State v. Holladay

[Cite as State v. Holladay, 2020-Ohio-5459.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DONALD W. HOLLADAY,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0039
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2018 CR 01016
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed in part. Reversed and Remanded in part.
Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee and
Atty. Edward Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps Street,
Youngstown, Ohio 44503, for Defendant-Appellant.
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Dated: November 19, 2020
D’Apolito, J.
{¶1} Appellant Donald Holladay appeals his convictions in the Mahoning County
Court of Common Pleas for one count of felonious assault, in violation of R.C.
2903.11(A)(2), a felony of the first degree, one count of resisting arrest, in violation of
R.C. 2921.33(C)(1), a felony of the fourth degree, and one count of obstructing official
business, in violation of R.C. 2921.31(A), a misdemeanor of the second degree.
Appellant advances seven assignments of error.
{¶2} Appellant contends that there was insufficient evidence offered by the state
to establish certain elements of each crime and that his convictions are not supported by
the manifest weight of the evidence. He argues, in the alternative, that his felonious
assault and resisting arrest convictions should have been merged.
{¶3} For the following reasons, we find that there is insufficient evidence in the
record to sustain Appellant’s felonious assault and resisting arrest convictions, and, as a
result, his convictions for felonious assault and resisting arrest are reversed. His
conviction for obstructing official business is affirmed. This matter is remanded for the
limited purpose of vacating Appellant’s felonious assault and resisting arrest convictions,
and for a resentencing hearing on Appellant’s conviction for obstructing official business.
FACTS
{¶4} The only witness who testified at trial was Chad Caughey, a patrolman with
the Smith Township Police Department. He had been a patrolman for Smith Township
for roughly eleven months when the incident giving rise to Appellant’s convictions
occurred, but had an additional twelve months of part-time experience with another police
department.
{¶5} On October 12, 2018, Patrolman Caughey was dispatched to the local post
office to investigate a silver minivan that had been parked in the lot for several hours. The
public counter at the post office had been closed for roughly one-and-one-half hours when
Patrolman Caughey arrived. He testified that he regularly conducts “business checks” at
the post office after hours and “the doors are closed.” (Id., p. 139-140.)
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{¶6} Patrolman Caughey pulled his patrol car to the rear driver’s side of the
minivan, which was parked with its passenger side next to a mail truck. He called the
license plate into his dispatcher and determined that the minivan had not been reported
as stolen.
{¶7} Photographs of the scene were admitted into evidence and depict a small,
rural post office with a large structure with two garage doors on the opposite side of the
small gravel parking lot. At least two residences appear to be in close proximity to the
post office. Patrolman Caughey testified that there is a park across the street from the
post office, which is not visible in the photographs.
{¶8} When Patrolman Caughey approached the driver’s side of the minivan, he
discovered Appellant sleeping in the front passenger seat. Patrolman Caughey testified
that he thought Appellant might have suffered a drug overdose. He had previously
encountered roughly ten individuals “in distress” during his work as a patrolman. (Id., p.
137.)
{¶9} Patrolman Caughey walked over to the passenger side and knocked on the
front passenger side window to rouse Appellant, to no avail. When Patrolman Caughey
knocked on the window a second time, Appellant awakened.
{¶10} During his direct testimony, Patrolman Caughey stated that he asked
Appellant to identify himself and further asked “if everything was okay.” (Id., p. 116.) On
cross-examination, Patrolman Caughey conceded that, according to the police report, he
asked Appellant to exit the minivan to have a conversation.
{¶11} Appellant responded, “Go fuck yourself.” Patrolman Caughey then
commanded Appellant to exit from the vehicle, but Appellant again responded, “Go fuck
yourself.” (Id.)
{¶12} Patrolman Caughey testified that Appellant did not seem to be in his “right
mind,” reasoning that “[u]sually, if [Patrolman Caughey had] somebody address [him] the
first words out of their mouth isn’t [sic] fuck you.” (Id., p. 117.) As a consequence,
Patrolman Caughey radioed the Sebring Police Department to request that a second
patrolman be dispatched to the scene.
