[Cite as State v. Taylor, 2020-Ohio-3159.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       29230

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TONY TAYLOR                                          AKRON MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   18CRB07639

                                  DECISION AND JOURNAL ENTRY

Dated: June 3, 2020



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Tony Taylor, appeals his conviction in the Akron Municipal

Court for disorderly conduct. For the reasons that follow, we reverse Mr. Taylor’s conviction.

                                                I.

        {¶2}     In August 2018, Mr. Taylor was involved in a verbal confrontation with Officer

Ross of the Akron Police Department after Mr. Taylor improperly entered the drop area of a

fireworks perimeter. Mr. Taylor was subsequently arrested and charged with disorderly conduct

in violation of Akron City Code 132.01(A)(1), a minor misdemeanor; misrepresenting identity in

violation of Akron City Cody 136.15, a misdemeanor of the second degree; and obstructing official

business in violation of Akron City Code 136.11, a misdemeanor of the second degree. Mr. Taylor

entered a plea of not guilty and the matter proceeded through the pretrial process.

        {¶3}     Prior to trial, the State dismissed the misrepresenting identity charge and the

obstructing official business charge. Following a bench trial, the court found Mr. Taylor guilty of
                                                 2


disorderly conduct, and imposed sentence. Upon Mr. Taylor’s motion, the trial court stayed his

sentence.

       {¶4}    Mr. Taylor filed this timely appeal, raising two assignments of error for our review.

                                                II.

                                     Assignment of Error I

       The trial court committed reversible error when it denied Defendant-
       Appellant Taylor’s motion for judgment of acquittal under [Crim.R. 29].

       {¶5}    In his first assignment of error, Mr. Taylor contends that there was insufficient

evidence to convict him of disorderly conduct, and that trial court erred when it denied his motion

for judgment of acquittal pursuant to Crim.R. 29.

       {¶6}    Although Mr. Taylor’s stated assignment of error is that the trial court erred in when

it denied his Crim.R. 29 motion, Mr. Taylor also argues within the body of the assignment of error

that his conviction is against the manifest weight of the evidence. Because Mr. Taylor’s arguments

do not comply with the App.R. 16(A)(7) requirement that assignments of error be argued

separately, the States asserts that we should disregard his manifest weight argument pursuant to

App.R. 12(A)(2) and Loc.R. 7(B)(7). However, because we conclude that the State failed to

present sufficient evidence to prove beyond a reasonable doubt that Mr. Taylor was guilty of

disorderly conduct, we need not consider the manifest weight argument.

Sufficiency of the Evidence

       {¶7}    This Court reviews the denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence. State v. Frashuer, 9th Dist. Summit No. 24769,

2010-Ohio-634, ¶ 33. A challenge to the sufficiency of a criminal conviction presents a question

of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying

out this review, our “function * * * is to examine the evidence admitted at trial to determine
                                                 3


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. After such an examination and taking the evidence in the light most favorable to the

prosecution, we must decide whether “any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id.

       {¶8}    The trial court found Mr. Taylor guilty of disorderly conduct in violation of Akron

City Code 132.01(A)(1), which is identical in language to R.C. 2917.11. That ordinance provides

that “[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another by * * *

[e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent

behavior[.]”

       A person acts recklessly when, with heedless indifference to the consequences, he
       perversely disregards a known risk that his 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, he
       perversely disregards a known risk that the circumstances are likely to exist.

Akron City Code 130.08(C). See R.C. 2901.22(C).

       {¶9}    In this case, the trial court specifically found that Mr. Taylor “screamed

profanities at Officer Ross in a threatening manner” and that Mr. Taylor’s behavior towards

Officer Ross “was both threatening and turbulent.” On appeal, Taylor does not assert that there

was insufficient evidence to establish that he recklessly caused inconvenience, annoyance, or

alarm to another, and instead, only asserts that the State failed to produce sufficient evidence that

his behavior was violent or turbulent. Although Mr. Taylor does not develop a significant

argument related to the trial court’s finding that his behavior was threatening in addition to being

turbulent, he does assert that there were “no statements alleging that [he] engaged in fighting nor

threatened harm to persons or property to validate a conviction for [d]isorderly [c]onduct.”
                                                  4


       {¶10} At trial, the State presented the first two minutes and nine seconds of Officer Ross’s

body camera footage as well as testimony from Officer Ross. Officer Ross testified during direct

examination as follows. Officer Ross was assigned to work a traffic detail in the fireworks

perimeter at the rear of a local minor league baseball stadium at the time of the incident at issue.

