State v. Barnes

[Cite as State v. Barnes, 2013-Ohio-2836.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-P-0133
- vs - :
JACK E. BARNES, JR., :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas.
Case No. 2012 CR 0021.
Judgment: Affirmed in part; reversed in part and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Brian A. Smith, 503 West Park Avenue, Barberton, OH 44203 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Jack E. Barnes, Jr., appeals the judgment of conviction entered
by the Portage County Court of Common Pleas, after trial by jury, on one count of
vandalism and one count of resisting arrest. As the record establishes a sufficient
evidentiary basis by which a jury could conclude the act of vandalism was committed
out of necessity, and as appellant’s trial counsel failed to request an instruction on the
defense of necessity, we conclude trial counsel’s representation in defending against
the vandalism charge fell below an objective standard of reasonable representation and
prejudiced Mr. Barnes. Mr. Barnes’ conviction for vandalism is therefore reversed and
the matter remanded for a new trial. Mr. Barnes’ remaining conviction for resisting
arrest is affirmed.
{¶2} Mr. Barnes was indicted on one count of vandalism, a fifth-degree felony
in violation of R.C. 2909.05(B)(1)(b), and one count of resisting arrest, a second-degree
misdemeanor in violation of R.C. 2921.33(A). The matter proceeded to a jury trial
where the following facts were adduced through testimony and exhibits.
{¶3} On the warm, sunny evening of September 14, 2011, at approximately
6:30 p.m., Officer Scott Hearns of the Windham Police Department responded to a
domestic disturbance call at a private residence in the village of Windham. Upon
arrival, Officer Hearns observed Mr. Barnes and Ms. Maria Disanza outside the home
along with two other residents. Officer Hearns approached Ms. Disanza to obtain a
narrative of events that prompted the disturbance call.
{¶4} As Officer Hearns began questioning Ms. Disanza, Mr. Barnes, appearing
both agitated and inebriated, injected himself into the investigation in an effort to argue
his version of events. After Officer Hearns unsuccessfully advised Mr. Barnes to calm
himself, the officer attempted to place Mr. Barnes in handcuffs. When Mr. Barnes
became resistant, Officer Hearns forced him to the ground. Mr. Barnes, whose face
was planted in dog excrement, continued to frustrate the officer’s efforts to place him in
handcuffs. Officer Hearns sprayed the side of Mr. Barnes’ face with pepper spray and
finally successfully placed him in handcuffs. Mr. Barnes explained at the scene that he
would not enter the cruiser until Officer Hearns “got this shit” off his face, referring
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literally to the dog excrement. Mr. Barnes was placed into the cruiser with the
excrement and pepper spray still on his face. Officer Hearns explained to Ms. Disanza
that Mr. Barnes was under arrest for disturbing the peace.
{¶5} Officer Hearns returned to the station, backed the cruiser into the garage
and shut the garage door. The officer turned off his cruiser and went into the dispatch
area to work on his arrest report. Rather than place Mr. Barnes in the booking room,
Officer Hearns left Mr. Barnes in the back of his cruiser. The rear windows were shut,
though Officer Hearns left the driver and passenger side windows “slightly cracked” and
had the small plexi-glass partition door open.
{¶6} At approximately 7:00 p.m., Officer Jason Lamtman arrived on duty and,
according to his testimony, observed Mr. Barnes for a short period. Testimony differs at
this point: Mr. Barnes explained the pepper spray in conjunction with the extremely
warm cabin was burning his face. He testified sweat was pouring down his face and he
began to hyperventilate. He explained he yelled out that he could not breathe, but no
one came. Officer Lamtman and Officer Hearns acknowledged Mr. Barnes was yelling,
but did not remember him specifically stating he could not breathe.
{¶7} Officer Lamtman then left the garage to take a call at a nearby Circle K
convenience store, leaving Mr. Barnes in the back of the cruiser completely unattended.
