State v. Kates, (Ohio 2006)

Status: 2006-Ohio-6779

Docket Number: 06AP-421

Parts: Bryant

Linked as:

Summary

The trial court did not abuse its discretion in amending the complaint charging defendant with resisting arrest to address defendant's actions prior to arrest rather than after arrest where (1) although defendant objected to the amendment, defendant failed to request the jury be discharged or the case be continued, (2) defendant's trial strategy was that he did not understand he was being placed under arrest at the time of his arrest and therefore could not have resisted, and (3) defendant objected to the amendment solely on the grounds it was too broad and vague.

Summary

Text

[Cite as State v. Kates, 2006-Ohio-6779.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 06AP-421 v. : (M.C. No. 2005 CRB 1887)

Tracy A. Kates, : (REGULAR CALENDAR)

Defendant-Appellant. :

O P I N I O N

Rendered on December 21, 2006

Richard C. Pfeiffer, Jr., City Attorney, Stephen L. McIntosh, Chief Prosecutor, and Tannisha D. Bell, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.

APPEAL from the Franklin County Municipal Court.

BRYANT, J.

Defendant-appellant, Tracy A. Kates, appeals from a judgment of the Franklin County Municipal Court finding him guilty of one count of obstructing official business and one count of resisting arrest. Because the trial court did not abuse its discretion in amending the complaint for resisting arrest, and because sufficient evidence and the manifest weight of the evidence support defendant's convictions, we affirm.

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By complaints filed January 24, 2005, defendant was charged with one count of obstructing official business in violation of R.C. 2921.31(A) and one count of resisting arrest in violation of R.C. 2921.33(A), both second-degree misdemeanors.

Although the record contains no charging document, the parties agree that defendant was also charged with operating a vehicle while intoxicated ("OVI").

At defendant's jury trial, the city presented evidence that Beatrice McAllister was driving her car northbound on Cleveland Avenue at approximately 6:17 p.m. on January 20, 2005. As she attempted a turn onto Huy Road, defendant, who was traveling southbound on Cleveland Avenue, struck her vehicle. Defendant, Beatrice, and her passenger, Yero McAllister, exited their respective vehicles to assess the damage; defendant's passenger, Meshell Blair, remained in the car. Yero told defendant he was going to report the accident to the police. Defendant then started walking toward a nearby gas station. Yero remarked to Beatrice that he thought defendant had been drinking. At about the same time, Beatrice observed Blair relocate from the passenger seat to the driver's seat of defendant's car.

When Clinton Township Police Officer Terry Phillips arrived at the scene, Beatrice and Yero identified defendant as the driver of the vehicle that struck them and advised Officer Phillips that defendant was drunk and was walking toward the gas station.

Officer Phillips followed defendant, identified himself as a police officer, and ordered defendant to stop. Because defendant did not comply with the order, Officer Phillips assumed defendant did not hear him. He repeated the order to stop, again identifying himself as a police officer; defendant turned around, looked at Officer Phillips, and started

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walking faster toward the gas station. Officer Phillips again ordered defendant to stop.

Defendant again did not heed the order and entered the gas station.

Officer Phillips followed defendant into the gas station and asked him why he was running away from him; defendant looked as if he did not understand the question. Officer Phillips noted that defendant smelled strongly of alcohol and seemed "nervous and apprehensive." (Tr. 46.) Officer Phil ips decided to arrest defendant for obstructing official business because "[defendant] tried to walk away from me and didn't stop * * * [as] I was trying to investigate a traffic accident in which he had been identified as a driver." (Tr. 44.) He informed defendant he was under arrest for obstruction of official business and instructed him to put his hands behind his back; defendant responded something to the effect of "why" or "no" or "it wasn't me" or "I wasn't driving." (Tr. 45, 46, 72.) Officer Phillips again informed defendant he was under arrest, grabbed his arm, and put it behind his back. Defendant attempted to pull away. Afraid defendant would run out of the gas station, Officer Phillips pushed him into a food display and handcuffed him.

As Officer Phillips escorted defendant out of the gas station toward the police cruiser, defendant became angry, violent, and verbally abusive and attempted to extricate himself from Officer Phillips' grasp. Defendant further resisted Officer Phillips' efforts to place him the cruiser. With the aid of another police officer, Officer Phillips was able to secure defendant in the cruiser.