The area had been cordoned off by fire department fire inspectors to restrict the public from

entering the “drop zone” of the fireworks scheduled at the stadium that evening. Officer Ross

testified that he observed Mr. Taylor walk along a galvanized rail, pick up the tape designating the

restricted area, and enter the drop zone. At that point he began yelling at Mr. Taylor to stop, and

directing him to go back. Officer Ross approached Mr. Taylor and stated that Mr. Taylor “was

immediately verbally abusive,” and when informed he was not allowed in the area, Mr. Taylor

stated “that he could get his property.”

       {¶11} Officer Ross further testified that people enter restricted areas “like that” from

“time to time[,]” and he “needed to talk to [Mr. Taylor as to] why he entered that area.” Officer

Ross indicated that people who enter the restricted area usually exit the restricted area immediately

after being instructed to leave. He stated that he still tries to talk to those individuals to explain

why they are not allowed in the area, but “[t]hat didn’t happen here.” When specifically asked by

the prosecutor to characterize Mr. Taylor’s behavior during the interaction, Officer Ross stated:

“He was verbally abusive. He was not going to assist us in any part of this. He was going to be

completely unhelpful to his own situation or ours.”

       {¶12} A review of Officer Ross’s body-camera footage sheds further light on what

occurred during the confrontation between Mr. Taylor and Officer Ross. The first twenty-nine

seconds of the recording do not have sound. In the recording, Mr. Taylor can be seen walking

along a railing until he comes upon a yellow tape at the end of the railing, presumably indicating
                                                  5


the beginning of the fireworks drop zone. Mr. Taylor then ducks under the tape, and begins

walking back along the railing in the same direction from which he came, but on the opposite side

of the railing. Officer Ross can be seen gesturing to Mr. Taylor and pointing back in the direction

of the yellow tape. Mr. Taylor appears to acknowledge that Officer Ross is attempting to

communicate with him, but continues walking in the same direction. Mr. Taylor can then be seen

picking up an object and beginning to walk back in the direction of Officer Ross and the yellow

tape. The recording indicates that less than fifteen seconds elapsed between Mr. Taylor entering

the restricted area, retrieving an item from the ground, and turning back in the direction from which

he came.

          {¶13} As Mr. Taylor begins to walk back toward the tape, the sound begins on the body-

camera footage. Mr. Taylor can be heard asking Officer Ross “Why you bein’ mean?” To which,

Officer Ross replied, “Because you just went where you were not supposed be.” Mr. Taylor

attempts to interrupt Officer Ross, and begins to speak over Officer Ross’s statement at the words

“were not,” and stating that he had to get his “[g]oddamn comb.” At that point Officer Ross steps

into Mr. Taylor’s path, blocking his exit from the restricted area. Officer Ross then forces Mr.

Taylor to stop walking by placing his hand on Mr. Taylor’s upper arm and pushing him back

firmly.     As he pushes on Mr. Taylor’s arm, Officer Ross demands to see Mr. Taylor’s

identification. Mr. Taylor steps back from Officer Ross and states, “I ain’t got an I.D.” During

the above exchange, Officer Ross’s tone of voice seems firm and authoritative, and Mr. Taylor’s

tone of voice seems irritated. It appears from the angle of the body-camera footage that Officer

Ross is standing in a slightly elevated position from that of Mr. Taylor.

          {¶14} After Mr. Taylor tells Officer Ross he does not have an I.D., Officer Ross tells Mr.

