COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61106 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHERYL LESSIN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 23, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-256,379 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor GEORGE F. LONJAK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: CHRISTOPHER STANLEY Attorney at Law 902 Rockefeller Building Cleveland, Ohio 44113 (Cont.) (Cont.) For defendant-appellant: ALAN ROSSMAN Attorney at Law 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 TERRY GILBERT Attorney at Law 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Cheryl Lessin, timely appeals the jury finding that appellant is guilty of inciting to violence (R.C. 2917.01). For the reasons set forth below, we affirm the appel- lant's conviction. The pertinent testimony adduced at trial is as follows: Patrolman George Deli of the Cleveland Police Department testified that on August 10, 1990, at approximately 4:45 p.m., he and Detective Sowa were patrolling the area of East 40th Street and Euclid Avenue in an unmarked police car when they received a call to respond to the Public Square area. At approximately 5:00 p.m., Officer Sowa parked the vehicle about forty yards away from Terminal Tower. As Officer Deli exited the car, he observed a crowd of approximately 100-150 people pushing and shoving each other in confusion. He observed the appellant, along with two other women, rushing through the crowd in an S-shape pattern, shoving people, throwing punches, and being punched at in the crowd. The three women were all wearing white T-shirts with a picture of Mao Tse Tung on the front. The officer testified appellant was hollering, "Fuck the United States. I hate this country. Long live the Revolutionary Communist Party." When appellant circled around to head back through the crowd, an - 2 - elderly lady was knocked to the ground by the crowd. The officer stopped the appellant and placed her under arrest both because the crowd was getting out of control and for her own safety. Shortly thereafter, peace was restored to the area. Officer Deli testified he did not know a U.S. flag had been burned until the crowd calmed down. On cross-examination, Officer Deli admitted that as he was arriving to the scene, a second radio dispatch stated that a flag had been burned. He also admitted that when he arrested appel- lant, he stated she had burned an American flag. Detective Ignatius Sowa of the Cleveland Police Department testified that he arrived on the scene with Officer Deli in front of the Terminal Tower at approximately 5:00 p.m. The crowd was "borderline chaotic." Members of the crowd were pushing and shoving each other. Several people got knocked down, including an elderly woman. Three women, one of whom was appellant, were wearing Mao Tse Tung T-shirts. The appellant, along with the two other women, ran through the crowd throwing punches at people. At one point, appellant stopped momentarily to have a conversa- tion with the other two women. She also engaged in conversation with a couple of other people. Appellant then ran through the crowd a second time. She was yelling and screaming, "Fuck the United States. Long live the Revolutionary Communist Party. Yes, I burned the flag." Detective Sowa observed appellant throw punches at people, and punches were returned from the crowd. The - 3 - violence continued to escalate. Appellant was eventually arrested. The amount of time that passed from the detectives' arrival until appellant's arrest was not more than five minutes. At the time of the detectives' arrival to the scene, most of the media people were putting their equipment away. Jack Hagan, a Plain Dealer reporter, was the first witness to testify for the defense. On August 10, 1990, he arrived at Public Square to cover the protest. Mr. Hagan observed the appellant use a portable sound system to speak out against the U.S. involvement in the Middle East. When there were approxi- mately twelve people gathered, one of the demonstrators reached into a bag and pulled out an American flag. A tug of war ensued between the crowd and the demonstrators over possession of the flag. One of the demonstrators eventually recovered the flag and burned it. The size of the crowd and the intensity level grew after the flag had been burned. Mr. Hagan stated that he did not see appellant run through the crowd punching people, shoving people or flailing her arms. The only physical contact he observed was when a demonstrator was slapped in the face. Appellant testified in her own defense that she was a spokesperson for and founding member of the Revolutionary Commu- nist Party. She testified that the Revolution Book Store organized the demonstration and asked her to participate in it. When appellant arrived at Public Square, there were approximately fifteen to twenty people present who were connected with the - 4 - demonstration. Appellant read a statement concerning U.S. mili- tary aggression in the Middle East. During her speech, an elderly white man walked up to her and called her a "Commi slut." Appellant told him to be quiet and that he was being disruptive. At some point, a demonstrator pulled out a flag. Appellant and other demonstrators became involved in a tug of war with indi- viduals from the crowd over possession of the flag. The flag was jerked out of her hands, and she fell to the ground. Eventually, appellant saw the flag lying on the ground and burned it. She went back to the sound system to engage the crowd in a focused debate. After a short time, the sound system quit operating. A crowd of approximately eighty people had gathered around her. A man came up to the appellant and apologized for pushing her. While appellant was trying to find a leaflet for the man, Officer Deli grabbed her and stated that she was under arrest for burning the flag. Alana Meyers testified that she is a member of the Northeast Greens Organization, an environmental and social activist group. On August 10, 1990, she arrived at Public Square at approximately 4:00 p.m. to participate in the protest. Ms. Meyers observed appellant speaking to a crowd of approximately ten to twenty people over a speaker. A man began to yell obscenities at the appellant. Shortly thereafter, a struggle ensued over a flag. After the flag was burned, the intensity level of the crowd - 5 - increased. Ms. Meyers did not see the appellant push or threaten anyone. A man came through the crowd and arrested