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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

DISORDERLY CONDUCT (133)

In general

Conduct

Language

Protest situations

R.C. 2917.11 -- Disorderly conduct.

In general

Toledo v. Pena, 185 Ohio App. 3d 645, 2010-Ohio-184 – Defendant was charged with F-4 disorderly conduct. After a jury returned a not guilty verdict the judge amended the complaint to state a minor misdemeanor violation of the statute premised on intoxication, and found the defendant guilty. Since the minor misdemeanor offense is not a lesser included to the F-4, amendment changed the identity of the crime charged. Court does not address a second assignment of error sounding in double jeopardy and due process.

N. Ridgeville v. Cummings, 152 Ohio Misc. 2d 28, 2009-Ohio-3475 – Officer approached the intoxicated defendant following up on a complaint from an unidentified person that he had been trying to pick a fight. Without non-hearsay testimony, there was no proof of the annoyance element of disorderly. Related resisting count dismissed as well.

State v. Stewart, Montgomery App. No. C.A. 19309, 2003-Ohio-214 -- Disorderly conduct is a lesser included offense to domestic violence by threat.

State v. Slatter (1981), 66 Ohio St. 2d 452 -- R.C. 2935.26, requiring the issuance of a citation when a minor misdemeanor is charged unless certain exceptions apply, creates a substantive right of freedom from arrest for those accused of committing a minor misdemeanor. Since the defendant had a right not to be arrested, evidence seized during his unlawful arrest should have been suppressed and prosecution for escape could not go forward. (Halloween at Ohio University.) Compare State v. Bronaugh (1984), 16 Ohio App. 3d 237; State v. Peay (1991), 62 Ohio Misc. 2d 92; State v. Pender (1980), 66 Ohio Misc. 23.

State v. Harkness (1991), 75 Ohio App. 3d 7 -- Bond set in an amount in excess of the maximum fine for disorderly conduct, as a minor misdemeanor, is unlawful.

State v. Roberts (1982), 7 Ohio App. 3d 253 -- Disorderly conduct is a lesser included offense of assault. Also see State v. Reynolds (1985), 25 Ohio App. 3d 59.

State v. Stuber (1991), 71 Ohio App. 3d 86 -- Disorderly conduct may be a lesser included offense to domestic violence premised on causing or attempting to cause physical harm to a family member. May reverse or limit holding by the same Court of Appeals in Bucyrus v. Fawley (1988), 50 Ohio App. 3d 25.

State v. West (1988), 52 Ohio App. 3d 110 -- Amendment of complaint charging obstructing official business to disorderly conduct impermissibly changed the name and identity of the offense charged.

Waynesville v. Combs (1990), 66 Ohio App. 3d 292 -- For disorderly conduct to be punishable as a fourth degree misdemeanor, the issue of the defendant's failure to desist must be submitted to the jury.

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Conduct

State v. Silkauskas, 184 Ohio App. 3d, 2009-Ohio-5749 – Evidence established that the defendant was voluntarily intoxicated, but not that he affirmatively did anything presenting a risk of physical harm to himself, another, or property. Defendant went to a friend’s apartment to get drunk. They had a falling out and the police were called. Police were unwilling to drive the defendant home, or allow him to walk or drive home, so they arrested him for disorderly. Though walking or driving home might have placed him at risk, he had not been allowed to do so.

Alliance v. Carbone, 181 Ohio App. 3d 500, 2009-Ohio-1197 – Cop looking to make arrests under an ordinance making it disorderly conduct to loiter near a toilet building responded to the defendant‘s flashing his brake lights, followed him into a park restroom, arranged a liaison at the defendant‘s place of business, then placed him under arrest. Officer was mindful the park had a four star rating on "cruisingforsex.com." The ordinance simply states "No person shall loiter in or near toilet buildings." This is unconstitutionally vague both on its face and as applied to the defendant. It permits the police to make an arrest before any crime has occurred or is about to occur. The ordinance is also overly broad.

State v. Walters, 181 Ohio App. 3d 424, 2009-Ohio-1338 – Police responding to the report of an engine being revved found four drunks in a garage on private property. While all were voluntarily intoxicated, they did not pose a sufficient risk to themselves or others. (Dissent as to the individual who vomited in the presence of the officers, but was taken to the jail, not the hospital.) Defendants pled no contest to disorderly conduct and other charges after motion to suppress was overruled. Issue was presented both in terms of probable cause for arrest and sufficiency.

