State v. Lundeen

Summary

The Ohio Third District Court of Appeals affirmed James Lundeen’s conviction for operating a motor vehicle while using an electronic wireless communications device in violation of R.C. 4511.204. The majority rejected his selective-enforcement, due-process, and void-for-vagueness challenges and overruled his second assignment of error because it was not separately argued. A dissenting judge would have dismissed the appeal as moot because Lundeen had paid the fine and court costs and had not shown collateral consequences.

Holdings

1. Although failure to object ordinarily waives all but plain error under Crim.R. 19(D)(3)(b)(iv), the court elected to address Lundeen's claimed errors because the magistrate's decision failed to comply with Crim.R. 19(D)(3)(a)(iii), including the required service and notice language.
2. Lundeen failed to state a constitutional selective-enforcement claim because he alleged only that other drivers with darkly tinted windows might evade detection, not that the statute was enforced against him and not others based on race, religion, or an intent to prevent exercise of constitutional rights.
3. R.C. 4511.204 is not void for vagueness merely because its prohibitions are not apparent from the statute's title or because the statute has been amended concerning GPS use. The statute sufficiently identifies the prohibited conduct as operating a motor vehicle while using, holding, or physically supporting an electronic wireless communications device, subject to listed exceptions.
4. The court declined to exercise its discretion to consider Lundeen's appellate argument that the phrase 'directly near' in R.C. 4511.204(B)(4) is vague because the argument was not raised in the trial court and concerned an affirmative defense not implicated by the facts.
5. The second assignment of error was overruled because Lundeen's brief did not separately argue the assignment or cite legal authority supporting his assertion that the State failed to prove driving while texting.

Questions Presented

1. Whether the appeal was subject to ordinary waiver rules despite Lundeen's failure to object to the magistrate's decision when the decision did not comply with Crim.R. 19(D)(3)(a)(iii).
2. Whether R.C. 4511.204 was unconstitutional because it was selectively enforced in violation of equal protection and due process.
3. Whether R.C. 4511.204 was void for vagueness because its restrictions on holding or using a device for GPS navigation were allegedly unclear or changed by amendment.
4. Whether the court should consider Lundeen's additional void-for-vagueness argument concerning the phrase 'directly near' in R.C. 4511.204(B)(4), when that argument was not raised below.
5. Whether Lundeen established reversible error in his conviction when his appellate brief contained no argument or legal authority supporting his assertion that the State failed to prove driving while texting.

Disposition

affirmed