State v. Cooper

2024 Ohio 3081

• Court: Ohio Court of Appeals
• Decided: August 14, 2024
• Docket: C-240018, C-240019
• Status: Published

Opinion

[Cite as State v. Cooper, 2024-Ohio-3081.]

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

STATE OF OHIO, : APPEAL NOS. C-240018 C-240019 Plaintiff-Appellee, : TRIAL NOS. 23CRB-19485 23CRB-19486A vs. : O P I N I O N. BENJAMIN COOPER, :

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 14, 2024

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Tori Gooder, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Defendant-appellant Benjamin Cooper appeals his misdemeanor

convictions for resisting arrest and obstructing official business. In a single

assignment of error, Cooper challenges the sufficiency and manifest weight of the

evidence supporting his convictions. More specifically, Cooper argues that the officer

who arrested him lacked probable cause to believe he had trespassed at a Stop-N-Go

store because the officer, rather than the store clerk, notified Cooper that he had to

leave the property. Because the officer was acting as the clerk’s agent in

communicating that Cooper was no longer welcome on the premises, we overrule the

assigned error and affirm the judgments of the trial court.

Factual and Procedural Background

{¶2} On November 9, 2023, Officer Gregory Harmon of the Cincinnati Police

Department pulled into the parking lot of the Stop-N-Go on West McMillan Street in

Cincinnati. Harmon stopped at the convenience store to use the restroom and

purchase a drink. He was seated in his cruiser finishing a report when Cooper

approached. Harmon was not familiar with Cooper.

{¶3} Harmon testified at trial about his encounter with Cooper, and footage

from his body-worn camera was admitted as well. According to Harmon, Cooper

shouted something Harmon could not discern because the cruiser’s windows were up.

When Harmon rolled down the window, Cooper indicated that he was a federal agent

and that Harmon was outside his jurisdiction. Harmon twice inquired whether

Cooper needed police services, which Cooper did not answer. Harmon rolled his

window back up.

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{¶4} Harmon then entered the Stop-N-Go. He asked the store clerk if she

wanted Cooper to leave the property. The clerk answered in the affirmative. Harmon

then went back outside and advised Cooper to go. Cooper replied, “she has to tell me,”

and tried to enter the store. Harmon held the door shut and stuck his hand out to

prevent Cooper from entering. Cooper ended up on the ground, but how he got there

was the subject of dispute. Cooper maintained Harmon pushed him, Harmon opined

Cooper threw himself to the ground, and a bystander testified Cooper fell backward

over a parking stop.

{¶5} According to Harmon’s testimony, Harmon then retrieved his handcuffs

and orally advised Cooper he was under arrest. He repeatedly ordered Cooper to put

his hands behind his back. Cooper struggled against the officer. While Harmon was

able to secure Cooper’s right hand in a handcuff, he had difficulty securing Cooper’s

left hand. Believing an escalation of force was necessary, Harmon retrieved his taser.

Cooper knocked the taser out of Harmon’s hand. As the two men continued to scuffle,

Cooper grabbed the taser and threw it out of reach.

{¶6} Harmon was eventually able to secure both of Cooper’s hands in

handcuffs. Other officers who had arrived on scene then took over the arrest.

{¶7} Bystander M.H. testified for the state. M.H. was across the street taking

pictures at a job site. He observed Cooper approach the driver’s side of the police

cruiser. M.H. described Cooper’s behavior as “arms going everywhere, jumping up

and down.” He saw Cooper go to the front of the cruiser and grab ahold of the bumper,

shaking the vehicle. M.H. testified Cooper walked towards the entrance to the store,

after which he moved backwards and fell over the parking stop.

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{¶8} M.H. recorded a portion of the incident on his cell phone, and that video

was entered into evidence. He observed Cooper tussle with Harmon and knock the

taser out of the officer’s hand. According to M.H., Cooper reached down, grabbed the

taser, and threw it. The taser landed in M.H.’s lap.

{¶9} Cooper was eventually taken into custody and charged with obstructing

official business in violation of R.C. 2921.31(A) and resisting arrest in violation of R.C.

2921.33(A), both misdemeanors of the second degree. The state also levied charges

for criminal trespass and failure to disclose personal information, but those charges

were dismissed prior to trial.