State v. Graves, 173 Ohio App. 3d 526, 2007-Ohio-4904 – Informant reported someone matching the defendant‘s description had a large bag of marijuana. Officers approached the defendant, who was standing outside the informant‘s apartment. He was highly intoxicated and placed under arrest for disorderly conduct. The marijuana was found in the search incident to arrest. Motion to suppress should have been granted. The focus of the disorderly ordinance is not intoxication but the subject‘s conduct while intoxicated. Here the defendant was not a nuisance and had not placed himself at risk.

Toledo v. Thompson-Bean, 173 Ohio App. 3d 566, 2007-Ohio-4898 – Mother exploded during a meeting at her daughters‘ school and was convicted under an ordinance proscribing disturbing, disrupting or interfering with school activity. Void for vagueness challenge deflected by construing the ordinance to require substantial disruption and willful (purposeful) action by the accused. Also see Euclid v. Moore (Dec. 9, 1999), Cuyahoga App. No. 75143.

State v. Gilreath, 174 Ohio App. 3d 327, 2007-Ohio-6899 – Defendant was convicted of disorderly conduct for flipping off a seven year old on a swing set. Magistrate took the matter under advisement, found the defendant guilty and pronounced the recommended sentence in his decision. This violated the defendant‘s right to be present at every stage of proceedings.

Urbana v. Locke, 170 Ohio App. 3d 246, 2006-Ohio-6606 -- Defendant was rude, obnoxious and confrontational in his efforts to stop smoking at a children's baseball game in a city park. The game was stopped and the umpire ordered him to leave. He persisted. Most of his long course of bad conduct is found not to amount to disorderly conduct, but intruding into the personal space of a bystander in a manner that caused her husband to think he would have to intervene was enough to support conviction.

Newburgh Heights v. Halasah (1999), 133 Ohio App. 3d 640 -- Motorist who was unhappy at being issued tickets was improperly convicted of disorderly conduct pursuant to R.C. 2917.11(A)(5): (1) Charge was filed under municipal ordinance. Amendment to R.C. violation denied defendant the jury trial he had demanded and would have been entitled to on an R.C. charge. (2) Being rude to a cop does not create a risk of physical harm to persons or property, nor does it create a condition that is physically offensive.

State v. Garrow (1995), 103 Ohio App. 3d 368 -- Defendant refused to speak with officers called to his home by his wife, and was arrested for disorderly conduct and menacing after twice turning the TV back on after it was turned off and then unplugged by officers. Trial court found defendant not guilty of menacing. Court of appeals reversed disorderly conviction, stating: "We do not believe that for a person to tell the police, even in a loud voice, that he will not speak to them and to leave his home constitutes violent or turbulent behavior."

State v. Robinson (1992), 83 Ohio App. 3d 337 -- Belligerent conduct and cursing by defendant inside his home, leading to arrest by officers sent to the scene, did not amount to disorderly conduct, even though the need for police intervention was obvious.

State v. Wilson (1995), 102 Ohio App. 3d 1 -- Defendant repeatedly threatened officer who had stopped him for speeding. Held sufficient to support menacing conviction, but not conviction for disorderly conduct charge premised on likelihood threats would provoke a violent response by the officer.

State v. Navarro (1992), 80 Ohio App. 3d 762 -- Disorderly conduct conviction upheld where residents found a drunken stranger in their kitchen at 3:00 a.m.

State v. Fant (1992), 79 Ohio App. 3d 458, 461 -- "Where there is evidence of substance and probative force tending to show that, absent a lawful or reasonable purpose, the effect of the defendant's reckless, if not intentional, course of conduct was to cause inconvenience, annoyance and alarm to police officers at the scene of an arrest and to create a risk to the officer's safety, it cannot be said that the conviction for disorderly conduct [pursuant to R.C. 2917.11(A)(5)] was against the manifest weight of the evidence."

State v. Walton (1993), 89 Ohio App. 3d 799 -- Serving divorce papers by shoving them inside a woman's shirt is turbulent behavior.

State v. Stevens (1992), 78 Ohio App. 3d 847 -- Disorderly conduct conviction premised on loud music not supported by the evidence when not established defendant had any control over volume of music.

