State v. Kasnett , 30 Ohio App. 2d 77 ( 1972 )

I concur in the judgment of affirmance for the reasons set forth below. As stated in West Virginia State Bd. of Education v. Barnette (1943), 319 U.S. 624, "the case is made difficult not because the principles of its decision are obscure but because the flag involved is our own." Rather obviously, it behooves reviewing courts to decide such a case, involving a flag we love and respect, upon fixed legal principles applicable to any criminal appeal uninfluenced by any emotional consideration and irrespective of personal agreement with the result. To do any less is to tarnish the image of justice under law that is a part of our American system of jurisprudence which our flag represents. Bearing these concepts in mind, I review this case.

There are two dispositive issues raised by this appeal. The first is whether the conduct of the defendant is proscribed by R. C. 2921.05 and the second, if such conduct is so proscribed, is the statute violative of any constitutional right of the defendant. It is a settled principle that an appellate court will not consider a constitutional issue unless a decision on such issue is necessary for a resolution of the appeal.Bedford Heights v. Tallarico (1971), 25 Ohio St. 2d 211;Rucker v. State (1928), 119 Ohio St. 189. Hence, consideration must be given first to the issue of whether the conduct of defendant was violative of R. C. 2921.05.

R. C. 2921.05 provides, in its pertinent parts, the following:

"No person shall * * * publicly mutilate, burn, destroy, defile, deface, trample upon, or otherwise cast contempt upon such flag."

The affidavit upon which the defendant was tried provides, in its pertinent parts, the following:

"Gary David Kasnett * * * unlawfully did publicly defile, deface and cast contempt upon the Flag of the United States by having said Flag sewn on the seat of his pants."

In consideration of the applicability and scope of any penal statute, the rule is, as stated by Judge Zimmerman in City ofMentor v. Giordano (1967), 9 Ohio St. 2d 140: "It is well established in Ohio that * * * penal statutes and ordinances are to be interpreted and applied strictly against the accuser and liberally in favor of the accused." In light of this rule, what conduct did the General Assembly intend to embrace within its terms?

In State v. Saionz (1969), 23 Ohio App. 2d 79, the Court of Appeals for Lucas County had before it a conviction under the portion of the statute here in question. The conduct there prosecuted was the wearing of a flag as a cape. The court reversed the conviction. The affidavit in Saionz was worded in the following manner, in the pertinent portions:

"John Edward Saionz * * * did unlawfully, publicly and contemptuously cast contempt upon a flag of the United States of America by publicly wearing same as a cape * * *." Page 80. In reversing, the court applied the doctrine of ejusdem generis and concluded at pages 82, 83:

"The words otherwise cast contempt, therefore mean acts of physical destruction or abuse similar in nature to acts of mutilating, burning, destroying, defiling, defacing or trampling upon. This is the rationale of the recent amendment to R. C.2921.05 by the General Assembly which added the specific words burn, destroy, and trample upon."

In my view, the opinion in Saionz is well reasoned and well written, and, hence, I am in agreement with the rationale and holding therein. It is evident that the court in Saionz was of the view that the enumerated words in the statute, including "defile" were words restricted in meaning to "physical destruction or abuse."

There is a very logical reason for such view. Webster's Third New International Dictionary (1961) gives various meanings to the word defile. They are (1) to make filthy: dirty, befoul: (2) to corrupt the purity and perfection thereof: debase: (3) to rob of chastity: ravish, violate: (4) to make ceremonially unclean: pollute: (5) tarnish, sully, dishonor. The majority in this case interprets the word "defile" to mean "public conduct which brings shame or disgrace upon the flag by its use for an unpatriotic or profane purpose." I am unpersuaded that this was the meaning intended by the legislature. The definition is that set forth inHoffman v. United States (1969), 256 A.2d 567. (District of Columbia Court of Appeals.) In Hoffman, the prosecution was commenced under 18 U.S.C.A. Section 700, which in its pertinent part provides:

"(a) Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both."

