From Casetext: Smarter Legal Research

State v. Jones

Court of Appeals of Ohio, Eleventh District, Portage
Sep 30, 2021
2021 Ohio 3486 (Ohio Ct. App. 2021)

Opinion

2021-P-0036

09-30-2021

STATE OF OHIO, Plaintiff-Appellee, v. JERRY D. JONES, Defendant-Appellant.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee). Dominic J. Vitantonio, Argie, D'Amico & Vitantonio, (For Defendant-Appellant).


Criminal Appeal from the Municipal Court, Ravenna Division Trial Court No. 2020 CRB 01980 R

Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

Dominic J. Vitantonio, Argie, D'Amico & Vitantonio, (For Defendant-Appellant).

OPINION

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Jerry D. Jones, appeals from the judgment of the Portage County Municipal Court, Ravenna Division, convicting him, after a trial to the bench, of disorderly conduct. At issue is the sufficiency and manifest weight of the evidence supporting the conviction, as well as whether the trial judge applied the proper burden of proof in finding appellant guilty. We affirm.

{¶2} On October 5, 2020, Edwin Agler, a truck driver, was delivering produce to Sirna and Sons Produce in Ravenna, Ohio. He pulled his semi-truck into the company's holding area, exited his truck, and "checked in" to gain entry. When he returned to his truck, he discovered appellant, a fellow truck driver, was blocking his ability to enter the facility. Appellant was standing on his fuel tank near an intercom, awaiting clearance to enter. Due to the manner in which appellant's truck was situated, Agler could not move. After several minutes, Agler exited his truck to see "what's going on." Agler gestured to appellant by lifting his arms, at which point, according to Agler, appellant called him a "fucking faggot." Appellant repeated this statement at least "seven times." Agler described appellant as "full of anger."

{¶3} As appellant approached Agler, he apparently knocked off Agler's glasses and broke the same. Agler responded by punching appellant, who was knocked unconscious.

{¶4} Appellant's version of events was different. He stated, prior to the confrontation, Agler appeared to be upset. Apparently, Agler was impatiently pumping his brakes which made a loud air-release sound. As Agler approached appellant's truck, he kept repeating "What? What?" Appellant admitted he advised Agler to get back in his "F-ing truck," but denied using any homophobic slur. When appellant came down from his truck to discuss the problem, he asserted Agler punched him in the eye and knocked him out. According to appellant, he never threw a punch and did not fight back.

{¶5 } When Ravenna Police Officer Matthew Meyers arrived at the scene, he questioned both parties. Appellant stated that while he was at the gate, "another truck driver was behind him getting closer, pumping the air brakes, [and] seemed irritated." The driver exited his truck, at which point, appellant held up his phone to indicate he had called the company and complained about the hold up. Upon confronting Agler, however, the two had words and Agler assaulted him.

{¶6} Alternatively, Agler stated that, while he did approach appellant to find out what was going on, he was not irate. As he approached the truck, appellant jumped off the truck, ran into him, and knocked off his glasses. Only then did the physical altercation escalate. Agler stated he did not recall much of the fight, other than he took appellant to the ground and asked him if he was "done." He then got off of appellant, noticed his glasses were broken, and police had been called.

{¶7} According to the officer, appellant had a visible injury to his right eye (which eventually required 11 stiches). Agler, meanwhile, showed no signs of injury. Before citing either individual, however, the officer sought to review the company's security cameras. Sirna agents were unable to find any recorded footage of the incident. As a result, the officer elected to charge both men with disorderly conduct.

{¶8} Appellant was cited with a violation of R.C. 2917.11(A)(1), a minor misdemeanor. The matter proceeded to a bench trial, after which, the trial court found appellant guilty. He appeals and assigns three errors. His first two assignments of error provide:

{¶9} "[1.] The trial court erred in finding appellant Jones guilty of disorderly conduct under R.C. 2917.11(A)(1), since there is insufficient evidence in the record to establish (1) that Jones recklessly cause[d] inconvenience, annoyance or alarm to another, and (2) that Jones engaged in fighting, in threatening harm to persons or property, or in violent or turbulent behavior; and the trial court instead erroneously found him guilty based upon words that he used.

