State v. Wood
| Decision Date | 15 July 1996 |
| Docket Number | No. 95-P-0019,95-P-0019 |
| Citation | 679 N.E.2d 735,112 Ohio App.3d 621 |
| Parties | , 118 Ed. Law Rep. 750 The STATE of Ohio, Appellee, v. WOOD, Appellant. |
| Court | Ohio Court of Appeals |
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Mark J. Hanna, Assistant Prosecuting Attorney, for appellee.
Ralph C. Megargel, Walton Hills, for appellant.
Appellant, Robert E. Wood, appeals from a decision of the Portage County Municipal Court, finding him guilty of disorderly conduct, in violation of R.C. 2917.11.
The charge was based on appellant's actions on November 15, 1994, on the first floor of the Kent State University ("KSU") Library, wherein, in the presence of other people, he approached two KSU police officers. Appellant was an alumnus of KSU, but was not a student or faculty member at the time of this incident.
According to the facts presented by the prosecutor at the plea hearing, appellant "approached the officers, provided officers the gesture of the middle finger, told the officers 'fuck you' and continued loud abusive language for several minutes and the language continued upon several requests to desease [sic ]."
Appellant was served with a criminal complaint accusing him of disorderly conduct, in violation of R.C. 2917.11, as well as with an administrative KSU persona non grata status warning notice. The criminal complaint stated that appellant
The KSU persona non grata status warning notice stated that a determination meeting was to be held and stated the following:
On December 15, 1994, the persona non grata proceeding was held. On December 19, 1994, the hearing officer found that appellant violated KSU's Code of Conduct and was a persona non grata. He was banned from utilizing certain KSU facilities for one year.
On January 23, 1995, appellant filed a motion to dismiss the criminal complaint arguing, inter alia, that the continued prosecution of him by the state was a violation of his constitutional rights against double jeopardy. He claimed that his KSU proceeding barred further prosecution regarding the same incident.
On February 6, 1995, a hearing was held by the court on appellant's motion to dismiss, which was overruled. At that time, appellant's plea hearing was held and he pled "no contest" to the aforementioned facts. The court then listened to the prosecution's recitation of the facts and circumstances leading to the charge and found appellant guilty. Appellant was fined court costs only and the sentence was stayed pending this appeal.
Appellant filed his notice of appeal on March 7, 1995; however, this court remanded the cause to the trial court on June 22, 1995, because the judgment entry journalizing the court's decision was not properly time-stamped. The entry was properly journalized on June 23. On July 27, this court determined that proper journalization had been established and that the previously filed notice of appeal would be considered a premature notice pursuant to App.R. 4(C). The appeal is now properly before this court and appellant asserts the following as error:
In his first assignment, appellant asserts that the evidence presented was insufficient to sustain a conviction for disorderly conduct. Specifically, he claims that the facts as read into the record were insufficient to support such a conviction and that the complaint did not contain all of the necessary allegations to sustain such a conviction.
Appellant was charged with violating R.C. 2917.11(A)(2), which states:
In essence, appellant is asking this court to review the evidence against him and find that the evidence was insufficient to support his conviction. Appellant's assignment is without merit.
Pursuant to Crim.R. 11(B)(2), "[t]he plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the * * * complaint * * *." See, also, State v. Waddell (1995), 71 Ohio St.3d 630, 646 N.E.2d 821.
R.C. 2937.07 provides:
"If the plea be 'no contest' or words of similar import in pleading to a misdemeanor, it shall constitute a stipulation that the judge * * * may make finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly. * * * " See, also, Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, 9 OBR 438, 459 N.E.2d 532.
That code section has not been overruled by Crim.R. 11, as it confers a substantive right to be discharged if the statement of facts fails to establish all of the elements of the offense. Id.
By pleading no contest, appellant admitted the truth of the matters alleged in the complaint and, other than presenting some evidence as to each element, the prosecutor was relieved of the burden of presenting evidence sufficient to prove these elements beyond a reasonable doubt. State v. Stow Veterans Assn. (1987), 35 Ohio App.3d 45, 519 N.E.2d 660, and R.C. 2937.07. The court had no duty to take additional testimony regarding this matter and could properly make a determination of guilt from the explanation of the circumstances by the prosecutor, after determining that appellant was making the plea voluntarily, knowing the full effect thereof. Crim.R. 11(C)(2); Cleveland v. Makris (1993), 90 Ohio App.3d 742, 746, 630 N.E.2d 739, 741, and Waddell.
However, in a no contest situation, a conviction is improper if the statements of factual matter presented to the court in support of the complaint fail to address all of the essential elements of the offense:
(Emphasis added.) State v. Freeman (Nov. 22, 1995), Cuyahoga App. No. 68320, unreported, at 7-8, 1995 WL 693110.
Therefore, upon appeal, this court must determine whether the facts as recited by the prosecution were sufficient to support a fourth-degree conviction for disorderly conduct. See, e.g., Columbus v. Gullett (July 12, 1990), Franklin App. No. 90AP-2, unreported, 1990 WL 98391; Bowers; Waddell. We find that they were.
The Supreme Court of Ohio dealt with the constitutionality of R.C. 2917.11 in State v. Hoffman (1979), 57 Ohio St.2d 129, 11 O.O.3d 298, 387 N.E.2d 239, holding that the statute was not unconstitutionally vague or overbroad, even though it lacked a written prohibition of its application to protected speech, because it could be narrowly interpreted to limit its application to unprotected speech. The Hoffman court also determined that profane language is not protected where it is likely, by its very utterance, "to inflict injury or provoke the average person to an immediate retaliatory breach of the peace." Id. at paragraph one of the syllabus.
More specifically, it prohibited punishment under R.C. 2917.11(A)(2) unless the words spoken were "fighting words." The Hoffman court thus preserved the constitutionality of R.C. 2917.11 by requiring that the prosecution prove the element that the speech was not protected. See State v. Wylie (1984), 19 Ohio App.3d 180, 19 OBR 287, 482 N.E.2d 1301, and State v. Miller (1996), 110 Ohio App.3d 159, 673 N.E.2d 934.
The state argues that Hoffman merely interpreted R.C. 2917.11 and did not add another element to be met before a proper conviction could be had. However, a review of cases in which a defendant was charged under R.C. 2917.11 reveals that each case discussed the element of "fighting words" and determined whether that element was met prior to entering a judgment. This court has adopted that position.
"Where the language is not threatening, does not constitute 'fighting words' and is not likely by its very utterance to inflict injury or provoke the average person to immediate retaliatory breach of peace, disorderly conduct has not been proven." Lake Co. Metro Park Dist. v. LaMacchia (Sept. 30, 1992), Lake App. No. 91-L-110, unreported, at 9, 1992 WL 267355. See, also, Warren v. Patrone (1991), 75 Ohio App.3d 595, 600 N.E.2d 344.
Therefore, it seems clear to this court that this has become a de facto element of R.C. 2917.11 which must be considered. State v. Ross (1967), 12 Ohio St.2d 37, 41 O.O.2d 220, 231 N.E.2d 299.
Accordingly, the state needed to produce facts sufficient to allow the court to determine whether appellant's words and gestures were "fighting words." Were the facts submitted to the court as to this element sufficient to...
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