[Cite as State v. Miller, 2013-Ohio-691.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                GALLIA COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA4
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
DAVID R. MILLER,               : ENTRY
                               :
    Defendant-Appellant.       : Released: 02/07/13
_____________________________________________________________
                         APPEARANCES:

William D. Conley, Gallipolis, Ohio, for Appellant.

Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.:

        {¶1} David R. Miller appeals his convictions in the Gallipolis

Municipal Court for disorderly conduct, in violation of R.C. 2917.11(A)(2),

and resisting arrest, in violation of R.C. 2921.33(A). Appellant contends:

(1) he was arrested for disorderly conduct without reasonable cause or basis;

(2) because there was no basis for his arrest for disorderly conduct, the trial

court committed prejudicial error in finding him guilty of resisting arrest;

and, (3) the trial court committed prejudicial error in finding him guilty of

disorderly conduct. After reviewing the record, we affirm the trial court’s
Gallia App. No. 12CA4                                                         2


judgment as to the first and second assignments of error. We dismiss

Appellant’s third assignment of error for lack of a final appealable order.

                                       FACTS

      {¶2} On January 6, 2012, Patrolman Adam Barrett and Deputy

Richard Harrison were dispatched to Appellant David R. Miller’s home

upon report of a possible suicide. After knocking on the door and receiving

no response, the officers made entry. Upon entering the residence, the

officers discovered Appellant passed out in his bedroom doorway. Appellant

appeared to be highly intoxicated and was stripped down to his underwear.

No one else appeared to be home to take care of him. Patrolman Barrett

noticed Appellant’s entire body emanated the odor of alcohol. After the

officers awakened Appellant, his eyes were very glassy. He was staring and

unable to focus. He was somewhat unstable when he walked and overall,

appeared extremely impaired. The officers determined Appellant was unable

to care for himself.

      {¶ 3} Deputy Harrison told Appellant he was going to be under

arrest. Appellant said “No” and tried to push through Deputy Harrison.

Appellant began flailing his arms and continued to resist. Eventually the

officers had to carry Appellant outside, one under each arm, as Appellant

refused to walk under his own power.
Gallia App. No. 12CA4                                                        3


       {¶ 4} Appellant was subsequently charged with disorderly conduct

and resisting arrest. The matter came on for a bench trial on March 15,

2012. Appellant’s version of the evening’s events was that he called 911

because he thought he needed a squad. He crawled to the door to unlock it

because he could not stand up. He agreed on cross-examination he could

not provide medical attention to himself at the time he made the call. The

next thing he recalled was looking up and seeing a couple of officers talking

to each other. He could not recall anything they may have said to him or

requests made. He did not recall being disorderly. His last memory of the

incident was waking up in the hospital emergency room.

       {¶ 5} Appellant was found guilty on both charges. He now appeals.

                        ASSIGNMENTS OF ERROR

I.     THE DEFENDANT-APPELLANT WAS ARRESTED WITHOUT
       REASONABLE CAUSE OR BASIS.

II.    WHERE THERE IS INSUFFICIENT BASIS FOR ARREST, THERE
       CAN BE NO CONVICTION FOR RESISTING ARREST, AND
       THEREFORE, THE TRIAL COURT COMMITTED PREJUDICIAL
       ERROR IN FINDING APPELLANT GUILTY OF RESISTING
       ARREST.

III.   THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
       FINDING APPELLANT GUILTY OF DISORDERLY AFTER
       WARNING IN VIOLATION OF OHIO REVISED CODE 2917.11.
Gallia App. No. 12CA4                                                          4


                        ASSIGNMENT OF ERROR ONE

      {¶ 6} Appellant argues he was arrested without reasonable cause or

basis. The substance of his argument seems to be Appellant cannot be

arrested in his own home where he had a right to be. Appellant also

contends the officers did not exercise professional judgment in determining

Appellant’s condition posed a risk of harm to himself. We disagree.

                         A. STANDARD OF REVIEW

      {¶ 7} The Fourth Amendment to the United States Constitution

protects individuals against unreasonable governmental searches and

seizures. See, e. g., Delaware v. Prouse, 440 U.S. 648, 662, 99 S. Ct. 1391,

1400 (1979). “[S]earches conducted outside the judicial process, without

prior approval by judge or magistrate, are, per se unreasonable under the

Fourth Amendment-subject only to a few specifically established and well-

delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.

507 (1967); State v. Riley, 4th Dist. No. 00CA044, 2001-Ohio-2487, 2001

WL 688540 (June 12, 2001).

      {¶ 8} The Supreme Court of Ohio in State v. Applegate, 68 Ohio

St.3d 348, 626 N.E.2 942 (1994), at 944, has held that “[a] warrantless

police entry into a private residence is not unlawful if made upon exigent

circumstances, a ‘specifically established and well-delineated exception’ to
Gallia App. No. 12CA4                                                            5


the search warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88

S. Ct. 507, 514 (1967). ‘The need to protect or preserve *350 life or avoid

serious injury is justification for what would be otherwise illegal absent an

exigency or emergency.’” Mincey v. Arizona, 437 U.S. 385, 392-393, 98 S.

Ct. 2408, quoting Wayne v. United States (C.A.D.C. 1963), 318 F. 2d 205,

212, certiorari denied (1963), 375 U.S. 650, 84 S. Ct. 125. In Wayne, then

federal Court of Appeals Judge Warren Burger explained the reasoning

behind the exigent circumstances exception:

      “[T]he business of policemen and firemen is to act, not to
      speculate or mediate on whether the report is correct. People
      could well die in emergencies if police tried to act with calm
      deliberation of the judicial process.” Wayne at 212.

A warrantless search must be “strictly circumscribed by the exigencies

which justify its initiation.” Terry v. Ohio, 392 U.S. 1, 26, 88 S. Ct. 1868

(1968).

      {¶ 9} In State v. Brown, 99 Ohio St. 3d 323, 2003-Ohio-3931, 792

N.E. 2d 175, the Supreme Court of Ohio held that the Ohio Constitution

provides a greater protection than the Fourth Amendment against

warrantless arrests for minor misdemeanors. State v. Plues, 11th Dist. No.

11-COA-038, 2012-Ohio-2519, ¶ 8. Police officers may briefly detain, but

may not conduct a custodial arrest, or a search incident to that arrest, for a

minor-misdemeanor offense when none of the R.C. 2935.26 exceptions
Gallia App. No. 12CA4                                                         6


apply. Plues, supra at 8; Brown, supra at 25, 792 N.E.2d 175. R.C.

2935.26(A) provides:

             “Notwithstanding any other provision of the Revised
      Code, when a law enforcement officer is otherwise authorized
      to arrest a person for the commission of a minor misdemeanor,
      the officer shall not arrest the person, but shall issue a citation,
      unless one of the following applies:

              1) The offender requires medical care or is unable to
              provide for his own safety.

              2) The offender cannot or will not offer satisfactory
              evidence of his identity.

              3) The offender refused to sign the citation.

              4) The offender has previously been issued a citation for
              the commission of that misdemeanor and has failed to do
              one of the following: * * *.”

                           B. LEGAL ANALYSIS

      {¶ 10} In this case, the officers’ warrantless entry into Appellant’s

home was justified by their reasonable belief that it was necessary to

investigate an emergency. Appellant had placed a 911 call that was

dispatched to them as a “possible suicide.” After knocking at Appellant’s

door, they received no response. The officers’ actions were prudent and

reasonable.

      {¶ 11} Once inside, the officers encountered an individual who was

passed out and appeared highly intoxicated. In rousing Appellant, the
Gallia App. No. 12CA4                                                           7


officers observed he had glassy eyes and the inability to focus. The officers

determined Appellant was unable to care for himself and there was no one at

the home to do so. The duty to arrest a person for disorderly conduct while

intoxicated is necessarily discretionary. Knapp v. Gurish, 44 Ohio App. 3d

58, 541 N.E.2d 121 (8th Dist. 1989). R.C. 2917.11 (B)(2) requires that a

police officer assess the condition of the intoxicated person and determine

whether his condition poses a risk of harm to himself or others. Knapp, at

58. This assessment requires an exercise of professional judgment that is

essential to the proper implementation of the statute. Id. at 58. In State v.

