[Cite as State v. Blair, 2012-Ohio-1847.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO.     24784

v.                                                      :            T.C. NO.     11 CRB 773

JEREMY L. BLAIR                                         :            (Criminal appeal from
                                                                      Municipal Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                          Rendered on the        27th       day of        April     , 2012.

                                            ..........

ROBERT B. COUGHLIN, Atty. Reg. No. 0003449, 6111 Taylorsville Road, Huber Heights,
Ohio 45424
      Attorney for Plaintiff-Appellee

KATHRYN L. BOWLING, Atty. Reg. No. 0084442, 111 W. First Street, Suite 518, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} Following a bench trial, Jeremy Blair was found guilty of disorderly
                                                                                                                                    2

conduct, in violation of R.C. 2917.11(A)(2), and of resisting arrest, in violation of R.C.

2921.33(A). On the charge of disorderly conduct, he was fined $150, with $100 suspended.

On the charge of resisting arrest, he was sentenced to thirty days in jail, with twenty days

suspended, and he was fined $250, with $200 suspended. He appeals from his conviction.

He sought a stay of execution of his sentence in the trial court, but his request was denied.1

         {¶ 2}         The State presented the following evidence about the bases for the charges

against Blair. Blair’s actions will be discussed in greater detail under the assignment of

error.

         {¶ 3}         On May 28, 2011, Blair was involved in an altercation with Chris Lewis, at

the home of Lewis’s family on Mill Ridge Road in Huber Heights. When police officers

arrived, Blair berated them and Lewis’s family with abusive language and insults for thirty

minutes to an hour, while the officers repeatedly attempted to calm him down. One of the

officers eventually decided to arrest Blair, and Blair resisted arrest by struggling with the

officer. Blair was cited for disorderly conduct and resisting arrest.

         {¶ 4}         At trial, Lewis’s brother and two police officers testified for the State; the

defense did not call any witnesses. Blair made a Crim.R. 29(A) motion for acquittal on

both charges at the close of the State’s case, which was overruled. Blair was found guilty

on both charges and sentenced as described above.

         {¶ 5}         Blair raises one assignment of error on appeal, which states:

         THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION


             1
             Blair’s request for a stay demonstrates that he did not voluntarily serve his sentence and, therefore, that his appeal is
   not moot due to voluntary satisfaction of the judgment. See Lammers v. Caltrider, 2d Dist. Montgomery No. 21565,
   2007-Ohio-1745, ¶ 5, citing State v. Miller, 9th Dist. Summit No. 23240, 2007-Ohio-370, ¶ 18.
                                                                                              3

       FOR A RULE 29 ACQUITTAL, AS THE STATE FAILED TO SHOW

       THAT THE ARREST WHICH APPELLANT “RESISTED” WAS A

       LAWFUL ARREST.

       {¶ 6}     Blair contends that his arrest for resisting arrest was unlawful because his

behavior did not constitute disorderly conduct and, as such, the officers did not have a lawful

basis to arrest him. He also claims that his Crim.R. 29 motion for acquittal should have

been granted.

       {¶ 7}     When reviewing the denial of a Crim.R. 29(A) 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 disputes whether the State has presented adequate evidence on each

element of the offense to allow the case to go to the jury or sustain the verdict as a matter of

law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State

v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541 (1997). When

reviewing whether the State has presented sufficient evidence to support a conviction, the

relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light

most favorable to the State, could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096

(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could not

reach the conclusion reached by the trier-of-fact.” Id.

       {¶ 8}     Resisting arrest is defined at R.C. 2921.33(A), which states that “[n]o

person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or
                                                                                            4

another.”   “Although the arrest must be ‘lawful,’ it is not necessary for the state to prove

that the defendant was in fact guilty of the offense for which the arrest was made to uphold a

conviction for resisting arrest. State v. Hurst, 1st Dist. Hamilton No. C-880706, 1989 WL

140010 (Nov. 22, 1989). An arrest is ‘lawful’ if the surrounding circumstances would give

a reasonable police officer cause to believe that an offense has been or is being committed.

Id.; Parma Heights v. Kaplan, 8th Dist. Cuyahoga No. 55108, 1989 WL 30584 (Mar. 30,

1989).” State v. Sansalone, 71 Ohio App.3d 284, 285-286, 593 N.E.2d 390 (1st Dist.1991).



       {¶ 9}     The citation charged Blair with disorderly conduct in violation of R.C.

2917.11(A)(2), which states: “No person shall recklessly cause inconvenience, annoyance, or

alarm to another by * * * making unreasonable noise or an offensively coarse utterance,

gesture, or display or communicating unwarranted and grossly abusive language to any

person.”    The disorderly conduct statute has long been interpreted to require that a

reasonable person “would find the defendant’s ‘language and conduct annoying or alarming

and would be provoked to want to respond violently.’” (Internal citations omitted.) Gessner

v. Schroeder, 2d Dist. Montgomery No. 21498, 2007-Ohio-570, ¶ 38, citing Warren v.

Patrone, 74 Ohio App.3d 595, 600 N.E.2d 344 (11th Dist.1991).             See, also, State v.

Hoffman, 57 Ohio St.2d 129, 387 N.E.2d 239 (1979); State v. Glenn, 1st Dist. Hamiltion

No. C-030356, 2004-Ohio-1489, ¶ 25. The test is objective and focuses on whether, under

the circumstances, it is probable that a reasonable person would find the accused’s language

and conduct annoying or alarming and would be provoked to want to respond violently; a

person need not actually be provoked to a violent response. Sansalone at 286.
                                                                                                                5

       {¶ 10}       Blair contends that his arrest was unlawful for two reasons: 1) the officers

were not provoked to respond violently toward him and did not feel threatened by him, and

thus were unjustified in arresting him, and 2) arrest was not permitted for this offense

because it was a minor misdemeanor.

