[Cite as Cleveland v. King, 2025-Ohio-3067.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, : No. 114464 v. :
PARIS KING, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 28, 2025
Criminal Appeal from the Cleveland Municipal Court Case No. 2023-CRB-005251
Appearances:
Mark Griffin, Cleveland Director of Law, Aqueelah A. Jordan, Chief Prosecutor, and Thomas Fisher, Assistant Prosecutor, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Rick Ferrara, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Defendant-appellant Paris King appeals her convictions for
disorderly conduct and resisting arrest. The crux of King’s argument in this appeal
is that “[t]he law cannot and does not prohibit non-violent protest against police officers, even if it is loud.” She maintains that “eighteen seconds of protest led to
[her] unlawful arrest.” While we agree with King that the First Amendment protects
a person from speaking rudely, offensively, and insultingly to a police officer, it does
not permit a person to disobey police orders or aggressively lunge towards an officer
while yelling profanity in his face. In this appeal, King raises five assignments of
error for our review:
1. King was denied due process of law through faulty jury instructions, which omitted an essential element of persistent disorderly conduct and forbade the jury from acquitting her of resisting arrest for lack of arrestable offense.
2. The trial court plainly erred in instructing and entering a conviction and sentence on persistent disorderly conduct and resisting arrest, as the jury verdict was based on faulty jury instructions supporting only a conviction of disorderly conduct, a lesser included offense.
3. Defense counsel provide[d] constitutionally ineffective assistance through faulty jury instructions.
4. Insufficient evidence supported King’s conviction for disorderly conduct and resisting arrest.
5. The manifest weight of the evidence did not support King’s convictions.
After review, we conclude that reversible error did not occur with
respect to the trial court’s jury instructions. We do not agree with King that a
manifest miscarriage of justice resulted because of the trial court’s failure to
(1) instruct the jury on the element of persistence, (2) permit the jury to consider
that disorderly conduct may be a nonarrestable offense if the element of persistence
is not proven, and (3) better explain King’s free-speech rights. Therefore, King’s first
and second assignments of error have no merit. Because we do not find that a manifest miscarriage of justice occurred, we also find no merit to King’s third
assignment of error arguing that her trial counsel was ineffective for failing to supply
proper jury instructions to the trial court.
Finally, we conclude that King’s convictions for disorderly conduct
and resisting arrest were not based on insufficient evidence and were not against the
manifest weight of the evidence. Thus, we overrule King’s fourth and fifth
assignments of error as well and affirm the trial court’s judgment.
I. Procedural History and Facts
In July 2023, King was charged with three counts: (1) criminal
trespass in violation of Cleveland Cod.Ord. 623.04, a misdemeanor of the fourth
degree; (2) persistent disorderly conduct in violation of R.C. 2917.11(A)(1),
2917.11(A)(2), and 2917.11(E)(3)(a), a misdemeanor of the fourth degree; and
(3) resisting arrest in violation of R.C. 2921.33, a misdemeanor of the second degree.
The City moved to consolidate King’s case with the case of her
codefendant and mother, Juanita Gowdy. The trial court granted the City’s request
and consolidated the cases.
A. Jury Trial
The case proceeded to a joint jury trial. The following facts were taken
from the witnesses’ testimonies, video recordings from the body cameras of four
University Hospitals police officers, and the footage from two hospital surveillance
cameras. The City presented three University Hospitals police officers who
were working on the night of July 3, 2023: Officers Kayla Tomm and Jamal Gill and
Corporal Andrew Huling. A fourth officer who was also present that evening, Officer
Sedivy, did not testify. Although Officer Sedivy did not testify, King submitted the
recording from his body camera into evidence, which the trial court admitted. The
City also presented a nurse who was on duty in the emergency room that night and
the detective assigned to the case.
The City’s Case
Officer Tomm stated that she and the other officers were dispatched
to the emergency room at University Hospitals’ main campus because two people
with gunshot wounds were en route to the hospital. She explained that when the
emergency room receives patients with gunshot wounds, it is hospital policy that the
emergency room “go[es] into a soft lockdown.” During a soft lockdown, police
officers “stand outside the doors to make sure no one” except patients go inside the
emergency room. Officer Tomm testified that by implementing a soft lockdown, the
hospital and the officers hope to prevent someone from entering who might try “to
finish the job.”
While the officers were standing near the entrance, a man approached
them. He told the officers that he wanted to go inside because his son had been shot.