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{¶13} Appellant began reaching down to the floorboard, then he climbed to the
back seat of the minivan. Patrolman Caughey drew his weapon and took cover behind
the mail truck.
{¶14} Patrolman Caughey explained that he was concerned for his safety as he
could not see Appellant’s hands. When Patrolman Caughey ordered Appellant to show
his hands, Appellant raised his hands, “flip[ped Patrolman Caughey] off,” and told him to
“fuck off.” (Id., p. 142-143.) Patrolman Caughey radioed the Sebring Police Department
to expedite the Sebring patrolman’s arrival at the scene.
{¶15} Patrolman Caughey testified that he believed that he had probable cause
to arrest Appellant for disorderly conduct, because of Appellant’s use of profane language
and his failure to comply with Patrolman’s Caughey’s orders. However, he conceded that
Appellant was not under arrest. (Id., p. 145.) Patrolman Caughey explained that he was
attempting to detain Appellant because Smith Township patrolmen are required to
document any contact with a member of the public and he needed Appellant’s name and
address “for report purposes.” (Id., p. 142.)
{¶16} Appellant then climbed from the back seat to the front driver's side seat and
started the engine. Patrolman Caughey testified that visibility into the vehicle was limited
because the day was overcast and the side windows of the minivan were tinted, so he
repositioned himself behind the driver's rearview mirror approximately one or two feet
from the minivan.
{¶17} Patrolman Caughey had his gun in his right hand and his baton in his left.
He ordered Appellant to turn off the engine and exit the vehicle, however, Appellant
continued to tell Patrolman Caughey to "[g]o fuck himself, to fuck off." (Id., p. 122.)
{¶18} Appellant shifted the minivan into reverse and “slam[med] on the gas.” (Id.,
p. 122.) Patrolman Caughey recalled hearing the tires spinning and trying to get traction
on the pea gravel.
{¶19} In his haste to exit the parking lot, Appellant “bump[ed]” Patrolman Caughey
with the front end of the minivan. (Id.) Patrolman Caughey was not injured. He conceded
on cross-examination that Appellant “was not coming after [him, Appellant was] trying to
leave.” (Id., p. 148.)
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{¶20} Patrolman Caughey “bounced off the frame of the vehicle, caught [his]
footing, and then [ ] proceeded to strike out the driver’s side window with [his] baton.” (Id.,
p. 123.) Appellant “slammed on the brakes,” which prompted Patrolman Caughey to
discard the baton and point the gun at Appellant. (Id.) Appellant continued to shout
obscenities and told Patrolman Caughey that he had no right to break his window.
Appellant shouted that Patrolman Caughey was “crazy.” (Id., p. 124.)
{¶21} At this point, a Sebring PD patrolman arrived on the scene. Both patrolmen
ordered Appellant to exit from the vehicle, but he refused. The Sebring PD patrolman was
forced to reach into the driver’s side window to unlock the door. After Patrolman Caughey
re-holstered his weapon, both officers struggled to remove Appellant from the minivan.
{¶22} During the struggle, the Sebring PD patrolman deployed OC spray in order
to subdue Appellant. In order to avoid the OC spray, Appellant climbed to the passenger
seat. The Sebring PD patrolman ran to the other side of the vehicle and opened the
passenger side door.
{¶23} As the passenger side door opened, Appellant forced his way out of the
minivan and fled on foot. Patrolman Caughey tackled Appellant to the ground, but
Appellant refused to give up his hands, and tucked them under his body. Ultimately,
Appellant was handcuffed. Patrolman Caughey sprained his wrist during the scuffle.
{¶24} In both its opening and closing arguments, the state argued that Appellant
turned the steering wheel before depressing the gas pedal, and swung the front end of
the minivan into Patrolman Caughey. However, Patrolman Caughey did not testify that
Appellant turned the wheel during his testimony. The source of this information appears
to be the police report, which was not admitted into evidence over defense counsel’s
objection. Although Patrolman Caughey wrote in the police report that Appellant turned
the steering wheel, he did not offer that testimony at trial.
