State v. Swift ( 2023 )

[Cite as State v. Swift, 2023-Ohio-1435.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-22-17
v.
KEVIN ST. JAMES SWIFT, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 21-CR-342
Judgment Affirmed
Date of Decision: May 1, 2023
APPEARANCES:
W. Joseph Edwards for Appellant
Raymond A. Grogan, Jr. for Appellee
Case No. 9-22-17
MILLER, P.J.
{¶1} Defendant-appellant, Kevin St. James Swift, appeals the March 25,
2022 judgment of sentence of the Marion County Court of Common Pleas. For the
reasons that follow, we affirm.
I. Facts & Procedural History
{¶2} On August 1, 2021, several officers from the Marion Police Department
were dispatched to Swift’s residence to arrest him in connection to a domestic
dispute. On their arrival, Swift initially refused to exit his residence. When Swift
did eventually open his door to the officers, he did not cooperate. A stand-off
ensued, with Swift stalling for 30-45 minutes. During this time, Swift grew
belligerent with the officers. After a while, one of the officers reached through
Swift’s doorway, grabbed Swift’s exposed arm, and attempted to pull him from the
residence in order to effectuate an arrest. Swift physically resisted, and he was
handcuffed and taken into custody only after a taser was deployed against him.
During the struggle, one of the arresting officers strained his groin. The officer
subsequently sought medical attention for his injury.
{¶3} On August 11, 2021, the Marion County Grand Jury indicted Swift on
one count of obstructing official business in violation of R.C. 2921.31(A), a fifth-
degree felony. On August 16, 2021, Swift appeared for arraignment and pleaded
not guilty.
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{¶4} The matter proceeded to a jury trial on March 1, 2022. At the
conclusion of the evidence, Swift moved to dismiss the single count of the
indictment on grounds that he could not legally be convicted of obstructing official
business. Specifically, Swift maintained that if his conduct constituted fifth-degree
felony obstructing official business, then it also constituted the offense of resisting
arrest in violation of R.C. 2921.33(B), and that the existence of the resisting arrest
statute—the specific statute—precluded his prosecution under the obstructing
official business statute—the general statute. The trial court denied Swift’s motion,
and thereafter, the jury found Swift guilty of obstructing official business as charged
in the indictment.
{¶5} A sentencing hearing was held on March 23, 2022. At the hearing, the
trial court sentenced Swift to 11 months in prison. The trial court filed its judgment
entry of sentence on March 25, 2022.
II. Assignment of Error
{¶6} On March 29, 2022, Swift timely filed a notice of appeal. He raises the
following assignment of error for our review:
When a specific statute is enacted to cover criminal behavior
(resisting arrest), the trial court errs by entering a judgment of
conviction for a conflicting general statute (obstructing official
business) thereby violating Ohio law as well as appellant’s due
process rights under the Ohio and Federal Constitutions.
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III. Discussion
{¶7} In his assignment of error, Swift argues that the trial court erred by
denying his motion to dismiss. As he argued before the trial court, Swift claims that
resisting arrest is a specific statute that prevails over the more general obstructing
official business statute, which calls for application of R.C. 1.51. Swift argues that,
applying R.C. 1.51, the resisting arrest statute is the only statute under which he
could have been lawfully charged and convicted.
R.C. 1.51 provides:
If a general provision conflicts with a special or local provision, they
shall be construed, if possible, so that effect is given to both. If the
conflict between the provisions is irreconcilable, the special or local
provision prevails as an exception to the general provision, unless the
general provision is the later adoption and the manifest intent is that
the general provision prevail.
“Where it is clear that a special provision prevails over a general provision or the
Criminal Code is silent or ambiguous on the matter, under R.C. 1.51, a prosecutor
may charge only on the special provision.” State v. Chippendale, 52 Ohio St.3d 118(1990), paragraph three of the syllabus.
{¶8} “[S]everal prerequisites must be met prior to applying the conflicting
statute rule.” Columbus v. Clark, 10th Dist. Franklin No. 14AP-719, 2015-Ohio-
2046, ¶ 18. First, there must be both a “general” statute and a “special or local”
statute. See Chippendale at 120 (“If the statutes are [both] general and do not
involve the same or similar offenses, then R.C. 1.51 is inapplicable.”). In addition,
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“the general and special or local statutes must ‘conflict,’ and the conflict must be
‘irreconcilable’ in that the statutes cannot be construed ‘so that effect is given to
both.’” Clark at ¶ 18, quoting R.C. 1.51.
{¶9} The question of R.C. 1.51’s applicability often turns on whether the two
competing statutes are irreconcilably in conflict. An irreconcilable conflict “arises
when the same conduct is punishable by different penalties in different statutes.”