Given his suspicion that defendant was intoxicated, Officer Phillips requested that defendant perform field sobriety tests and submit to a breathalyzer.

Defendant refused on the basis that he was not driving the vehicle involved in the

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accident. Officer Phillips charged defendant with OVI, obstructing official business, and resisting arrest.

Blair, defendant's live-in girlfriend of 15 years and the mother of his two children, testified on defendant's behalf. Blair averred that she, not defendant, drove the car involved in the accident. According to Blair, after she and Beatrice exchanged insurance information, defendant started walking to the gas station to find a telephone.

When Officer Phillips arrived, Blair reported that she was driving the car, but Beatrice interjected that defendant was the driver, that he had been drinking, and that he was now walking away from the scene. Blair corroborated Officer Phillips' testimony that defendant continued walking toward the gas station despite the officer's repeated orders to stop.

Based on that evidence, the jury found defendant guilty of obstructing official business and resisting arrest. Although the transcript indicates that the jury also found defendant not guilty of OVI, the record contains neither a jury verdict nor a judgment entry to that effect. The trial court imposed a sentence of 90 days on each of the charges on which defendant was convicted, credited defendant with 37 days for pretrial confinement on each charge, and suspended the remaining 53 days on each charge on condition of two years of probation. The court ordered the sentences to be served consecutively upon revocation of probation. The court further imposed a $50 fine plus court costs on each charge.

Defendant timely appeals, assigning three errors: ASSIGNMENT OF ERROR NUMBER ONE THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION TO AMEND THE COMPLAINT OF

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RESISTING ARREST, OVER THE OBJECTION OF THE DEFENDANT, TO STATE OTHER ESSENTIAL FACTS WHEN THE MOTION WAS MADE AT THE CLOSE OF ALL OF THE EVIDENCE IN ORDER TO AVOID AN ACQUITTAL UNDER CRIM.R. 29 WHEN SUCH AN AMENDMENT TO THE COMPLAINT DEPRIVED THE DEFENDANT OF HIS RIGHT TO A TRIAL ON THE NEWLY ALLEGED FACTS.

ASSIGNMENT OF ERROR NUMBER TWO THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT OF CONVICTION AGAINST THE DEFENDANT ON THE CHARGE OF OBSTRUCTING OFFICIAL BUSINESS WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION AND THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED WHEN THE PROSECUTION FAILED TO PROVE THAT THE DEFENDANT DID NOT HAVE A PRIVILEGE TO GO ON ABOUT HIS LAWFUL BUSINESS OR THAT HE ACTED WITH THE PURPOSE TO OBSTRUCT THE OFFICER IN THE PERFORMANCE OF HIS LAWFUL DUTIES.

ASSIGNMENT OF ERROR NUMBER THREE THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT OF CONVICTION AGAINST THE DEFENDANT ON THE CHARGE OF RESISTING ARREST WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION AND THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED WHEN THE PROSECUTION FAILED TO PROVE THAT THE ARREST WAS LAWFUL AND SUPPORTED BY PROBABLE CAUSE, THAT PROPER NOTICE HAD BEEN GIVEN OF THE CAUSE FOR THE ARREST, AND THAT THE DEFENDANT UNDERSTOOD THAT HE WAS UNDER ARREST.

I. First Assignment of Error

By the first assignment of error, defendant contends the trial court erred in allowing the city to amend the complaint for resisting arrest. The original complaint

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charged that defendant "did: recklessly or by force, resist or interfere with a lawful arrest of himself to wit: while handcuffed and placed under arrest after a traffic crash, did actively try to get away from officers and push away officer, physically hindering his arrest." Following the close of the evidence, defendant renewed his Crim.R. 29 motion for acquittal, asserting the city's evidence was insufficient to sustain a conviction on the charge of resisting arrest. In considering the motion, the trial court observed that the trial testimony on that charge principally addressed defendant's resistance to being placed in the police cruiser, which occurred after defendant was arrested for obstructing official business. The city responded by noting Officer Phil ips' testimony that defendant resisted, and a struggle ensued, when Officer Phillips informed defendant inside the gas station he was under arrest for obstructing official business.

