State v. Webb ( 2023 )

[Cite as State v. Webb, 2023-Ohio-4817.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-220531
TRIAL NO. 22CRB-11236
Plaintiff-Appellee, :
vs. : O P I N I O N.
DE’ANGELO WEBB, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 29, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Victoria L. Lowry, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Following a bench trial in municipal court, defendant-appellant
De’Angelo Webb was convicted of criminal trespass in violation of R.C. 2911.21(A)(1).
Webb now appeals his conviction, raising a sole assignment of error for review that his
conviction was based on insufficient evidence and against the manifest weight of the
evidence. For the reasons set forth below, we overrule Webb’s assignment of error and
affirm his conviction.
Factual and Procedural Background
{¶2} On July 4, 2022, the Cincinnati Center City Development Corporation
(“3CDC”) held a Fourth of July event in Washington Park. Washington Park is an
outdoor public park owned by the city of Cincinnati. 3CDC hired off-duty Cincinnati
police officers to serve as security during the event. These officers were hired to be
visible, available and, if needed, provide medical treatment or respond quickly. The
record established that these officers were authorized to remove people from the event
for various reasons, including if they were intoxicated, under the influence of drugs,
disputing or fighting, or becoming a distraction. Cincinnati Police Officer Jonathan
Gordon was working on that detail for 3CDC that day with another officer. Officer
Gordon used his body-worn camera to record events of the day.
{¶3} Around 3:20 p.m., Officer Gordon and another officer came upon
De’Angelo Webb in a loud argument in the park with the mother of his children and
in front of their three children. The entire incident was recorded on Officer Gordon’s
body-worn camera, and a review of the video shows that Webb remained in
Washington Park despite numerous instructions to leave.
{¶4} The record is unclear as to the exact cause of the dispute. When the
audio first began recording, the mother was sitting on a bench inside the park with her
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OHIO FIRST DISTRICT COURT OF APPEALS
three children and was telling Webb to gather his belongings and leave her house.
Initially, Webb was standing away from the mother. Webb looped towards the mother
and walked out of the park while the mother repeated three times to Webb to “get your
shit and get out of my house[,]” and Webb replied each time, “say no more, say no
more.” Then, Webb stopped and turned back into the park as the mother repeated to
Webb to “take your stuff and get out of my house.” Webb insisted, “I don’t care about
none of that,” while he leaned forward on the back of the bench the mother sat on. At
that point, Officer Gordon and another officer intervened in the dispute, first telling
the small children caught in the middle of the dispute to stay by the officers.
{¶5} As Officer Gordon addressed Webb, “Sir, sir,” Webb stepped away from
the mother, and Officer Gordon continued, “Yeah, thank you man, just some time and
distance, y’all, time and distance, just some time and distance.” Webb responded,
“don’t give a fuck about the police” and walked down the pathway towards the park
exit. Webb walked about a third of the way down the path, when he turned and
returned to the park. Officer Gordon stepped into Webb’s way, saying “Sir, you’re
good, man, you all can just settle this later.” Webb continued past Officer Gordon,
who said “you’re coming back? Don’t come back! Don’t come back. That’s not worth
it, man.” Webb restarted the dispute, warning the mother twice that she “just fucked
up.” The mother did not respond.
{¶6} At that point, Webb turned and walked towards the park exit for the
third time, making it all the way to the sidewalk of the street before stopping. Webb
turned back into the park and declared, “I ain’t going nowhere.” Officer Gordon
replied, “Sir, have a good day. It’s not worth it.” Webb retorted, “Nah, fuck all that, I
ain’t going nowhere.” As Webb walked past Officer Gordon and turned in front of the
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OHIO FIRST DISTRICT COURT OF APPEALS
mother, Officer Gordon said, “Sir, you’re done here. Just have a good day.” The other
officer, standing in front of the mother, told Webb, “She doesn’t want to talk to you.”
All this time, the mother had sat silently on the bench. Webb replied, “I want to talk
to her.” Then Officer Gordon instructed, “Just have a good day, you’re free to go.”
{¶7} Understanding that Officer Gordon was ordering him to leave the park,
Webb questioned, “I ain’t gotta leave, why I gotta leave?” Officer Gordon repeated his
command, saying, “Yes you are, we’re working in the park today and were not going to
have this here.” Unconvinced, Webb protested twice more, “Why I gotta leave?”
