State v. Barnes ( 2018 )

[Cite as State v. Barnes, 2018-Ohio-3894.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-170355
C-170356
Plaintiff-Appellee, : TRIAL NOS. C-17CRB-6180
C-17CRB-6181B
vs. :
O P I N I O N.
JARVIS BARNES, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 26, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M ILLER , Judge.
{¶1} Following a jury trial, Jarvis Barnes was convicted of one count of
resisting arrest, in violation of R.C. 2921.33(A), and one count of resisting arrest, in
violation of R.C. 2921.33(B). The trial court sentenced Barnes to 90 days in jail, with
credit for 18 days served, for count one, to be served consecutively to 180 days in jail,
with credit for 46 days served, for count two. We affirm.
Facts
{¶2} The Springfield Township Police were dispatched to a WesBanco
branch to respond to a call about a man trying to pass a bad check. The police
detained the man, Antonio Johnson, who told them that he was kidnapped at
gunpoint by Barnes and forced to pass the bad check. Johnson pointed out Barnes in
his car in a parking lot across the street. Unbeknownst to the police at the time,
Johnson had fabricated the story of Barnes’s involvement and only coincidentally
encountered Barnes prior to entering the bank, knowing him as a friend of his
brother.
{¶3} The police called for backup, surrounded Barnes’s vehicle at his next
stop in a Boost Mobile parking lot with their guns drawn, and ordered him to exit
from his vehicle and get on his knees. Barnes was patted down, handcuffed, and
placed into the back of a police cruiser. Barnes, who testified that he was en route to
an interview, became agitated about the stop and detention. While in the cruiser,
Barnes attempted to hide an object in his pants, which drew suspicion from police
officers. Barnes told an officer that the object was a cell phone, but refused to
surrender it and continued to try to hide the object in his pants. Barnes had to be
removed from the cruiser and wrestled with for police to retrieve what turned out to
be a cell phone. Barnes was then taken to the police department, where another
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struggle ensued. Barnes went limp when officers tried to transport him to the jail,
and kicked an officer while being transferred into another police cruiser.
Argument and Analysis
{¶4} In his first assignment of error, Barnes claims that the trial court erred
in admitting into evidence Johnson’s statements to the police. “The trial court has
broad discretion in the admission of evidence, and unless it has clearly abused its
discretion and the defendant has been materially prejudiced thereby, an appellate
court should not disturb the decision of the trial court.” State v. Beck, 2016-Ohio-
8122, 75 N.E.3d 899, ¶ 27 (1st Dist.), citing State v. Issa, 93 Ohio St. 3d 49, 64, 752
N.E.2d 904 (2001).
{¶5} Barnes argues that Johnson’s statements, in which he claimed he was
kidnapped at gunpoint by Barnes and forced to pass a bad check, were hearsay and
admitted to prove that Barnes’s initial arrest was lawful. A conviction under R.C.
2921.33(A) and (B) requires a lawful arrest. Evid.R. 801(C) defines “hearsay” as “a
statement, other than one made by the declarant while testifying at trial or hearing,
offered in evidence to prove the truth of the matter asserted,” which is inadmissible
but by exception. Evid.R. 802.
{¶6} Here, Johnson’s statements were introduced during the direct
examination of the arresting officers, who explained that the probable cause for
arresting Barnes was Johnson’s statements. Officer Mullens testified that the
statements were later discovered to be untrue—that Barnes was not in fact involved
in passing bad checks with Johnson. Importantly, a police officer may only conduct
an arrest if the police officer has probable cause to believe that the arrestee had
committed or was committing a felony offense. R.C. 2935.04; State v. Allen, 2 Ohio
App.3d 441, 443, 442 N.E.2d 784 (1st Dist.1981); see State v. Brown, 115 Ohio St. 3d
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55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 66; Gerstein v. Pugh, 420 U.S. 103, 111, 95
S. Ct. 854, 43 L. Ed. 2d 54 (1975).
{¶7} Accordingly, Johnson’s statements to police officers were not
impermissible hearsay. They were not admitted for their truth, as they were
declaredly untrue. Nor were they introduced to prove that Barnes had committed a
crime and that his arrest was lawful. Instead, Johnson’s statements were introduced
to explain the actions of the police officers and give context to Barnes’s arrest. Based
on Johnson’s statements, the police believed Barnes to be an armed and dangerous
felon, and that they had probable cause to immediately detain him. Therefore, we
overrule Barnes’s first assignment of error.