After 45 minutes of being in the garage, Mr. Barnes explained he felt asphyxiated and
had no choice but to break the cruiser window. Officer Hearns conceded Mr. Barnes
had been in the back of the cruiser in the garage for 45 minutes.
{¶8} Mr. Barnes broke the cruiser window with his foot, cutting his leg in the
process. Photographs admitted into evidence illustrate a large amount of dried blood on
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the rear vinyl seat of the cruiser. Mr. Barnes was treated for minor injuries and released
into custody.
{¶9} Despite trial counsel eliciting the testimony and arguing that Mr. Barnes
had no choice but to kick out the window in order to breathe, he did not assert the
defense of necessity and did not request any such jury instruction.
{¶10} The jury returned a verdict of guilty on both charges, and Mr. Barnes was
sentenced to two years probation.
{¶11} Mr. Barnes now appeals and asserts four assignments of error, which will
be addressed out of numerical order. Appellant’s second assignment of error states:
{¶12} “Trial counsel’s failure to define and explain the defense of necessity
during the trial, or to request a jury instruction regarding the defense of necessity
constituted ineffective assistance of counsel.”
{¶13} In order to prevail on an ineffective assistance of counsel claim, appellant
must demonstrate that trial counsel’s performance fell below an objective standard of
reasonable representation, and there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph two of the syllabus, adopting the test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). There is, however, a general presumption that
trial counsel’s conduct is within the broad range of professional assistance. Bradley at
142-143.
{¶14} We begin by examining the charge of vandalism. First, it must be
determined whether trial counsel’s performance fell below an objective standard of
reasonable representation. Strategic and tactical decisions of trial counsel fall within the
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scope of objectionably reasonable judgment, and generally, “[a]n attorney’s decision not
to request a particular jury instruction is a matter of trial strategy and does not establish
ineffective assistance of counsel.” State v. Morris, 9th Dist. No. 22089, 2005-Ohio-
1136, ¶100.
{¶15} As State v. Vandergriff, 11th Dist. No. 99-A-0075, 2001 Ohio App. LEXIS
4285 (Sept. 21, 2001) illustrates, however, when evidence is adduced to meet the
burden of production of an affirmative defense, it is difficult to characterize trial
counsel’s failure to formally assert the defense and request a corresponding instruction
as trial strategy. There, the defendant was tried before a jury on one count of domestic
violence following a physical altercation with his 12-year-old child. During trial, counsel
developed testimony which provided a sufficient evidentiary basis by which to conclude
the defendant exercised reasonable parental discipline—an affirmative defense.
Despite this testimony and counsel’s argument, counsel failed to assert the defense of
reasonable parental discipline and failed to request the corresponding instruction.
{¶16} On appeal, we concluded trial counsel’s representation fell below an
objective standard and that his failure to request the instruction was not trial strategy:
counsel clearly attempted to raise the defense, devoting much of his cross-examination
of the victim and the victim’s mother to eliciting evidence of the victim’s poor behavior
and physically-combative actions on the day in question. Id. at *16-17. Though the
defendant did not take the stand, the burden of production was met by the testimony
adduced through cross-examination. Id. at *17. We concluded: “It is apparent that
counsel did not make a strategic decision not to raise the defense, rather, he did
present the defense, although without testimony from appellant.” Id. Further, “[u]nder
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the facts of this case, asserting the defense of proper and reasonable parental discipline
was the only rational avenue for the defense to take. An essential part of raising the
defense is getting a jury instruction that permits a finding it has been met.” Id.
{¶17} Similarly here, counsel clearly attempted to raise the defense, devoting
much of his cross-examination of Officer Hearns to his leaving Mr. Barnes unattended in
the back seat of the parked cruiser with “slightly cracked” front windows in an enclosed
garage on a warm summer evening for approximately 45 minutes. Counsel also elicited
testimony regarding the severe effects of pepper spray, including the sensation of
burning, and further highlighted the fact that Officer Hearns did not wipe off the spray
and did not place Mr. Barnes in the booking area.
