Athens v. Bromall , 20 Ohio App. 2d 140 ( 1969 )

I concur in the judgment herein. I respectfully disagree, however, as to the reasons assigned by my colleagues in affirming. An important feature of the proceedings below, not disclosed in the majority opinion, is that, for convenience, trial was had on both charges jointly. At the conclusion of all the evidence, the appellant was found not guilty as to trespassing and guilty as to resisting and obstructing an officer.

From a reading of the majority opinion, my basic disagreement is that reliance in affirming is placed by the majority on the conduct of the appellant prior to the arrest for trespassing, which conduct constituted part of the evidence as it related to the events leading to the trespassing charge.

The affidavit charging "resisting" provided in part:

"* * * Irvin H. Bromall, Lakeview Manor, Athens, Ohio, did resist, hinder and obstruct a certain officer to-wit: Sergeant R. L. Bateman, a member of the Athens Police Department, who was engaged in the enforcement of an Athens City Ordinance, contrary to Athens City Ordinance, Sec. 135.11."

The complaining witness and the prosecutor were free to word the affidavit as they saw fit. They chose to word it that the offense occurred while an Athens City Ordinance was being enforced. It was this charge, in its totality, with the particularity as to when the offense occurred, on which the prosecution and defense submitted their case.

The first paragraph of the city's brief states:

"Appellee contends that the city of Athens proved beyond a reasonable doubt that appellant knowingly and wilfully resisted and obstructed Sgt. Ross Bateman while said Sgt. arrested appellant for trespassing."

The above negates the view, held by neither the police officer, the prosecutor nor defense counsel, but adopted by the majority herein, that the resisting violation occurred at the time of the booking of the student offenders in the city council room. To adopt that view, one must ignore, and, in effect, treat as surplusage, that portion of the "resisting" affidavit which states "who was engaged in the enforcement of an Athens City Ordinance." In essence, the majority view of when the violation occurred amends or re-writes the affidavit, which authority is not possessed by the trial court or this court. Ironton v.Bundy, 98 Ohio App. 416; State v. Jennings, 112 Ohio App. 455. It has been aptly noted in Diebler v. State, 43 Ohio App. 350:

"An affidavit is the act of an individual, for the signing of which such individual is and holds himself or herself out to be responsible. No court or public officer has authority to force an individual to say something different from what that individual actually did say or express a willingness to say."

I, therefore, confine my review herein to whether there was a violation, as charged, of the "resisting and obstrucing" ordinance at the time of the arrest for trespassing.

There can be no question, in view of the record, that the appellant knew he had been ordered out of the building, that the officers did not want him to re-enter the building, and that he was being placed under arrest for trespassing.

The purpose of Section 135.11 is self evident. It is to require peaceful and orderly submission to lawful arrest and the avoidance of the use of force. When an officer makes a lawful arrest, it is the duty of the person arrested to submit peacefully.

The terms resist, obstruct or abuse as used in the ordinance and, also, the state statute, Section 2917.33, Revised Code, are not defined. The Ohio Supreme Court has stated, however, that it is not necessary, in order to constitute a violation, that the officer be assaulted, beaten or bruised. Woodworth v. State,26 Ohio St. 196. The Supreme Court of Illinois, in People v.Raby, 40 Ill.2d 392, 240 N.E.2d 595, approved the interpretation that "resisting" means withstanding the force or effect of or the exertion of oneself to counteract or defeat. Obstruct means to be or come in the way of. The court stated that the terms are alike in that they imply some physical act or exertion. The court further states, at page 599 of 240 N.E.2d:

"`* * * Given a reasonable and natural construction, these terms do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest.'"

See, also, People v. Martinez, 43 Misc.2d 94, 250 N. Y. So.2d 28, wherein defendants were convicted of resisting a public officer in the discharge of his duty by having to be carried to an elevator after arrest.

In the case at bar, there is evidence, which the trial judge could accept, if believed, that the appellant, when being placed under arrest, began backing away from the officer, that the officer took hold of appellant's arm, pulled him back and pushed him up the hallway, that the appellant was holding his feet out in front of him trying to brace himself, and that the arresting officer had to push him along. The force here involved was small, but it was force nevertheless, and it was required by appellant's actions.

Appellant argues that the officer was without authority to effect a misdemeanor arrest, inasmuch as the trial court dismissed the trespassing charge, and that appellant could lawfully resist the illegal arrest. The latter proposition finds support in Columbus v. Holmes, 107 Ohio App. 391. I do not believe, however, that case may be used for a rule that a mere acquittal of a criminal charge makes the prior arrest or the charge illegal. Different considerations are involved. The arrest here was not, in my opinion, illegal. The police officers, including the Safety Director of the city of Athens, were in the process of booking twenty to twenty-five prisoners. The police quarters were inadequate, and the council chambers were being used for this purpose. The adjoining hallway leading to the outside was crowded. On three different occasions the appellant entered the council chambers and was, each time, ordered to leave. I am not prepared to hold that under these circumstances the authorities could not lawfully order him from the city building, at least while the processing of prisoners continued. The validity of the order was not reached in the trial court because of the wording of the affidavit and the resulting variance.

Unlike my colleagues who find the record ample to sustain the conviction, I find the questions presented to be close ones, especially on the weight of the evidence. Upon a consideration of all the evidence. however, I concur in the affirmance of the judgment.