STATE v. TOOLEY, 109 Ohio St.3d 1403 (2006)

2006-Ohio-1703, 845 N.E.2d 521, 848 N.E.2d 515

State v. Tooley.

2006-0216.Supreme Court of Ohio.
April 12, 2006.

Portage App. No. 2004-P-0064, 2005-Ohio-6709.

MOTION AND PROCEDURAL RULINGS

On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at pages 2-3 of the court of appeals’ Judgment Entry filed January 25, 2006:

“1. Whether the statutory inference provided in R.C. 2907.322(B)(3) renders R.C. 2907.322(A)(5) unconstitutionally overbroad in light of the decision announced in Ashcroft v. The Free Speech Coalition [(2002), 535 U.S. 234]?

“2. Whether R.C. 2907.323(A)(3)’s culpable mental state of recklessness renders this section of the statute unconstitutionally overbroad in light of the decision announced in Ashcroft v. The Free Speech Coalition?”

The conflict cases are State v. Eichorn, Morrow App. No. 02 CA 953, 2003-Ohio-3145, State v. Anderson, 151 Ohio App.3d 422, 2003-Ohio-429, and State v. Morris, Wayne App. No. 04CA0036, 2005-Ohio-599.

Sua sponte, cause consolidated with 2006-0105, State v. Tooley, Portage App. No. 2004-P-0064, 2005-Ohio-6709.