COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67594 CITY OF MAYFIELD HTS. : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : GEORGE RHODES : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from South Euclid Municipal Court, Case No. 94-CRB26A&B. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: GEORGE J. ARGIE JAMES A. DRAPER, Cuyahoga Mayfield Village Prosecutor County Public Defender DOMINIC J. VITANTONIO ELISE HARA, Assistant Public 6571 Wilson Mills Road Defender Mayfield Village, Ohio 44143 Marion Bldg., Rm. 307 1276 West Third Street Cleveland, Ohio 44113 GEORGE H. RHODES, pro se 6503 Marsol Road, No. 148 Mayfield Heights, OH 44124 -2- SWEENEY, J.: Defendant-appellant George Rhodes appeals his conviction for disrupting a lawful meeting, in violation of Mayfield Heights Codified Ordinance 547.05, and resisting arrest, in violation of Mayfield Heights Codified Ordinance 505.16. The appellant was sentenced to a term of incarceration of ten days, and fined $250.00 for disrupting a lawful meeting. The appellant was sentenced for resisting arrest to a term of incarceration of ten days, and fined $350.00. The court suspended the terms of incarceration, and suspended $500.00 of the total fine. The appellant was also placed on two years inactive probation, and ordered to perform twenty- five hours of community service. On November 22, 1993, the appellant attended a regularly scheduled meeting of the Mayfield Heights City Council. At the close of the public portion of the meeting the city council announced they were proceeding to an executive session. The public was asked to leave, and everyone save the appellant complied with the request. The appellant indicated that he would rather be arrested than leave. The police officers who were present at the scene personally requested the appellant leave and advised him that he would be arrested if he persisted in his refusal. The appellant was then placed under arrest because his refusal to leave council chambers prevented the city council from continuing with their executive session. The appellant slumped to the floor and the -3- officers were forced to physically carry him from council chambers. The appellant sets forth five assignments of error. The appellant's first assignment of error: MR. RHODES' RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIMINAL RULE 29 ACQUIT- TAL WHEN HIS CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE. The appellant presents three separate arguments in this assignment of error. First, the appellant contends that since city council failed to follow the statutory requirements for entering an executive session, he could not be required to leave the council chambers. Since he was lawfully present, the appellant asserts that his arrest was unlawful. Second, the appellant contends that the City failed to present evidence that a lawful meeting was held because no witnesses were called who were qualified to testify as to whether or not city council followed proper procedures to enter an executive session. Finally, the appellant asserts that the City failed to present evidence that any disruption of a lawful meeting was substantial. The City argues that the weight assigned by the appellant to the phrase "lawful meeting" in the ordinance is disproportionate. The City argues, and the trial court held, that the term "lawful meeting" should be defined as a formal meeting of a public body as opposed to a casual gathering; and that whether or not the formalities of the Sunshine Law was strictly followed is not the determining factor as to whether or -4- not a meeting is a "lawful meeting." The City also asserts that there was evidence presented that council was entering a lawful meeting, and that it was clear that the appellant's specific intention was to interfere with the executive session, and that this constitutes a substantial disruption. Mayfield Heights Codified Ordinance 547.05, disturbing a lawful meeting, states: (A) No person, with purpose to prevent or disrupt a lawful meeting, procession, or gathering, shall do either of the following: (1) Do any act which obstructs or interferes with the due conduct of such meeting, procession, or gathering; (2) Make any utterance, gesture, or display which outrages the sensibilities of the group. The legislature of Ohio has passed a Sunshine Law, R.C. 121.22, which requires defines the word meeting as follows: (B) As used in this section: * * * (2) "Meeting" means any prearranged discussion of the public business of the public body by a majority of its members. At trial, the court heard testimony from Police Chief Thomas Slivers that the meeting conducted was a regularly scheduled meeting, and that regular council business was conducted (T. 54, 55). Lieutenant Thomas Principe also testified that this was a regularly scheduled meeting (T. 78). This testimony was unre- butted. The definition of meeting is quite clear in R.C. -5- 121.22(B)(2), a meeting need only be a prearranged discussion by the council of public business. The trial court correctly read the definition of meeting as established by the state legislature and the city ordinance in conjunction. The court did not err in its interpretation that the word "lawful" as used in Mayfield Heights Codified