Officer Gordon answered, “I’m asking you nicely, man.” Webb replied, “I’m here with
my kids.” Officer Gordon pleaded again, “This fight is not worth it, man.” Webb
answered again, “I’m here with my kids.” Officer Gordon responded, “This fight is
never gonna stop. Have a good day sir.” Webb then declared, “Not gonna tell me to
leave this park.”
{¶8} At that point, Officer Gordon radioed to request an on-duty police
cruiser to have “someone removed from the park so they do not return.” Meanwhile,
Webb pointed to the mother and said twice, “[y]ou done did that[,]” as he began to
walk down the path out of the park. By this time, Webb had made three prior aborted
exits. On his fourth exit, Webb walked to the sidewalk before shouting, “You did that,
bruh. You done fucked up!” Officer Gordon stepped in Webb’s way and attempted to
wave Webb off. Undeterred, Webb declared, “You called the police on me one too
many times, bruh! I should have beat your ass, bro! Real shit, bruh! And your daddy!”
Each time, Officer Gordon said, “Have a good day.” Webb turned, pointed again, and
said “Your daddy, and your brother, and all of them.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} As Officer Gordon herded Webb along the path and towards the park
exit, Webb shouted back into the park, “You a clown, bruh! You just did some clown
shit! You just did some clown shit, bro! Real shit, bro! Real shit!” Officer Gordon
pleaded with Webb, “Have a good day, sir. Have a good day.” But Webb turned back,
moving to reenter the park. Officer Gordon pleaded once more, “Have a good day,
man, it ain’t worth it, it ain’t worth it, man. You’ve had every opportunity.”
{¶10} Webb continued back into the park, arguing with Officer Gordon, “How
can y’all kick me out of the park, from kicking with my kids?” Officer Gordon pleaded
once more, “You’ve had every opportunity, sir, please just leave, please, you want
nothing to do with this, just please leave.” Undeterred, Webb replied, “I don’t want
nothing to do with it! I don’t care about it! I’m kicking it with my kids, little brother.
All this other shit you communicating can miss me, I don’t care about none of that! I
don’t care about that extra shit, bro.” As Webb argued, he continued walking back into
the park towards his children and their mother.
{¶11} Webb picked up a bottle from the ground as he rounded the corner to
face the mother of his children one more time. Officer Gordon walked behind him and
another officer stood in between Webb and the mother, blocking his path. The other
officer instructed, “Sir, we’re not doing this. We’re not doing this sir.” “Not doing
what?” Webb asked. “She doesn’t want to talk to you right now[,]” answered the other
officer. “Just have a good day, man[,]” Officer Gordon added, “[t]here’s no need to
keep coming back.”
{¶12} Webb again declared, “I’m not going nowhere, I’m here in a public park
with my kids” to which Officer Gordon replied, “You’re gonna end up leaving[,]” and
added, “Its not worth it.” Seemingly convinced, Webb turned to leave the park,
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OHIO FIRST DISTRICT COURT OF APPEALS
pointed to the mother and said, “call your daddy, ‘cause I’m about to call him” and he
walked all the way out of the park. But Webb stopped in the crosswalk when he noticed
the police cruiser that Officer Gordon requested earlier. Instead of continuing out of
the park, Webb stepped back onto the curb towards the park and argued again with
Officer Gordon. Webb asked, “[t]he fuck you gonna need this police shit for? Why you
calling extra backup for?” Officer Gordon said once more, “I asked you to leave, man.
Have a good day.” Webb argued more and asked “Do you believe what this bitch has
told y’all?” Officer Gordon said for a last time, “I asked you to leave, man,” and he
arrested Webb for criminal trespass.
{¶13} Webb was tried in a bench trial in municipal court. At trial, Officer
Gordon testified that he “did not feel that [Webb] was going to calm down and not be
a distraction at the event. Some of the language that he used was inappropriate as
well.” Though Officer Gordon describes Webb’s conduct as disorderly, Officer Gordon
did not state that he ordered Webb to leave for disorderly conduct nor did Officer
Gordon arrest Webb for disorderly conduct.
{¶14} The municipal court convicted Webb of criminal trespass. The court
sentenced Webb to pay a $50 fine and court costs. Webb now appeals his conviction.
