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State of Ohio v. David R. Miller

February 7, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAVID R. MILLER, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: McFarland, P.J.

Cite as State v. Miller,

DECISION AND JUDGMENT

ENTRY

{¶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 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.

{¶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.

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 welldelineated 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).

{ΒΆ8} 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 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, ...


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