The officers would not let him enter the hospital at that time due to the soft
lockdown. Officer Tomm told the man that the hospital was “not letting visitors in
at the moment.” The man was very upset. An unknown woman approached the officers, telling them, “That’s his son.” Officer Tomm told the woman that even if
they were to let the man inside, he could not see his son at that time because doctors
were assessing his son’s health.
Gowdy, who was a patient in the emergency room but was outside
with King, was standing nearby and overheard the officers tell the man that he could
not go inside to see his son. Gowdy began talking to people standing outside of the
hospital. Gowdy then began yelling that it was not fair for the officers to deny the
man entry to the hospital. Gowdy walked to the parking garage, but the officers
could still hear her yelling.
Gowdy left the parking garage and walked towards the officers. She
told them, “I am going to do something about this. This is dead wrong what y’all are
doing. Dead wrong, y’all. We ain’t in 1963.” Officer Tomm told Gowdy, “Go get
your stuff please.” Officer Gill stated to the other officers, “If she is not a patient, she
cannot come back in.” King, who was still standing near the entrance to the parking
garage, yelled to the officers, “Don’t say nothing to my mother, please.” King
continued to tell Officer Tomm to not talk to her mother.
Gowdy approached the entrance to the emergency room where the
officers were standing. She stated, “Stuff like this shouldn’t even happen. I’m going
in,” and she grabbed the door handle. Officer Gill told her, “No.” Gowdy replied
that she was going to go “back in” to get her medical-test results. Officer Gill told
her that she could not go back inside and asked her if she was a patient. Gowdy
replied that she was. At that time, King approached and told the officers, “You better not touch my mama.” King continued to tell the officers not to touch her mother.
Officer Gill asked Gowdy to show him her hospital wristband. At first, Gowdy
refused to show him her wristband. King was trying to get her mother to leave, but
Gowdy was still trying to go inside. Gowdy showed her wristband to Officer Gill and
told him, “I’m the councilwoman too.” Officer Gill put his gloves on at that point
and advised Gowdy that if she “kept going,” she was going to be arrested for
disorderly conduct. Gowdy kept telling Officer Gill to “open up the door” and let her
get her results. Throughout this time, King was yelling at the officers and told them
that they were all “disrespectful as f***.”
Corporal Huling stepped between Gowdy and Officer Gill and told
Gowdy that before she could go inside, she needed to calm down. Gowdy replied
that she was calm. She told him, “He said show me the badge. I showed you the
badge.” Gowdy continued to talk to Officer Gill. Corporal Huling told her that she
needed to focus on him instead of Officer Gill. Gowdy asked Corporal Huling who
he was. Corporal Huling told her that he worked there too and that he was a
supervisor. Gowdy asked him for his name and badge number, which he gave to
her. Gowdy told him that she was going to report all the officers because they were
violating her rights. She also said that she was going to press charges against them.
Corporal Huling told her that she could do what she likes but that she needed to
calm down before she went back into the emergency room. Gowdy replied that she
was “already calm.” She then looked at Officer Gill and told him to “let [her]
through, please.” After several more things were said back and forth between Corporal Huling and Gowdy, he told Officer Gill that Gowdy could go inside and get
her results.
Officer Gill opened the door for Gowdy. As Gowdy walked through
the door, King began to follow her inside. Corporal Huling told King twice, “Ma’am,
you gotta stay outside.” After Corporal Huling put his arm up to block King and told
her that she needed to stay outside, Gowdy grabbed King’s left wrist and tried to pull
her inside with her. Despite Corporal Huling’s attempt to stop King, King continued
to follow her mother inside the hospital. At that point, Officer Gill grabbed King’s
right arm to keep her outside. King immediately pulled her right arm away from
Officer Gill in a very fast and aggressive motion, took a step toward him, and shouted
in his face, “Do not touch me. Tell him do not touch me.” Officer Tomm said that
King “began to almost like lunge at an officer” and “pushed her chest out.” Officer
Gill testified that King “became very irate . . . [and] threatening” and “jumped all in
[his] face and she took a lunging step” toward him.
King continued to step closer to the officers, yelling in their faces that
she would stay outside but that they did not have to touch her. Gowdy was also
yelling at the officers. King repeatedly yelled in Officer Gill’s face to not put his
hands on her. Officer Gill told King that she was under arrest. Throughout this
entire time, King was also shouting profanity at the officers.