Law and Analysis
{¶15} In the sole assignment of error, Webb contends that his conviction was
not supported by legally sufficient evidence and was against the manifest weight of the
evidence. We confine our analysis only to the issues presented for review. Though
Webb argued in part at trial that his conduct was speech protected by the First
Amendment to the United States Constitution, Webb does not raise any constitutional
issue in his appeal as an assignment of error or argue it in his brief. Accordingly, such
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OHIO FIRST DISTRICT COURT OF APPEALS
arguments are not properly before this court. See App.R. 12(A); State v. Quarterman,
140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19. While a reviewing court
may in its discretion consider constitutional challenges in specific cases of plain error,
Webb does not argue such an error occurred. See Quarterman at ¶ 16, citing State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 377-378. When a party
does not “undertake a plain-error analysis, an appellate court will not craft such an
argument on his behalf.” State v. Chapman, 9th Dist. Summit No. 28626, 2018-Ohio-
1142, ¶ 23. Even if the application of the criminal-trespass statute to Webb was a
constitutional violation, deciding such a constitutional question is better served with
the benefit of briefing and argument. Quarterman at ¶ 19, quoting Sizemore v. Smith,
6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. We have neither here.
A. Standard of Review.
{¶16} A challenge to the sufficiency of the evidence supporting a conviction
requires an appellate court to determine whether the state has met its burden of
production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541(1997) (Cook, J., concurring). It is a question of law that we review de novo. State v.
Ellison, 178 Ohio App.3d 734, 900 N.E.2d 228, 2008-Ohio-5282, ¶ 9 (1st Dist.). We
must decide whether any rational trier of fact could have found the essential elements
of the offense proved beyond a reasonable doubt after viewing the evidence in a light
most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of the witnesses. State
v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 45.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} By contrast, a challenge that a conviction is against the manifest weight
of the evidence requires an appellate court to determine whether the state has met its
burden of persuasion. Thompkins, at 390 (Cook, J., concurring). We “must review
‘the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses and determine whether, in resolving conflicts in the
evidence, the [trier of fact] 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.
Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting Thompkins
at 387. However, an appellate court may not substitute its own judgment for that of
the trier of fact “[w]here reasonable minds can reach different conclusions upon
conflicting evidence.” Jenks, at 279. An appellate court may only substitute its
judgment for that of the trier of fact on the issue of witness credibility when “it is
patently apparent that the trier of fact lost its way in arriving at its verdict.” State v.
Porter, 1st Dist. Hamilton No. C-200459, 2021-Ohio-3232, ¶ 25.
B. Criminal Trespass
{¶18} Webb was convicted of criminal trespass. To sustain a conviction for
criminal trespass, the state must prove the defendant (1) without privilege to do so
(2) knowingly (3) entered or remained on (4) the land or premises of another.
R.C. 2911.21(A)(1). The third and fourth elements are not in dispute as Webb entered
and remained in Washington Park, which is owned by the city of Cincinnati.
{¶19} The first element in dispute, a lack of privilege to be on the property of
another, is the distinguishing characteristic between a criminal trespass and lawful
presence. State v. Staley, 1st Dist. Hamilton Nos. C-200270, C-200271 and C-200272,
2021-Ohio-3086, ¶ 12. Generally, “a person has a privilege to enter and be upon the
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OHIO FIRST DISTRICT COURT OF APPEALS
public areas of public property.” State v. Shelton, 63 Ohio App.3d 137, 578 N.E.2d 473(4th Dist.1989). But “a trespass is not excused simply because the property involved
is publicly owned.” Staley at ¶ 12, citing R.C. 2911.21(B).
{¶20} A person may commit a criminal trespass onto public property when his
or her general privilege to be there has been properly revoked. A “ ‘public official or
agency[,] into whose charge the property is put[,] can withdraw or revoke the privilege
otherwise enjoyed by a member of the public.’ ” Id. at ¶ 13, quoting Dayton v. Moore,
2d Dist. Montgomery No. 13369, 1993 Ohio App. LEXIS 1647 (Mar. 25, 1993). While
R.C. 2911.21 does not require a particular basis to revoke an individual’s privilege to
be on public property, the public official must have a “reasonable and legitimate basis
for withdrawing the privilege.” Id. at ¶ 17, citing City of Columbus v. Andrews, 10th
Dist. Franklin No. 91AP-590, 1992 Ohio App. LEXIS 829 (Feb. 27, 1992). If a “ ‘person
charged with the supervision of public property acts unreasonably or exceeds the scope
of his or her authority, the purported revocation of the privilege to enter the property
is void and of no further effect.’ ” Id., quoting Andrews. Whether there was a
reasonable and legitimate basis to revoke the privilege is dependent on the facts and
circumstances of each individual case.