Toledo v. Grince (1989), 48 Ohio App. 3d 126 -- Janitor who complained when police refused to arrest vagrant in lobby was told he had flunked civics and was arrested for disorderly conduct. Conviction reversed.

State v. Callahan (1989), 48 Ohio App. 3d 306 -- Loudly berating a police officer in the midst of a crowd enough to establish disorderly conduct in Cincinnati. So is telling him he is probably on the take: State v. Semple (1989), 58 Ohio App. 3d 93. Also see State v. Dickey (1991), 75 Ohio App. 3d 628.

State v. Hampton (1990), 66 Ohio App. 3d 30 -- Defendant approached police officer and said: "Just because you got a fucking badge you think you can fuck with people. Fuck you and your gun, money talks so I'll walk." Disorderly conduct conviction reversed since words were found insufficient to provoke a retaliatory breach of the peace by the officer. Also see Warren v. Patrone (1991), 75 Ohio App. 3d 595 -- To parking enforcement officer: "Here, this is what people think of your asshole tickets, asshole." State v. Sansalone (1991), 71 Ohio App. 3d 284 -- Not disorderly conduct to drive off while calling officer who wrote out parking ticket an asshole.

State v. Miller (1980), 67 Ohio App. 2d 127 -- Sheriff's deputy who came upon two people involved in a wrestling altercation was not recklessly caused inconvenience, since he was merely going about his job duties.

State v. Sweeney (1991), 72 Ohio App. 3d 404 -- Fondling or touching another, if not inadvertent, may constitute a gesture for purposes of the disorderly conduct statute.

State v. Cortner (1992), 76 Ohio App. 3d 648 -- Teacher did not act recklessly in holding behaviorally handicapped student's arm behind his back to bring him under control during an outburst. Disorderly conduct conviction reversed.

State v. Parks (1990), 56 Ohio App. 3d 8 -- Headnote 2: "The act of sitting in the passenger seat of a parked car, albeit in an intoxicated state, does not create the kind of risk of physical harm to oneself that is intended to be encompassed by R.C. 2917.11(B)(2)." Also see Lorain v. Wright (1983), 11 Ohio App. 3d 200 (sleeping in an inoperable car at estranged wife's residence).

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Language

State v. Holzwart, 151 Ohio App. 3d 417, 2003-Ohio-345 -- Father's angry outburst and throwing a phone in reaction to disagreement among daughters and stepdaughters fell within reasonable parental discipline.

State v. Dotson (1999), 133 Ohio App. 3d 299 -- Motorist who did not appreciate getting a parking ticket made repeated use of the f-word in various forms expressing her displeasure to the issuing officer. Under the circumstances, this language would not provoke a reasonable person to immediately breach the peace. Even if a subjective test applied, the officer testified he had no desire to react violently in response to the language. Also see State v. Karle (2001), 144 Ohio App. 3d 125 (Defendant was the subject of an unlawful arrest in the curtilage of his home.)

State v. Smith, 150 Ohio App. 3d 45, 2002-Ohio-5994 -- After an unproductive search of his car by a dope dog, defendant remained at the scene and mouthed off at the officers involved. Inconvenience or annoyance element of disorderly conduct not proven.

Columbus v. Schwarzwalder (1974), 39 Ohio St. 2d 61 -- For the Columbus disorderly conduct ordinance to be constitutionally applied, it must be directed only against unprotected speech and conduct (i.e. "fighting words)." See Chaplinsky v. New Hampshire (1942), 315 U.S. 568; Terminello v. Chicago (1949), 337 U.S. 1; Gooding v. Wilson (1972), 405 U.S. 518; Cohen v. California (1971), 403 U.S. 15 (word fuck used in context of protest is neither fighting words or obscene); Kent v. Kelley (1975), 44 Ohio St. 2d 43 (telling a police officer to "stay away from the fucking door" and to "get the fuck out of here" not fighting words.

State v. Wilson (1990), 64 Ohio App. 3d 357 -- Not found to have been fighting words for patron of Tucker's Restaurant in Greenfield, Ohio to tell waitress: "I ain't eating this fucking shit, it's got hair on it," then elaborating.

Cincinnati v. Karlan (1974), 39 Ohio St. 2d 108, 109-110 -- "The principal pull and haul between state courts and the high court has centered around a definition of 'protected speech.'... A majority of the United States Supreme Court has said no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words as defined by that tribunal." Also see Lewis v. New Orleans (1973), 415 U.S. 130; State v. Wylie (1984), 19 Ohio App. 3d 180.

