[Cite as State v. Miller, 2013-Ohio-691.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

GALLIA COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 12CA4 

 : 

 vs. : 

 : DECISION AND JUDGMENT 

DAVID R. MILLER, : ENTRY

 : 

 Defendant-Appellant. : Released: 02/07/13 

_____________________________________________________________ 

APPEARANCES:

William D. Conley, Gallipolis, Ohio, for Appellant. 

Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, P.J.: 

{¶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 
Gallia App. No. 12CA4 2

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. 
Gallia App. No. 12CA4 3

{¶ 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. 
Gallia App. No. 12CA4 4

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). 

{¶ 8} 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 
Gallia App. No. 12CA4 5

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, certiorari denied (1963), 375 U.S. 650, 84 S. Ct. 125. In Wayne, then 

federal Court of Appeals Judge Warren Burger explained the reasoning 

behind the exigent circumstances exception: 

“[T]he business of policemen and firemen is to act, not to 

speculate or mediate on whether the report is correct. People 

could well die in emergencies if police tried to act with calm 

deliberation of the judicial process.” Wayne at 212. 

A warrantless search must be “strictly circumscribed by the exigencies 

which justify its initiation.” Terry v. Ohio, 392 U.S. 1, 26, 88 S. Ct. 1868 

(1968). 

{¶ 9} In State v. Brown, 99 Ohio St. 3d 323, 2003-Ohio-3931, 792 

N.E. 2d 175, the Supreme Court of Ohio held that the Ohio Constitution 

provides a greater protection than the Fourth Amendment against 

warrantless arrests for minor misdemeanors. State v. Plues, 11th Dist. No. 

11-COA-038, 2012-Ohio-2519, ¶ 8. Police officers may briefly detain, but 

may not conduct a custodial arrest, or a search incident to that arrest, for a 

minor-misdemeanor offense when none of the R.C. 2935.26 exceptions 
Gallia App. No. 12CA4 6

apply. Plues, supra at 8; Brown, supra at 25, 792 N.E.2d 175. R.C. 

2935.26(A) provides: 

 “Notwithstanding any other provision of the Revised 

Code, when a law enforcement officer is otherwise authorized 

to arrest a person for the commission of a minor misdemeanor, 

the officer shall not arrest the person, but shall issue a citation, 

unless one of the following applies: 

 1) The offender requires medical care or is unable to 

 provide for his own safety. 

 2) The offender cannot or will not offer satisfactory 

 evidence of his identity. 

 3) The offender refused to sign the citation. 

 4) The offender has previously been issued a citation for 

 the commission of that misdemeanor and has failed to do 

 one of the following: * * *.” 

B. LEGAL ANALYSIS 

{¶ 10} In this case, the officers’ warrantless entry into Appellant’s 

home was justified by their reasonable belief that it was necessary to 

investigate an emergency. Appellant had placed a 911 call that was 

dispatched to them as a “possible suicide.” After knocking at Appellant’s 

door, they received no response. The officers’ actions were prudent and 

reasonable. 

{¶ 11} Once inside, the officers encountered an individual who was 

passed out and appeared highly intoxicated. In rousing Appellant, the 
Gallia App. No. 12CA4 7

officers observed he had glassy eyes and the inability to focus. The officers 

determined Appellant was unable to care for himself and there was no one at 

the home to do so. The duty to arrest a person for disorderly conduct while 

intoxicated is necessarily discretionary. Knapp v. Gurish, 44 Ohio App. 3d 

58, 541 N.E.2d 121 (8th Dist. 1989). R.C. 2917.11 (B)(2) requires that a 

police officer assess the condition of the intoxicated person and determine 

whether his condition poses a risk of harm to himself or others. Knapp, at 

58. This assessment requires an exercise of professional judgment that is 

essential to the proper implementation of the statute. Id. at 58. In State v. 

Napier, 2nd Dist. No. 09CA0002, 2010-Ohio-563, 2010 WL 580988, ¶ 15, 

the court held: 

“ Addressing the issue of intoxication in the context of the Liquor 

Control Act, which prohibits sales of liquor to intoxicated individuals, the 

Franklin County Court of Appeals wrote: 

‘For many years it has been a controverted question as to when 

a person is intoxicated. Different courts have determined 

different standards. We think it a fair statement to say that the 

person claimed to be intoxicated must be so far under the 

influence that his conduct and demeanor are not up to standard. 

