State v. Walker , 2014 Ohio 3693 ( 2014 )

[Cite as State v. Walker, 2014-Ohio-3693.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2013 CA 00204
BENITA LOUISE WALKER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2013 CRB 03302
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH MARTUCCIO KRISTINE W. BEARD
CANTON LAW DIRECTOR 4450 Belden Village Street, NW
TASHA FORCHIONE Suite 703
ASSISTANT CITY PROSECUTOR Canton, Ohio 44718
218 Cleveland Avenue, SW
P. O. Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2013 CA 00204 2
Wise, J.
{¶1}. Appellant Benita Louise Walker appeals from her conviction of disorderly
conduct and resisting arrest in the Canton Municipal Court, Stark County. The relevant
facts leading to this appeal are as follows.
{¶2}. On the afternoon of August 12, 2013, appellant was at the Stark County
Regional Transit Authority (SARTA) bus terminal on Cherry Avenue Southeast in the
City of Canton. She was seated in a "pod" area, i.e., a cement island where SARTA
patrons wait for their busses. At times, there can be several hundred people utilizing this
public transportation facility. See Tr. at 105.
{¶3}. At some point that afternoon, appellant yelled to her boyfriend to "hurry the
fuck up.'' Tr. at 107. A Canton police officer, William Watkins, who was working a
security detail at SARTA, approached appellant and asked her to stop using profane
language. As further discussed infra, appellant instead became belligerent and started
berating the officer, continuing to use profane language. Ultimately, appellant was
arrested at the scene when she refused to leave.
{¶4}. On August 13, 2013, appellant was charged with one count of disorderly
conduct, R.C. 2917.11(A)(1), a fourth degree misdemeanor, and one count of resisting
arrest, R.C. 2921.33(A), a second degree misdemeanor. Appellant subsequently pled
not guilty and demanded a trial by jury.
{¶5}. The matter proceeded to a jury trial on September 24, 2013. The State
presented three witnesses and a document containing SARTA's "Courtesy Rules for
Passengers." Appellant presented no evidence in her defense.
Stark County, Case No. 2013 CA 00204 3
{¶6}. Appellant made both an oral and written motion for a specific jury
instruction on the proper definition for the term "turbulent behavior." The trial court ruled
in favor of appellant as to said request.
{¶7}. The jury subsequently found appellant guilty on both counts. The court
thereupon sentenced appellant to ninety days in jail for resisting arrest (with eighty-nine
days suspended and a one-day credit for time served) and thirty days in jail for
disorderly conduct (with twenty-nine days suspended and a one-day credit for time
served).
{¶8}. On October 22, 2013, appellant filed a notice of appeal. She herein raises
the following three Assignments of Error:
{¶9}. “I. APPELLANT'S CONVICTIONS FOR DISORDERLY CONDUCT AND
RESISTING ARREST ARE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.
{¶10}. “II. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S
MOTION FOR A JUDGMENT OF ACQUITTAL ON BOTH CHARGED OFFENSES.
{¶11}. “Ill. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
INSTRUCT THE JURORS THAT THEY HAD TO DETERMINE WHETHER A LAWFUL
ARREST HAD OCCURRED FOR DISORDERLY CONDUCT BEFORE FINDING
APPELLANT GUILTY OF RESISTING ARREST.”
I.
{¶12}. In her First Assignment of Error, appellant contends her convictions for
disorderly conduct and resisting arrest are not supported by sufficient evidence and are
against the manifest weight of the evidence. We disagree.
Stark County, Case No. 2013 CA 00204 4
{¶13}. In reviewing a claim based on the sufficiency of the evidence, “[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
{¶14}. Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d
717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
Disorderly Conduct
{¶15}. Appellant was convicted for disorderly conduct under R.C. 2917.11(A)(1),
which states as follows:
{¶16}. "No person shall recklessly cause inconvenience, annoyance, or alarm to
another by *** [e]ngaging in fighting, in threatening harm to persons or property, or in
violent or turbulent behavior."
