Strongsville v. Johnson , 95 N.E.3d 809 ( 2017 )

[Cite as Strongsville v. Johnson, 2017-Ohio-7066.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104577
CITY OF STRONGSVILLE
PLAINTIFF-APPELLEE
vs.
GERMANEY C. JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Berea Municipal Court
Case Nos. 14 CRB 00232 and 14 TRD 00718
BEFORE: Stewart, J., Keough, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: August 3, 2017
FOR APPELLANT
Germaney C. Johnson, pro se
8311 Indianapolis Avenue, 1011
Columbus, OH 43240
ATTORNEY FOR APPELLEE
George F. Lonjak
City of Strongsville Prosecutor
614 West Superior Avenue, Suite 1310
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Just two blocks from his house, defendant-appellant Germaney Johnson’s
vehicle ran out of gasoline. A city of Strongsville snow plow pushed his vehicle into the
center turn lane of a four-lane road and Johnson’s wife and one of their two children went
to get gasoline. Johnson and the other child remained in the vehicle with his hazard
lights activated. As police officers approached to assist, they “ran the plate” and learned
that the vehicle had been registered to a woman (Johnson’s wife). Claiming that “we
don’t know what we have until we can start figuring out who’s in the car,” the police
asked Johnson to show them his driver’s license. Johnson explained that he had run out
of gasoline and asked why he needed to show his license. The wife and child returned
with gasoline and she identified herself, but the police, having obtained backup,
physically removed Johnson from the vehicle and arrested him when he refused their
repeated requests to produce his driver’s license. The police then discovered that
Johnson had a permit to carry a concealed firearm. They searched the vehicle and found
a firearm in the center console. On these facts, a jury found Johnson guilty of failure to
display a driver’s license, resisting arrest, carrying a concealed weapon, and obstructing
official business.
{¶2} On appeal, Johnson broadly raises issues relating to the court’s jurisdiction
over the case, the sufficiency of the evidence supporting the various counts, and juror
misconduct. We agree that there was insufficient evidence to find Johnson guilty of
resisting arrest, carrying a concealed weapon, and obstructing official business and vacate
those convictions.
I. Failure to Display Driver’s License
{¶3} Johnson complains that there was insufficient evidence to prove the charge of
failure to display a driver’s license because he was not operating a vehicle at the time the
police asked him to display the license.
{¶4} R.C. 4507.35(A) states in part:
The operator of a motor vehicle shall display the operator’s driver’s license,
or furnish satisfactory proof that the operator has a driver’s license, upon
demand of any peace officer or of any person damaged or injured in any
collision in which the licensee may be involved. When a demand is properly
made and the operator has the operator’s driver’s license on or about the
operator’s person, the operator shall not refuse to display the license.
{¶5} Johnson does not dispute that he failed to display his driver’s license upon
demand. He simply maintains that he was not operating the vehicle at the time the police
approached him because his vehicle had run out of gasoline.
{¶6} The word “operate” is undefined in R.C. Chapter 4507. However, it is
defined for purposes of R.C. Chapter 4511 and 4513 as “to cause or have caused
movement of a vehicle, streetcar, or trackless trolley.” R.C. 4511.01(HHH). This
definition is consistent with the view that “[b]oth operation and physical control are terms
which have been broadly construed in keeping with the purpose of state and municipal
driving under the influence laws * * *.” Lakewood v. Zingale, 8th Dist. Cuyahoga No.
88498, 2007-Ohio-2779, ¶ 16.
{¶7} Johnson’s wife testified that he had been driving the vehicle when it ran out
of gasoline. And to dispel the idea that a vehicle without gasoline was incapable of
being operated, Johnson’s wife testified that when the vehicle did run out of gasoline, a
city service truck came by and pushed the vehicle while Johnson steered it. The wife’s
testimony was sufficient evidence that Johnson was the operator of the vehicle.
II. Obstructing Official Business
{¶8} Johnson complains that the obstructing official business charge was
redundant to the failure to display a driver’s license charge.
{¶9} R.C. 2921.31(A) states that no 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.
{¶10} The city maintains that the basis for the obstruction of official business
charge was that police were “unable to issue a lawful citation because [Johnson]
questioned the officers and ignored their lawful orders for him to identify himself.”