Taylor, “We’re going to find out who you are.” Mr. Taylor can then be observed to purse his lips,
                                                  6


look slightly to the right, place his hand on the railing and then, after looking back at Officer Ross,

he exclaims in an irritated tone, “I don’t give a f***k!” Officer Ross states, “Okay, that’s fine,”

and then radios to “Mike” to “come on back” because he’s “got one.” While Officer Ross is

radioing Mike, a woman with a confused look on her face and a child can be seen approaching the

two men. As the woman appears to begin to address Officer Ross, Mr. Taylor calmly says to her,

“Stop, stop, stop, * * * serious.” The end of Mr. Taylor’s statement is inaudible because Officer

Ross then addresses Mr. Taylor again and states, “I told you not to do it and you did it anyway.”

Mr. Taylor reacts by stepping back, with his hand still on the railing, and exclaims in an elevated

and irritated voice, “I don’t give a f***k!” Mr. Taylor then removes his hand from the railing,

slightly removes the comb from his hair as if showing it to show it to Officer Ross, and exclaims,

“I just got my [g]oddamn comb.” As Mr. Taylor places his hand back on the railing, he continues,

“I ain’t break no [g]oddamn laws. F***k you!”

        {¶15} Officer Ross then tells Mr. Taylor “Call me and I’ll get your comb. You’re not

allowed back here.” Mr. Taylor can be observed to react to Officer Ross’s statement by turning to

his right while using his right hand to give Officer Ross a dismissive wave. Mr. Taylor then

gestures back to where he was observed picking up the object, and again exclaims that all he did

was get his “[g]oddamn comb,” and then gestures in the other direction, presumably toward the

restricted area, and states, “Don’t act like I just made a [g]oddamn; like I just broke the [g]oddamn

law.”

        {¶16} Officer Ross then radios and says, “bring a summons book, and a print pad if you

think about it.” Mr. Taylor, while looking away from Officer Ross, then states while shifting his

feet, “Punk ass mother***r ain’t got shit else to do.” Mr. Taylor then says to Officer Ross, “Like

you actually doing, stopping a crime. Do your f**ki*g job. All I got is my comb! I’m not over
                                                7


there!” As Mr. Taylor points in the opposite direction from where he retrieved his comb, Officer

Ross raises his arm toward Mr. Taylor, and says “I’m gonna warn you right now * * *.” Mr.

Taylor then cuts off Officer Ross’s statement and asserts in a raised voice, “I can speak! I can

speak! You can’t stop me from speaking!” As he makes these statements, Mr. Taylor appears to

move slightly back from Officer Ross. Officer Ross then says, “I’m gonna tell ya right now * *

*”, but does not complete his sentence because he then responds to Mr. Taylor’s contemporaneous

statement to the woman who had been observing the entire incident to “record this, please because

* * *” by stating that he is recording the encounter. Officer Ross then states, “If you don’t calm

down, I’m gonna arrest you for disorderly conduct.” Mr. Taylor responded by saying, “Disorderly

conduct? F***k you!”

       {¶17} Officer Ross calmly responded “okay,” clicked his pen (presumably in preparation

to write), and asked Mr. Taylor, “What is your first name?” Mr. Taylor then stated in a low, but

firm voice, “I don’t have to give you my name. I did not commit a crime.” At that time Officer

Ross told Mr. Taylor to place his arms behind his back, and that he was under arrest. Mr. Taylor

complied.

       {¶18} Upon review of the record, we agree with Mr. Taylor’s contention that there was

no evidence presented at trial to suggest that he engaged in fighting or that he engaged in

threatening harm to any person or property. Officer Ross described Mr. Taylor’s behavior as

uncooperative and “verbally abusive,” but did not describe Mr. Taylor’s conduct as aggressive or

menacing. Notably, when asked by the prosecutor how Mr. Taylor’s “statements and vulgarity”

affected him, Officer Ross implied that he had not been affected at all. Moreover, a review of the

body-camera footage shows that not only did Mr. Taylor did not make any verbal threats, he also
                                                8


did not make any physical movements the could have been perceived as aggressive or threatening

harm to any person or property.

