In its infinite wisdom, our beloved legislature keeps creating new laws and new ways for folks to end up behind bars. Sometimes, I suppose, there is a need for a new offense. Life changes, after all, and the manner in which we interact and conduct business changes almost daily, it seems. However, I still contend that new evils can largely be handled by existing offenses.
Rest assured, there is almost nothing mean you can do to another human being that won’t be considered a crime as you read this today. If the legislature immediately stopped creating new crimes, there would still be nothing mean you could do to someone else 20 years from now without being a criminal. One of my personal favorites is R.C. 2917.46, which is entitled: “Unauthorized use of block parent or Mcgruff house symbol.” I have no idea what led to this provision’s passage. But whatever happened after someone was fooled into believing the defendant’s home was a Mcgruff house was probably already a crime, and probably much worse than the false claim itself. Is this really needed? Of course not. Yet, the new crimes keep on coming.
By the way, this is the major reason our courts had a heck of a time dealing with the merger of “allied offenses of similar import.” A single course of illegal conduct can arguably constitute several, if not dozens, distinct statutory offenses. Prosecutors charge them all and leave it to the judge to ultimately decide which ones are so similar that they really are the “same offense” such that multiple convictions violate double jeopardy protections. Prosecutors like to charge as many offenses as possible to create negotiating leverage.
Okay, I’ll get off my soapbox on this issue. Well, mostly. Another absurd result of having so many crimes on the books is that it only takes one creative prosecutor to utilize a particular offense in a situation for which it wasn’t really intended. If the elements seem to fit, they charge it, even when there is a different statute that more aptly fits what the defendant did.
Why would prosecutors do this? Again, it is a matter of negotiating leverage or the fact he or she simply doesn’t like the guy. If you can charge someone with a felony, why settle for the misdemeanor, even if the misdemeanor is really more on point.
This is what has happened with the Disrupting Public Services statute. Prosecutors are now using this statute as a way to backdoor a felony charge in the typical misdemeanor domestic violence situation (DV). Typically, a first-time offender for DV is only facing a misdemeanor, not a felony. Oh, and why we need the specific crime of DV when assault is and has been on the books, is beyond me.
Anyway, R.C. 2909.04 reads in relevant part:
(A) No person, purposely by any means or knowingly by damaging or tampering with any property, shall do any of the following:
(1) Interrupt or impair television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications; radar, loran, radio, or other electronic aids to air or marine navigation or communications; or amateur or citizens band radio communications being used for public service or emergency communications;
(2) Interrupt or impair public transportation, including without limitation school bus transportation, or water supply, gas, power, or other utility service to the public;
(3) Substantially impair the ability of law enforcement officers, firefighters, rescue personnel, emergency medical services personnel, or emergency facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm.
(B) No person shall knowingly use any computer, computer system, computer network, telecommunications device, or other electronic device or system or the internet so as to disrupt, interrupt, or impair the functions of any police, fire, educational, commercial, or governmental operations.
So, this apparently prohibits messing with any form of public service, which is something that ought to be outlawed – and already was under trespassing, criminal mischief, vandalism, etc. I guess I haven’t actually gotten off my soapbox entirely. Sorry.
However, now prosecutors are charging guys accused of domestic violence with this felony of the fourth degree when the girl’s cell phone gets damaged as well. How in the world destroying a singular cell phone would disrupt “mass communications services” is really a stretch, but courts have bought it. Therefore, defendants are told: “you never should have shoved/punched her, DV is a terrible plague on society and therefore, we’re going to punish you with a misdemeanor. Oh, and the fact you threw her cell phone in anger is going to carry 18 months in prison as a felony.” Does that make sense?
I would argue that the legislature enacted this statute to prohibit someone from knowingly destroying a telephone pole or a satellite dish, or the radio transmissions of the local fire department, etc., such that mass communications are truly interrupted. It was not enacted to hang a felony on a guy that, out of anger, destroyed a lady’s cell phone by throwing it across the room during their altercation. But the state is busy utilizing this statute for that very scenario.
There must have been some prosecutor’s convention where this brilliant idea was broadcast because I see it more and more. And until appellate court’s start to rethink how destroying a cell phone, or cutting a single phone cord could possibly disrupt “mass communications,” we’ll continue to see it used.
Oh, and just for the record: it was already illegal to destroy someone’s personal property. And I highly doubt that absent this statute being enacted, a defendant would have been in the clear after blowing-up the sewage system. That’s just a hunch.