State v. Wyant - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
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Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.
The State of Ohio, Appellee, v. Wyant, Appellant.
The State of Ohio, Appellant, v. May, Appellee.
The State of Ohio, Appellant, v. Staton et al., Appellees.
The State of Ohio, Appellant, v. Van Gundy et al.,
Appellees.
[Cite as State v. Wyant (1992), Ohio St.3d .]
Criminal law -- Ethnic intimidation -- R.C. 2927.12
unconstitutional.
The effect of R.C. 2927.12 is to create a "thought crime," in
violation of Section 11, Article I of the Ohio
Constitution, and the First and Fourteenth Amendments to
the United States Constitution.
(Nos. 91-199, 91-1519 and 91-1211/91-1589--Submitted April
15, 1992--Decided August 26, 1992.)
Appeal from the Court of Appeals for Delaware County, No.
90-CA-2.
Certified by the Court of Appeals for Montgomery County,
Nos. 12239, 12259 and 12260.
Appeal from and Certified by the Court of Appeals for
Franklin County, Nos. 90AP-473, 90AP-474, 90AP-475, 90AP-477,
90AP-478, 90AP-479 and 90AP-480.
Wyant Case: case No. 91-199
On May 29, 1989 appellant David Wyant and his wife rented
campsite L-16 at Alum Creek State Park. On May 31, the Wyants'
relatives came to join them, and rented L-17, the adjoining
campsite. On June 2, Wyant rerented his site, but released the
relatives' site, as they were to leave that day. Later in the
day plans changed, and Wyant attempted to rerent site L-17. He
was told that the site had been rented to someone else, and so
he rented L-18.
Site L-17 had been rented to the complaining witnesses,
Jerry White, and his girlfriend, Patricia McGowan. White and
McGowan are black; everyone in the Wyant party is white. There
was little contact between the groups for most of the evening
of June 2nd, but sometime between 10:30 and 11:45 p.m., White
went to park officials to complain of loud music coming from
the Wyant campsite. A park official went to site L-16 and
asked Wyant to turn off the radio. Wyant complied.
Fifteen or twenty minutes later the radio came on again,

and White and McGowan heard racial epithets and threats made in
a loud voice by Wyant. Specifically, Wyant was heard to say:
"We didn't have this problem until those niggers moved in next
to us," "I ought to shoot that black mother fucker," and "I
ought to kick his black ass." White and McGowan complained to
park officials and left the park.
Wyant was indicted and convicted on one count of ethnic
intimidation, R.C. 2927.12, predicated on aggravated menacing,
and sentenced to one and one-half years' imprisonment. The
court of appeals affirmed the conviction. The cause is before
the court pursuant to the allowance of a motion for leave to
appeal.
May Case: case No. 91-1519
Defendant James May, Jr. was charged with ethnic
intimidation predicated on aggravated menacing. He moved to
dismiss. The trial court dismissed on the grounds that R.C.
2927.12 is unconstitutional. The May case was consolidated
with the Plessinger/Staton case on appeal.
Plessinger/Staton Case: case No. 91-1519
Defendants Aaron Plessinger and Mark Staton were charged
with ethnic intimidation predicated on aggravated menacing.
They moved to dismiss on the grounds that R.C. 2927.12 is
unconstitutional, and on the authority of the court's decision
in the May case. The trial court dismissed. Upon motion by
the state, the court of appeals consolidated the May case with
the Plessinger/Staton case. The court of appeals affirmed the
trial court's dismissal of the ethnic intimidation charges, but
reversed and remanded for prosecution on the aggravated
menacing charges. Finding its judgment to be in conflict with
that of the Fifth District Court of Appeals in State v. Wyant
(Dec. 6, 1990), Delaware App. No. 90-CA-2, unreported, the
court certified the record of the case to this court for review
and final determination.
Van Gundy Case: case Nos. 91-1211/91-1589
Defendants Clancy Van Gundy, Casey Van Gundy, Franklin D.