State v. Hoffman (1979), 57 Ohio St. 2d 129 -- Whether or not the disorderly conduct statute may be constitutionally applied to used of profane and threatening language over a CB radio hinges on whether "...the words spoken are likely, by their very utterance, inflict injury or provoke the average person to an immediate retaliatory breach of the peace." Also see South Euclid v. Richardson (1988), 43 Ohio App. 3d 114.

State v. Holmes (1998), 129 Ohio App. 3d 733 -- Motorist upset at being cited for a burned out headlight yelled at officers: "Apparently Holmes range of profanity on that date was limited, consisting of various forms of the verb 'to fuck,' uttered twenty to thirty times." Officer said she did not feel alarmed, threatened, inconvenienced or annoyed and the state offered no evidence residents of nearby apartments were so affected. Reversed.

Fairborn v. Semler (1993), 90 Ohio App. 3d 369, 371 -- "Semler's use of an old English four-letter functional verb in the imperative mood, obnoxious as it was, is not of that character (i.e. fighting words)...It was Semler's actions, not the content of his speech that produced his conviction."

State v. Miller (1996), 110 Ohio App. 3d 159 -- Disorderly conduct conviction reversed where defendant told neighbor "I'm tired of being your victim and I'm not going to be your victim anymore. I think you are a real sicko. I think you are a sick son-of-a-bitch." Language did not amount to fighting words.

State v. Lamm (1992), 80 Ohio App. 3d 510 -- Police officer followed defendant to his home after observing erratic operation of auto. Defendant's angry and offensive language was not proper basis for arrest for disorderly conduct. Since arrest was unlawful, exclusionary rule applied to related offenses of resisting arrest, assault and aggravated menacing. Also see State v. Maynard (1996), 110 Ohio App. 3d 6.

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Protest situations

State v. Gregorini, Portage App. No. 2003-P-0071, 2004-Ohio-4698 -- Leader of protesters commemorating the anniversary of the Kent State shootings was charged with disorderly conduct after the group entered a city street closed by the police. Inconvenience element was based on the testimony of a woman who had to take an alternate route on the way home from a pizza shop, though it had been the police who closed the street, impeding traffic. Court refuses to apply a proximate cause standard. Reversed.

Cleveland v. Swieciki, 149 Ohio App. 3d 77, 2002-Ohio-4027 -- Heckler was charged with disorderly and resisting after heckling an Indians left fielder. (1) Merely being seen drinking beer did not establish the intoxication element. (2) Nor was the alarm or offense element proved. Fans are invited to cheer. At ¶24: "Appropriate conduct in this type of setting differs from what may be appropriate in church...(T)he words uttered by Swieciki to voice his displeasure at Branyan's lack of speed in a baseball game can hardly be perceived as offensive to ordinary sensibilities rising to the level of criminal disorderly conduct; some in attendance may even have shared his sentiments."

Cincinnati v. Summers, Hamilton App. No. C-020624, 2003-Ohio-2773 -- Disorderly conduct conviction was not supported by the evidence. At ¶ 8: "Simply protesting within the limits of the law did not reasonably support the inference that Summers was insulting, taunting, or challenging passing motorists. Further, from our review of the record, we hold that peacefully protesting in a crosswalk while raising a small bat in the air and yelling 'Black Power,' without swinging the bat so as to hit a passing vehicle, was not something that was likely to provoke a violent response."

State v. Scott (1997), 123 Ohio App. 3d 331 -- Abortion protestor was convicted of disorderly conduct. No First Amendment violation found as it was the loudness of his speech, not its content, which was the basis for the charge.

State v. Rose (1975), 44 Ohio Misc. 17 -- Affidavit charging disorderly conduct dismissed. Conduct was distributing leaflets asking people not to patronize store involved in a labor dispute.

Cleveland v. Egeland (1986), 26 Ohio App. 3d 83 -- Disorderly conduct to lie in an intersection near Public Square in Cleveland to protest nuclear warfare.

Akron v. Wendell (1990), 70 Ohio App. 3d 35, 44 -- Disorderly conduct and criminal trespass charges, though arising from the same demonstration, are not allied offenses of similar import.

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