We also think it would be fair to say that such conduct or 

demeanor should be reasonably discernible to a person of 

ordinary experience; at least as applicable to this case.’ State ex 

rel. Gutter v. Hawley, 44 N.E.2d 815, 819 (1942).” 
Gallia App. No. 12CA4 8

{¶ 12} In the 2917.11(B)(2) cases, once intoxication has been 

determined, an officer must assess the risk of harm. Here, the parties 

stipulated at trial Patrolman Barrett was at all times acting as a duly qualified 

peace officer. Although his background and experience were not offered 

into evidence, the Napier case cited above acknowledges a person of 

ordinary experience can reasonably discern another individual’s 

intoxication. 2901.01(A)(7) defines “risk” as a “significant possibility, as 

contrasted with a remote possibility, that a certain result may occur, or that 

certain circumstances may exist.” Westlake v. Majercak, 8th Dist. No. 

95123, 2011-Ohio-2261, 2011 WL 1797265, ¶ 10. 

{¶ 13} The 1974 Committee Comment to Am. Sub. H.B. No. 522 

states: “It is a violation if [the offender] imbibes too much and, while in 

public or with others, becomes offensively noisy, coarse, or aggressive, or 

becomes uncontrollably nauseated between the entrée and dessert. It is a 

violation if, when alone and drunk or under the influence of drugs, he 

attempts a tightrope act on a bridge parapet or curls up to sleep in a doorway 

in freezing weather.” State v. Graves, 173 Ohio App. 3d 526, 2007-Ohio4904, 879 N.E. 2d 239 at ¶ 20. Macerjak, at ¶ 10, also referenced the above 

committee note: 

“Former law merely prohibited being found in a state of 

intoxication, whereas this section is aimed at particular 
Gallia App. No. 12CA4 9

conduct rather than at the condition. Thus, it is not a violation 

of this section for a person to get drunk and pass out in his own 

home, provided he doesn’t unreasonably offend others or pose a 

danger to himself or another person.” 

{¶ 14} We disagree with Appellant’s contentions that he could not be 

arrested in his own home and the officers did not exercise professional 

discretion in determining he was intoxicated and a risk of harm to himself. 

R.C. 2917.11 does not restrict where a violation may be committed. 

Moreover, Officer Barrett articulated at trial the factors considered in 

determining Appellant was intoxicated and specifically testified the grounds 

for arrest were Appellant’s “being intoxicated and unable to care for 

himself.” The committee comment referenced above noted it was a 

violation to “curl up to sleep on a doorway in freezing weather.” R.C. 

2935.26(A)(1) authorizes arrest for a misdemeanor when the offender 

requires medical care or is unable to provide for his own safety. Here, the 

officers were dispatched to a “possible suicide.” The inference can be made 

that Appellant, passed out and smelling strongly of alcohol, had already 

attempted suicide. The trial court cited alcohol poisoning as a possible 

concern in this case. The officers reasonably exercised professional 

judgment in arresting Appellant and initiating the chain of events which led 

to his waking up in the hospital emergency room. 
Gallia App. No. 12CA4 10

{¶ 15} We also note the weight of evidence and credibility of 

witnesses are issues to be decided by the trier of fact. State v. Dye, 82 Ohio 

St. 3d 323, 329, 695 N.E.2d 763 (1998); State v. Frazier, 73Ohio St. 3d 323, 

339, 652 N.E.2d 1000 (1995); State v. Williams, 73 Ohio St. 3d 153, 165, 

652 N.E. 2d 721 (1995); State v. Vance, 4th Dist. No. 03CA27, 2004-Ohio5370, 2004 WL 2260498, ¶ 9. As such, the trier of fact is free to believe all, 

part or none of the testimony of each witness who appears before it. See 

State v. Long, 127 Ohio App.3d 328, 335, 713 N.E. 2d 1 (4th Dist.1998); 

State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist.1993); 

State v. Harriston, 63 Ohio App.3d 58, 63, 577 N.E.2d 1144 (8th Dist.1989); 

Vance, ¶ 9. We also acknowledge that the trier of fact is in a much better 

position than an appellate court to view witnesses and observe their 

demeanor, gestures and voice inflections, and to use those observations to 

weigh the credibility of the testimony. See Myers v. Garson, 66 Ohio St. 3d 

615, 614 N.E. 2d 742 (1993); Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 

77, 80, 461 N.E. 2d 1273 (1984); Vance, ¶ 9. In this matter, the trial court 

also did not err by finding Officer Barrett’s testimony credible, and the 

officers’ judgment reasonable, especially in light of the fact Appellant could 

remember very little about the incident. 
Gallia App. No. 12CA4 11

{¶ 16} For the foregoing reasons, we find the there was a reasonable 

basis for Appellant’s arrest. As such, we overrule Appellant’s first 

assignment of error. 

