[Cite as State v. Hale, 2018-Ohio-1431.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                    Court of Appeals No. OT-17-023

        Appellee                                 Trial Court No. CRB 1601490 A

v.

Jayson Hale                                      DECISION AND JUDGMENT

        Appellant                                Decided: April 13, 2018

                                           *****

        James VanEerten, Ottawa County Prosecuting Attorney, and
        Dina Shenker, Assistant Prosecuting Attorney, for appellee.

        David A. Nacht, for appellant.

                                           *****

        JENSEN, J.

        {¶ 1} This matter is before the court on appeal from the July 31, 2017 judgment of

the Ottawa County Municipal Court finding appellant, Jayson Hale, guilty of disorderly

conduct in violation of R.C. 2917.11(A)(2), a minor misdemeanor. For the reasons that

follow, we affirm the judgment of the Ottawa County Municipal Court.
       {¶ 2} This matter stems from an allegation that while inside a gas station located

in Oak Harbor, Ottawa County, Ohio, on or about October 29, 2016, Hale “used foul

language and gross sexual language in a public place causing annoyance to Lindsey

Huston, an employee of Friendship Sunoco.”

       {¶ 3} At a trial to the bench, the state presented testimony from three witnesses

and a copy of the surveillance tape from a camera inside the Oak Harbor Friendship

Sunoco Gas Station.

       {¶ 4} Eric Parker testified that he is employed as a night shift patrolman with the

Oak Harbor Police Department. Just after 11:30 p.m. on October 28, 2016, Officer

Parker drove his marked patrol car to the Friendship Sunoco Gas Station and went inside.

He was dressed in his regular uniform. Sergeant Couts from the Carroll Township Police

Department arrived at about the same time. He was also dressed in uniform.

       {¶ 5} Officer Parker testified that consistent with their usual routine, he and

Sergeant Couts stood near the coffee area inside the gas station to provide late-night

security as the gas station clerks waited on customers and performed their closing duties.

       {¶ 6} At about 11:45 p.m., Jayson Hale and his wife, Christy Lynn Hale, entered

the station. At the time, Hale was employed by the Ottawa County Sheriff’s office. Hale

was off-duty and dressed in street clothes. Both Officer Parker and Sergeant Couts knew

Hale in his law enforcement capacity, but neither considered him a friend.

       {¶ 7} Seconds after Hale walked into the gas station, Hale loudly asserted, “Fuck

you, Parker.” Officer Parker explained what happened next:




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              Then [Hale] walked to the far back corner, I guess it would be the

       furthest away from me he could get. I heard it again, “Fuck you, Parker.”

       And then I just, I looked at * * * Sergeant Couts, and we kind of just

       looked at each other.

              Then I heard, as he came back towards * * * the front of the store

       where the cashiers are, I heard him say, “Suck my dick, Parker.” Now he’s

       fairly close * * * he looked like through the racks area over the aisle and

       said it again, “Suck my dick, Parker.”

              I didn’t respond to any of them. I was just kind of shocked that was

       happening in a public store, but then he came around the corner to me and I

       told him I didn’t want to talk to him. And I could see that he had been

       drinking. I could smell it. So I didn’t want to talk to him, so I asked him to

       get away from me.

       {¶ 8} After stepping to within three feet of Officer Parker, Hale turned toward the

counter to make a purchase. His wife followed. Officer Parker testified that while

standing at the counter, Hale’s wife pointed her finger at him and yelled “there is two

sides to every story.” As Hale and his wife walked out of the station, Hale yelled

“coward” or “you’re a coward.”

       {¶ 9} Sergeant Joshua Couts’ recollection of what occurred in the gas station just

before midnight on October 28, 2016, was nearly identical to that of Officer Parker.

When asked how “bad” the situation inside the station was, Couts’ explained:




3.
              Well, when [Hale] come over to the second aisle and with the “suck

       my dick, Parker,” * * * I felt like “Okay, he’s looking for us to say

       something or Officer Parker to say something.”

              And the last time he said it and then when he came over, just, I don’t

       know, it was, felt like it was provoking, trying to start something that really

       didn’t need to be started.

       {¶ 10} Sergeant Couts testified that he did not get between Officer Parker and

Hale nor did he think about getting in between the two men. He did however, turn

sideways so that he could see what was going on and “be more prepared if [he] had to

be.”

       {¶ 11} During the time that Hale was walking around the gas station yelling

obscenities towards Officer Parker, there were other customers inside, including a woman

with small children.

       {¶ 12} Lindsey Huston is a sales associate at the Friendship Sunoco gas station.

She was working when Hale and his wife entered the station. Ms. Huston explained that

while she was standing behind the counter, “a couple walked in, and the man went

straight for [Officer] Parker and was being very loud and yelling, and the wife did the

same. So, it was kind of nerve racking and took me very by surprise.” Huston indicated

that Hale’s voice was “very loud” and “enough to fill a room.” When asked what she

was feeling when Hale walked into the station, Ms. Huston explained,




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       I was blown away. * * * I’ve never seen anything like that happen. And

       I’ve been working retail for a while. So seeing someone go straight for an

       officer and not caring who was around and just wanted I mean it was

       almost, it was crazy. I was nervous, especially working at night. Like that

       stuff doesn’t happen and then it did. It scared me.