the appellant. Based on the above evidence, the jury found appellant guilty of inciting to violence (R.C. 2917.01). Appellant now timely appeals, raising seven assignments of error for our review. ASSIGNMENT OF ERROR I OHIO REVISED CODE SECTION 2917.01 IS UNCON- STITUTIONAL ON ITS FACE AND AS APPLIED BE- CAUSE IT IS VAGUE AND OVERBROAD AND IT PER- MITTED APPELLANT TO BE CONVICTED FOR CONDUCT AND SPEECH PROTECTED UNDER THE FIRST AMEND- MENT TO THE UNITED STATES CONSTITUTION. Appellant argues that the inciting to violence statute (R.C. 2917.01) is unconstitutionally vague and overbroad on its face and as applied. This argument is without merit. First, we address appellant's contention that R.C. 2917.01 is void for vagueness. The Due Process Clause requires the lan- guage of a criminal statute must be sufficiently definite "to give a person of ordinary intelligence fair notice that his con- templated conduct is forbidden by the statute." State v. Earlenbaugh (1985), 18 Ohio St. 3d 19, 21 (citing United States v. Harriss [1954], 347 U.S. 612, 617). R.C. 2917.01 provides: (A) No person shall knowingly engage in conduct designed to urge or incite another to commit any offense of violence, when either of the following apply: (1) Such conduct takes place under circumstances which create a clear and - 6 - present danger that any offense of vio- lence will be committed; (2) Such conduct proximately results in the commission of any offense of vio- lence. (B) Whoever violates this section is guilty of inciting to violence, a felony of the third degree. We find that the above language is sufficiently definite to provide clear and adequate notice of the conduct proscribed therein. A person may be found guilty of violating R.C. 2917.01 if he engages in conduct "designed" to urge or incite another to commit any offense of violence. "Design" is commonly defined as intent, purpose, or contemplation. Webster's Third New Interna- tional Dictionary (1986), 611. The conduct also is required to take place under circumstances which create a clear and present danger that any offense of violence will be committed or when the conduct proximately results in the commission of violence. This language is narrowly drawn and sufficiently defined as to provide a person with notice of the type of conduct which it prohibits. Accordingly, the statute is not unconstitutionally vague, inde- finite or uncertain. We next address appellant's contention that R.C. 2917.01 is overbroad on its face. Appellant argues that the statute is overbroad because persons can be convicted for expressing an unpopular opinion which results in threats from a hostile audi- ence. We disagree. - 7 - A statute is overbroad when the scope of the statute is so broad that it includes activity which would otherwise be legal. South Euclid v. Richardson (1990), 49 Ohio St. 3d 147, 151. The state may limit speech and expression which preach vio- lence, provided there is a clear and present danger that such conduct will actually result in the evil which the state has the right to prevent. Schenck v. United States (1919), 249 U.S. 47, 63. This "clear and present danger" exception to First Amendment protected speech has been articulated as follows: *** the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio (1969), 395 U.S. 445, 447. Upon a review of the legislature's comment to R.C. 2917.01, it is clear that an offender can be found guilty of this section only if his speech or actions are designed to move others to violence. The legislature's note to R.C. 2917.01 states, in per- tinent part, that "[t]his section provides a proscription against abuse of the right of free speech and expression by consciously, and other explosive circumstances, spurring others to violence." In addition, the express wording of R.C. 2917.01 includes a "clear and present danger" test by its requirement that the con- duct take place under circumstances which create a clear and present danger that any offense of violence will be committed or - 8 - such conduct must proximately result in the commission of any offense of violence. Therefore, we find that the statute is not unconstitutionally overbroad since it encompasses only conduct designed to urge or incite another to commit any offense of vio- lence where a clear and present danger exists that violence will result. Based on the above analysis, we also conclude that the statute was not unconstitutionally overbroad as applied to appel- lant since she was prosecuted for actions which fall within the "clear and present danger" exception to the First Amendment. Accordingly, Assignment of Error I is overruled. ASSIGNMENT OF ERROR II APPELLANT'S CONVICTION MUST BE REVERSED, BECAUSE IT WAS PREMISED UPON ACTIONS AND SPEECH WHICH ARE PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION, WAS AGAINST THE MANIFEST WEIGHT OF THE EVI- DENCE, AND WAS INSUFFICIENT TO SUSTAIN A VERDICT UNDER OHIO CRIM. R. 29. Appellant argues that her conviction was against the mani- fest weight of the evidence and was insufficient to sustain a Crim. R. 29 motion for acquittal. This argument is without merit. In reviewing the weight of the evidence, an appellate court's function is to determine if there was evidence which, if believed, would convince the average person of the accused's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 273; State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. - 9 - The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 19 Ohio St. 2d 320, 231. The inquiry is, after viewing the evidence in the light most favorable to the prosecu- tion, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. A court shall enter a judgment of acquittal only if the evidence is such that reasonable minds cannot find that each material element of a crime has been proven beyond reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 261. R.C. 2917.01 provides, in pertinent part, that no person shall knowingly engage in conduct designed to urge or incite another to commit any offense of violence when such conduct takes place under circumstances which create a clear and present danger that any offense of violence will be committed or proximately results in the commission of any offense of violence. In the present case, competent, credible testimony was adduced at trial that appellant "rushed" through a crowd in an S- shaped pattern pushing and shoving people, throwing punches and being punched at by people in the crowd. Appellant then circled around and ran through the crowd