State v. Blanton, 4th Dist. Adams No. 16CA1035, 2018-Ohio-1278, ¶ 52, citing
Chippendale and State v. Volpe, 38 Ohio St.3d 191, 193 (1988). “[T]he state is not
required to proceed against a defendant under a specific statute where the specific
and general statute ‘each provides a different penalty for a different course of
conduct’ and are therefore reconcilable.” Clark at ¶ 19, quoting State v. Culwell,
10th Dist. Franklin No. 96APA04-504, 1996 WL 684135, *4 (Nov. 26, 1996).
{¶10} Obstructing official business—the offense Swift was charged with and
convicted of—is codified at R.C. 2921.31(A). Under R.C. 2921.31(A), “[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.” Although obstructing official
business is typically a second-degree misdemeanor, it is elevated to a fifth-degree
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felony upon proof that the defendant “create[d] a risk of physical harm to any
person” during the commission of the offense. R.C. 2921.31(B).
{¶11} Resisting arrest—the offense Swift believes he should have been
charged with—is codified in its varying forms at R.C. 2921.33. As relevant here,
R.C. 2921.33(B) provides that “[n]o 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.” Resisting arrest in violation of R.C. 2921.33(B) is a first-
degree misdemeanor. R.C. 2921.33(D).
{¶12} Comparing the two statutes, we find no irreconcilable conflict between
fifth-degree felony obstructing official business and resisting arrest as proscribed by
R.C. 2921.33(B). The obstructing official business statute prohibits a person from
acting with “purpose to prevent, obstruct, or delay.” Thus, the culpable mental state
for obstructing official business is “purpose.” See R.C. 2901.22(A). By contrast,
the resisting arrest statute forbids a person from resisting or interfering with a lawful
arrest either “recklessly or by force.” Consequently, where force is not used to resist
or interfere with a lawful arrest, the culpable mental state for resisting arrest is
“recklessness.” See R.C. 2901.22(C). Furthermore, the resisting arrest statute
“clearly imposes strict liability upon an individual who resists a lawful arrest by
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force.” Findlay v. Clark, 3d Dist. Hancock No. 5-95-8, 1996 WL 65601, *4 (Feb.
12, 1996).
{¶13} Hence, a person can commit the offense of resisting arrest even when
they do not act with the purpose of preventing, obstructing, or delaying their arrest.
Thus, a violation of R.C. 2921.33(B) does not necessarily result in commission of
the offense of obstructing official business under R.C. 2921.31(A). As the conduct
proscribed by R.C. 2921.31(A) and 2921.33(B) is not identical, the statutes are not
irreconcilable and do not implicate R.C. 1.51. See State v. Romine, 5th Dist.
Muskingum No. CT2020-34, 2021-Ohio-1026, ¶ 17 (concluding that “[b]ecause the
elements of [domestic violence and endangering children] differ they do not create
a conflict between a general and a special provision”); Blanton, 2018-Ohio-1278, at
¶ 56 (holding that the coercion and kidnapping “statutes prohibit separate and
distinct offenses and therefore, the statutes are reconcilable”); State v. Armstrong,
10th Dist. Franklin No. 16AP-410, 2017-Ohio-8715, ¶ 30 (charging statutes were
not irreconcilable with supposed specific statute in part because the culpable mental
states were different); State v. Hardy, 2d Dist. Montgomery No. 27158, 2017-Ohio-
7635, ¶ 57 (concluding that because the offense of failure to confine a vicious dog
in violation of R.C. 955.22 is a strict liability offense, whereas the offenses of
involuntary manslaughter and endangering children require proof of proximate
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cause and foreseeability and recklessness, respectively, the statutes are
reconcilable).
{¶14} Because the statutes are not irreconcilably in conflict, it was well
within the State’s authority to prosecute Swift under the obstructing official business
statute in preference to the resisting arrest statute. Indeed, “[w]here two statutes
proscribe similar conduct, no rule of law requires the prosecution to proceed under
the statute with [the] lower penalty.” Culwell, 1996 WL 684135, at *4. Moreover,
the State was permitted to pursue the obstructing official business charge against
Swift even if Swift had also simultaneously committed the offense of resisting
arrest. “The mere fact that [a defendant’s] conduct violates more than one statute
does not force the state to prosecute him under the lesser statute.” State v. Cooper,
66 Ohio App.3d 551, 553 (4th Dist.1990). As the Supreme Court of the United
States has explained:
[W]hen an act violates more than one criminal statute, the
Government may prosecute[] under either so long as it does not
discriminate against any class of defendants. Whether to prosecute
and what charge to file or bring before a grand jury are decisions that
generally rest in the prosecutor’s discretion.
(Citations omitted.) United States v. Batchelder, 442 U.S. 114, 123-124, 99 S.Ct.
2198 (1979). Therefore, we conclude that the trial court did not err by denying
Swift’s motion to dismiss.
{¶15} Swift’s assignment of error is overruled.
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IV. Conclusion
{¶16} For the foregoing reasons, Swift’s assignment of error is overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Marion County Court of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and WALDICK, J.J., concur.
/jlr
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