The court, in Hoffman, recognized the word "defile" could mean making something filthy or dirty or could have a broader meaning, i. e., conduct which dishonors the flag. The court chose the latter. It adopted the definition of defile set forth in the majority opinion herein, and affirmed a conviction for the wearing of a shirt which resembled a flag, made commercially, to which political buttons were affixed.

The Hoffman case was reversed by the United States Court of Appeals for the District of Columbia. Hoffman v. United States (D.C. Cir. 1971), 445 F.2d 226. The court concluded that that statute could not be given a loose or expanded meaning and concluded the congressional intent was "to condemn only physical mutilation, defacement, or defilement of the flag, its `physical dishonor or destruction.'"

In Joyce v. United States, decided October 26, 1971, and reported in digest form in 10 Crim. L. Rep. 2089, the United States Court of Appeals for the District of Columbia stated, with respect to the federal statute:

"* * * the statute here charged to have been violated proscribes only contempt by a public mutilation, defacing, defiling, burning or trampling. All these prohibited acts constitute conduct involving some physical act directly touching the flag and which are physically destructive of the flag."

Aside from the admonition of the Ohio Supreme Court that penal statutes are to be strictly construed in favor of the accused and against the accuser, supra, there are two reasons which persuade me that only physical defilement, such as spitting upon, throwing human excrement thereon or similar acts, were intended to be prohibited by the word "defile" in the statute here considered.

First is the consideration of the doctrine of noscitur asociis. This maxim is stated in 2 Sutherland, Statutory Construction 393, Section 4903, thusly:

"In case the legislative intent is not clear, the meaning of doubtful words may be determined by reference to their association with other associated words and phrases. Thus, when two or more words are grouped together, and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word."

Ohio has long relied upon such maxim. See 50 Ohio Jurisprudence 168, Statutes, Section 190 and the numerous Ohio Supreme Court and lower Ohio authority cited under note 18 of that publication. Comparisons of the word "defile" with the words "mutilate," "burn," and "destroy" which precede it in the statute, and with the words "deface" and "trample upon" which follow it, is to me, a clear indication of legislative intent to use the word "defile" as meaning physical desecration, since this is the obvious meaning of the associated words. Secondly, as a guide to the legislative intent, reference may be made to the 1967 legislative amendment of R. C. 2921.05. The amendment may be found in 132 Ohio Laws 952 (amended in amended house bill No. 664). By this amendment, the legislature inserted into the statute the additional words (which were not, prior thereto, a part of the statute) of "burn," "destroy," "trample upon," and "otherwise" before the existing phrase "cast contempt upon."

If the legislature intended the word "defile" to have the meaning the majority herein asserts, what was the need for amending the statute since burning, destroying or trampling upon the flag would be acts of "public conduct which brings shame or disgrace upon the flag by its use for an unpatriotic or profane purpose."

It is my conclusion that the word "defile" as used in the statute was intended to reach only acts of physical defilement, hence, I am of the view that the simple attachment and wearing of a flag sewn upon articles of clothing is alone not of the character of physical defilement of the flag that our legislature intended to proscribe. This writer is confident that if the General Assembly had intended a meaning of symbolic desecration by the positioning of the flag, the General Assembly could and would have chosen appropriate words for such purpose.

It should be noted that the facts herein are distinguishable from People v. Cowgill (1969), 78 Cal. Rptr. 853, cited by the majority, wherein the defendant admitted he caused a flag of the United States to be cut up and made into a vest which he wore. Physical mutilation of the flag, as such, is not claimed in this case.

It should be noted further there is not one line of testimony in the record herein by which it is claimed that the defendant defaced or otherwise dirtied the flag. This is understandable since no such claim is made in the affidavit, the act upon which the prosecution was based being described as "having the flag sewed on the seat of his pants."

There appears to be a suggestion in appellee's brief, at least impliedly, that the sewing of the flag was in itself a physical act of defilement. The record discloses that the sewing was not done by the defendant but by another person. In any event, aside from the fact that it would not be public, it would not be the physical desecration contemplated by the statute. To conclude otherwise would be to make criminal the sewing of flags by police officers on their uniforms, certainly a prohibition not intended by the legislature.

In light of the above, it is the conclusion of the writer that the conviction below is not sustainable either upon a basing of "defilement" or "defacement" of the flag.