Clay, Robert Blazer, Bryan Krebs, Charles Culp, and Terry
Breedlove, Jr. were each charged with seven counts of ethnic
intimidation predicated on aggravated menacing. Clancy Van
Gundy was also charged with felonious assault. He was tried
and convicted on this charge. See State v. Van Gundy
(1992), Ohio St.3d 130, 594 N.E.2d 604. The trial court
dismissed the ethnic intimidation counts, holding that R.C.
2927.12 is unconstitutional. The court of appeals affirmed,
and, also finding its judgment to conflict with State v. Wyant,
certified the record of the case to this court for review and
final determination. This cause is also before the court
pursuant to a motion for leave to appeal (case No. 91-1211).
We hereby allow the motion.

W. Duncan Whitney, Prosecuting Attorney, and Sue Ann
Reulbach, for appellee in case No. 91-199.
Lee C. Falke, Prosecuting Attorney, and Lorine M. Reid,
for appellant in case No. 91-1519.
Michael Miller, Prosecuting Attorney, Joyce S. Anderson
and Katherine J. Press, for appellants in case Nos.
91-1211/91-1589.
Lee I. Fisher, Attorney General, Simon B. Karas and Eric

A. Walker as supplementary counsel, for appellee in case No.
91-199 and appellants in case Nos. 91-1211/91-1589 and 91-1519.
Randall M. Dana, Ohio Public Defender, Susan B. Gellman
and Robert L. Lane, for appellant in case No. 91-199.
Terry L. Lewis, for appellee James B. May, Jr. in case No.
91-1519.
Gary C. Schaengold, for appellee Mark J. Staton in case
No. 91-1519.
Gary W. Crim, for appellee Aaron L. Plessinger in case No.
91-1519.
Wonnell, Janes & Wonnell Co., L.P.A., and Harold E.
Wonnell, for appellee Clancy Van Gundy in case Nos.
91-1211/91-1589.
Andrew E. Lyles, for appellee Casey Van Gundy in case Nos.
91-1211/91-1589.
Samuel B. Weiner, for appellee Franklin D. Clay in case
Nos. 91-1211/91-1589.
James Kura, Franklin County Public Defender, Allen V.
Adair and Carole B. Schneider, for appellee Robert Eric Blazer
in case Nos. 91-1211/91-1589.
Tyack & Blackmore Co., L.P.A., and Thomas M. Tyack, for
appellee Bryan Krebs in case Nos. 91-1211/91-1589.
Arnold S. White, Daniel T. Kobil and Susan B. Gellman, for
appellee Charles Culp in case Nos. 91-1211/91-1589.
Terry Breedlove, Jr., pro se, in case Nos. 91-1211/91-1589.
Bruce W. Sanford and Robert M. O'Neil, urging reversal for
amicus curiae, Thomas Jefferson Center for the Protection of
Free Expression in case No. 91-199.
Thomas A. Schaffer and Annabelle Whiting Hall, urging
reversal for amicus curiae, National Association of Criminal
Defense Lawyers in case No. 91-199, and affirmance in case Nos.
91-1211/91-1589.
Reinhart Law Office and Harry R. Reinhart; Eslocker, Grim,
Hodson & Dioguardi and Nicholette Dioguardi, urging reversal
for amicus curiae, Ohio Association of Criminal Defense Lawyers
in case No. 91-199 and affirmance in case Nos. 91-1211/91-1589.
Kevin Francis O'Neill, Ohio Legal Director, urging
reversal for amicus curiae, American Civil Liberties Union of
Ohio Foundation, Inc. in case No. 91-199.
Robert D. Horowitz, Stark County Prosecuting Attorney,
Kristine Wilson Rohrer and John E. Murphy, Executive Director;
and Paul Cox, urging affirmance for amici curiae, Ohio
Prosecuting Attorney's Association, Fraternal Order of Police
and Buckeye State Sheriff's Association in case No. 91-199.
Ronald J. O'Brien, City Attorney, Marcee C. McCreary, City
Prosecutor, and Thomas K. Lindsey, urging reversal for amicus
curiae, city of Columbus in case Nos. 91-1211/91-1589.