{¶17}. An offense of disorderly conduct is elevated to a misdemeanor of the
fourth degree if “the offender persists in disorderly conduct after a reasonable warning
or request to desist.” R.C. 2917.11(E)(3)(a).
Stark County, Case No. 2013 CA 00204 5
{¶18}. In the context of Ohio's disorderly conduct statute, the word “turbulent”
means, “* * * tumultuous behavior or unruly conduct characterized by violent
disturbance or commotion.” See State v. Reeder (1985), 18 Ohio St.3d 25, 26.
{¶19}. According to the trial record, Officer Watkins initially heard appellant's
statement of “hurry the fuck up” while doing his rounds of the SARTA terminal and
“[took] several steps in that direction” to deal with the matter. See Tr. at 107. This loud
statement was also within earshot of other bus patrons. Tr. at 110. Officer Watkins
advised appellant that profane language is a violation of the SARTA bus rules and
directed her to stop. Tr. at 107. Appellant ignored the officer's warning and responded:
"That's my motherfuckin' boyfriend. I can cuss if I want." Tr. at 108. The officer again
advised her that she could not use profanity at the bus terminal. Tr. at 108. He further
told her that if she continued using profanity, she would have to leave the premises.
Appellant replied again: "That's my motherfuckin' boyfriend. I can cuss if I want.'' Tr. at
108. The officer, after giving appellant further opportunity to correct her behavior, told
her she must leave. Officer Watkins told her to leave at least four times. Tr. at 108.
Appellant refused to do so, telling the officer "I don't have to leave the property. My
boyfriend is in here.'' Tr. at 108.
{¶20}. As a crowd formed, the officer attempted to place appellant under arrest
for her conduct. Tr. at 110-111. He asked her to stand up. She refused to do so. Tr. at
111. When he tried to cuff her, she pulled away and twisted and turned in an attempt to
keep the officer from arresting her. Tr. at 111, 124. When Officer Watkins finally did get
the handcuffs on her, she refused to walk as she was being escorted away from the
''pod.” Tr. at 113.
Stark County, Case No. 2013 CA 00204 6
{¶21}. Notably, appellant’s behavior took place in a crowded bus terminal that
services many types and ages of riders. Officer Watkins was asked: “Did this
[appellant’s speech and behavior] create a crowd or… How did this affect, if at all, the
other passengers at the bus stop?” He answered: “They’re all watching. They’re all
watching this behavior.” Tr. at 110. Eric Johnson, a bus driver seated within his bus,
was loading and unloading passengers at the time of this incident. At trial, Johnson
stated “I do remember that there was a woman there that was being loud and that
caught my attention.” When asked what Johnson heard from her, he answered:
“Cussing, swearing. Just very loud talking.” Tr. at 122. The SARTA supervisor, Albert
Hogan, testified: “And the first thing I heard * * * it was a lot of cussing * * * I don’t know
what she was mad at at first but then the attention turned to Officer Watkins and she
started cussing at him * * *. It was pretty belligerent.” Tr. at 130.
{¶22}. Although not raised as a separate assigned error, appellant also raises at
this juncture the argument that her words were constitutionally protected speech and
could not form the basis of a criminal prosecution. In support, appellant directs us to
Cincinnati v. Karlan (1974), 39 Ohio St. 2d 107, 314 N.E. 2d 162, and State v. Frazier,
9th Dist. Summit No. 25338, 2011-Ohio-3189, for the rule that persons may not be
punished for speaking boisterous, rude, or insulting words, even with the intent to annoy
another, unless the words by their very utterance inflict injury or are likely to provoke the
average person to an immediate retaliatory breach of the peace. We note Karlan
involved a Cincinnati municipal ordinance which read: "It shall be unlawful for any
person to wilfully conduct himself or herself in a noisy, boisterous, rude, insulting or
other disorderly manner, with the intent to abuse or annoy any person or the citizens of
Stark County, Case No. 2013 CA 00204 7
the city or any portion thereof." In addition, Frazier involved R.C. 2917.11(A)(2), which
states: "No person shall recklessly cause inconvenience, annoyance, or alarm to
another by *** [m]aking unreasonable noise or an offensively coarse utterance, gesture,
or display or communicating unwarranted and grossly abusive language to any person."
