconsin law is a
penalty-enhancement statute with some similarities to R.C.
2927.12. The Wisconsin statute does not use the phrase "by
reason of," but instead permits a penalty enhancement for
certain crimes when the defendant "[i]ntentionally selects" the
victim "because of the race, religion, color, disability, sexual
orientation, national origin or ancestry" of the victim. Wis.Stat.
939.645 (1989-90). Despite this wording, the Wisconsin court
said: "[The statute] is expressly aimed at the bigoted bias of the
actor. Merely because the statute refers in a literal sense to the
intentional 'conduct' of selecting, does not mean the court must
turn a blind eye to the intent and practical effect of the law --
punishment of offensive motive or thought." Id. at , 485
N.W.2d at 813. The analysis by the Wisconsin court applies
with greater force to the Ohio statute. R.C. 2927.12 refers to the
No. 19AP-441 10
actor's reasons in direct, rather than indirect, terms and is
more clearly aimed at punishment of bigoted thought.
R.C. 2927.12 constitutes a greater infringement on speech and
thought than either the St. Paul or Wisconsin "hate crimes"
laws. R.C. 2927.12 specifically punishes motive, and motive
alone, not action or expression. The Ohio statute singles out
racial and religious hatred as a viewpoint to be punished. It is
the regulation of viewpoint that most particularly violates the
Ohio and federal Constitutions.
Wyant, 64 Ohio St. 3d at 578-79.
{¶ 20} However, the United States Supreme Court granted writs of certiorari in both
Mitchell and Wyant and reversed both. Wisconsin v. Mitchell, 508 U.S. 476 (1993); Ohio
v. Wyant, 508 U.S. 969 (1993). The Supreme Court reasoned that, while it is not
permissible to punish offensive abstract beliefs, it is permissible to punish (as valid hate-
crime statutes do) based on the repugnant nature of a motive for a criminal act. Mitchell,
508 U.S. at 485-87. In Mitchell, the United States Supreme Court also distinguished and
narrowed the R. A. V. decision:
Nothing in our decision last Term in R. A. V. compels a
different result here. That case involved a First Amendment
challenge to a municipal ordinance prohibiting the use of
" 'fighting words' that insult, or provoke violence, 'on the basis
of race, color, creed, religion or gender.' " 505 U.S. at 391
(quoting St. Paul Bias-Motivated Crime Ordinance, St. Paul,
Minn., Legis. Code § 292.02 (1990)). Because the ordinance
only proscribed a class of "fighting words" deemed particularly
offensive by the city -- i.e., those "that contain . . . messages of
'bias-motivated' hatred," 505 U.S. at 392 -- we held that it
violated the rule against content-based discrimination. See id.,
at 392-394. But whereas the ordinance struck down in R. A. V.
was explicitly directed at expression (i.e., "speech" or
"messages"), id., at 392, the statute in this case is aimed at
conduct unprotected by the First Amendment.
Mitchell, 508 U.S. at 487. In other words, the United States Supreme Court drew a
distinction: It is permitted for a government to specially penalize the repugnant motives for
illegal conduct (including racial bias). But, even within the category of fighting words, a
government is not free to directly regulate the content of speech with an aim to prefer some
content over other content.
No. 19AP-441 11
{¶ 21} After United States Supreme Court intervention, the Supreme Court of Ohio
changed course in the Wyant case and held (without any reasoning or discussion) that the
state ethnic intimidation statute, R.C. 2927.12, was constitutional. See State v. Wyant, 68
Ohio St. 3d 162, 164 (1994). In a recent case, we noted the similarity between R.C. 2927.12
and the municipal ordinance at issue in Fabich's case. State v. Smith, 10th Dist. No. 16AP-
21, 2017-Ohio-9283, ¶ 18. Because Smith, like Wyant, concerned an ethnic intimidation
case predicated on menacing, we did not cite or analyze the impact of R. A. V.; we merely
applied Wyant with the result that we summarily rejected arguments that the ordinance
was facially unconstitutional or unconstitutional as applied. Smith, 2017-Ohio-9283, at
¶ 18.
{¶ 22} However, the case before us now presents a new question in some respects.
Unlike any prior case in Ohio, Fabich's conviction of ethnic intimidation is predicated on
his conviction for disorderly conduct under Columbus City Code Section 2317.11(A)(2).
That offense provides:
(A) No person shall recklessly cause inconvenience, annoyance,
or alarm to another, by doing any of the following:
***
(2) Making unreasonable noise or offensively coarse utterance,
gesture, or display, or communicating unwarranted and
grossly abusive language to any person[.]
Columbus City Code Section 2317.11(A)(2). In other words, in this case, the hateful words
themselves constitute the entirety of both the ethnic intimidation and the predicate offense.
