State v. Green

[Cite as State v. Green, 2020-Ohio-4370.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190280
TRIAL NO. C-19CRB-1584B
Plaintiff-Appellee, :
O P I N I O N.
vs. :
TERRENCE GREEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 9, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Terrence Green appeals his conviction for
misconduct at an emergency in violation of R.C. 2917.13(A)(3). In two assignments
of error, Green challenges the sufficiency and weight of the evidence supporting his
conviction. Finding his arguments to be without merit, we affirm the trial court’s
judgment.
Factual and Procedural Background
{¶2} Following an encounter with two Colerain Township police officers
during a countywide snow emergency, Green was charged with misconduct at an
emergency.1 The following evidence was adduced at a jury trial.
{¶3} Colerain Township Police Officer Patrick Enneking testified that he
was on patrol the night of the snow emergency and that the conditions were
treacherous. According to him, the weather was “extremely snowy,” the roads were
horrible, and there was poor visibility. It was snowy, extremely windy, and
windshields were freezing up. Officer Enneking testified that multiple vehicles were
getting stuck on Banning Road. Because of this and the conditions, he blocked
Banning Road with his cruiser. He stopped each approaching vehicle and assisted its
driver in parking in a nearby lot. Officer Enneking encountered Green on Banning
Road, where Green’s car was stopped diagonally across the double yellow line in the
roadway. Green got out of his car, and according to Officer Enneking, Green told
him that he was traveling to a friend’s house. Officer Enneking asked Green to park
1 Green was also charged with resisting arrest and carrying a concealed weapon, but was acquitted
of those offenses.
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OHIO FIRST DISTRICT COURT OF APPEALS
his car in a nearby lot, as he was fearful that someone would get struck by a passing
car because it was difficult for cars to safely travel in either direction based on where
Green’s car was stopped. Green refused, and their conversation became
argumentative as Green insisted that he did not have to move his car.
{¶4} Sergeant Scott Owen responded to assist Officer Enneking. According
to Sergeant Owen, it was snowing heavily, the winds were brutal, the roads were not
properly cleared, and it was one of the worst nights of inclement weather in which he
had worked. Sergeant Owen testified that Green continued to refuse to move his car,
telling the officers that he did not want the car to “get stuck.” After being informed
that he would be arrested for misconduct at an emergency if he failed to move his
car, Green reentered the car and locked the doors. The officers knocked on the car’s
windows, ordered Green out, and told him that he was under arrest. Green shifted
the car into reverse and hit the gas, and the tires began spinning. Officer Enneking
testified that both officers would have been struck if the car had traction. Sergeant
Owen threatened to break a window with his baton if Green did not comply with
their order to exit from the car. Green eventually put the car in park and unlocked
the doors. Officer Enneking and Sergeant Owen then pulled him from the car.
Green refused to put his hands behind his back, and the officers took Green to the
ground and handcuffed him. After Green was placed under arrest, he informed the
officers that he was driving to work, rather than to a friend’s house as he had initially
stated. Both officers testified that Green was dressed in plain clothes and was not
wearing a work uniform. And Sergeant Owen asked Green for his supervisor’s
telephone number so that he could confirm that Green was in fact on his way to
work, but Green refused to provide the number.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Green testified in his own defense. He stated that he was driving from
a friend’s house to his job as a Metro bus driver when he encountered Officer
Enneking on Banning Road. Green assumed the road was blocked after seeing a
police cruiser. He attempted to turn around, but stopped mid-turn and exited from
his car to speak to Officer Enneking after seeing that officers had let another car
through. Green explained that after being informed that the county was under a
level two snow emergency and that he should not be on the road, he told Officer
Enneking that he was on his way to work. He testified that his work uniform was in
the trunk of the car. Green stated that he offered to drive back the way he had come,
but that Officer Enneking and Sergeant Owen told him to move his car off the road
and park it. Green stated that he wanted to move his car, but that, in his opinion, it
was unsafe to park the car where the officers directed because he feared it would get
stuck.
