State v. Perry

• Decision Date: 19 January 1972
• Citation: 278 N.E.2d 50,58 O.O.2d 25,29 Ohio App.2d 33
• Parties: , 58 O.O.2d 25 The STATE of Ohio, Appellee, v. Sherman P. PERRY, Appellant.
• Court: Ohio Court of Appeals

Page 33

29 Ohio App.2d 33

278 N.E.2d 50, 58 O.O.2d 25

The STATE of Ohio, Appellee, v. Sherman P. PERRY, Appellant.

Court of Appeals of Ohio, Fourth District, Athens County.

Jan. 19, 1972.

Syllabus by the Court

1. In order to successfully challenge the constitutionality of R.C. § 2923.43 or any other statute, the assailant must negative every reasonable, conceivable basis which might support the statute attacked, and point out the particular provision that has been violated and the ground on which it has been violated. Its invalidity must be made to appear clearly, plainly, fully, unequivocally, convincingly and by highly persuasive, irrefragable evidence.

2. Mere partial non-direction, if such be the case, as to a particular matter or issue, does not of itself constitute reversible error, in the absence of a request for more specific and comprehensive instructions upon the particular point or issue involved.

3. The preserve his question for review, a defendant must request an instruction that is strictly accurate and in the exact language which he believes states the exact proposition he wishes to have the court present to the jury.

4. In cases wherein the Court of Appeals is of the opinion that the sentence imposed by a trial court represented a mistaken use of discretion, the Court of Appeals by virtue of Section 3(B)(1)(f), Article IV of the Ohio Constitution has original jurisdiction to make a complete determination of the cause and includes the authority to modify the sentence imposed by the trial court.

William J. Abraham, Columbus, and John F. Newcomb, Athens, for appellant.

Gerald A. Mollica and John P. Stimmel, Athens, for appellee.

GRAY, Judge.

This cause is in this court on appeal from a judgment of the trial court upon a verdict by a jury finding defendant guilty of failing to obey the lawful orders of a policeman engaged in the performance of his duty at the scene of an emergency contrary to R.C. § 2923.43.

The defendant filed his notice of appeal and assigned the following errors:

'Assignment Of Error I. The court erred in overruling the defendant-appellant's motion for change of venue or in the alternative to postpone the trial until public opinion and publicity from the news media had subsided.

'Assignment Of Error II. The court erred in overruling the appellant's motion for a directed verdict at the conclusion of the state's evidence on the grounds that the state failed to establish a case which would present a question for the jury.

'Assignment Of Error III. The verdict is against the manifest weight of the evidence.

'Assignment Of Error IV. Ohio Revised Code, Section 2923.43 is invalid in that it violates Article I of the Ohio Constitution and the due process clause of the Fourteenth Amendment to the United States Constitution.

'Assignment Of Error V. The court committed prejudicial error in failing and refusing to fully instruct the jury on the essential elements of the offense.'

The prosecution proved by credible and probative evidence of the weight and sufficiency required to convict defendant of the offense with which he was charged. The facts are as follows: Some time between midnight and 2 a. m. on the morning of May 15, 1970 a crowd of persons numbering 50 to 75 gathered on University Terrace near Memorial Auditorium of Ohio University in the city of Athens. Nearby, the Delta Tau Delta Fraternity had lately erected a new fraternity house costing about $500,000. Members of this organization were present to protect it from damage.

At that time and nearby defendant was observed with a piece of a brick in his hand. An unidentified person yelled: 'Drop that brick!' The police heard the cry, flashed their lights on defendant and cried: 'You stop!' to defendant.

Defendant dropped the brick he was carrying in his hand and started to run. He was held for a few seconds by a member of the Delta Tau Delta fraternity until the police arrived. Defendant resisted the arrest but was finally subdued.

On the way to the police station, he complained that there was something in his clothing that was hurting him. He was then searched and it was found that he had a half a brick in his coat pocket. A further search of his clothing revealed that he was carrying rocks of various sizes along with pieces of limestone and bricks.

All during the time that it took the police to subdue defendant, the police were being struck by rocks, bottles and other objects thrown by members of the assembled crowd.

Defendant claims that he did not hear the command to halt, neither did a flashlight paly upon him. The police testified that lights did play upon him, that they were close enough for him to hear the command, and that upon the first command to halt defendant ran and threw the brick that he was carrying into a hedge. He was commanded to halt two other times but failed to obey the commands.