This distinction is not only factual, it is legal. Columbus City Code Section 2331.08(A)
creates an offense of ethnic intimidation based on the predicate offense of disorderly
conduct, but R.C. 2927.12 does not. Compare R.C. 2927.12(A) (not listing disorderly
conduct, R.C. 2917.11, as a predicate offense) with Columbus City Code Section 2331.08(A)
(listing Columbus City Code Section 2317.11, disorderly conduct, as a predicate offense).
Thus, while Wyant, Smith, and Mitchell are instructive, none of them is summarily
dispositive of the basic questions running through this case: Can the Government make it
a crime to address someone using fighting words? Is the n-word a fighting word? If the n-
word is a fighting word and the government can generally prohibit fighting words, can it
also make it a separate and more serious crime to direct such a fighting word at another
No. 19AP-441 12
person "by reason of or where one of the motives, reasons or purposes for the [utterance
was] the victim's race?" Columbus City Code Section 2331.08(A).
2. Whether the Disorderly Conduct Ordinance is Constitutional
{¶ 23} The First Amendment generally prevents government from proscribing
speech, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 309-11 (1940), or even expressive
conduct, see, e.g., Texas v. Johnson, 491 U.S. 397, 406 (1989), because of disapproval of
the ideas expressed. Content-based regulations are presumptively invalid. Simon &
Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 115 (1991);
id. at 124 (Kennedy, J., concurring in judgment); Consolidated Edison Co. of New York. v.
Public Serv. Comm. of New York., 447 U.S. 530, 536 (1980); Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 95 (1972). However, restrictions on the content of speech have been
generally permitted to proscribe a few categories of speech, including what is known as
"fighting words." The United States Supreme Court has defined these as follows:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never
been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the
insulting or "fighting" words -- those which by their very
utterance inflict injury or tend to incite an immediate breach of
the peace. It has been well observed that such utterances are
no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest
in order and morality. "Resort to epithets or personal abuse is
not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment
as a criminal act would raise no question under that
instrument."
(Footnotes omitted.) Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942), quoting
Cantwell, 310 U.S. at 309-10.
{¶ 24} Obviously, a prohibition on causing "inconvenience, annoyance, or alarm" by
an "offensively coarse utterance, gesture, or display, or communicating unwarranted and
grossly abusive language to any person," would reach much more than mere "fighting
words" if taken literally. Columbus City Code Section 2317.11(A)(2) However, in
accordance with federal precedent on the limited "fighting words" category, the Supreme
Court of Ohio has confirmed that, "[a] person may not be punished under [the disorderly
No. 19AP-441 13
conduct statute] for 'recklessly caus[ing] inconvenience, annoyance, or alarm to another,'
by making an 'offensively coarse utterance' or 'communicating unwarranted and grossly
abusive language to any person,' unless the words spoken are likely, by their very utterance,
to inflict injury or provoke the average person to an immediate retaliatory breach of the
peace." State v. Hoffman, 57 Ohio St. 2d 129 (1979), paragraph one of the syllabus
(following Cincinnati v. Karlan, 39 Ohio St. 2d 107 (1974)). These holdings apply with equal
force to the language in the ordinance, Columbus City Code Section 2317.11(A)(2). Hence,
despite the overbroad language of the ordinance, because caselaw has limited the
application of the ordinance, the City can and does make it a crime to confront another
person with "fighting words."
3. Whether the N-Word is a Fighting Word
{¶ 25} We find that, where, as here, the n-word is insultingly applied to a black
person (particularly in conjunction with remarks like, "go back to the plantation"), it
amounts to an utterance of fighting words. Although the Seventh District Court of Appeals
has expressed the view that the n-word is not a fighting word, nationwide precedent is
generally to the opposite effect. Compare State v. Dotson, 7th Dist. No. 93 C.A. 250, 1995
WL 750147, 1995 Ohio App. LEXIS 5567, *4-5 (Dec. 13, 1995) ("Words such as 'Uncle Tom'
and 'Nigger' are not fighting words. Even though the use of such words is totally abhorrent
to all people, the words, by themselves, do not rise to the level of criminal behavior.
Although such words may be offensive to persons of all races, they do not provoke a
reasonable person to an immediate retaliatory breach of the peace.") with, e.g., State v.
Hoshijo, 102 Haw. 307, 76 P.3d 550, 564-65 (2003) (holding that, in conjunction with
threat to "kick ass," the use of "nigger" is a fighting word); United States v. Ybarra, 57 M.J.
