State v. Wiley , 2014 Ohio 5766 ( 2014 )

[Cite as State v. Wiley, 2014-Ohio-5766.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-P-0067
- vs - :
JAIMIE R. WILEY, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division.
Case No. R 2012 CRB 1944.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Neil P. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH 44224-4379 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Jaimie R. Wiley, appeals the judgment of the Portage County
Municipal Court, Ravenna Division, finding her guilty of R.C. 2921.33, resisting arrest, a
misdemeanor of the second degree. Based on the following, we affirm the trial court’s
judgment.
{¶2} Deputy Leonard Vella of the Portage County Sheriff’s Office responded to
a call at Countryside Estates, Lot 82, a trailer park located in Portage County. When
Deputy Vella arrived at Lot 82, no one was there; however, appellant was directly
across the road at Lot 66. Appellant was accompanied by neighbor Julie Hutson and
her friend, Robert Grove. Appellant advised Deputy Vella that while she was at Ms.
Hutson’s home, the park manager, Toni, and Toni’s husband drove by in a white vehicle
and called appellant “a fat bitch.” Behind the vehicle was the park manager’s daughter,
Megan, who called appellant “a bitch.” There were no witnesses to this incident.
Notably, Deputy Vella had previously visited the trailer park that same day regarding an
incident between appellant and Toni.
{¶3} Deputy Vella asked appellant to make a written statement regarding the
incident before he questioned Toni, her husband, and Megan. Appellant stated that she
wished to make such a statement. Deputy Vella testified that it took appellant
approximately one-half hour to complete her written statement. During this time,
appellant repeatedly swore at Deputy Vella; called Deputy Vella “an asshole”; and was
very hostile and agitated, which increased throughout his contact with appellant. At one
point, appellant told Deputy Vella to stay the “F” away from her. This encounter was
audio recorded, which was admitted into evidence.
{¶4} Deputy Vella testified that when he informed appellant she was under
arrest for disorderly conduct, appellant behaved in the following manner:
She refused to give us her hands. We tried to physically get her
hands behind her back. She clenched her fists and tensed and
kept them in front of her so we couldn’t get her. And then when we
tried to get her hands behind her back she started to turn towards
us and we started to spin, kind of walk around the porch a little bit,
and then she was escorted to the ground to effect the arrest.
{¶5} Ms. Hutson testified that when appellant was notified she was under arrest
for disorderly conduct, appellant did not comply with the deputies, but struggled and
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swore at them. Ms. Huston described appellant’s behavior as, “just fighting, just
resisting, fighting * * * giving them a very rough time just to put a set of cuffs on her
hands.”
{¶6} Deputy Vella testified that appellant was placed under arrest for disorderly
conduct because, from the point of initial contact, appellant was agitated; appellant
continuously swore and yelled. Appellant was noncompliant toward Deputy Vella. The
incident occurred in a roadway located in the trailer park and in the presence of the two
neighbors, Ms. Hutson and Mr. Grove. Deputy Vella, on multiple occasions, warned
appellant to cease her behavior, but appellant continued to yell and swear.
{¶7} Appellant was charged with disorderly conduct and resisting arrest. After
a bench trial, appellant was found not guilty of disorderly conduct but guilty of resisting
arrest. Appellant was ordered to pay a $150 fine and sentenced to 90 days in jail, with
90 days suspended on the condition that appellant continue counseling. Appellant was
also placed on supervised probation for nine months. Execution of sentence was
stayed pending appeal.
{¶8} On appeal, appellant asserts the following as her first assignment of error:
{¶9} “The Appellate Court lacks jurisdiction to hear the appeal due to the fact
that there is no final, appealable order under Crim.R. 32(C) and R.C. 2505.02.”
{¶10} Appellant argues this court lacks jurisdiction due to a lack of a final,
appealable order, as the May 24, 2013 sentencing order did not specify the violation for
which appellant was convicted.
{¶11} This court, in a July 18, 2014 judgment entry, remanded the matter and
instructed the trial court to issue a single sentencing entry that conforms with the
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provision set forth in State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, ¶14,
containing both “the fact of the conviction” and the sentence. The trial court complied
with this directive and issued a nunc pro tunc judgment entry on July 28, 2014.
Consequently, the trial court’s July 28, 2014 judgment entry has rendered appellant’s
first assignment of error moot.
{¶12} Appellant’s first assignment of error is moot.
{¶13} As appellant’s second assignment of error, she alleges:
{¶14} “The Trial Court committed reversible and plain error in finding that Wiley
was being lawfully arrested after finding that there was probable cause to arrest Wiley
for disorderly conduct.”
{¶15} Appellant was convicted for resisting arrest. R.C. 2921.33(A) states that
“[n]o person, recklessly or by force, shall resist or interfere with a lawful arrest of the
person or another.” On appeal, appellant maintains that she could not be found guilty of
resisting arrest because her arrest for disorderly conduct was not a lawful arrest.
{¶16} “‘In order to prove a lawful arrest, * * * the State must prove both “that
there was a reasonable basis to believe that an offense was committed, (and) that the
offense was one for which the defendant could be lawfully arrested.”’” State v. Ellis, 2d
Dist. Montgomery No. 24003, 2011-Ohio-2967, ¶25, quoting State v. Burns, 2d Dist.
Montgomery No. 22674, 2010-Ohio-2831, ¶29.
{¶17} R.C. 2917.11(A), disorderly conduct, states:
No person shall recklessly cause inconvenience, annoyance, or
alarm to another by doing any of the following: (1) Engaging in
fighting, in threatening harm to persons or property, or in violent or
turbulent behavior; (2) Making unreasonable noise or an offensively
coarse utterance, gesture, or display or communicating
unwarranted and grossly abusive language to any person; (3)
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Insulting, taunting, or challenging another, under circumstances in
which that conduct is likely to provoke a violent response; (4)
Hindering or preventing the movement of persons on a public
street, road, highway, or right-of-way, or to, from, within, or upon
public or private property, so as to interfere with the rights of others,
and by any act that serves no lawful and reasonable purpose of the
offender; (5) Creating a condition that is physically offensive to
persons or that presents a risk of physical harm to persons or
property, by any act that serves no lawful and reasonable purpose
of the offender.
{¶18} Although appellant was charged under subsection (2), for purposes of
determining whether probable cause existed to arrest her, we believe it is appropriate to
review all of the potential subsections that support a probable cause finding. Pursuant
to R.C. 2917.11(E)(3)(a), “[d]isorderly conduct is a misdemeanor of the fourth degree if *
* * [t]he offender persists in disorderly conduct after reasonable warning or request to
desist.”
{¶19} [A] ‘lawful arrest’ for disorderly conduct occurs regardless of
whether the alleged offender is ultimately convicted if the officer
had reasonable grounds to believe that the accused was recklessly
causing inconvenience, annoyance or alarm to him by abusive
language, and that the individual’s language and conduct was likely
to provoke a violent response. * * * [T]he test is objective and [ ]
the officer need not in fact be inconvenienced, annoyed or alarmed,
or personally provoked to a violent response.
State v. Sansalone, 71 Ohio App. 3d 284, 286 (1st Dist.1991). “The question, instead,
focuses on whether, under the circumstances, it is probable that a reasonable police
officer would find the accused’s language and conduct annoying or alarming and would
be provoked to want to respond violently.” Id.
{¶20} Therefore, this court must determine whether Deputy Vella had probable
cause or a reasonable basis to believe that appellant had committed disorderly conduct.
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{¶21} Appellant argues that her words used at the scene of the incident did not
rise to a level to establish any of the elements of R.C. 2917.11(A). Appellant argues the
audio recording of the incident demonstrates that “every incident of profanity that [she]
used was in reference to what others were saying.” Appellant maintains that she “never
tried to instigate a fight with Deputy Vella or try to provoke him into getting into a
physical confrontation.”
{¶22} “Punishment for disorderly conduct based on spoken words is prohibited
unless those words amount to ‘fighting words.’” Middletown v. Carpenter, 12th Dist.
Butler No. CA2006-1-004, 2006-Ohio-3625, ¶14, citing State v. Hoffman, 57 Ohio St. 2d
129, 133 (1979) and State v. Wood, 112 Ohio App. 3d 621, 627 (1996). “‘Fighting
words’ are those words that are likely by their very utterance to inflict injury or to incite
an immediate breach of the peace. In determining whether language rises to the level
of ‘fighting words,’ courts look at the circumstances surrounding the words.” (Citations
omitted.) Carpenter at ¶14.
{¶23} Here, the testimony of Deputy Vella, which is corroborated by the audio
tape, demonstrates that appellant was extremely agitated at the scene of the incident.