a second time, causing an elderly woman to be knocked down by the crowd. Therefore, we conclude that reasonable minds could find appellant guilty of knowingly engaging in conduct designed to urge or incite others - 10 - to commit an offense of violence under a clear and present danger that any offense of violence would be committed or engaged in such conduct that resulted in an offense of violence. The jury was free to find the state's witnesses more credible than the defense witnesses. Accordingly, the conviction was not against the manifest weight of the evidence and was sufficient to sustain appellant's conviction. Assignment of Error II is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT DENIED THE APPELLANT A FAIR TRIAL BY NOT PROPERLY INSTRUCTING THE JURY, THEREBY ALLOWING THEM TO CONVICT FOR PRO- TECTED SPEECH AND ACTIVITY. Appellant argues the trial court denied appellant a fair trial by giving erroneous, misleading and insufficient jury instructions. Specifically, appellant argues the trial court failed to explain the mens rea requirement of "designed to urge or incite another" and failed to give proposed instructions relating to protected speech. These arguments are without merit. First, appellant failed to object to the omission of a defi- nition of the term "design." Thus, appellant may not now claim this omission as error. Crim. R. 30. A party does not waive his objections to the court's charge by failing to formally object thereto where (1) the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute and (2) the requesting party has been - 11 - unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury. State v. Wolons (1989), 44 Ohio St. 3d 64. In the present case, appellant did not apprise the court of the definition of the term "design." Thus, appellant waived his objection to the trial court's failure to give this instruction. Appellant also argues that the trial court erred in failing to give appellant's proposed instruction relating to the First Amendment and protected speech. The trial court has discretion as to the language of its instructions to the jury and is not bound by the requested language of counsel. Jenkins v. Clark (1982), 7 Ohio App. 3d 93. Upon a review of the trial court's instructions to the jury, we find the trial court did properly instruct the jury regarding a person's right to free speech under the First Amendment. Accordingly, Assignment of Error III is overruled. ASSIGNMENT OF ERROR IV THE COURT ERRED IN DENYING THE APPELLANT THE OPPORTUNITY TO HAVE A VOIR DIRE CONDUCTED SO THAT APPELLANT'S PREEMPTORY CHALLENGES COULD BE INTELLIGENTLY RENDERED, AND CHALLENGES FOR CAUSE EFFECTIVELY ASSERTED IN VIOLATION OF THE APPELLANT'S SIXTH AMENDMENT RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL. Appellant argues that she was denied her constitutional right to an impartial jury by being denied the opportunity to - 12 - question into each juror's possible bias toward communists and flag burning. This argument is without merit. In State v. Beuke (1988), 38 Ohio St. 3d 29, 39, the court stated: Determination of issues raised in voir dire in criminal cases has long been held to be within the discretion of the trial judge. State v. Anderson (1972), 30 Ohio St. 2d 66, 59 O.O. 2d 85, 282 N.E. 2d 568; R.C. 2945.25. No prejudicial error can be assigned the examination of veniremen in qualifying them as fair and impartial jurors unless a clear abuse of discretion is shown. State v. Ellis (1918), 98 Ohio St. 21, 120 N.E. 218, para- graph one of the syllabus. While R.C. 2945.27 requires that the trial court allow reasonable examination of prospective jurors by counsel for the defense and prosecution, State v. Anderson, supra, at 72, 59 O.O. 2d at 89, 282 N.E. 2d at 572, the trial court retains the right and responsibility for con- trolling all proceedings during the criminal trial under R.C. 2945.03, and must limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of truth regarding the matters at issue. State v. Bridgeman (1977), 51 Ohio App. 2d 105, 109-110, 5 O.O. 3d 275, 277, 366 N.E. 2d 1378, 1383. The trial court may limit questioning in the area of racial prejudices or undertake the examination itself, so long as the broad or general meaning of the inquiry is understood by prospec- tive jurors in order to intelligently respond. State v. Jones (1984), 20 Ohio App. 3d 331, 332. First, we will address the trial court's voir dire examina- tion regarding the jurors' possible bias toward persons who burn - 13 - the American flag. In the presence of the entire jury panel, the trial court questioned the first juror, Ms. Cain, as follows: THE COURT: My understanding of the facts of the case, again as related to me by the lawyers, is that the con- duct alleged here includes activi- ties by the defendant of allegedly burning the American flag. Is there anything about that iso- lated fact that an American flag was burned, that you feel would prevent you from evaluating the testimony in this case and apply- ing it to the law I give as it relates to this charge of inciting to violence only? In other words, do you have such strong feelings about an indivi- dual who may burn an American flag that would prevent you from fair- ly, in your own mind, evaluating the defendant's actions in this case under the circumstances? MS. CAIN: No. The trial court then proceeded to ask each juror, among other things, the following question: THE COURT: From what you heard about the case, the charge and the alleged conduct, do you think you would have any problem sitting as a fair and impartial juror? The second juror who was asked this question by the trial court, Mrs. Canty, responded that she felt she should be excused because she had feelings about persons who burn the flag. This juror was later excused from the panel. The remaining jurors - 14 - were then asked the above question and responded that they had no bias against appellant. It is apparent from a review of the voir dire examination that the prospective jury panel was repeatedly informed that appellant allegedly burned a flag. In fact, the first juror was specifically asked whether appellant's alleged conduct of burning an American flag would prevent her from being impartial. Thus, we find that the trial court's question to each proposed juror regarding whether they could be fair and impartial based on what they had heard about the case, and the appellant's alleged con- duct, was understood by the jurors as an inquiry as to any bias they had toward a person