{¶21} Here, the specific facts show Officer Gordon had a reasonable and
legitimate basis to order Webb to leave. Webb was in Washington Park, a space that
is owned by the city of Cincinnati, is open to the public, and is managed by 3CDC.
Thus, Webb began with the general privilege enjoyed by all members of the public to
be in the park. Officer Gordon testified he had the authority to withdraw that general
privilege to be in Washington Park for various reasons, including if a person was
intoxicated or under the influence of drugs, was involved in any kind of dispute or
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OHIO FIRST DISTRICT COURT OF APPEALS
fighting, or for being “a distraction at the event.” Thus, the element is satisfied if
Officer Gordon’s revocation of Webb’s privilege was reasonable and legitimate.
{¶22} Webb’s general privilege to be in Washington Park is not boundless.
When a person exceeds his privilege to be on public property, he commits a trespass.
See City of Cleveland v. Dickerson, 2016-Ohio-806, 60 N.E.3d 686, ¶ 27 (8th Dist.).
The park was hosting a Fourth of July celebration that day and it was reasonable and
legitimate to remove Webb because he exceeded his privilege to be in the park and
became a distraction to the smooth operation of the event. Officer Gordon asked
Webb to leave on his own accord multiple times, advising Webb again and again that
continuing the dispute at that time and place was not worth his time and energy. But
Webb persisted each time, moving to leave at first, but then deciding to return time
and time again. With each return, Webb escalated his words from name calling to
invoking violence in front of two police officers. Webb said to the mother of his
children, “I should have beat your ass, bro! * * * Your daddy, and your brother, and all
of them!” because the mother of his children “ * * * called the police on [Webb] one
too many times!” By his conduct, Webb exceeded any privilege a member of the public
had to be in the park. Webb was asked to leave the park multiple times and failed to
do so.
{¶23} Being a “distraction” is not itself a trespass, nor do police automatically
have a reasonable and legitimate basis to revoke the privilege of anyone who is being
“distracting.” Rather, Officer Gordon had a reasonable and legitimate basis to revoke
Webb’s privilege because of Webb’s own conduct in the park and the distraction to the
smooth operation of the event that his conduct posed.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} Although Webb was not charged with disorderly conduct, Webb’s
conduct can only be described as such. A cursory viewing of the body-worn camera
recording shows Webb making “unreasonable noise or offensively coarse utterance[s],
gesture[s], or display[s],” or “communicating unwarranted and grossly abusive
language” to the mother of his children. See R.C. 2917.11(A)(2); see also Cincinnati
Park Board Rule 27 (prohibiting disorderly conduct in Washington Park). This is not
to say Officer Gordon must charge Webb with disorderly conduct to properly revoke
Webb’s privilege to be in the park. As the dissent correctly notes, the record is devoid
of a specific rule that expressly prohibits “being a distraction” and if Webb was
charged, it would be a different case that may involve First Amendment issues that are
not currently before this court. Rather, this is to emphasize that there are general rules
of conduct that inform when a person exceeds his general privilege to be on public
property and inform when there is a legitimate and reasonable basis to revoke that
privilege.
{¶25} Turning to the second element in dispute, whether Webb knowingly
remained in Washington Park without privilege to be there. A person acts “knowingly”
when, regardless of purpose, “the person is aware that the person’s conduct will
probably cause a certain result or will probably be of a certain nature.”
R.C. 2901.22(B). A person has “knowledge of circumstances when the person is aware
that such circumstances probably exist.” Id. An accused is presumed to intend the
natural, reasonable and probable consequences of his voluntary acts. State v. Morris,
1st Dist. Hamilton No. C-150421, 2016-Ohio-5490, ¶ 9, citing State v. Johnson,
56 Ohio St.2d 35, 39, 381 N.E.2d 637 (1978). As discussed previously, Officer Gordon
properly revoked Webb’s privilege to be in Washington Park and communicated that
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OHIO FIRST DISTRICT COURT OF APPEALS
to Webb multiple times. Webb understood Officer Gordon’s three commands as
ordering him to leave the park because Webb responded to the first order, “I ain’t
going nowhere[,]” then “I ain’t gotta leave, why I gotta leave?” to the second and, “I’m
not going anywhere[,]” to the third. This evidence, when viewed most favorably to the
state, supports that Webb knowingly remained in Washington Park after his privilege
to be there was lawfully revoked. See Staley, 1st Dist. Hamilton Nos. C-200270,
C-200271 andC-200272, 2021-Ohio-3086, ¶ 21, (“[e]vidence that a guest was asked to
leave the premises repeatedly and failed to make an effort to do so supports a
conviction for criminal trespass.”), quoting State v. Tingler, 7th Dist. Belmont No.