Officer Gill put his arm between King and her mother, and King yelled
loudly in Officer Gill’s face not to “put his mother f*cking hands” on her mother. At
that point, Officer Gill attempted to put King’s hands behind her back to handcuff her. King pushed Officer Gill’s arm away from her. Officer Gill stated that he was
trying to push her face towards the glass of the emergency room so that he could put
her hands behind her back. But King fought the officers and prevented them from
putting handcuffs on her. Officers Tomm and Sedivy tried to help Officer Gill put
handcuffs on King. The three officers tried to hold King against a railing, but she
continued to fight them. Officer Tomm told King to let go of the railing. King cursed
at her and tried to get away from the officers. In the process of doing so, King fell to
the ground and knocked over a garbage can. King was kicking at the officers and
trying to fight them. Officer Gill stated that King kicked him several times in his
shins. Officer Tomm told King to stop resisting. The officers were able to get the
handcuffs on King once she was on the ground. Corporal Huling remained by the
door to the emergency room during the entire scuffle. Gowdy yelled at the crowd to
take photos of the fight.
The officers walked her to their booking room in the hospital. Officer
Tomm said that while they were walking King to the booking room, Officer Sedivy
was holding onto King’s arm “in the escort position,” and King began “flailing” and
“thr[ew] her arm,” which caused Officer Sedivy to fall into the railing. Officer Sedivy
told King to “stop resisting” and eventually he “got her to calm down.”
When the officers were done booking King, they walked her to her
vehicle. Gowdy eventually came to the car, and the officers removed King’s
handcuffs. King and Gowdy left. The officers agreed that they never told King or Gowdy that the
hospital was in a soft lockdown. The officers stated that they were trained to
implement a soft lockdown when there was a gunshot victim in the emergency room,
but they agreed that there was no written policy regarding a soft lockdown.
King’s Case
Gowdy testified that she went to the hospital on July 3, 2023, because
of swelling in her legs and feet. She asked her daughter to take her. When the
gunshot victims arrived at the hospital, she and King had already been there for
several hours. Gowdy said that King smokes, so she had gone in and out of the
emergency room many times. Gowdy went outside with her one time, which
happened to be just after the gunshot victims had arrived. When the police would
not allow the father of one of the gunshot victims into the hospital, Gowdy said that
it upset her. Gowdy admitted that she did not speak to the officers very nicely
because she was angry.
Gowdy stated that when she witnessed the officers attacking her
daughter, she did not think her daughter would live. She believed that the police
would kill King.
Gowdy testified that she filed a report against the officers the
following day. A week later, Gowdy learned that she had been charged with a crime.
Gowdy said that she identified herself as an East Cleveland
Councilmember “because a lot of people” knew who she was. She said that what the police did to King got back to people who lived in East Cleveland. She stated, “That
was part of my campaign smear of what ya’ll did to my daughter.”
King testified that it was difficult for her to watch the videos of what
occurred on July 3, 2023. She said that she “curse[d] like a sailor” and that it was “a
bad part of [her] that a lot of people had to see.”
King stated that she got very upset when the officers touched her
mother. King said that she did not believe anyone should touch anyone else. King
explained that she had experienced abuse by an ex-husband in the past as well as by
a police officer. When she tried to follow her mother inside the hospital and Officer
Gill grabbed her wrist, she “really lost her temper.” She said that she was “terrified,”
“scared,” and “shocked.” She explained that she moves a lot when she talks, so that
is probably why they thought she lunged at them. She said it happened so fast that
she did not have time to think.
King testified that if the officers had just explained to her and her
mother that it was the hospital’s policy not to let anyone inside after a gunshot victim
arrived, she would not have been upset. She said that she would have just remained
outside and waited.
At the close of all the evidence, King moved for a Crim.R. 29 acquittal,
which the trial court denied. B. Jury Verdict and Sentence
The jury found King not guilty of criminal trespass but guilty of
persistent disorderly conduct and resisting arrest.1 The trial court sentenced King
to one year of active community-control sanctions with counseling. It is from this
judgment that King now appeals.
II. Jury Instructions
In her first assignment of error, King contends that she was denied
due process of law because the trial court improperly instructed the jury. She argues
that the jury instructions (1) omitted the element of persistence, which was an
essential element of disorderly conduct, (2) did not allow the jury to consider
disorderly conduct as a nonarrestable offense with respect to its instructions
regarding resisting arrest, and (3) did not permit the jury to consider First
Amendment exceptions to disorderly conduct.
A. Structural Error
King did not object to the trial court’s jury instructions. “Pursuant to
Crim.R. 30(A), the failure to object to a jury instruction in a timely manner generally
constitutes a waiver of any claimed error relative to the instructions unless the error
amounts to plain error.” State v. Jallah, 2015-Ohio-1950, ¶ 88 (8th Dist.). King
contends, however, that the trial court committed structural error when it gave
improper instructions to the jury. We disagree.