{¶18} Counsel also presented a case and placed Mr. Barnes on the stand. Mr.
Barnes described the conditions inside the cruiser, noting the air was off, the windows
were up, the pepper spray was burning his face, and “it was definitely more than
seventy degrees” in the confined cabin. He testified that he felt completely unattended
and did not see another officer in the garage watching him. He noted he did not know
where Officer Hearns had gone or when he would return. Mr. Barnes explained he
began hyperventilating and felt asphyxiated from the lack of air flow and from the
burning on his face. He testified he was screaming, yelling, and pleading for help: “I
begged them to let me out of there, to let them know that I couldn’t breathe. I banged
on the window with my head a few times. Nobody would come out. I felt like, you
know, I needed to get out of that car.” The prosecution responded to this testimony,
arguing that if someone is yelling, he can breathe.
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{¶19} When asked why he did not wipe off his own face, Mr. Barnes explained
he was unable to do so given that his hands were wrapped around his back and the
quarters were too tight to maneuver his knees up to his face. Mr. Barnes testified,
consistent with Officer Hearns, that he was in the back seat of the cruiser in the garage
for approximately 45 minutes. The defense, boiled down to its essence, can succinctly
be recited with this exchange:
{¶20} “Q: So why did you break the window?
{¶21} “A: Because I couldn’t breathe.”
{¶22} Given the testimony through cross and direct examinations, Mr. Barnes
met the burden of production by establishing a sufficient evidentiary basis necessary to
warrant an instruction on the affirmative defense of necessity.
{¶23} During closing argument, trial counsel asserted:
{¶24} [W]hen you’re in a situation, you’re locked in a car for 45 minutes
with slit windows and nothing more than one by one foot square to
breathe through, and you have pepper spray on your head and
you’re sweating * * * [w]hen you’re in that situation, and you can’t
open up the door, and you can’t hit an emergency switch and
nobody is coming, when you’re yelling and screaming, you get to
kick the door out. That’s not vandalism.
{¶25} Thus, trial counsel elicited the testimony that Mr. Barnes broke the window
because he had no choice and, at the close of evidence, argued that when one is in that
situation, they get to kick the door out. Despite this, counsel did not assert the defense
of necessity and did not request the corresponding jury instruction with respect to that
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defense. Given that these actions are inconsistent and that the only rational avenue to
proceed was under the defense of necessity, we cannot conclude this failure constituted
trial strategy. Rather, in failing to assert the defense of necessity and to request a
corresponding jury instruction after arguing that all the necessary points were raised by
cross examination and the defense case, counsel’s representation fell below an
objective standard of reasonable representation as applied to the charge of vandalism.
{¶26} We must now determine whether there is a reasonable probability that, but
for counsel’s error, the result of the proceeding would have been different; i.e., had
counsel properly asserted the defense and requested an instruction, there is a
reasonable probability that Mr. Barnes would not have been convicted of vandalism. As
cautioned by the Ohio Supreme Court, the defense of necessity “is strictly and
extremely limited in application and will probably be effective in very rare occasions.”
State v. Cross, 58 Ohio St.2d 482, 488 (1979). To prove the defense of necessity, the
following elements must each be met:
{¶27} ‘(1) the harm must be committed under pressure of physical or
natural force, rather than human force; (2) the harm sought to be
avoided is greater than, or at least equal to that sought to be
prevented by the law defining the offense charged; (3) the actor
reasonably believes at that moment that his act is necessary and is
designed to avoid the greater harm; (4) the actor must be without
fault in bringing about the situation; and (5) the harm threatened
must be imminent, leaving no alternative by which to avoid the
greater harm.’ State v. Mogul, 11th Dist. Nos. 2003-T-0177 &
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2003-T-0174, 2006-Ohio-1878, ¶44, quoting State v. Prince, 71
Ohio App.3d 694, 699 (4th Dist.1991).
