I respectfully disagree with the majority in this case. R.C.2917.11(B)(1) requires a nexus between the voluntary intoxication and the conduct. The Committee Comment to R.C.2917.11 explains this nexus requirement:
"The gist of the second part of the section is being intoxicated, and in a public place or while in the presence of others, engaging in conduct which the offender knows or should know is offensive, or else in public or private doing any act or creating any condition hazardous to the offender or another. Former law merely prohibited being found in a state of intoxication, whereas this section is aimed at particular conduct rather than at the condition. * * * *Page 162
"The intoxication portion of this section is, in part, intended as a device for taking intoxicated persons into custody to permit their commitment and treatment under section 2935.33 and Chapter 3720. of the Revised Code."
In the case at bar, there is no evidence that if Butler were not intoxicated, he would have avoided the confrontation with the police officers. The record shows that the police officers did not have a warrant for Butler's arrest. The officers approached Butler at his home, late at night. Butler assured the officers that they could not enter his home. Butler did not impede the officers' efforts but verbally engaged them in "needless debate." Immediately upon stepping outside his door, Butler was frisked and placed under arrest.
The charge indicates that the arrest ended the confrontation. R.C. 2917.11(E) states:
"(E) Whoever violates this section is guilty of disorderly conduct, a minor misdemeanor. If the offender persists in disorderly conduct after reasonable warning or request to desist, disorderly conduct is a misdemeanor of the fourth degree."
Butler was charged and found guilty of a minor misdemeanor.
The police officer did not testify as to what Butler said. The testimony was that Butler used profanity and was berating, antagonistic, and basically engaged in a lot of rhetoric. The trial court found this testimony established conduct which violates R.C. 2917.11(B)(1). I disagree.
Butler was inside his home at the time the confrontation occurred. If Butler engaged in conduct which violates R.C.2917.11(B)(1), while within his own home, the record does not disclose such conduct. The lay opinion of one police officer, expressed in terms such as "rhetoric" and "antagonistic," is not sufficient to establish beyond a reasonable doubt that, but for his voluntary intoxication, Butler engaged in conduct he should know is likely to be offensive to persons of ordinary sensibilities. For these reasons I would reverse the trial court's decision. *Page 163