The trial court then inquired whether the city wished to amend the complaint. The city responded affirmatively, citing Crim.R. 7(D) and requesting time to review the transcript of Officer Phillips' testimony about what transpired inside the gas station at the time of the arrest. The court denied the request, and the city orally moved to amend the complaint to state: "did recklessly or by force resist or interfere with a lawful arrest of himself * * * [T]o wit, while inside the Sunoco station, the defendant struggled with Officer Phillips as Officer Phillips attempted to arrest him, thereby physical y hindering his arrest." (Tr. 154.) The court approved the amendment over defendant's objection. The trial court later filed an entry journalizing the amendment.

As relevant here, Crim.R. 7(D) provides that "[t]he court may at any time before, during, or after trial amend the * * * complaint * * * in respect to any defect,

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imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged." A trial court's decision to permit an amendment that changes the name or identity of the charged offense constitutes reversible error regardless of whether the accused can demonstrate prejudice. State v. Martin, Franklin App. No. 05AP-818, 2006-Ohio-2749, at ¶8, citing State v. Honeycutt (July 5, 2002), Montgomery App. No. 19004. In contrast, an amendment that does not change the name or identity of the crime charged is reviewed under an abuse of discretion standard. Martin, citing State v. Kittle, Athens App. No. 04CA41, 2005-Ohio-3198, appeal not allowed, 107 Ohio St.3d 1408, 2005-Ohio-3198, at ¶13. The term abuse of discretion connotes more than an error of law or judgment; it implies the trial court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157.

The amendment in this case clarified that the charge of resisting arrest arose out of defendant's actions inside the gas station at the time he was informed of his arrest for obstructing official business rather than out of his subsequent actions in resisting police efforts to place him in the police cruiser. As the amendment changed neither the name nor the identity of the charged offense, we must determine whether the trial court abused its discretion in permitting the amendment. Martin, supra, citing Kittle, supra.

Where, as here, an amendment is made to the substance of the complaint, "the defendant is entitled to a discharge of the jury on the defendant's motion, * * * and to a reasonable continuance, unless it clearly appears from the whole proceedings that the

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defendant has not been misled or prejudiced by the defect or variance * * *." Crim.R. 7(D); State v. Gondek (Jan. 26, 2000), Medina App. No. 2928-M, appeal not allowed, 88 Ohio St.3d 1513. Although defendant objected to the amendment, he did not move for a discharge of the jury or for a continuance. Accordingly, defendant waived any error when the trial court did not discharge the jury or continue the case. Martin, supra, at ¶10 (concluding that defendant waived any alleged error relating to the trial court's failure to discharge the jury or to grant a continuance where defendant objected but did not request a discharge of the jury or a continuance but, instead, chose to proceed with the trial); see, also, Gondek, supra (stating that defendant waived objection to an amendment of the indictment to correct the culpable mental state from "knowingly" to "recklessly" where defendant objected to the amendment but did not move for a discharge of the jury and declined the court's invitation to move for a continuance); State v. Newton (Feb. 4, 1981), Hamilton App. No. C-800055 (concluding trial court's alleged error in allowing amendment of an indictment to change time period of offense was not preserved for appeal where defendant objected to amendment on grounds that he had just been made aware of amendment, but did not request a continuance).

Moreover, defendant was not misled or prejudiced by the amendment.

Although defendant complains that the timing of the amendment was "patently unfair," Crim.R. 7(D) permits amendment "at any time before, during, or after a trial." Further, contrary to defendant's assertion, the original complaint did not specifically allege that the resisting occurred "after the defendant had been handcuffed and placed under arrest." (Emphasis added.) (Defendant's brief at 14.) Rather, the original complaint charged that

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defendant "while handcuffed and placed under arrest after a traffic crash, did actively try to get away from officers and push away officer, physical y hindering his arrest." (Emphasis added.) The complaint reasonably could be read to aver that defendant, "while (being) handcuffed and placed under arrest after a traffic crash, did actively try to get away from officers and push away officer, physically hindering his arrest."

Moreover, our review of the record belies defendant's assertion that he was prejudiced in that he was unaware he would be required to defend against charges of resisting arrest stemming from his conduct inside the gas station at the time of his arrest.