who burns an American flag. This under- standing is apparent from the second juror's response that she did have feelings about burning the flag. The trial court's request that further questioning on this potential bias was not to be repeated by either party was a reasonable limitation on counsels' voir dire examination. See, Id. Therefore, we find the trial court did not abuse its discretion in limiting further questioning in this area. Finally, appellant contends the trial court did not allow reasonable questioning on the jury's possible bias toward commu- nism. This argument is equally without merit. The record reveals that the prospective jury was repeatedly informed that appellant was a communist. The trial court specifically - 15 - questioned the prospective jury regarding its possible bias against appellant's political affiliation as follows: THE COURT: Sustained. I have already instructed the jury or told them that at the end of the trial I'm going to tell you, if the defendant or any other witness who testifies, regardless of what their political affiliation may be, you are to evaluate the testimony of the police officers the same as you will in evaluating the testimony of all the wit- nesses. I've asked you already, does anybody have a problem in that area and you have told me no. Now, does anybody have a problem in that area? THE JURY: No. Furthermore, defense counsel questioned the jurors on several occasions regarding their possible bias toward communism. On one occasion, defense counsel questioned the entire jury as follows: MR. ROSSMAN: We don't have to put on a case, but if we expect you to hold the State of Ohio to their burden. Does anyone have a problem with that? This is set up as the State of Ohio v. Cheryl Lessin, but can you all accept the fact that we're all members of the State of Ohio, even Cheryl Lessin. Even if you find out that she is a proclaimed communist, can you also remember that she is also a member of the state? THE JURY: Yes. - 16 - Therefore, we find that the trial court allowed reasonable questioning on the jury's possible bias toward communists. It was within the trial court's discretion to limit questioning in these areas during the voir dire examination. Accordingly, Assignment of Error IV is overruled. ASSIGNMENT OF ERROR V APPELLANT WAS DEPRIVED OF HER LIBERTY WITHOUT DUE PROCESS OF LAW BY HER CONVICTION AND SENTENCING FOR INCITING TO VIOLENCE IN VIO-LATION OF R.C. SECTION 2917.01, WHERE APPELLANT'S SENTENCE WAS IN VIOLATION OF HER EIGHT (SIC.) AMENDMENT RIGHT PROHIBITING EXCESSIVE, UNFAIR AND CRUEL AND UNUSUAL PUNISHMENT. Appellant contends she should have been charged under the specific assault (R.C. 2903.13) and complicity (R.C. 2923.03) statutes rather than the general inciting to violence (R.C. 2917.01) statute. This argument is without merit. Where there is no manifest intention by the legislature that a general provision of the Revised Code takes precedence over a specific provision, the specific provision prevails. State v. Volpe (1988), 38 Ohio St. 3d 191; see, R.C. 1.51. The inciting to violence (R.C. 2917.01) statute provides, in pertinent part, that no person shall knowingly engage in conduct designed to urge or incite another to commit any offense of vio- lence when such conduct takes place under circumstances which create a clear and present danger that any offense of violence will be committed. - 17 - The assault (R.C. 2903.13) statute provides, in pertinent part, that no person shall knowingly cause or attempt to cause physical harm to another. The complicity (R.C. 2923.03) statute provides, in pertinent part, that no person, acting with the kind of culpability re- quired for the commission of an offense, shall solicit or procure another to commit the offense. The legislature's comments to R.C. 2917.01 state, in perti- nent part: Regardless of the apparent atmosphere in which an inciter's conduct takes place, if his speech or actions are designed to move others to violence and actually do so, he is guilty of an offense under this section. In this respect, it is sufficient if he advocates some kind of violence and some kind of violence is committed as a result. If his conduct ultimately impels his listeners to commit arson, he cannot plead that his conduct only urged action amounting to simple riot. Conversely, if he urges arson, he cannot subsequently plead that the only incident which resulted was the "trashing" of a few parked cars. The former Ohio law on inciting only prohibited inciting to first degree riot. One of the phenomena of mob dynamics, however, is that assemblies which begin as merely disorderly frequently degenerate into Donnybrook Fairs. Agitators could use this phenomenon to their advantage, and escape accountability for their actions by carefully advocating a lesser species of violence, knowing that the odds ultimately favored more serious results. While an offender may be guilty of a violation of this section even though no violence actually results from his conduct, it should be noted that if violence does result he is guilty not only of an offense under this section but also of complicity in the resulting crime, under section 2923.03 of the Revised Code. - 18 - Inciting to violence is a felony of the third degree. (Emphasis added.) We conclude that the legislature intended for R.C. 2917.01 to take precedence over specific statutes covering "lesser species of violence" and the complicity statute based on their comment that "[a]gitators could use [the mob] phenomena to their advantage, and escape accountability for their actions by care- fully advocating a lesser species of violence, knowing that the odds ultimately favored more serious results." It is apparent that the legislature imposed a more severe sentence under the inciting to violence statute than under the assault and compli- city statutes since the harm which can result from "the phenomena of mob dynamics" can be greater than the harm which results from the assault and complicity statutes. Therefore, we find that appellant's conviction and sentence for inciting to violence (R.C. 2917.01) did not violate her Eighth Amendment right prohi- biting excessive and unfair punishment. Assignment of Error V is overruled. ASSIGNMENT OF ERROR VI APPELLANT'S CONVICTION MUST BE REVERSED, BECAUSE THE TRIAL COURT HAD SECRET COMMUNICATIONS WITH THE JURY WHILE IT WAS DELIBERATING, WHICH PREJUDICED THE APPELLANT. - 19 - Appellant contends the trial court's communications with the jury during deliberations, in