16 BE 0015, 2017-Ohio-4158, ¶ 11. Officer Gordon’s orders and Webb’s responses were
all recorded on Officer Gordon’s body-worn camera and the recording corroborated
Officer Gordon’s testimony so there were no credibility determinations nor conflicts
of evidence where the trier of fact lost its way. See id. at ¶ 24.
{¶26} Accordingly, Webb’s conviction is supported by sufficient evidence and
is not against the manifest weight of the evidence. Consequently, we overrule Webb’s
assignment of error.
Conclusion
{¶27} Having overruled the sole assignment of error, we affirm the judgment
of the trial court.
Judgment affirmed.
Z AYAS , P.J., concurs.
B OCK , J., dissents.
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OHIO FIRST DISTRICT COURT OF APPEALS
B OCK , J., dissenting.
{¶28} In my view, a contentious argument between parents in front of their
children in a scarcely-populated public park is not a “ ‘reasonable or legitimate basis
for withdrawing the privilege’ ” to remain on public property. State v. Staley, 1st Dist.
Hamilton Nos. C-200270, C-200271 and C-200272, 2021-Ohio-3086, ¶ 17, quoting
City of Columbus v. Andrews, 10th Dist. Franklin No. 91AP-590, 1992 Ohio App.
LEXIS 829, 30 (Feb. 27, 1992). That is precisely the context in which off-duty officers
revoked defendant-appellant De’Angelo Webb’s privilege to remain in Washington
Park with his children. Therefore, I respectfully dissent.
Webb argued with the mother of his children and Officer Gordon
{¶29} A few facts warrant mentioning. Gordon’s bodycam footage began as he
approached Webb and the mother of his children. The footage shows a nearly empty
park.
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{¶30} While there is no audio at this point in the footage, the mother of Webb’s
children appeared to explain something to the officers. As the audio began, the
children’s mother can be heard repeatedly yelling at Webb, in front of their children,
“Get your shit and get out of my house.” She also yelled, “I don’t give a fuck.”
{¶31} After several minutes of arguing with his children’s mother, leaving and
reentering the park, and having words with Gordon, Webb asked, “Why I got to leave?
Why I got to leave?” Gordon explained, “[W]e’re working in the park today. We’re not
going to have this here. I’m asking you nicely.” In response, Webb said, “I’m here with
my kids, I’m here with my kids.” Officer Gordon replied, “This fight is never going to
stop.”
Webb’s privilege to be in the public park was improperly withdrawn.
A. Being a distraction does not justify revoking a person’s privilege to be
in a public place
{¶32} In Staley, we recognized that the privilege to access public property,
once granted, cannot be “ ‘withdrawn arbitrarily or capriciously.’ ” Staley,
1st Dist. Hamilton Nos. C 200270, C-200271 and C-200272, 2021-Ohio-3086, at ¶ 17,
quoting Andrews, 10th Dist. Franklin No. 91AP-590, 1992 Ohio App. LEXIS 829, at
19. This principle reflects the fact that:
persons charged with the supervision of public property * * * are not the
actual owners of the property [and] have no right to exclude persons
from the property for any reason or no reason at all. As public officers,
they must act reasonably and within the scope of their authority. When
a person charged with the supervision of public property acts
unreasonably or exceeds the scope of his or her authority, the purported
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OHIO FIRST DISTRICT COURT OF APPEALS
revocation of the privilege to enter the property is void and of no further
effect.
Id., quoting Andrews at 31.
{¶33} The majority states, “Being a ‘distraction’ is not itself a trespass, nor do
police automatically have a reasonable and legitimate basis to revoke privilege of
anyone who is distracting. Rather, Officer Gordon had a reasonable and legitimate
basis to revoke Webb’s privilege because of Webb’s own conduct in the park and the
distraction to the smooth operation of the event that his conduct posed.”