       {¶ 13} Ms. Huston explained that after Hale and his wife came up to the register,

she “just wanted to get them out” of the gas station as fast as she could. She did not say

anything to Hale or his wife because she was “scared.” She also indicated that after

witnessing the event, she realized that she never wanted to work a shift by herself.

       {¶ 14} Following a bench trial, Hale was found guilty of disorderly conduct and

ordered to pay court costs and serve ten hours in the court’s supervised community

service program. Hale now appeals, assigning one two-part error for our review:

              The elements of the crime of disorderly conduct were not proven

       beyond a reasonable doubt because Defendant-Appellant’s speech did not

       rise to the level of “fighting words” and was protected by the First

       Amendment to the United States Constitution.

              Defendant-Appellant’s conviction for disorderly conduct is in

       violation of the First Amendment to the United States Constitution which

       protects Mr. Hale’s right to speech and free expression.

Hale simultaneously addresses both parts of his sole assignment of error in his brief.

Thus, we address both parts of his sole assignment of error correspondingly.




5.
       {¶ 15} As noted above, the complaint charging Hale with disorderly conduct was

based on allegations he used “foul” and “gross sexual language” to cause annoyance to an

employee of the gas station. R.C. 2917.11(A)(2) provides that no person shall recklessly

cause “inconvenience, annoyance, or alarm to another” by “[m]aking unreasonable noise

or an offensively coarse utterance, gesture, or display or communicating unwarranted and

grossly abuse language to any person.”

       {¶ 16} There is no dispute that Hale’s comments toward Officer Parker were

offensive, unwarranted, and grossly abusive. There is also no dispute that Hale’s

comments recklessly caused annoyance to Ms. Huston. Therefore, the only question

before us is whether Hale’s statements are protected speech under the First Amendment

to the United States Constitution.

       {¶ 17} Previously, in Toledo v. Grince, 48 Ohio App.3d 126, 548 N.E.2d 999 (6th

Dist.1989), we held:

              While the first Amendment to the United States Constitution creates

       the right of free speech (which is made applicable to the states and their

       subdivisions through the Fourteenth Amendment), the exercise of that right

       is narrowly limited under certain circumstances. One situation where pure

       speech can be regulated by criminal statute is where a certain class of

       speech, now commonly known as “fighting words” is involved. The

       rationale behind this limitation on the right to free speech is that where

       words incite an immediate breach of peace, their value as an expression of




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       ideas or truth is outweighed by society’s interests in maintaining order and

       morality * * *. Id. at 128.

       {¶ 18} The Supreme Court of Ohio has held that a person may not be found guilty

of disorderly conduct under subsection (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.” State v. Hoffman, 57 Ohio St.2d 129, 133, 387 N.E.2d

239 (1979), paragraph one of the syllabus. In other words, if an offender’s spoken words

do not rise to the level of “fighting words,” than the offender’s speech is protected by the

First and Fourteenth Amendments to the U.S. Constitution and cannot be punished as a

criminal act. See Cincinnati v. Karlan, 39 Ohio St.2d 107, 314 N.E.2d 162 (1974); see

also In re F.F., 6th Dist. Wood No. WD-16-031, 2016-Ohio-7695, ¶ 12 (“To support a

conviction of disorderly conduct, the words spoken must be ‘fighting words.”); Hoffman,

57 Ohio St.2d 131 (“[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting,

crude, profane or opprobrious spoken words may seem to be their utterance many not be

made a crime unless they are ‘fighting words’ as defined by that tribunal.”).

       {¶ 19} “The test for determining what words constitute ‘fighting words’ is whether

the words used would reasonably incite the average person to retaliate.” Grince at 128.

Further, to constitute “fighting words,” the words chosen must be “used to describe a

person or be directed at a person.” Id. at 126, citing Chaplinsky v. New Hampshire, 315

U.S. 568, 572, 62 S. Ct. 766, 86 L.Ed. 1031 (1942). In State v. Wood, 112 Ohio App.3d

621, 679 N.E.2d 735 (11th Dist.1996), the court held, “[t]o tell anyone, including a police




7.
officer, “fuck you,” either verbally or via an extended digit, may indeed constitute

‘fighting words’ depending on the circumstances.” Id. at 628.

       {¶ 20} Here, Hale repeated obscene remarks, all of which were directly addressed

to Officer Parker. After making the remarks, Hale approached Officer Parker in a

manner that Sergeant Couts described as Hale “provoking” Officer Parker and “trying to

start something that really didn’t need to be started.” Given the circumstances of this

case, we find that the trial court did not err in finding Hale guilty of disorderly conduct.

Hale’s obscene remarks, directed toward Officer Parker, in the manner described would

reasonably incite the average person to retaliate. Thus, Hale’s words constitute “fighting

words” and are not protected by the First and Fourteenth Amendment to the U.S.

Constitution. Accordingly, Hale’s sole assignment of error is not well-taken.

                                         Conclusion

       {¶ 21} For the reasons set forth above, the judgment of the Ottawa County

Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                          Judgment affirmed.




8.
                                                               State v. Hale
                                                               C.A. No. OT-17-023




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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