the absence of counsel, prejudiced the appellant. This argument is without merit. Any communication to the jury outside the presence of the parties to a case by either a judge or court personnel is error which may warrant the ordering of a new trial. State v. Schiebel (1990), 55 Ohio St. 3d 71, 84 (citing Rushen v. Spain [1983], 464 U.S. 114). Such communications are required to be made in the presence of the defendant or parties so that they may have an opportunity to be heard or to object before the judge's reply is made to the jury. Bostic v. Connor (1988), 37 Ohio St. 3d 144, 149. The private communications between judge and jury have been found to be prejudicial to the defendant only when the jury's verdict might have been influenced by the judge's response. Id. In the present case, the jury commenced deliberations on a Wednesday afternoon, October 24, 1990. The first note and the court's response were delivered that afternoon or the morning of October 25, 1990 and read as follows: Define in more explicit terms definition of attempt. In particular, "planned to culminate in the commission of a crime" and "to constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose." Also, define in more explicit terms "designed to urge or incite another to commit an offense of violence." What is unrest and how does it relate or contrast with violence. Foreman, Chris Kutsick. You have rec'd the instructions of law appli- cable to this case. Judge Patricia Cleary - 20 - This question was read to defense counsel. The second note to the court was delivered on Thursday, October 25, 1990 and read as follows: Does there have to be a majority vote by the jurors to declare ourselves a hung jury? Foreman, Chris Kutsick No. Judge Patricia Cleary This second note was not disclosed to defense counsel. On Friday morning, October 26, 1990, the jury sent its third note, which read as follows: It appears that after several days of deli- beration, we are a hung jury. How do we proceed? Foreman, Chris Kutsick The trial court, in open court, over objections, gave the jury the "Howard" charge. The fourth note was sent during the after- noon of October 26, 1990. The note and response read as follows: Please be advised that the jury cannot come to a unanimous decision. We concur that we are a hung jury. Chris Kutsick, Foreman. You will continue your deliberation in accord with the instructions contained in the "Howard" charge given earlier. Judge Patricia Cleary The fourth note was not disclosed to defense counsel. Later, at approximately 4:00 on October 26th, a fifth note was sent by the jury. This fifth note was also not disclosed to defense counsel. The note and response read as follows: There are some jurors concerned about getting home in the later hours. If deliberations continue can provisions be made for these people. Chris Kutsick Jury Foreman. - 21 - If you want to work late, I'll be happy to make arrangements. I'll also spring for dinner if you want to work late. Please discuss what hours you want to work today. The jury left for the weekend at approximately 4:30 p.m. on Friday and came back on Monday morning. The jury returned a verdict on Monday, October 29, 1990. Based upon our review of the three communications that were made without disclosure to defense counsel, we find that none of the responses was of a nature to influence the jury's verdict. In response to the first note, the judge merely informed the jury that a majority vote was not required to declare themselves a hung jury. In response to the second note, the judge instructed the jury to deliberate in accord with the "Howard" charge which had been given to the jury earlier that day in the presence of defense counsel. Finally, the third note informed the jury that if they wanted to work late, the judge would provide dinner. Since the judge's ex-parte communications to the jury were insubstantive and of a limited nature, we find that appellant was not prejudiced by these communications. Accordingly, Assignment of Error VI is overruled. ASSIGNMENT OF ERROR VII - 22 - THE APPELLANT WAS DENIED A FAIR TRIAL BY THE ACTIONS, CONDUCT AND PREJUDICE OF THE TRIAL JUDGE. Appellant contends her right to a fair trial was denied by the trial court's conduct and prejudice. This argument is without merit. Any conduct by a trial judge which shows bias or prejudice against one side may constitute error since utterances or com- ments by the trial judge necessarily carry great weight with the jury. State v. Kay (1967), 12 Ohio App. 2d 38. Appellant points to several instances of alleged misconduct by the trial court which we will address in turn. First, appellant argues the trial court showed bias in denying all of appellant's pretrial motions. Appellant contends that a review of the judge's private notes, handwritten on the pretrial motions contained in the cart file, indicate that she had already made factual determinations before hearing any evidence. Since appellant has not shown who wrote these comments, when they were written, nor how they prejudiced appellant, this argument is meritless. Secondly, appellant complains about the trial judge's conduct during voir dire in limiting questioning on the jurors' possible bias toward flag burning and communism and in holding defense counsel in contempt. We previously addressed appellant's argument regarding the trial court's limiting of questions in Assignment of Error IV and found it to be without merit. As to - 23 - defense counsel's being held in contempt, a review of the record indicates that this action was taken in response to defense counsel's continuous refusal to abide by the trial court's ruling and in challenging that ruling in front of the jury. See R.C. 2705.01. Thus, we find the trial court's conduct does not demon- strate a bias against appellant. Third, appellant contends that, on several occasions, the trial judge prevented her from developing the record. Since appellant has failed to point out those occasions where she was prevented from developing the record, this argument is disre- garded pursuant to App. R. 12(A). Fourth, appellant argues the trial judge demonstrated bias in refusing to allow a proposed jury instruction that flag burning during a political demonstration is protected speech. A trial judge is required to give a requested instruction only if it accurately reflects the law. Presley v. Norwood (1973), 36 Ohio St. 2d 29, 34. In addition, the court is not bound by the re- quested language of counsel as long as the substance