{¶34} As an initial matter, I see no difference between Webb “being a
distraction” and Webb’s conduct causing a “distraction to the smooth operation of the
event that his conduct posed.” Gordon testified that he removed Webb because of his
belief that Webb would cause a distraction. The end result is the same—the majority
holds that Webb’s conduct created a distraction to the operation of the event, justifying
his removal and criminal conviction.
{¶35} We are dealing with an alleged violation of a rule—but that rule does not
exist. Contrast Staley, 1st Dist. Hamilton Nos. C-200270, C-200271 and C-200272,
2021-Ohio-3086, at ¶ 19 (reasonable and legitimate basis to withdraw the privilege
where defendant was lying flat on a park bench in violation of a written park rule).
Webb’s causing a distraction in a public park is not a reasonable and legitimate basis
to revoke his privilege to be in Washington Park. See State v. Shelton, 63 Ohio App.3d
137, 140, 578 N.E.2d 473 (4th Dist.1989) (Being “a nuisance” on public property is not
by itself a reasonable and legitimate basis to revoke a person’s privilege to be on that
public property.) Punishing someone for conduct that is not expressly prohibited runs
contrary to the very foundation of our criminal legal system.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} The majority fails to explain how a person’s being a “distraction to the
smooth operation of the event” can justify the state revoking that person’s privilege to
be in a public park.
{¶37} What exactly is a distraction? What is the legal test for a distraction?
And as there is no rule defining a distraction, who decides what constitutes a
distraction? Some people would say that a fan singing along to a live music
performance is distracting because they came to hear the performer sing, not a fan. Is
the fan’s singing at a concert a distraction that justifies removal from a public place?
Likewise, some people find children’s laughter distracting. Can police remove families
with laughing children from a public place during an event? How far does removing a
person from a public place for “being a distraction” reach?
{¶38} The majority articulates no test whatsoever for what constitutes a
distraction, which sets a dangerous precedent. The lack of a standard of conduct will
permit an officer who simply wants someone to behave differently—regardless of
whether that conduct violates any rule—to unilaterally label a person as a distraction
and arbitrarily revoke the person’s privilege to be in a public place.
B. Gordon arbitrarily removed Webb from the park
{¶39} Gordon’s revoking Webb’s privilege for being a “distraction” was an
arbitrary and improper exercise of authority.
{¶40} The majority opinion fails to explain at what point Webb’s conduct
justified Gordon’s removal of Webb’s privilege to remain in the public park. Was it
when Gordon first instructed Webb to leave? Likely not. At this point, Webb’s conduct
is nearly identical to the mother of his children’s conduct. Both were involved in their
argument and used profanity in front of their children. Revoking Webb’s privilege,
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OHIO FIRST DISTRICT COURT OF APPEALS
while permitting the mother of his children to remain in the park, cannot be
considered anything but arbitrary. But as we recognized in Staley, the privilege to
remain on property may not be withdrawn arbitrarily. Staley, 1st Dist. Hamilton Nos.
C-200270, C-200271 and C-200272, 2021-Ohio-3086, at ¶ 17. Likewise, we
recognized in Staley that an arbitrary revocation of privilege is an unreasonable
exercise of authority, and in these instances, a “ ‘revocation of the privilege to enter [or
remain on] the property is void and of no further effect.’ ” Id., quoting Andrews, 10th
Dist. Franklin No. 91AP-590, 1992 Ohio App. LEXIS 829, at 7.
{¶41} The majority appears to justify its holding that “[b]y his conduct, Webb
exceeded any privilege a member of the public had to be in the park” by stating that
Webb “escalated his words from name calling to invoking violence in front of two
police officers.” The majority opinion does not explain what precisely constitutes
“invoking violence.” This standard is concerningly nebulous, potentially
encompassing protected expression, which would not justify revoking a person’s
privilege to enter and remain on public property. Significantly, Webb did not directly
threaten the mother of his children. And while the majority opinion states, “Webb
picked up a bottle from the ground as he rounded the corner to face the mother of his
kids one more time,” which may align with the notion that Webb’s behavior was
turning violent, the majority fails to mention that the “bottle” was, in fact, a baby
bottle. Webb picked up his child’s baby bottle and placed it in a wagon.
{¶42} Next, as the majority opinion acknowledges, Gordon explained at trial
that he withdrew Webb’s privilege because he anticipated that Webb would be a
distraction during the Fourth of July event, not that he currently was a distraction.
Gordon testified that he told Webb to leave because he was not “going to calm down
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and not be a distraction at the event.” But there is no authority suggesting that a person
may be penalized for what a police officer believes will happen in the future.