Jones, Day, Reavis & Pogue, Steven T. Catlett and Richard
A. Cordray; Schwartz, Kelm, Warren & Rubenstein and Nelson E.
Genshaft; Ruth L. Lansner, Steven M. Freeman and Michael
Sandburg, urging reversal for amicus curiae, Anti-Defamation
League in case Nos. 91-1211/ 91-1589.
Alphonse A. Gerhardstein, urging reversal for amici
curiae, Housing Opportunities Made Equal (HOME), East Suburban
Council for Open Communities, Toledo Fair Housing Center,
Cincinnati Human Relations Commission and National Fair Housing
Alliance in case Nos. 91-1211/91-1589.

Herbert R. Brown, J. The principal issue before us is
the constitutionality of the ethnic intimidation statute, R.C.
2927.12. Before undertaking an analysis of the statute,
however, we express our abhorrence for racial and ethnic
hatred, and especially for crimes motivated by such hatred. We
fully accept the premise which prompted the enactment of the
legislation before us: that bigotry, whether expressed merely
in words or by violence, does harm to its victims and to
society as a whole.
The ethnic intimidation statute is a well-intentioned
response to a society-threatening problem. However, the
legislative response to this problem must not violate the Ohio
and United States Constitutions. For the following reasons, we
find R.C. 2927.12 unconstitutional.
I
The Statute
R.C. 2927.12 reads:
"(A) No person shall violate section 2903.21, 2903.22,
2909.06, or 2909.07, or division (A)(3), (4), or (5) of section
2917.21 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."
The statute creates enhanced criminal penalties for some
people who commit aggravated menacing (R.C. 2903.21),1 menacing
(R.C. 2903.22),2 criminal damaging or endangering (R.C.
2909.06),3 criminal mischief (R.C. 2909.07),4 or certain types
of telephone harassment (R.C. 2917.21[A][3], [4], or [5]).5
The predicate offenses to ethnic intimidation are already
punishable acts under other statutes. Thus the enhanced
penalty must be for something more than the elements that
constitute the predicate offense. Our analysis begins with the
identification of the "something more" that is punished under
R.C. 2927.12, but which is not an element of the underlying
statutory offense. R.C. 2927.12 adds only that the violation
of one of the predicate statutes be "by reason of the race,
color, religion, or national origin of another person or group
of persons." (Emphasis added.) The statute specifies no
additional act or conduct beyond what is required to obtain a
conviction under the predicate statutes. Thus the enhanced
penalty results solely from the actor's reason for acting, or
his motive.6 We must decide whether a person's motive for
committing a crime can support either a separate, additional
crime, or an enhanced penalty for an existing crime.
II
Criminalization of Motive
Motive, in criminal law, is not an element of the crime.
In their textbook, 1 Substantive Criminal Law (1986) 318,
Section 3.6, LaFave and Scott argue that if defined narrowly
enough, motive is not relevant to substantive criminal law,
although procedurally it may be evidence of guilt, or, in the
case of good motive, may result in leniency. Other
thought-related concepts such as intent and purpose are used in

the criminal law as elements of crimes or penalty-enhancing
criteria, but motive itself is not punished. Id. at 318-324;
see, also, State v. Lampkin (Oct. 3, 1990), Hamilton App. No.
C-890273, unreported, at 5: "While motive may be relevant as a
mitigating factor in the penalty phase, it is irrelevant to
the guilt-phase determination * * *"; Gellman, Sticks and
Stones Can Put You in Jail, but Can Words Increase Your
Sentence? Constitutional and Policy Dilemmas of Ethnic
Intimidation Laws (1991), 39 UCLA L.Rev. 333.
There is a significant difference between why a person
commits a crime and whether a person has intentionally done the
acts which are made criminal. Motive is the reasons and
beliefs that lead a person to act or refrain from acting. The
same crime can be committed for any of a number of different
motives. Enhancing a penalty because of motive therefore
punishes the person's thought, rather than the person's act or
criminal intent.
Application of the Ohio and United States Constitutions to
the statute before us requires careful attention to the
distinctions between motive and intent as well as the line
which separates a thought from an act. These distinctions can
best be understood in the context of specific applications
which arise in criminal jurisprudence.
