[Cite as State v. Andrews, 2014-Ohio-2954.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA22 v. : DECISION AND JAMES R. ANDREWS, : JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 06/24/2014
APPEARANCES:
David A. Sams, West Jefferson, Ohio, for Appellant.
Paul G. Bertram, III, City of Marietta Law Director, Marietta, Ohio, for Appellee.
Hoover, J.
{¶ 1} Defendant-appellant, James R. Andrews (“Andrews”), appeals his conviction in the
Marietta Municipal Court for the offense of resisting arrest in violation of R.C. 2921.33. For the
following reasons, we affirm the judgment of the trial court.
{¶ 2} On December 16, 2011, Deputy Underwood and Sergeant Hornbeck of the
Washington County Sheriff’s Office were dispatched to the home of Terri McGoye to respond to
a complaint of domestic violence. Once the officers arrived at the home, McGoye alleged that
Andrews, her son, had pushed her against a wall and struck her in the chest earlier that evening.
Andrews resided at the home, in an upstairs bedroom, with his girlfriend. The officers then made
contact with Andrews in his upstairs bedroom and asked him to place his hands above his head
and to exit the bedroom towards Deputy Underwood. Once Andrews exited his bedroom, Deputy
Underwood ordered that he place his hands behind his back. Andrews did not comply with the Washington App. No. 13CA22 2
order, even though he had been asked to place his hands behind his back at least twice. At that
time, Andrews was forcibly taken down to the floor; and the officers attempted to handcuff him.
Andrews did not cooperate and the officers used a taser on him two times. Andrews was
eventually handcuffed, taken into custody, and criminal complaints were filed charging him with
the following offenses: domestic violence in violation of R.C. 2919.25(A); resisting arrest in
violation of R.C. 2921.33(A); and obstructing official business in violation of R.C. 2921.31.
{¶ 3} The case proceeded to jury trial, and after the presentation of the State’s case,
Andrews moved for a directed verdict of acquittal pursuant to Crim.R. 29. The trial court granted
Andrews’ motion for acquittal as to the obstructing official business charge, but ruled that
sufficient evidence had been presented in regards to the domestic violence and resisting arrest
charges. Andrews, through counsel, then presented his defense and rested. After deliberations,
the jury returned a verdict of not guilty on the domestic violence charge, and a verdict of guilty
on the resisting arrest charge. The verdict was journalized and Andrews was sentenced on the
resisting arrest conviction; but the trial court stayed execution of the sentence pending this
appeal.
{¶ 4} On appeal, Andrews asserts the following assignments of error:
First Assignment of Error:
THE DEFENDANT-APPELLANT’S CONVICTION FOR RESISTING ARREST WAS BASED ON INSUFFICIENT EVIDENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS. Second Assignment of Error:
THE DEFENDANT-APPELLANT’S CONVICTION AND SENTENCE FOR RESISTING ARREST IS CONTRARY TO THE RULE OF REQUIRED MERGER UNDER R.C. 2941.25(A) AND THE RULE AGAINST DOUBLE JEOPARDY UNDER THE STATE AND FEDERAL CONSTITUTIONS. Washington App. No. 13CA22 3
{¶ 5} In his first assignment of error, Andrews contends that there was insufficient
evidence to support his conviction for resisting arrest. Specifically, Andrews argues that because
he was never told he was being placed under arrest, “there was no affirmative showing of actual
knowledge on his part that he was being so arrested.” Thus, Andrews asserts that he was merely
being detained, and so, there was insufficient evidence to support a charge of resisting arrest.1
{¶ 6} “When reviewing the sufficiency of the evidence, our inquiry focuses primarily
upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could
support a finding of guilt beyond a reasonable doubt.” State v. Davis, 4th Dist. Ross No.
12CA3336, 2013-Ohio-1504, ¶ 12. “The standard of review is whether, after viewing the
probative evidence and inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements of the offense
beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979).
{¶ 7} Therefore, when we review a sufficiency of the evidence claim in a criminal case,
we review the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d
195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50
(1993). A reviewing court will not overturn a conviction on a sufficiency of the evidence claim
unless reasonable minds could not reach the conclusion the trier of fact did. State v. Tibbetts, 92
Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739
N.E.2d 749 (2001).
