COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 58677, 58691, 58692 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BETTY ABBOTT [58677]: JOHN BECK [58691]: WALTER ALLEN [58692]: : Defendant-appellants : : DATE OF ANNOUNCEMENT : DECEMBER 19, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court : Case Nos. 89-CRB-10502, 89-CRB-10509, 89-CRB-10660 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellants: CRAIG S. MILLER HILARY S. TAYLOR, ESQ. Director of Law JOHN G. FARNAN, ESQ. Courts Tower- Justice Center ELLEN LOTH, ESQ. 1200 Ontario Street 2500 Terminal Tower Cleveland, OH 44113 Cleveland, OH 44113-2241 - 1 - PATTON, J., Defendant-appellants Betty Abbott ("Abbott"), Walter Allen ("Allen"), and John Beck ("Beck") (collectively "appellants") timely appeal their convictions in the Cleveland Municipal Court for criminal trespass (Cleveland Codified Ordinances Section 623.04), aggravated disorderly conduct (Cleveland Codified Ordinances Section 605.03), and resisting arrest (Cleveland Codified Ordinances Section 615.08). In their assignments of error, they challenge the trial court's evidentiary rulings and the constitutionality of the criminal trespass and disorderly conduct ordinances. Appellants' contentions lack merit. There- fore, we affirm their convictions. The following relevant facts gave rise to this appeal: The appellants, at the time of their arrest, were part of an anti- abortion protest at the University-Cedar Medical Building ("Building"). The Building housed an abortion clinic, among other miscellaneous medical offices and is private property owned and operated by the University Carnegie Partner Association, with its agent being Jacob Frydman. On the morning of May 20, 1989, anti-abortion protesters congregated at the site of the Building and were met by members of the Cleveland Police Department, under the direction of Com- mander William Stanley ("Commander Stanley"). Pro-choice - 3 - supporters were also present and were allegedly gathered to aid persons wishing to have an abortion into the Building. The Cleveland Police Department was notified in advance of this protest and was therefore able to mobilize its forces to handle crowd control and further protect the citizens. The protest and arrests were filmed and the videotape was admitted into evidence. Also, the jury viewed the scene. The videotape and testimony revealed that the anti-abortion protesters were singing songs, picketing, and some were carrying placards with various anti-abortion messages. The anti-abortion protesters then sat down while singing and chanting, on the side and front of the Building, blocking ingress and egress. The protesters acted as a blockade to those wishing to enter or exit the Building. Significantly, the videotape revealed that the protesters were in the driveway and under the overhang which led to the doors of the Building as well as in the front of the Building blocking the doors. Three warnings to cease and desist were given by Commander Stanley. The protesters did not heed Commander Stanley's warning that they would be arrested if they did not cease and desist immediately. Thereafter, the police officers effectuated one hundred and six arrests. The protesters had to be physically removed from the premises by the officers. The jury was able to identify Allen and Beck on the video- tape. The two men were located on the side of the Building - 4 - blocking ingress and egress. Abbott was seen sitting in the doorway of the Building, also blocking ingress and egress. Appellants now assign the following errors for our review: A. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION IN LIMINE STRIKING DEFENDANTS' DEFENSES UNDER THE FIRST AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION. B. THE STATUTES ARE UNCONSTITUTIONAL AS ENFORCED BECAUSE THE CITY IS GIVEN UNBRIDLED DISCRE- TION AND THE CITY CHOSE TO SELECTIVELY ENFORCE THE LAW. C. THE GRANTING OF A MOTION IN LIMINE OF THE COURT WAS EXTREMELY INAPPROPRIATE UNDER THE CIRCUMSTANCES. D. THE TRIAL COURT ERRED IN EXCLUDING DEFEN- DANTS' EVIDENCE ON THE FIRST AND FOURTEEN (sic) AMENDMENTS TO THE UNITED STATES CONSTITUTION. E. THE TRIAL COURT ERRED IN STRIKING DEFENDANTS' NECESSITY DEFENSE ON PLAINTIFFS'S MOTION IN LIMINE EXCLUDING ALL EVIDENCE OR COMMENT ON THE DEFENSE DURING TRIAL. F. THE DEFENDANTS WERE DENIED A FAIR TRIAL AND THEIR COUNSEL WERE PRECLUDED FROM PRESENTING EVIDENCE FAVORABLE TO DEFENDANTS. G. THE TRIAL COURT ERRED IN ALLOWING IMPROPER IDENTIFICATION OF THE DEFENDANTS. H. THE TRIAL COURT ERRED IN PRESIDING OVER A TRIAL EVEN THOUGH HARBORING A STRONG BIAS AGAINST DEFENDANTS' COUNSEL, EDWARD HEBEN. - 5 - I. Appellants essentially argue the trial court erred in granting the City of Cleveland's (the "City") motion in limine. Specifically, appellants argue they were prejudiced by the trial court's exclusion of the following evidence or arguments before the jury: (1) that the first amendment to the United States Constitution protected their protest activities