{¶10} "[2.] The trial court erred in finding appellant Jones guilty of disorderly conduct under R.C. 2917.11 (A)(1), as such a finding is against the manifest weight of the evidence."

{¶11} "[A] 'sufficiency' argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense." State v. Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶25. "[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9, (11th Dist.), {¶12} In contrast, a "court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Wells, 11th Dist. Ashtabula No. 2011-A-0073, 2012-Ohio-4459, ¶56, citing State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).

{¶13} Appellant argues there was insufficient, credible evidence to demonstrate any of the necessary elements of the crime of disorderly conduct. We do not agree.

{¶14} R.C. 29117.11(A)(1), governing the relevant disorderly conduct charge, provides:

{¶15} (A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:

{¶16} (1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;

{¶17} A person acts recklessly "when, with heedless indifference to the consequences, [he or she] disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist." R.C. 2901.22(C).

{¶18} The evidence adduced at trial revealed two differing accounts of the incident. Still, appellant testified he did tell Agler to "get in his F-ing truck." And he admits, in his appellate brief, that he "utter[ed] a vulgarity" that was directed at Agler. The use of profanity alone is not a reckless act. In context, however, where each individual testified the other appeared agitated or angry, appellant's admitted demand that Agler "get back in his F-ing truck" could be reasonably viewed as reckless.

{¶19} Specifically, the profane directive issued by appellant can be objectively viewed as a heedless disregard to a known risk; namely, the provocation or further escalation of the bellicosity engendered in both men's differing account of their interaction at the facility's gate. Appellant's profane advisement, regardless of the credibility of Agler's testimony, which asserted appellant's statement included a homophobic reference, was sufficient to meet the initial prong of the charge, i.e., that he recklessly caused, at least, annoyance or alarm by demanding Agler return to his "F-ing truck."

{¶20} Next, appellant claims the trial court merely found him guilty due to his words, not his actions. Profane utterances, alone, would likely be insufficient to convict a party of disorderly conduct. See State v. Wood, 112 Ohio App.3d 621, 627 (11th Dist.1996) (while profane language may be considered offensive, the language itself would probably not support a disorderly conduct conviction). Here, after closing arguments from counsel, the trial court stated the following from the bench:

{¶21} Mr. Jones, I will indicate to you that I do find your testimony credible. By your own testimony you acknowledge you used profanity. The officer did not charge either of you with assault. I think there was a reason for that. I think the officer exercised appropriate discretion in not charging either of you with assault because he had no idea who the primary aggressor was. I think your defense, say this was an assault trial, might be fairly effective. But this is a minor misdemeanor disorderly conduct. It is a very low legal threshold in my opinion so I will find that you are guilty beyond a reasonable doubt of the minor misdemeanor disorderly conduct primarily based on your own statements, because I do agree with your attorney. There [are] some credibility issues here on the testimony that was presented, but you even acknowledged you exchanged words, and you acknowledged there was profanity in those words so I will make a finding of guilty beyond a reasonable doubt.

{¶22} Appellant contends the court's own ruling was insufficient to support the judgment. In support, he cites this court's case in State v. Conley, 11th Dist. Portage No. 98-P-0104, 1999 WL 1313631. In Conley, the defendant was charged with disorderly conduct under the same subsection as appellant. The defendant, Conley, was attending a concert when he was confronted by parking attendants regarding the location of his vehicle. An argument ensued and the event coordinator, who was also in charge of security, was called. When the coordinator arrived, he prevented Conley from entering the event. Conley became angry and aggressive, casting multiple profanities at the coordinator. Conley was asked to leave the event but, instead of leaving, made a gesture suggesting he would strike the coordinator. Conley was subdued and escorted off the premises, resisting and cursing the entire time. Conley was found guilty. On appeal, this court underscored that the use of profanity would not likely support a conviction alone. Still, this court concluded Conley's words, in conjunction with the evidence of his threatening and violent representations, were sufficient to satisfy the statutory elements. Id. at *3. We deem Conley supportive of appellant's conviction.

