In re S.J.

2023 Ohio 3441

• Court: Ohio Court of Appeals
• Decided: September 27, 2023
• Docket: C-220221, C-220222, C-220223, C-220224
• Status: Published

Opinion

[Cite as In re S.J., 2023-Ohio-3441.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE S.J., A MINOR CHILD. : APPEAL NOS. C-220221 C-220222 : C-220223 C-220224 : TRIAL NOS. 20-3335Z 20-3336Z : 20-3337Z 20-3338Z

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: September 27, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Alex Scott Halvin, Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant Public Defender, for Defendant-Appellant S.J. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Rodney King. Eric Garner. Walter Scott. George Floyd. These men and

the stories of their violent encounters with police are known today because citizen

journalists created spontaneous recordings of law enforcement activity in public. See

Simonson, Copwatching, 104 Cal.L.Rev. 391, 408 (2016). As these cases demonstrate,

video recordings can promote accountability and public discourse when law

enforcement officers fail to perform their jobs in a safe and lawful manner. Id. And

video recordings can also exonerate police officers from baseless accusations by

individuals as well. Fields v. City of Philadelphia, 862 F.3d 353, 355 (3d Cir.2017). In

total, recording police activity in public merely promotes the truth.

{¶2} But for defendant-appellant S.J., a 16-year-old girl who attempted to

record the police arresting another person in broad daylight on a public sidewalk, her

effort at recording landed her in handcuffs and ultimately adjudicated of four juvenile

delinquency offenses.

{¶3} In her two assignments of error, S.J. challenges the sufficiency and

weight of the evidence supporting her adjudications of delinquency for obstruction of

justice, resisting arrest, disorderly conduct, and escape. Following our review of the

record, we hold that S.J.’s adjudications of delinquency as to all charges were not

supported by sufficient evidence. Accordingly, the judgments of the juvenile court are

reversed, and S.J. is discharged.

Factual and Procedural Background

{¶4} On October 6, 2020, delinquency complaints were filed in the Hamilton

County Juvenile Court alleging that S.J. had engaged in acts that would have

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constituted the offenses of obstruction of official business, resisting arrest, disorderly

conduct, and escape had they been committed by an adult.

{¶5} At trial, Cincinnati Police Officers Oscar Cyranek and Tammy Hussels

testified that on the date of the incident, they responded to a call that shots had been

fired in the area. The officers activated their body-worn cameras when they arrived at

the scene, and this footage was played at trial.

{¶6} The body-worn camera footage captured quite a bit of the shooting

suspect’s arrest. The suspect appeared to be a young male. During his arrest, he made

comments about the perceived injustice of the encounter. He remarked, for example,

on the alleged double standard that allows police officers to carry firearms but subjects

him to arrest for having one. He struggled somewhat with being handcuffed.

{¶7} The suspect’s arrest involved multiple officers and occurred against the

side of a building near a parking lot. The area contained small stores directly adjacent

to one another, sidewalks, and a four-lane road. Cars could be seen driving by in the

body-worn camera footage. Essentially, the arrest occurred in an open and public

space.

{¶8} While the suspect in the shooting case was being arrested, Cyranek

testified that he noticed S.J. recording the arrest on her cellphone. S.J. was initially

standing past the edge of the sidewalk, adjacent to the parking lot and slightly into the

street. The lane of traffic S.J. was standing in had been partially blocked off by two of

the police cars.

{¶9} Cyranek testified that upon noticing S.J., he requested that she “back

up” and “go away” in the interest of safety. S.J. complied and moved further into the

street in response to Cyranek’s command to back up. From there, she continued to

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record the police activity. Cyranek testified that after the suspect was arrested and his

weapon was secured, S.J. was still standing in the street recording on her phone.

{¶10} Cyranek then told S.J. to “walk away” and “get off the street.” He did

not tell her where she could go to record or direct her to a new location. S.J. responded

by shaking her head and telling Cyranek to stop talking to her. Cyranek testified that

he attempted to grab S.J.’s arm to force her off the street. When he reached for S.J.’s

arm, S.J.’s recording was obstructed. She backed up and repeatedly said, “Do not

touch me.” She moved in the direction of the sidewalk at that point, although her

movement was obstructed by the police cars separating her location in the street from

the sidewalk. S.J. could no longer record the encounter once Cyranek grabbed for her

arm. Cyranek’s body-worn camera also disengaged and quit recording at this time as

well. Their location blocked S.J.’s view of the arrest of the other person.

{¶11} Cyranek conceded that his directions to S.J. may not have been clear,

but because he believed she was not fully complying, he decided to arrest her for

obstruction of official business. He did not inform S.J. that she was under arrest, nor

did he tell her that she had committed the offense of obstruction of official business.

{¶12} Cyranek and S.J. eventually moved onto the sidewalk between two

police cars where Cyranek placed S.J. under physical arrest. Hussels testified that

while she was rendering the suspect’s gun safe, she noticed Cyranek struggling with

S.J. Despite not knowing what had transpired, Hussels testified that she went to assist.

{¶13} When Hussels arrived, Cyranek was performing a takedown maneuver

on S.J. Hussels testified that she asked S.J. to put her hands behind her back, but S.J.

did not. Hussels then pulled out a chemical irritant and moved S.J.’s head back, so

she could use the chemical irritant on S.J.

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{¶14} Without providing a verbal warning to S.J., Hussels sprayed S.J. with

the chemical irritant. Because S.J. had one hand up at the time, the spray scattered

onto both Hussels and Cyranek, who felt it in their eyes as well. Both Hussels and

Cyranek were in severe pain at this point. As depicted on Hussels’s body-worn camera

footage, S.J. was also screaming in pain.

{¶15} S.J. had been partially placed in handcuffs at the time, but because the

handcuffs were not secured, S.J. freed her left hand momentarily. S.J. wiped her eyes

with her freed hand and stood up, with Hussels’s hands on her the entire time. S.J.

was placed in handcuffs again. But, this time, the handcuffs were fully secured.

{¶16} After the bench trial concluded, the magistrate dismissed all the charges

against S.J. The state filed an objection to the magistrate’s decision, asserting the

magistrate applied an improper legal standard and that the decision was against the

manifest weight of the evidence. Following a hearing on the objection, the juvenile

court granted the state’s objection and adjudicated S.J. delinquent on all charges. The

juvenile court’s findings of delinquency were accompanied by a disposition order.

{¶17} S.J. now appeals.

Sufficiency and Weight

{¶18} In her two assignments of error, S.J. argues her adjudications of

delinquency for obstruction of official business, resisting arrest, disorderly conduct,

and escape were not supported by sufficient evidence and against the manifest weight

of the evidence.

{¶19} Challenges to the sufficiency and weight of the evidence in a juvenile

case are reviewed under the same standards of review applied in adult criminal cases.

In re R.B., 2021-Ohio-3749, 179 N.E.3d 749, ¶ 14 (1st Dist.); In re D.C., 2019-Ohio-

5 OHIO FIRST DISTRICT COURT OF APPEALS

4860, 149 N.E.3d 989, ¶ 11 (1st Dist.). 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 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.

{¶20} But when considering a challenge to the weight of the evidence, the

court must review the entire record, consider the credibility of the witnesses, and

determine whether the trier of fact clearly lost its way and created a manifest

miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).

Obstruction of Official Business

{¶21} To support an adjudication for obstructing official business in violation

of R.C. 2921.31(A), the state had to prove S.J. “(1) performed an act; (2) without

privilege; (3) with purpose to prevent, obstruct, or delay the performance of a public

official of any authorized act within the public official’s official capacity; and (4) that

hampered or impeded the performance of the public official’s duties.” State v.

Brantley, 1st Dist. Hamilton No. C-210258, 2022-Ohio-597, ¶ 16.

{¶22} S.J. argues that she did not engage in an affirmative act, that it was not

her intent to hamper or impede the official business of the officers, and that her

conduct did not result in a substantial stoppage of the officers’ official business. In

response, the state contends S.J. hampered or impeded the officers’ ability to secure

the scene due to her refusal to leave the street.

{¶23} The complaint for obstructing official business alleged that S.J.

“refuse[d] to get out of public street after being told several times by officer while

officers were arresting another suspect with gun.” And when the magistrate inquired

6 OHIO FIRST DISTRICT COURT OF APPEALS

as to what the basis for S.J.’s arrest was, Cyranek testified that S.J. “was taking me out

of helping the other officers with the arrest. To me that is obstruction.” We must

therefore determine whether this alleged conduct constituted obstruction of official

business.

a. Affirmative Act

{¶24} Obstruction of official business requires an affirmative act. State v.

Grice, 180 Ohio App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203, ¶ 9 (1st Dist.). “A

person cannot be guilty of obstructing official business by doing nothing or failing to

act.” State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 10

(1st Dist.). Further, “[m]ere failure to obey an officer’s order does not give rise to

obstruction.” State v. Carroll, 162 Ohio App.3d 672, 2005-Ohio-4048, 834 N.E.2d

843, ¶ 14 (1st Dist.).

{¶25} When Cyranek initially requested that S.J. “back up,” she complied right

away. She moved further into the street and away from the scene of the arrest. But

when Cyranek requested that S.J. “get off the street,” she shook her head and told him

to stop talking to her. Neither encounter is evidence of an affirmative act. The first

encounter demonstrates S.J.’s compliance, while the second demonstrates her

inaction. An affirmative act, however, requires more than this. S.J.’s failure to obey

Cyranek’s orders does not amount to an affirmative act, and her adjudication was not

supported by sufficient evidence as to this element. See id.

b. Purpose

{¶26} But even if there was an affirmative act, “the nature of a defendant’s

conduct must be such that a trier of fact can reasonably infer that the accused intended

his conduct to obstruct official business.” In re Payne, 1st Dist. Hamilton No. C-

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040705, 2005-Ohio-4849, ¶ 15. To constitute obstruction, a defendant must act with

purpose, meaning it is his or her specific intention to cause a certain result or engage

in a conduct of a certain nature. R.C. 2901.22(A).

{¶27} For example, in State v. Brantley, the defendant directly interfered with

the officers’ investigation and even admitted he was trying to prevent the officers from

gaining access to his vehicle. State v. Brantley, 1st Dist. Hamilton No. C-210258,

2022-Ohio-597, ¶ 19. Thus, this court concluded it was the defendant’s “conscious

decision to act contrary to [the officer’s] instruction.” Id. Comparatively, in Garfield

Hts v. Simpson, the court held there was no evidence that the defendant intentionally

impeded the execution of a search warrant where he was simply trying to fulfill his

duties as a security guard. Garfield Hts v. Simpson, 82 Ohio App.3d 286, 291, 611

N.E.2d 892 (8th Dist.1992).

{¶28} The facts here are more akin to those presented in Garfield Hts. The

state did not present any evidence that it was S.J.’s specific intention to impede the

officers’ duties or act contrary to their instructions. Rather, S.J.’s conduct clearly

indicated that it was her intent to record the arrest of the suspect. Just like the

defendant in Garfield Hts, S.J.’s passive activity of recording police activity in public

did not intentionally impede Cyranek’s arrest of the shooting suspect. See id. at 288.

The nature of S.J.’s conduct was not such that a trier of fact could reasonably infer that

she intended her conduct to obstruct official business. See In re Payne at ¶ 15.

{¶29} This conclusion is all the more warranted given both the First

Amendment privilege to record police activity in public, discussed below, and evidence

presented at trial about police policies respecting a citizen’s right to record.

{¶30} As Cyranek testified, the Cincinnati Police Manual of Policies and

Procedures provides that when an officer observes a citizen video recording, the officer

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shall not intentionally block or obstruct the recording device. Cyranek also testified

that the manual provides that if a citizen is recording from a position that threatens

public safety, the officer shall direct the citizen to move to a position where the safety

risk is lessened.

{¶31} Cyranek did not comply with this guidance. Rather, he interfered with

S.J.’s recording and failed to provide a location from which she could safely record.

{¶32} As a matter of law, however, S.J. was privileged to record the arrest,

because “the First Amendment protects the right to record the police.” Turner v.

Driver, 848 F.3d 678, 690 (5th Cir.2017); see Hils v. Davis, S.D.Ohio No. 1:21-cv-475,

2022 U.S. Dist. LEXIS 44205, 19 (March 14, 2022). As the court explained in Glik v.

Cunniffe:

In our society, police officers are expected to endure significant burdens

caused by citizens’ exercise of their First Amendment rights. Indeed,

the freedoms of individuals verbally to oppose or challenge police action

without thereby risking arrest is one of the principal characteristics by

which we distinguish a free nation from a police state. The same

restraint demanded of law enforcement officers in the face of

provocative and challenging speech * * * must be expected when they

are merely the subject of videotaping that memorializes, without

impairing, their work in public spaces.

(Internal quotation marks and citations omitted.) (Alterations in original.) Gilk v.

Cunniffe, 655 F.3d 78, 84 (1st Cir.2011).

{¶33} Every federal circuit to consider the question of whether citizens have a

First Amendment right to record police activity in public has answered that question

in the affirmative. See Irizarry v. Yehia, 38 F.4th 1282, 1290-1292 (10th Cir.2022);

9 OHIO FIRST DISTRICT COURT OF APPEALS

Turner v. Driver, 848 F.3d 678, 689-690 (5th Cir.2017); Fields, 862 F.3d at 353;

ACLU of Illinois v. Alvarez, 679 F.3d 583, 596 (7th Cir.2012); Glik, 655 F.3d at 83;

Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000); Fordyce v. City of

Seattle, 55 F.3d 436, 439 (9th Cir.1995). As such, S.J.’s purpose in first heeding

Cyranek’s instructions to step back into the street and then asking not to be touched

while she was recording the encounter not only fell short of what was required by the

obstruction statute; it was also constitutionally protected under the First Amendment.

c. Hamper or Impede

{¶34} Further, “not every act that can conceivably be said to hinder a police

officer rises to the level of criminal conduct.” In re Payne, 1st Dist. Hamilton No. C-

040705, 2005-Ohio-4849, at ¶ 16. “[A] police officer is expected to tolerate a certain

level of uncooperativeness, especially in a free society in which the citizenry is not

obligated to be either blindly or silently obeisant to law enforcement.” Id. Rather, to

rise to the level of obstruction, the conduct at issue must actually hamper or impede

the performance of the officer’s duties.

{¶35} “As the words ‘hamper’ and ‘impede’ are not defined in the statute, this

court has used the dictionary definitions of the words to conclude that an act violates

the law when it creates a ‘substantial stoppage’ of the officer’s progress.” In re R.B.,

2021-Ohio-3749, 179 N.E.3d 749, at ¶ 18. “This stoppage is not defined by a particular

period of time, but it must occur because of the defendant's act.” Grice, 180 Ohio

App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203, at ¶ 12. Any purported delay

attributed to the defendant’s conduct must be more than de minimus under the

circumstances. In re R.B. at ¶ 23.

{¶36} In In re M.H., this court held there was sufficient evidence to support

the defendant’s adjudication for obstructing official business where the defendant’s

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“actions entirely stalled the officers’ investigation into the original complaint.” In re

M.H., 2021-Ohio-1041, 169 N.E.3d 971, ¶ 22 (1st Dist.). There, the officers responded

to a dispatch regarding an unruly customer at a store and the defendant matched the

description of the alleged assailant. Id. at ¶ 2. This court concluded that the defendant

“exhibited hostility and unwillingness to cooperate in physical and verbal ways.”

(Internal quotation marks omitted.) Id. at ¶ 22.

{¶37} In so concluding, this court noted that “moving away from and

physically resisting officers is sufficient to support a conviction for obstructing official

business.” Id. at ¶ 21 (collecting cases). But in support of its reasoning, this court

pointed to cases where either the defendant was the subject of the investigation, or the

defendant actively interfered with the investigation. Id. Here, S.J. was a mere

bystander, not the suspect. This is a key distinction.

{¶38} This court also addressed a bystander’s conviction for obstruction of

official business in Grice, 180 Ohio App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203.

There, officers responded to a report of shots fired. Id. at ¶ 2. The officers attempted

to obtain personal information from those on the scene, and the defendant failed to

comply. Id. at ¶ 3. Despite the officers’ testimony that the defendant impeded the

investigation, the court concluded the officers had duly investigated the report. Id. at

¶ 10, 14. In so doing, this court highlighted that the officers had “found a gun, spent

casings, and a damaged window, and they determined not only that shots had been

fired but also from where they had been fired.” Id. at ¶ 14. Accordingly, this court held

the record was devoid of a nexus between the defendant’s affirmative act and the

alleged obstruction. Id. at ¶ 16.

{¶39} Similarly, here, the record is devoid of such a connection. As an initial

matter, we note some uncertainty as to what official business the state alleges S.J.

11 OHIO FIRST DISTRICT COURT OF APPEALS

obstructed. The complaint points to S.J.’s failure to comply with Cyranek’s commands

to get out of the street, but does not identify what other action the police were taking

that this failure hampered. At trial, Cyranek testified that S.J. prevented him from

helping the other officers with the suspect’s arrest. On appeal, the state argues that

S.J. impeded Cyranek from securing the scene of the arrest without describing how

S.J.’s presence made the area unsafe or from what location she could have lawfully

recorded the encounter.

{¶40} The record does not support the conclusion that S.J. hampered

Cyranek’s official duties under either theory. With regard to the claim that S.J. limited

Cyranek’s ability to assist in the arrest of the suspect, the body-worn camera footage

demonstrates that while Cyranek was engaging with S.J., Hussels had already

rendered the suspect’s gun safe, and four other officers were arresting the suspect.

Therefore, the claim that S.J. took Cyranek away from the arrest is contradicted by

clear evidence that there were already enough officers to apprehend the suspect.

Additionally, as Hussels testified, part of Cyranek’s duties as a backup officer was to

ensure that bystanders remained safely on the periphery. Thus, engaging with a

bystander on the scene like S.J. was a part of, not in conflict with, Cyranek’s official

duties. Just as in Grice, there is no evidence here that S.J.’s conduct actually resulted

in a substantial stoppage of the officers’ duties. See id. at ¶ 14.

{¶41} Moreover, Cyranek acknowledged the Cincinnati Police Manual policy

that when an officer observes a citizen video recording, the officer shall not

intentionally block or obstruct the recording device. Cyranek also conceded that if a

citizen is recording from a position that threatens public safety, the policy requires the

officer to direct the citizen to move to a position where the safety risk is lessened.

These were also Cyranek’s official duties on the scene, yet he did not comply with this

12 OHIO FIRST DISTRICT COURT OF APPEALS

guidance. Rather, he interfered with S.J.’s recording and failed to provide a location

from which she could safely record. Moreover, had S.J. complied with Cyranek’s

request to move from the street, her ability to continue recording the arrest of the

shooting suspect would have been blocked.

{¶42} Thus, there is insufficient evidence to demonstrate that S.J. hampered

or impeded Cyranek’s duties, either in effectuating the arrest of the shooting suspect

or securing the scene.

{¶43} Given the lack of sufficient evidence to demonstrate the required

elements of an affirmative act, purpose, and hampering or impeding an officer’s

official duties, we sustain S.J.’s assignment of error as to her delinquency adjudication

for obstruction of official business.

Resisting Arrest

{¶44} 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.” “A ‘lawful arrest’ is an

element of resisting arrest, and the prosecution must prove beyond a reasonable doubt

that the arrest was lawful.” State v. Pitts, 2022-Ohio-4172, 201 N.E.3d 983, ¶ 13 (1st

Dist.). This court has emphasized, “We will not impose a rule that allows a conviction

for resisting arrest any time a person flees from the police—there must first be an

arrest.” Carroll, 162 Ohio App.3d 672, 2005-Ohio-4048, 834 N.E.2d 843, at ¶ 14.

{¶45} “To be a lawful arrest, the arresting officer must have probable cause or

a reasonable basis to believe that the offense for which the defendant has been arrested

did, in fact, occur.” Pitts at ¶ 13. “[T]he evidence must show that the defendant should

have reasonably understood that she was being detained.” In re M.H., 2021-Ohio-

1041, 169 N.E.3d 971, at ¶ 27. Further, “[a] child’s age is an important consideration

13 OHIO FIRST DISTRICT COURT OF APPEALS

when determining whether the child understood that she was being placed under

arrest.” Id.

{¶46} S.J. contends she was not lawfully arrested, nor did she reasonably

understand that she was being placed under arrest. Moreover, she contends that if

this court finds she resisted her arrest, she was justified in doing so to protect herself

from the use of excessive force.

{¶47} As discussed above, Cyranek did not have probable cause to arrest S.J.

for obstruction of official business. And importantly, Hussels testified she did not even

know the basis of S.J.’s arrest when she went to assist Cyranek. Likewise in Carroll,

the second officer on the scene had no knowledge of what had transpired between the

defendant and the first officer on the scene. Carroll at ¶ 12. Despite this lack of

knowledge, the second officer assisted with the defendant’s arrest. Id. This court held

that because the second officer had no knowledge of the basis of the arrest, the second

officer could not have arrested the defendant for resisting her arrest. Id. Because

neither Cyranek nor Hussels had probable cause or a reasonable basis to believe S.J.

had committed an offense, there was no lawful arrest. And without a lawful arrest,

S.J.’s adjudication for resisting arrest cannot stand.

Disorderly Conduct

{¶48} R.C. 2917.11(A)(4) and (5) provide that no person shall recklessly cause

inconvenience, annoyance, or alarm to another person by doing any of the following:

(4) Hindering or preventing the movement of persons on a public street,

road, highway, or right-of-way, or to, from, within, or upon public or

private property, so as to interfere with the rights of others, and by any

act that serves no lawful and reasonable purpose of the offender;

14 OHIO FIRST DISTRICT COURT OF APPEALS

(5) Creating a condition that is physically offensive to persons or that

presents a risk of physical harm to persons or property, by any act that

serves no lawful and reasonable purpose of the offender.

{¶49} Though the complaint for disorderly conduct listed every section of R.C.

2917.11, the juvenile court based S.J.’s adjudication of disorderly conduct only on R.C.

2917.11(A)(4) and (5). On appeal, S.J. argues she did not violate either section, but the

state addresses only R.C. 2917.11(A)(4). Because the juvenile court based its

adjudication on both subsections, we consider S.J.’s conduct under both R.C.

2917.11(A)(4) and (5).

{¶50} S.J. argues there was insufficient evidence to support the delinquency

finding as to R.C. 2917.11(A)(4), because it was the parked police cars that diverted

traffic, not S.J.’s entry into the street. Similarly, in State v. Gregorino, the court

reasoned, “by closing the street to avoid injuries, the police took away the element of

the offense of disorderly conduct under R.C. 2917.11(A)(4).” State v. Gregorino, 11th

Dist. Portage No. 2003-P-071, 2004-Ohio-4698, ¶ 24.

{¶51} Here, the officers’ body-worn camera footage and testimony confirms

the lane of traffic S.J. was standing in had already been blocked off by the parked police

cars. As Cyranek testified, cars were changing lanes considerably south of where S.J.

was standing. Thus, the blockage was not due to S.J. herself. And even in S.J.’s

absence, traffic would have been diverted due to the parked police cars. Like the court

held in Gregorino, the actions of the police do not excuse the state from its burden of

showing that S.J. was impeding traffic. Id. Here, the state did not meet that burden.

{¶52} Regarding R.C. 2917.11(A)(5), S.J. argues the juvenile court failed to

consider that her actions served a lawful and reasonable purpose. We agree and

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further hold that there was insufficient evidence that S.J. created a condition that was

physically offensive or presented a risk of physical harm.

{¶53} In State v. Hall, the court held the defendant pointing a realistic looking

weapon into oncoming traffic was reckless and caused panic and public alarm. State

v. Hall, 5th Dist. Stark No. 2021CA00153, 2022-Ohio-1736, ¶ 26. And in State v.

Meyer, this court held the defendant’s exercise of his First Amendment right of free

expression in protesting an abortion facility served a lawful and reasonable purpose,

despite the defendant’s use of a grotesque display in front of the facility. State v.

Meyer, 61 Ohio App.3d 673, 674-76, 573 N.E.2d 1098 (1st Dist. 1988).

{¶54} Given traffic was already being diverted considerably south of where

S.J. was standing, it cannot be said that S.J. was causing panic and public alarm, like

the defendant in Hall. And more importantly, like the defendant in Meyer, S.J. was

exercising her right to record the arrest under the First Amendment, and her conduct

therefore served a lawful and reasonable purpose. See Irizarry, 38 F.4th at 1290-1292.

{¶55} Thus, S.J.’s adjudication of delinquency for disorderly conduct was not

supported by sufficient evidence.

Escape

{¶56} R.C. 2921.34(A)(1) provides, “No person, knowing that the person is

under detention * * * shall purposely break or attempt to break the detention.”

“Detention” is defined as an arrest by R.C. 2921.01(E). And as previously discussed, a

person acts “purposely” under R.C. 2901.22(A) when it is his or her specific intention

to cause a certain result or engage in conduct of a certain nature. “Generally, intent is

not shown by direct testimony.” State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-

4171, 896 N.E.2d 212, ¶ 27 (1st Dist.). Rather, “intent is shown by looking at the

surrounding facts and circumstances.” Id.

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{¶57} In State v. Palmer, the court held the evidence fit the definition of

escape where the defendant knew he was under arrest for a felony, but purposely ran

from officers while being fingerprinted. State v. Palmer, 7th Dist. Jefferson No. 04-

JE-41, 2006-Ohio-749, ¶ 90. Despite ten officers chasing after the defendant and

yelling at him to stop, the defendant did not stop voluntarily. Id. at ¶ 89. But here,

such evidence is lacking.

{¶58} As discussed at length above, S.J. was not lawfully arrested. Further,

S.J. did not purposely break her detention. The body-worn camera footage shows that

after S.J.’s hand slipped out of the handcuff, she rubbed her eyes due to the chemical

irritant that had been sprayed. The officers themselves were in severe pain from this

chemical irritant. This suggests it was S.J.’s specific intention to ease the pain she was

experiencing, not to escape detention. The fact that S.J. was handcuffed again within

a very brief time further confirms this intention. S.J.’s adjudication of delinquency for

escape was therefore not supported by sufficient evidence.

Conclusion

{¶59} The scene of a public arrest can be a stressful environment, particularly

when a gun is allegedly involved. It is stressful for the police officers who place their

safety at risk and who use the force of the law to make judgment calls in the interests

of the community. It is stressful for the person being arrested, whose freedom is at

stake, and any of his or her loved ones who may be watching. And it is stressful for

bystanders, whose responses may range from relief to curiosity to fear.

{¶60} The presence of a cell phone camera in public arrests can lessen the

stress for all involved. For officers, it can promote public confidence in highlighting

their professionalism, adherence to policy, and truthfulness. See Fields, 862 F.3d at

355. For those being accused, it can document their experience and level the power

17 OHIO FIRST DISTRICT COURT OF APPEALS

dynamic with police. For bystanders and the general public, it can promote a

discussion of police practices and engender public trust. See Simonson, 104

Calif.L.Rev. at 408.

{¶61} S.J.’s effort to document a public arrest unfortunately resulted in her

own arrest. But because her adjudications for obstruction of official business, resisting

arrest, disorderly conduct, and escape are not supported by sufficient evidence. S.J.’s

first assignment of error is sustained. The judgments of the juvenile court are

reversed, and S.J. is hereby discharged. S.J.’s second assignment of error, alleging

that her adjudications were against the manifest weight of the evidence, is made moot

by our disposition of her first assignment of error, and therefore, we do not address it.

Judgments reversed and appellant discharged.

BOCK, J., concurs. ZAYAS, P.J., concurs in part and dissents in part.

ZAYAS, P.J., concurring in part and dissenting in part.

{¶62} Respectfully, I agree with the majority’s determination that the

adjudication for escape must be reversed, albeit for different reasons. I disagree with

the majority on the remainder of its opinion. If the facts and applicable law were as

the majority portrayed, I may have agreed with the majority opinion. However, in my

view, the majority’s opinion misconstrues facts, omits essential details, and is based

upon improper factual findings that are unsupported by the record and beyond our

authority as a reviewing court.

{¶63} Because the majority glosses over the volatility and evolving situation

Cyranek faced at the scene, I will present the facts as captured on the video footage

and the testimony of the witnesses.

18 OHIO FIRST DISTRICT COURT OF APPEALS

{¶64} Officer Hussels testified that she and her partner Officer Pete responded

to a shots-fired call on Glenway Avenue. When Hussels arrived, she saw a male

matching the description of the suspect firing a pistol while walking on the sidewalk.

Hussels approached the suspect while Pete went behind the suspect and attempted to

handcuff him. After Hussels removed a gun from his waistband, the suspect refused

to place his hands behind his back, struggled to escape, and the scuffle moved into an

adjacent parking lot. Hussels immediately called for backup and placed the suspect’s

gun in her shorts pocket. She did not have time to clear the gun as the suspect

continued to resist arrest.

{¶65} When Cyranek arrived on the scene, two officers were still struggling to

place handcuffs on the suspect. Cyranek immediately went to assist the officers.

Cyranek’s body-camera video shows that S.J. was standing in the middle of the street

recording. The suspect continued to refuse to place his hands behind his back.1 Two

additional officers arrived to assist with the arrest.

{¶66} After one of the officers warned the suspect that he would be tased,

Cyranek briefly turned toward S.J. S.J. had moved from the middle of the street to the

curb, much closer to the suspect being handcuffed. The video shows that while

pointing down the street, Cyranek shouted, “Back off. Back up. Go away.” Cyranek

quickly turned his back on S.J. to continue assisting the officers who had not yet

1 During the struggle, the suspect repeatedly told the officers to, “Get the fuck off me.” He also said,

“Call my fucking people. Hey, ya’ll going to have to shoot me, I don’t give a fuck. I ain’t scared. Shoot me n-word, shoot me. My hands ain’t going nowhere, my hand’s right here, n-word. What the fuck are you talking about? I’ll put my hands on you bitch-ass idiots. If you tase me, I swear to God, I’ll have you (inaudible). So you all are gonna do this because I got a gun? Fuck ya’ll. Ya’ll got guns bitch, always (inaudible). I’ll spit on you bitch ass n-word. What the fuck you talking about?”

19 OHIO FIRST DISTRICT COURT OF APPEALS

handcuffed the suspect. While S.J. responded, “No. I’m not doing shit but recording

how you all (inaudible),” she stepped backwards further into the street.

{¶67} Cyranek testified that S.J. was too close to the scene, and his primary

concern was safety. “She appeared to be recording us, which is fine with me, but the

problem is safety of everyone on the scene.” Cyranek admitted that he should have

been clearer in his instructions, but he did not have time to approach her or look for a

safer place for her to record because the suspect was still resisting. Cyranek “[didn’t]

care [that she was recording.] We have body cams on us. No. She has the right to

record.” He further testified that his primary concern was her proximity to the scene.

This first encounter was not the basis of the obstruction charge.

{¶68} With the help of a fourth officer, the suspect was finally handcuffed, and

a female voice can be heard on the video shouting, “Get out of the street.” The suspect

continued to struggle and resist as the officers searched him and led him toward a

police cruiser. The suspect jumped on the front of the cruiser, and the video shows

two officers detaining the suspect on the cruiser parked partially on the sidewalk.

Contrary to the majority’s assertion, the video never depicts the suspect secured in a

police vehicle.

{¶69} While the officers escorted the suspect to the cruiser, S.J. was visible in

the video, almost on the sidewalk. Cyranek turned and walked toward her, saying,

“Walk away ma’am. Get off the street. Get off the street right now.” S.J. shook her

head no, began backing up into the street, and responded, “Stop talking to me.” He

reached for S.J. because “[he] wanted to escort her off the street.” At that point, S.J.

repeatedly shouted, “Don’t touch me,” and swung at Cyranek with her phone in her

hand. The video shows S.J. continuing to walk backwards in the street, backing away

from Cyranek while telling him not to touch her. Cyranek’s video stopped recording,

20 OHIO FIRST DISTRICT COURT OF APPEALS

but Hussels’s video showed that while Cyranek was walking toward her and pointing

toward the sidewalk, S.J. continued to walk backward and remain on the street.

{¶70} After taking many steps, Cyranek and S.J. approached the two parked

cruisers, one on the sidewalk and one on the street, that were up the street from where

S.J. was initially recording. As they approached the vehicles, Hussels was visible

clearing the suspect’s gun. The suspect was still being held on the front of Cyranek’s

cruiser and shouting at the officers. Cyranek and S.J. disappear for a brief amount of

time, then reappear on the sidewalk struggling. Hussels ran toward them and tossed

the gun into her cruiser, which was parked on the sidewalk. Hussels and Cyranek

eventually detained S.J. who was screaming and struggling.

{¶71} Cyranek testified that he “didn’t want her to get struck by a car.

Obviously, traffic is going, and Glenway is really busy. I mean, there’s cars that drive

very, very fast over there.” Cyranek observed that S.J. “was causing traffic to move

because she was standing in the street. No one is going [to] hit her on purpose.” He

further testified that, “She is obstructing traffic just because the cars don’t want to hit

her and are changing lanes.” But S.J. told him she was not going to comply. Cyranek

testified that he told her that she could be arrested if she did not get out of the street.

{¶72} When S.J. was next to the two cruisers, she was still in the street walking

backwards. S.J. did not walk toward the sidewalk, so Cyranek walked toward her to

force her to walk between the cruisers and onto the sidewalk. Cyranek testified that

S.J. never complied with his directive to get off the street and he decided to arrest her

“when she was behind the first police car” because she refused to get off the street.

{¶73} The juvenile court made the following factual findings, which were

supported by the record:

21 OHIO FIRST DISTRICT COURT OF APPEALS

In the case at bar, Juvenile was standing in the middle of the road,

impeding traffic. Although there were police cruisers in the road, they

were further down the road than Juvenile was. Officer Cyranek directed

Juvenile to back up, and get off the street, Juvenile refused to comply

and prevented or delayed Officer Cyranek from further assisting the

other officers in order to get her to comply. Juvenile failed to heed

Officer Cyranek’s orders, and was standing in the street, creating a

danger to herself and others.

{¶74} The majority concludes that S.J.’s conduct was not an affirmative act

because she “shook her head and told him to stop talking to her” when Cyranek

instructed her to get out of the street. A review of the record revealed more than

sufficient evidence that S.J. engaged in an affirmative act. The video shows that S.J.

swung her arm at Cyranek, repeatedly shouted at him, repeatedly disregarded his

instructions, and continued to walk in the street. Thus, viewed in the light most

favorable to the state, this evidence demonstrates that S.J. performed an affirmative

act and did not “merely” fail to obey Cyranek’s instruction.

{¶75} Next, the majority concludes that “[t]he state did not present any

evidence that it was S.J.’s specific intention to impede the officers’ duties or act

contrary to their instructions.” Because a person’s intent is within her mind, purpose

may be determined by circumstantial evidence and the surrounding facts and

circumstances of the case. See State v. Johnson, 56 Ohio St.2d 35, 38, 381 N.E.2d 637

(1978). “The intent to obstruct, delay, or prevent a public official from carrying out his

22 OHIO FIRST DISTRICT COURT OF APPEALS

or her duties may be inferred from appellant’s actions.” State v. Lee, 10th Dist.

Franklin No. 18AP-666, 2019-Ohio-3904, ¶ 20.

{¶76} Instead of complying with Cyranek’s instruction, the video shows S.J.

exhibiting uncooperative behavior, disregarding Cyranek’s instruction to get out of the

street, and continuing to walk in the street. Cyranek testified that “she was still on the

street, * * * and she wasn’t complying with me.” S.J.’s refusal to get on the sidewalk

required him to focus on her instead of arresting the suspect and securing the scene.

The evidence established that S.J. made a conscious decision to act contrary to

Cyranek’s instructions. Thus, the fact finder could have reasonably concluded that S.J.

purposefully impeded Cyranek. Accordingly, the evidence supports that S.J.’s acts

resulted in more than a de minimus delay in the performance of Cyranek’s lawful

duties.

{¶77} Finally, the majority holds that S.J. did not hamper or interfere with

Cyranek’s duties because “the body-worn camera footage demonstrates that while

Cyranek was engaging with S.J., Hussels had already rendered the suspect’s gun safe,

and four other officers were arresting the suspect” and “part of Cyranek’s duties as a

backup officer was to ensure that bystanders remained safely on the periphery.”

However, “S.J. does not contest that the officers were acting in the performance of

their lawful duty.” See Appellant’s Brief at 9.

{¶78} Moreover, Cyranek was unable to secure the periphery of the scene

while he was down the street trying to get S.J. to comply with his instruction to move

out of the street. Additionally, Cyranek’s uncontested testimony was that S.J.’s

conduct impeded him from assisting the other officers, which included placing the

suspect in the cruiser and securing the scene, which in this case, as Cyranek testified,

may have included recovering casings that were discharged from the gun. The suspect

23 OHIO FIRST DISTRICT COURT OF APPEALS

had not been placed in the cruiser when Hussels ran to assist in S.J.’s arrest. To the

extent that the majority evaluates the credibility of Cyranek’s testimony in reaching its

conclusion, the fact finder—not this court—determines which witnesses should be

believed, and which witnesses should not. Here, the juvenile court found Cyranek’s

testimony to be credible and determined that S.J. “prevented or delayed Officer

Cyranek from further assisting the other officers.”

{¶79} The majority concludes that S.J.’s intent “was to record the arrest of the

suspect” which was “constitutionally protected under the First Amendment.”

Undoubtedly, S.J. initially intended to record the arrest. When Cyranek told her to get

out of the street, she was a few steps from the sidewalk. If her sole intent was to

continue to record, S.J. could have walked onto the sidewalk and continued to record.

Instead, S.J. chose to respond with “no” and “don’t talk to me” and remain in the street.

Cyranek never told her to stop recording. Rather, he testified repeatedly that he did

not care that she was recording, and that his concern was for her safety and “never

with her recording.” S.J.’s own actions impeded her ability to record.

{¶80} Moreover, “the First Amendment has never conferred an absolute right

to engage in expressive conduct whenever, wherever, and in whatever manner a

speaker may choose.” State v. Geary, 2016-Ohio-7001, 72 N.E.3d 153, ¶ 20 (1st Dist.),

citing State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, ¶ 23

(1st Dist.), quoting Cincinnati v. Thompson, 96 Ohio App.3d 7, 16, 643 N.E.2d 1157

(1st Dist.1994). First Amendment conduct “is subject to time, place, and manner

restrictions.” Id. “[W]hile individuals have a right to freedom of speech and

expression, the government can place reasonable restrictions on the time, place, and

manner of the exercise of those rights. Certainly, prohibiting individuals from

standing in a roadway is an example of such reasonable restriction.” State v.

24 OHIO FIRST DISTRICT COURT OF APPEALS

Gregorino, 11th Dist. Portage No. 2003-P-0071, 2004-Ohio-4698, ¶ 37. See also

Cleveland v. Egeland, 26 Ohio App.3d 83, 497 N.E.2d 1383 (8th Dist.1986), paragraph

one of the syllabus (“The offender’s conscientious belief in the importance of the

subject about which he demonstrates does not provide him with a lawful privilege to

obstruct the roadway.”); State v. Amireh, 2016-Ohio-1446, 62 N.E.3d 672, ¶ 20 (4th

Dist.) (holding that the “protest of a tuition increase was not a lawful or reasonable

purpose to be in the street.”); (Emphasis in original.) Am. Civil Liberties Union: of

Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012) (“While an officer surely cannot

issue a ‘move on’ order to a [bystander] because he is recording, the police may order

bystanders to disperse for reasons related to public safety and order and other

legitimate law-enforcement needs. Nothing we have said here immunizes behavior

that obstructs or interferes with effective law enforcement or the protection

of public safety.”).

{¶81} I disagree with the majority’s assertion that Cyranek failed to comply

with the guidance from Cincinnati Police Manual of Policies and Procedures by failing

to direct S.J. to a safe location to record. First, I note that the manual was not made

part of the record and the majority’s determination is based on Cyranek’s limited

responses regarding the manual. I further note that Cyranek testified that, during the

first encounter, he did not have time to direct her because the suspect was actively

resisting arrest. With respect to the second encounter, Cyranek did in fact direct S.J.

to a safe location to record when he instructed her to get out of the street and pointed

toward the sidewalk.

{¶82} Based on this record, the state presented sufficient evidence to show

that S.J. obstructed official business.

25 OHIO FIRST DISTRICT COURT OF APPEALS

{¶83} Having determined that the state proved that S.J. committed

obstruction, I would hold her arrest was lawful. To adjudicate S.J. of resisting arrest,

the state had to prove that she recklessly or by force resisted or interfered with her

lawful arrest. R.C. 2921.33. The body-camera video depicts S.J. pulling away from

and struggling with Cyranek as he attempted to arrest her. S.J. refused to place her

hands behind her back after numerous requests from Cyranek. Hussels testified that

she sprayed a chemical irritant because S.J. refused to comply with their attempts to

handcuff her. S.J.’s adjudication for resisting arrest was supported by sufficient

evidence and not against the weight of the evidence. See, e.g., State v. Carter, 1st Dist.

Hamilton No. C-220030, 2022-Ohio-3901, ¶ 17 (holding that conviction for resisting

arrest was supported by sufficient where defendant repeatedly refused to follow the

officer’s commands); State v. Williams, 5th Dist. Fairfield No. 2021 CA 00014, 2021-

Ohio-4200, ¶ 34 (evidence that defendant refused to comply with officer’s requests

and struggled with officers sufficient to prove resisting arrest).

{¶84} S.J. was adjudicated delinquent for disorderly conduct under R.C.

2917.11(A), a minor misdemeanor.2 The majority concludes that the state failed to

prove that S.J. recklessly caused inconvenience to another person by hindering or

preventing the movement of persons on a public street “because it was the parked

police cars that diverted traffic, not S.J.’s entry into the street.” Yet, that factual

finding is unsupported by the record. When Cyranek approached S.J., she was

standing in the road impeding traffic. The video shows that the two police cars were

2 Although S.J. was charged with persistent disorderly conduct, the juvenile court adjudicated her

under R.C. 2917.11(A), a minor misdemeanor.

26 OHIO FIRST DISTRICT COURT OF APPEALS

further down the street and were not diverting traffic where S.J. was standing.

Cyranek’s uncontroverted testimony was that S.J. obstructed traffic, and cars were

changing lanes to avoid hitting her. The trial court found Cyranek’s testimony to be

credible, and that, “[S.J.]” was in the middle of the road impeding traffic. Although

there were police cruisers in the middle of the road, they were further down the road

than S.J. was.” “We afford substantial deference to credibility determinations because

the factfinder sees and hears the witnesses.” See State v. Glover, 1st Dist. Hamilton

No. C-180572, 2019-Ohio-5211, ¶ 30. Moreover, the video is consistent with Cyranek’s

testimony and the trial court’s finding.

{¶85} Accordingly, viewing the evidence in the light most favorable to the

state, a rational trier of fact could have found that S.J.’s adjudication for disorderly

conduct was supported by sufficient evidence and not against the weight of the

evidence.

{¶86} R.C. 2921.34(A)(1) states, in relevant part, that “[n]o person, knowing

the person is under detention * * * or being reckless in that regard, shall purposely

break or attempt to break the detention * * *.” State v. Tensley, 2012-Ohio-4265, 980

N.E.2d 23, ¶ 5 (1st Dist.). For our purposes, “ ‘Detention’ means arrest.” R.C.

2921.01(E). “A person is under ‘detention,’ as that term is used in R. C. 2921.34, when

he is arrested and the arresting officer has established control over his person.” State

v. Reed, 65 Ohio St.2d 117, 123, 418 N.E.2d 1359 (1981).

{¶87} The adjudication was based on the trial court’s finding that S.J. was

“handcuffed,” and “slipped her hands out of the handcuffs.” However, Hussels

testified that she had not secured the handcuffs onto S.J.’s wrists. Because the

27 OHIO FIRST DISTRICT COURT OF APPEALS

handcuffs were never properly secured on S.J.’s wrists, the state failed to establish that

the officers had established control over S.J. I would sustain the first assignment with

regard to the escape adjudication. See id.

{¶88} I would sustain the first assignment of error in part, with respect to the

adjudication for escape, and reverse that adjudication. I would affirm the trial court’s

judgments in all other respects.

Please note: The court has recorded its own entry on the date of the release of this opinion.