Defendant admits that he recognized the police by their uniforms but that they had no authority to arrest him as they were Ohio University Campus Police. Yet, he states he was not near enough to hear their commands to stop. A most anomalous situation.

Defendant took the stand in his own defense. He testified that 'voices' at his dormitory on the West Green in the early morning hours of May 15, 1970 awakened him. He then arose, dressed, and made his way to University Terrace by way of the footbridge over the Hocking River. He smelled tear or pepper gas as he approached the scene of the action. This did not deter him. He proceeded. He denied he threw any rocks at the scene of the melee. However, this was refuted by a policeman who was called on rebuttal.

Defendant admitted he was present that morning for the purpose of 'dissenting' and that he probably had intentions of using the bricks and rocks that were found on his person.

We are of the view that the first assignment of error is without merit. Defendant claims that there should have been a change of venue because the members of the venire were prejudiced against him.

Twenty five prospective jurors were called and a jury of twelve was selected after defendant exercised four peremptory challenges. The prosecution exercised one and several were excused for cause. This certainly does not exhibit deep feeling on the part of members of the venire nor on the part of the populace of Athens. Neither does it show any effect of newspaper publicity. We would view it as about a normal situation in the selection of such a jury.

Defendant in his brief states:

'As the questioning continued, the adverse influence of pre-trial publicity remained apparent, but the answers to questions were such that it was not possible to raise a clear challenge for cause.'

This statement of defendant provides the answer to the first assignment of error.

These same questions were presented in State v. Laskey, 13 Ohio App.2d 91, 234 N.E.2d 318 and were answered adversely to the claims of defendant. It was affirmed in 21 Ohio St.2d 187, 257 N.E.2d 65.

We have recited the facts in some detail and, in view of them, we are of the opinion that assignments of error II and III are not well taken.

Defendant claims in the court below and in this court that there was no emergency. The jury found that there was one and we are not disposed to disturb that finding. Under the circumstances, the jury was justified in finding that such a condition existed. Webster's Third New International Dictionary (unabr. 1961) defines an emergency as: 'An unforeseen combination of circumstances * * * that calls for immediate action.'

The campus security police were authorized to act and make arrests in this situation.

Defendant attacks the constitutionality of R.C. § 2923.43. In order to successfully assail this section on this basis he must do two things. (1) He must overcome the presumption of constitutionality and (2) he must assume the heavy burden of proof attendant to the assumption of that position. We discuss briefly the above propositions.

It is a fundamental rule that there is a presumption in favor of the constitutionality of a legislative enactment. The general principle has been stated in a variety of ways. Some statements are: that every intendment is in favor of the validity of a statute. First National Bank of Bay City v. Fellows, 244 U.S. 416, 37 S.Ct. 734, 61 L.Ed. 1233. Courts will indulge in every presumption of constitutionality of which the statute is susceptible and every rational and reasonable presumption must be indulged in favor of the validity of the act. Cf. Home Tel. & Tel. Co. v. Los Angeles, 211 U.S. 265, 29 S.Ct. 50, 53 L.Ed. 176. The most important basis supporting this fundamental principle is the doctrine which forbids one branch of the state government to encroach on the duties and powers of another. Sinking-Fund cases, 99 U.S. 700, 25 L.Ed. 496, 504.

We will now address ourselves to the burden defendant must assume to successfully challenge the constitutionality of R.C. § 2923.43. The burden is a heavy one and it is well settled that to sustain it the assailant must negative every reasonable, conceivable basis which might support the statute attacked: and must be able to point out the particular provision that has been violated and the ground on which it has been infringed. Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527. Its invalidity must be made to appear clearly, plainly, fully, unequivocally, convincingly and by highly persuasive, irrefragable evidence. It has been said by various courts that the validity of a law ought not to be questioned unless it is so obviously repugnant to the constitution that when pointed out by the judges, all men of sense and reflection may perceive the repugnancy.

The Supreme Court, in Monroeville v. Ward, 27 Ohio St.2d 179, 182, 271 N.E.2d 757, 759, speaking through Chief Justice O'Neill, said:

'Keeping this in mind, we must examine those statutes and the Constitution to see if they may be...