Sandusky v. Degidio , 51 Ohio App. 3d 202 ( 1988 )

I respectfully dissent from the decision of the majority in this matter. Although it was acknowledged that the procedure of marking tires of parked vehicles was utilized by the Sandusky Police Department to identify parking violators, I cannot justify upholding a conviction of obstructing official business where the owner removes such a mark from his motor vehicle.

In the instant case it is conceded that appellant was not in violation of any parking ordinance at the time he removed the mark from his tire. The court held in Warrensville Hts. v. Wason (1976), 50 Ohio App.2d 21, 25, 4 O.O. 3d 12, 14,361 N.E.2d 546, 549, that one of the elements of obstructing official business is the presence of an illegal act which generates the policeman's duty to enforce the law. Such a situation is not present in the case before the court today.

Accordingly, I would find Assignment of Error No. 1 well-taken.

Assignment of Error No. 2 concerns the trial judge's questioning of appellant. It is essential to the factfinding process and the search for justice that a trial judge be permitted, under appropriate circumstances, to question any witness, including a defendant in a criminal trial who chooses to testify. However, in this instance the nature of the judge's questions suggest an opinion on the evidence and the credibility of the witness. The trial judge's view of the evidence and attitude toward the appellant is apparent, constituting prejudicial error. Therefore, I would also find Assignment of Error No. 2 well-taken.

Thus, I do not find that substantial justice was done in this case and I would reverse the judgment of the trial court.