City of Dayton v. Rogers

• Decision Date: 26 December 1979
• Docket Number: No. 78-1378,78-1378
• Citation: 14 O.O.3d 403,60 Ohio St.2d 162,398 N.E.2d 781
• Parties: , 14 O.O.3d 403 CITY OF DAYTON, Appellee, v. ROGERS, Appellant.
• Court: Ohio Supreme Court

Page 162

60 Ohio St.2d 162

398 N.E.2d 781, 14 O.O.3d 403

CITY OF DAYTON, Appellee, v. ROGERS, Appellant.

No. 78-1378.

Supreme Court of Ohio.

Dec. 26, 1979.

Syllabus by the Court

The making of an unsworn false oral statement to a police officer is not punishable conduct within the meaning of Revised Code of General Ordinances of the city of Dayton, Section 131.02(A). (R.C. 2921.31(A), construed.)

This cause involves the appeal from a judgment of the Court of Appeals which affirmed the conviction of Nabagereka Rogers, the defendant-appellant herein, who had been charged with obstructing official business.

The facts in brief giving rise to the charge herein are that one William Fowler was stopped for a traffic violation by a Dayton police officer on November 30, 1977, and at such time he told the officer that he was not carrying his operator's license, and falsely stated that he was John D. Fowler. Nabagereka Rogers, a passenger in the automobile driven by Fowler, was asked to confirm her companion's identity. It appears that she lied to the officer, stating that the driver's name was, in fact, John D. Fowler.

Appellant Rogers was subsequently charged with obstructing official business, a violation of Section 131.02(A) of the Revised Code of General Ordinances of the city of Dayton (R.C.G.O.). Following a trial in the Dayton Municipal Court, she was found guilty. Her conviction was affirmed by the Court of Appeals.

That court, finding its judgment to be in conflict with the determination of the Court of Appeals for Franklin County in Columbus v. Owens (August 15, 1978), No. 78AP-186, unreported, certified the record of the case to this court for review and final determination.

Thomas G. Petkewitz, City Atty., J. Anthony Sawyer and James D. Dennis, Dayton, for appellee.

Terry E. Timblin, Dayton, for appellant.

HOLMES, Justice.

As a preliminary matter, this court must determine whether appellant has properly preserved for review the purported error of the trial court in this cause. The difficulty arises from the wording of appellant's assignment of error in the Court of Appeals:

"The trial court erred in overruling defendant-appellant's motion for a judgment of acquittal as the making of an unsworn false oral statement to a police officer is not conduct punishable by R.C.G.O. Section 131.02(A)."

At the conclusion of the prosecution's case-in-chief, defendant moved for a judgment of acquittal, pursuant to Crim.R. 29. When the motion was overruled, defendant elected to present a defense. The motion was not thereafter renewed.

Appellee relies upon State v. Cantu (1971), 27 Ohio App.2d 55, 272 N.E.2d 154, and State v. Young (1966), 7 Ohio App.2d 194, 220 N.E.2d 146, for the proposition that the defendant waived any error committed in the overruling of the motion for judgment of acquittal by failing to renew her motion at the close of all the evidence. While this would be true had the case been tried to a jury, it has no application in a case tried to the court.

The purpose of a motion for judgment of acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, however, the defendant's plea of not guilty serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the close of all the evidence. See the following cases decided under the analogous Fed.R.Crim.P. 29: Hall v. United States (C.A. 5, 1961), 286 F.2d 676, 677, certiorari denied, 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236; United States v. Besase (C.A. 6, 1967), 373 F.2d 120, 121; United States v. Pitts (C.A. 5, 1970), 428 F.2d 534, 535, certiorari denied, 400 U.S. 910, 91 S.Ct. 154, 27 L.Ed.2d 149. See also, 8A Moore's Federal Practice, Paragraphs 29.01 Et seq.

We hold, therefore, that the issue of statutory construction is properly before this court.

The Dayton ordinance in question is identical to R.C. 2921.31(A), and provides as follows:

"(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within his official capacity, shall do any act which hampers or impedes a public official in the performance of his lawful duties."

Appellant contends that, despite the apparent breadth of the proscription contained in the ordinance, it was not intended to reach unsworn oral misrepresentations to police officers. We agree.

R.C. 2921.31(A), as well as the ordinance under consideration, prohibits "acts" which hamper or impede public officials in the performance of their lawful duties. While in certain contexts the term "act" may be construed to include a statement, we do not believe that was the intent of the General Assembly in R.C. 2921.31(A). We conclude similarly in relation to the ordinance that it was not the intention of the legislative body of the city in enacting this section that it encompass oral statements.

Prior to the enactment of the present Criminal Code (134 Ohio Laws 1866 Et seq. ), false oral statements were not punishable in Ohio unless they were made under oath, or were made in connection with certain...