2008 Ohio 775 | Ohio Ct. App. | 2008
{¶ 2} On February 9, 2007, Defendant contacted Cheryl Holly, a U.S. Airways customer service representative who handles lost luggage claims at the Dayton International *2 Airport. While Ms. Holly was assisting other passengers, Defendant approached her counter in a very aggressive manner, bumping into people and pushing other customers aside. Defendant was yelling, swearing, and banging his fists on the counter in a threatening manner. Defendant also grabbed at bags in the baggage claim office and yelled about his "God damn luggage."
{¶ 3} Defendant's voice was very loud and his tone was very threatening. Defendant came within a foot or two of Ms. Holly and he leaned over the counter while he continued to yell. Ms. Holly was afraid for herself and the other passengers, some of whom became nervous and moved away from Defendant as he continued to yell, scream and waive his arms. Ms. Holly asked Defendant three or four times to calm down, but he continued to yell, scream and beat his fists on the counter. Defendant also poked his finger in Ms. Holly's face and threatened to file a lawsuit against U.S. Airways. At that point, Ms. Holly contacted security.
{¶ 4} Officer Matthew Lykins arrived and observed that Defendant was very upset. After speaking to Ms. Holly, Officer Lykins talked to Defendant, who became louder and louder. Defendant began yelling "damn" loud enough that other passengers turned to look. Officer Lykins told Defendant to *3 watch his language because of the many children in the area, and to lower his voice. Defendant continued yelling "damn," and when Officer Lykins told Defendant that he would be cited for disorderly conduct, Defendant told Lykins "this is damn stupid." Officer Lykins then warned Defendant that if he did not stop shouting profanity he would be arrested for repeated disorderly conduct. Defendant was subsequently charged with disorderly conduct.
{¶ 5} Defendant was charged by complaint filed in Dayton Municipal Court with disorderly conduct in violation of section
{¶ 6} Defendant timely appealed to this court from his conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 7} "THE COURT ERRED WHEN IT OVERRULED DEFENDANT MOTION TO DISMISS THE COMPLAINT, ALTHOUGH IT WAS INSUFFICIENT AS A MATTER OF LAW."
{¶ 8} Defendant argues that the complaint in this case is fatally defective and legally insufficient to charge disorderly conduct because it does not include all of the essential elements of that offense: specifically, the culpable mental state of recklessness. We agree.
{¶ 9} Section
{¶ 10} In Ohio, all crimes are statutory. State v. Hous, Greene App. No. 02CA116,
{¶ 11} Defendant was convicted of disorderly conduct in violation of R.C.G.O. Section
{¶ 12} "(A) No person shall recklessly cause inconvenience, *6 annoyance, or alarm to another by doing any of the following:
{¶ 13} "* * *
{¶ 14} "(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person."
{¶ 15} The complaint in this case states that Defendant "did unlawfully cause/commit disorderly conduct: caused and engaged in loud and coarse language that others may find abrasive and/or abusive."
{¶ 16} Liability for a criminal offense is based upon (1) conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing, and (2) the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense. R.C.
{¶ 17} Although the complaint could have been amended to include the required culpable mental state, State v. O'Brien (1987),
{¶ 18} The State argues that, nevertheless, Defendant was not prejudiced because his counsel "conceded that given the way the charges were worded that he could assume his client was charged with a violation of City of Dayton Revised Ordinances 137.01(A)(2). (Tr.5)." Brief, p. 5. The identity of the proper section was clarified by the prosecutor, but upon that representation Defendant's counsel moved to dismiss because the complaint failed to state an offense. (Tr. 4). Counsel did not concede that the complaint was sufficient, as the State implies.
{¶ 19} The State also relies on authority which it cites at page 5 of its brief and in its table of authorities as "State v. Sarver, 2007 Ohio App. Lexis 566." That is not a form of *8 citation approved by The Supreme Court of Ohio in its Manual of Citations, most recently revised on May 1, 2002. Further, the State failed to attach a copy of the opinion in that case to its brief, which it is required to do when an opinion is not published in the Ohio Appellate Reports. Loc.App.R. 9. Those defects were pointed out to counsel for the State at oral argument.
{¶ 20} Following the oral argument, on February 5, 2008, the State filed a "Motion For Leave To Complete Appellee's Brief." Attached to the motion are copies of the opinions in Sarver and two other cases,State v. Cunningham, Franklin App. No. 06AP-145,
{¶ 21} Counsel for the State should note that the citation toCunningham in the preceding paragraph does not include Lexis reference. Neither does the Supreme Court's Manual of Citations authorize use of a Lexis reference. Its appearance doesn't disqualify a citation in which it is used, but its use does not satisfy the Manual of Citations requirement to refer to both the court of appeals case number and the Supreme Court website number when an unpublished opinion of a court of appeals is cited.
{¶ 22} In any event, after reviewing Sarver and Cunningham, *9 we find neither authority persuasive with respect to the issue presented.
{¶ 23} In Sarver, the defendant failed to object in the trial court to a defect in the indictment, and so the appellate court applied the plain error standard of review. In the present case, Defendant objected to the defect, preserving for review the error the court committed when it overruled the objection. For the reasons previously discussed, the error was not harmless.
{¶ 24} Neither do the copies of Cunningham and Grills that the State attached to its motion offer any guidance. As it happens, the copies include only every other page of the opinions in Cunningham andGrills that were apparently printed from the Lexis website. Counsel is encouraged to examine such materials before filing them.
{¶ 25} Finally, the State relies on R.C.
{¶ 26} "No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
{¶ 27} "(A) An inaccuracy or imperfection in the indictment, information, or warrant, provided that the charge is sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him."
{¶ 28} R.C.
{¶ 29} Because the complaint upon which Defendant's conviction is based omits and fails to charge an essential element of the crime of disorderly conduct, the culpable mental state of recklessness, it is fatally defective and fails to charge an offense under the laws of Ohio. Therefore, Defendant's conviction for disorderly conduct is void and must be reversed. Hous; Cimpritz; Goodman; Burgun; Corbitt. That reversal, however, does not prevent re-prosecution of Defendant upon properly drawn complaints. See State v. Radebaugh (1982),
{¶ 30} Defendant's first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 31} "THE CITY PRESENTED INSUFFICIENT EVIDENCE FOR THE COURT TO FIND THAT DEFENDANT COMMITTED A VIOLATION OF SECTION
{¶ 32} This assignment of error which argues that the State presented insufficient evidence to support a conviction for disorderly conduct has been rendered moot by our disposition of the first assignment of error. Accordingly, we need not address this issue. App.R. 12(A)(1)(c).
{¶ 33} Having sustained Defendant's first assignment of error, Defendant's conviction for disorderly conduct will be reversed and this case will be remanded to the trial court for further proceedings consistent with this opinion.
*1Fain, J. and Donovan, J., concur.