Napier, 2nd Dist. No. 09CA0002, 2010-Ohio-563, 2010 WL 580988, ¶ 15,

the court held:

      “ Addressing the issue of intoxication in the context of the Liquor

Control Act, which prohibits sales of liquor to intoxicated individuals, the

Franklin County Court of Appeals wrote:

      ‘For many years it has been a controverted question as to when
      a person is intoxicated. Different courts have determined
      different standards. We think it a fair statement to say that the
      person claimed to be intoxicated must be so far under the
      influence that his conduct and demeanor are not up to standard.
      We also think it would be fair to say that such conduct or
      demeanor should be reasonably discernible to a person of
      ordinary experience; at least as applicable to this case.’ State ex
      rel. Gutter v. Hawley, 44 N.E.2d 815, 819 (1942).”
Gallia App. No. 12CA4                                                            8


      {¶ 12} In the 2917.11(B)(2) cases, once intoxication has been

determined, an officer must assess the risk of harm. Here, the parties

stipulated at trial Patrolman Barrett was at all times acting as a duly qualified

peace officer. Although his background and experience were not offered

into evidence, the Napier case cited above acknowledges a person of

ordinary experience can reasonably discern another individual’s

intoxication. 2901.01(A)(7) defines “risk” as a “significant possibility, as

contrasted with a remote possibility, that a certain result may occur, or that

certain circumstances may exist.” Westlake v. Majercak, 8th Dist. No.

95123, 2011-Ohio-2261, 2011 WL 1797265, ¶ 10.

      {¶ 13} The 1974 Committee Comment to Am. Sub. H.B. No. 522

states: “It is a violation if [the offender] imbibes too much and, while in

public or with others, becomes offensively noisy, coarse, or aggressive, or

becomes uncontrollably nauseated between the entrée and dessert. It is a

violation if, when alone and drunk or under the influence of drugs, he

attempts a tightrope act on a bridge parapet or curls up to sleep in a doorway

in freezing weather.” State v. Graves, 173 Ohio App. 3d 526, 2007-Ohio-

4904, 879 N.E. 2d 239 at ¶ 20. Macerjak, at ¶ 10, also referenced the above

committee note:

      “Former law merely prohibited being found in a state of
      intoxication, whereas this section is aimed at particular
Gallia App. No. 12CA4                                                          9


      conduct rather than at the condition. Thus, it is not a violation
      of this section for a person to get drunk and pass out in his own
      home, provided he doesn’t unreasonably offend others or pose a
      danger to himself or another person.”

      {¶ 14} We disagree with Appellant’s contentions that he could not be

arrested in his own home and the officers did not exercise professional

discretion in determining he was intoxicated and a risk of harm to himself.

R.C. 2917.11 does not restrict where a violation may be committed.

Moreover, Officer Barrett articulated at trial the factors considered in

determining Appellant was intoxicated and specifically testified the grounds

for arrest were Appellant’s “being intoxicated and unable to care for

himself.” The committee comment referenced above noted it was a

violation to “curl up to sleep on a doorway in freezing weather.” R.C.

2935.26(A)(1) authorizes arrest for a misdemeanor when the offender

requires medical care or is unable to provide for his own safety. Here, the

officers were dispatched to a “possible suicide.” The inference can be made

that Appellant, passed out and smelling strongly of alcohol, had already

attempted suicide. The trial court cited alcohol poisoning as a possible

concern in this case. The officers reasonably exercised professional

judgment in arresting Appellant and initiating the chain of events which led

to his waking up in the hospital emergency room.
Gallia App. No. 12CA4                                                          10


      {¶ 15} We also note the weight of evidence and credibility of

witnesses are issues to be decided by the trier of fact. State v. Dye, 82 Ohio

St. 3d 323, 329, 695 N.E.2d 763 (1998); State v. Frazier, 73Ohio St. 3d 323,

339, 652 N.E.2d 1000 (1995); State v. Williams, 73 Ohio St. 3d 153, 165,

652 N.E. 2d 721 (1995); State v. Vance, 4th Dist. No. 03CA27, 2004-Ohio-

5370, 2004 WL 2260498, ¶ 9. As such, the trier of fact is free to believe all,

part or none of the testimony of each witness who appears before it. See

State v. Long, 127 Ohio App.3d 328, 335, 713 N.E. 2d 1 (4th Dist.1998);

State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist.1993);

State v. Harriston, 63 Ohio App.3d 58, 63, 577 N.E.2d 1144 (8th Dist.1989);

Vance, ¶ 9. We also acknowledge that the trier of fact is in a much better

position than an appellate court to view witnesses and observe their

demeanor, gestures and voice inflections, and to use those observations to

weigh the credibility of the testimony. See Myers v. Garson, 66 Ohio St. 3d

615, 614 N.E. 2d 742 (1993); Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d

77, 80, 461 N.E. 2d 1273 (1984); Vance, ¶ 9. In this matter, the trial court

also did not err by finding Officer Barrett’s testimony credible, and the

officers’ judgment reasonable, especially in light of the fact Appellant could

remember very little about the incident.
Gallia App. No. 12CA4                                                             11


      {¶ 16} For the foregoing reasons, we find the there was a reasonable

basis for Appellant’s arrest. As such, we overrule Appellant’s first

assignment of error.

