STATE OF OHIO, MONROE COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. RICHARD F. HILL
CASE NO. 09 MO 3
SEVENTH DISTRICT
September 29, 2010
2010-Ohio-4871
CHARACTER OF PROCEEDINGS: Criminаl Appeal from Common Pleas Court, Case No. 2008-164. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Attorney Kent L. Reithmiller Prosecutor Attorney Attorney Thomas Hampton Asst. Prosecutor P.O. Box 430 101 North Main Street Woodsfield, OH 43793
For Defendant-Appellant: Attorney Mark Morrison Public Defender 117 North Main Street Woodsfield, OH 43793-1002
JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
Dated: September 29, 2010
{1} This timely appeal comes for consideration upon the record in the trial court and the parties’ briefs. Defendant-appellant, Richаrd F. Hill appeals the April 24, 2009 decision of the Monroe County Court of Common Pleas, imposing a sentence of three years of community control after accepting Hill‘s no contest plea to one count of attempted disruption of public services, in violation of
{2} Hill argues that the language of
{3} The record indicates that Hill seized Pittman‘s mobile phone as she was in the process of calling the police, and threw the phone into a neighbor‘s lawn where it was not able to be located until the following day. Pursuant to the Ohio Supreme Court‘s recent decision in State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, Hill‘s conduct constituted tampering with Pittman‘s property for purposes of
Facts and Procedural History
{4} Hill was indicted on May 16, 2008 and charged with domestic violence, a fourth degree misdemeanor in violation of
{5} The State moved for a temporary restraining order against Hill. In the affidavit in support of the motion, Pittman averred the following: “On or about the 4th of May, 2008, [Hill] did stab a knife in to a table in a manner threatening to his live-in girlfriend, Leslie Rene Pittman, and did take a cell phone from Leslie Rene Pittman‘s
{6} Hill moved for the State to provide discovery and a bill of particulars. In response, the police provided a copy of Hill‘s complete file, which the State stated would satisfy both of Hill‘s requests, and included pictures of the scene of the incident, police statements taken from everyone interviewed, Hill‘s Miranda waiver and statement, police reports summarizing the incident, a сustody arrest statement indicating that Hill was charged with a violation of
{7} The police statements made by both Pittman and Hill confirm that there wаs a dispute between the parties at approximately 2:45 a.m., that Hill left for approximately 30 minutes and returned, and that the dispute continued. Hill brandished a knife in some manner and stabbed it into a coffee table. Pittman attempted to use hеr cell phone, and Hill took her cell phone from her when she said she was calling the police. Hill attempted to block Pittman from leaving the house, but Pittman eventually escaped and went to a neighbor‘s house to call the poliсe. Pittman‘s statement also alleges that she locked Hill out of the house when he left for 30 minutes, and that he broke through a screen window to regain access into their home. A neighbor found Pittman‘s mobile phone in his yard the next day. The neighbor‘s poliсe statement indicated that he lived across the street from Hill and Pittman‘s residence, and that the mobile telephone did not appear to be broken.
{8} Hill filed a motion to dismiss the indictment, arguing that throwing Pittman‘s mobile telephone during their dispute did nоt constitute a violation of
Disruption of Public Services
{10} In his sole assignment of error Hill asserts:
{11} “Does the damaging of a single private telephone or cellular telephone disrupt ‘public services’ sufficiently to constitute a violation of
{12} Hill argues that his act of throwing Pittman‘s mоbile phone did not constitute a violation of
{13}
{14} “(A) No рerson, purposely by any means or knowingly by damaging or tampering with any property, shall do any of the following:
{15} “(1) Interrupt or impair television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications; radar, loran, radio, or other electronic aids to air or marine navigation or communications; or amateur or citizens band radio communications being used for public service or emergency communications;
{16} “(2) Interrupt or impair public transportation, including without limitation school bus transportation, or water supply, gas, power, or other utility service to the public;
{17} “(3) Substantially impair the ability of law enforcement offiсers, firefighters,
{18} “(B) No person shall knowingly use any computer, computer system, computer network, telecommunications device, or other electronic device or system or the internet so as to disrupt, interrupt, or impair thе functions of any police, fire, educational, commercial, or governmental operations.