Appellee’s brief at 9. This argument incorrectly assumes that grounds for issuing a
citation for failing to display a driver’s license existed before Johnson questioned why he
had to display his driver’s license. In fact, it was his repeated questioning of the need to
show his license that caused the police to conclude that he was in violation of R.C.
4507.35(A). That occurred before grounds to issue the citation for refusing to display a
driver’s license, so it could not form the basis for a conviction on obstructing official
business.
III. Resisting Arrest
{¶11} The city charged Johnson with resisting arrest in violation of R.C.
2921.33(B). That section states: “No person, recklessly or by force, shall resist or
interfere with a lawful arrest of the person or another person and, during the course of or
as a result of the resistance or interference, cause physical harm to a law enforcement
officer.” “Physical harm” is defined as “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).
{¶12} The city failed to offer sufficient evidence that Johnson caused physical
harm to a police officer. One of the officers testified that as they tried to arrest Johnson,
he felt “a twinge in my neck.” There was no testimony that the officer suffered the
“twinge” as a direct result of any physical contact with Johnson, so the state did not prove
that Johnson caused physical harm to the officer. State v. Fussell, 8th Dist. Cuyahoga
No. 95906, 2011-Ohio-4815, ¶ 15. In any event, the “twinge” the officer felt did not
result in him seeking medical treatment or missing any time off from work and did not
qualify as “physical harm” sufficient to establish resisting arrest under R.C. 2923.33(B).
{¶13} Additionally, although the officers told Johnson on more than one occasion
that they could arrest him if he failed to show his driver’s license, the transcript of the
trial indicates that Johnson was not actually arrested until after the officers had secured
him in the police car. One officer testified that as the police were pulling Johnson from
his car, they were still saying to him, “‘Hey, give us the driver’s license.’” Because
Johnson still refused to do so, the officer testified that “[w]e had to get him out at this
point, so we made a decision he’s going to be arrested.” However, at no point during
this time did the officers actually place Johnson under arrest, tell him that he was under
arrest, or read him his rights. The officer went on to testify that “the next thing we’d do
is we want to put handcuffs on him. So we want to get — effectively arrest him, * * * to
avoid any injuries to him, him and ourselves * * *.” (Emphasis added.) Finally, after
Johnson was handcuffed and in the police car, the officer testified that “[w]e make a
decision to make an arrest.” This testimony also demonstrated that the city’s evidence
was insufficient to sustain a conviction for resisting arrest.
IV. Carrying a Concealed Weapon
{¶14} Although Johnson had a permit to carry a concealed weapon, the city
charged him with carrying a concealed weapon under R.C. 2923.12(B)(1). That section
requires a person “stopped for law enforcement purposes and who is carrying a concealed
handgun” to “promptly inform any law enforcement officer who approaches the person
after the person has been stopped that the person has been issued a concealed handgun
license and that the person then is carrying a concealed handgun.” Johnson argues that
he was not stopped for a law enforcement purpose because he had in fact been stopped
before the police arrived because his vehicle ran out of gasoline.
{¶15} The Revised Code does not define the phrase “law enforcement purpose,”
but this case does not require us to provide its meaning in any definitive way. The
police testified that their encounter with Johnson did not occur because they were
enforcing any laws. They saw a stranded vehicle and claimed to be offering assistance.
In fact, one of the officers conceded in his testimony that at the time he approached
Johnson’s stranded vehicle, there was “no law” that he was intending to enforce. But
even if we were to construe the phrase “law enforcement purpose” broadly to encompass
situations like this one where the police approach a vehicle for safety reasons, Johnson
was not “stopped” by the police. The statute is clear. R.C. 2923.12(B)(1) only requires
an individual who is carrying a concealed handgun, has a license to do so, and who is
“stopped for law enforcement purposes” to promptly inform an officer who approaches
after the person has been stopped of the existence of the handgun. (Emphasis added.)
V. Miscellaneous
A. Jurisdiction
{¶16} Johnson argues that the court should have dismissed the complaints against
him because they were not filed in the name of an individual, but in the name of the
municipality in which his offenses occurred. We reject this argument because it has long
been established that criminal prosecutions are brought in the name of the state or
municipality in which they occur and not in the name of the person making the complaint.
E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (8th Dist.1955),
paragraph two of the syllabus; Hilton v. Morse, 2 Ohio Dec.Rep. 292, 317 (C.P.1860).