{¶28} As indicated above, there is sufficient evidence with regard to each
element whereby, if requested, the instruction should be given. If believed, it would not
be considered unreasonable for a jury to acquit Mr. Barnes of the charge. The alleged
harm was committed by the natural combination of high temperature, pepper spray, and
sweat; Mr. Barnes risked criminal prosecution and endured injury to his leg in order to
break the window; Mr. Barnes may have reasonably believed the act was necessary to
avoid hyperventilation, especially when his cries for help went unanswered and he felt
essentially abandoned; while the conduct of Mr. Barnes put him in the position to be
arrested, he was without fault with regard to the circumstances he found himself in at
the police station—Officer Hearns deliberately left him handcuffed in the cruiser without
allowing him to wipe off the dog excrement or the pepper spray for an inordinately long
period of time; finally, the harm he claimed to be experiencing was serious—the feeling
of imminent asphyxiation.
{¶29} As noted by the Ohio Supreme Court, “‘[i]n a humane society, some
attention must be given to the individual dilemma.’” Cross at 488, quoting People v.
Lovercamp, 43 Cal. App. 3d 823 (1974). With this evidence and the proper instruction,
a jury could reasonably conclude Mr. Barnes had no choice but to break the window.
We therefore conclude counsel’s failure to request the instruction prejudiced Mr.
Barnes.
{¶30} The problem with counsel arguing the defense during the course of the
trial but failing to request the instruction is obvious. It is clear Mr. Barnes knowingly and
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deliberately caused the damage. Without the instruction on the defense of necessity,
there is nothing in the jury instructions as given that could have permitted the jury to find
Mr. Barnes not guilty.
{¶31} Given the facts and circumstances outlined above, Mr. Barnes was denied
effective assistance of trial counsel with regard to the charge of vandalism.
{¶32} Mr. Barnes suggests both of his convictions must be reversed; however,
turning to the remaining charge of resisting arrest, it cannot be concluded that there was
sufficient evidence to warrant an instruction for the defense of necessity even if
requested. Rather, trial counsel’s failure to request the instruction only had an impact
on the charge of vandalism.
{¶33} Accordingly, Mr. Barnes’ second assignment of error has merit to the
extent indicated.
{¶34} Mr. Barnes’ third assignment of error states:
{¶35} “The trial court’s decision not to give a jury instruction on the defense of
necessity to the charge of vandalism constituted plain error.”
{¶36} We cannot find plain error on the part of the trial court in this regard; in any
event, the disposition of Mr. Barnes’ second assignment of error renders the above-
framed assignment moot.
{¶37} Mr. Barnes’ fourth assignment of error states:
{¶38} “The trial court’s overruling of trial counsel’s objection to introduction of the
video recording constituted an abuse of discretion.”
{¶39} In his fourth assignment of error, Mr. Barnes takes exception to a
videotape shown to the jury, arguing its danger of unfair prejudice outweighed its
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probative value under Evid.R. 403(A). Officer Hearns’ lapel was fitted with a small
recording device that documented the arrest of Mr. Barnes. It shows Mr. Barnes
struggling to be fitted with the handcuffs and seemingly resistant to the officer’s efforts.
{¶40} Ordinarily, a trial court’s evidentiary rulings are reviewed under an abuse
of discretion standard. However, a review of the record in this case indicates trial
counsel did not object to the admissibility of the tape and, in fact, stipulated to its
authenticity. Trial counsel eventually made an objection at one point, simply stating, “I
object to the rest of this as irrelevant.” It could be assumed this objection was lodged at
the point in the videotape after Mr. Barnes was placed into the cruiser and Officer
Hearns obtained the social security number of Ms. Disanza who, in turn, chastised the
officer for his treatment of Mr. Barnes. However, it is not clear at what point the
objection was made, and in relation to admissibility of the tape in its entirety, Mr. Barnes
has waived all but plain error on appeal, which has not been demonstrated.