{¶ 8} Andrews was convicted of violating R.C. 2921.33(A), which provides that “[n]o
person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or
1 In his appellate briefs, Andrews concedes that the officers had a reasonable basis to arrest him for domestic violence; but he maintains that he was never advised that he was being placed under arrest, and did not know he was being placed under arrest. He does not contest any other elements of the offense. Washington App. No. 13CA22 4
another.” Here, Andrews contends that the State failed to present any evidence at trial that he
was ever lawfully placed under arrest. Notably, in his brief, Andrews does not challenge whether
an arrest for domestic violence would have been proper under the circumstances. Andrews
merely argues that he was unaware that he was being placed under arrest.
{¶ 9} “Arrest involves four elements: ‘(1) [a]n intent to arrest, (2) under a real or
pretended authority, (3) accompanied by an actual or constructive seizure or detention of the
person, * * * (4) which is so understood by the person arrested.’ ” State v. Burns, 5th Dist.
Coshocton No. 2013CA0005, 2013-Ohio-4498, ¶ 11, quoting State v. Carroll, 162 Ohio App.3d
672, 2005-Ohio-4048, 834 N.E.2d 843, ¶ 8 (1st Dist.), quoting State v. Darrah, 64 Ohio St.2d
22, 26, 412 N.E.2d 1328 (1980), citing State v. Terry, 5 Ohio App.2d 122, 128, 214 N.E.2d 114
(8th Dist.1966). Thus, inter alia, to obtain a conviction for resisting arrest, the evidence must
show that the subject of the arrest knew, or reasonably should have known, that he was under
arrest. Id., citing State v. Deer, 6th Dist. Lucas No. L–06–1086, 2007–Ohio–1866, ¶ 33; In re
B.M., 2d Dist. Montgomery Nos. 25093, 25206, 2012-Ohio-6221, ¶ 14, citing State v. Hatch, 2d
Dist. Montgomery No. 18986, 2002 WL 10449, *4 (Jan. 4, 2002).
{¶ 10} In the case sub judice, Sergeant Hornbeck testified that he was dispatched to the
McGoye residence to respond to a domestic violence complaint. He was advised by dispatch that
the suspect, Andrews, had retreated to an upstairs bedroom and was gathering homemade
weapons. After speaking briefly with Terri McGoye, Sergeant Hornbeck made contact with
Andrews in the upstairs bedroom. Sergeant Hornbeck then asked Andrews if he had any
weapons on his person, to which, Andrews produced a utility knife. Sergeant Hornbeck also saw
part of a metal bedframe on a couch in the bedroom. Sergeant Hornbeck testified that he then
ordered Andrews to place his hands above his head and to exit the bedroom towards Deputy Washington App. No. 13CA22 5
Underwood. Andrews complied with this order. Sergeant Hornbeck testified that once Andrews
was outside the bedroom, Deputy Underwood ordered him to place his hands behind his back at
least a couple of times. Andrews then grabbed a doorframe and refused to let go. Sergeant
Hornbeck testified that he and Deputy Underwood then forcibly took Andrews to the floor, and
attempted to handcuff him. Andrews continued to resist, and Sergeant Hornbeck then deployed
his X-26 Taser. Sergeant Hornbeck testified that he and Andrews then fell down the stairs to the
first floor of the residence. At that time, Sergeant Hornbeck initiated a second “shock” with his
taser. On cross-examination, Sergeant Hornbeck testified that he never verbally said that he was
placing Andrews under arrest, even though that was his intention in ordering him to exit the
room towards Deputy Underwood. On re-direct, he testified that he did not announce his
intention to place Andrews under arrest because he was worried about the safety of the
individuals involved given the confined space, the accessibility of weapons in the room, and the
presence of Andrews’ girlfriend in the bedroom. “The safest way to do it was to get him in
handcuffs first; search him for additional weapons; and then take him into custody.”
