COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61192, 61193 CITY OF PARMA : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DOROTHY MALINISH : ANDREW MALINISH : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court Case No. 90-CR-B 2701 & 90-CR-B-2700 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: CHRISTOPHER J. BOYKO, ESQ. GARY H. LEVINE, ESQ. CHIEF PROSECUTOR 1200 Illuminating Building BY: DAVID W. TOETZ 55 Public Square ASSISTANT PROSECUTOR Cleveland, Ohio 44113 CITY OF PARMA 5750 West 54th Street Parma, Ohio 44129 - 1 - DYKE, J.: Appellants, Dorothy and Andrew Malinish, were convicted of disorderly conduct, Parma Ordinance 648.04, and resisting arrest, Parma Ordinance 606.16, and both were fined one hundred dollars on each count. On appeal appellants assign two errors for review. I THE COURT ERRED IN EXCLUDING EVIDENCE OF APPELLANT DOROTHY MALINISH'S EMERGENCY ROOM TREATMENT AT PARMA COMMUNITY HOSPITAL. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid R. 401. Dorothy Malinish attempted to introduce records to show that she received treatment at an emergency room for injuries she says she suffered when the arresting officer allegedly grabbed her by the throat and pushed her head back. There was no contention that this alleged behavior on the part of the officer caused the conduct construed to be disorderly and resisting arrest. It was not relevant and was properly excluded. Assignment of error No. I is overruled. II THE COURT ERRED TO THE PREJUDICE OF THE APPELLANTS IN OVERRULING THE MOTIONS FOR JUDGMENT OF ACQUITTAL MADE AT THE CONCLUSION OF THE CITY'S CASE PURSUANT TO CRIMINAL RULE - 2 - 29(A) AND FURTHER IN OVERRULING THE JOINT MOTION FOR JUDGMENT OF ACQUITTAL MADE PURSUANT TO CRIMINAL RULE 29(C) AFTER VERDICT. Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclu- sions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261 (syllabus). Officer Michael Farinacci testified as follows: on October 6, 1990 he responded to a complaint about noise from a bar next to a private home. When he arrived in his cruiser the area was quiet but someone in the house shouted at him, "What the hell are the f------ bar down already. You ain't doing your f------ job. You guys are acting like assholes." (Tr. 70.) She hit the top of his cruiser. (Tr. 71.) Andrew Malinish said, "You're a f------ asshole" and kicked the side of the cruiser. (Tr. 72.) Farinacci told Andrew that was enough and Andrew said "F--- you" and hit the cruiser with his hand. Farinacci got out of his cruiser while Andrew walked away and when he asked Andrew to come back Andrew again said, "F--- you" and kept walking. (Tr. 72-73.) When Farinacci told Andrew he was under arrest for disorderly conduct Andrew repeated the remark and Farinacci took him by the arm but Andrew said he wasn't going and moved his body to prevent being cuffed. (Tr. 73-74.) Dorothy hit Farinacci in the left side - 3 - of his neck, pulled his coat and grabbed his neck but he pushed her away, cuffed Andrew and radioed for backup. (Tr. 74-75.) Dorothy walked away and when Farinacci told her to come back because she was under arrest for assault and resisting the arrest of her husband she said, "F--- you" and he grabbed her by the arm. (Tr. 75 & 77.) Lori Monzy, a patron still inside the bar, testified as follows: Dorothy said to the officer in the cruiser, "I can't believe you can't close this f------ bar" and smacked the car. (Tr. 6.) Andrew kicked the cruiser. (Tr. 13.) On cross- examination she agreed that her written statement said that Dorothy "smacked" the officer but she did not testify to that at trial. She explained that the blow Dorothy delivered looked as if it hit the officer but she discovered later that it hit the cruiser. (Tr. 16 and 20.) Peter Sadivnychy, a bystander, testified as follows: He observed Andrew walk up to the cruiser and walk away. The officer then jumped out and said, "You're under arrest." (Tr. 24.) The man continued walking and the officer took him by the arm, put his arm behind his back and leaned him against a car. (Tr. 25.) Dorothy grabbed the officer from behind and pulled, saying, "Leave him alone. Get away from him." (Tr. 26.) The officer told her she was under arrest and she walked away but the officer caught up with her. (Tr. 26.) On re-direct examination he recalled that Andrew had sworn at the officer. (Tr. 47.) - 4 - Andrew Malinish denied everything except accidentally hitting the cruiser with his hand. (Tr. 161.) Dorothy Malinish also denied everything and accused Farinacci of grabbing her by the throat and pushing her head back. (Tr. 229.) She said she went to the hospital to be treated (Tr. 230) and her daughter confirmed that fact (Tr. 201). Parma ordinances 648.04 and 606.16 are the same as R.C. 2917.11, disorderly conduct, and 2921.33, resisting arrest, which state as follows (in pertinent part): (A) No person shall recklessly cause inconvenience, annoyance, or alarm to another, by doing any of the following: ... (2) Making unreasonable noise or offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person; ... (5) Creating a condition which is physically offensive to persons or which presents a risk of physical harm to persons or property, by any act which serves no lawful and reasonable purpose of the offender. ... (A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another. - 5 - Farinacci testified that Andrew and Dorothy Malinish struck his cruiser and that Dorothy Malinish struck him. Sadivnychy may not have seen the entire incident. There was no need to prove either appellant caused physical harm to the cruiser when they created a condition which presented a risk of physical harm to persons or property by an act which served no lawful and reason- able purpose of either. (R.C. 2917.11(A)(5).) Sadivnchy corroborated Farinacci's testimony concerning Andrew's resistance and Dorothy's resistance in the arrest of Andrew. Assignment of error No. II is overruled. The convictions are affirmed. - 6 - It is ordered that appellee and appellants shall split the costs herin. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Parma Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, AND JAMES D. SWEENEY, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .