         [Cite as State v. Starks, 2011-Ohio-6118.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NO. C-100763
                                                          TRIAL NO. 10CRB-22370
        Plaintiff-Appellee,                           :
                                                          O P I N I O N.
  vs.                                                 :

ZAKEYA STARKS,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 30, 2011




John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Kevin O.
Donovan, Senior Assistant City Prosecutor, for Plaintiff-Appellee,

Robert R. Hastings, Jr., and Susannah H. Meyer, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Judge.

       {¶1}    Defendant-appellant Zakeya Starks appeals her conviction for

disorderly conduct under R.C. 2917.11(A)(2).

       {¶2}   On July 13, 2010, after receiving several complaints, Cincinnati Police

Officer Jarred Cotton responded to the scene where a large crowd was gathering.

The crowd was upset that an arrest had not yet been made following the death of a

family member of many of those in the crowd. Officer Cotton had been attempting to

keep the crowd of approximately 50 people from blocking streets and sidewalks. As

he was doing so, Starks began shouting. Officer Cotton’s interview with a young man

was interrupted because he could not hear the man over Starks’ yelling. Starks

ignored Officer Cotton’s instructions to quiet down and exit from the street.

       {¶3}   Starks continued shouting. She encouraged others in the crowd to stay

where they were and told them that they did not have to leave. Starks further began

shouting profanities at Officer Cotton. As a result of Starks’ behavior, Officer Cotton

placed her under arrest for disorderly conduct. Following a bench trial, Starks was

found guilty. The trial court imposed a fine of $250 and court costs.

       {¶4}   Starks now appeals. In three assignments of error, she argues that her

conviction for disorderly conduct was not supported by sufficient evidence and was

against the manifest weight of the evidence, and that the trial court abused its

discretion in finding that her words were likely to incite a retaliatory breach of the

peace. As these assignments are related, we address them together. A conviction is

supported by sufficient evidence when, after viewing the probative evidence and all

reasonable inferences in the light most favorable to the prosecution, a rational trier

of fact could have found that all of the elements of the offense had been proved

beyond a reasonable doubt. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485



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                     OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 717. When reviewing the manifest weight of the evidence, this court must

weigh the evidence and consider the credibility of the witnesses to determine

whether the trier of fact lost its way and created a manifest miscarriage of justice.

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

       {¶5}    Starks was convicted of disorderly conduct under R.C. 2917.11(A)(2),

which provides that “[n]o 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 abusive

language to any person.” A defendant may not be convicted under this statute for

words alone, no matter how crude or offensive, unless the words uttered were

fighting words. State v. Hoffman (1979), 57 Ohio St.2d 129, 131, 387 N.E.2d 239.

Such words are those that are likely “by their very utterance, to inflict injury or

provoke the average person to an immediate retaliatory breach of the peace.” Id. at

133.

       {¶6}    The crux of Starks’ arguments in support of her assignments of error is

that she had been punished for exercising her right to free speech, and that the words

she had uttered had not been likely to cause an immediate retaliatory breach of the

peace. We disagree. We must evaluate Starks’ words in the context in which they

were uttered. Here, the police had responded to the scene where a large crowd was

gathering. They had already responded to the same scene earlier in the day. Prior to

Starks’ shouting, the police had been successful in dispersing the crowd. Then Starks

loudly began to encourage those in the emotionally charged crowd to ignore the

police and to continue to gather. The crowd’s compliance began to slow down and

large groups started standing in the street again. Officer Cotton testified that he was

concerned the crowd might become violent and disorderly as a result of Starks’

provocation.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}    Contrary to Starks’ assertion, her words consisted of more than just

obscene epithets directed at the police. State v. Callahan (1989), 48 Ohio App.3d

306, 549 N.E.2d 1230, syllabus. In addition to the uttered profanities, her words

included the blatant encouragement for others to ignore necessary police orders.

Her utterances were likely to encourage the crowd to inflict injury or commit an

immediate retaliatory breach of the peace. Id.

       {¶8}    We are not persuaded by Starks’ argument that those in the crowd had

been unable to hear her utterances. Officer Cotton had testified that, upon arriving

at the scene, he had been initially unable to hear what Starks was shouting. But he

further testified that he later heard her shouting profanities and telling the crowd

that they need not disperse, and that crowd compliance with police orders then

slowed down. We find that the trial court was justified in inferring that Starks’

behavior stopped the crowd from complying with the police. Starks’ conviction for

disorderly conduct under R.C. 2917.11(A)(2) was supported by both the sufficiency

and the weight of the evidence.

       {¶9}    The first, second, and third assignments of error are overruled, and the

judgment of the trial court is, accordingly, affirmed.

                                                                      Judgment affirmed.



DINKELACKER, P.J., and CUNNINGHAM, J, concur.




Please Note:

       The court has recorded its own entry on the date of the release of this opinion.




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