{¶23}. In essence, appellant urges that her language did not constitute
unprotected "fighting words." The case sub judice, however, entails a prosecution under
R.C. 2917.11(A)(1). "The Ohio Supreme Court has determined that R.C. 2917.11(A)(1)
contains a component which does not concern the prohibition of speech or expression.
*** Rather, this section of the Revised Code contains elements prohibiting behavior."
State v. Logue, 7th Dist. Mahoning No. 97-BA-22, 2000 WL 246485. The basis for the
charge against appellant went well beyond her loud and profane language. Appellant
was told by a law enforcement officer to leave a public transportation facility after
several warnings about her language and behavior. Officer Watkins aptly noted that
SARTA users include minors going to and from school, probationers, and persons with
mental health issues, summarizing as follows: "*** [T]here's a very diverse group of
people at any given time down there and you have to have a police presence to make
sure order is kept. If not, things can get real ugly real quick." Tr. at 105-106. The jurors
could have rightly concluded that her refusal to leave after the officer told her to, in
conjunction with her turbulent behavior and angry responses, caused inconvenience,
annoyance, or alarm to others. Her conduct required the attention of three SARTA
employees, taking them away from their ordinary duties. The jurors could have properly
inferred that it caused a disturbance, a crowd to form, and delayed the loading and
unloading of a SARTA bus. The officer's multiple warnings show not only that appellant
Stark County, Case No. 2013 CA 00204 8
acted recklessly in creating the inconvenience, annoyance, or alarm, but also that she
acted with persistence, thus elevating the offense to a fourth-degree misdemeanor. As
in the case of State v. Bryan, 1st Dist. Hamilton No. C-830553, 1984 WL 6816, we find
these facts represent a "course of conduct that clearly transcends the exercise of
protected speech, and that may properly form the basis of a criminal offense under state
law." Cf., also, State v. Rhines, 2nd Dist. Montgomery No. 23486, 2010-Ohio-3117,
(evidence found sufficient for R.C. 2917.11(A)(1) conviction where defendant at a
department store engaged in violent or turbulent behavior by shouting profanities,
disrupting a place of business, refusing to leave, and throwing gum at an employee).
{¶24}. Accordingly, upon review, we find no grounds for reversal of the disorderly
conduct count on sufficiency grounds, and we hold the jury's decision did not create a
manifest miscarriage of justice requiring that appellant's conviction for disorderly
conduct be reversed and a new trial ordered.
Resisting Arrest
{¶25}. The statute in question, R.C. 2921.33(A), directs that “[n]o person,
recklessly or by force, shall resist or interfere with a lawful arrest of the person or
another.” Regarding the “lawful arrest” aspect of the statute, the Ohio Supreme Court
held in Columbus v. Fraley (1975), 41 Ohio St.2d 173, 324 N.E.2d 735, " * * * that in the
absence of excessive or unnecessary force by an arresting officer, a private citizen may
not use force to resist arrest by one he knows * * * is an authorized police officer * * *
whether or not the arrest is illegal under the circumstances.” Id. at 180, 324 N.E.2d 735.
As later observed by the Court, Fraley stands for the proposition that modern Ohio law
encourages the “resol[ution of] questions concerning the legality of police conduct in the
Stark County, Case No. 2013 CA 00204 9
courts through peaceful means rather than on the street in potentially violent
confrontation.” State v. Pembaur (1984), 9 Ohio St.3d 136, 138, 459 N.E.2d 217. In
order to prove a lawful arrest, the State need not prove that the defendant was, in fact,
guilty of the offense. See State v. Sansalone (1st Dist. 1991), 71 Ohio App.3d 284, 285,
593 N.E.2d 390. Instead, 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.” See State v Vactor, 9th Dist. Lorain No. 02 CA
8086, 2003-Ohio-7195, ¶ 34 (additional citations omitted).