807, 811-12 (U.S. Navy-Marine Corps.Ct.Crim.App.2002) (finding that the n-word directed
toward a black person is "among the vilest of all racial epithets" and that, in conjunction
with other obscenities, constituted fighting words); In re John M., 201 Ariz. 424, 36 P.3d
772, 776 (Ct.App.2001) (noting that "few words convey such an inflammatory message of
racial hatred and bigotry as the term 'nigger,' " that "the term is 'generally regarded as
virtually taboo because of the legacy of racial hatred that underlies the history of its use
among whites, and its continuing use among a minority as a viciously hostile epithet,' " and
concluding that the defendant's "direction of the word 'nigger' to [] an African-American
woman[] constituted a personal attack on her that was likely to provoke a violent reaction");
No. 19AP-441 14
Bailey v. State, 334 Ark. 43, 972 S.W.2d 239, 244-45 (1998) (finding that, in conjunction
with grabbing an officer's arm, saying "Fuck you, nigger, and fuck you, too," constituted
fighting words); Sims v. Montgomery Cty. Comm., 766 F. Supp. 1052, 1097, fn. 128 (M.D.
Ala.1990) (recognizing that, "the term 'nigger' is often a 'fighting word' "). As the Supreme
Court of North Carolina succinctly and accurately stated the matter, "[n]o fact is more
generally known than that a white man who calls a black man a 'nigger' within his hearing
will hurt and anger the black man, and often provoke him to confront the white man and
retaliate." In re Spivey, 345 N.C. 404, 480 S.E.2d 693, 699 (1997) (approving a trial court
having taken judicial notice that calling a black person the n-word in the course of a
confrontation was a fighting word).
{¶ 26} Thus, it was not unconstitutional for Fabich to be charged and convicted of
the fourth-degree misdemeanor disorderly conduct for directing fighting words at Brown.
See Columbus City Code Section 2317.11(A) and (E). But, even having settled that question,
we must still confront the constitutional issues surrounding ethnic intimidation.
4. Whether the Ethnic Intimidation Ordinance is Unconstitutional
{¶ 27} The United States Supreme Court has observed, "[a] facial challenge to a
legislative Act is, of course, the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the Act would be
valid." United States v. Salerno, 481 U.S. 739, 745 (1987). "In the First Amendment
context, [the Supreme Court has also] recognize[d] 'a second type of facial challenge,'
whereby a law may be invalidated as overbroad if 'a substantial number of its applications
are unconstitutional, judged in relation to the statute's plainly legitimate sweep.' " United
States v. Stevens, 559 U.S. 460, 473 (2010), quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449, fn. 6 (2008). The City ordinance
does not fail facially because it has a broad plainly legitimate sweep in cases where the
predicate offenses consist of non-speech criminal conduct. See Washington v. Glucksberg,
521 U.S. 702, 740, fn. 7 (1997) (Stevens, J., concurring). Nor is it vague on its face—it clearly
apprises the reader that persons in Columbus are especially forbidden from committing
any of the predicate offenses for listed categories of bigoted reasons. Kolender v. Lawson,
461 U.S. 352, 357-58 (1983). Moreover, other higher courts have already upheld similar
laws facially and we have facially upheld this very ordinance. Mitchell, 508 U.S. in passim;
No. 19AP-441 15
Wyant, 68 Ohio St. 3d at 164; Smith, 2017-Ohio-9283, at ¶ 18. Thus, we turn to considering
whether, as applied to Fabich and his speech in this case, the ordinance is unconstitutional.
{¶ 28} In this case, the City has convicted Fabich of ethnic intimidation based on his
having uttered racially charged fighting words to a black person. Columbus City Code
Section 2331.08(A) and (C). Hypothetically, had Fabich confronted Brown with different
fighting words that disclosed no racial bias, he might have instead been found guilty only
of disorderly conduct, not ethnic intimidation. Columbus City Code Section 2317.11(E).
That juxtaposition seems, at first, to place this situation squarely within the reach of
R. A. V.'s prohibition on regulating the content of fighting words. R. A. V., 505 U.S. at 385-
86.
{¶ 29} However, another hypothetical leads us in a different direction: What if
Fabich had confronted Brown with fighting words that were not racially charged but then,
after the fact, confessed that his motive for verbally attacking Brown had been racial? In
that case, despite having uttered no biased fighting words, could he still have been found
guilty of ethnic intimidation based on the unbiased fighting words in conjunction with his
confessedly biased motive for having uttered them? This hypothetical line of reasoning
highlights the fact that the triggering culpability element in the ethnic intimidation
ordinance is not the content of the fighting words, but rather, it is the "motives, reasons or
purposes for" which the fighting words were uttered. (Emphasis added.) Columbus City
Code Section 2331.08(A).
{¶ 30} In other words, assuming arguendo that the City successfully proved a
bigoted motive for Fabich' directing fighting words toward Brown, then the ordinance is
constitutional as applied to him. The ordinance does not seek to punish his use of the n-
word more severely compared to other fighting words. It punishes a bigoted motive for
employing fighting words against Brown, without regard to what those words were.