{19} “(C) Whoever violates this section is guilty of disrupting public services, a felony of the fourth degree.”
{20} Although the indictment, plea and sentencing entry did not specify which division of
{21} Hill cites to Robinson, 177 Ohio App.3d 560, 2008-Ohio-4160, 895 N.E.2d 262, but notes that the Ohio Supreme Court certified a conflict between the Third District‘s decision in Robinson and the holdings of similar cases in thе Second, Fifth and Eighth Districts: State v. Thomas, 2d Dist. No. 19435, 2003-Ohio-5746; State v. Johnson, 8th Dist. Nos. 81692 and 81693, 2003-Ohio-3241; State v. Yoakum, 5th Dist. No. 01CA005, 2002-Ohio-249; and State v. Brown (1994), 97 Ohio App.3d 293, 646 N.E.2d 838 (8th Dist.). State v. Robinson, 120 Ohio St.3d 1451, 2008-Ohio-6813, 898 N.E.2d 966 (Table).
{22} Subsequent to Hill briefing this issue, the Ohio Supreme Court reversed the Third District‘s decision in Robinson. State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, syllabus. The decision noted that the reference to “damaging or tampering with any property” in
{23} In Robinson, the defendant smashed the victim‘s telephone, destroying it. Id. at 8. Here, Hill did not destroy Pittman‘s phone, but merely threw it. The neighbor who found the telephone the following day reported that he found it in his yard, across the street from the victim, and that the phone appeared to be in working order. Hill generally argues that it is unreasonable to conclude that the act of merely throwing a telephone could constitute a fourth degree felony.
{24} However, under certain circumstаnces, the act of throwing a telephone can constitute “damaging or tampering with any property” as a matter of law. For example, in Yoakum, supra, the defendant threw the victim‘s cordless phone during a dispute that occurred outdoors during daylight hours. Yoakum at *1. The impact dislodged the battery from the phone, but nothing indicates that the phone was damaged or impossible to locate. Id. The Fifth District concluded that such an act constituted disabling the telephone, which rendered the victim unable to initiate or receive contact, thus satisfying
{25} Thus, the deciding factor in these cases is whether the defendant‘s сonduct caused the victim to be unable to use that telephone. Here, Hill threw the telephone somewhere across the street from the parties’ house in the dark of night, and the telephone was not located until the following day. Pittman would have been unable to locate the telephone and was thus unable to use it. These facts, as admitted by Hill‘s no contest plea, constituted tampering with Pittman‘s mobile telephone and could support a conviction for disruptiоn of public services in violation of
{26} Unlike the defendant‘s argument in Robinson, Hill has only provided an argument regarding the applicability of
{27} In Robinson, the victim was already in contact with 9-1-1 when Robinson destroyed the victim‘s mobile telephone, rendering the victim unаble to provide complete information to the police. State v. Robinson, 124 Ohio St.3d 76, at 7-8, 38. However, the police were able to locate the scene from the information the victim had provided, as well as from a second telephone cаll from another party about their general whereabouts. Id. at 9-10, 39. Because the police did not know how many personnel were needed to respond, and had to search a neighborhood area instead of immediately going to the viсtim‘s precise location, the Ohio Supreme Court concluded that their ability to respond to the victim‘s emergency call had been substantially impaired. Id. at 37-44.
{28} Here, Pittman had not yet initiated contact with the police but was about to or was in thе process of calling. Thus Pittman was unable to give any information, let alone partial information to the police before Hill took the telephone and threw it. Pittman was only able to call the police once she had left her house and used a neighbor‘s telephone. The facts here are an example of “substantial interference” that is even more straightforward than that of Robinson. Thus the conduct alleged in the indictment, information or complaint, and admitted by Hill‘s no сontest plea, could support a conviction for disruption of public services in violation of
{29} Accordingly, Hill‘s conduct satisfied the elements of
Vukovich, P.J., concurs.
Waite, J., concurs.