There remains, however, in the affidavit, the allegation that the defendant "did * * * cast contempt on * * *." The question devolves into whether or not there is evidence in the record to warrant, under this portion of the charge in the affidavit, a finding that defendant cast contempt within the restricted meaning of the term "physical desecration." Proof of the charges in this part of the affidavit would support a conviction regardless of the prior enumeration. Hale v.State (1898), 58 Ohio St. 676.

The evidence discloses that the attachment of the flag was upon the right portion of the seat of the trousers. It is further disclosed that the position of placement and its size, nine inches by six inches, was such that, when seated, defendant, by necessity, had to sit upon the flag. A police officer testified that when he observed the flag on defendant's trousers, the defendant walked to a table in a restaurant and sat down "so he was sitting on the flag."

In my view, this is a physical abuse proscribed by the statute. It is a similar act of physical abuse to the prohibition of "trample upon" which is specifically delineated in the statute. It is no less a violation that one who tramples upon a flag does not actually tear, rip or otherwise mutilate or deface it, since such result is not statutorily required. Neither, in my view, is such a result required here.

It is evident to this writer that, under the facts of this case, something more than a mere attachment of the flag to an article of clothing exists. It is an attachment in such a manner that physical abuse would of necessity and did actually follow.

To be, however, within the proscription of the statute, there must be an evidentiary basis for a finding of intent to violate the statute. There is respectable authority that when a flag desecration statute does not specifically require intent, it is to be classed as a penal law which is described as malaprohibita and is violated if the prohibited act is done regardless of intent. People v. Radich (1970), 26 N.Y.2d 117,257 N.E.2d 30. This writer does not concur in that view.

The fact that the legislature of Ohio has not specifically inserted a requirement of intent is not alone dispositive. Absent a clear legislative intent to the contrary to bring the offense within the malam prohibitium class, a statute defining an offense which is silent as to intent does not, generally, require an allegation and proof of a specific intent, but proof of a general intent to do the proscribed act is still required. State v. Lisbon Sales Book Co. (1964), 176 Ohio St. 481; State v. Healy (1951), 156 Ohio St. 229. See, however,State v. Ross (1967), 12 Ohio St. 2d 37.

The Supreme Court of the state of Washington, in State v.Turner (1970), 78 Wash. 2d 276, 474 P.2d 91, has stated with respect to the flag desecration statute of that state, which like the one here in question was silent on the question of intent, the following, at 283:

"Accordingly, unless the statute expressly eliminates the element of intent or design or defines the kinds of offenses which, by their very nature, are classified judicially as mala prohibita, the ingredients of intent, design and purpose should be deemed indispensable to a proof of guilt. To hold otherwise, would make anyone criminally liable who accidentally burned or walked upon the flag in public or unintentionally or accidentally committed some other act toward it which, if intent were present, would clearly constitute a defacing or defilement or a holding up to contempt."

The action of the defendant in having another affix the flag here in question, and wearing and sitting upon it was sufficient, despite defendant's denial of any intent to desecrate, to justify a finding of the requisite intent by the trier of the facts.

I conclude, therefore, unless there is a constitutional infringement, the judgment should be affirmed.

The constitutional claim of invalidity of the statute is summarized by defendant in his brief as follows:

"If the evidence as presented in the instant cause is held to establish a crime under Revised Code Section 2921.05 then said section must be deemed as unconstitutional for its failure to state with sufficient specificity what conduct it proscribes as criminal."

It should be noted that there is no claim by appellant that there is present in this case the element of symbolic speech which is protected by the First Amendment. The record discloses that appellant testified that he had a hole in his trousers and had the flag sewed thereon and wore the same as a "part of a fad now that the American Flag has become a way of dress." There was no testimony by appellant that any thought, idea or precept was being or attempted to be communicated to others by his conduct. It is unnecessary, therefore, to discuss any concept of symbolic speech considered in such flag desecration cases as Hoffman v.United States, supra; People v. Radich, supra; People v.Cowgill, supra; Hodsdon v. Buckson (1970), 310 F. Supp. 528. For a listing of the "symbolic speech" cases considered by the United States Supreme Court, see Cowgill v. California (1970),396 U.S. 371.