In opening statement, the city noted that Officer Phillips would testify that upon instructing defendant, inside the gas station, to put his hands behind his back, defendant was belligerent, uncooperative, and struggled with him. In addition, Officer Phillips testified in detail about his encounter with defendant inside the gas station, including defendant's efforts to resist arrest, and defendant was provided the opportunity to thoroughly cross- examine on the issue.

Indeed, defendant's trial strategy appeared to be that because Officer Phillips did not sufficiently inform defendant he was under arrest, defendant did not understand he was being arrested and could not have resisted arrest. Defendant maintained the same strategy in closing argument. As a result, defendant objected to the amendment solely on grounds that it was "too broad and vague." (Tr. 154.) Coupling defendant's trial strategy with the vagueness of his objection and his failure to move to discharge the jury or to continue the case, we conclude defendant failed to demonstrate

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either that the trial court abused its discretion in amending the complaint or that the amendment prejudiced his defense. Accordingly, the first assignment of error is overruled.

II. Second and Third Assignments of Error

Defendant's second and third assignments of error challenge the sufficiency and manifest weight of the evidence supporting his convictions. "Whether the evidence is legally sufficient to sustain a verdict is a question of law." State v. Thompkins (1997), 78 Ohio St.3d 380, 386, citing State v. Robinson (1955), 162 Ohio St. 486. In this inquiry, a reviewing court must determine whether the state has met its burden of production at trial.

The court is to assess "not whether the state's evidence is to be believed, but whether, if believed, the evidence against the defendant would support a conviction." Thompkins, at 390 (Cook, J., concurring.) After viewing the evidence in a light most favorable to the prosecution, the court thus must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Smith (1997), 80 Ohio St.3d 89, 113, certiorari denied, Smith v. Ohio, 523 U.S. 1125 , citing State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.

Unlike a challenge to the sufficiency of the evidence, which attacks the adequacy of the evidence presented, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. Thompkins, supra, at 387. In a manifest weight challenge, the reviewing court sits as a "thirteenth juror and makes an independent review of the record." Id. In performing this function, "[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the

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jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.

Defendant was convicted of obstructing official business in violation of R.C. 2921.31(A), which provides that "[n]o 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." R.C. 2921.31(A) thus includes five essential elements: (1) an act by the defendant, (2) done with the purpose to prevent, obstruct, or delay a public official, (3) that actually hampers or impedes a public official, (4) while the official is acting in the performance of a lawful duty, and (5) the defendant so acts without privilege. State v. Dice, Marion App. No. 9-04-41, 2005-Ohio-2505, at ¶19; State v. Brickner-Latham, Seneca App. No. 13-05-26, 2006- Ohio-609, at ¶25, appeal not allowed, 109 Ohio St.3d 1507.

The complaint charged that defendant obstructed official business because he,"[w]hile leaving the scene of a traffic crash refused several orders of officials to stop, and once apprehended refused to be handcuffed[.]" According to Officer Phillips' testimony, defendant was not charged with obstructing official business because he resisted efforts to handcuff him. Rather, Officer Phillips testified he decided to arrest defendant before the handcuffing because, during an investigation in which defendant

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was identified as one of the drivers involved in a traffic accident, defendant walked away from Officer Phillips, ignoring his command to stop.

In response, defendant contends Officer Phillips' command to stop was not an authorized act within his official capacity because Officer Phillips did not have probable cause to arrest defendant for any offense. Defendant contends that Officer Phillips' authority was limited to an investigatory stop under Terry v. Ohio (1968), 392 U.S. 1, and that mere flight from a Terry stop does not constitute the offense of obstructing official business.

This precise issue was before this court in State v. Harris, Franklin App. No. 05AP-27, 2005-Ohio-4553, where we held that "fleeing from a police officer who is lawfully attempting to detain the suspect under the authority of Terry, is an affirmative act that hinders or impedes the officer in performance of the officer's duties as a public official and is a violation of R.C. 2921.31, obstructing official business." Id. at ¶16. See, also, In re Mason (May 21, 1991), Franklin App. No. 90AP-217 (recognizing that fleeing from an attempted investigatory stop, while not constituting the crime of resisting arrest, may constitute obstructing official business in violation of R.C. 2921.31[A]).