{¶25} At the conclusion of the state’s case, defense counsel moved for a dismissal
of all of the charges based on “Rule 11,” which the trial court treated as a motion for
judgment of acquittal pursuant to Crim. R. 29. With respect to the felonious assault
charge, defense counsel argued that there was no evidence of Appellant’s intent to “use
the [minivan] as anything, by nature of a weapon, just simply a [minivan.]” (Id., p. 161.)
As to the resisting arrest charge, defense counsel argued that Appellant was never told
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he was under arrest. With respect to the obstructing official business charge, defense
counsel argued that Patrolman Caughey’s business ended when he determined that
Appellant had not overdosed on drugs. The trial court overruled the motion.
{¶26} Although the jury was instructed on the lesser-included offense of assault,
the jury found Appellant guilty of felonious assault. Appellant was sentenced to eight
years of imprisonment for the felonious assault conviction, twelve months for the resisting
arrest conviction, and eighteen months for the obstructing official business conviction, to
be served concurrently, and an additional twelve months imposed pursuant to R.C.
2929.141, as Appellant committed his crimes while on post-release control, for an
aggregate sentence of nine years. This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE CONVICTION FOR FELONIOUS ASSAULT WAS BASED ON
INSUFFICIENT EVIDENCE AS THE STATE FAILED TO PROVE THAT
APPELLANT ACTED KNOWINGLY WHEN HE HIT THE PATROLMAN
WITH THE VAN AND/OR THAT HE CAUSED “PHYSICAL HARM” TO
THE PATROLMAN.
ASSIGNMENT OF ERROR NO. 2
THE CONVICTION FOR FELONIOUS ASSAULT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶27} “Sufficiency of the evidence is a legal question dealing with adequacy.”
State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49
(7th Dist.), citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997).
“Sufficiency is a term of art meaning that legal standard which is applied to determine
whether a case may go to the jury or whether evidence is legally sufficient to support the
jury verdict as a matter of law.” State v. Draper, 7th Dist. Jefferson No. 07 JE 45, 2009-
Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶28} To discharge the state's burden when prosecuting a criminal offense,
“‘probative evidence must be offered’ on ‘every material element which is necessary to
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constitute the crime.’ ” State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-
Ohio-5774, ¶ 8, citing State v. Martin, 164 Ohio St. 54, 57, 128 N.E.2d 7 (1955). In a
sufficiency review, a reviewing court does not determine “whether the state's evidence is
to be believed, but whether, if believed, the evidence against a defendant would support
a conviction.” State v. Rucci, 7th Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 14,
citing State v. Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34. If there is
insufficient evidence to support a conviction, retrial is barred. State v. Brewer, 121 Ohio
St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20.
{¶29} This is distinct from a review of the manifest weight of the evidence, which
focuses on the state’s burden of persuasion. Id. A reviewing court “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 484
N.E.2d 717 (1st Dist.1983). A reversal should be granted only “in the exceptional case in
which the evidence weighs heavily against the conviction.” State v. Andric, 7th. Dist.
Columbiana No. 06 CO 28, 2007-Ohio-6701, ¶ 19, citing Martin at 175.
{¶30} R.C. 2903.11(A)(2), captioned “Felonious assault,” reads in relevant part,
“[n]o person shall knowingly do either of the following: * * * Cause or attempt to cause
physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”
“Physical harm” means any injury regardless of its gravity or duration. R.C. 2901.01(A)(3).
R.C. 2903.13, captioned “Assault,” reads, in relevant part: “(A) No person shall knowingly
cause or attempt to cause physical harm to another * * *.”
{¶31} A person acts knowingly, regardless of purpose, when the person is aware
that his conduct will probably cause a certain result. A person has knowledge of
circumstances when the person is aware that such circumstances probably exist. R.C.
2901.22(B). As the element of intent dwells in a person’s mind, it must be gathered from
the surrounding facts and circumstances. State v. Chamberlain, 7th Dist. Jefferson No.
