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Elyria v. Tress4/10/1991
BAIRD, Presiding Judge.
This cause comes before the court upon the appeal of Martin E. Tress from his convictions for driving under the influence of alcohol, R.C. 4511.19(A)(1), and resisting arrest, R.C. 2921.33(A). Shortly after 11:00 p.m. on April 20, 1990, Melissa Dempsey was preparing for bed when she heard a loud noise, and felt the trailer in which she lived begin to move. When she went outside to investigate, she saw that a van had backed into the side of her trailer. She observed the appellant and another man, Michael Corn, stumbling around her yard. Dempsey was unable to determine which man had been driving the van.
Both men appeared "disoriented," and, when Dempsey approached appellant, she noticed a strong smell of alcohol about him. When Dempsey confronted the men with the damage done to her trailer, the appellant became verbally abusive. Dempsey returned to her trailer to summon the police. Appellant and Corn entered the appellant's neighboring trailer.
Police officers Michael Bigrigg and Gerald Geinke were the first to respond to Dempsey's call. After interviewing Dempsey and observing the damage to her trailer, the officers knocked at the door of appellant's trailer. When appellant answered the door, Bigrigg explained the nature of Dempsey's complaint, and asked appellant if he had been driving the van. Appellant admitted he had driven the van, but denied hitting the trailer. Bigrigg noticed that appellant's speech was slurred, that his eyes were glassy, and that his balance was poor.
Bigrigg asked appellant to step outside to view the damage to the trailer, but appellant refused to do so. The officer repeated his request, and appellant again refused and began to shut his trailer door. Bigrigg stopped the door and grabbed appellant's hand. When appellant pulled away, he and Bigrigg began scuffling on the floor of appellant's trailer. Eventually, three police officers and a stun gun were required to subdue appellant and place him under arrest.
Appellant was charged with driving under the influence of alcohol, R.C. 4511.19(A)(1), operation of a motor vehicle without reasonable control, R.C. 4511.202, resisting arrest, R.C. 2921.33(A), and disorderly conduct, R.C. 2917.11(A)(2). Following a bench trial, appellant was acquitted of disorderly conduct and operation of a motor vehicle without reasonable control, and was convicted of driving under the influence of alcohol and resisting arrest. Tress appeals his convictions, and raises the following assignment of error:
Appellant argues that the police made a warrantless entry into his trailer for the purposes of arresting him. Therefore, he argues, his arrest was unlawful and cannot be used as the basis for a charge of resisting arrest. We agree.
At trial, Bigrigg testified regarding appellant's arrest:
"* * * I asked Mr. Tress would he please put on his shoes and step on outside, and I'll show him the damage to the trailer. And he told me he ain't going outside.
"And I again asked him. And at that time, he attempted to shut the door. And as he attempted to shut the door, I stopped it and grabbed his hand. He pulled away. And the next thing, we were in a big confrontation, a wrestle match, on the floor of his trailer."
Officer Geinke also testified as to the circumstances of appellant's arrest:
"At the point that he was at the door, due to his intoxicated condition and his refusal to cooperate in the accident investigation, he was placed under arrest at that time. Officer Bigrigg advised him he was under arrest.
"At that time, he tried to duck back into the apartme
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