State v. Miller

591 N.E.2d 1355, 70 Ohio App. 3d 727, 8 Ohio App. Unrep. 195

Opinions

ABELE, P.J.

This is an appeal from a Hillsboro Municipal Court judgment convicting appellant of disorderly conduct in violation of R.C. 2917.1KAXD and resisting arrest in violation of R.C. 2921.33CAX1).

On May 13, 1989, the Highland County Sheriffs Department responded to a report that someone was breaking windows in a house. Upon arrival at the scene, the officers saw appellant in the area, chased him and eventually arrested him. Appellant was charged with two counts of criminal damaging, assault, disorderly conduct and resisting arrest.

Appellant was arraigned on May 15 and the trial was scheduled for June 7, 1989. On May 30, 1989, appellant filed a jury demand. The court rescheduled the trial for June 12, 1989. On June 8th or 9th the court rescheduled the trial to June 13, 1989, due to a conflict in the prosecutor's schedule Appellant was held in jail continuously from his arrest until his trial.

At trial, at the close of the state's case, the state voluntarily dismissed one of the criminal damaging charges. The jury acquitted appellant of the other criminal damaging charge and the assault charge but found appellant guilty of disorderly conduct and resisting arrest. The court sentenced appellant to a total of 120 days in jail and fined him $1,000.00.

We reverse.

ASSIGNMENT OF ERROR I. "THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES FOR FAILURE TO COMPLY WITH THE SPEEDY TRIAL STATUTE, R.C. 2945.71."

R.C. 2945.71(B) (2) states:

"(B)A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:

"(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days."

R.C. 2945.71(E) states:

"(E) For purposes of computing time under divisions (A), (B), (CX2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days."

R.C. 2945.73(B) states in part:

"(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code."

Appellant was arrested and placed in jail on.May 13, 1989. Pursuant to the provisions of R.C. 2945.71(E) each day appellant was in jail counts as three days for speedy trial purposes. Therefore, beginning with May 13, the first day appellant was held in jail, the state had thirty days to bring appellant to trial. The last day the state could try appellant was June 11,1989.

The court erroneously calculated the time and scheduled the case on June 12, 1989. This error was compounded by rescheduling the trial for June 13, 1989. The court did not journalize the continuance from June 12 to June 13 and did not journalize the reason for the continuance. Therefore, the speedy trial limits were not extended. State v. Benson (1985), 29 Ohio App. 3d 321.

When appellant went to trial on June 13, he had been in jail for thirty-two days. We find the state violated appellant's right to a speedy trial and that the time was not extended pursuant to any of the provisions of R.C. 2945.72. Appellant's first assignment of error is sustained.

ASSIGNMENT OF ERROR 11. "THE TRIAL COURT ERRED IN FAILING TO DISMISS CASE 89-CR-B-256, RESISTING ARREST, AT THE CONCLUSION OF STATE'S CASE."

ASSIGNMENT OF ERROR IV. "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S RULE 29 MOTION MADE AFTER THE RETURN OF THE VERDICT."

R.C. 2921.33 states:

"(A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another."

(Emphasis Added)

In State v. Johnson (1982), 6 Ohio App. 3d 56, the court found that when a charge was brought under R.C. 2921.33, the arrest must be lawful in order to convict.

R.C. 2925.03 defines a police officer's power to arrest without a warrant. As a general rule, a misdemeanor must be committed in the presence of a law enforcement officer or the offense must be one specifically listed in the statute before the officer may make a lawful warrant-less arrest. See Columbus v. Lenear (1984), 16 Ohio App. 3d 466.

All of the evidence at trial was that the officers arrested appellant for a charge of criminal damaging which did not occur in the officer's presence. All of the other charges arose after the officers attempted to arrest appellant. The state presented no evidence to support a warrantless arrest of appellant.

In State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus, the court held:

"Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt."

We find, therefore, that the officer had no basis to execute a warrantless arrest. As the arrest was unlawful, we find an essential element of the offense of resisting arrest is missing. The court should have granted appellant's motions for acquittal. We sustain appellant's second and fourth assignments of error.

ASSIGNMENT OF ERROR III. "THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY."

Appellant contends the court erred in its instructions concerning the offense of resisting arrest. In our review of the record we find appellant's only objection was to the court's failure to define "offense of violence." The remainder of the court's instructions were not objected to.

In State v. Underwood (1983), 3 Ohio St. 2d 12, the court stated in its syllabus:

"The failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, but for the error, the outcome of the trial clearly would have been otherwise"

The court instructed the jury on each of the elements of the offenses. It further instructed the jury that in order to convict appellant it must find appellant guilty of each element beyond a reasonable doubt. We have reviewed the record and do not find that "but for the error, the outcome of the trial clearly would have been otherwise" Appellant's third assignment of error is overruled.

Judgment reversed and appellant discharged.

GREY, J., concurs in judgment and opinion. HARSHA, J., concurs in part and dissents in part.