because the sidewalks outside of the Building constituted a constitutionally protected public forum; and (2) that the defense of necessity was indeed applicable as appellants were legally justified in reasonably believing a crime was being committed on the premises, to wit: women were murdering their unborn children. A brief review of the development of first amendment rights of free speech is appropriate in order to understand the issues before us. The United States Supreme Court has held that, in limited circumstances, private property rights must yield to free speech. Marsh v. Alabama (1946), 326 U.S. 501. In Marsh, the Court reversed a criminal trespass conviction of a Jehovah's Witness who distributed religious literature on the street of a company-owned town. The Court reasoned that there was essen- tially no distinction between a company town and a municipality since "the public in either case has an identical interest of the functioning of the community in such a manner that the channels of communication remain free." Id. at 507. The court went on to state "[t]he more an owner, for his advantage, opens up his - 6 - property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. ***" Id. at 506. Several decades later, the Court in Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc. (1968), 391 U.S. 308, denied an injunction to a shopping center owner and super- market owner against union pickets. The court reasoned that the state's trespass laws could not serve to deny access to the union pickets in a shopping center which served as a community business block and was freely accessible and open to the people in the area and those passing through. The Court likened the shopping center to a business district and held that the public may exercise its first amendment rights on the premises "in a manner and for a purpose generally consonant with the use to which the property is actually put." Id. at 319-20. However, in Lloyd Corp., Ltd. v. Tanner (1972), 407 U.S. 551, the Court held a shopping mall owner could prohibit persons from distributing anti-war materials in the mall as the mall was clearly private property. The Court distinguished its prior ruling in Marsh, in its decision in Lloyd by stating that: The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state- created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is - 7 - no comparable assumption or exercise of municipal functions or power. "Nor does property lose its private character merely because the public is generally invited to use it for designated purposes. Few would argue that a free-standing store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center. ***" Id. at 569. The Court also distinguished Logan Valley by reasoning that the anti-war messages of the protesters were unrelated to the business of the shopping center. However, this content-based restriction was later rejected in Hudgens v. Natl. Labor Relations Bd. (1976), 424 U.S. 507, where the Court acknowledged that the content of speech cannot serve as a basis for regula- tion, Id. at 520, and held that striking employees had no first amendment right to advertise their protest on the grounds of a privately-owned shopping center. Hence, after Hudgens, Lloyd governs. Logan Valley no longer applies as upholding content- based regulation. Moreover, the Ohio Supreme Court addressed the first amend- ment issue as it relates to anti-abortion protesters in Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio St. 3d 56. In Project Jericho, the court upheld the granting of an injunction against a group of anti-abortion pro- testers who were on the premises and surrounding sidewalks of a - 8 - clinic which, as part of its operations, conducted abortions. The court held the protesters were shouting, chanting, harassing and intimidating staff and patients, blocking access to the building and on the sidewalk, and generally disrupting the operation of the clinic. As a preliminary matter, the Project Jericho court noted that although the first amendment guarantees the right to publicly communicate views and express dissension by speaking, marching, picketing or otherwise acting to inform or persuade others of their beliefs, demonstrators do not have the right to imperil public safety or harass others in the exercise of their rights. Id., at 59 (citations omitted). In the instant matter, the arrests were not based on the subject matter but resulted from conduct which included blocking persons from entering the building and further blocking the driveway, entrances or exits from the medical building and the public walkway in front of it. Id. at 60. Alternative channels of communication are available. Appellants are free to pass out literature, express opinions and beliefs, and picket within reasonable limits. Id. It is not necessary to block access to facilities or disrupt the operations of a medical clinic in order to exercise one's constitutional guarantees to express opinion. Id. Hence, Abbott, who was blocking