Ordinance 547.05 indicates a formal meeting as opposed to an informal gathering. Since the court heard testimony that just such a meeting was conducted, sufficient evidence was presented to support the appellant's conviction. The appellant's argument that the City failed to present evidence that the disruption of the meeting was substantial is also not well taken. The requirement of a substantial disruption was discussed by the Supreme Court in State v. Schwing (1975), 42 Ohio St.2d 295, where the court interpreted a previously repealed state statute regarding disturbing a lawful assembly. The repealed statute and the ordinance under consideration are significantly different. The city council which enacted Mayfield Heights Codified Ordinance 547.05 did not place such a requirement in the ordinance and the appellant does not argue that it did. The appellant does not argue the ordinance is vague, overbroad or in any way unconstitutional. Since the appellant was convicted under an ordinance which makes no requirement that a disruption be "substantial," the court did not err in refusing to grant a dismissal where the prosecution arguably failed to present specific evidence on a non-existing element. -6- The appellant's first assignment of error is overruled. The second assignment of error: MR. RHODES' RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE COURT REFUSED ADMISSION OF HIS VIDEOTAPE. The appellant argues that the court erred when it failed to permit a videotape of the events leading up to his arrest into evidence. The appellant states that the tape would have shown the jury that city council did not properly enter executive session, and that he therefore was within his rights to refuse to leave council chambers. The appellant also points out that he appeared before the court pro se and that he did not waive the admission of the tape; rather the admission of the tape was waived by counsel who was appointed to assist him with his defense. At trial, it became clear that although the prosecution had requested discovery and knew a tape was in existence, the appellant failed to inform the City that he would use the tape as evidence. In effect, the prosecution had been afforded no opportunity to review the tape prior to trial. The court stated that its own recollection of the discussion at the pretrial did not include a statement by the appellant that this tape would be offered as evidence. Although the court prohibited the appellant from offering the tape as evidence the tape was proffered by the appellant. The trial court's refusal to permit the appellant to show -7- the videotape to the jury was not prejudicial error. The appellant states that the tape would illustrate that the city council has not properly entered an executive session. In the first assignment of error, this court affirmed the trial court's determination that council's failure to follow the Sunshine Law in every technicality is not the determining factor as to whether or not the meeting was a "lawful meeting." Since the tape would have merely supported an irrelevant argument, the court did not err in refusing its admission. The second assignment of error is not well taken. The third assignment of error: MR. RHODES WAS DENIED A FAIR TRIAL WHEN THE COURT ERRED IN GRANTING PROSECUTOR'S MOTION IN LIMINE PREVENTING MR. RHODES FROM PRESENTING A DEFENSE TO R.C. 2917.12 AND R.C. 2921.33. The appellant argues that the court erred when it granted the motion in limine filed by the prosecution. The City argues that the trial court granted the motion in part and denied the motion in part. Both argue that the controlling case is Kalk v. Village of Woodmere (1985), 27 Ohio App.3d 145. The city filed a motion in limine requesting that the court prohibit the appellant from mentioning, referring to, arguing or putting into issue whether or not the November 22, 1993 meeting of the Mayfield City Council was lawful or not. At trial, the court denied the motion and stated: Therefore, based on what I was able to review and my thoughtful analysis of this issue under the ordinance and the review of some case law and Ohio Revised Code 121.22, this is what my ruling will -8- be. That a lawful meeting under Ordinance 547.05 of the Codified Ordinances of the City of Mayfield Heights means a formal meeting of a public body, the public body of which is authorized by law at its customary time and place for such meeting as opposed to a casual gathering of public officials at a time and place different from its customary time and place. Second, it is no defense to a charge under Ordinance 547.97 -- .05 of the Codified Ordinances of the City of Mayfield Heights that the public body was doing something illegal or improper; and third, it is no defense to a charge under Ordinance 547.05 that the public meeting was not convened pursuant to a majority vote of a quorum of the public body by a roll call vote. Therefore, what this means is that my original ruling denying the prosecutor's motion in limine was correct, in that lawfulness is an element of the offense. But it means simply to show evidence which is up to the jury to decide if they believe it, that this was a formal meeting of City Council. City Council being a body that is authorized under the charters