Likewise, since defendant does not attack the authority of the state to legislate in the area of flag desecration statutes upon any constitutional ground, reference to and discussion ofHalter v. Nebraska (1907), 205 U.S. 34, and its progeny is here unnecessary.

While there is a peripheral claim, raised pursuant to the assignment of error urging the adoption of a meaning of statutory proscription only as to physical destruction and abuse as set forth in State v. Saionz, supra, that under a contrary view "freedom of expression" would be infringed, inasmuch as this writer has given the statute the interpretation urged, it is unnecessary to consider whether a contrary view would have the result claimed.

The sole question is whether the statute is unconstitutional on its face in that it is so vague and indefinite that it gives no warning of what conduct transgresses the statute and, therefore, is violative of due process. The test is well settled. It is whether a person of ordinary intelligence, who would be law abiding, can determine with reasonable precision what conduct it is their duty to avoid. Winters v. New York (1948), 333 U.S. 607; United States v. Petrillo (1946),332 U.S. 1, 15 Ohio Jurisprudence 2d 269, Criminal Law, Section 11.

The federal flag desecration statute, 18 U.S.C. § 700,supra, has been held to be sufficiently definite for a person of ordinary intelligence to determine the conduct therein prescribed. Joyce v. U.S. (D.C. Cir. 1971), 10 Cr. L. 2089. The statute of New York, California and Iowa have, likewise, withstood such constitutional attacks. People v.Radich (1970), 26 N.Y.2d 114, 125; People v. Cowgill (1969), 78 Cal. Rpt. 853; State v. Waterman (Iowa 1971),190 N.W.2d 809.

It is this writer's conclusion that the statute here in question gives fair notice of the conduct proscribed to men of ordinary intelligence. The statement of Justice Corrigan inCincinnati v. Coates (1970), 21 Ohio St. 2d 66, 69, in discussing the constitutionality of an unlawful assembly ordinance, appears appropriate:

"We conclude, as did the Supreme Court of the United States in Cameron v. Johnson, 390 U.S. 611, 616, in which the issue of the vagueness of a statute was presented, that the ordinance clearly and precisely delineates its reach in words of common understanding. It is a precise and narrowly drawn regulatory statute (ordinance) evincing a legislative judgment that certain specific conduct be * * * proscribed."

There remains the matter of the penalty which is of concern to both my colleagues and the writer. R. C. 2921.05 provides a penalty of not less than one hundred nor more than one thousand dollars or imprisonment of not less than thirty days nor more than one year, or both.

The sentence imposed was a fine of $500 and costs and one year in jail with nine months of the jail sentence suspended on condition that the defendant be a law abiding citizen and remain outside of Athens County for a period of two years.

Defendant did not raise, argue, or brief any claim in respect to the validity of the sentence. Acting sua sponte, the majority herein finds the banishment provision illegal and, as to the remainder of the sentence, finds that its imposition was an abuse of discretion. It voids the sentence and then proceeds to impose a fine of $200, purportedly under authority of ArticleIV, Section 3 (B) (1) (f) of the Ohio Constitution.

While there is statutory authority for a misdemeanor sentence to be suspended upon such conditions as the court may impose (R. C. 2947.13), this writer agrees with the majority herein that the imposition of a condition of banishment is illegal for the reason that such condition is contrary to public policy. Ex Parte Scarborough (1946), 76 Cal. App. 2d 648,173 P.2d 825; State v. Baum (1930), 251 Mich. 187, 231 N.W. 95; Annot. 70 A. L. R. 98.

The sentence that a trial court imposes rests within the sound discretion of the sentencing court as long as it is within the penalty limits set forth in the statute. Lee v. State (1877), 32 Ohio St. 113; Toledo v. Reasonover (1965), 5 Ohio St. 2d 22. Since the right to suspend upon the conditions the court below adopted, which we hold to be unlawful, undoubtedly entered into the exercise of that discretion as to the sentence the trial court chose to impose, I would remand to the trial court for the imposition of a new sentence in conformity with our holding herein.