19 JE 0007, 2020-Ohio-3583, ¶ 15.
{¶32} Appellant asserts that the state failed to offer any evidence that Appellant
knowingly struck Patrolman Caughey with the front end of the minivan. Appellant writes:
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A review of these facts, even in a light most favorable to the state, shows
that Appellant was, as the officer said, trying to flee. He was not trying to
hit the officer with the [minivan]. There is no indication that Appellant jerked
the wheel so that the [minivan] would hit the officer. There is no indication
that Appellant was trying to do anything other than leave. As such,
reasonable minds could only conclude from the testimony that Appellant
acted, at worst, recklessly, and most likely negligently when he hit the
officer.
(Appellant’s Brf., p. 5.)
{¶33} Appellant argues that there is no evidence in the record that he was “trying
to hit” the officer. However, a person acts knowingly, regardless of purpose, when the
person is aware that his conduct will probably cause a certain result. Therefore, the state
was only required to show that Appellant was aware of the probability that he would strike
Patrolman Caughey with the front end of the minivan when he exited the parking lot.
{¶34} Patrolman Caughey testified that Appellant was nonresponsive during their
encounter, but for a series of expletives, and that Appellant raised his middle finger when
Patrolman Caughey instructed Appellant to show his hands. However, Patrolman
Caughey conceded that Appellant did not act purposefully when he struck Patrolman
Caughey, but, instead, that Appellant was simply attempting to leave the scene.
{¶35} Patrolman Caughey further testified that he was standing one or two feet
from the minivan just behind the driver’s side rear-view mirror when Appellant “slam[med]
on the gas” to exit the parking lot. The foregoing testimony establishes Patrolman
Caughey’s proximity to the front end of the minivan as well as Appellant’s hasty retreat
from the encounter.
{¶36} However, Patrolman Caughey provided no testimony to establish that
Appellant was aware that he would probably strike Patrolman Caughey with the front end
of the minivan when he attempted to exit the parking lot. The state offered no evidence
that Patrolman Caughey’s proximity to the minivan, in conjunction with the minivan’s
position, made it probable that Appellant would strike Patrolman Caughey.
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{¶37} The state asserted in its closing argument that “we know that [Appellant]
turned the wheel,” “we know that he swung the front of the van towards [Patrolman
Caughey] as he backed up quickly,” and “[Appellant] caused physical harm by turning the
wheel and backing up quickly.” (Trial Tr., p. 166, 171.) The state continued:
You are reasonable people. You know what happens when you back up
and you turn. The front end swings to your left; all right? [Appellant] knew
he was going to hit [Patrolman Caughey] if he continued to back up and
swing the front end of his vehicle towards the officer.
(Id. at p. 167.) The state concluded, “[Appellant] knew what he was doing when he backed
up [minivan] up and turned the wheel.” (Id. at p. 168.)
{¶38} In its rebuttal, the state further asserted that “[Appellant] committed a
felonious assault by swinging the front of the [minivan] towards [Patrolman] Caughey. * *
* [Patrolman Caughey] was standing right there holding [Appellant] at gunpoint and yet
he still tried to get out of there.” (Id., p.184-185.)
{¶39} However, Patrolman Caughey never testified that Appellant turned the
wheel. He did not testify that the wheel was turned while the minivan was parked, such
that placing the vehicle in gear would cause the front end of the minivan to strike him. He
did not testify that Appellant had to turn the wheel in order to avoid hitting the patrol car,
and it is not clear from the record that Appellant had to turn the wheel to avoid hitting the
patrol car because Patrolman Caughey did not testify that the patrol car was obstructing
the minivan’s path out of the parking lot.
{¶40} The police report reads, in pertinent part, “[Appellant] then put the vehicle
in reverse and slammed on the gas causing the vehicle to spin the tires in the gravel, and
turned the vehicle into me. I was then struck with the [minivan] causing me to bounce off
the front fender.” Although defense counsel used the police report during his cross-
examination of Patrolman Caughey, the trial court refused to admit the police report into
evidence.
{¶41} A question submitted to the trial court during deliberation reflects the jury’s
confusion regarding statements made by the prosecution in closing arguments. The jury
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submitted the following question, “The police report that was shown, can we see?” The
trial court responded, “No. It was not admitted into evidence.” (Trial Tr., p. 214.)