1 The jury found Gowdy not guilty of both persistent disorderly conduct and obstruction
of official business. First, King does not cite to any cases where a court held that improper
jury instructions amounted to structural error. Moreover, after claiming that the
trial court’s improper jury instructions require an automatic reversal due to
structural error, King does not provide any analysis or explain how or why structural
error should apply here. It is not the job of this court to make the argument for her.
See App.R. 12(A)(2).
Notably, even the Ohio Supreme Court case that King cited in support
of her argument that the trial court’s jury instructions amounted to structural error,
State v. Wamsley, 2008-Ohio-1195, does not support her claim. The Supreme Court
held in Wamsley that the trial court’s jury instructions omitting “the culpable
mental state of the underlying offense of trespass” and “all the elements required to
establish the underlying offense of assault” did not amount to structural error. Id.
at ¶ 17-24.
The Supreme Court explained in Wamsley that even serious
constitutional errors — except in “‘a “very limited class of cases”’” — do not amount
to structural error that is subject to automatic reversal. Id. at ¶ 16, quoting State v.
Perry, 2004-Ohio-297, ¶ 18, quoting Johnson v. United States, 520 U.S. 461, 468
(1997). The Court listed some of the limited class of cases where structural errors
have been found: (1) complete denial of counsel, (2) biased trial judge, (3) racial
discrimination in selection of grand jury, (4) denial of self-representation at trial,
(5) denial of public trial, and (6) defective reasonable doubt instruction. Id. at ¶ 18
(citing the United States Supreme Court cases that held such errors were structural). The Ohio Supreme Court further stated in Wamsley that although a
defendant is generally “entitled to have the jury instructed on all elements that must
be proved,” the failure to do so “is not necessarily reversible as plain error” under
Crim.R. 52(B). Id. at ¶ 17, citing State v. Adams, 62 Ohio St.2d 151 (1980),
paragraph two of the syllabus. Rather, when a defendant fails to object to improper
jury instructions, “the reviewing court must examine the record in order to
determine whether that failure may have resulted in a manifest miscarriage of
justice.” Adams at paragraph three of the syllabus.
Thus, we disagree with King that any error in the trial court’s jury
instructions amounted to structural error.
B. Plain Error
King contends in her second assignment of error that if this court does
not agree that the trial court’s jury instructions amounted to structural error, we
should still reverse her conviction under the plain-error standard.
“Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” Crim.R. 52(B). There
are three conditions that must be met to satisfy the plain error rule. State v. Barnes,
94 Ohio St.3d 21, 27 (2002). First, there must be a deviation from a legal rule; i.e.,
an actual error. Id., citing State v. Hill, 92 Ohio St.3d 191, 200 (2001). Second, the
error must be plain, meaning that the error is an obvious defect in the trial
proceedings. Id., citing State v. Sanders, 92 Ohio St.3d 245, 257 (2001). Third, the error must have affected the defendant’s substantial rights. Id. This means that the
trial court’s error “must have affected the outcome of the trial.” Id.
As the Ohio Supreme Court pointed out in Wamsley, 2008-Ohio-
1195, a reviewing court has the discretion in whether to take notice of and correct
plain error. Id. at ¶ 27. The Supreme Court has “acknowledged the discretionary
aspect of Crim.R. 52(B) by admonishing courts to notice plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’” Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91 (1978),
paragraph three of the syllabus. Plain error should be noticed and corrected only “if
the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings’[.]” Id., quoting United States v. Atkinson, 297 U.S. 157, 160 (1936).
We will exercise our discretion to determine whether the trial court’s
jury instructions in this case amounted to plain error.
Disorderly Conduct
King first argues that the trial court erred when it failed to instruct the
jury on the aggravating element of persistence for disorderly conduct.
King was charged with persistent disorderly conduct under
R.C. 2917.11(A)(1) and (A)(2) as well as 2917.11(E)(3)(a). Disorderly conduct under
R.C. 2917.11(A) provides in relevant part that
[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another by . . .
(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior; (2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person[.]
While disorderly conduct is a minor misdemeanor, persistent
disorderly conduct is a fourth-degree misdemeanor. R.C. 2917.11(E)(3)(a).
According to the transcript, the trial court orally instructed the jury
that before it could find King (and Gowdy) guilty of disorderly conduct, it must
find beyond a reasonable doubt that on or about the 2nd day of July 2023, in the city of Cleveland, Ohio, the defendants Gowdy and/or King recklessly caused inconvenience, annoyance or alarm to another by doing any of the following: One, engaging in fighting and threatening harm to persons or property or in violent or turbulent behavior and/or made unreasonable noise or offensively course utterance, gesture or display or communicated unwarranted and grossly abusive language to any person.