Mitchell and Wyant inform that it is permissible for a government to add to the punishment
of crimes where the criminal acts were committed due to a repugnant or socially
destabilizing (for example, racist) motive. See Mitchell, 508 U.S. at 487, in passim. Thus,
even as applied to Fabich (assuming a bigoted motive), we find that the City's ethnic
intimidation ordinance is constitutional.
No. 19AP-441 16
{¶ 31} We consequently overrule Fabich's first, second, and third assignments of
error.
B. Fourth Assignment of Error - Whether the Trial Court Erred by Orally
Clarifying the Jury Instructions During Deliberation
{¶ 32} Fabich argues that the trial court erred when it corrected the jury instructions
during deliberation and especially since the City failed to object before the jury retired to
deliberate. (Fabich's Brief at 19-21.) Part of Fabich's argument in his fourth assignment of
error relies on Ohio Revised Code 2945.10, which set rules regarding the "Order of
proceedings of trial." In part, potentially relevant to this case, that statute provides:
The court, after the argument is concluded and before
proceeding with other business, shall forthwith charge the jury.
Such charge shall be reduced to writing by the court if either
party requests it before the argument to the jury is commenced.
Such charge, or other charge or instruction provided for in
this section, when so written and given, shall not be orally
qualified, modified, or explained to the jury by the court.
Written charges and instructions shall be taken by the jury in
their retirement and returned with their verdict into court and
remain on file with the papers of the case.
(Emphasis added.) R.C. 2945.10(G). However, pursuant to Article IV of the Ohio
Constitution, the Supreme Court of Ohio has rulemaking authority to govern the practice
and procedure in all courts in the state. Ohio Constitution, Article IV, Section 5(B). "All
laws in conflict with such rules shall be of no further force or effect after such rules have
taken effect." Id. Consequently, the proper authority for Fabich's argument regarding jury
instruction procedure (which he also cites) is Crim.R. 30. State v. Mayle, 7th Dist. No. 14
BE 39, 2015-Ohio-4838, ¶ 16-18; State v. Kersey, 124 Ohio App. 3d 513, 519-20 (1st
Dist.1997); State v. Mitchell, 8th Dist. No. 45014, 1983 WL 5738, 1983 Ohio App. LEXIS
13743, *19 (Feb. 3, 1983).
{¶ 33} Crim.R. 30 provides, in relevant part as follows:
At the close of the evidence or at such earlier time during the
trial as the court reasonably directs, any party may file written
requests that the court instruct the jury on the law as set forth
in the requests. Copies shall be furnished to all other parties at
the time of making the requests. The court shall inform counsel
of its proposed action on the requests prior to counsel's
arguments to the jury and shall give the jury complete
instructions after the arguments are completed. The court also
No. 19AP-441 17
may give some or all of its instructions to the jury prior to
counsel's arguments. The court shall reduce its final
instructions to writing or make an audio, electronic, or other
recording of those instructions, provide at least one written
copy or recording of those instructions to the jury for use
during deliberations, and preserve those instructions for the
record.
On appeal, a party may not assign as error the giving or the
failure to give any instructions unless the party objects before
the jury retires to consider its verdict, stating specifically the
matter objected to and the grounds of the objection.
Opportunity shall be given to make the objection out of the
hearing of the jury.
Crim.R. 30(A). Though Fabich argues (based on the statute) that the trial court's
subsequent correction to the jury instructions during deliberation was improper, several
courts have noted that Crim.R. 30 does not prohibit a court from clarifying or explaining
its instructions in response to jury questions (provided, of course, that the clarification or
explanation is a correct statement of law). State v. Blanda, 12th Dist. No. 2013-06-109,
2014-Ohio-2234, ¶ 23; State v. Hibbard, 12th Dist. No. 2002-05-129, 2003-Ohio-5104,
¶ 11; Kersey, 124 Ohio App. 3d at 520; Mitchell, 1983 Ohio App. LEXIS 13743, at *19. Thus,
we do not agree that the trial court erred in this regard.
{¶ 34} Fabich observes that the City did not object to the definition of causation
initially provided by the trial court to the jury (which included a reference to "physical
harm"). (Tr. at 245-47, in passim). However, during deliberations the jury asked a
question, "Does causation always require/imply physical harm as the definition of caution
states?" (Tr. at 255.) At that time, the City weighed in and requested a clarification that
physical harm was an inappropriate inclusion in the instruction on the facts of this case.
(Tr. at 255-58.) While the trial court initially declined to offer further instructions,
following additional briefing and argument from the City to better substantiate its
argument about the erroneous nature of the original instruction, the trial court gave the
jury a revised causation instruction. (May 23, 2019 Mot. for Reinstruction; May 24, 2019,
Supp. Mot. for Reinstruction; May 28, 2019 Reinstruction Hearing Tr. at 19.) This is not,
in other words, a case where a trial court simply entertained a belated objection in violation
of Crim.R. 30. Rather, the jury asked a question. The parties (as is their right) weighed in
on how the trial court should respond to the question. And the trial court (albeit not
No. 19AP-441 18
immediately) decided the question warranted a clarification to its prior instructions. We
see no error here. See State v. Puma, 11th Dist. No. 1215, 1985 Ohio App. LEXIS 8924, *4-
7 (Sept. 27, 1985).