A
Motive versus Criminal Intent
Culpable mental state, or intent, is usually required to
find one guilty of a crime.7 "Intent" refers to the actor's
state of mind or volition at the time he acts. Did A intend to
kill B when A's car hit B's, or was it an accident? This is
not the same as A's motive, which is why A intentionally killed
B.8 When A murders B in order to obtain B's money, A's intent
is to kill and the motive is to get money. LaFave and Scott,
supra, at 319. One can have motive without intent, or intent
without motive. For instance, the wife of a wealthy but
disabled man might have a motive to kill him, and yet never
intend to do so. A psycopath, on the other hand, may intend to
kill and yet have no motive.
B
Motive versus Purpose to Commit Another Criminal Act
Purpose to commit an additional criminal act is frequently
seen in criminal statutes as a basis for enhanced penalty or as
creating a separate, more serious crime. For example, burglary
is a trespass "with purpose" to commit a theft offense or
felony.9 Purpose in this context is not the same as motive.
What is being punished is the act of trespass, plus the
additional act of theft, or the intent to commit theft. Upon
trespassing, A's intent is to commit theft, but the motive may
be to pay debts, to buy drugs, or to annoy the owner of the
property.10 The object of the purpose is itself a crime. Thus
the penalty is not enhanced solely to punish the thought or
motive.
Criminal penalties are often enhanced using the concept of
an aggravating circumstance. These also are distinguishable
from motive. For example, under R.C. 2929.04, any of a number
of aggravating circumstances can increase the penalty for
aggravated murder to death.11 Among these is murder committed
"for the purpose of" escaping another offense. R.C. 2929.04

(A)(3). The basis for enhancing the penalty in this case is
once again an additional act or intent. Escaping another
offense is in itself a crime. The enhanced penalty for murder
does not stem from motive (i.e., preference of life on the
street to life in prison), but from the additional act of
escape, or the intent to escape.
C
Motive versus Criminal Act
R.C. 2929.04(A)(2) declares murder for hire to be an
aggravating circumstance. This is not properly seen as
enhancing the penalty for a mercenary motive. Hiring is a
transaction. The greater punishment is for the additional act
of hiring or being hired to kill. The motive for the crime
(such as jealousy, greed or vengeance) is not punished.
Some aggravating circumstances involve the identity of the
victim, such as a peace officer or governmental official. R.C.
2929.04 (A)(1), (6). The legislature has decided, in these
instances, that acts against certain individuals are more
serious criminal acts. Imposing a higher penalty for killing
the Governor than for killing an ordinary citizen is similar to
imposing a higher penalty for stealing a painting worth $1,000
than for stealing one worth only $5.
Under the above analysis, the legislature could decide
that blacks are more valuable than whites, and enhance the
punishment when a black is the victim of a criminal act. Such
a statute would pass First Amendment analysis because the
motive or the thought which precipitated the attack would not
be punished. However, R.C. 2927.12 could not have been written
that way because such a statute would not survive analysis
under the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution.
D
Motive in the Antidiscrimination Laws
Federal and state laws against discrimination in
employment, housing and education do prohibit acts committed
with a discriminatory motive. However, they are analytically
distinct in several ways from the statute in question here. It
is the act of discrimination that is targeted, not the motive.
There are two theories by which a case can be made under
the federal laws against employment discrimination; these are
characterized as "disparate impact" and "disparate treatment."
Under a disparate-impact analysis, an employment practice that
is neutral on its face, but falls more harshly on a protected
group, can be used to show employment discrimination. Griggs
v. Duke Power Co. (1971), 401 U.S. 424, 91 S.Ct. 849, 28
L.Ed.2d 158; Teamsters v. United States (1977), 431 U.S. 324,
335-336, 97 S.Ct. 1843, 1854-1855, 52 L.Ed.2d 396, 415, fn.
15. No discriminatory motive is necessary under this
analysis.