The incident occurred on a roadway in a trailer park in a common area. Although it was
appellant’s desire to complete an incident report, she repeatedly failed to comply with
Deputy Vella’s lawful requests. Instead, she yelled, cursed, and continued to raise her
voice to a point where residents of the trailer park could hear her shouting. On a few
occasions, Deputy Vella instructed appellant’s son to stand away from the scene of this
incident to calm appellant’s agitation; however, appellant defied Deputy Vella’s request
and instructed her son to come back over to where she was standing. Further, despite
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appellant’s contentions otherwise, she did indeed call Deputy Vella an “asshole.” The
record demonstrates that Deputy Vella, on numerous occasions, warned appellant that
she was going to be placed under arrest for disorderly conduct. Appellant, however,
continued this course of behavior, including her statement to Deputy Vella to “stay the
‘F’ away from [her].”
{¶24} At oral argument, appellant argued that she was improperly arrested
because Deputy Vella based her arrest for disorderly conduct on a prior incident
regarding appellant and Toni. Appellant cites to the audiotape of the incident where
Deputy Vella refers to the prior incident. We acknowledge that the officers had been to
the trailer earlier that day regarding an incident between appellant and Toni and that
Deputy Vella testified that appellant exhibited disorderly conduct at this previous
incident. See State v. Brown, 11th Dist. Lake No. 2006-L-040, 2007-Ohio-464, ¶34 (“it
is the collective knowledge of the law-enforcement officers that allows the arresting
officer to rely upon those facts to effect an arrest”). Yet, the testimony indicates that
when questioned as to why appellant was placed under arrest for disorderly conduct,
Deputy Vella focused primarily on the incident at issue, citing the aforementioned facts.
{¶25} Under this set of circumstances, the deputy clearly had probable cause to
arrest appellant for violating one or more subsections of R.C. 2917.11(A). To hold
otherwise would suggest that the deputy must wait for the situation to get further out of
control and risk physical harm to persons or property. Appellant’s continued refusal to
comply with the deputy’s reasonable request in this potentially volatile environment was
inexcusable and served no “lawful or reasonable purpose.”
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{¶26} Based on the foregoing, appellant’s second assignment of error is without
merit.
{¶27} Appellant’s third assignment of error alleges:
{¶28} “The Trial Court committed reversible error in assessing a fine without any
regard to Wiley’s ability to pay said fine.”
{¶29} Appellant argues that R.C. 2929.19(B)(5) requires the trial court to
consider the offender’s ability to pay before imposing a fine. It is clear, however, that
R.C. 2929.19 applies to the imposition of sentence in felony cases. Section A states,
with emphasis added:
The court shall hold a sentencing hearing before imposing a
sentence under this chapter upon an offender who was convicted of
or pleaded guilty to a felony and before resentencing an offender
who was convicted of or pleaded guilty to a felony and whose case
was remanded pursuant to section 2953.07 or 2953.08 of the
Revised Code. * * *
{¶30} R.C. 2929.19(B)(5) states: “Before imposing a financial sanction under
section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised
Code, the court shall consider the offender’s present and future ability to pay the
amount of the sanction or fine.” However, R.C. 2929.18 applies to a “court imposing a
sentence upon an offender for a felony,” and R.C. 2929.32 applies to the imposition of
additional fines under certain circumstances, none of which apply here.
{¶31} R.C. 2929.22 governs the imposition of sentence for a misdemeanor.
Appellant did not object or otherwise address the trial court with respect to the
imposition of her fine. Former R.C. 2929.22(E) and (F) provided:
(E) The court shall not impose a fine in addition to imprisonment for
a misdemeanor, unless a fine is specially adapted to deterrence of
the offense or the correction of the offender, the offense has
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proximately resulted in physical harm to the person or property of
another, or the offense was committed for hire or for purpose of
gain.
(F) The court shall not impose a fine or fines which, in the
aggregate and to the extent not suspended by the court, exceeds
the amount which the offender is or will be able to pay by the
method and within the time allowed without undue hardship to
himself or his dependents, or will prevent him from making
restitution or reparation to the victim of his offense.
{¶32} These sections have been removed from the current version of the
statute, and thus do not apply to appellant’s conviction. Appellant has failed to direct us
to any statutory provision that would place an obligation on the trial court, as appellant
suggests, when imposing a fine for a misdemeanor. There is no requirement in R.C.
2929.22 that the trial court make any affirmative finding on the record with regard to any
of the considerations set forth in that section.
{¶33} Appellant’s third assignment of error is without merit.
{¶34} Based on the opinion of this court, the judgment of the Portage County
Municipal Court, Ravenna Division, is hereby affirmed.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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