of the charge is given to the jury. Jenkins, supra. As we have pre- viously discussed in Assignment of Error III, a review of the record indicates that the trial court did properly instruct the jury regarding a person's right to protected speech. Thus, the trial court's decision not to use appellant's requested language does not demonstrate bias. - 24 - Next, the appellant contends that the trial court erred in informing the jury during voir dire that "there has been no Supreme Court case, to my knowledge, that permits under any circumstances that it's okay to burn the flag." This statement, although ambiguous, obviously meant that whether flag burning is protected speech depends upon the circumstances of each case. Any confusion by the jury as to the meaning of this statement was cured by the instructions submitted to the jury which included the following: The First Amendment to the United States Constitution guarantees to all persons the right to free speech and the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. The offense charged in this case applies to situations where speech and or conduct is abused, but only when the speech or expression consciously, under explosive circumstances, spurs others to violence. Therefore, we find that appellant was not prejudiced by the ambi- guous statement as the jury was properly instructed on the correct law applicable to the offense charged in this case. Finally, appellant contends the trial judge ordered the appellant to remain in her seat at the trial table when she walked around the courtroom for a better vantage point of a blackboard being used during the cross-examination of Officer Deli. The trial court's request that appellant remain seated was pursuant to the trial judge's duty to control the proceedings in - 25 - the courtroom. We cannot find that appellant was prejudiced by the trial court's response to appellant's actions. In conclusion, we find that the trial court's conduct did not demonstrate a bias or prejudice to either side. Therefore, appellant was not denied a right to a fair and impartial trial. Assignment of Error VII is overruled. Judgment affirmed. - 26 - It is ordered that appellee recover of appellant 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 Cuyahoga County Court of Common Pleas 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. SPELLACY, J. CONCURS BLACKMON, J. DISSENTS (See attached opinion) PRESIDING JUDGE FRANCIS E. SWEENEY 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61106 : STATE OF OHIO : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION : CHERYL LESSIN : : Defendant-Appellant : : DATE: APRIL 23, 1992 BLACKMON, J., DISSENTING: I disagree with the majority's decision to sustain the con- viction of Cheryl Lessin who in exercising her First Amendment right to speak burned the American Flag. Cheryl Lessin burned the American Flag a fact avoided by the trial judge, denied by the prosecutor as the basis for the prosecution, and ignored by this court in the majority opinion. The facts, as I understand the record, showed that Cheryl Lessin was making a speech at Public Square in front of Tower City. The speech was anti-American and opposed the Persian Gulf War. Sometime after the speech, Lessin pulled out an American Flag, burned it, and an unsympathetic crowd became hostile. The police arrived, observed Lessin and uttered "SHE ADMITTED BURNING THE FLAG, ARREST HER." (T274). -2- It is because of these facts that I believe that R.C. Sec- tion 2917.01 was unconstitutionally applied to Cheryl Lessin. I agree that the statute under Brandenburg v. Ohio (1969), 395 U.S. 444 is facially flawless and sufficiently drawn that its reach is narrow. However, in applying the statute to Lessin, the State pro- ceeded on the theory that Lessin under extremely volatile condi- tions burned the American Flag with the intention of inciting the crowd to violence and purposely incited others to commit acts of violence by engaging in acts of violence herself. This position in my opinion was the same position argued by the State in Texas v. Johnson 1989), 491 U.S. 397 and rejected by the United States Supreme Court. The difference was in Lessin the event occurred and in Johnson the prosecutor speculated that it might occur. In Johnson, the Supreme Court of the United States made the following observation: The State's position, therefore, amounts to a claim that an audience that takes seri- ous offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with condi- tions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896, 93 L.Ed. 1131 (1949). In Terminiello the Supreme Court set aside the conviction for breach of the peace of a member of the Union of Christian -3- Crusaders who had made an inflammatory racial speech in a crowded auditorium in which the police were unable to keep order, and outside where an angry and turbulent crowd of more than a thousand were protesting against the speech. By "clear and present danger," said the Court, is meant something more than public inconvenience, annoyance, or unrest. One of the functions of free speech is to invite dispute, and it may not be punished merely because it stirs people to anger and creates a condition of unrest. Thus, the question is whether this case involves a hostile audience or Cheryl Lessin intentionally inciting others to vio- lence. Clearly, under Johnson, it may not be both. Therefore, if the mandate of Johnson is followed and an examination of the actual circumstances surrounding such expression is made, one must conclude that Lessin made a speech and burned the flag. However, the majority concludes that she burned the flag in order to stir others to violence. Besides the fact that the record does not support this conclusion, it is equally probable that any action that took place after the burning of the flag or during the burning of the flag is consistent with the original intent of Lessin to express dissatisfaction with America and its international policy. This, I believe, is protected expres- sion unless of course the conduct is prohibited under Brandenburg as likely to provoke imminent lawless action or prohibited under Chapkinsky v. New Hampshire (1942), 315 U.S. 568 as fighting words. -4- Thus, I conclude that the burning of the flag is not provoc- ative by itself and is protected speech; even in the face of a hostile crowd, the burning of the flag is not by the very act, designed to inflict injury or tend to incite an immediate breach of the peace, nor is it prima facie proof