{¶10} Following a bench trial, the court found Cooper guilty of the resisting

arrest and obstructing charges. The court imposed identical, concurrent sentences on

the charges consisting of 90 days in jail with 58 days suspended and credit for 32 days

served. In addition, the court imposed one year of community control. Cooper timely

appealed.

{¶11} In his sole assignment of error, Cooper challenges the weight and

sufficiency of the evidence supporting his convictions.

Standards of Review

{¶12} To assess whether a conviction is supported by sufficient evidence, we

ask “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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two

of the syllabus. See State v. Curry, 2020-Ohio-1230, ¶ 11 (1st Dist.).

{¶13} Unlike a sufficiency review, a manifest-weight challenge requires us to

independently “review the entire record, weigh the evidence, consider the credibility

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of the witnesses, and determine whether the trier of fact clearly lost its way and created

a manifest miscarriage of justice.” State v. Powell, 2020-Ohio-4283, ¶ 16 (1st Dist.),

citing State v. Thompkins, 78 Ohio St.3d 380, 397 (1997). Reversal and retrial are

warranted only in “ ‘exceptional cases in which the evidence weighs heavily against the

conviction.’ ” State v. Sipple, 2021-Ohio-1319, ¶ 7 (1st Dist.), quoting State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist. 1983).

Resisting Arrest

{¶14} R.C. 2921.33(A) provides that “[n]o person, recklessly or by force, shall

resist or interfere with a lawful arrest of the person or another.” According to Harmon,

Cooper was under arrest for criminal trespass for trying to enter the store after being

told to leave. The statute proscribing criminal trespass, R.C. 2911.21, provides in

pertinent part that “[n]o person, without privilege to do so, shall . . . [k]nowingly enter

or remain on the land or premises of another.” R.C. 2911.21(A)(1). The trespass

statute further provides that “[n]o person, without privilege to do so, shall . . . [be] on

the land or premises of another, negligently fail or refuse to leave upon . . . being

notified to do so by the owner or occupant, or the agent or servant of either[.]” R.C.

2911.21(A)(4).

{¶15} Cooper argues there is insufficient evidence to support the “lawful

arrest” element of the resisting statute because the record does not indicate he engaged

in criminal trespass. He emphasizes the fact that Harmon initiated his removal from

the Stop-N-Go rather than the store clerk and maintains that the officer was without

authority to revoke his privilege to remain on the premises. Cooper further argues

Harmon did not have cause to arrest him for failure to disclose personal information,

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as the statute criminalizing that offense requires disclosure only where an individual

is “reasonably suspected” of committing a crime. See R.C. 2921.29(A)(1).

{¶16} Alternatively, Cooper asserts his resisting arrest conviction is against

the manifest weight of the evidence. He reiterates the arguments that Harmon

initiated his ejection from the premises without prompting or notice by the store clerk,

without the authority to do so, and without evidence of criminal behavior on his part.

{¶17} A lawful arrest is that which is supported by probable cause or a

reasonable belief that the offense in question occurred. State v. Glenn, 2004-Ohio-

1489, ¶ 23 (1st Dist.). Because the offense underscoring the arrest in this case was

criminal trespass, the state was tasked with proving Harmon had probable cause or a

reasonable basis to arrest Cooper for that offense. See id.

{¶18} With regard to Cooper’s presence at the Stop-N-Go, he undoubtedly

remained on the premises and attempted to enter the store after being told by Harmon

to leave. This act afforded Harmon probable cause to arrest Cooper for criminal

trespass. See State v. Staley, 2021-Ohio-3086, ¶ 21 (1st Dist.) (collecting cases from

several courts holding that a guest must immediately vacate the premises once their

privilege to remain is withdrawn).

{¶19} Cooper’s argument that the clerk herself was required to revoke his

privilege to remain on the store premises is unavailing. The criminal trespass statute

itself expressly imposes liability where an individual has been told to leave by an “agent

or servant” of the owner or occupant of the premises. See R.C. 2911.21(A)(4). Thus, it

was sufficient for Harmon, acting as the store clerk’s agent, to notify Cooper that he

was no longer permitted on the property.

