[Cite as State v. Morris,
2012-Ohio-3287.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24810
vs. : T.C. CASE NO. 11CRB7970
DARIN E. MORRIS : (Criminal Appeal from
Municipal Court)
Defendant-Appellant :
.........
OPINION
Rendered on the 20th day of July, 2012.
.........
John Danish, City Attorney; Stephanie Cook, Chief Prosecutor; Matthew Kortjohn,
Asst. Prosecutor, Atty. Reg. No. 0083743, 335 W. Third Street, Dayton, OH 45402
Attorneys for Plaintiff-Appellee
Christopher A. Deal, Atty. Reg. No. 0078510, 131 N. Ludlow Street, Suite 630, Dayton,
OH 45402
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant Darin E. Morris appeals from his conviction and sentence for
disorderly conduct in violation of R.C. 2917.11(A)(2).
{¶ 2} At approximately 12:30 a.m. on July 31, 2011, Dayton Police Officers Kari
Staples and Matthew Heiser were dispatched to 2250 Benson Drive, which is a residence
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situated across the street from Good Samaritan Hospital. The officers were dispatched to that
location based on a report of a suspicious person. When the officers arrived, they found
Defendant lying unconscious in the front yard. Officer Heiser tried to wake Defendant by
violently shaking him but was unsuccessful. Officer Staples then used smelling salts to wake
Defendant.
{¶ 3} As Defendant became conscious, he began screaming obscenities at both
officers. Once Defendant got to his feet, he screamed “F*** you, bitch” to Officer Staples as
he stood within six inches of her face. Officer Staples felt threatened by and was annoyed by
Defendant’s actions. Defendant’s yelling of obscenities at the officers drew the attention of
two people smoking cigarettes outside Good Samaritan Hospital.
{¶ 4} After approximately four to five minutes of yelling profanities, and being
warned to stop, Defendant was arrested by the officers. He was charged with disorderly
conduct in violation of R.C. 2917.11(A)(2). A bench trial was held on August 30, 2011.
After the State rested its case, Defendant moved for a judgment of acquittal pursuant to
Crim.R. 29, which the trial court denied. Defendant was convicted of disorderly conduct and
sentenced to thirty days in jail and ordered to pay a $200 fine. The thirty days in jail and
$150 of the $200 fine were suspended.
{¶ 5} Defendant filed a timely notice of appeal, raising three assignments of error.
{¶ 6} First Assignment of Error:
{¶ 7} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S RULE 29
MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE’S CASE.”
{¶ 8} Second Assignment of Error:
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{¶ 9} “THE DECISION OF THE TRIAL COURT, FINDING APPELLANT
GUILTY OF DISORDERLY CONDUCT, WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
{¶ 10} In his first two assignments of error, Defendant argues that the trial court erred
in convicting him of disorderly conduct because his conviction is against the manifest weight
of the evidence and is not supported by the sufficiency of the evidence. We do not agree.
{¶ 11} When reviewing the denial of a Crim.R. 29 motion, an appellate court applies
the same standard as is used to review a sufficiency of the evidence claim. State v. Thaler, 2d
Dist. Montgomery No. 22578, 2008-Ohio-5525, ¶ 14. A sufficiency of the evidence
argument challenges whether the State has presented adequate evidence on each element of
the offense to allow the case to go to the jury or to sustain the verdict as a matter of law.
State v. Thompkins,
78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). The proper test to apply
to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks,
61
Ohio St.3d 259,
574 N.E.2d 492 (1991):
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted
at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. The 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.
{¶ 12} When reviewing a judgment under a manifest weight standard of review:
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[t]he 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 [factfinder] clearly lost its
way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which evidence
weighs heavily against the conviction.
Thompkins, at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st
Dist.1983).
{¶ 13} Defendant was convicted of disorderly conduct in violation of R.C.
2917.11(A)(2), which provides:
(A) No person shall recklessly cause inconvenience, annoyance, or
alarm to another by doing any of the following:
(2) Making unreasonable noise or an offensively coarse utterance,
gesture, or display or communicating unwarranted and grossly abusive
language to any person[.]
{¶ 14} Officer Staples testified that Defendant screamed a number of vulgarities at her
and Officer Heiser during the four to five minutes before the officers arrested Defendant.
Officer Staples also testified that she felt threatened and annoyed when Defendant screamed
“F*** you, bitch” within six inches of her face. Further, Defendant’s loud outburst drew the
attention of two bystanders who were across the street.
{¶ 15} Defendant argues that his conviction cannot stand because his words did not
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constitute “fighting words.” We addressed a similar argument in State v. Semler, 90 Ohio
App.3d 369, 371-372,
629 N.E.2d 481 (2d. Dist.1993), where we wrote:
If [Defendant’s] conviction was based on the content of his speech, it
could not stand. No matter how rude, abusive, offensive, or vulgar words may
be to another person, one who uses them may not be convicted of a criminal
offense for his utterance unless they are “fighting words,” that is, words which
by their very utterance are likely to inflict injury or to provoke the average
person to an immediate, retaliatory breach of the peace. State v. Hoffman, [57
Ohio St.2d 129,
378 N.E.2d 239 (1979)]. [Defendant’s] use of an old English
four-letter functional verb in the imperative mood, obnoxious as it was, is not
of that character. Perhaps it was once, but it has changed with the times. As
a wag has observed, in today’s world Hester Prynne would get, at most, a C+.
It was [Defendant’s] actions, not the content of his speech, that
produced his conviction. The trial court found that his loud and angry words,
shouted in a residential neighborhood where houses are in close proximity, at
2:00 a.m., violated the ordinance. We agree. The noise and commotion he
created were likely to cause annoyance or alarm to persons of ordinary
sensibilities who lived nearby and heard them. The same would be true had he
shouted the words of “Mary Had a Little Lamb,” though his condition and the
surrounding circumstances probably inclined him to use more colorful and
forceful terms.
{¶ 16} While we agree with the general proposition that simply directing an obscenity
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toward a police officer does not always mandate an arrest and conviction for disorderly
conduct, Defendant did more than simply curse at an officer. Rather, Defendant screamed
vulgarities at two officers over a period of four to five minutes and was within six inches of
Officer Staples when he screamed “F*** you, bitch.” Officer Staples found this conduct
annoying and threatening. Further, Defendant’s outburst was loud enough to draw the
attention of two individuals who were across the street from Defendant and the officers.
Defendant’s loud outburst occurred at approximately 12:30 a.m., in front of a residence at
which Defendant had been found lying in the front yard, unconscious. No connection
between the residence and Defendant was shown or claimed.
{¶ 17} Defendant’s conduct, as established through the testimony of Officer Staples, is
sufficient to establish the necessary elements of a violation of R.C. 2917.11(A)(2). Further,
based on the record before us, we cannot find that Defendant’s conviction is against the
manifest weight of the evidence.
{¶ 18} The first and second assignments of error are overruled.
{¶ 19} Third Assignment of Error:
{¶ 20} “THE TRIAL COURT ERRED WHEN IT FAILED TO AFFORD THE
APPELLANT THE OPPORTUNITY TO SPEAK PRIOR TO SENTENCING, PURSUANT
TO RULE 31(A)(1) OF THE OHIO RULES OF CRIMINAL PROCEDURE.”
{¶ 21} “The plain language of Crim.R. 32(A)(1) imposes a mandatory duty upon the
trial court to unambiguously address the defendant and provide him or her with the
opportunity to speak before sentencing.” State v. Collier, 2d Dist. Clark Nos. 2006 CA 102,
2006 CA 104, 2007-Ohio-6349, ¶92 (Citation omitted.) The defendant’s right to allocution
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applies equally to both felony and misdemeanor convictions. Id. (Citation omitted.)
{¶ 22} The transcript from the trial establishes, and the State concedes, that the trial
court failed to ask Defendant if he wished to exercise his right to allocution prior to
sentencing. “In a case in which the trial court has imposed sentence without first asking the
defendant whether he or she wishes to exercise the right of allocution created by Crim.R.
32(A), resentencing is required unless the error is invited error or harmless error.” State v.
Campbell, 90 Ohio St.3d 320,
738 N.E.2d 1178 (2000). The error is harmless if the
defendant had made an unsworn statement to the jury, sent a letter to the judge, and defense
counsel had made a statement to the judge on the defendant’s behalf. State v. Reynolds,
80
Ohio St.3d 670, 687,
687 N.E.2d 1358 (1998). Moreover, the doctrine of waiver is
inapplicable to this type of error if the trial court does not ask the defendant if he wishes to
allocute. Campbell, at 324-325.
{¶ 23} Based on a review of the record before us, we cannot find that the trial court’s
error was invited or harmless. Furthermore, the State concedes error. Therefore, the third
assignment of error is sustained and the cause will be remanded for resentencing to give
Defendant an opportunity to exercise his right of allocution.
{¶ 24} Having sustained the third assignment of error, we will reverse the sentence the
court imposed and remand for resentencing. Defendant’s conviction for disorderly conduct
will be affirmed.
FROELICH, J., And HALL, J., concur.
Copies mailed to:
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Matthew Kortjohn, Esq.
Christopher A. Deal, Esq.
Hon. Carl Sims Henderson