{¶ 35} We overrule Fabich's fourth assignment of error.
C. Fifth Assignment of Error - Whether Fabich's Convictions were
Insufficiently Supported or Contrary to the Manifest Weight of the
Evidence
1. Standard
{¶ 36} The Supreme Court of Ohio has "carefully distinguished the terms
'sufficiency' and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are
'both quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St. 3d 328,
2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St. 3d 380 (1997), paragraph
two of the syllabus.
Weight of the evidence concerns "the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. * * * . Weight is not a
question of mathematics, but depends on its effect in inducing
belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's Law Dictionary 1594
(6th Ed.1990). In manifest weight analysis, "the appellate court sits as a 'thirteenth juror'
and disagrees with the jury's resolution of the conflicting testimony." Thompkins at 388,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175
(1st Dist.1983).
{¶ 37} In contrast, sufficiency is:
"[A] term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a
matter of law." * * * In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is
a question of law.
No. 19AP-441 19
Eastley at ¶ 11, quoting Thompkins at 386; Black's at 1433. "In reviewing a record for
sufficiency, '[t]he 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. Monroe, 105 Ohio
St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus.
2. Disorderly Conduct
{¶ 38} Fabich argues that the evidence against him was insufficient to support, and
manifestly against, his convictions for both disorderly conduct and ethnic intimidation
because the evidence showed that he was on his own property and was provoked by Brown
into uttering the slurs. (Fabich's Brief at 21-23.) As noted, a person commits disorderly
conduct by recklessly causing inconvenience, annoyance, or alarm to another, by making
an offensively coarse utterance or communicating unwarranted and grossly abusive
language to any person, when the words spoken are likely, by their very utterance, to inflict
injury or provoke the average person to an immediate retaliatory breach of the peace.
Hoffman, 57 Ohio St. 2d 129 at paragraph one of the syllabus; Columbus City Code Section
2317.11(A)(2). We have analyzed that the n-word, spoken under the circumstances in which
Fabich uttered it, is a fighting word. Fabich's conviction for disorderly conduct was neither
against the manifest weight of the evidence nor insufficiently supported. See supra at ¶ 22-
25. No defense or legal justification exists for disorderly conduct that the fighting words
may have been provoked. State v. Linder, 5th Dist. No. CA-8689, 1992 WL 28727, 1992
Ohio App. LEXIS 595, *4 (Feb. 10, 1992). Thus, Fabich's conviction for disorderly conduct
is affirmed.
3. Ethnic Intimidation
{¶ 39} Ethnic intimidation would require a finding that Fabich committed
disorderly conduct (which we previously addressed) "where one of the motives, reasons or
purposes for the commission of the offense [was] the victim's race." Columbus City Code
Section 2331.08(A). In other words, it is not enough that someone who becomes involved
in an altercation utters racial slurs in the course of the altercation;3 rather, the victim must
3In fact, if the mere use of a racial slur during an argument would justify a conviction for ethnic intimidation,
then our basis for finding the ordinance to be constitutional would be undermined. See supra at ¶ 26-29.
No. 19AP-441 20
be targeted "by reason" of their race or in this case their race must serve as one of the
"motives, reasons or purposes for the commission of the offense." Columbus City Code
Section 2331.08(A). To put it more plainly, becoming infuriated with someone for a non-
racial reason and, in the course of that angry altercation, hurling a slur does not suffice to
transform disorderly conduct into ethnic intimidation. See State v. Wochele, 8th Dist. No.
106769, 2019-Ohio-1122; State v. Chopak, 8th Dist. No. 96947, 2012-Ohio-1537, ¶ 24; State
v. Kingery, 2d Dist. No. 24063, 2012-Ohio-505, ¶ 20These cases help illustrate these
points.
{¶ 40} In Wochele, an African-American couple became involved in an argument
with a white man over parking arrangements. 2019-Ohio-1122, at ¶ 3-13. Testimony in the
trial varied, each side of the dispute denying having used racial slurs while asserting that
the other side had used such slurs. Id. The Eighth District Court of Appeals found that,
while the evidence supported a conviction for aggravated menacing, the evidence did not
support a conviction for ethnic intimidation, reasoning as follows:
[I]n the instant case, there is no evidence that [the defendant]
sought out [the victim] because of his race, nor is there any
evidence that [the defendant]'s menacing acts were taken
because of [the victim]'s race. Rather, the evidence
demonstrates that the incident resulted from [the defendant]'s
and [the victim]'s disagreement about where the car was
parked. [The victim] and [the other complaining witness] left
the shop and later returned, which resulted in the second
confrontation. [The victim]'s return to the scene 20 minutes
later escalated their confrontation, which continued with both
[the victim] and [the defendant] shouting at each other and
[the defendant]'s brandishing of the gun. We recognize that
while [the defendant]'s use of the " 'N word' [is] offensive,
'repugnant or obnoxious language does not, in itself,
demonstrate tha[t] an action was undertaken 'by reason of the
victim's race.' " Chopak, 2012-Ohio-1537, at ¶ 24, quoting
Kingery, 2012-Ohio-505, at ¶ 20.
Wochele, 2019-Ohio-1122, at ¶ 25. The court concluded, "the evidence demonstrates that
the threats between [the victim] and [the defendant] were prompted by their random,
happenstance dispute over where the car was parked. As a result, there is insufficient
evidence to demonstrate that [the defendant] threatened [the victim] with a gun because of
his race." Id. at ¶ 29.
No. 19AP-441 21
{¶ 41} In Chopak, tensions had arisen between white and black neighbors over a
series of past incidents involving alleged animal abuse, alleged disrespect, and alleged
shoulder-bumping while walking. Chopak, 2012-Ohio-1537, at ¶ 5-8. In the incident giving
rise to the case, the black neighbor began having a verbal argument with the white neighbor
and followed the white neighbor to his house where she threatened to "kick" his "ass" and
called him a "cracker." Id. at 8-10. The white neighbor who, by then, had retreated behind
the gate to his property, pulled out a knife, stabbed into the air through the gate, and told
her, "I will f—— kill you and slit your throat, you f—— n—." Id. at ¶ 11. Although the
appellate court affirmed the conviction for menacing, it reversed the defendant's conviction
of ethnic intimidation reasoning as follows:
We find insufficient evidence in this record that [the
defendant] threatened [the victim] with a knife because of her
race. There is simply no evidence in this record that [the
defendant] selected [the victim] as his victim because she is
African-American, nor is there any evidence that his menacing
acts were taken because of her race. Rather, the evidence
demonstrates that [the defendant]'s actions were taken in
response to [the victim]'s refusal to back away from a
confrontation that she instigated by confronting him in
[another neighbor]'s house, and then escalated by following
him out of the house and haranguing him as he walked away.
It would not be unreasonable for anyone to react in anger to
such confrontational conduct. And although [the defendant]'s
use of the "N word" was offensive, "repugnant or obnoxious
language does not, in itself, demonstrate than an action was
undertaken 'by reason of the victim's race.' " State v. Kingery,
2d Dist. No. 24063, 2012 Ohio 505, ¶ 20. Here, it is apparent
that the threats [the defendant] made were prompted by [the
victim]'s conduct and not "by reason of her race.
Chopak, 2012-Ohio-1537, at ¶ 24.
{¶ 42} In Kingery, a black mail carrier sprayed the defendant's dog with "dog
repellant" when (as he went about his appointed rounds) the dog ran toward him barking.
Kingery, 2012-Ohio-505, at ¶ 2. Seeing her dog thus repelled, the defendant yelled
profanities and racial slurs including the n-word, told the mail carrier to go back to Africa,
and threatened to "woop his ass." Id. at ¶ 3. The court sustained her conviction for
menacing but reversed her conviction for ethnic intimidation reasoning:
[The defendant] cites several ethnic intimidation cases which
make the point that the racial motivation constituting such an
No. 19AP-441 22
offense goes beyond mere words. See, e.g., In re McDonald,
11th Dist. Lake No. 2006-L-027, 2007 Ohio 782 (where a
package resembling a bomb was delivered to the only African-
American family in a neighborhood, as they were in the process
of moving in, addressed "to the N******" and from "your
friends the K.K.K."); State v. Grays, 12th Dist. Butler No.
CA2005-07-187, 2006 Ohio 2246 (where a cross was burned in
the yard of an African-American woman). In these cases, the
defendant exhibited a racial animus directly tied to and as a
motivating factor in the underlying offense. No such evidence
was presented against [the defendant in this case]. There was
no basis to conclude that [the defendant]'s reaction to the
spraying of her dog would have been more civilized or less
"emotional" if the mail carrier had not been African American.
Thus, [the defendant]'s conviction for ethnic intimidation was
supported by insufficient evidence.
Kingery, 2012-Ohio-505, at ¶ 22.