of her intent to incite others to violence. In the event that she had burned the flag and made the statement: "let us go now and burn the Federal Building to the ground" and she and the crowd attempted to do so, such conduct and speech together might constitute proof of an intent to incite others to violence. Consequently, a conviction without this scenario is unconstitutional. Therefore, the statue should not have been applied to Lessin. Furthermore, on the basis of the evidence in this record, there were a number of other individuals engaged in the same or similar conduct as that of Lessin. In fact, on videotape, Lessin was the victim of an assault when she was slapped by a young woman that was arguing with her. If Lessin's conduct was suffi- cient, as the majority concluded, to justify a charge pursuant to R.C. 2917.01, there were a number of people engaged in the same or similar conduct designed to do as the majority claimed, which was to urge or incite another to commit an offense of violence. Yet, Lessin was the only person arrested, charged, and prose- cuted. The query is whether Lessin was selectively prosecuted because she burned the flag. The Equal Protection Clause of the United States Constitu- tion, embodied in the Fourteenth Amendment, is usually the basis -5- for the claim that discriminatory enforcement of a penal statute or law by state or local officials is unconstitutional. 95 ALR 3d 280, 286. In Oyler v. Boles (1962), 368 U.S. 448, the United States Supreme Court recognized that the Equal Protection clause was violated if a criminal prosecution was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. In those cases in which the defendant alleged discrimina- tory application of criminal laws against him, and in which the courts have specifically addressed the question of whether the alleged basis of selective prosecution was arbitrary or invi- dious, the courts have held that the selection of the defendant for prosecution based upon his exercise of his constitutional rights or upon his membership in an organization was made on an invidious basis. 95 ALR 3d 280, 288. The essential elements of such a claim of discrimination are derived principally from two cases. First, the defendant is re- quired to prove that other violators who are similarly situated are not generally prosecuted. Ah Sin v. Wittman (1905), 198 U.S. 500. The second element of such an equal protection violation is that the discrimination must be intentional or purposeful. Id. Thirdly, the defendant must prove that the selection of the de- fendant was based upon an invidious or arbitrary classification, or upon an unjustifiable standard. Oyler, supra. -6- An application of these essential elements to the instant case necessitates the conclusion that Lessin's prosecution was in violation of her right to equal protection. With respect to the first essential element, there were other people, arguably violators of R.C. 2917.01 that were simi- larly situated to Lessin, present on that day, for whom the State had direct evidence of their conduct who were not prosecuted. If the prosecution's theory of this case is accepted along with the testimony of Detective Deli, Lessin was arrested and charged because she purposely incited others to commit acts of violence by engaging in acts of violence herself (i.e. assaulting members of the crowd). The State makes one feeble attempt at trying to distinguish Lessin's conduct from other members of the crowd by stating that even though the crowd was hollering and throwing punches at her she never attempted to escape. Based on the evidence contained in the record, in the form of testimony and videotape, it was readily apparent that other members of the crowd were engaged in conduct similar to, or the same as that of Lessin. There is a female person who takes the flag from Lessin and scuffles with Lessin in an effort to keep the flag. There is another male person who is verbally abusive and obviously agi- tated. His opinions are voiced directly at Lessin and his conduct could have been the proximate cause for the commission of some of the alleged assaults that took place on the day in ques- tion. -7- If Lessin's conduct was sufficient for probable cause pur- poses to warrant a charge pursuant to R.C. 2917.01, the conduct of the male in the videotape certainly possessed sufficiently similar characteristics to warrant probable cause for a charge under R.C. 2917.01. Lastly, there is the conduct of another young woman that a reasonable fact-finder could deem the same as the conduct of Lessin. The state argues that the conduct of Lessin which neces- sitated her arrest is that she incited others to violence, by engaging in acts of violence herself. The young woman, with which we are concerned, after shouting at Lessin for a while turns to other members of the crowd momentarily, as if seeking their approval, and then strikes Lessin in the face. This young woman is not charged with a violation of R.C. 2917.01. Interestingly, we are not plagued by credibility concerns with respect to these three people engaging in conduct like that of Lessin because these are observations of this court, having reviewed the videotape as part of the record. The State further argued that it was Lessin's conduct and not her expression that resulted in her arrest and indictment: A careful review of the record, however, reveals that the appellant was charged be- cause under extremely volatile conditions, she not only burned the American Flag with the intention of inciting the crowd to violence, but, in addition, she purposely in- cited others to commit acts of violence by engaging in acts of violence herself (i.e. assaulting members of the crowd). (Emphasis added.) -8- Brief of Appellee at 14. Assuming that the State's representation of Lessin's conduct is accurate, there is but one characteristic of Lessin's conduct that is different from that of the other three people observed by this court in the videotape. The characteristic is that Lessin engaged in protected speech and activity when she burned a United States Flag and made statements indicating an affinity for the Communist Party. Otherwise, for purposes of probable cause, arrest, and indictment, a reasonable fact-finder could find the conduct of all four people the same for purposes of R.C. 2917.01. For these reasons, I would have sustained assignment of error Number One and held that R.C. 2917.01 was unconstitution- ally applied to Appellant in violation of her First Amendment right to