                        ASSIGNMENT OF ERROR TWO

      {¶ 17} In his second assignment of error, Appellant argues where

there is insufficient basis for an arrest, there can be no conviction for

resisting arrest, and therefore, the trial court committed prejudicial error in

finding Appellant guilty of resisting arrest. R.C. 2921.33, resisting arrest,

provides:

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


      {¶ 18} In State v. Paglia , 62 Ohio Misc. 7, 403 N.E.2d 1216

(C.P.1979), the court stated: “R.C. 2921.33 specifically refers to a ‘lawful’

arrest. This does not require that the defendant be proved guilty of the

offense for which he is arrested, but it does require that the arresting officer

have probable cause to believe that defendant’s conduct for which the arrest

was made amounted to an offense. Coffel v. Taylor, 8 Ohio Op.3d 253,

(D.C.S.D. Ohio 1978).” Id. 62 Ohio Misc. at 10, 403 N.E.2d at 1218. See

Warren v. Patrone, 75 Ohio App.3d 595, 600 N.E.2d 344 (11th Dist. 1991).
Gallia App. No. 12CA4                                                          12


      {¶ 19} Inasmuch as we have already determined there was a

reasonable basis for believing Appellant’s intoxication created a risk of harm

to himself, and for the subsequent arrest, we also find Appellant’s arrest was

lawful. As such, we affirm the trial court’s decision and overrule the second

assignment of error.

                    ASSIGNMENT OF ERROR THREE

      {¶ 20} Appellant next argues the trial court committed prejudicial

error in finding Appellant guilty of disorderly conduct after warning in

violation of R.C. 2917.11. However, because the record reveals the

disorderly conduct charge was not made part of the final sentencing entry,

the entry purporting to dispose of this charge is not final and appealable. As

such, we are without jurisdiction to review this assignment of error.

      {¶ 21} “Ohio courts of appeals possess jurisdiction to review the final

orders of inferior courts within their district.” Portco Inc. v. Eye Specialists,

Inc., 173 Ohio App.3d 108, 2007-Ohio-4403, 877 N.E.2d 709, at ¶ 8, citing

Section 3(B)(2), Article IV, Ohio Constitution and R.C. 2501.02. If a court’s

order is not final and appealable, we have no jurisdiction to review the

matter and must dismiss the appeal. State v. Munion, 4th Dist. No.

12CA3476, 2012-Ohio-4963, ¶ 5, citing Eddie v. Saunders, 4th Dist. No.

07CA7, 2008-Ohio-4755, ¶ 11. If the parties do not raise the jurisdictional
Gallia App. No. 12CA4                                                            13


issue, we must raise it sua sponte. Munion, supra, citing State v. Locke, 4th

Dist. No. 11CA3409, 2011-Ohio-5596, ¶4.

      {¶ 22} In the present matter, there is no sentencing entry for the

disorderly conduct charge. The disorderly conduct charge was filed as

“Gallipolis Municipal Court case number 12 CRB 28B.” The resisting arrest

charge was filed as case number “12 CRB 28A.” The record does not reveal

the cases were ever consolidated. There is a sentence entry dated March 29,

2012 for the resisting arrest charge, but none for the disorderly conduct

charge.

      {¶ 23} To create a final order, the trial court needs to issue one entry

as the final judgment of conviction that sets forth the fact of conviction and

sentence for both charges, along with the judge’s signature and the time

stamp indicating the entry upon the journal by the clerk. See Munion, supra

at ¶ 6; State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d

142,(2011), paragraph one of the syllabus. Here, because there is no

sentencing entry for the disorderly conduct charge, we are without

jurisdiction to review the third assignment of error. As such, we must

dismiss it.

                                              JUDGMENT AFFIRMED IN
                                              PART AND DISMISSED IN
                                              PART.
Gallia App. No. 12CA4                                                          14


                           JUDGMENT ENTRY


    It is ordered that the JUDGMENT BE AFFIRMED IN PART AND
DISMISSED IN PART. Costs herein are to be assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Gallipolis Municipal Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J. & Harsha J: Concur in Judgment and Opinion.


                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland
                              Presiding Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