{¶ 43} In this case, however, the cause of the rift between Fabich and Brown is
considerably less clear-cut than in Wochele, Chopak, and Kingery. It is undisputed that
Brown and Fabich had, by Brown's own testimony, been neighbors for a long time and had
many past interactions (Tr. at 37, 55.) Though Brown confessed he was unable to formulate
an appropriate response to whether it was safe to say that he disliked Fabich, it seems
undisputed that there was some degree of enmity between the two. (Tr. at 54.) Fabich's
testimony (which is not contradicted on this point) makes clear that problems between him
and Brown had been ongoing and arose as early as 2004. (Tr. at 188-89, 212.) Fabich's
testimony also presents the view that Brown had, during a prior interaction, made clear to
Fabich that he was a "Tarzan" and explained the insulting nature of that comment. (Tr. at
201-02, 212.) But why things came to a head on the day that they did or why the two men
wound up trading racial insults (with Fabich dealing the vast majority of racial invective),
is a matter of inference. Thus, the question is: Is this a case like Wochele, Chopak, and
Kingery, where the cause of the confrontation was clear-cut and where the racial invective
was not good evidence of a motive? Or did the record permit the jury to infer, given the
lack of other clear explanation for the confrontation, that Fabich's disorderly conduct
toward Brown was motivated, at least in part, by Brown's race?
{¶ 44} When analyzing the sufficiency of the evidence, we draw all inferences in
favor of the City. Monroe, 2005-Ohio-2282, at ¶ 47. In that circumstance, we must credit
No. 19AP-441 23
the assertion that Fabich initiated the interaction and began using racial slurs against
Brown without specific provocation. (Tr. at 40, 111.) Moreover, the evidence in the record
amply supports that the argument between Brown and Fabich included racially abusive
language, and the jury could have inferred racial animus from Fabich's statement, "Let's
have some race fun." (City's Ex. 1 at 1:43-1:47.) See also supra at ¶ 6. Under the
circumstances, viewing the evidence in the light most favorable to the prosecution, the
record is sufficient to conclude beyond a reasonable doubt that at least one of Fabich's
motives in perpetrating disorderly conduct toward Brown was racist. Monroe, 2005-Ohio-
2282, at ¶ 47.
{¶ 45} When using a manifest weight analysis and weighing the testimony as if we
were the proverbial "thirteenth juror," the picture is more complicated, but the racial
motive behind the altercation still finds support. Thompkins, 78 Ohio St. 3d at 388. Brown
stated that he never called Fabich "Tarzan," that he had never used the term before, and
testified that he did not hear Fabich reference having been mocked for his whiteness during
the video of the incident. (Tr. at 65-71, 83.) Moessner testified in support of this one-sided
narrative when he claimed that neither he nor Brown said anything at all in response to
Fabich. (Tr. at 111-13, 120-21.) But, during the video, a person off screen can be heard
shouting back at Fabich, much of it inaudible. See, e.g., City's Ex. 1 at 1:06-1:09, 1:21-1:28.
And at several points during the video, Fabich references an insult apparently offered by
Brown: "If you're calling me Tarzan, you're Nigger Brown." Id. at 0:56-1:02. "If you're
going to make fun of my whiteness, we're going to have it out." Id. at 1:19-1:22. "You called
me Tarzan. Let's have some race fun." Id. at 1:43-1:47. Though the video is somewhat hard
to hear, the neighbor (Waderker) who recorded the video, was not at all reticent about
confirming that Fabich made the remarks concerning the "Tarzan" insult. (Tr. at 100.) This
apparently led Fabich to respond with the torrent of vile racist language, which we have
already recounted in detail. See supra at ¶ 6. In short, the manifest weight of the evidence
is to the effect that these long-time neighbors, Fabich and Brown, became involved in an
altercation 'that was motivated, at least in part, by racial animus. Whether that racial
animus between the two men was mutual (as it may have been) is of no moment—Brown
and his alleged "Tarzan" remark are not on trial. What matters is whether Fabich was
motivated by Brown's race when he hurled racist invective at him. Because, unlike in
Wochele, Chopak, and Kingery, the record at trial does not offer another clear explanation
No. 19AP-441 24
for Fabich's motive, we conclude that the jury did not lose its way in concluding from
Fabich's statements that Fabich's motive was, at least in part, racial.
{¶ 46} We therefore overrule Fabich's fifth assignment of error. The n-word is a
fighting word in these circumstances. Fabich employed it against his black neighbor, along
with several other insulting racial comments, during a confrontation, the origins for which
seem to have no other plausible explanation but racial tension between the two men. Under
these circumstances, Fabich's conviction for disorderly conduct and ethnic intimidation is
sufficiently supported and not manifestly against the weight of the evidence.