Because an officer's attempt to detain a suspect under the authority of Terry may be a predicate to the offense of obstructing official business, the issue resolves to whether defendant's actions constitute a violation of R.C. 2921.31. Other courts have found a violation on similar facts. See Dice, supra, at ¶23 (stating "it is evident that by running from the police [after being told to stop], Dice did hinder the officers' performance of their lawful duty and that Dice was not privileged to do so"); State v. Davis (2000),

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Ohio App.3d 751, 753 (noting "the evidence shows that Davis became aware that the officers were trying to detain him and continued to walk away from them," giving "the officers probable cause to believe that he was impeding the performance of their duty in violation of R.C. 2921.31"); Brickner-Latham, supra, at ¶28 (stating "Brickner-Latham's walking away from Officer O'Connor was an affirmative act that hindered or impeded Officer O'Connor in the performance of his official duties," and "Brickner-Latham's persistence in disregarding Officer O'Connor's requests to stop was sufficient evidence for a rational trier of fact to conclude that Brickner-Latham acted with the specific intent to prevent, obstruct, or delay Officer O'Connor's lawful duties"); State v. Hasley, Mahoning App. No. 03 MA 215, 2004-Ohio-7065, at ¶62 (observing "Hasley took off running after Officer Cox yelled for him to stop," making it "clear from the record that Hasley's apparent attempt to elude Officer Cox and Reese delayed the completion of their lawful duties"); State v. Lohaus, Hamilton App. No. C-020444, 2003-Ohio-777, at ¶12 (holding "that Lohaus's actions in fleeing across several lawns after being told to stop--and in forcing the investigating officer to physically restrain him--fel squarely within [R.C. 2921.31's] proscriptions"); State v. Botos, Butler App. No. CA2004-06-145, 2005-Ohio-3504, at ¶16 (concluding "[a] reasonable jury could have found that appellant, without privilege, purposefully tried to hinder, obstruct, or delay the police from investigating why he was concealing himself behind the maroon vehicle by running and failing to stop after being ordered to").

Defendant wrongly relies upon State v. Gil enwater (Apr. 2, 1998), Highland App. No. 97 CA 0935, for the proposition that flight from a Terry stop does not constitute

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obstructing official business. This court, as have others, has rejected the reasoning set forth in that case. Harris, supra, at ¶15 (stating "we decline to fol ow the reasoning of the Fourth District Court of Appeals in Gil enwater"). See, also, Lohaus, supra, at ¶11 (stating "[w]e do not find Gillenwater to be compelling authority").

Here, in conducting his investigation into the accident, Officer Phillips fol owed defendant from the accident scene because of eyewitness assertions that defendant was the driver of one of the vehicles. Officer Phillips repeatedly ordered him to stop. Defendant was aware that Officer Phillips was trying to detain him and continued to walk away from him. Defendant's act in failing to heed Officer Phillips' orders to stop was an affirmative act that hindered or impeded Officer Phillips in the performance of his official duties in investigating the accident and was sufficient to support the trial court's judgment of conviction for obstructing official business.

Moreover, as none of the material facts supporting this judgment were contradicted, we are unable to find that such a conclusion was against the manifest weight of the evidence. See Thompkins, supra (in reversing on manifest weight, a court of appeals "disagrees with the factfinder's resolution of the conflicting testimony"). (Emphasis added.)

Defendant also challenges his conviction for resisting arrest on the grounds sufficient evidence and the manifest weight of the evidence do not support the conviction.

Resisting arrest is proscribed by R.C. 2921.33(A), which provides that "[n]o person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another." Defendant appears to concede that if the arrest for the predicate offense of

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obstructing official business was a "lawful arrest," then both sufficient and credible evidence supports his conviction for resisting arrest. Because this court finds sufficient and credible evidence sustains defendant's conviction for obstructing official business, we likewise find both sufficient and credible evidence supports his conviction for resisting arrest. See State v. Grooms, Franklin App. No. 03AP-1244, 2005-Ohio-706, at ¶22.

Defendant's second and third assignments of error are overruled.

Having overruled defendant's three assignments of error, we affirm the judgment of the Franklin County Municipal Court.

Judgment affirmed.

KLATT, P.J., and TRAVIS, J., concur.

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