673 N.E.2d 934 | Ohio Ct. App. | 1996
Lead Opinion
Shirley Miller appeals from a judgment of conviction and sentence ordered by the Meigs County Court finding her guilty of disorderly conduct in violation of R.C.
Appellant assigns the following error: *161
"The court erred in finding appellant guilty in violation of Revised Code
On April 13, 1994, appellant left her home and walked toward a fence that separates her property from the property of the complainant, Henry Bentz. Appellant greeted Bentz with the following declaratory statement: "I'm tired of being your victim and I'm not going to be your victim anymore. I think you are a real sicko. I think you are a sick son-of-a-bitch." Bentz did not respond to this outburst.
In addition to the fence separating appellant and Bentz, there was also a considerable distance between them as well. This distance was estimated by various witnesses as being between thirty to forty feet or one hundred to one hundred fifty feet.
On April 22, 1994, Bentz swore out two complaints against appellant. One complaint was for aggravated menacing in violation of R.C.
Upon motion of the state, the complaint for disorderly conduct was dismissed without prejudice on May 6, 1994. Shortly thereafter on July 6, 1994, however, the trial court granted the state leave to amend the charge of aggravated menacing to a charge of disorderly conduct. The amended complaint was filed by the state on the following day.
On July 8, 1994, the county court tried appellant on the amended disorderly conduct charge. By judgment entry filed August 12, 1994, the court found appellant guilty of disorderly conduct in violation of R.C.
Prior to considering the merits of this appeal, we note that appellee has failed to file a brief or otherwise make an appearance in this appeal.2
App.R. 18(C) provides that if an appellee fails to timely file its brief, the court, in ruling on the appeal, may accept the appellant's statement of the facts and *162 issues as correct and reverse the trial court's judgment as long as appellant's brief reasonably appears to sustain such action.
Under certain circumstances, an appellate court may need to consider all or part of a trial court's record in such a matter.Bell v. Horton (1995),
In her sole assignment of error, appellant argues that the evidence relied upon by the trial court was insufficient as a matter of law to sustain a conviction for disorderly conduct under R.C.
The Supreme Court of Ohio has clearly defined an appellate court's duty when called upon to review the sufficiency of the evidence to support a criminal conviction. State v. Jenks
(1991),
Appellant was convicted of violating R.C.
"No person shall recklessly cause inconvenience, annoyance, or alarm to another, by doing any of the following:
"* * *
"(2) Making unreasonable noise or offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person[.]"
In response to such statutes, the Supreme Court of Ohio has recognized that criminal statutes that are capable of punishing spoken words are unconstitutional unless construed to be inapplicable to speech protected by the
The Supreme Court later followed Karlan and specifically applied its holding to Ohio's disorderly conduct statute.State v. Hoffman (1979),
We note that several appellate courts have reversed disorderly conduct convictions for defendants that have used language that was patently more offensive than the "sick son-of-a-bitch" epithet uttered by appellant.3 In fact, this court reversed the conviction under R.C.
The Hamilton County Court of Appeals also reversed a disorderly conduct conviction under R.C.
By comparison, appellate courts have sustained disorderly conduct convictions under the following circumstances. InState v. Baker (Sept. 19, 1989), Marion App. Nos. 9-88-8 and 9-88-9, unreported, 1989 WL 108685, the court upheld a conviction when the defendant pointed at an off-duty deputy and stated, "if I catch you outside or on the streets, your ass is grass." Similarly, the court in State v. Freewalt (June 30, 1988), Auglaize App. No. 2-87-11, unreported, 1988 WL 72400, upheld the conviction of a defendant who approached a patrolman threatening to "kick ass," because the court was satisfied that such speech had progressed beyond the point of constitutional protection.
The facts presently before this court are plainly distinguishable from the circumstances presented in Baker andFreewalt. In both of those cases, the defendants used language that expressed an immediate desire to inflict bodily harm upon the listeners. Such utterances are likely to provoke an average person to commit a retaliatory breach of the peace. In the casesub judice, however, the appellant merely expressed an opinion, without any threat of present or future violence. Such a statement does not constitute "fighting words" and is thus protected speech under the
Therefore, after an examination of the evidence, as established by appellant's brief and construed in a light most favorable to the state, a rational trier of fact could not have found that all of the essential elements of the crime of disorderly conduct were proved beyond a reasonable doubt.Jenks, supra. We believe the state failed to offer sufficient evidence to establish that the words spoken by appellant were likely, by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace. Absent proof of this essential element of the alleged offense, appellant's conviction cannot stand.
Accordingly, we sustain appellant's sole assignment of error. The decision of the trial court is reversed and appellant is discharged from further prosecution concerning this charge against her.
Judgment reversed.
PETER B. ABELE, P.J., concurs.
STEPHENSON, J., concurs separately.
Concurrence Opinion
I concur in the judgment and opinion, but write separately in order to emphasize that my concurrence is based solely on the state of the record and *165 Judge Harsha's analysis of the law. I place no reliance whatsoever on the operation of App.R. 18(C).