D. Sixth Assignment of Error - Whether the Trial Court Denied Fabich the
Opportunity to Allocute'
{¶ 47} During sentencing, the trial court did not permit or offer Fabich (or the
victim, for that matter) the opportunity to speak prior to imposing sentence. (June 26, 2019
Sentencing Tr. at 4-6.) Ohio Rule of Criminal Procedure 32 requires that "[a]t the time of
imposing sentence, the court shall * * * address the defendant personally and ask if he or
she wishes to make a statement in his or her own behalf or present any information in
mitigation of punishment." Crim.R. 32(A)(1). "If the court imposes sentence without
affording the defendant an opportunity to allocute, then resentencing is required unless the
error was invited or harmless." State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, ¶ 200,
citing State v. Osie, 140 Ohio St. 3d 131, 2014-Ohio-2966, ¶ 179; see also State v. Campbell,
90 Ohio St. 3d 320 (2000), paragraph three of the syllabus.
{¶ 48} Here, the trial court proceeded to sentencing without affording anyone,
defendant or victim, or even counsel for the parties, any time to make a statement that
might have held sway or effect with the trial 'court when imposing sentence. (June 26, 2019
Sentencing Tr. at 5 (shutting down comments by declining to hear from any witnesses and
stating "[t]his Court is confident I have all that I need to enter into sentencing at this
time").) After the trial court pronounced sentence, the victim was permitted to make a
statement that amounted to an expression thanks to the court. Id. at 9-14. But neither side
had a real opportunity to make an impactful statement to the court in advance of sentence
when it might have made a difference. Id. at 5. Nor does there appear to be a factual basis
for finding that this omission by the trial court was invited or harmless.
{¶ 49} In connection with reviewing the sentence, we note, though neither side
raises it as an issue, that the trial court never made clear what portions of the total sanction
No. 19AP-441 25
were attributable to each offense for which Fabich was convicted. (June 26, 2019
Sentencing Tr. at 5-6; June 27, 2019 Jgmt. Entry.) The Supreme Court has held that a
sentencing court "must consider each offense individually and impose a separate sentence
for each offense." State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, ¶ 9. Failing to
follow this requirement under the circumstances is an obvious error because it directly
alters the sentence and therefore affects the outcome of the proceeding. State v. Rogers,
143 Ohio St. 3d 385, 2015-Ohio-2459, ¶ 22; State v. Betts, 10th Dist. No. 19AP-226, 2020-
Ohio-4891, ¶ 21.
{¶ 50} We sustain Fabich's sixth assignment of error and remand for resentencing.
E. Seventh Assignment of Error - Whether the Trial Court Erred in
Restricting Fabich's Animal Possession as a Condition of Probation
{¶ 51} During sentencing, the trial court also imposed a prohibition on Fabich's
ability to own animals or to reside where animals are present for reasons that are not clearly
explained by the appellate record in this case. (June 26, 2019 Sentencing Tr. at 6.) Nothing
about Fabich's interaction with Brown (that is the sole content of the charges at issue in this
appeal) involved animals. Though there are some hints in the record that other charges
and matters may have been at issue in other cases, the appellate record before us does not
clearly indicate what they are and provides no basis for any such restriction being levied in
this case. (Mar. 11, 2019 Bond Violation Hearing Tr. at 13-14, 24-25.) However, because
resentencing will already occur as a result of our having sustained Fabich's sixth assignment
of error, this potential error has been rendered moot.
IV. CONCLUSION
{¶ 52} We find that the disorderly conduct ordinance is not unconstitutional, as
limited by Supreme Court of Ohio precedent to fighting words. We moreover find that the
n-word is a "fighting word" when uttered under the circumstances in this case, and we
consequently affirm Fabich's conviction for disorderly conduct. We further find, in
accordance with precedent from this Court, the United States Supreme Court, and the
Supreme Court of Ohio, that the City of Columbus's ethnic intimidation ordinance is facially
constitutional due to its plainly legitimate sweep. It is also constitutional as applied to a
predicate offense of disorderly conduct because it does not punish the content of fighting
words but instead punishes the biased motive or reason for the utterance without regard to
the content of the words uttered.
No. 19AP-441 26
{¶ 53} The evidence in this case showed that Fabich used racially charged fighting
words in combination with other racially derogatory statements. Though the content of
these words is not (and cannot constitutionally be) the target of the ethnic intimidation
ordinance, the lack of other explanation for the conflict between Fabich and Brown permits
those words to serve as evidence of Fabich's motivation for the conflict and the use of
fighting words. We therefore affirm Fabich's convictions for disorderly conduct and ethnic
intimidation.
{¶ 54} We find that the trial court did not err in correcting its instruction on
causation in response to a jury question.
{¶ 55} We do, however, conclude that the trial court erred by failing to give Fabich
the opportunity to allocute and by failing to sentence on each offense. In light of that, we
find Fabich's remaining allegation regarding the sanction that he not own or reside with
animals to be moot.
{¶ 56} We overrule Fabich's first, second, third, fourth, and fifth assignments of
error. We sustain his sixth assignment of error. We find his seventh assignment of error
to be moot. We reverse in part, affirm in part, and remand to the Franklin County
Municipal Court for resentencing.
Judgment reversed in part,
affirmed in part, and
remanded for resentencing.
DORRIAN and BEATTY BLUNT, JJ., concur.