access to the front entrance of the Building, and Allen and Beck, who were on the side of the - 9 - Building blocking that entrance and exit were properly prohibited from introducing evidence that the first amendment operated as a defense to their actions. This court in Cleveland v. Sundermeier (1989), 48 Ohio App. 3d 204, a factually similar case, upheld the defendant's convic- tion for a violation of Cleveland Municipal Ordinance Section 623.04, criminal trespass. The defendant was in a private parking lot at a medical building which housed an abortion clinic. According to the facts in Sundermeier, the defendant was partaking in "anti-abortion efforts." Id. at 205. He refused to leave after a security guard contacted him and requested numerous times that he leave. We distinguished Sundermeier from Lloyd, and reasoned that the property was not public or quasi-public; the property was not open to the public as was the shopping mall in Lloyd; the defendant was arrested in an area in between two office buildings, one of which housed the abortion clinic and one other tenant; the medical building housed other health service tenants, a pharmacy and a restaurant-snack bar; and the parking lot was available to only those individuals doing business in the medical buildings. Id. at 206-07. Because the property "contained far fewer attributes of public property than the mall in Lloyd, ***" we found the trial court properly excluded any evidence relating to the first amendment. Id. at 207. As in Sundermeier, the record in this case discloses that appellants were on property that was not generally open to the - 10 - public as in the shopping mall in Lloyd; the appellants were blocking the doorways on the side and front of the Building prohibiting ingress and egress; the Building contained other medical offices than just the abortion clinic; and the parking lot was available to those doing business in the medical building which access was had by a driveway on the side of the Building where the protesters were gathered. Hence, the property, as in Sundermeier, contained far fewer attributes of public property as compared to the shopping mall in Lloyd. Accordingly, the trial court did not err in excluding evidence and arguments regarding first amendment issues. Appellants also argue the trial court erred in disallowing evidence of their "necessity" defense. We do not find error in this exclusion. "The defense of necessity excuses criminal acts when the harm which results from compliance with the law is greater than that which results from a violation of the law. [Citations omitted.]" Sundermeier, supra. Moreover, necessity is not a defense if alternatives to the criminal conduct are available. Id. citing Cleveland v. Sabo (May 14, 1981), Cuyahoga App. Nos. 41999 and 42004, unreported, at 6-7. This court has previously rejected the necessity defense argument in Sundermeier, supra. We held the trial court properly refused to allow the jury to consider the defendant's defense of necessity. - 11 - Accordingly, this assignment of error is overruled. II. Appellants next argue the trial court erred in overruling their motion to dismiss based on selective prosecution. Specifi- cally, appellants contend the City selected them for prosecution based upon "their exercise of religious and political beliefs" and did not arrest the pro-choice supporters who were also present. (Appellants' Brief at p. 17.) Appellants also argue that through research of prosecutions under the criminal trespass statute, their prosecutions were the only ones in which the City requested they be prosecuted as first degree misdemeanants, not as fourth degree misdemeanants due to an ambiguity in the ordinance. Appellants further argue they were wrongfully denied an evidentiary hearing on this issue. The standard for selective prosecution was stated in State v. Flynt (1980), 63 Ohio St. 2d 132, 134: The conscious exercise of some selectivity in enforcement is not in itself, however, a violation of the United States Constitution. Oyler v. Boles (1962), 368 U.S. 448, 456. In order for selective enforcement to reach the level of unconstitutional discrimination the discrimination must be "inten- tional or purposeful." Snowden v. Hughes (1944), 321 U.S. 1, 8. This concept of "intentional or purposeful discrimination" was explained in United States v. Berrios (C.A. 2, 1974), 501 F.2d 1207, 1211, as follows: "To support a defense of selective or discrimina- tory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of con- duct of the type forming the basis of the charge - 12 - against him, he has been singled out for prosecu- tion, and (2) that the government's discriminatory selection of him for prosecution has been invidi- ous or in bad faith, i.e., based upon such imper- missible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are some- times referred to as 'intentional and purposeful discrimination.'" In United States v. Hazel (C.A. 6, 1983), 696 F.2d 473, 475, the Sixth Circuit Court of Appeals