State v. Matthews , 2015 Ohio 5075 ( 2015 )

[Cite as State v. Matthews, 2015-Ohio-5075.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140663
TRIAL NO. C-14CRB-22241B
Plaintiff-Appellee, :
vs. : O P I N I O N.
NATASHA MATTHEWS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: December 9, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Josh Thompson,
Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Presiding Judge.
{¶1} Following a bench trial, defendant-appellant Natasha Matthews
appeals from her conviction for resisting arrest, in violation of R.C. 2921.33.
Matthews had persisted in yelling and cursing at her sister, Erika Higgins, after
police officers had warned her to leave or face arrest. While we affirm the trial court’s
finding of guilt, because the court did not afford Matthews the right of allocution
before imposing sentence, we reverse the sentence, and remand the cause to the trial
court for resentencing.
{¶2} St. Bernard, Ohio police officers had responded to an emergency
telephone call stating that two women were fighting. When they arrived, the officers
found Matthews screaming at Higgins, just outside of Higgins’ residence. A number of
persons, including children, had gathered to watch the altercation. After separating the
two and speaking with each, the officers told Matthews that she needed to leave the
residence. Despite being told four times to leave, and being warned that she faced arrest
for disorderly conduct, Matthews refused to leave, and continued yelling at her sister and
the officers. An officer then attempted to put Matthews under arrest. She struggled with
the officer and tried to pull away from him when he attempted to place her in handcuffs.
{¶3} Matthews was ultimately charged with misconduct at an emergency, in
violation of R.C. 2917.13, and with resisting arrest. At trial, the court granted Matthews’
motion for a judgment of acquittal on the misconduct-at-an-emergency charge. After
hearing the testimony of the arresting officers and of Matthews, the trial court found
Matthews guilty of resisting arrest. At sentencing, the court sought mitigation from
Matthews’ counsel, but it did not personally address Matthews and ask whether she
wished to make a statement in her own behalf or to present any information in mitigation
of punishment. The trial court stayed the imposition of its sentence, including a
suspended jail term and a six-month period of community control.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In her first assignment of error, Matthews asserts that the trial court
lacked jurisdiction to proceed because the criminal complaint initiating the
resisting-arrest charge against her had not included the numerical designation of
the applicable statute and had misnamed Matthews, referring to her in one of three
places on the face of the complaint as “Natasha Higgins.” We disagree.
{¶5} First, Matthews has waived the misnaming issue, and it cannot form
the basis of any claimed error on appeal. See State v. Payne, 114 Ohio St. 3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 23. Matthews intentionally relinquished the
issue when she brought it to the trial court’s attention and then indicated that she
was ready to proceed despite the fact that the court “might have [had her name] as
Higgins.”
{¶6} Next, Crim.R. 3 provides that a complaint shall include the
numerical designation of the applicable statute. But Matthews’ failure to raise this
issue in the trial court forfeits all but plain error. Payne at ¶ 23. Since the omission
of the numerical designation did not mislead Matthews in the preparation of her
defense, any error in the complaint did not rise to the level of plain error. See
Crim.R. 52(B); see also State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-
120571, 2013-Ohio-4775, ¶ 14-15. The first assignment of error is overruled.
{¶7} In two interrelated assignments of error, Matthews challenges the
weight and the sufficiency of the evidence adduced to support her conviction for
resisting arrest. She argues that the state failed to prove that she had been lawfully
arrested, and that her actions had constituted resistance against the police officers.
{¶8} The offense of resisting arrest, defined in R.C. 2921.33(A), provides
that, “[n]o person recklessly or by force shall resist or interfere with the lawful arrest
of a person or another.” Although the arrest must be lawful, it is not necessary for
the state to prove that the defendant was in fact guilty of the offense for which the
arrest was made to uphold a conviction for resisting arrest. See State v. Thompson,
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OHIO FIRST DISTRICT COURT OF APPEALS
116 Ohio App. 3d 740, 743, 689 N.E.2d 86 (1st Dist.1996); see also State v.
Sansalone, 71 Ohio App. 3d 284, 285, 593 N.E.2d 390 (1st Dist.1991). An arrest is
lawful if the surrounding circumstances would give a reasonable police officer cause
to believe that an offense has been or is being committed. See Thompson at 743-
744.