{¶6} According to Green, the officers threatened to cite him for misconduct
in an emergency, and he reentered his car to call his work supervisor. While he was
in the car, the officers tapped on the window and ordered him out. Green testified
that he did not lock his car doors, but that the doors automatically locked when he
put the car in reverse to move it. Green unlocked the doors, and the officers forcibly
pulled him out and handcuffed him. Green denied refusing to exit from his car.
{¶7} Green was found guilty of misconduct at an emergency, a fourth-
degree misdemeanor. The trial court imposed a sentence of 30 days in jail, but
suspended 29 of those days and awarded Green credit for one day served. It
additionally imposed a fine and court costs, ordered Green to perform 150 hours of
community service, and placed him on community control for one year.
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OHIO FIRST DISTRICT COURT OF APPEALS
Sufficiency and Weight
{¶8} In two assignments of error, Green argues that his conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence.
We address these arguments together.
{¶9} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. In reviewing a challenge to the weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 397,
678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and created a manifest miscarriage of justice. Id.{¶10} Green was convicted of misconduct at an emergency in violation of
R.C. 2917.13(A)(3), which provides that “No person shall knowingly * * * Fail to obey
the lawful order of any law enforcement officer engaged in the law enforcement
officer’s duties at the scene of or in connection with a fire, accident, disaster, riot, or
emergency of any kind.” Green concedes that a countywide snow emergency
constitutes an emergency for purposes of the statute, but contends that the officers’
order for him to move his car was not “lawful.”
{¶11} The purpose of R.C. 2917.13 is to “give law enforcement the power to
exercise extraordinary control to protect the public.” Parma v. Odolecki, 8th Dist.
Cuyahoga No. 104160, 2017-Ohio-2979, ¶ 52, quoting Kinzer v. Schuckmann, 850
F.Supp.2d 785, 794 (S.D.Ohio 2012). For this reason, some deference “is owed to an
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OHIO FIRST DISTRICT COURT OF APPEALS
officer’s assessment of danger to bystanders and discerning impediment to efforts
and safety of the officers attempting to manage the situation.” Id.{¶12} Here, Officer Enneking and Sergeant Owen were directing traffic
during a snow emergency on a road in which road conditions were horrible, visibility
was poor, and multiple vehicles were getting stuck. In their judgment, they
determined that Green’s car, which was stopped diagonally across the yellow line in
the roadway, posed a danger to their own safety and to the safety of others on the
road, and they ordered Green to move the vehicle into what they deemed to be a safe
location in a nearby parking lot. This is where the officers had previously directed
other cars, all apparently without incident. The officers’ order that Green move his
vehicle was given to protect their own safety and that of the public and Green, and it
was a lawful order. See State v. Olsen, 9th Dist. Medina No. 1503, 1987 WL 6058(Jan. 28, 1987) (determining that “a police order given at an accident scene which
instructs a driver to move out of a wrong traffic lane and back into the correct lane of
traffic after she has ‘jumped line’ by proceeding in the wrong lane” was lawful and
affirming a conviction for a violation of R.C. 2917.13).
{¶13} Viewed in the light most favorable to the prosecution, the evidence
introduced at trial established that Green knowingly failed to obey the lawful order
that he move his vehicle during a snow emergency. See Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492, at paragraph two of the syllabus. Green’s conviction for misconduct
at an emergency was, therefore, supported by sufficient evidence.
{¶14} We further hold that Green’s conviction was not against the manifest
weight of the evidence. The jury, as the trier of fact, was in the best position to judge
the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
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212 (1967), paragraph one of the syllabus; State v. Williams, 1st Dist. Hamilton No.
C-180574, 2020-Ohio-1367, ¶ 36. It was entitled to believe the officers’ testimony
that Green refused to comply with their order to move his car, and to reject Green’s
testimony that he was willing to move his car, but not to the location specified by the
officers. It was also entitled to believe the officers’ testimony that the nearby parking
lot was a safe location in which to park a vehicle, rather than Green’s assertion that
his car would get stuck if moved to where the officers directed. This was not the rare
case in which the trier of fact lost its way and committed such a manifest miscarriage
of justice in finding Green guilty that his conviction must be reversed. See
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶15} Green’s conviction for misconduct at an emergency was supported by
sufficient evidence and was not against the manifest weight of the evidence. The first
and second assignments of error are overruled, and the judgment of the trial court is
affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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