{¶42} In order to overrule the Rule 29 motion on the felonious assault charge, the
trial court had to presume facts not in evidence, that is, facts that show that Appellant
knew he would probably strike Patrolman Caughey (not that he might strike him) with the
front end of the minivan. Because there is no evidence in the record to establish that
Appellant turned the steering wheel or that he knew the wheel was turned while the
minivan was parked and, as a result, he would probably strike Patrolman Caughey, we
find that there was insufficient evidence in the record to establish that Appellant acted
knowingly.
{¶43} Next, Appellant cites State v. Curlee-Jones, 8th Dist. Cuyahoga No. 98233,
2013–Ohio–1175, in support of his argument that the state offered no evidence that
Patrolman Caughey suffered any physical harm. In that case, Curlee-Jones swung her
arms and hit an officer in the head while he was effecting her arrest. When Curlee-Jones
was forced to the ground, a second officer tried to grab a hold of her legs while
handcuffing her and she kicked him roughly a dozen times. Id. at ¶ 13. Appellant was
subsequently convicted of one count of resisting arrest and two counts of assault on a
police officer. However, the Curlee-Jones panel found that no proof of actual physical
harm was offered as “[n]either officer testified to suffering any injury.” Id. at ¶ 13.
{¶44} Here, Patrolman Caughey sustained no injury as a result of his contact with
the front end of the minivan. He testified that he was jostled by the impact, but was able
to regain his footing and strike out the driver-side window with his baton. Accordingly, we
find that there was insufficient evidence to establish that Patrolman Caughey suffered
physical harm.
{¶45} The state argues that Appellant was guilty of attempting to cause physical
harm. To “attempt” is to purposely or knowingly “engage in conduct that, if successful,
would constitute or result in the offense.” R.C. 2923.02(A). Patrolman Caughey testified
that Appellant’s purpose was to leave the scene, not to strike Patrolman Caughey with
the minivan. Further, there is no evidence in the record to establish that Appellant knew
that he would probably strike Patrolman Caughey with the front end of the minivan when
he put it in gear and depressed the gas pedal.
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{¶46} For the foregoing reasons, we find that the trial court erred when it failed to
sustain Appellant’s Rule 29 motion to dismiss the felonious assault charge. Further,
because the lesser-included offense of assault likewise requires evidence that Appellant
acted knowingly and that Patrolman Caughey suffered physical harm, there was
insufficient evidence of the lesser included offense as well. Accordingly, we find that
Appellant’s first assignment of error has merit and Appellant’s felonious assault conviction
is reversed. We further find that Appellant’s second assignment of error, predicated upon
the manifest weight of the evidence is moot.
ASSIGNMENT OF ERROR NO. 3
THE CONVICTION FOR RESISTING ARREST WAS BASED ON
INSUFFICIENT EVIDENCE AS THE STATE FAILED TO PROVE THAT
APPELLANT USED A “DEADLY WEAPON” WHEN RESISTING HIS
ARREST.
ASSIGNMENT OF ERROR NO. 4
THE CONVICTION FOR RESISTING ARREST WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶47} R.C. 2921.33(C), captioned “Resisting arrest,” reads, in pertinent part: “No
person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or
another person if either of the following applies: (1) The offender, during the course of or
as a result of the resistance or interference, recklessly causes physical harm to a law
enforcement officer by means of a deadly weapon.”
{¶48} A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the person’s
conduct is likely to cause a certain result. R.C. 2901.22(C). Appellant’s resisting arrest
conviction must be based on his effort to leave the scene in the minivan, not his
subsequent effort to flee on foot from the minivan, insofar as no deadly weapon was used
after Appellant stopped the minivan and refused to exit.
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{¶49} Appellant argues that he was not under arrest when he attempted to leave
the scene in the minivan. He asserts that disorderly conduct is a minor misdemeanor,
and, therefore, not an arrestable offense. He further argues that cursing at a police officer
is protected speech under the First Amendment, which cannot form the basis for a charge
of disorderly conduct or obstruction.
