Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
R.C. 2917.11 -- Disorderly conduct.
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
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.
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
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State v. Silkauskas, 184 Ohio App.
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.
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.
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
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.
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
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
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
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
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
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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
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
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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State v. Gregorini, Portage App. No.
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.
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.
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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