{¶41} Indeed, notice of plain error is to be “taken with utmost caution and only to
prevent a manifest miscarriage of justice[.]” State v. Reives-Bey, 9th Dist. No. 25138,
2011-Ohio-1778, ¶11. Moreover, this court proceeds with great reluctance in employing
a plain error analysis in cases that would require the trial court to advocate on behalf of
the defendant. See, e.g., State v. Mock, 11th Dist. No. 2012-L-066, 2013-Ohio-874,
¶10. For instance, to avoid the alleged error in this case, the trial court would have had
to object to the videotape’s admissibility on behalf of the defendant.
{¶42} Mr. Barnes’ fourth assignment of error is without merit.
{¶43} Mr. Barnes’ first assignment of error states:
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{¶44} “Appellant’s convictions for vandalism and resisting arrest were against
the manifest weight of the evidence.”
{¶45} The disposition of Mr. Barnes’ second assignment of error renders the
vandalism portion of the above-framed assignment moot. The remaining question is
solely whether the conviction of resisting arrest was against the manifest weight of the
evidence.
{¶46} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997). In weighing the evidence submitted at a criminal trial, an
appellate court must defer to the factual findings of the trier of fact regarding the weight
to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. Further, “[n]o conviction resulting from
a trial by jury shall be reversed on the weight of the evidence except by the concurrence
of all three judges hearing the appeal.” Webber v. Kelly, 120 Ohio St.3d 440, 2008-
Ohio-6695, ¶6.
{¶47} Here, the defense maintained Mr. Barnes did not know at the time that he
was under arrest and therefore could not resist arrest. “An arrest occurs when the
following four requisite elements are involved: (1) An intent to arrest, (2) under a real or
pretended authority, (3) accompanied by an actual or constructive seizure or detention
of the person, and (4) which is so understood by the person arrested.” State v. Darrah,
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64 Ohio St.2d 22, 26 (1980); State v. Barker, 53 Ohio St.2d 135 (1978), paragraph one
of the syllabus. “Furthermore, an arrest, in the technical, as well as the common sense,
signifies the apprehension of an individual or the restraint of a person’s freedom in
contemplation of the formal charging with a crime.” Id. A review of the record indicates
the jury was instructed accordingly.
{¶48} As explained above, Officer Hearns’ lapel was fitted with a small recording
device, which documented the difficulty he encountered in fitting Mr. Barnes with
handcuffs and Mr. Barnes’ downright refusal to enter the back of the cruiser. There was
a considerable scuffle between Officer Hearns and Mr. Barnes in the officer’s attempt to
detain Mr. Barnes. Ultimately, Mr. Barnes was brought to the ground, sprayed with
pepper spray, and forcibly placed into handcuffs—completely restraining his freedom of
movement.
{¶49} Any doubt as to whether Mr. Barnes understood he was under arrest
dissipates when Officer Hearns ordered Mr. Barnes in the car, explaining, “you are
under arrest; you have to get in the car one way or another,” while threatening to stun
him into submission via taser. Even after this point, Mr. Barnes did not enter the
cruiser, explaining, “you have to clean this shit off of me.” Rather, Mr. Barnes stood in
the doorway of the cruiser while being ordered numerous times to enter. Thus,
considering the weight of the evidence and all reasonable inferences, it cannot be
determined the jury lost its way and created a manifest miscarriage of justice in its
conviction. The jury had before it the videotape and the testimony of Officer Hearns and
Mr. Barnes; we must defer to the weight and credibility the jury gave to the evidence in
this case.
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{¶50} Mr. Barnes’ first assignment of error is without merit.
{¶51} Mr. Barnes’ conviction for vandalism is reversed. Mr. Barnes’ conviction
for resisting arrest is affirmed. The judgment of the Portage County Court of Common
Pleas is affirmed in part and reversed in part, and the case is remanded for a new trial
on the charge of vandalism.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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