{¶ 2} On January 3, 2007, an officer from the Eastlake Police Department responded to a local residence regarding a complaint of a dog. The dog allegedly attacked a young boy. While the responding officer was investigating the situation, the *2 dog charged the officer and two other individuals. The officer shot and killed the dog. Following the shooting, several additional officers responded to the scene.
{¶ 3} Lieutenant Lawrence Edward Reik also responded to the call. On Lieutenant Reik's way to the scene, Kirkpatrick backed out of a driveway in front of him. He followed Kirkpatrick past the residence where the shooting occurred. At that point, he stopped Kirkpatrick's vehicle. Kirkpatrick informed Lieutenant Reik that her son lived at the residence in question, and she lived further up the street. Lieutenant Reik asked her to contact her son and inform him that the dog was shot. At that time, Kirkpatrick became emotional and asked why the dog had to be shot. After Kirkpatrick called her son, Lieutenant Reik advised her to go home so the officers could finish the investigation.
{¶ 4} Kirkpatrick drove to her residence. Within a few minutes, she began walking towards her son's house. As she was walking, and still about eight houses from the scene, she yelled, "`[y]ou cock-suckers, you didn't have to shoot my fucking dog' — or, `shoot the fucking dog.'" Lieutenant Reik approached Kirkpatrick and met her about half way to her son's house. On his way towards her, he informed her that she needed to go home and stop yelling. Kirkpatrick continued towards Lieutenant Reik and, when she was within arm's reach of him, she yelled, "`[y]ou're all motherfuckers.'" At that point, Lieutenant Reik arrested Kirkpatrick.
{¶ 5} Kirkpatrick was charged with disorderly conduct in violation of the Eastlake Codified Ordinances, a fourth-degree misdemeanor. This offense was later amended to a charge in violation of R.C.
{¶ 6} The trial court found Kirkpatrick guilty of a lesser-included version of disorderly conduct, to wit, R.C.
{¶ 7} Kirkpatrick raises three assignments of error. Her first and second assignments of error are:
{¶ 8} "[1.] The trial court erred to the prejudice of the defendant-appellant when it denied her motion for acquittal made pursuant to Crim.R. 29(A).
{¶ 9} "[2.] The trial court erred to the prejudice of the defendant-appellant when it denied her motion for acquittal because her actions resulting in the charge are protected under the
{¶ 10} Kirpatrick's first and second assignments of error both challenge the sufficiency of the state's evidence. Therefore, we will address these assigned errors in a consolidated analysis.
{¶ 11} A trial court shall grant a motion for acquittal when there is insufficient evidence to sustain a conviction. Crim.R. 29(A). When determining whether there is sufficient evidence presented to sustain a conviction, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a *4
reasonable doubt." State v. Jenks (1991),
{¶ 12} Kirkpatrick was convicted of disorderly conduct, in violation of R.C.
{¶ 13} "(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
{¶ 14} "* * *
{¶ 15} "(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person."
{¶ 16} "A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." R.C.
{¶ 17} Initially, Kirkpatrick argues that there was insufficient evidence that anyone was inconvenienced, alarmed, or annoyed by her actions. Lieutenant Reik testified that there were other bystanders in the neighboring properties. Kirkpatrick notes that none of these individuals testified; therefore, there is no evidence that they were inconvenienced, alarmed, or annoyed. We agree. The Second Appellate District has held that the fact other people may have heard an individual's use of profanity directed at a police officer is insufficient to show that the people were inconvenienced, alarmed, or annoyed when none of them testified that they were, in fact, inconvenienced, *5
alarmed, or annoyed. State v. Holmes (1998),
{¶ 18} Next, we examine whether Lieutenant Reik was inconvenienced, alarmed, or annoyed. Lieutenant Reik was attempting to take measurements at the scene of the shooting when he had to stop and address Kirkpatrick's comments. It is reasonable to assume that the trial court considered the fact that this was a very emotionally charged scene, with the great potential to get out of control if lawful direction of police officers was not obeyed. Kirkpatrick cites State v. Miller (1980),
{¶ 19} The state presented sufficient evidence that Kirkpatrick recklessly caused an inconvenience, annoyance, and/or alarm to Lieutenant Reik by making an offensively coarse utterance and communicating unwarranted and grossly abusive language at a potentially volatile scene while officers were conducting an important investigation. However, our inquiry does not end here.
{¶ 20} In regard to disorderly conduct convictions based solely on speech, the Supreme Court of Ohio has held:
{¶ 21} "A person may not be punished under R.C.
{¶ 22} Thus, the Supreme Court of Ohio essentially added an additional element for a conviction under R.C.
{¶ 23} Kirkpatrick correctly notes that, generally, the mere use of profanity in the presence of a police officer does not equate to fighting words. In State v. Dotson, the defendant screamed "`fuck you'" to an officer, told the officer to give her "`the fucking ticket,'" and called the officer a "`motherfucker.'" State v. Dotson (1999),
{¶ 24} However, this court has held that, in certain circumstances, profanity specifically directed at a police officer may constitute fighting words. State v. Wood, supra. In Wood, the defendant entered the library at Kent State University and began to verbally assault two police officers. The defendant essentially taunted the officers, by repeatedly telling them "`fuck you,'" giving the officers the gesture of the middle finger, and continuing the loud, abusive language for several minutes, despite the officers' repeated requests to stop. State v.Wood,
{¶ 25} In addition, if the defendant's words are likely to incite others, profanity in the presence of a police officer may constitute fighting words. In State v. Dickey, several officers responded to a fight at an apartment complex. State v. Dickey (1991),
{¶ 26} In this matter, Kirkpatrick disregarded Lieutenant Reik's instruction to stay at her home. In addition, after she started yelling the profanities, she ignored Lieutenant Reik's order to desist. Moreover, Kirkpatrick's actions were likely to incite others. *9 Lieutenant Reik described the scene as being very emotional. The police initially responded to the scene after a young boy was attacked by a dog. The responding officer was forced to shoot and kill the dog, after it charged at the officer and two other people. At the time of Kirkpatrick's comments, there were about 10 citizens at the scene of the incident, and there were other people, including children, in the neighboring yards.
{¶ 27} Kirkpatrick's actions were likely to incite others in two possible ways. First, it could encourage others who agreed that the dog should not have been shot to take action against the police. It is likely that some of the neighbors knew the dog and were also upset about it being shot. Secondly, and perhaps more significantly, there was evidence that the young boy's grandmother was at the scene giving a statement. The grandmother, in addition to other family members or friends of the boy who may have been present, was likely to be incited by Kirkpatrick's comments that the police did not have to shoot the "fucking dog." It is important to remember that this was the same dog that attacked the young boy. The fact that Kirkpatrick was criticizing officers who potentially saved the boy and others from further harm could have had the effect of informing the people at the scene, including the grandmother, that Kirkpatrick did not care about the boy's welfare.
{¶ 28} This was a very emotional situation for all parties involved. Any time an officer is forced to discharge his weapon in a residential area, it is a serious incident. In this matter, a young boy had been attacked, and a dog was dead. Everyone's emotions at the scene were elevated. Kirkpatrick's comments were likely to have incited these emotional people to resort to physical violence. Depending on the views of a particular *10 individual at the scene, this violence may have been directed at the police officers or at Kirkpatrick herself.
{¶ 29} Under the test set forth in Jenks, it is clear that when viewed in a light most favorable to the state, there was sufficient evidence presented to allow "a rational trier of fact" to find the essential elements of the crime proven beyond a reasonable doubt.
{¶ 30} Kirkpatrick's first and second assignments of error are without merit.
{¶ 31} Kirkpatrick's third assignment of error is:
{¶ 32} "The trial court erred to the prejudice of the defendant-appellant when it incorrectly applied the law based on a plain meaning interpretation of the statute."
{¶ 33} Kirkpatrick objects to the following comments made by the trial court at the conclusion of the bench trial:
{¶ 34} "The Court, taking everything into consideration, and particularly taking into consideration the statute that had been amended at an earlier time and looking at that as prohibiting gross and vulgar language, which, I believe, had been stated, at this time, the Court is going to make a finding of guilt * * * ."
{¶ 35} Kirkpatrick argues that this language suggests the trial court interpreted R.C.
{¶ 36} Kirkpatrick's third assignment of error is without merit.
{¶ 37} The judgment of the trial court is affirmed.
*1CYNTHIA WESTCOTT RICE, P.J., concurs, DIANE V. GRENDELL, J., dissents.