held: "*** it is only when this prima facie showing has been made and the defendant has proven a 'color- able entitlement' to a dismissal for selective prosecution, that an evidentiary hearing should be held. United States v. Brown, 591 F.2d 307, 310- 11 (5th Cir. 1979). A mere allegation that the exercise of First Amendment rights led to the prosecution does not mandate a full evidentiary hearing. Rather, '[a] hearing is necessary only when the motion alleges sufficient facts to take the question past the frivolous state and raises a reasonable doubt as to the prosecutor's purpose.' United States v. Larson, 612 F.2d 1301, 1304-05 (8th Cir. 1980)." In this case, appellants did not establish a prima facie showing of selective prosecution. In their motions, the appel- lants merely make an assertion that the pro-choice supporters were not arrested. This assertion does not meet the requirements for a prima facie showing of selective prosecution, nor does it entitle them to an evidentiary hearing. See Hazel, supra, at 475. Further, the prosecution of appellants proceeded under the applicable ordinances as fourth degree misdemeanants. The City's argument of ordinance construction was rejected by the trial - 13 - court. Appellants cannot show any intentional and purposeful discrimination or any resulting prejudice. Accordingly, this argument is overruled. III. Appellant's also argue the disorderly conduct and criminal trespass ordinances are unconstitutional as applied. Specifi- cally, they contend these ordinances served to selectively prosecute appellants based upon their religious and political beliefs; hence, the ordinances are therefore void for vagueness. The burden is on appellants, the parties making the attack on the application of the statute or ordinance, to present clear and convincing evidence of a "presently existing state of facts which makes the act unconstitutional and void when applied thereto." State v. Renalist, Inc. (1978), 56 Ohio St. 2d 276, 279. They assert that they were victims of selective prosecution which rendered the ordinances void for vagueness. This argument is flawed and unsupported in law and fact. In this case, appel- lants offer no set of facts which demonstrate that the City ordinances are void for vagueness. See Toledo v. Carpenter (Dec. 14, 1990), Lucas App. No. L-90-022, unreported, at 9, citing Cox, supra, at 554, 555. Moreover, appellants base their argument on the fact they were selectively prosecuted. We have already held they were not selected for prosecution. See Argument II., infra. Accordingly, this argument is overruled. - 14 - IV. Appellants also challenged the trial court's limitation of defense counsel's cross-examination of certain witnesses. Specifically, they argue the court erred in sustaining the prosecutor's objections to defense counsel's attempts to elicit testimony on cross-examination. It is well established that "[t]he scope of cross-examina- tion and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge." O'Brien v. Angley (1980), 63 Ohio St. 2d 159, 163. Hence, the standard of review of such evidentiary rulings is abuse of discretion. Id.; Renfro v. Black (1990), 52 Ohio St. 3d 27, 33. The trial court's rulings will not be disturbed on appeal unless the trial court's attitude was unreasonable, arbi- trary or unconscionable. Id. Our review of the record reveals the trial judge did not abuse her discretion in her evidentiary rulings on cross- examination. The trial judge sustained the prosecutor's objections to irrelevant and inadmissible evidence. Further, appellants have not demonstrated any resulting prejudice. Accordingly, this argument is overruled. V. Appellants argue the court erred in allowing an improper identification of Allen and Beck. Specifically, they contend a - 15 - patrol officer's identifications of them were "prompted and cajoled." Our review of the transcript lends a different interpreta- tion of the testimony. The officer merely testified that if he saw Beck in a crowd he could not pick him out. The jury viewed the videotape and was able to identify the appellants without question. Identity is not at issue. Accordingly, this argument is overruled. VI. In their final argument, appellant's contend the trial judge's animosity towards one of the attorneys for appellants prejudiced their rights. Specifically, appellants argue that after two affidavits of disqualification were filed against the judge, she became biased and was therefore unable to preside over the case. Appellants do not cite any law nor do they argue a set of facts indicating how they were prejudiced. Moreover, our review of the allegedly biased statements by the judge to one of the attorneys for the defense does not reveal prejudice, but only reflects chastisements and admonitions to counsel concerning courtroom behavior. Accordingly, this argument is overruled. Judgment affirmed. - 16 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. JOHN F. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .