Opinion
CASE NO. 14 BE 0036
06-29-2016
STATE OF OHIO PLAINTIFF-APPELLEE v. BRIAN ANDERSON DEFENDANT-APPELLANT
APPEARANCES: For Plaintiff-Appellee Attorney Daniel P. Fry Belmont County Prosecutor Attorney J. Flanagan Assistant Prosecutor 147-A West Main Street St. Clairsville, Ohio 43950 For Defendant-Appellant Attorney Edward Czopur 42 North Phelps Street Youngstown, Ohio 44503
OPINION CHARACTER OF PROCEEDINGS: Criminal Appeal from Belmont County Court, Northern Division, Belmont County Ohio Case No. 14 CRB 0241-01 JUDGMENT: Affirmed. APPEARANCES:
For Plaintiff-Appellee Attorney Daniel P. Fry
Belmont County Prosecutor
Attorney J. Flanagan
Assistant Prosecutor
147-A West Main Street
St. Clairsville, Ohio 43950 For Defendant-Appellant Attorney Edward Czopur
42 North Phelps Street
Youngstown, Ohio 44503 JUDGES: Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb DeGENARO, J.
{¶1} Defendant-Appellant, Brian Anderson, appeals the judgment of the Belmont County Court, Northern Division, of his conviction and sentence for obstructing official business and resisting arrest. On appeal Anderson argues that his convictions are not supported by sufficient evidence or are against the manifest weight of the evidence. For the following reasons, Anderson's assignments of error are meritless, and the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} Anderson was charged with obstructing official business R.C. 2921.31(A), and resisting arrest R.C. 2921.33(A), both second-degree misdemeanors. The case proceeded to a bench trial. The events giving rise to the charges began in a parking lot adjacent to a bar in Bridgeport called the Nugget as well as at the bar and its parking lot. The State presented three witnesses, all police officers, who responded to the incident giving rise to Anderson's arrest: Kevin Yates, Vincent West and Shamus Nixon. After making a Crim.R. 29 motion for acquittal, which was denied, the defense presented two witnesses: LeeAnn Vargo a bartender working at the bar that night, and Jason Ballard, an acquaintance of Anderson who was with him that night. The following evidence was adduced from their collective testimony.
{¶3} Officer Yates testified that he stopped a motorist in a parking lot in close proximity to the Nugget. After making the traffic stop, Officer Yates determined the driver had a suspended license and the passenger had an outstanding arrest warrant; he ordered both individuals out of the car and called for backup to assist with two arrests. While the passenger was handcuffed a large sum of money was found on his person. After Officer Vincent West arrived on the scene to assist, the officers began the process of counting the money on the trunk of the car; first Officer West, then Officer Yates, then the arrestee.
{¶4} During this time, Ballard and other bar patrons saw lights flashing outside, and Vargo, Ballard, Anderson and about five to ten other bar patrons went outside to see what was happening. They saw police making an arrest in a nearby parking lot at least 20 or 30 yards away from the bar. Ballard saw Anderson outside trying to film or photograph the officers. He said Anderson kept a "reasonable distance" away from them. However, Ballard went back inside the bar before Anderson did. Vargo came back inside quickly because she was working and needed to stay behind the bar. Anderson remained outside; Vargo did not recall for how long.
{¶5} Anderson began to walk alone towards the officers, getting within 15 feet of them. Officers Yates and West told Anderson: "stay back, we've got something going on here." Officer West did not know whether Anderson had any connection to the individuals who were stopped or what his intentions were in approaching them. "With that amount of money and that time of night, I just felt more safe with him just not approaching us at all. We had quite a lot of money laying [sic] right there. I didn't know what his intent was. I didn't know if he knew anything about it."
{¶6} When Anderson asked how far away he needed to get from the scene, Officer West said, "until we feel comfortable with the situation. You just need to go back in the bar." Anderson responded: "I'm just standing here * * * I'll do what I want." Officer Yates responded: "Well that's fine. You can stand and observe, but do it at a safe distance away from us." Anderson walked away, yelling profanities at the officers. This was Anderson's first encounter with police that evening.
{¶7} Anderson's second encounter with police occurred a short time later. Anderson stuck his head out of the front door and began yelling more profanities, then exited the bar and came within 15 feet of the officers, who could not leave the scene because they were still counting money and dealing with the arrestees at that point. They told Anderson to go back inside the bar until they were finished or face arrest. Anderson began yelling profanities at them again, but did return to the bar.
{¶8} Anderson then began to play pool with Ballard who testified Anderson seemed disgruntled and said the officers told him to "get off the street." After about ten minutes, for the third time, Anderson exited the front door of the bar; Ballard presumed this was for Anderson to smoke a cigarette, though he did not see him smoke. There are two designated smoking areas for the bar, one outside the front door and one outside the back door.
{¶9} At that point, Ballard noticed Officer Nixon—the third patrolman to arrive—outside the door. Officer Nixon had been asked by Officer West to stand guard to make sure Anderson did not come towards them again, and to arrest him if he did. Officer Nixon testified that while he was watching the door Anderson came outside screaming at the officers, while smoking a cigarette. Officer Nixon warned Anderson to go back inside, telling him to go smoke in the back of the bar, at the other designated smoking area. Anderson complied; Ballard saw him come back inside, cigarette in hand, again seeming disgruntled, only to exit the bar's rear door to smoke. This was Anderson's third encounter with police.
{¶10} Finally, for a fourth time, Anderson came out the front door, this time screaming about a taxi. Officer Nixon told him "come here." Officer West heard this and observed Anderson run back inside the bar and Officer Nixon follow him. Officer West followed the two into the bar and stood in the doorway.
{¶11} Inside the bar, Officer Nixon told Anderson "you need to come with me." Anderson refused, stating, "I don't have to come with you." Officer Nixon grabbed Anderson's arm to walk him outside and Anderson pulled it away; at this point Officer West went inside the bar to assist. Officer Nixon put his arms around Anderson's back and Officer West picked Anderson up and the two officers took him outside. According to Officer West: "[Anderson] was told to quit resisting, in which he didn't. He kept resisting. He was taken to the ground and cuffed."
{¶12} Officer Yates did not go inside, but observed Officers Nixon and Yates trying to get Anderson in handcuffs when they returned outside; he testified Anderson had to be taken to the ground to accomplish this. Officer Nixon testified that once on the ground, Anderson refused to put his hands behind his back, only complying after being threatened with a Taser.
{¶13} Vargo confirmed she called a taxi for Anderson upon his request. She said it was not out of the ordinary for a bar patron to look out the front door to check if a taxi had arrived. Vargo recalled that when Anderson stuck his head out the front door to see if his taxi was there, suddenly three police officers came inside and brought Anderson to the ground and carried him out by his neck. Ballard saw Anderson open the front door to the bar to check to see if the taxi had arrived.
{¶14} According to Ballard, Anderson only opened the door, he did not go outside. Ballard did not hear any shouting, but said it was loud in the bar with the jukebox playing. Once Anderson shut the door, Ballard said the door flew open and two officers came inside the bar, one grabbed Anderson by the neck and another picked him up off the floor. According to Ballard, the officers then carried Anderson outside and threw him down on the ground.
{¶15} Anderson was convicted of both charges. The trial court proceeded immediately to sentence Anderson and subsequently the sentence was stayed pending appeal.
Sufficiency and Manifest Weight
{¶16} Anderson asserts six assignments of error on appeal, in which he asserts his two convictions are not supported by sufficient evidence and alternatively are against the manifest weight of the evidence. For clarity of analysis we will address together both challenges to each conviction in turn.
{¶17} "A challenge to the sufficiency of the evidence tests whether the state has properly discharged its burden to produce competent, probative, evidence on each element of the offense charged." State v. Petefish, 7th Dist. No. 10 MA 78, 2011-Ohio-6367, ¶ 16. Thus, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997).
{¶18} "Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other." (Emphasis sic.) Thompkins at 387. A conviction will only be reversed as against the manifest weight of the evidence in exceptional circumstances. Id. This is because the triers of fact are in a better position to determine credibility issues, since they personally viewed the demeanor, voice inflections and gestures of the witnesses. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶19} An appellate court reviews the entire record, weighs the evidence and all reasonable inferences 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. However, "[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). "Under these circumstances, the verdict is not against the manifest weight and should be affirmed." State v. Elmore, 7th Dist. No. 14 JE 0021, 2016-Ohio-890, --- N.E.3d ---, ¶ 23.
Obstructing Official Business
{¶20} In his first three of six assignments of error, Anderson challenges his conviction for obstructing official business and asserts:
Appellant's actions do not equate to criminal conduct thereby invalidating Appellant's arrest and conviction as based upon insufficient evidence.
Appellant's actions did not impede the officers thereby invalidating Appellant's arrest and conviction as based upon insufficient evidence.
Appellant's conviction was against the manifest weight of the evidence as the evidence was more persuasive that Appellant was not acting un-privileged and that no hampering or impediment was caused by Appellant to the officers.
{¶21} Obstructing official business is defined as follows:
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.R.C. 2921.31(A).
{¶22} Anderson first argues that there is insufficient evidence that he acted without privilege. He essentially contends it was within his First Amendment free speech rights to yell at the officers as they conducted the traffic stop of an unrelated motorist. He also contends there is insufficient evidence that he impeded the officers in the performance of their duties.
{¶23} With regard to the former issue, as the First District has explained: "the First Amendment 'has never conferred an absolute right to engage in express conduct whenever, wherever or in whatever manner a speaker may choose.' R.C. 2921.31 is content-neutral on its face. A person has a right to verbally protest a police officer's actions or even to argue with or curse at an officer. But that person does not have the right to hamper or impede the officer in the performance of the officer's duties." State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 31 (1st Dist.), quoting State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, ¶ 23 (1st Dist.). There are no bright-line rules for what hampers or impedes an officer; the court must analyze the defendant's "entire course of conduct." Wellman at ¶ 13.
{¶24} In Wellman, police and a Department of Public Safety agent went to a nightclub to investigate liquor permit violations; they found patrons drinking after permitted hours. As they attempted to speak to the manager, the defendant approached them and demanded to know why the officers were there. Believing him to be a club patron, they told the defendant to step away while they conducted their investigation. Because it was late at night and the patrons had been drinking, they believed that gaining control of the situation was important for their own and the patrons' safety. The defendant became upset and started cursing at the officers. He eventually stepped away, but soon returned several more times, and was even more belligerent, yelling and cursing and placing himself between the officers and the manager. The defendant eventually claimed to be the owner of the club (though he was minority shareholder), but refused to provide identification or the club's liquor permit for the officers. Id. at ¶ 1-8.
{¶25} The court concluded that based on the entire course of conduct, the defendant's behavior "crossed the line between fair protest and actual obstruction," holding that he was "not convicted based on the content of his speech, but on his volume and demeanor and his other actions that hindered the officers in conducting their investigation." Id. at ¶ 31.
{¶26} Similarly, Anderson's conduct went beyond merely yelling at the officers. Both Officers Yates and West testified that Anderson repeatedly approached them, coming within 15 feet of them despite instructions to return to the bar. The officers were in the middle of arresting two people and counting several thousand dollars in cash on the trunk of the car. For their safety, they wanted Anderson to stay away from the area. Anderson's behavior surpassed fair protest based upon the totality of the circumstances. For these reasons, there is sufficient evidence that Anderson's actions impeded the officers in the performance of their duties. Thus, in viewing the evidence in the light most favorable to the State, any rational fact-finder could have found Anderson guilty of obstructing official business. Therefore, his conviction is supported by sufficient evidence.