{¶50} For an arrest to 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. State v. Collins, 7th Dist. Columbiana No. 97-CO-38, 1999
WL 182505, *3. Rather, in determining the lawfulness element of resisting arrest, the
state must show there was a reasonable basis for the arrest. The reasonable basis test
considers whether a reasonable police officer under similar circumstances would have
concluded that the defendant committed a crime suitable for arrest. Id.
{¶51} In State v. Ewing, 10th Dist. Franklin No. 09-AP-776, 2010-Ohio-1385, the
Tenth District recognized the general rule that police officers shall issue citations for minor
misdemeanors rather than make an arrest. Id. at ¶ 28, citing R.C. 2935.26. However,
R.C. 2935.26 provides exceptions to the general rule including where “the offender cannot
or will not offer satisfactory evidence of his own identity.” Patrolman Caughey testified
that Appellant refused to identify himself. Therefore, Appellant’s arrest falls squarely
within an exception to the general rule regarding the issuance of citations for minor
misdemeanors.
{¶52} Further, a reasonable officer faced with the circumstances of this case
would not conclude that Appellant was exercising his right to free speech. To the contrary,
Appellant was found sleeping in the passenger side of a minivan in the parking lot of a
post office, roughly one-and-one-half hours after the post office was closed for business.
When roused, Appellant shouted a series of obscenities. Like Patrolman Caughey, a
reasonable officer would have concluded that Appellant was guilty of disorderly conduct.
{¶53} In State v. Morris, 2nd Dist. Montgomery No. 24810, 2012-Ohio-3287, the
Second District observed:
While we agree with the general proposition that simply directing an
obscenity toward a police officer does not always mandate an arrest and
conviction for disorderly conduct, Defendant did more than simply curse at
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an officer. Rather, Defendant screamed vulgarities at two officers over a
period of four to five minutes and was within six inches of Officer Staples
when he screamed “F* * * you, bitch.” Officer Staples found this conduct
annoying and threatening. Further, Defendant's outburst was loud enough
to draw the attention of two individuals who were across the street from
Defendant and the officers. Defendant's loud outburst occurred at
approximately 12:30 a.m., in front of a residence at which Defendant had
been found lying in the front yard, unconscious. No connection between the
residence and Defendant was shown or claimed.
Id. at ¶ 16.
{¶54} 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, 64 Ohio St. 2d 22, 26, 412 N.E.2d 1328 (1980).
“‘[A]n officer need not state, “You are under arrest.”’” Id., quoting State v. Carroll, 162
Ohio App. 3d 672, 2005-Ohio-4048, 834 N.E.2d 843, ¶ 14. Rather, arrest “ ‘signifies the
apprehension of an individual or the restraint of a person's freedom in contemplation of
the formal charging with a crime.’ ” Darrah at 26, 412 N.E.2d 1328.
{¶55} The Fourth District has observed that “‘[i]n determining ‘when’ a person is
arrested, [a reviewing court should] ask, at what point, ‘in view of all the circumstances
surrounding the incident, a reasonable person would have believed he [or she] was not
free to leave.’” State v. Stringer, 4th Dist. Scioto No. 97CA2506, 1999 WL 105095, *9,
quoting United States v. Hammock, 860 F.2d 390, 393 (11th Cir.1988). “Circumstances
which indicate an arrest include: the blocking of an individual's path or the impeding of
his progress; the display of weapons; the number of officers present and their demeanor;
the length of the detention; and the extent to which the officers physically restrained the
individual. This list is not exclusive. Id., citing Hammock, at 393.”
{¶56} Here, Patrolman Caughey conceded that Appellant was not under arrest
while he was in the passenger seat or in the backseat of the minivan. Further, Patrolman
Caughey did not testify that he ever formed the intent to arrest Appellant.
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{¶57} Even assuming arguendo that an arrest occurred, the state had to prove
that Appellant acted recklessly, that is, with heedless indifference to the consequences,
Appellant disregarded a substantial and unjustifiable risk that his conduct would likely
result in physical harm to Patrolman Caughey. However, without the evidence that
Appellant turned the wheel, or that the wheel was turned while the minivan was parked,
the likelihood of physical harm to Patrolman Caughey cannot be established. Further, and
as stated previously, Patrolman Caughey conceded that he suffered no physical harm.