{¶8} In his second assignment of error, Barnes argues that his convictions
were based on insufficient evidence. In a challenge to the sufficiency of the evidence,
the question is whether after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements of
the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus.
{¶9} Barnes asserts that he could not have been charged with misdemeanor
resisting arrest under R.C. 2921.33(A) and (B) for any of his actions subsequent to
being handcuffed and placed in the back of the police cruiser, because his arrest had
already been completed. Instead, Barnes argues that he should have been charged
with felony escape under R.C. 2921.34. In order to reach this conclusion, Barnes
asks us to overrule State v. Bay, 130 Ohio App. 3d 772, 721 N.E.2d 421 (1st
Dist.1998), wherein we affirmed a conviction for resisting arrest where a defendant
refused to leave a police cruiser and then purposely went limp while he was being
taken into the Hamilton County Justice Center for intake processing. In Bay, we
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held that the defendant’s arrest did not end with his initial detention and
handcuffing. Rather, an arrest encompasses placing a defendant in a police cruiser
and transporting him to jail or a detention facility. See State v. Darrah, 64 Ohio
St.2d 22, 26, 412 N.E.2d 1328 (1980). Thus, a charge for resisting arrest is
appropriate where there is interference in this process. We decline to overrule Bay,
and find the facts of this case indistinguishable. Barnes was handcuffed and placed
into a police cruiser, and then struggled with police officers in two different instances
prior to being jailed. After reviewing the record, we hold that the state presented
sufficient evidence to prove Barnes resisted arrest on two separate occasions. We
therefore overrule Barnes’s second assignment of error.
{¶10} In his third assignment of error, Barnes argues that his convictions
were against the manifest weight of the evidence. In reviewing a challenge to the
weight of the evidence, we must review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and thereby created a manifest miscarriage of justice. State v.
Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997).
{¶11} Barnes asserts that excessive force was used against him by the
arresting police officers, which justified his resistance to the arrest. The Ohio Jury
Instructions recognize excessive force as an affirmative defense to resisting arrest. 2
Ohio Jury Instructions CR Section 521.33, citing State v. Logsdon, 3d Dist. Seneca
No. 13-89-10, 1990 WL 197883, *1 (Dec. 4, 1991). “The defendant effectively admits
his resistance, if only to show that it was necessary in order to protect himself from
the officer’s excessive force.” Logsdon at *2.
{¶12} “[A]ll claims that law enforcement officers have used excessive force—
deadly or not—in the course of an arrest * * * should be analyzed under the Fourth
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Amendment and its ‘reasonableness’ standard.” (Internal quotations omitted.) State
v. White, 142 Ohio St. 3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 22. “The
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene * * * [and] must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id., quoting Graham v. Connor, 490 U.S. 386,
396-397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
{¶13} Here, officers believed that Barnes may have abducted a man at
gunpoint and forced him to cash a bad check at the time of his arrest. It is
unfortunate that as a result of Johnson’s false statements to the police Barnes was
even involved in the encounter, which could have very easily resulted in his death or
serious injury. Barnes’s confusion, alarm and distress at the time of the stop are
understandable. However, this case begins where Barnes acted on his own volition
in two instances to interfere with his arrest.
{¶14} In the first instance, Barnes was in a police cruiser while attempting to
hide an object in his pants, which officers believed was possibly a gun. Video footage
from a storefront and a cell phone showed several officers attempting to restrain
Barnes’s body and hands in order to retrieve the object, which they discovered was
his cell phone. Barnes argues, in part, that he was noncompliant in this instance
because the officers did not explain why he was being arrested. A defendant’s
knowledge is not part of the affirmative defense of resisting arrest. Resisting arrest is
justified where the defendant is effectively being assaulted and responds with
reasonable force to protect his safety, see Logsdon at *2—not where the defendant is
ignorant of his charges and reluctant to surrender his personal property.
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{¶15} In the second instance, Barnes was at the police department and began
acting erratically and struggling with police officers as they tried to transport him to
jail. Video footage from the lobby of the police department shows a distraught
Barnes being arrested, but does not show the struggle to which Barnes and the
arresting officers testified. After reviewing the entire record—including the video
evidence, testimony of the arresting officers and Barnes—we do not agree that
Barnes’s convictions were against the manifest weight of the evidence. We overrule
Barnes’s third assignment of error.
Conclusion
{¶16} All assignments of error having been overruled, the trial court’s
judgments are affirmed.
Judgments affirmed.
M OCK , P.J., and D ETERS , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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