This rule is so well established that it would have been futile for defense counsel to seek
dismissal of the charges on that basis and counsel’s failure to seek dismissal did not
deprive Johnson of the effective assistance of counsel. State v. Allen, 8th Dist. Cuyahoga
No. 90552, 2008-Ohio-5251, ¶ 18. And to the extent that some of the charges against
Johnson were misdemeanors for which no jail time was authorized, there is no claim of
ineffective assistance of counsel. Lockland v. Plotsker, 1st Dist. Hamilton No.
C-130563, 2014-Ohio-2173, ¶ 4.
B. Right to Confrontation
{¶17} Johnson next complains that two officers who signed documents submitted
to the court did not testify, thus violating his right to confront witnesses in violation of the
Sixth Amendment to the United States Constitution.
{¶18} Johnson does not identify the documents submitted by the two officers, but
he is apparently referring to the complaints filed in this case (one officer filed the failure
to display a license charge; another officer filed the remaining charges). Although
neither officer testified at trial, they were not required to testify because the city presented
testimony from three other officers who witnessed the offenses. Johnson was able to
cross-examine those witnesses, so his right to confront witnesses was not violated.
C. Jury Pool
{¶19} Johnson’s case was tried in the Berea Municipal Court. After a jury was
selected, Johnson objected to its composition, complaining that a jury pool containing
only persons within the territorial jurisdiction of the court did not reflect the racial
diversity of Cuyahoga County.
{¶20} We note at the outset that Johnson makes no argument that potential jurors
were selectively excluded from the jury. Nor has he offered any statistical data to
support his claim that the jury, as selected, was not representative of the population within
the court’s territorial jurisdiction. State v. Stockton, 3d Dist. Shelby No. 17-96-15, 1997
Ohio App. LEXIS 2019, at 10 (May 5, 1997).
{¶21} “Municipal courts are created by statute, R.C. 1901.01, and their
subject-matter jurisdiction is also set by statute. A municipal court in Ohio has
jurisdiction over misdemeanors occurring within its territorial jurisdiction.” State v.
Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 11, citing R.C.
1901.20(A)(1). Because a court has authority only over persons in a municipal court’s
jurisdiction, the court in this case had no ability to widen the pool of potential jurors to
persons who were outside its jurisdiction. State v. Fendrick, 77 Ohio St. 298, 299, 82
N.E. 1078 (1907); State v. Henning, 83 Ohio App. 445, 78 N.E.2d 588 (10th Dist.1948).
D. Juror Coercion
{¶22} Finally, Johnson complains that the court coerced a juror to change his
verdict.
{¶23} The juror in question had been singled out by the other jurors during
deliberations for getting “agitated” to the point that they felt uncomfortable. The court
spoke to the jurors collectively and addressed the matter. It told the juror that there
should be “mutual respect” in the jury room and that “nobody’s asking you to give up
your strongly held beliefs and feelings about anything. If you can’t, you can’t and then
we have what’s called a hung jury, okay.” The jury continued its deliberations, but later
told the court that it had a question concerning the meaning of the word “promptly” meant
for purposes of the carrying a concealed weapon charge. The juror in question
specifically told the court that he had an opinion on what the carrying a concealed weapon
statute required, but the court cut off the juror and told him to “give your opinion back in
the jury room.” The juror appeared to reply that further discussion “won’t work” and
that “I’d rather have you fire me and let me go home because I’m not changing my
attitude on this.” The court told the juror that “I don’t want you to change your attitude.”
When the juror asked if he could speak to the court in private, the court, juror, and
counsel for both parties had an off-the-record discussion. When the court went back on
the record, it told the jury:
All right. Under the circumstances, I understand that there’s some difficulty
here. And I’m not gonna get into it anymore deeper, but I want you to go
back and try the [sic] talk amongst yourself and see if you can resolve your
differences and come up with a conclusion, unanimous verdict, okay. And
then I think it’s important for the process that you do that. I understand
there’s some ying and yang here, so to speak, but it’s important to the
process that we come to a resolution if we can and get these — these cases
done, okay. Counsel, anything else at this point?
{¶24} The jury returned to deliberations and announced that it could not reach a
unanimous verdict on one of the four counts. The court read the jury the Howard charge
for deadlocked jurors. The jury resumed deliberations. It then returned a unanimous
verdict of guilty on all charges.