{¶58} In order to overrule the Rule 29 motion on the resisting arrest charge, the
trial court had to presume facts not in evidence, that is, facts that show that Patrolman
Caughey intended to arrest Appellant, Appellant acted recklessly, and that Patrolman
Caughey suffered physical harm. Accordingly, we find that there is insufficient evidence
to sustain Appellant’s resisting arrest conviction, Appellant’s third assignment of error has
merit, and Appellant’s resisting arrest conviction is reversed. We further find that
Appellant’s fourth assignment of error, predicated upon the manifest weight of the
evidence is moot.
ASSIGNMENT OF ERROR NO. 5
ASSUMING, ARGUENDO, THAT THE CONVICTIONS FOR FELOIOUS
ASSAULT AND RESISTING ARREST WERE NOT BASED ON
INSUFFICIENT EVIDENCE AND/OR AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE, THE SAME SHOULD HAVE MERGED, AND THE
FAILURE OF THE TRIAL COURT TO DO SO WAS PLAIN ERROR.
{¶59} Having concluded that there was insufficient evidence to sustain Appellant’s
felonious assault and resisting arrest convictions, we find that Appellant’s fifth assignment
of error is moot.
ASSIGNMENT OF ERROR NO. 6
THE CONVICTION FOR OBSTRUCTING OFFICIAL BUSINESS WAS
BASED ON INSUFFICIENT EVIDENCE.
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ASSIGNMENT OF ERROR NO. 7
THE CONVICTION FOR OBSTRUCTING OFFICIAL BUSINESS WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶60} R.C. 2921.31, captioned “Obstructing official business,” reads, in its
entirety:
(A) No 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.
{¶61} Appellant contends that his conviction for obstructing official business
cannot be predicated upon his failure to comply with Patrolman Caughey’s orders. He
writes, “there was no bill of particulars filed in this case, and the jury instructions and
closing arguments do little to shine a light on what exactly the state alleged that Appellant
did to ‘obstruct.’” (Appellant’s Brf., p. 13.) To the contrary, the state argued in closing that
Appellant’s attempt to exit the minivan and flee on foot provided the basis for the
obstructing official business charge. (Trial Tr., p. 177-178.)
{¶62} We have recognized that a suspect subject to a lawful stop pursuant to
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), who flees can be seen
as obstructing an investigation. State v. Albright, 7th Dist. Mahoning No. 14 MA 0165,
2016-Ohio-7037, ¶ 39. We have likewise recognized that a suspect who flees or
otherwise impedes the completion of an officer’s lawful duties, even after committing a
minor non-arrestable offense, can be convicted for obstructing official business. State v.
Hasley, 7th Dist. Mahoning No. 03 MA 215, 2004-Ohio-7065, ¶ 59.
{¶63} Accordingly, we find that there was sufficient evidence to overrule
Appellant’s Rule 29 motion on the obstructing official business charge, and that the jury
did not lose its way in finding Appellant guilty of obstructing official business. For the
forgoing reasons, we find that Appellant’s sixth and seventh assignments of error are not
well taken.
Case No. 19 MA 0039
– 16 –
CONCLUSION
{¶64} In summary, Appellant’s convictions for felonious assault and resisting
arrest are reversed, and his conviction for obstructing official business is affirmed. This
matter is remanded to the trial court for the limited purpose of vacating Appellant’s
felonious assault and resisting arrest convictions, and for a resentencing hearing on
Appellant’s conviction for obstructing official business.
Donofrio, J., concurs.
Robb, J., concurs.
Case No. 19 MA 0039
[Cite as State v. Holladay, 2020-Ohio-5459.]
For the reasons stated in the Opinion rendered herein, Appellant’s convictions
for felonious assault and resisting arrest are reversed and his conviction for obstructing
official business is affirmed. This matter is hereby remanded to the Court of Common
Pleas of Mahoning County, Ohio for vacating and resentencing purposes. Costs to be
waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.