The trial court also defined recklessly, risk, cause, physical harm to
persons and property, and turbulent behavior. The court then told the jury:
In regard to defendant Gowdy, if you find that the City proved beyond a reasonable doubt all of the essential elements of the offense of disorderly conduct and/or obstructing official business, your verdict must be guilty. If your verdict is guilty, you will then separately decide beyond a reasonable doubt whether the defendant, Gowdy, persisted in the disorderly conduct after a reasonable warning or request to desist. If your verdict is not guilty, you will not consider this issue.
In regard to defendant Gowdy, if you find that the City failed to prove beyond a reasonable doubt any one of the essential elements of the offenses of disorderly conduct and/or obstructing official business, then your verdict must be not guilty. In regard to defendant King, if you find that the City proved beyond a reasonable doubt all of the essential elements of the offense of criminal trespass and disorderly conduct, your verdict must be guilty. In regard to defendant King, if you find that the City failed to prove beyond a reasonable doubt any one of the essential elements of the offense[] disorderly conduct, then your verdict must be not guilty. After reviewing the transcript, we agree with King that the trial court
failed to orally instruct the jury that it must find that King persisted in disorderly
conduct after being told to stop.
We cannot conclude, however, that the trial court’s error in failing to
instruct the jury on the element of persistence was so prejudicial that a manifest
miscarriage of justice occurred. The jury heard the testimony of three of the four
police officers who were present on the day of the incident. More significantly, the
jury was presented with seven video recordings to review: the videos taken from the
body cameras of all four officers who were present (two videos from one officer) as
well as two surveillance videos from University Hospitals. The evidence established
that King ignored police orders to not go inside the hospital, repeatedly yelled
profanity in the officers’ faces, and aggressively removed her arm from Officer Gill
and stepped towards him when he tried to stop her from following her mother inside
the hospital. Thus, members of the jury could decipher from the recordings exactly
what occurred outside the emergency room on the night of July 23, 2023. Based on
the evidence presented, the jury could have reasonably concluded that King
persisted in disorderly conduct after the officers instructed her to stop.
We further note that although the transcript indicates the trial court
gave the written jury instructions to the jury to review and consider while
deliberating, the written instructions are not in the record on appeal.2 However, the
2 King and Gowdy’s proposed written jury instructions are in the record on appeal but not
the instructions that the trial court gave to the jury. jury’s completed verdict form for disorderly conduct states, “We, the jury in this
case, being duly impaneled and sworn, do find co-defendant PARIS KING guilty
of PERSISTENT DISORDERLY CONDUCT 2917.11(A)(1) & (A)(2) as
charged in the complaint.” (Emphasis in original.) Thus, the jury considered the
element of persistence and found King guilty of persistent disorderly conduct.
Accordingly, we do not find that a manifest miscarriage of justice
occurred when the trial court failed to include the essential element of persistence
when orally instructing the jury.
Resisting Arrest
Next, King contends that the trial court’s jury instructions regarding
resisting arrest were improper because the trial court told the jury, “You are
instructed as a matter of law . . . disorderly conduct [is an] offense[] for which the
defendant could be arrested.” King maintains that telling the jury this was improper
because it failed to allow the jury to consider that “disorderly conduct was not an
arrestable offense” under R.C. 2935.26 and 2917.11(E)(2) and (3) if the jury did not
find that she “persisted in disorderly conduct after reasonable warning or request to
desist.” (Emphasis in original.)
Pursuant to R.C. 2935.26(A), a law enforcement officer may not
generally arrest a person for the commission of a minor misdemeanor and instead
must issue a citation. As we previously stated, disorderly conduct is a minor
misdemeanor unless, as relevant to this case, “the offender persists in disorderly
conduct after reasonable warning or request to desist.” R.C. 2917.11(E)(3)(a). If persistence is found, disorderly conduct is a fourth-degree misdemeanor and an
arrestable offense. Id.; Woodmere v. Workman, 2022-Ohio-71, ¶ 9 (8th Dist.).
Resisting arrest under R.C. 2921.33(A) provides that “[n]o person,
recklessly or by force, shall resist or interfere with a lawful arrest of the person or
another.” Thus, lawful arrest is an essential element of the crime of resisting arrest.
State v. Mahalli, 2016-Ohio-940, ¶ 17 (8th Dist.), citing State v. Barker, 128 Ohio
App.3d 233, 240 (6th Dist. 1998). King argues that because the trial court failed to
instruct the jury that it must find she persisted in disorderly conduct, she could only
be found guilty of minor-misdemeanor disorderly conduct, which is not an
arrestable offense. Without an arrestable offense, King asserts that there was not a
lawful arrest. And without a lawful arrest, she argues that the jury could not find
her guilty of resisting arrest. We disagree with King that there was not a lawful arrest
in this case.
To show a lawful arrest for purposes of resisting arrest under
R.C. 2921.33(A), the City had to prove not only that there was a reasonable basis to
believe an offense had been committed, but also that the offense was one for which
the defendant could be lawfully arrested. Id., citing Columbus v. Lenear, 16 Ohio
App.3d 466, 468 (10th Dist. 1985). It was not necessary, however, for the City 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. Id.
With respect to resisting arrest, the trial court instructed the jury: Before you can find defendant King guilty, you must find beyond a reasonable doubt that on or about the 2nd of July 2023, in Cleveland, Ohio, Cuyahoga County, defendant King recklessly or by force resisted or interfered with a lawful arrest of herself or another.
The trial court then defined recklessly, force, and resist or interfere.
Regarding lawful arrest, the trial court told the jury:
Arrest means an intent to arrest under real or pretended authority accompanied by actual, uh — actual constructive seizure or detention of the person and which is so understood by a person arrested.
You must also decide whether the arrest was lawful. The [City] must prove the arrest was in the process of taking place when the resistance or interference occurred. An arrest is lawful if the offense for which the arrest was being made was one for which the defendant could be arrested and the arresting officer had authority to make the arrest at the time and place where the alleged resistance or interference took place, and a reasonable police officer under the facts and circumstances in evidence would have believed that the following elements, uh, were being or had been committed by the defendant.
The City need not prove that the defendant was, in fact, or had been found guilty of the offense but only that the arresting officer had a reasonable belief of defendant’s guilt. In determining whether the officers had reasonable cause to believe that the defendant had committed the offense of disorderly conduct or criminal trespass, you must put yourself in the position of the individual officers with their knowledge or their lack of knowledge and under the circumstances and conditions that surround them at the time. Must consider or conduct — you must consider the conduct of the persons involved and determine whether their acts and words and all the surrounding circumstances would have caused a person of ordinary prudence and care to believe that the defendant had committed either of the crimes of disorderly conduct . . . based upon the elements of which were summarized as part of the instructions.
Based on the facts in evidence, additional instructions must be given as to what constitutes an arrestable offense. You are instructed as a matter of law . . . disorderly conduct [is an] offense[] for which the defendant could be arrested. After review, we find no error on the part of the trial court, plain or
otherwise. Persistent disorderly conduct is an arrestable offense. And based on the
evidence presented at trial, the jurors could have determined that the University
Hospitals police officers had a reasonable basis to believe that a criminal offense had
been committed. Again, it was not necessary for the City to prove that King was in
fact guilty of persistent disorderly conduct to uphold a conviction for resisting arrest.
We further note that the police officers also arrested King for criminal
trespass. King does not argue that criminal trespass was not an arrestable offense
or that the officers did not have a reasonable basis to arrest her for criminal trespass.
And it has no bearing on King’s conviction for resisting arrest that the jury found
King not guilty of criminal trespass. Thus, even if we agreed with King that
disorderly conduct was not an arrestable offense in this case, criminal trespass was.
We therefore find no merit to King’s argument that the trial court’s
jury instructions regarding resisting arrest were improper.
First Amendment
King further argues that the trial court’s jury instructions on the First
Amendment were incomplete and confusing. Regarding the First Amendment, the
trial court instructed the jury:
Whether defendant’s speech was protected by First Amendment is a question of law of the Court. However, the point of free speech protections is to shield exactly the type of content that may in some individuals’ estimation may be misguided or even hurtful. Toleration of insulting and even outrageous speech is necessary to the protection of free speech. Merely offens[ive] [or] belligerent speech that causes distress or embarrassment is not for that reason alone unprotected. ...
Accordingly, you may consider whether the content of the speech . . . acts by defendant had demonstrated an intent to communicate protected criticism directed at a government body, in this case the University Hospitals police officers. If you find the law enforcement officer was employed by University Hospitals . . . then you are instructed that as a matter of law an officer had authority to make the arrest.
King asserts that the trial court “should have instructed the jury that
they determine whether a First Amendment protection applied, and that they must
determine whether to apply it.” (Emphasis in original.) She further argues that the
trial court failed to explain to the jury the standard for fighting words and maintains
that she was “left utterly unprotected” by the trial court’s instruction.
King’s arguments regarding free speech and fighting words apply only
to disorderly conduct under R.C. 2917.11(A)(2). “A person may not be punished
under R.C. 2917.11(A)(2) . . . unless the words spoken are likely, by their very
utterance, to inflict injury or provoke the average person to an immediate retaliatory
breach of the peace” — otherwise known as “fighting words.” State v. Hoffman, 57
Ohio St.2d 129, 131-132 (1978). But here, the jury also found King guilty of
disorderly conduct under R.C. 2917.11(A)(1). R.C. 2917.11(A)(1) “prohibits certain
behavior” — not the content of speech. State v. Reeder, 18 Ohio St.3d 25, 26 (1985).
Because the jury found King guilty of disorderly conduct under
R.C. 2917.11(A)(1) and (A)(2), we cannot say that the outcome of her trial would have
been different if the trial court’s jury instructions regarding freedom of speech would
have been more complete and less confusing. Thus, we find no merit to King’s argument that the trial court’s jury instructions regarding freedom of speech
violated her due-process rights.
After considering and rejecting King’s arguments regarding the trial
court’s jury instructions for disorderly conduct, resisting arrest, and freedom of
speech, we overrule her first and second assignments of error.
C. Ineffective Assistance of Counsel
In her third assignment of error, King contends that her trial counsel
failed to provide the trial court with sufficient jury instructions.
To establish ineffective assistance of counsel, a defendant must show
(1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 687-688, 694
(1984).
We have already determined that any error in the trial court’s jury
instructions did not affect the outcome of the proceedings or result in a manifest
miscarriage of justice under the plain-error analysis. As the Ohio Supreme Court
stated in State v. Rogers, 2015-Ohio-2459, the plain-error standard under
Crim.R. 52(B) is the same deferential standard that applies to the prejudice prong
of claims of ineffective assistance of counsel. Id. at ¶ 22. Therefore, we cannot say
that King was prejudiced by any deficiencies in her counsel’s performance in failing to provide the court with proper jury instructions. Accordingly, King’s third
assignment of error is overruled.
III. Sufficiency and Manifest Weight
In her fourth and fifth assignments of error, King argues that her
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence.
A. Sufficiency of the Evidence
King contends that the evidence presented at trial established that she
was lawfully protesting the actions of the police officers and that her actions were
not arrestable. She therefore asserts that the City’s evidence was insufficient as a
matter of law to convict her of disorderly conduct and resisting arrest.
When considering a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. A reviewing court is
not to assess “whether the state’s evidence is to be believed, but whether, if believed,
the evidence against a defendant would support a conviction.” State v. Thompkins,
78 Ohio St.3d 380, 390 (1997). Disorderly Conduct
King argues that while her conduct was “not necessarily laudable” and
that she used profanity in an “extremely loud voice” to the police officers, she
maintains that her words were not “fighting words.” She therefore contends that the
City’s evidence was insufficient to convict her of disorderly conduct.
The jury’s verdict form indicates that it found King guilty of disorderly
conduct under R.C. 2917.11(A)(1) and (A)(2). Again, even if we agreed with King
that the City failed to prove beyond a reasonable doubt that she was guilty of
R.C. 2917.11(A)(2) (disorderly conduct based on speech, i.e., fighting words), she
was also convicted of disorderly conduct under R.C. 2917.11(A)(1).
R.C. 2917.11(A)(1) “prohibits certain behavior,” not the content of speech. Reeder,
18 Ohio St.3d at 26. “The word, ‘turbulent,’ in the context of [R.C. 2917.11(A)(1)],
refers to tumultuous behavior or unruly conduct characterized by violent
disturbance or commotion.” Id. at 27. Thus, while “mere words are insufficient to
support a conviction of disorderly conduct” under R.C. 2917.11(A)(1), “conduct
showing ‘a blatant disrespect for the law’ has been held to rise to the level of violent
or turbulent behavior.” Akron v. Concannon, 2009-Ohio-4162, ¶ 17 (9th Dist.),
quoting State v. Stewart, 1994 Ohio App. LEXIS 5716, *2 (11th Dist. Dec. 16, 1994).
To establish that a defendant engaged in persistent disorderly
conduct in violation of R.C. 2917.11(A)(1), the City had to establish that King
(1) recklessly, (2) caused inconvenience, annoyance, or alarm to another, (3) by
engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior, and (4) that she persisted in disorderly conduct after reasonable
warning or request to desist. R.C. 2917.11(A)(1); R.C. 2917.11(E)(3)(a).