{¶25} There is nothing in the record to indicate that the court coerced the juror into
changing his mind. The off-the-record discussion occurred in the presence of defense
counsel, with no objection made after-the-fact. On this basis alone, Johnson has failed to
exemplify any error. To the extent there is a record, it is replete with the court’s
insistence that the juror could stick with his position and that “I don’t want to change your
attitude.” The juror apparently changed his opinion, but for reasons known only to that
juror. Nevertheless, the fact remains that the court did nothing to coerce that change of
opinion.
{¶26} In conclusion, we affirm the conviction for failing to display a driver’s
license. We reverse the convictions for obstructing official business, resisting arrest, and
carrying a concealed weapon.
{¶27} Judgment affirmed in part, reversed in part, and remanded to the trial court
for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Berea
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
MARY J. BOYLE, J., CONCURS;
KATHLEEN ANN KEOUGH, A.J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION)
KATHLEEN ANN KEOUGH, A.J., CONCURRING IN PART AND DISSENTING IN
PART:
{¶28} I respectfully concur in part and dissent in part with the majority’s
decision. I agree with the majority that the obstruction of official business conviction
should be reversed outright and the failure to display a driver’s license should be
affirmed. However, I would reverse Johnson’s conviction for resisting arrest in violation
of R.C. 2921.33(B), but find him guilty of the lesser included offense of resisting arrest in
violation of R.C. 2921.33(A) where the element of harm is not necessary. Additionally, I
would affirm Johnson’s conviction for carrying a concealed weapon.
{¶29} Pertaining to the resisting arrest conviction, the majority concludes that the
city failed to offer sufficient evidence that Johnson caused physical harm to the police
officer. I agree. However, I would find that sufficient evidence was presented to
convict Johnson of the lesser included offense of resisting arrest in violation of 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.” See Middleburg Hts. v. Lasker,
8th Dist. Cuyahoga No. 103903, 2016-Ohio-5522, ¶ 24, citing Fussell, 8th Dist.
Cuyahoga No. 95906, 2011-Ohio-4815, at ¶ 20 (resisting arrest, in violation of R.C.
2921.33(A), is a lesser included offense of resisting arrest in violation of R.C.
2921.33(B)).
{¶30} In this case, the evidence showed that Johnson was moving his arms and
making motions that prohibited the officers from placing handcuffs on him and that he
would not comply with officers’ commands to stop resisting arrest. Accordingly, I
would modify his conviction to the second-degree misdemeanor of resisting arrest in
violation of R.C. 2921.33(A). Lasker at ¶ 29 (appellate court has the authority to reduce
a conviction to that of a lesser included offense when it is supported by the record, rather
than ordering an acquittal or a new trial).
{¶31} Additionally, I would affirm Johnson’s conviction for carrying a concealed
weapon. First, Johnson was obligated under R.C. 2923.12(B)(1) to immediately inform
the officers of his CCW permit and the presence of the firearm in the center console once
the officers approached the vehicle even though one of the officers testified that there was
“no law” that he was intending to enforce. I would not read the phrase “stopped for a
law enforcement purpose” as narrowly as the majority. A law enforcement officer’s
duties encompass more than just enforce laws — the duties also include nonenforcement
responsibilities, including safety and welfare checks and consensual encounters. I read
“stopped for law enforcement purposes” broadly, that once an individual whether on foot
or in a vehicle and who is carrying a concealed weapon, is stopped by a law enforcement
officer, that individual has an obligation under R.C. 2923.12 to immediately inform an
officer of the firearm and permit. See State v. White, 8th Dist. Cuyahoga No. 92229,
2009-Ohio-5557, ¶ 14 (individual seated in parked car required to inform the approaching
officer of the presence of the handgun and required permit under R.C. 2923.12(B)(1)).
{¶32} In this case, the officers approached the stranded vehicle in the middle of the
street to check on the safety of the occupants of the vehicle and offer assistance.
However, once it was discovered that the registered owner was female and the driver was
male, the officers then attempted to discern the identification of the driver. The
consensual encounter escalated once Johnson refused to provide his identification or
identifying information. Notwithstanding the fact that Johnson should have informed the
officers immediately, once the encounter escalated and Johnson was being arrested,
Johnson was required to inform the officers of his CCW permit and the firearm present
inside the vehicle.
{¶33} Viewing the evidence in the light most favorable to the prosecution, I would
find sufficient evidence to support Johnson’s conviction for carrying a concealed weapon
in violation of R.C. 2923.12(B)(1).