{¶9} Our review of the record fails to persuade us that the trial court, acting as
the trier of fact, clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered. See State v. Thompkins, 78
Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). The state adduced ample evidence that the
officers had observed a loud altercation between the sisters, and that after the officers had
repeatedly asked Matthews to leave or face arrest, she persisted in yelling and cursing.
These actions would cause a reasonable police officer to believe that Matthews had
engaged in disorderly conduct, an arrestable offense under R.C. 2917.11(E)(3)(a). The
officers’ testimony also revealed that Matthews had pulled away from the officer
attempting to take her into custody. Since the weight to be given to the evidence in this
case and to the credibility of the witnesses was for the trial court, sitting as the trier of
fact, to determine, it was entitled to reject Matthews’ theory that the arrest had not been
lawful and that she had not resisted arrest. See R.C. 2921.33(A); see also State v.
DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶10} Moreover, the record reflects substantial, credible evidence from which
the trier of fact could have reasonably concluded that all elements of the resisting-arrest
offense had been proved beyond a reasonable doubt, including that Matthews’ disorderly
conduct had persisted after the officers had warned her to leave or face arrest. See R.C.
2921.33(A); see also State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, 842 N.E.2d
996, ¶ 36. The second and third assignments of error are overruled.
{¶11} In her fourth assignment of error, Matthews asserts that the trial court
erred by denying her the right of allocution before it imposed the sentence. We agree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} When imposing sentence, the trial court must address the defendant
personally and ask whether she wishes to make a statement in her own behalf or present
any information in mitigation of punishment. See Crim.R. 32(A)(1); see also State v.
Green, 90 Ohio St. 3d 352, 359-360, 738 N.E.2d 1208 (2000). The right of allocution
belongs to the defendant herself. See State v. Thompson, 1st Dist. Hamilton No. C-
120516, 2013-Ohio-1981, ¶ 5. It is not enough for the trial court to give defense counsel
the opportunity to speak on the defendant’s behalf. See Green at 359-360.
{¶13} If a trial court imposes sentence without first asking the defendant if she
wants to exercise the right of allocution, resentencing is required unless the error is
invited error or harmless. See State v. Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178
(2000), paragraph three of the syllabus. Here, the trial court failed to address Matthews
personally and ask her if she wished to make a statement in her own behalf or to present
any information in mitigation of punishment before imposing sentence. This was error,
and the unusual circumstances that could render the error harmless are not present in
this case. See State v. Osume, 1st Dist. Hamilton No. C-140390, 2015-Ohio-3850, ¶ 24;
compare State v. Reynolds, 80 Ohio St. 3d 670, 684, 687 N.E.2d 1358 (1998). Since
Matthews was not afforded an opportunity to speak in mitigation before the trial court
imposed sentence, we sustain the fourth assignment of error. See Osume at ¶ 24.
{¶14} Matthews’ fifth assignment of error, in which she alleges that she was
denied a fair trial because of the cumulative effect of the errors in the case, is overruled.
Since Matthews’ trial was not infected with multiple instances of harmless error,
the cumulative-error doctrine does not apply. See State v. Leach, 150 Ohio App. 3d 567,
2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st Dist.); see also State v. Yarbrough, 104 Ohio
St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 112.
{¶15} Having sustained her fourth assignment of error, we reverse Matthews’
sentence, and we remand the cause to the trial court for resentencing in accordance with
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OHIO FIRST DISTRICT COURT OF APPEALS
this opinion and the law. See Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178, at
paragraph three of the syllabus. We affirm the trial court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
DEWINE and STAUTBERG, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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