       {¶ 11}      Huber Heights Police Officers Scott Short and Robert Bluma testified for

the State. They responded to a house on Mill Ridge Road on the night of May 28, 2011,

due to a report of a “disorderly subject at the residence.”                               Upon investigation, they

discovered that Blair had been involved in a physical and verbal altercation with his friend,

Chris Lewis, whose family lived at the residence. Blair had called the police. Both Lewis

and Blair had been drinking, and Lewis left the home before the officers arrived. Blair was

cursing loudly and disruptively.

       {¶ 12}      The officers attempted to calm Blair for thirty minutes to an hour; Blair

would appear to calm down, but then become agitated again. Blair was “belligerent and

disorderly” during this period, calling the officers “f***ing pigs”2 who did not know how to

do “their f***ing jobs,” and claiming that the laws of Montgomery County did not apply to

him because he lived elsewhere. Blair was also cursing at Lewis’s family members, who

were sitting outside their home. Blair told the officers that he was waiting for a ride from

someone who was coming from Washington Courthouse, so the officers “tried to be

patient,” but the owners of the home wanted Blair off of their property and the officers had

other calls waiting, including some priority calls. According to the officers’ testimony,

Blair was arrested because he continued to curse after the officers had repeatedly asked him


          2
           We have modified some of the offensive language contained in the transcript.
                                                                                              6

to stop, and because he intended to walk to Rite Aid, despite the officers’ instructions that he

should wait for his ride at his current location, since he was too intoxicated “to walk on his

own.”

        {¶ 13}    Although the officers found Blair’s conduct annoying and unpleasant, they

testified that they did not feel threatened by him and that tolerating such behavior was part of

their job. Sean Lewis, Chris’s brother, also testified that Blair was yelling in a loud voice

and cursing for approximately half an hour.

        {¶ 14}    The officers asked Blair to step off of the Lewises’ property while he

waited for his ride. As they were preparing to clear the call and leave, Blair again started to

yell at them and call them names. Officer Scott also testified that Blair wanted to walk to a

Rite-Aid, which he was in no condition to safely accomplish because of his intoxication.

Officer Bluma decided to arrest Blair. It is undisputed that Blair struggled with Bluma and

resisted his arrest.

        {¶ 15}    Blair contends that his arrest was unlawful, and therefore he did not resist a

lawful arrest. However, the officers’ testimony, which was unrefuted, established that Blair

had, at the very least, recklessly caused inconvenience and annoyance to the officers and his

friend’s family members by making “unreasonable noise” or “offensively coarse

utterance[s]” over an extended period of time. Because of the length and nature of Blair’s

diatribe, directed at both the officers and the residents, and the fact that Blair had no safe

means of leaving the premises, the officers could have reasonably concluded that Blair’s

conduct and language would provoke someone to respond violently if it were allowed to

continue and that it was lawful to arrest him. Further, the statute does not require that the
                                                                                                                                  7

officers were actually provoked to violence, but that a reasonable person would be provoked.

 Sansalone, 71 Ohio App.3d 284, 286, 593 N.E.2d 390. In other words, there was evidence

from which a rational factfinder could have concluded that Blair had engaged in disorderly

conduct. His Crim.R. 29 motion for acquittal was properly denied.

         {¶ 16}        Moreover, under the circumstances presented, Blair’s arrest for disorderly

conduct was justified, even though the offense is, in many circumstances, a minor

misdemeanor for which a citation is issued. See R.C. 2917.11(E)(2); R.C. 2935.26. R.C.

2917.11(E)(3)(a) provides that disorderly conduct is a misdemeanor of the fourth degree if

the “offender persists in disorderly conduct after reasonable warning or request to desist.”

The officers testified that, over the course of thirty minutes to an hour, they had repeatedly

instructed Blair to stop his abusive and disruptive behavior.                                  The officers could have

reasonably concluded that they were permitted to arrest Blair for his failure to desist because

his offense was a misdemeanor of the fourth degree, rather than a minor misdemeanor.3

Thus, the arrest was lawful as that term is used in the resisting arrest statute.

         {¶ 17}        Further, R.C. 2935.26 states that a person may be arrested, rather than

issued a citation, for a minor misdemeanor if the offender “is unable to provide for his own

safety.” Officer Scott testified that Blair was intoxicated, that Blair was attempting to leave

the scene to walk to a Rite-Aid store, and that he would have been unable to complete such a

walk safely. This testimony justified Blair’s arrest, even if his conduct were classified as a

minor misdemeanor.


             3
              Neither the citation nor the probable cause determination sets forth the degree of the disorderly conduct offense,
   although the narrative report stated that Blair “did persist using loudly vulgar language in public after multiple warnings.” The
   termination entry refers to it as a minor misdemeanor.
                                                                                           8

       {¶ 18}    We have concluded that Blair’s arrest was not an unlawful arrest, and he

has asserted no other bases to challenge his conviction for resisting arrest.

       {¶ 19}    The assignment of error is overruled.

       {¶ 20}    The judgment of the trial court will be affirmed.

                                          ..........

HALL, J. and FISCHER, J., concur.

(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).


Copies mailed to:

Robert B. Coughlin
Kathryn L. Bowling
Hon. James D. Piergies