{¶26}. Based on our above analysis of appellant's disorderly conduct conviction,
we conclude the jurors could clearly have determined that Officer Watkins had a
reasonable basis to believe a criminal offense under Ohio law had occurred, thus
resolving the "lawful arrest" issue. Furthermore, the record reveals that after Officer
Watkins placed appellant under arrest, she was uncooperative. The officer stated:
“She’s not – you know, she won’t stand up. She won’t leave the property * * *. I have to
help her up. * * * She’s still not being compliant. I finally get the cuffs on her. * * * It took
some doing.” Tr. at 112. Appellant refused to stand when the officer placed her under
arrest, she pulled away when he tried to handcuff her, and she refused to walk when
being escorted away from the terminal. Officer Watkins described the arrest of appellant
as "a chore in itself." Tr. at 111. The SARTA supervisor, Albert Hogan, added that
during the pre- and post-arrest time, appellant continued to use profanity: “Just F-
bombs. I mean, and four letter words. Just a lot of cussing I could say.” Tr. at 132. In
addition, Eric Johnson, the SARTA bus driver mentioned earlier, testified that appellant
Stark County, Case No. 2013 CA 00204 10
was “pulling away, twisting and turning to get away from the officer,” while she was
being handcuffed. Tr. at 124.
{¶27}. Upon review of the record, we hold reasonable triers of fact could have
found the elements of the crime of resisting arrest under the facts presented at trial.
Thus, we find no grounds for reversal of the resisting arrest count on sufficiency
grounds, and we hold the jury's decision did not create a manifest miscarriage of justice
requiring that appellant's conviction for resisting arrest be reversed and a new trial
ordered.
{¶28}. Appellant's First Assignment of Error is overruled.
II.
{¶29}. In her Second Assignment of Error, appellant contends the trial court erred
in denying her motions for acquittal as to both offenses in this matter. We disagree.
{¶30}. An appellate court reviews a trial court's denial of a Crim.R. 29 motion for
acquittal using the same standard used for reviewing a sufficiency of the evidence
claim. State v. Barron, 5th Dist. Perry No. 05 CA 4, 2005–Ohio–6108, ¶ 38. Having now
reviewed appellant's above "sufficiency" claims, we find further analysis of her present
argument to be unnecessary.
{¶31}. Appellant's Second Assignment of Error is therefore overruled.
III.
{¶32}. In her Third Assignment of Error, appellant contends the trial court erred in
failing to adequately instruct the jurors to determine whether a lawful arrest had
occurred for disorderly conduct before finding appellant guilty of resisting arrest. We
disagree.
Stark County, Case No. 2013 CA 00204 11
{¶33}. We first note the record indicates that at trial, appellant raised a jury
instruction issue regarding the definition of "turbulent behavior," but she did not assert
her present challenge that the reading of the instructions on resisting arrest prior to the
instructions on disorderly conduct would be misleading to the jury. See Tr. at 143-146.
An error not raised in the trial court must be plain error for an appellate court to reverse.
State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804; Crim.R. 52(B). In order to find
plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of
the trial clearly would have been otherwise. Long, supra, paragraph two of the syllabus.
In State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452, the Ohio Supreme
Court applied Long and the plain error doctrine in the context of an allegedly erroneous
jury instruction. The Court added that “ * * * the plain error rule is to be applied with
utmost caution and invoked only under exceptional circumstances, in order to prevent a
manifest miscarriage of justice.” Id. at 227, 448 N.E.2d 452. Finally, “a single jury
instruction should not be judged in isolation but, instead, must be considered in the
context of the overall charge.” State v. Schlee, Lake App.No. 2004–L–070, 2005–Ohio–
5117, ¶ 32 (additional citations omitted).
{¶34}. In the case sub judice, the jury clearly was not required to find that
appellant was in fact guilty of the precipitating charge when considering whether the
elements of resisting arrest were met. See Mansfield v. Studer, 5th Dist. Richland Nos.