{¶ 11} Deputy Underwood testified that during his interaction with Andrews, he stood in
the doorway of the bedroom and never entered the room. He testified that after confiscating the
utility knife, Sergeant Hornbeck instructed Andrews to raise his hands above his head and to
walk out into the hallway. Andrews complied with that order, and when he reached the doorway,
Deputy Underwood ordered him to put his hands behind his back. Deputy Underwood testified
that he ordered him to put his hands behind his back “[f]our or five times.” Andrews did not
comply with Deputy Underwood’s order, but rather grabbed the top of a nearby doorframe.
Deputy Underwood testified that at that time, he and Sergeant Hornbeck took Andrews to the
floor where Andrews continued to resist their efforts to handcuff him by laying on top of his Washington App. No. 13CA22 6
arms. Deputy Underwood also corroborated Sergeant Hornbeck’s earlier testimony that the taser
was used twice, and that he, Sergeant Hornbeck, and Andrews all “went skipping down the
steps” to the first floor of the residence. After the second taser shock, Andrews was handcuffed.
On cross-examination, Deputy Underwood testified that during the incident, nobody told
Andrews that he was under arrest.
{¶ 12} Terri McGoye testified that while she did not see the interaction between the
officers and Andrews, she heard the officers order him to turn around and place his hands behind
his back three times. Stephen McGoye, Andrews’ step-father, testified that while he was
downstairs and did not see the interaction of Andrews with the officers, he heard the officers
order Andrews to put his hands behind his back two or three times.
{¶ 13} Each officer had also tape recorded the incident, and portions of the audio
recordings were played before the jury and admitted into evidence. In one of the audio
recordings, the officers can be heard ordering Andrews to “turn around” four times, to “put [his]
hands behind [his] back” thirteen times, to “get on the ground” two times, to “roll over” five
times, and to “stop resisting” two times. At the beginning of one recording, Andrews says
“Dude, I can walk out of here[,]” to which Deputy Underwood replies “No, you don’t even want
to go there.”
{¶ 14} Andrews also testified in his own defense at trial. Andrews testified that he did not
hit or push his mother, and that he did not know that he was being arrested. He testified that
when asked to place his hands behind his back, he put one hand behind his back and the officers
put a handcuff on that hand. He further testified that at that time he lost his balance and hit his
head on a door. He then testified that he grabbed the door to regain his balance, but the door was
knocked loose from its frame. He then fell to the floor, and was bent over the steps with his arms Washington App. No. 13CA22 7
underneath his body. He testified, that after he fell to the floor, he only remembered “bits and
pieces.”
{¶ 15} Based on the foregoing circumstances, we conclude that there was sufficient
evidence that Andrews knew, or reasonably should have known, that he was under arrest.
Sergeant Hornbeck clearly ordered him to exit the room with his hands above his head. Once
outside of the bedroom, in a safer space, Deputy Underwood ordered Andrews to turn around
and to place his hands behind his back. Several witnesses testified that they heard Deputy
Underwood make this order at least two times. It is also clear from the audio recording that the
officers continually made demands to which Andrews did not comply, and that the officers
attempted to handcuff Andrews who refused to comply. Also, at one point during the encounter
the officers made clear to Andrews that he was not free to leave. A struggle ensued in which both
officers took Andrews to the floor, and Andrews was instructed to “roll over,” to “put his hands
behind his back,” and to “stop resisting” over and over again. Although the officers did not
announce that Andrews was “under arrest,” a reasonable person in Andrews’ position would
have known they were under arrest. A statement articulating arrest is not necessary where an
arrest may be inferred from the circumstances. See In re S.C.W., 9th Dist. Summit No. 25421,
2011-Ohio-3193, ¶ 30 (“We have said, and other districts have concurred, that a statement
articulating arrest is not necessary, but rather an arrest may be inferred from the
circumstances.”); City of Warren v. Culver, 11th Dist. Trumbull No. 2003-T-0023, 2004-Ohio-
333, ¶ 18 (“[T]he magic words ‘you are under arrest’ are not necessary to constitute an arrest.”).
Accordingly, we find that Andrews’ conviction is not against the sufficiency of the evidence
because, after viewing the evidence in a light most favorable to the prosecution, any rational trier Washington App. No. 13CA22 8
of fact could have found the essential elements of the crime of resisting arrest proven beyond a
reasonable doubt.
{¶ 16} In his reply brief, Andrews also contends that the arrest was deficient under R.C.
2935.07, because the officers did not inform him that they were placing him under arrest.
{¶ 17} R.C. 2935.07 states: “When an arrest is made without a warrant by an officer, he
shall inform the person arrested of such officer’s authority to make the arrest and the cause of the
arrest.” However, “[w]hen probable cause exists for an arrest by a police officer, the failure to
notify the accused of the cause of his arrest does not render the arrest illegal if he is notified of
the offense with which he is charge[d] soon after he is taken into custody.” Culver at ¶ 16, citing
State v. Fairbanks, 32 Ohio St.2d 34, 41, 289 N.E.2d 352 (1972).
{¶ 18} Here, criminal complaints charging Andrews with domestic violence, resisting
arrest, and obstructing official business were completed the same day of the incident. Moreover,
Deputy Underwood prepared an affidavit of facts in support of the complaints. Andrews was
provided these documents. Thus, the officers complied with R.C. 2935.07. Accordingly, because
Andrews knew or should have known that he was under arrest, and because the arrest was
otherwise lawful, Andrews’ first assignment of error is overruled.
{¶ 19} In his second assignment of error, Andrews contends that the obstructing official
business and resisting arrest charges, under the facts of the case, are allied offenses of similar
import, which must merge. Thus, he argues that “[g]iven their allied legal nature and involving
the same conduct, the directed verdict of acquittal on the obstruction charge barred a subsequent
conviction for resisting under res judicata/collateral estoppel/jeopardy.”
{¶ 20} Andrews’ merger argument is misplaced. Under Ohio law, “[w]here the same
conduct by [the] defendant can be construed to constitute two or more allied offenses of similar Washington App. No. 13CA22 9
import, the indictment or information may contain counts for all such offenses, but the defendant
may be convicted of only one.” R.C. 2941.25(A). But “[w]here the defendant's conduct
constitutes two or more offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or with a separate animus as to
each, the indictment or information may contain counts for all such offenses, and the defendant
may be convicted of all of them.” R.C. 2941.25(B).
{¶ 21} R.C. 2941.25 “codified the judicial doctrine of merger” and “prohibited the
‘cumulative punishment of a defendant for the same criminal act where his conduct can be
construed to constitute two statutory offenses, when, in substance and effect, only one offense
has been committed.’ ” State v. Ware, 63 Ohio St.2d 84, 86, 406 N.E.2d 1112 (1980), quoting
State v. Roberts, 62 Ohio St.2d 170, 172–173, 405 N.E.2d 247 (1980); see also State v. Clay, 4th
Dist. Lawrence No. 11CA23, 2013-Ohio-4649, ¶ 83 (“R.C. 2941.25 ‘codifies the protections of
the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple punishments for the
same offense.’ ”). The Supreme Court of Ohio has “consistently recognized that the purpose of
R.C. 2941.25 is to prevent shotgun convictions, that is, multiple findings of guilt and
corresponding punishments heaped on a defendant for closely related offenses arising from the
same occurrence.” State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, ¶
43.
{¶ 22} In other words, upon finding one or more counts to constitute two or more allied
offenses of similar import, R.C. 2941.25(A) requires that the convictions be merged for the
purposes of sentencing and that the defendant only be sentenced on one of the counts. State v.
Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182, ¶ 5. Washington App. No. 13CA22 10
{¶ 23} Here, Andrews was only sentenced on the resisting arrest charge, because he had
been acquitted of the obstructing official business charge. Thus, he did not receive multiple
punishments for the same offense, and the merger doctrine is not applicable.
{¶ 24} We also disagree with Andrews’ contention that his acquittal of the obstruction
charge barred a subsequent conviction for resisting arrest under the Double Jeopardy Clause.
{¶ 25} The Double Jeopardy Clause provides that no person shall “be subject for the
same offence to be twice put in jeopardy of life or limb.”2 Thus, the Double Jeopardy Clause
prohibits: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple punishments for the same offense.” State
v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 10.
{¶ 26} The Supreme Court of Ohio has applied the so-called “same elements” test
articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306
(1932), to determine whether two offenses are the same or whether each is a separate offense for
double jeopardy purposes. State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶
18.