Under a disparate-treatment analysis, the employer treats
some people less favorably than others because of race, color,
religion, sex or national origin. Discriminatory motive is
necessary to this theory. Id. However, proof of
discriminatory motive can be inferred from differences in
treatment. Arlington Hts. v. Metro. Hous. Dev. Corp. (1977),
429 U.S. 252, 265-266, 97 S.Ct. 555, 563-564, 50 L.Ed.2d 450,
464-465. It is discriminatory treatment that is the object of

punishment, not the bigoted attitude per se. "* * * Congress
directed the thrust of the Act to the consequences of
employment practices, not simply the motivation." Griggs,
supra, at 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165. It is the
act of discrimination which is punished, not the thoughts (or
bigotry) of the actor. Bigoted motive by itself is not
punished, nor does proof of motive enhance the penalty when a
discriminatory act is being punished.
III
The Constitutional Objection to Punishment of Thought
Neither the United States nor the Ohio Constitution
explicitly prohibits the punishment of thought. Both guarantee
the right to freedom of speech.12 Federal First Amendment
jurisprudence has long recognized that freedom of speech
presupposes freedom of thought. As Justice Stewart said in
Abood v. Detroit Bd. of Edn. (1977), 431 U.S. 209, 234-235, 97
S.Ct. 1782, 1799, 52 L.Ed.2d 261, 284:
"[A]t the heart of the First Amendment is the notion that
an individual should be free to believe as he will, and that in
a free society one's beliefs should be shaped by his mind and
his conscience rather than coerced by the State."
Likewise, Justice Jackson in West Virginia State Bd. of
Edn. v. Barnette (1943), 319 U.S. 624, 642, 63 S.Ct. 1178,
1187, 87 L.Ed. 1628, 1639, stated as follows:
"If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion * * *."
And Justice Marshall in Stanley v. Georgia (1969), 394
U.S. 557, 565-566, 89 S.Ct. 1243, 1248-1249, 22 L.Ed.2d 542,
550, stated as follows:
"* * * Our whole constitutional heritage rebels at the
thought of giving government the power to control men's minds.
"* * * [The State] cannot constitutionally premise
legislation on the desirability of controlling a person's
private thoughts."
Such statements are made in the context of cases in which
laws regulate speech or expressive conduct of some kind. The
question before us is not whether the government can regulate
the conduct itself. Clearly the government can, and has
already done so by criminalizing the behavior in the predicate
statutes.13 The issue here is whether the government can
punish the conduct more severely based on the thought that
motivates the behavior.
Under the First Amendment there are unprotected forms of
expression. The state is allowed to punish those utterances
that "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." Chaplinsky v. New
Hampshire (1942), 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86
L.Ed. 1031, 1035. It does not follow, however, that there are
unprotected forms of belief.
The freedoms of speech, press, religion and assembly are
guaranteed together in the First Amendment because they share a
core value: the freedom of an individual to frame his thoughts
and beliefs. The Constitution of Ohio is even more specific;

it guarantees to every citizen freedom to "speak, write, and
publish his sentiments on all subjects." It follows that a
citizen of Ohio is free to have "sentiments on all subjects."
By enacting R.C. 2927.12, the state has infringed this
basic liberty. Once the proscribed act is committed, the
government criminalizes the underlying thought by enhancing the
penalty based on viewpoint. This is dangerous. If the
legislature can enhance a penalty for crimes committed "by
reason of" racial bigotry, why not "by reason of" opposition to
abortion, war, the elderly (or any other political or moral
viewpoint)?14
Within constitutional bounds, the legislature determines
what constitutes a crime. We review that determination only to
see if it comports with the Ohio and United States
Constitutions. If the thought or motive behind a crime can be
separately punished, the legislative majority can punish
virtually any viewpoint which it deems politically undesirable,
for example, a crime committed because the perpetrator (a)
dislikes homosexuals, (b) likes homosexuals, (c) likes or
dislikes the elderly--and so on. It requires little
imagination to see the ramifications.
We recognize and are sensitive to the emotionally charged
nature of the issues involved. We reemphasize that we in no
way condone the acts and alleged acts that bring these cases
before us. However, the very reason for the First Amendment
and Section 11, Article I is to protect the individual against
a state that is hostile simply because of the person's belief.