{¶43} Finally, even if it were proper to revoke a person’s privilege to be in a
public place based on a nonexistent rule, I simply cannot fathom how Webb could have
been a “distraction” to other park patrons when Washington Park was nearly empty,
and the few people in the park appear unbothered by the couple’s argument.
{¶44} To the extent that Webb’s behavior would have distracted Gordon from
ensuring the “smooth operation of the event,” the officers were hired to handle these
types of issues during the event. In the context of disorderly-conduct charges, courts
have reasoned that, while “it might be reasonable to infer that an individual’s yelling
in an outdoor, public place may cause another inconvenience, annoyance, or alarm -
we conclude that this is not a reasonable inference when the individual is an officer
who must handle rowdy individuals on a daily basis.” State v. Smith, 150 Ohio App.3d
45, 2002-Ohio-5994, 779 N.E.2d 776, ¶ 15 (2d Dist.); see also State v. Miller, 67 Ohio
App.2d 127, 129, 426 N.E.2d 497 (3d Dist.1980) (complaint alleged that the defendant
caused the deputy sheriff inconvenience “by engaging in turbulent behavior,” but
appellate court determined that “the altercation created not an inconvenience, but a
job.”).
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{¶45} This was an argument between parents. While Webb’s behavior may
have been unpleasant, Webb’s conduct did justify Gordon’s revoking Webb’s privilege
to be in a public place and did not justify a criminal conviction.
Webb did not engage in disorderly conduct.
{¶46} While the majority explains that its analysis is confined “only to the
issues presented for review,” it nonetheless explores, in dicta, whether Webb’s conduct
“can only be described as” disorderly conduct under R.C. 2917.11(A)(2). To that end,
the majority references Cincinnati Park Board Rule 27 (“Rule 27”), which prohibits
disorderly conduct. But the record reflects that neither R.C. 2916.11(A)(2) nor Rule 27
formed Gordon’s basis for revoking Webb’s privilege.
A. Failure to abide by “general rules of conduct” cannot support a
criminal conviction
{¶47} The majority explains that its disorderly-conduct analysis serves to
merely emphasize Gordon’s “legitimate and reasonable basis” for withdrawing Webb’s
privilege and highlights “that there are general rules of conduct that inform when a
person exceeds their general privilege to be on public property.”
{¶48} Webb’s loss of privilege to be at Washington Park formed the basis for
his trespass conviction. Justifying a conviction based on “general rules of conduct” is
deeply troubling. It is true that our civil legal system permits factfinders to consider
“general rules of conduct,” along with other factors, to determine whether a party
exercised due care. Krischbaum v. Dillon, 58 Ohio St.3d 58, 567 N.E.2d 1291 (1991).
But it is foundational to our justice system that the United States Constitution
“requires that each element of a crime be proved to the [fact finder] beyond a
reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104, 133 S.Ct. 2151, 186
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L.Ed.2d 314 (2013). Permitting the state to revoke a person’s privilege to be in a public
place—and thus, imposing criminal liability on that person for trespass—based on
some vague “general rules of conduct” cannot be constitutionally valid. No one should
incur criminal liability or be deprived of their freedom based on failing to abide by
“general rules of conduct.”
B. Webb’s expression is protected by the First Amendment
{¶49} The majority states, “Even if the application of the criminal-trespass
statute to Webb was a constitutional violation, deciding such a constitutional question
is better served with the benefit of briefing and argument.” But the majority opinion
invokes the disorderly-conduct statute. And when a disorderly-conduct law targets the
content of a defendant’s expression, precedent dictates that a court “ ‘must apply a
First Amendment analysis to ensure that the defendant’s right to free speech is not
being infringed.’ ” City of Parma v. Kannenberg, 8th Dist. Cuyahoga No. 100370,
2014-Ohio-5681, ¶ 30, quoting Fairborn v. Grills, 2d Dist. Greene No. 92 CA 92, 1994
Ohio App. LEXIS 2467, 5 (June 8, 1994).
{¶50} R.C. 2917.11(A)(2) prohibits a person from “recklessly caus[ing]
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.”
{¶51} Had Webb been charged with disorderly conduct, the evidence would
have been insufficient to support a conviction.
