911: Cell Phone Cell
Supreme Court of Ohio: State of Ohio v. Robinson
The law is a slow moving behemoth. Technology changes at a meteoric pace. Watching the law trying to keep up can be amusing and depressing. It can also leave one wondering if the common law—judicial decisions applying general principals of law to given sets of facts—has yielded to the nano state (a derivative of the nanny state) where legislative micro management of rapidly-changing technology is the norm and an ever-increasing challenge for our courts. Ohio v. Robinson is a case in point.
Raynell Robinson was upset with his nephew Antonio. Antonio and his friend Heather Hoge had attended a party at Robinson’s apartment when Robinson was not at home. When he walked in on the affair, he ordered everyone to leave. As nephew Antonio and his friend Hoge began to leave, Robinson hit Antonio in the back of the head. He then proceeded to pummel him. At some point Antonio called 911 on his cell phone. Although he was able to tell the operator that he was at The Meadows apartment complex and that his face was split open, Robinson grabbed the cell phone and smashed it before he could tell them his exact location. Antonio’s friend Heather Hoge then dialed 911 on her cell, but Robinson “told her to show him her hand and that that she had better not be calling the police.” Fearing for her own safety, Hoge got off the phone before she could say where in the complex Antonio was being beaten.
The cops eventually found the right place, the battered Antonio, and cited Robinson for Disorderly Conduct. A grand jury indicted him for the felonious assault of Antonio and for disrupting public service in violation of R.C. 2909.04(A)(3) which makes it a crime to impair the ability of law-enforcement officers and others to respond to an emergency or to protect and preserve any person or property from serious physical harm.
The assault count was never heard at trial. Antonio was apparently not confident he could be protected by the system. Instead, he moved to Arizona and refused to return to Ohio to testify, and, one suspects, obtained an unlisted cell phone number. Hoge testified, however, about the threats to her safety when she tried to call 911. Robinson was convicted and got 2 years for intimidating a victim and 15 months for impairing the cops’ ability to respond to the 911 call by smashing Antonio’s phone.
Plainly put, the question on appeal was whether smashing the cell phone was a separate crime under R.C. 2909.04(A)(3) since Antonio was trying to call the police for help at the time of the assault? The high court said it was.
The Third District Court of Appeals had held that R.C. 2909.04(A)(3) “clearly and unambiguously prohibits substantial interference with public emergency systems and utilities, not the destruction of a single private telephone or cell phone.” The Appellate court also found that the state “failed to prove the element of substantial impairment because the officers arrived at the scene of the assault within a few minutes of being dispatched.”
It’s not clear that Antonio appreciated this nuance or the extra time it took the cops to locate him in the complex or the fear he felt when his lifeline ended with the destruction of his cell phone. In fact, he seemed not to have fully recovered from this trauma, as his switch to Arizona Bell suggests, and the high court was not without sympathy. Ironically, the Ohio Supremes found with equal clarity and unambiguousness “that the damaging of a single private telephone or cellular telephone constitutes a violation of R.C.2909.04 (A) (3)” if the conduct substantially impairs the ability of law enforcement officers and others to respond to an emergency “or to protect and preserve any person or property from serious physical harm.” It also noted that the statute in question never mentioned “public emergency systems” or “utilities,” language the appellate court read into the statute when it reversed Robinson’s conviction.
As for whether there was “substantial impairment” of law enforcement’s ability to respond in this case, that was a question of fact for the jury. According to the high court, the issue isn’t one of response time, as the appellate court thought (is a 1 minute delay ok? is 3 minutes too much?); “the inquiry is directed toward [law enforcement’s] ability to respond.” Here, while the police were attempting to respond to Antonio’s call for help and find him in the complex without an exact apartment number, Robinson continued to beat the hell out of him. That was substantial impairment enough and a direct result of smashing the phone.
Accordingly, Robinson’s conviction and 15 month imprisonment for disrupting public services were reinstated.
This is not an isolated case. It is a picture of the nano-state we live in. Technology keeps changing. Elected officials try to keep up. The legislation gets too technical. Then the courts, in this case, the Third Appellate Department of Ohio, get hyper technical and ethereal, only to be corrected by a high court that agrees with a jury of lay people who got it all right from the beginning.
The diminished role of common law (and the elevated role of legislative solutions to perceived technical loopholes in the law) brings with it a concomitant loss of common sense. It would seem plain to everyone but judges that smashing the cell phone of your assault victim as he calls for help would impair law enforcement’s ability to respond and was the sort of thing envisioned by Ohio’s duly elected representatives and their nano-legislation.
Nowadays, the only thing plain to most of us is that the law is never clear and unambiguous. It's voluminous, exhaustive and more like the tax code than the Ten Commandments.
Voltaire was right. Common sense is not so common. Maybe even less so the more technology becomes part of our daily lives and the more legislators try to regulate it.