2011–CA–93, 2011–CA–9, 2012-Ohio-4840, ¶ 90. Appellant asserts that the trial court
did not adequately instruct the jury that the arrest for disorderly conduct must be found
lawful in order to convict for resisting. However, the trial court at least read to the jury
the elements of the statute, including the phrase "resist or interfere with a lawful arrest."
Stark County, Case No. 2013 CA 00204 12
See Tr. at 162. Upon review, we find no plain error under the circumstances, and we
are unpersuaded by appellant's additional speculative theory that the chronological
order of the instructions for the offenses of resisting arrest (which was given first) and
disorderly conduct (which was given second) caused confusion for the jurors and that
the outcome of the case would have been different had these instructions been
challenged by defense counsel.
{¶35}. Appellant's Third Assignment of Error is therefore overruled.
{¶36}. For the reasons stated in the foregoing opinion, the judgment of the
Canton Municipal Court, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
JWW/d 0725
Stark County, Case No. 2013 CA 00204 13
Hoffman, P.J. concurring in part and dissenting in part
{¶37} I concur in the majority's analysis and disposition of Appellant's third
assignment of error.
{¶38} I also concur in the majority's affirmance of Appellant's conviction for
resisting arrest. However, I do so based upon the fact Appellant could have been
lawfully arrested for criminal trespass, not disorderly conduct.
{¶39} I find Appellant's conviction for disorderly conduct is not supported by
sufficient evidence. The majority concludes the basis for the charge against Appellant
went well beyond her loud and profane language.1
{¶40} I interpret the majority opinion to suggest, had Appellant been cited with a
violation of R.C. 2917.11 (A)(2), she would have been properly acquitted of that charge.
However, the majority correctly focuses its analysis on whether Appellant recklessly
caused inconvenience, annoyance, or alarm to another by engaging in violent or
turbulent behavior in violation of R.C. 2917.11(A)(1).
{¶41} The fact a "crowd"2 gathered around the commotion to watch is not
unusual. But the mere fact a crowd gathered to watch does not equate to Appellant
having acted violently or turbulently, let alone support the conclusion others in the
"crowd" were caused inconvenience annoyance or alarm thereby. No other bus
terminal passenger testified as to the same. In fact, Officer Watkins' initial response to
1
Whether or not the Appellant's repeated profanity was the basis for her arrest is
subject to debate. What is not subject to debate is that it was a major precipitating
factor leading to her arrest.
2
While the majority notes at times, there can be several hundred people at the facility,
in the same sentence the witness said at times, there can be as little as ten. The
witness later testifies he did not know how many people were there, (Tr. at p. 110), let
alone conclude the bus terminal was "crowded."
Stark County, Case No. 2013 CA 00204 14
Appellant's retort after first advising her not to use profanities was to "immediately bust
out started laughing" Tr. at p.107.
{¶42} In its response brief, the state of Ohio claims Appellant's conduct delayed
the loading and unloading of a SARTA bus. (Appellee's brief at p. 8). Appellee does
not cite a transcript page in support. If true, Appellant's conduct would have caused
inconvenience. But I find the record belies such assertion.3
{¶43} Appellant may well have caused a disturbance, but I find her conduct
insufficient to demonstrate her behavior was tumultuous or unruly characterized by
violent disturbance or commotion. While Appellant may well have violated SARTA's
"Courtesy Rules for Passengers", I find the evidence insufficient to support a conviction
under R.C. 2917.11(A)(1).
________________________________
HON. WILLIAM B. HOFFMAN
3
I am unconvinced Appellant's conduct resulted in inconvenience, annoyance or alarm
to the three SARTA employees involved. It was part of Officer Watkins' regular duties to
manage passenger conduct. Bus driver Johnson observed the commotion while seated
in the driver's seat and stated it did not affect anybody trying to get on the bus. While
witnessing the disturbance, SARTA supervisor Hogan did not testify he was caused any
inconvenience, annoyance or alarm.
Stark County, Case No. 2013 CA 00204 15