{¶52} The First Amendment to the United States Constitution protects
freedom of speech. This protection, however, is not absolute. Brown v. Entertainment
Merchants Assn., 564 U.S. 786, 791, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). There are
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OHIO FIRST DISTRICT COURT OF APPEALS
a few “historic and traditional” categories of speech which may be regulated and
punished, including (1) incitement; (2) obscenity; (3) defamation; and (4) “fighting
words.” Id. As explained by this court, citing the Ohio Supreme Court, “a person may
not be found guilty of disorderly conduct under subsection (A)(2) unless the words
spoken are ‘fighting words.’ ” Staley, 1st Dist. Hamilton Nos. C-200270, C-200271 and
C-200272, 2021-Ohio-3086, at ¶ 26, citing State v. Hoffman, 57 Ohio St.2d 129, 133,
387 N.E.2d 239 (1979), paragraph one of the syllabus.
{¶53} “Fighting words” are those that “by their very utterance inflict injury or
are likely to provoke the average person to an immediate retaliatory breach of the
peace.” Cincinnati v. Karlan, 39 Ohio St.2d 107, 110, 314 N.E.2d 162 (1974). In other
words, the record must demonstrate that the speech either inflicted injury upon the
listener or that the words would likely provoke a person to immediately retaliate,
breaching the peace. Hoffman at 133.
{¶54} Profane and offensive language is protected First Amendment speech.
Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In this regard,
“[s]tandards of decorum have changed dramatically since 1942, moreover, and
indelicacy no longer places speech beyond the protection of the First Amendment.”
Greene v. Barber, 310 F.3d 889, 895 (6th Cir.2002). Thus, a person’s use of profanity
is insufficient to support a disorderly-conduct conviction. In re Fechuch, 5th Dist.
Tuscarawas No. 2005 AP 02 0012, 2005-Ohio-4342, ¶ 39 (appellant calling two
women “fucking bitches” and “flipping them off” was insufficient to support a
disorderly-conduct conviction because the women were not injured and did not
retaliate with a breach of the peace); State v. Gatto, 6th Dist. Ottawa No. OT-06-033,
2007-Ohio-4609, ¶ 2 (Defendant’s yelling at a driver to “Go fuck yourself” and “[t]ake
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OHIO FIRST DISTRICT COURT OF APPEALS
the fucking radio and stick it up your fucking ass” did not support a disorderly-conduct
conviction because the driver, while upset and surprised, was not incited to violence.).
{¶55} Webb’s language may have been rude. But “rude, abusive, offensive,
derisive, vulgar, insulting, crude, profane or opprobrious spoken words * * * may not
be made a crime unless they are ‘fighting words.’ ” Hoffman, 57 Ohio St.2d 129, 131,
387 N.E.2d 239. Webb’s speech did not constitute “grossly abusive language” or
“offensively coarse utterance[s].” See R.C. 2917.11(A)(2). The profanity used by
Webb—and by the mother of his children—is protected First Amendment speech. And
there is no evidence that Webb’s speech provoked, or was likely to provoke, an
immediate retaliatory breach of the peace.
{¶56} While Webb said to the mother of his children that he should have “beat
your ass,” this cannot reasonably be construed to constitute a threat of violence. Webb
did not threaten to “beat” the mother of his children; instead, he lamented that he
should have done so. While unpleasant, these words were not a threat. And the mother
of his children never reacted to his statement, even when he returned to her vicinity.
While “ ‘a person need not actually be provoked to a violent response’ for words to be
‘fighting words,’ the failure of the targeted party to respond might evidence that the
words were not ‘fighting words.’ ” State v. Gibson, 3d Dist. Union No. 14-23-01, 2023-
Ohio-2202, ¶ 15 (collecting cases), quoting State v. Blair, 2d Dist. Montgomery No.
24784, 2012-Ohio-1847, ¶ 9.
{¶57} Webb’s conduct could not support a disorderly-conduct conviction. And
it cannot be the basis for revoking Webb’s privilege to be in a nearly empty public park.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶58} I believe that Gordon’s revoking Webb’s privilege to remain in a public
park with his children was an arbitrary and unreasonable exercise of authority.
Permitting officers to remove people from public spaces based on an argument
between parents, profanity, and what the officer believed would happen in the future
goes far beyond our holding in Staley and creates a slippery slope where officers can
remove people from public places simply because they do not like what they are saying.
And justifying his conviction in any manner by saying that Webb violated “general
rules of conduct” runs contrary to very foundation of our justice system.
{¶59} I would therefore sustain Webb’s assignment of error and reverse his
conviction. I dissent.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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