speak. Although Lessin did not raise the selective prosecution argument, I would reverse her conviction for that reason as well. Finally, the evidence was insufficient to sustain a Crim. R. 29 motion for acquittal. Lessin burned a flag and the crowd reacted. As a matter of law the burning of a flag, under Johnson and U.S. v. Eichman (1990), 110 U.S. 2404, does not provoke an immediate violent response by the average onlooker and is pro- tected speech. Therefore, I would have sustained assignment of error Number Two. On the remaining assignments of error, I conclude the fol- lowing: -9- I agree with the majority's reasoning regarding assignment of error Three, however, I disagree with the majority's reasoning regarding assignment of error Four. It is my belief that the manner in which the trial court conducted the voir dire precluded an intelligent exercise of preemptory challenges and challenges for cause, in derogation of Lessin's Sixth Amendment right to effective assistance of counsel. I would have found that Lessin's Sixth Amendment right to effective assistance of counsel was violated because of the manner in which the voir dire was conducted. The trial court has discretion over the manner in which a voir dire is conducted. This discretion is tempered by the essential demands of fairness. Aldredge v. U.S. (1931), 283 U.S. 308, 310. We are likewise guided by the statement in Dowd-Feder v. Truesdell (1938), 130 Ohio St. 533 that: Any rule of law which denies a litigant reasonable latitude in the examination of prospective jurors as to their qualifica- tions, in order to enable him to exercise such preemptory challenges judiciously and intelligently, deprives him of a substantial right. At the outset, I must discuss the statement made by the trial court "there has been no Supreme Court case, to my know- ledge, that permits under any circumstances that it's okay to burn the flag. That's why the lawyers have been instructed not to discuss the issues of law. And don't do it again, Mr. Rossman." Transcript at 92. -10- The trial judge, in a jury trial, is the trier of the law. The jury is, and was in this case, instructed that they are duty bound to follow the law as the trial court gives it to them. This statement is not only misleading, but in light of Johnson, supra, and Eichman, supra, may be an inaccurate state- ment of the law. Nevertheless, in my opinion, it had to operate to the prejudice of Lessin because of the obligation stated to the jurors to follow the law as the trial court gives it. The court did not explain to the jurors what "under any circum- stances" actually meant in light of this case. To this end, assignment of error seven should be sustained. This statement was misleading, confusing and inaccurate; therefore, highly prejudicial to Lessin. Returning to the actual supervision of the voir dire, I would have held that the restrictions placed upon the inquiry by counsel for Lessin constituted an abuse of discretion. The state argues that there was no such abuse because the trial court asked the first two jurors, Mrs. Canty and Ms. Cain, whether they could be fair and impartial about the flag burning. This inquiry was then followed by a general statement to all the jurors about their ability to be fair and impartial on the facts of the case. This was not a sufficient inquiry for Lessin's counsel to effectively and intelligently exercise their challenges since protected expression and activity are so often sensitive, inflammatory, and misunderstood. -11- Having reviewed the transcript, I would point to the number of instances after this blanket inquiry, where further question- ing was warranted but denied. The trial court admonished counsel regarding questions about prospective jurors' awareness of recent flag burning cases. The trial court sustained her own objection to an inquiry by counsel for Lessin regarding what circumstances would be necessary for Mrs. Canty to feel that flag burning should be punished. This inquiry came about after Mrs. Canty stated that she should be excused because she had feelings about burning the flag. Further inquiry was warranted after that statement and the trial court's inquiry did not cover the circumstances asked about by Lessin's counsel. Mrs. Canty further stated that she believed that some- one who burns the flag should be punished. The trial court still refused any further inquiry. The trial court again sustained its own objection to an inquiry of whether someone who burned the flag was worthy of belief. The trial court again sustained her own objection to an inquiry of Ms. Cain regarding Lessin's affiliation with the Communist Party and the fact that her father fought in Vietnam. In response to a question of the jurors as to who else was anti-communist, after a prospective juror indicated she was, the trial court again sustained her own objection and stated that affiliation with a particular party was not necessar- ily relevant. (Emphasis added.) The trial court further instructed the parties that they were not permitted to explore the venire's feelings about communism any further. -12- These myriad examples demonstrate the trial court's unrea- sonable limitation on voir dire, thereby precluding counsel for Appellant from exercising intelligent challenges. Further, the trial court's interjection of her own objections continuously could be viewed as highly prejudicial. The extremely volatile issues of communist affiliation and flag burning were issues that counsel for Lessin should have been allowed to explore with rea- sonable latitude. The continuous trial court objections and the unreasonable limitations upon such inquires violated Appellant's Sixth Amendment right to effective assistance of counsel and a fair trial. In State v. White (November 30, 1989), Cuyahoga App. No. 56169, this court addressed the issue of a trial court's contact with a jury in the absence of proper representation by both par- ties. This court should stand behind the position that a trial judge should refrain from any contact with a jury in the absence of proper representation by both parties. Id. at 8. Once the jury deliberation commences, a trial judge court's real danger in conversing with the jury outside the presence of counsel for both parties. In the instant case, like White, the trial court's communi- cations involved applicable law and factual questions. This communication was improper. Finally, I would have reversed Lessin's conviction making assignments of error Five and Seven moot. .