State v. Certain , 2009 Ohio 148 ( 2009 )

{¶ 21} I respectfully and reluctantly dissent.

{¶ 22} The principal opinion cites with approval other Ohio court decisions that have concluded that the act of fleeing from a police officer who is lawfully attempting to detain a suspect under the authority of Terry is an affirmative act that hinders or impedes the officer in the performance of the officer's duties under R.C. 2921.31. See, e.g., State v. Harris, Franklin App. No. 05AP-27,2005-Ohio-4553, 2005 WL 2087926. I must emphasize that I have no quarrel whatsoever with the concept that flight from aTerry investigative detention or seizure should constitute punishable criminal conduct. My difficulty with this issue stems from my belief that such a violation should not simply fall under the R.C. 2921.31 catch-all provision, otherwise known as the obstructing-official-business statute. As I point out infra, I believe that the legislature should, if it so desires, enact legislation to explicitly address this specific conduct.

{¶ 23} In State v. Gillenwater (Apr. 2, 1998), Highland App. No. 97CA0935, 1998 WL 150354, we noted that although we have great sympathy with the plight of law-enforcement officers attempting to investigate criminal activity, courts must nevertheless construe and interpret criminal laws strictly against the state and liberally in favor of an accused. See State v. Hill (1994),70 Ohio St. 3d 25, 635 N.E.2d 1248; State v. Hooper (1979),57 Ohio St. 2d 87, 11 O.O.3d 250, 386 N.E.2d 1348; State v.Gray (1992), 62 Ohio St. 3d 514, 584 N.E.2d 710; R.C. 2901.04. Also, legislative bodies have the duty to create criminal laws through statutes. Courts have the duty to interpret, and not create, criminal laws. Most importantly, criminal statutes must provide citizens and courts with adequate notice and guidance concerning the particular description and nature of criminal offenses.

{¶ 24} First, it is important to recognize that the Ohio Revised Code includes several other specific statutory provisions related to this area of criminal law. See, e.g., R.C. 2921.22 (prohibiting a person from resisting a lawful arrest); R.C. 2921.331 (prohibiting an individual from failing to comply with an officer's order regarding traffic flow and from failing to stop his vehicle when the officer signals the motorist to stop); and R.C. 2921.34 (no person, knowing the person is under detention or being reckless in that regard, shall purposely break or attempt to break (escape) the detention).²

{¶ 25} As we noted in Gillenwater, courts should construe statutory provisions together and read the Revised Code "as an interrelated body of law." State v.Moaning (1996), 76 Ohio St. 3d 126, 128, 666 N.E.2d 1115. Statutes that relate to the same subject matter are in pari materia, and courts should read the statutes together "to ascertain and effectuate the legislative intent." Id. Another factor to consider is the principle of expressio unis est exclusio alterius ("Expressio unis est exclusioalterius means [that] ``the expression of one thing is the exclusion of the other.'" Thomas v. Freeman (1997),79 Ohio St. 3d 221, 224, 680 N.E.2d 997, quoting Black's Law Dictionary (6th Ed. 1990) 581.)

{¶ 26} In light of the foregoing principles, I believe that if the legislature desires that flight from aTerry investigative seizure or detention constitute a violation of a criminal statute, the legislature should enact legislation to that effect, just as it has with other similar crimes and fact situations. See R.C. 2921.22, 2921.34, and2921.331. Courts should not strain to include such conduct under the very general provision known as the obstruction-of-official-business statute.

{¶ 27} Second, I am concerned about the lack of a precise definition of the "elements" of the crime of flight from a Terry investigative detention or seizure. Determining when contact with a law-enforcement officer constitutes aTerry investigative seizure or detention, rather than consensual police contact or an arrest, often presents difficult factual and legal issues. Search-and-seizure treatises reveal that courts and commentators have varying thoughts and interpretations concerning precisely when a Terry detention or seizure may have occurred and differing views about that detention's scope and duration. In contrast, the elements of the resisting arrest statute, the failure to comply with an officer's order statute, and the escape statute have been clearly identified. Finally, I note that unlike arrest situations, when officers generally explicitly inform suspects that they are under arrest, or at a minimum make some other indication that an arrest has, in fact, occurred, rarely, if ever, does an officer inform a suspect that he or she is under aTerry investigative seizure or detention. Instead, defendants and courts will be left to speculate about the exactitudes of such an offense.

{¶ 28} Once again, I have no quarrel with the concept that flight from a Terry investigative detention or seizure should constitute punishable criminal conduct. I simply have difficulty about how we get there.

² {¶ a} The Legislative Service Commission comment to R.C. 2921.34 provides:

{¶ b} "This section consolidates several sections in former law, and restates the offense of escape so as to include an escape from arrest * * *.

{¶ c} "Under the section, proof of guilt of escape requires a showing that the offender knew he was under detention or perversely disregarded a risk that he was under detention. The purpose of this requirement is to protect those who don't know and have not reasonably been informed that they are under detention, or who reasonably believe that they are the victims of an illegal detention committed for the purpose of harming them in some way."