       {¶19} Therefore, the sole question we must resolve is whether there was sufficient

evidence, viewed in a light most favorable to the state, to show that Mr. Taylor’s behavior was

turbulent. Turbulent behavior, as defined by the Supreme Court of Ohio, is “‘tumultuous

behavior or unruly conduct characterized by violent disturbances or commotion.’” State v.

Dunlop, 9th Dist. Medina No. 17CA0063-M, 2018-Ohio-3525, ¶ 12, quoting State v. Reeder, 18

Ohio St.3d 25, 27 (1985). “[V]ulgar language, when accompanied by aggressive behavior, can

be sufficient for a disorderly conduct conviction based on ‘turbulent behavior.’” Middletown v.

Carpenter, 12th Dist. Butler No. CA2006-01-004, 2006-Ohio-3625, ¶ 17. Vulgar language

alone, however, is not sufficient to support a conviction for disorderly conduct based on

“turbulent behavior.” See Id.

       {¶20} The evidence presented at trial in this case does not show that Mr. Taylor’s use of

profane language toward Officer Ross was accompanied by any conduct characterized by violent

disturbance or commotion. At no time did Officer Ross describe Mr. Taylor’s conduct as violent,

aggressive, or menacing. Moreover, a review of the body-camera footage shows that although Mr.

Taylor’s language toward Officer Ross was vulgar and insulting, and that his voice was raised

much of the time, Mr. Taylor’s body language and tone appear to portray irritation, frustration,

and defensiveness. After Officer Ross stopped Mr. Taylor from leaving, Mr. Taylor remained

standing in one spot and never approached or even gestured toward Officer Ross. Though Mr.

Taylor used his hands to express himself, his gestures were not threatening.
                                                 9


       {¶21} Therefore, after reviewing the record and considering the evidence in a light most

favorable to the prosecution, we conclude that the state did not present sufficient evidence to prove

beyond a reasonable doubt that Mr. Taylor was guilty of disorderly conduct.

       {¶22} Mr. Taylor’s first assignment of error is sustained.

                                     Assignment of Error II

       The trial court committed reversible error by convicting [Taylor] in violation
       of his rights under the First Amendment to the United States Constitution and
       Article I Section 11 of the Ohio Constitution[.]

       {¶23} In his second assignment of error, Mr. Taylor contends that the trial court erred by

convicting him of disorderly conduct in violation of the First Amendment to the United States

Constitution.

       {¶24} We recognize that a person may be charged with disorderly conduct for using words

that “are likely, by their very utterance, to inflict injury or provoke the average person to an

immediate retaliatory breach of the peace.” State v. Hoffman, 57 Ohio St.2d 129, 133 (1979).

However, Mr. Taylor was not charged with violating Akron City Code 132.01(A)(2) for

“recklessly cause[ing] inconvenience, annoyance, or alarm to another by * * * [making]

unreasonable noise or offensively coarse utterance, gesture, or display, or communicating

unwarranted and grossly abusive language to any person[.]”). Instead, Mr. Taylor was charged

with violating Akron City Code 132.01(A)(1), which focuses on a defendant’s conduct rather

than the content of his statements.        The Supreme Court of Ohio has noted that R.C.

2917.11(A)(1), which contains identical language to Akron City Code 132.01(A)(1), “does not

concern the prohibited speech-and-expression portion of the statute contained in subdivision

(A)(2)[,]” which contains identical language to Akron City Code 132.01(A)(2). Reeder, 18 Ohio

St.3d at 26.
                                                10


       {¶25} Regardless, because we determined that Mr. Taylor’s conviction for disorderly

conduct was not based on sufficient evidence, our resolution of Mr. Taylor’s first assignment of

error renders this assignment of error moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶26} Mr. Taylor’s first assignment of error is sustained and his second assignment of

error is moot.

                                                                                 Judgment reversed,
                                                                             and conviction vacated.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                         11


TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

NOAH C. MUNYER, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER, Assistant Director of Law, for
Appellee.