{¶27} Turning to manifest weight, the trial court as fact-finder had to weigh the testimony of the three officers with that of the two defense witnesses. Importantly, their testimony does not truly conflict with regard to Anderson's interference with the traffic stop. Based upon all the witnesses testimony, Anderson was the only person who did not return to the bar. Ballard testified he went inside well before Anderson, and although Ballard assumed Anderson went outside a second time to smoke a cigarette, he did not know the extent of Anderson's interaction with the officers. Likewise, Vargo had to quickly return to her post behind the bar and did not see what happened outside thereafter. Additionally, to the extent that there may be inconsistencies between the prosecution and defense witness testimony, it was well within the province of the trial court as fact-finder to resolve those inconsistencies and judge the credibility of the witnesses. Hill, supra, 75 Ohio St.3d at 204. Anderson's obstructing official business conviction is not against the manifest weight of the evidence.
{¶28} Accordingly, as Anderson's conviction for obstructing official business is supported by sufficient evidence and not against the manifest weight of the evidence, his first, second and third assignments of error are meritless.
Resisting Arrest
{¶29} In his final three of six assignments of error, Anderson challenges his conviction for resisting arrest and asserts:
The arrest of appellant was unlawful, as a result the conviction for resisting that arrest in based on insufficient evidence.
There existed insufficient evidence that Appellant resisted despite the unlawfulness of the arrest.
Appellant's conviction was against the manifest weight of the evidence as the evidence was more persuasive that Appellant did nothing to resist arrest.
{¶30} R.C. 2921.33(A) provides: "No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another."
{¶31} Anderson first asserts that his arrest was unlawful. However, as explained above, there is sufficient evidence to convict Anderson of obstructing official business, and, as a corollary, there was probable cause to arrest him for that offense. See, e.g., State v. Hasley, 7th Dist. No. 03 MA 215, 2004-Ohio-7065, ¶ 64.
{¶32} Anderson next argues there was insufficient evidence that he resisted. However, Officer Nixon testified that he followed Anderson inside the bar and told him "you need to come with me." After Anderson refused, Officer Nixon grabbed his arm to walk him outside and Anderson "yanked it away." Officer West testified he observed Anderson pulling away from Officer Nixon. It took both officers to get Anderson outside. Once outside, Anderson was told to stop resisting, but he did not comply. Officers Nixon and West brought Anderson to the ground and handcuffed him. Once on the ground, Anderson refused to put his hands behind his back and he only complied after being threatened with a Taser.
{¶33} Viewing this evidence in a light most favorable to the State, any rational fact-finder could have found Anderson guilty of resisting arrest. Thus there is sufficient evidence supporting this conviction.
{¶34} Turning to manifest weight, the trial court had to evaluate the credibility and weigh the testimony of all the witnesses. Officer Nixon testified that when Anderson came out the front door for the third time screaming about a taxi, Officer Nixon told Anderson to "come here," but he ran back inside the bar. Officer Nixon followed Anderson inside the bar and told Anderson to come with him but Anderson refused to comply; Anderson then pulled his arm away when Officer Nixon grabbed Anderson's arm to walk him outside. Officer Nixon then put his arms around Anderson's back and Officer West came inside to assist taking Anderson outside. Officer Nixon further testified that once Anderson was outside, he continued resisting, causing the officers to put him on the ground, with Anderson refusing to put his hands behind his back to be handcuffed until he was threatened with a Taser; only then did he cease resisting his arrest.
{¶35} Ballard testified that after Anderson checked outside the front door of the bar to see if his taxi had arrived, the door flew open and two officers came inside the bar, one grabbing Anderson by the neck and another picking him up off the floor. According to Ballard, two officers then carried Anderson outside and threw him down on the ground. Vargo recalled that when Anderson stuck his head out the front door to see if his taxi was there, "all of the sudden" three police officers came inside and took Anderson to the ground and carried him out by his neck; she did not see what happened when Anderson and the officers were outside.
{¶36} It is within the province of the trial court as fact-finder to judge the credibility of the witnesses and to believe the officers over the defense witnesses. Accordingly, Anderson's resisting arrest conviction is not against the manifest weight of the evidence, and his fourth, fifth and sixth assignments of error are meritless.
{¶37} In sum, all of Anderson's assignments of error are meritless. Both convictions are supported by sufficient evidence and neither is against the manifest weight of the evidence. Accordingly, the judgment of the trial court is affirmed. Donofrio, P. J., concurs. Robb, J., concurs.