{¶ 52} I concur with the majority's decision affirming appellant's conviction for disorderly conduct and resisting arrest, but I cannot agree with and must dissent from the majority's analysis in reversing appellant's conviction for obstructing official business.
{¶ 53} Middletown City Ordinance 606.14 provides that:
{¶ 54} "(a) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties."[2]
{¶ 55} The "act" is the first prong of the ordinance and must occur before the element of "purpose" is decided. "Act" refers to the conduct of hampering or impeding lawful duties. See State v.Cobb, Montgomery App. No. 19474, 2003-Ohio-3034, at ¶ 8. The "purpose" related in the ordinance is to prevent, obstruct or delay the performance by a public official of any authorized act within the public official's capacity. Id.
{¶ 56} Appellant specifically targeted the "act" portion of the ordinance, arguing that "doing nothing or refusing to cooperate with law enforcement" was not a violation of the ordinance. The majority apparently agrees with this argument.
{¶ 57} I write to dissent because I believe the majority too narrowly defines the term "act," when they simply require some form of an overt act.
{¶ 58} Black's Law Dictionary, 6th Edition, defines "act" under the subsection criminal act: "* * * an omission or failure to act may constitute an act for the purpose of criminal law." Therefore, "act" could encompass overt acts or acts of omission. *Page 575
{¶ 59} Appellant's decision not to provide any other form of identification or cooperate with the police officers obviously delayed and hampered the officers in their investigation to determine whether appellant was the individual who should be issued a citation.
{¶ 60} While I find that there was an "act" of hampering or impeding lawful duties, it is a close call on whether there was the requisite "purpose." If the majority had presented an analysis finding that no purpose had been shown to prevent, obstruct, or delay by appellant's conduct, a dissent might not be necessary. However, I must respectfully dissent from the majority's decision that simply requires an overt act before it considers the rest of the language of the ordinance.
1. We note that though appellant was convicted of two minor misdemeanor counts of "animals running at large," MCO 618.01 states that the offense is a fourth-degree misdemeanor. Therefore, regardless of R.C. 2935.26(A), Officer Quick could have arrested appellant because he had probable cause to believe appellant committed this fourth-degree misdemeanor offense. See R.C. 2935.03(A).
2. MCO 606.14 is identical to Ohio Revised Code 2921.33(A).