2005 Ohio 4362 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 3} As a preliminary matter, this Court notes that appellee, City of Akron, moved for an extension of time in which to file its brief. This Court granted the extension of time until May 3, 2005. The City filed its brief on May 4, 2005. Accordingly, this Court may accept appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action. App.R. 18(C).
{¶ 4} Appellant argues that his conviction is against the manifest weight of the evidence, because his comments did not constitute "fighting words." This Court disagrees.
{¶ 5} Appellant was arrested in the parking lot of a bowling alley at approximately 10:15 p.m. on October 16, 2004 based on a charge of disorderly conduct. The arresting officer, Officer Robert Scherer of the Springfield Township Police Department, testified that he was on patrol through the parking lot when he heard appellant yelling very loudly. Officer Scherer testified that appellant was standing in the parking lot, yelling, "F*** you, f*** you, f*** you." The officer continued that appellant's friend told appellant to calm down and that the police were there. Despite his friend's attempt to calm him down, appellant remained agitated. Brett Shultz, appellant's friend in the parking lot, admitted that he informed appellant that the police were in the vicinity.
{¶ 6} Both Officer Scherer and Mr. Shultz testified that appellant responded to Shultz's report that the police were there by yelling, "F*** the police." Officer Scherer then exited his police cruiser and informed appellant that he was under arrest for disorderly conduct.
{¶ 7} Officer Scherer testified that there were a lot of bowling alley patrons coming and going during appellant's two-minute incident in the parking lot. Mr. Shultz testified that there may have been some other patrons near the bowling alley door at the time. All witnesses agreed that appellant was standing in the parking lot, while he made his profane statements in a loud voice.
{¶ 8} Appellant stipulated that he was inebriated at the time of the incident in the parking lot.
"In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten (1986),
{¶ 9} Appellant was convicted of disorderly conduct in violation of R.C.
"No person, while voluntarily intoxicated, shall * * * [i]n a public place or in the presence of two or more persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities, which conduct the offender, if the offender were not intoxicated, should know is likely to have that effect on others[.]"
{¶ 10} There is no dispute that appellant was intoxicated, that he was in a public place and that he was in the presence of at least two persons during the incident. Appellant stipulated to his intoxication. Appellant was standing outside in a bowling alley parking lot, while other patrons were coming and going. Further, appellant made his loud, profane statements in the presence of Officer Scherer and Mr. Shultz. The issue is whether appellant's exclamations of "f*** you" and "f*** the police" constituted conduct likely to be offensive to persons of ordinary sensibilities.
{¶ 11} Appellant argues that, unless appellant's statements constituted "fighting words," mere profanity is not sufficient to support a conviction under R.C.
{¶ 12} It was appellant's conduct, and not the content of his speech, which resulted in his conviction. See, State v. Semler (1993),
{¶ 13} Under these circumstances, this Court finds that appellant's conviction was supported by both the sufficiency and manifest weight of the evidence and not violative of his constitutional rights. Appellant's first assignment of error is overruled.
{¶ 14} Appellant argues that the trial court erred by failing to exclude, on the basis of lack of relevancy, evidence of appellant's conduct after Officer Scherer placed appellant under arrest for disorderly conduct. This Court disagrees.
{¶ 15} The decision whether to admit or exclude evidence lies in the sound discretion of the trial court. State v. Brown, 9th Dist. No. 04CA008510,
{¶ 16} In this case, the trial court admitted evidence of appellant's conduct after Officer Scherer placed appellant under arrest. Because appellant was charged with disorderly conduct based on his actions prior to his arrest, evidence of his conduct after arrest was not relevant to the matter before the trial court. Evid.R. 402 states that "[e]vidence which is not relevant is not admissible." Evid.R. 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
{¶ 17} It is clear from the trial court's recitation of reasons for finding appellant guilty that the court did not rely on the evidence of appellant's conduct after his arrest in making that finding. Specifically, in support of her finding that appellant was guilty, the trial court found that appellant's pre-arrest yelling of obscenities would be offensive to a reasonable person. This Court finds that any admission of evidence regarding appellant's conduct after his arrest was harmless error. Appellant was not prejudiced by the admission of such evidence. Appellant's second assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellant.
Exceptions.
Batchelder, J. concurs
Dissenting Opinion
{¶ 19} There is no question that Appellant's vulgar language would be offensive to a reasonable person. His conviction, however, cannot be based upon the content of his speech. Accordingly, I respectfully dissent.
"No matter how rude, abusive, offensive, or vulgar words may be to another person, one who uses them may not be convicted of a criminal offense for his utterance unless they are `fighting words,' that is, words which by their very utterance are likely to inflict injury or to provoke the average person to an immediate, retaliatory breach of the peace." State v. Semler (1993),
{¶ 20} Appellant was in the parking lot of a bowling alley at approximately 10:15 in the evening. The bowling alley was open and patrons were still arriving at the time the police arrived. Appellant was intoxicated and shouting loudly. No other facts were presented relevant to the charge. The record contains no evidence that Appellant was engaged in any conduct other than shouting, was approaching the bowling alley patrons, or was directing his shouting at any individual patron. I believe that the majority errs in its reliance on Semler to support Appellant's conviction. In Semler, the defendant was convicted for disorderly conduct for shouting loudly in a residential area at 2 a.m. Id. at 372. In the instant matter, Appellant was in the parking lot of a commercialbusiness that was still open at the time of the incident.
{¶ 21} Stripping away the offensive content of Appellant's protected speech, I cannot conclude that a person of ordinary sensibility would be offended by his conduct, i.e., shouting in the parking lot of an open bowling alley at approximately 10 p.m. Accordingly, I would reverse Appellant's conviction for disorderly conduct.