of Mayfield Heights and the laws of Mayfield Heights, and it was a meeting held generally at its customary time and place. There is evidence of all of that, and that is the type of lawful that we're talking about in the element of the ordinance. But it is not a defense to that, to charge under disturbing or preventing a lawful meeting, that that meeting was not con- veyed in accordance with the requirements of Ohio Revised Code 122. -- 121.22 with regard to roll call vote. Therefore, any further evidence or testimony with regard to whether or not there was a roll call vote or as to what the executive committee intended to or did in fact rule upon, whether it was legal or illegal is irrelevant, and therefore will be inadmissible. (T. 139-141.) The grant or denial of a motion in limine within the court's inherent power and discretion to control the proceedings. State -9- v. Horton (March 23, 1995), Cuyahoga App. No. 66943, unreported. An abuse of discretion occurs when the trial court's attitude is arbitrary, unreasonable or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. As stated in the previous assignment of error, the appellant proffered the videotape as evidence. See State v. Grubb (1986), 28 Ohio St.3d 199. The trial court's ruling on the appellee's motion in limine did not constitute an abuse of discretion. Although the appellant states that the tape would illustrate that the city council has not properly entered an executive session, as this court held in the first assignment of error, this argument is irrelevant. The trial judge correctly determined that council's failure to follow the Sunshine Law in every technicality is not the determining factor as to whether or not the meeting was a "lawful meeting." The appellant's third assignment of error is overruled. The fourth assignment of error: THE JUDGE ERRED IN FAILING TO INSTRUCT THE JURY THAT ONLY SUBSTANTIAL INTERFERENCE IS A VIOLATION OF R.C. 2917.12, AND BY FAILING TO DEFINE THE TERMS "PREVENT" AND "DISRUPT." The appellant argues that the trial court erred in failing to instruct the jury that as to the definition of "substantial." The appellant continues to argue that substantial impairment is an element of disrupting a lawful meeting. As previously stated, the Supreme Court's decision in Schwing, supra, interpreted a repealed statute and is therefore -10- not pertinent to the ordinance under which the appellant was convicted. In addition, the appellant failed to properly place his objection before the judge at trial, see State v. Underwood (1983), 3 Ohio St.3d 12. The fourth assignment of error is overruled. The appellant's fifth assignment of error: MR. RHODES' RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIMINAL RULE 29 ACQUITTAL WHERE THE PROSECUTION HAS NOT SATISFIED THE ELEMENTS OF A LAWFUL ARREST, AND THEREFORE HIS CONVICTION FOR RESISTING ARREST IS NOT SUPPORTED BY SUFFICIENT EVIDENCE. The appellant asserts that the City failed to present suffi- cient evidence upon which to convict him of resisting arrest. The appellant argues that an arrest is lawful only if the surrounding circumstances would give a reasonable police officer cause to believe an offense has been or is being committed. Resisting arrest is defined in by Mayfield Heights Codified Ordinance 505.16 as follows: (A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another. In Garfield Heights v. Simpson (1992), 82 Ohio App.3d 286, this court held: As to the element of a "lawful arrest," we further note that it is incumbent upon the state to prove as an element of the offense that the arrest was lawful. Strongsville v. Waiwood (1989), 62 Ohio App.3d 521, 524, 577 N.E.2d 63, 64; State v. Johnson (1982), 6 Ohio App.3d 56, 58, 6 OBR 268, 270, 453 N.E.2d 1101, 1103; State v. Clay (1988), 43 Ohio Misc.2d 5, 6, 539 N.E.2d -11- 1168, 1169. In determining the lawfulness of an arrest, the elements of an underlying offense need not be proven, but there must exist a "reasonable basis" for the arrest. Id., State v. Johnson, supra. That is, conduct which does not amount to an offense beyond a reasonable doubt may supply the officers with a reasonable basis for the arrest. State v. Kirchner (1984), 19 Ohio Misc.2d 7, 8, 19 OBR 183, 185, 483 N.E.2d 497, 499. The "reasonable basis" test considers whether a reasonable police officer under similar cir- cumstances would have concluded that the defendant committed a crime suitable for arrest. Id. Here, it is clear that the police officers present at the scene had a reasonable basis for the arrest. The officers reasonably concluded that the appellant was disrupting a lawful meeting in violation of Mayfield Heights Codified Ordinance 547.05. The evidence in the record reveals that the appellant, with the purpose to prevent or disrupt a lawful meeting, acted in such a manner as to obstruct or interfere with the conduct of the meeting. The fifth assignment of error is not well taken. Judgment affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the South Euclid 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 Rule of Appellate Procedure. LEO M. SPELLACY, P.J., and DAVID T. MATIA, J., CONCUR ______________________________ JAMES D. SWEENEY, JUDGE 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 journalization, .