The constitutional protection accorded to beliefs is most
important when the beliefs are reviled by society. As Justice
Douglas of this court has said:
"This guarantee of freedom is one of our most cherished
rights and, as such, has been and continues to be under attack
by persons, well-meaning and otherwise, who see attempted
curtailment as being in the 'public good.' * * * It is
important to often repeat that the freedoms * * * guaranteed by
the First Amendment must be accorded to the ideas we hate or
sooner or later they will be denied to the ideas we cherish."
Local Lodge 1297 v. Allen (1986), 22 Ohio St.3d 228, 236, 22
OBR 407, 414, 490 N.E.2d 865, 872 (Douglas, J. concurring)
Justice Black, in his seminal dissent in Beauharnais v.
Illinois (1952), 343 U.S. 250, 274, 72 S.Ct. 725, 739, 96 L.Ed.
919, 936, put the issue as follows:
"* * * The motives behind the state law may have been to
do good. But the same can be said about most laws making
opinions punishable as crimes. History indicates that urges to
do good have led to the burning of books and even to the
burning of 'witches.'"
Justice Black's position has become the accepted one in
First Amendment jurisprudence. Justice Burger addressed the
issue in Houchins v. KQED, Inc. (1978), 438 U.S. 1, 13, 98
S.Ct. 2588, 2596, 57 L.Ed.2d 553, 564: "We must not confuse
what is 'good,' 'desirable,' or 'expedient' with what is
constitutionally commanded by the First Amendment."
Applying these principles, we believe that the government
is not free to punish an idea, though it may punish acts
motivated by the idea. It may also punish unprotected speech
expressing the idea.

The United States Supreme Court recently addressed the
constitutionality of another so-called "hate crimes" law.
R.A.V. v. St. Paul (1992), 505 U.S. , 112 S.Ct. 2538, 120
L.E.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 (June 23,
1992), Wis.2d , , 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 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 infringment 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.
Based upon the foregoing authorities and our analysis of

the statute, we find that the effect of R.C. 2927.12 is to
create a "thought crime." This violates Section 11, Article I
of the Ohio Constitution, and the First and Fourteenth
Amendments to the United States Constitution.
Conduct motivated by racial or religious bigotry can be
constitutionally punished under the criminal code without
resort to constructing a thought crime. In fact, the behavior
which is alleged in each case before us can be punished under
the criminal statutes identified in R.C. 2927.12. We agree
with Justice Scalia when he observed that the government "has
sufficient means at its disposal to prevent such behavior
without adding the First Amendment to the fire." R.A.V. v. St.
Paul, supra, 505 U.S. at , 112 S.Ct. at 2550, 120 L.Ed.2d at
326.
The parties also make constitutional challenges to R.C.
2927.12 on the grounds of (1) vagueness, (2) equal protection,
(3) due process and (4) overbreadth. These arguments may have
merit, especially in view of the concurring opinion by Justice
White in R.A.V. v. St. Paul, supra, 505 U.S. at , 112 S.Ct.
at 2550, 120 L.Ed.2d at 327. However, because of our holding
we need not address these challenges.
IV
The Specific Cases Before Us
Having so held, we turn to the specific cases which are
before us. Constitutional protection of thought does not
shield a citizen from punishment for proscribed acts. Although
the ethnic intimidation statute is invalid, the predicate
offenses are punishable. As these offenses are mentioned
specifically in R.C. 2927.12, they constitute lesser included
offenses to ethnic intimidation.
In case No. 91-199, the jury was instructed that it could
find David Wyant guilty of ethnic intimidation only if it first
found him guilty of aggravated menacing. The verdict indicates
that the jury found him guilty of aggravated menacing.
In case Nos. 91-1519 and 91-1211/91-1589, although the
defendants cannot be tried under R.C.2927.12, the lesser
included offenses remain viable charges.
Based on the foregoing, in case No. 91-199 we reverse the
court of appeals, vacate sentence on the conviction for ethnic
intimidation, and remand for sentencing on the charge of
aggravated menacing. We affirm the judgment of the court of
appeals in case No. 91-1519. In case Nos. 91-1211/91-1589, we
affirm the dismissal for ethnic intimidation, but remand for
further proceedings on the underlying aggravated menacing
charges.
Judgments accordingly.
In Case Nos. 91-199 and 91-1519:
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and Resnick,
JJ., concur.
In Case Nos. 91-1211 and 91-1589:
Moyer, C.J., Utz, Holmes, Douglas, Wright and Resnick,
JJ., concur.
Eugene J. Utz, J., of the First Appellate District,
sitting for Sweeney, J.
FOOTNOTES:
1 R.C. 2903.21 (aggravated menacing) reads in part:
"(A) No person shall knowingly cause another to believe

that the offender will cause serious physical harm to the
person or property of such other person or member of his
immediate family."
2 R.C. 2903.22 (menacing) reads in part:
"(A) No person shall knowingly cause another to believe
that the offender will cause physical harm to the person or
property of such other person or member of his immediate
family."
3 R.C. 2909.06 (criminal damaging or endangering) reads
in part:
"(A) No person shall cause, or create a substantial risk
of physical harm to any property of another without his consent:
"(1) Knowingly, by any means;
"(2) Recklessly, by means of fire, explosion, flood,
poison gas, poison, radioactive material, caustic or corrosive
material, or other inherently dangerous agency or substance."
4 R.C. 2909.07 (criminal mischief) reads in part:
"(A) No person shall:
"(1) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with the
property of another."
5 R.C. 2917.21 (telephone harassment) reads in part:
"(A) No person shall knowingly make or cause to be made a
telephone call, or knowingly permit a telephone call to be made
from a telephone under his control, to another, if the caller
does any of the following:
"* * *
"(3) During the telephone call, violates section 2903.21
of the Revised Code;
"(4) Knowingly states to the recipient of the telephone
call that he intends to cause damage to or destroy public or
private property, and the recipient of the telephone call, any
member of the family of the recipient of the telephone call, or
any other person who resides at the premises to which the
telephone call is made owns, leases, resides, or works in, will
at the time of the destruction or damaging be near or in, has
the responsibility of protecting, or insures the property that
will be destroyed or damaged;
"(5) Knowingly makes the telephone call to the recipient
of the telephone call, to another person at the premises to
which the telephone call is made, or to the premises to which
the telephone call is made, and the recipient of the telephone
call, or another person at the premises to which the telephone
call is made, has previously told the caller not to call the
premises to which the telephone call is made or not to call any
persons at the premises to which the telephone call is made."
6 Webster's Ninth New Collegiate Dictionary (1984) 981,
defines "reason" in part as "a rational ground or motive."
7 The Ohio statute on culpable mental states, R.C.
2901.22, reads:
"(A) A person acts purposely when it is his specific
intention to cause a certain result, or, when the gist of the
offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby,
it is his specific intention to engage in conduct of that
nature.
"(B) A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such
circumstances probably exist.
"(C) A person acts recklessly when, with heedless
indifference to the consequences, he perversely disregards a
known risk that his conduct is likely to cause a certain result
or is likely to be of a certain nature. A person is reckless
with respect to circumstances when, with heedless indifference
to the consequences, he perversely disregards a known risk that
such circumstances are likely to exist.
"(D) A person acts negligently when, because of a
substantial lapse from due care, he fails to perceive or avoid
a risk that his conduct may cause a certain result or may be of
a certain nature. A person is negligent with respect to
circumstances when, because of a substantial lapse from due
care, he fails to perceive or avoid a risk that such
circumstances may exist.
"(E) When the section defining an offense provides that
negligence suffices to establish an element thereof, then
recklessness, knowledge, or purpose is also sufficient
culpability for such element. When recklessness suffices to
establish an element of an offense, then knowledge or purpose
is also sufficient culpability for such element. When
knowledge suffices to establish an element of an offense, then
purpose is also sufficient culpability for such element."
8 Black's makes the distinction as well; under the
definition of "intent" it states: "Intent and motive should
not be confused. Motive is what prompts a person to act, or
fail to act. Intent refers only to the state of mind with
which the act is done or omitted." Black's Law Dictionary (6
Ed. 1990) 810.
9 The Ohio statutes on aggravated burglary and burglary,
respectively, state:
"2911.11 Aggravated burglary.