ASSIGNMENT OF ERROR TWO 

 {¶ 17} In his second assignment of error, Appellant argues where 

there is insufficient basis for an arrest, there can be no conviction for 

resisting arrest, and therefore, the trial court committed prejudicial error in 

finding Appellant guilty of resisting arrest. R.C. 2921.33, resisting arrest, 

provides: 

(A) No person, recklessly or by force, shall resist or interfere with a 

lawful arrest of the person or another. 

{¶ 18} In State v. Paglia , 62 Ohio Misc. 7, 403 N.E.2d 1216 

(C.P.1979), the court stated: “R.C. 2921.33 specifically refers to a ‘lawful’ 

arrest. This does not require that the defendant be proved guilty of the 

offense for which he is arrested, but it does require that the arresting officer 

have probable cause to believe that defendant’s conduct for which the arrest 

was made amounted to an offense. Coffel v. Taylor, 8 Ohio Op.3d 253, 

(D.C.S.D. Ohio 1978).” Id. 62 Ohio Misc. at 10, 403 N.E.2d at 1218. See 

Warren v. Patrone, 75 Ohio App.3d 595, 600 N.E.2d 344 (11th Dist. 1991). 
Gallia App. No. 12CA4 12

{¶ 19} Inasmuch as we have already determined there was a 

reasonable basis for believing Appellant’s intoxication created a risk of harm 

to himself, and for the subsequent arrest, we also find Appellant’s arrest was 

lawful. As such, we affirm the trial court’s decision and overrule the second 

assignment of error. 

ASSIGNMENT OF ERROR THREE 

{¶ 20} Appellant next argues the trial court committed prejudicial 

error in finding Appellant guilty of disorderly conduct after warning in 

violation of R.C. 2917.11. However, because the record reveals the 

disorderly conduct charge was not made part of the final sentencing entry, 

the entry purporting to dispose of this charge is not final and appealable. As 

such, we are without jurisdiction to review this assignment of error. 

{¶ 21} “Ohio courts of appeals possess jurisdiction to review the final 

orders of inferior courts within their district.” Portco Inc. v. Eye Specialists, 

Inc., 173 Ohio App.3d 108, 2007-Ohio-4403, 877 N.E.2d 709, at ¶ 8, citing 

Section 3(B)(2), Article IV, Ohio Constitution and R.C. 2501.02. If a court’s 

order is not final and appealable, we have no jurisdiction to review the 

matter and must dismiss the appeal. State v. Munion, 4th Dist. No. 

12CA3476, 2012-Ohio-4963, ¶ 5, citing Eddie v. Saunders, 4th Dist. No. 

07CA7, 2008-Ohio-4755, ¶ 11. If the parties do not raise the jurisdictional 
Gallia App. No. 12CA4 13

issue, we must raise it sua sponte. Munion, supra, citing State v. Locke, 4th 

Dist. No. 11CA3409, 2011-Ohio-5596, ¶4. 

{¶ 22} In the present matter, there is no sentencing entry for the 

disorderly conduct charge. The disorderly conduct charge was filed as 

“Gallipolis Municipal Court case number 12 CRB 28B.” The resisting arrest 

charge was filed as case number “12 CRB 28A.” The record does not reveal 

the cases were ever consolidated. There is a sentence entry dated March 29, 

2012 for the resisting arrest charge, but none for the disorderly conduct 

charge. 

{¶ 23} To create a final order, the trial court needs to issue one entry 

as the final judgment of conviction that sets forth the fact of conviction and 

sentence for both charges, along with the judge’s signature and the time 

stamp indicating the entry upon the journal by the clerk. See Munion, supra 

at ¶ 6; State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d 

142,(2011), paragraph one of the syllabus. Here, because there is no 

sentencing entry for the disorderly conduct charge, we are without 

jurisdiction to review the third assignment of error. As such, we must 

dismiss it. 

JUDGMENT AFFIRMED IN 

PART AND DISMISSED IN 

PART. 
Gallia App. No. 12CA4 14

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED IN PART AND 

DISMISSED IN PART. Costs herein are to be assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Gallipolis Municipal Court to carry this judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Kline, J. & Harsha J: Concur in Judgment and Opinion. 

 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland 

Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.