State v. Charles R. Roberts, 99-LW-0940
| Decision Date | 11 March 1999 |
| Docket Number | 99-LW-0940,98CA21 |
| Parties | State of Ohio, Plaintiff-Appellee v. Charles R. Roberts, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
Timothy F. Cogan, Cassidy, Myers, Cogan, Voegelin & Tennant, L.C Wheeling, West Virginia, for Appellant.
David M. Moore, Marietta Assistant City Law Director, Marietta Ohio, for Appellee.
DECISION
The Marietta Municipal Court convicted appellant Charles Roberts of disorderly conduct for spitting in another man's face during a labor dispute. Appellant admits spitting at his victim, but nevertheless appeals the conviction and $100 fine. He assigns six errors for our review:
1.
"The Municipal Court erred in failing to grant a mistrial."
2.
"The municipal Court erred in permitting the prosecution of a defendant who was the victim of selective prosecution."
3.
"The Municipal Court erred in refusing to permit the defendant to inquire into whether the alleged victim spit on women on two occasions in the labor dispute."
4.
"The Municipal Court erred in admitting hearsay upon hearsay under the guise that it was offered not for the truth of the matter asserted."
5.
"The verdict of guilty was against the substantial evidence in the case."
6. "The Municipal Court committed cumulative error."
Finding none of the assignments meritorious, we affirm the appellant's conviction.
In September 1997, Magnetic Specialties, Inc. ("MSI") was embroiled in a longstanding labor dispute with unionized workers. Appellant, a labor union member, was one of several striking MSI workers who participated in a picket line at MSI. Bruce Cassady was an MSI employee who did not participate in the strike.
After finishing a shift on September 3, 1997, Cassady and other workers left MSI's building and encountered the union's picket line. Through a fence, workers and strikers participated in a heated verbal exchange which featured abusive language from both sides. Appellant shouted at Cassady that he was going to kill Cassady's girlfriend to "show [Cassady] what kind of man [appellant] was." Cassady did not consider these to be serious threats, but contributed his own offensive comments to the verbal war. Cassady shouted derogatory sexual remarks aimed at Diane Wells, appellant's fiancee. After Cassady's offensive remarks, appellant walked up to the fence, a few feet from Cassady, and spit in his face. A MSI security videotape of the confrontation between strikers and non-strikers shows appellant spitting at Cassady.
A security guard who witnessed the incident called the Marietta police. officer J.C. Woods arrived at the scene and spoke with MSI security officer Michael Statkiewicz. Statkiewicz, who heard from a third party that appellant spit at Cassady, told Officer Woods what had happened. Officer Woods viewed the MSI security videotape and copied a segment showing appellant spitting at Cassady. Officer Woods did not obtain the entire videotape. officer Woods also took a statement from MSI security officer Jason Reed, who witnessed appellant spitting at Cassady. Officer Woods issued a citation to appellant for disorderly conduct, in violation of Section 509.03 of the Marietta Code which states:
The municipal court convicted appellant of disorderly conduct and fined him $100. Appellant commenced this appeal.
The fifth assignment of error asks this court to reverse
appellant's conviction on the basis that it is "against the
substantial evidence." Appellant fails to clarify whether he believes the evidence is insufficient to sustain a conviction or whether he believes the verdict to be against the manifest weight of the evidence. The difference between these theories is substantial and not merely semantical. "Sufficiency" tests the legal adequacy of evidence produced at trial and whether, as a matter of law, the evidence could support a conviction if it is submitted to the finder of fact. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. On the other hand, "weight" concerns the "inclination of the greater amount of credible evidence" and tests whether the rational persuasiveness of evidence is enough to sustain the prosecution's burden of proof. Id. at 387 (emphasis sic.) Although a verdict is supported by sufficient evidence, a court of appeals may nevertheless conclude that the verdict is against the manifest weight of the evidence. State v. Banks (1992), 78 Ohio App.3d 206, 214. A sufficiency of the evidence challenge tests whether the state's case is legally adequate to go to a jury in that it contains prima facie evidence of all of the elements of the charged offense. State v. Martin (1983), 20 Ohio App.3d 172, 175; Carter v. Estell (C.A.5, 1982), 691 F.2d 777, 778. A weight of the evidence argument merely tests the rational adequacy, i.e., persuasiveness of the evidence. The two tests are distinct, notwithstanding dicta to the contrary in State v. Jenks (1991), 61 Ohio St.3d 259, 273. See Thompkins, 78 Ohio St.3d at 390 (Cook, LT., concurring). Appellant's brief cites authority supporting both a sufficiency of the evidence challenge and a manifest weight of the evidence challenge. In the absence of meaningful guidance by the appellant, we address both arguments and find them equally meritless.
In a review for sufficiency of the evidence, an appellate court must construe the evidence in a light most favorable to the prosecution. State v. Hill (1996), 75 Ohio St.3d 195, 205; State v. Grant (1993), 67 Ohio St.3d 465, 477; State v. Rojas (1992), 64 Ohio St.3d 131, 139. Evidence is "sufficient" to support a conviction if a reasonable trier of fact considering the evidence could have found all essential elements of the crime beyond a reasonable doubt. State v. Allen (1995), 73 Ohio St.3d 626, 630; State v. Loza (1994), 71 Ohio St.3d 61, 68-69; State v. Richey (1992), 64 Ohio St.3d 353, 364.
In this case, sufficient evidence exists to support appellant's conviction. In addition to having the incident captured on videotape, appellant himself admitted spitting on Cassady. The prosecution presented testimony from Cassady establishing that appellant's act was "kind of sick" and that appellant's spit was all over Cassady's face and glasses. This testimony establishes that appellant's action was offensive and caused Cassady annoyance and alarm within the meaning of the disorderly conduct ordinance. Finally, the record shows sufficient evidence to show that appellant's conduct had "no lawful purpose." Appellant admitted during cross-examination that he spit on Cassady in order to "release my anger so I would not cross the fence and do anything that I shouldn't had [sic] doing." This evidence, whether construed favorably for the state or not, sufficiently establishes that appellant had no lawful purpose. Notwithstanding the fact that the victim in this case acted like a "jerk," we cannot characterize spitting at another person as a privileged means of releasing one's anger.
We next analyze whether appellant's conviction is against the manifest weight of the evidence. In making this determination, we must "review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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 granted." State v. Stepp (1997), 117 Ohio App.3d 561, 567; State v. Miller (1995), 105 Ohio App.3d 679, 688. Our review, however, "is tempered by the principle that questions of weight and credibility are primarily for the trier of fact." State v. Garrow (1995), 103 Ohio App.3d 368, 371. A conviction will stand if there exists substantial evidence upon which a rational trier of fact could conclude that the prosecution has proven all elements of an offense beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of syllabus.
Appellant does not deny that he spit in Cassady's face. Instead, he makes three principal arguments in disputing the trial court's verdict. First, the appellant argues that Cassady provoking him into spitting creates a legal defense. Second, the appellant disputes the trial court's finding that his spitting on Cassady served no lawful purpose. Third, the appellant attacks the credibility of the evidence used to establish that his action was physically offensive and caused inconvenience, annoyance, or alarm. we reject the appellant's arguments and find substantial evidence supporting the verdict.
In his first argument, appellant highlights the insults Cassady hurled toward Ms. Wells, arguing that their vile nature justified the spitting. Appellant argues that the insults yelled by Cassady were "fighting words" in the sense that they were likely to provoke the average person to an immediate breach of the peace. See Cincinnati v. Karlan (1974), 39 Ohio St.2d 107, paragraph two of syllabus; see, also, State v. Miller (1996), 110 Ohio App.3d 159, 163 (). Thus, because Cassady's words could have been punished as disorderly conduct in and of themselves, appellant contends it was proper for him to spit in Cassady's face as a response.
We recognize that Cassady provoked the incident and, arguably he got what he deserved. However, appellant's...
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