{¶ 27} The Blockburger court explained the test as follows:
* * * The applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not. * * *
Blockburger at 304.
2 The Double Jeopardy Clause was made applicable to the states through the Fourteenth Amendment. State v. Tolbert, 60 Ohio St.3d 89, 90, 573 N.E.2d 617 (1991). Moreover, Article 1, Section 10, of the Ohio Constitution provides: “No person shall be twice put in jeopardy for the same offense.” Washington App. No. 13CA22 11
{¶ 28} “A single act may be an offense against two statutes, and if each statute requires
proof of an additional fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment under the other.” State v.
Best, 42 Ohio St.2d 530, 330 N.E.2d 421 (1975), at paragraph three of the syllabus. “This test
focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a
given case.” State v. Thomas, 61 Ohio St.2d 254, 259, 15 O.O.3d 262, 400 N.E.2d 897 (1980),
overruled on other grounds in State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990),
syllabus. Thus, the “same elements” test “inquires whether each offense contains an element not
contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional
punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct.
2849, 125 L.Ed.2d 556 (1993).
{¶ 29} Here, Andrews was acquitted, via directed verdict, of obstructing official
business. R.C. 2921.31(A) provides: “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.” The crime for which Andrews was convicted,
resisting arrest, provides that “[n]o person, recklessly or by force, shall resist or interfere with a
lawful arrest of the person or another.” R.C. 2921.33(A).
{¶ 30} The elements of R.C. 2921.31(A) and 2921.33(A) differ. See City of Cleveland
Heights v. Veasley, 8th Dist. Cuyahoga No. 38053, 1978 WL 208077, *2 (Dec. 14, 1978)
(comparing municipal ordinances with identical language to the revised code statutes). Most
notably, the culpable mental state required by each offense is different. Obstructing official
business must be done purposefully; whereas, resisting arrest only recklessly. Thus, under the Washington App. No. 13CA22 12
“same elements” test discussed supra, because obstructing official business and resisting arrest
contain different elements, Andrews’ prosecution for resisting arrest was not a successive
prosecution and did not violate the Double Jeopardy Clause.
{¶ 31} Andrews also argues that his conviction for resisting arrest is barred by the
doctrine of collateral estoppel. Collateral estoppel is a concept that has been judicially integrated
into double jeopardy analysis. Ashe v. Swenson, 397 U.S. 436, 443-446, 90 S. Ct. 1189, 25
L.Ed.2d 469 (1970). “It is clear from a review of the case law applying the rule of collateral
estoppel in criminal cases that collateral estoppel will preclude successive prosecutions for
separate but related offenses only in those situations where the second prosecution requires the
relitigation of ultimate factual issues which have been previously resolved against the state and
in favor of the accused in the first prosecution.” (Emphasis sic.) State v. Starcher, 21 Ohio
App.3d 94, 95-96, 487 N.E.2d 319 (9th Dist.1984); see also Ashe at 443 (Collateral estoppel
“means simply that when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”).
{¶ 32} In the instant case, there was never a second prosecution, or a relitigation of the
issues between the parties. Rather, Andrews was acquitted of the obstructing offense at the
conclusion of the State’s case, via a Crim.R. 29 motion. In other words, the State had already
presented the evidence necessary to convict Andrews on the resisting arrest charge at the time
that the he was acquitted of the obstructing official business charge. Moreover, there was never a
determination of the ultimate factual issues in favor of Andrews. The trial court simply
determined that insufficient evidence had been presented to support a claim of obstructing
official business. Accordingly, we cannot conclude, under the facts and circumstances of this Washington App. No. 13CA22 13
case, that collateral estoppel precluded Andrews’ conviction on the charge of resisting arrest.
Andrews’ second assignment of error is overruled.
{¶ 33} Based on the foregoing, Andrews’ assignments of error are overruled, and the trial
court’s judgment is affirmed.
JUDGMENT AFFIRMED. Washington App. No. 13CA22 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty- five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P. J. & McFarland, J.: Concur in Judgment & Opinion.
For the Court
By: Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.