"(A) No person, by force, stealth, or deception, shall
trespass in an occupied structure, as defined in section
2909.01 of the Revised Code, or in a separately secured or
separately occupied portion thereof, with purpose to commit
therein any theft offense, as defined in section 2913.01 of the
Revised Code, or any felony, when any of the following apply:
"(1) The offender inflicts, or attempts or threatens to
inflict physical harm on another;
"(2) The offender has a deadly weapon or dangerous
ordnance, as defined in section 2923.11 of the Revised Code, on
or about his person or under his control;
"(3) The occupied structure involved is the permanent or
temporary habitation of any person, in which at the time any
person is present or likely to be present.
"(B) Whoever violates this section is guilty of aggravated
burglary, an aggravated felony of the first degree."
"2911.12 Burglary.
"(A) No person, by force, stealth, or deception, shall do
any of the following:
"(1) Trespass in an occupied structure or in a separately
secured or separately occupied portion thereof, with purpose to
commit therein any theft offense or any felony;

"(2) Trespass in a permanent or temporary habitation of
any person when any person is present or likely to be present,
with purpose to commit in the habitation any misdemeanor that
is not a theft offense;
"(3) Trespass in a permanent or temporary habitation of
any person when any person is present or likely to be present.
"(B) As used in this section:
"(1) 'Occupied structure' has the same meaning as in
section 2909.01 of the Revised Code.
"(2) 'Theft offense' has the same meaning as in section
2913.01 of the Revised Code.
"(C) Whoever violates this section is guilty of
burglary. A violation of division (A)(1) of this section is an
aggravated felony of the second degree. A violation of
division (A)(2) of this section is a felony of the third
degree. A violation of division (A)(3) of this section is a
felony of the fourth degree."
10 LaFave and Scott characterize purpose as a "medial
end":
"* * * While some have taken the contrary view, it is
undoubtedly better, for purposes of analysis, to view such
crimes as not being based upon proof of a bad motive. This can
be accomplished by taking the view that intent relates to the
means and motive to the ends, but that where the end is the
means to yet another end, then the medial end may also be
considered in terms of intent." (Emphasis sic, footnotes
omitted.) LaFave and Scott, 1 Substantive Criminal Law (1986)
320.
11 R.C. 2929.04 reads in part:
"(A) Imposition of the death penalty for aggravated murder
is precluded, unless one or more of the following is specified
in the indictment or count in the indictment pursuant to
section 2941.14 of the Revised Code and proved beyond a
reasonable doubt:
"(1) The offense was the assassination of the president of
the United States or person in line of succession to the
presidency, or of the governor or lieutenant governor of this
state, or of the president-elect or vice president-elect of the
United States, or of the governor-elect or lieutenant
governor-elect of this state, or of a candidate for any of the
foregoing offices. * * *
"(2) The offense was committed for hire.
"(3) The offense was committed for the purpose of escaping
detection, apprehension, trial, or punishment for another
offense committed by the offender.
"* * *
"(6) The victim of the offense was a peace officer, as
defined in section 2935.01 of the Revised Code, whom the
offender had reasonable cause to know or knew to be such, and
either the victim, at the time of the commission of the
offense, was engaged in his duties, or it was the offender's
specific purpose to kill a peace officer."
12 The First Amendment to the United States Constitution
reads:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the
Government for a redress of grievances."
Section 11, Article I of the Ohio Constitution reads:
"Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse of
the right; and no law shall be passed to restrain or abridge
the liberty of speech, or of the press. In all criminal
prosecutions for libel, the truth may be given in evidence to
the jury, and if it shall appear to the jury, that the matter
charged as libelous is true, and was published with good
motives, and for justifiable ends, the party shall be
acquitted."
13 The parties do not contest that the predicate offenses
are punishable.
14 As Judge West of the Franklin County Court of Common
Pleas said:
"[T]his statute would enhance the punishment of a crime
based upon the thoughts of the defendant, a hideous legal
concept and inimical to American jurisprudence." State v. Van
Gundy (Mar. 28, 1990), Franklin C.P. No. 89-CR-11-5166,
unreported.