King does not challenge the first three elements under
R.C. 2917.11(A)(1). The only element that she claims was not supported by sufficient
evidence is persistence under R.C. 2917.11(E)(3)(a). She maintains that the City
failed to present sufficient evidence that she persisted in disorderly conduct. The
crux of King’s argument is that the officers’ body cameras showed that she yelled at
an officer for a mere 18 seconds before he arrested her. She maintains that 18
seconds is not sufficient to establish persistence. We disagree.
To persist in disorderly conduct, the offender must be actively
conducting him or herself in a disorderly manner, and after being warned or
requested to desist, the offender continues the offensive behavior. Warren v.
Patrone, 75 Ohio App.3d 595, 598 (11th Dist. 1991). There is no time requirement
to establish persistence.
In this case, Officer Gill and Corporal Huling both tried to tell King
that she was not permitted to go back inside the emergency room with her mother.
Corporal Huling told King several times, “Ma’am, you gotta stay outside.” King,
however, continued to walk towards the door to the hospital, defying the officer’s
orders. After Corporal Huling told King to stay outside multiple times, Gowdy
grabbed King’s left wrist to pull her inside the hospital. When Gowdy grabbed King’s
left wrist, King defied the officers’ orders and began to walk inside the entryway to
the emergency room. At that point, Officer Gill grabbed King’s right arm to stop her from going inside the hospital. King pulled her arm back from Officer Gill in an
aggressive manner and stepped towards him, yelling in Officer’s Gill’s face, “Do not
touch me.”
Corporal Huling attempted to separate King from Officer Gill, but she
continued to fight Corporal Huling’s attempts and was aggressively pushing against
Corporal Huling to get to Officer Gill. While continuing to push towards Officer Gill,
with her face practically up against his face, King continued to yell profanities at the
officers. Officer Gill told King that she was under arrest, and King continued to fight
them. Thus, reasonable factfinders could find that King’s movements towards the
officers were aggressive, turbulent, and persistent.
Accordingly, we conclude that the City presented sufficient evidence
to establish beyond a reasonable doubt that King persisted in disorderly conduct
under R.C. 2917.11(A)(1).
King further argues that the City failed to present sufficient evidence
that she resisted arrest. King maintains that because her arrest for disorderly
conduct was not lawful, the City failed to present an essential element of resisting
arrest, i.e., a lawful arrest.
As we previously stated, the City only had to prove that the officers
had a reasonable basis to believe that an offense of disorderly conduct had been
committed and that the offense was one for which the defendant could be lawfully arrested. Mahalli, 2016-Ohio-940, at ¶ 17, citing Lenear, 16 Ohio App.3d at 468.
The City did that in this case.
Accordingly, we conclude that the City presented sufficient evidence
that King resisted arrest.
King’s fourth assignment of error is overruled.
B. Manifest Weight of the Evidence
In her fifth assignment of error, King argues that her convictions for
disorderly conduct and resisting arrest were against the manifest weight of the
evidence.
While the test for sufficiency requires a determination of whether the
State has met its burden of production at trial, a manifest weight challenge questions
whether the State has met its burden of persuasion. Thompkins, 78 Ohio St.3d at
390. Weight of the evidence addresses the evidence’s “‘effect of inducing belief.’”
(Emphasis in original.) Id. at 386-387, quoting Black’s Law Dictionary (6th Ed.
1990). When a defendant argues his or her conviction is against the manifest weight
of the evidence, the court
“reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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.”
Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). “‘The
discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting
Martin at 175.
King claims that the jury lost its way in believing the false testimony
of the officers. She asserts that the officers’ body cameras prove that Officer Gill
“stepped forward to challenge King for being lawfully upset that Officer Gill touched
her and her mother.” She further argues that the officers’ body cameras carry “far
greater weight than any” of the officers’ testimonies.
While we agree that the recordings taken from the officers’ body
cameras carry great weight, we disagree with King on what the videos establish. We
have independently reviewed all the footage from the officers’ body cameras —
which show multiple angles depending on where each officer was standing during
the commotion — and agree with the jury’s resolution of the facts. Moreover, the
three officers’ testimonies were consistent with each other with respect to what
occurred that evening, and their body cameras corroborated their testimonies. We
therefore disagree with King that the jury lost its way.
King’s fifth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE
LISA B. FORBES, J., and KATHLEEN ANN KEOUGH, J., CONCUR