{¶23} In this case, even though the trial judge's statement from the bench suggests appellant was convicted merely on his verbal invective, the surrounding circumstances support appellant's conviction. The statute requires proof, inter alia, of "fighting," "violent," or "turbulent behavior." Although appellant denied fighting or striking Agler, he used profanity and admittedly descended from his truck toward Agler. According to the statement Agler gave Officer Meyers, appellant, upon approaching Agler, ran into him. Agler also testified appellant appeared angry during their brief interaction, during which Agler's glasses were broken. Viewing the evidence in a light most favorable to the state, even though appellant's actions might not rise to the level of "fighting," they could reasonably be viewed as "violent" or "turbulent." ("Turbulent behavior" involves "tumultuous behavior or unruly conduct characterized by violent disturbance or commotion." State v. Reeder, 18 Ohio St.3d 25, 27 (1985).) We therefore conclude there was sufficient, credible evidence to support the trial court's judgment of conviction as the state demonstrated appellant recklessly caused inconvenience, annoyance, or alarm by engaging in violent or turbulent behavior.

{¶24} We recognize that the trial court did not formally point to each element in rendering its judgment from the bench. Still, the record supports the court's determination. See State v. Peagler, 76 Ohio St.3d 496, 501 (1996) (an appellate court may resolve an issue on different grounds than that used by the trial court so long as the issue and points were raised in the trial court.) See also, Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284 (1944) (erroneous reasoning by the trial court does not warrant reversal of an otherwise correct judgment.) Given the foregoing points, we conclude the trial court did not err in finding appellant guilty beyond a reasonable doubt.

{¶25} Appellant's first and second assignments of error lack merit.

{¶26} Appellant's third assignment of error provides:

{¶27} "The trial court erred in finding appellant Jones guilty of disorderly conduct under R.C. 2917.11(A)(1), inasmuch as the trial court applied a relaxed burden of proof due, in recognizing that the crime charged was a minor misdemeanor." (Sic.)

{¶28} Appellant argues the trial court applied the incorrect burden of proof in concluding appellant was guilty of disorderly conduct beyond a reasonable doubt. Specifically, appellant notes the trial court recognized appellant's rendition of the facts was credible, but that his admitted use of profanity was sufficient to convict him because, as a minor misdemeanor, there is "a very low legal threshold."

{¶29} We acknowledge the trial court's statement could be construed as an inaccurate statement of the state's burden. We, however, do not read the trial judge's remark(s) as a comment on the state's burden. To the contrary, the judge repeatedly stated that she found appellant guilty beyond a reasonable doubt of the crime charged. In our view, the court's observation regarding the "legal threshold" relates merely to the low-level nature of the crime and the evidence necessary to meet the elements of a disorderly-conduct charge. In this respect, and in light of our analysis of appellant's first two assigned errors, his argument lacks merit.

{¶30} Appellant's third assignment of error lacks merit.

{¶31} For the reasons discussed in this opinion, the judgment of the Portage County Municipal Court, Ravenna Division, is affirmed.

MARY JANE TRAPP, P.J., JOHN J. EKLUND, J., concur.


Summaries of

State v. Jones

Court of Appeals of Ohio, Eleventh District, Portage
Sep 30, 2021
2021 Ohio 3486 (Ohio Ct. App. 2021)
Case details for

State v. Jones

Case Details

Full title:STATE OF OHIO, Plaintiff-Appellee, v. JERRY D. JONES, Defendant-Appellant.

Court:Court of Appeals of Ohio, Eleventh District, Portage

Date published: Sep 30, 2021

Citations

2021 Ohio 3486 (Ohio Ct. App. 2021)