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{¶20} To the extent that Cooper challenges whether Harmon was in fact acting

as the store clerk’s agent, the record sufficiently establishes that the clerk told Harmon

she wished for Cooper to leave. Harmon therefore acted as the clerk’s agent when he

conveyed her directive to Cooper. See, e.g., Cleveland v. Dickerson, 2016-Ohio-806,

¶ 29 (8th Dist.) (police officers who advised two individuals to vacate airport after they

finished using restroom facilities were acting as agents of property owner).

{¶21} In challenging the sufficiency of the evidence, Cooper also emphasizes

the fact that he was not interrupting any business at the store prior to Harmon’s arrival

and that no customers were bothered by his actions. These arguments, while perhaps

mitigating, do not bear on any of the elements of criminal trespass. See R.C. 2911.21.

A property owner does not need a legal or even a factual justification for excluding a

person from the property under R.C. 2911.21.

{¶22} The state therefore presented sufficient evidence of probable cause to

arrest Cooper for the offense of criminal trespass.

{¶23} Cooper’s unequivocal resistance to the lawful arrest followed. Harmon

advised Cooper he was under arrest and repeatedly instructed him to place his hands

behind his back. In response, Cooper physically struggled against the officer.

Although Harmon was able to secure Cooper’s right hand in a handcuff, Cooper

refused to place his left arm behind his back and laid down to prevent Harmon from

doing so. He flailed about and tensed his body. Harmon eventually was able to secure

both handcuffs around Cooper’s wrists, but not without much difficulty.

{¶24} Cooper’s argument that this was a retaliatory arrest is not supported by

the record, nor did the trial court did go astray in allocating weight to the state’s

evidence on this point. Harmon acknowledged referencing Cooper as “the guy who is

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out here trying to taunt me” when asking the store clerk if she wanted Cooper to leave.

At trial, however, Harmon testified he was not bothered by Cooper “flipping him off.”

He maintained people “flipped him off” daily and the gesture no longer bothered him.

The trial court was in the best position to assess Harmon’s credibility in this respect.

See State v. Brown, 2023-Ohio-2885, ¶ 15 (1st Dist.).

{¶25} Regardless, the objective facts surrounding the arrest clearly

demonstrate probable cause for Cooper’s arrest for criminal trespass. Despite the

store clerk’s expressed wish for Cooper to leave, which was conveyed to him via

Harmon, Cooper persisted in attempting entry. At that moment, Harmon had

probable cause to arrest him for criminal trespass. Cooper then resisted that lawful

arrest by pulling away and preventing Harmon from securing his arms in handcuffs.

Thus, there was sufficient evidence to support his conviction for resisting arrest.

Obstructing Official Business

{¶26} R.C. 2921.31(A) provides that “[n]o 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.” This court has distilled the essential elements of the offense of obstructing

official business to include proof that the accused “(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.” In re S.J., 2023-

Ohio-3441, ¶ 21 (1st Dist.), quoting State v. Brantley, 2022-Ohio-597, ¶ 16 (1st Dist.).

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{¶27} Cooper challenges three of these essential elements. First, he maintains

the record is devoid of evidence that Harmon was acting in his official capacity when

he ejected Cooper from the Stop-N-Go premises. Rather, Harmon stopped at the store

to use the restroom and purchase a drink. Second, Cooper alleges he was privileged

to resist the unlawful arrest. Third, Cooper summarily avers that the acts of

withholding his arms and kicking the taser did not impede or obstruct any

investigation or official business.

{¶28} First, the record supports that Harmon was acting in his official capacity

when he ejected Cooper from the premises. Harmon testified he was trying to

effectuate an arrest to enforce the criminal trespass law per his official duties. It is

true that the officer initially visited the establishment for personal purposes unrelated

to Cooper. Police officers, however, are charged with observing and enforcing the laws

of the state while in their jurisdiction of authority. See R.C. 737.11 (“[t]he police force

of a municipal corporation shall preserve the peace, protect person and property, and

obey and enforce all ordinances of the legislative authority of the municipal

corporation, all criminal laws of the state and the United States”). In line with this

continuing obligation, “[p]olice officers have arrest powers regardless of whether they

are working regular duty, special duty, or are off duty.” Cannavino v. Rock Ohio

Caesars Cleveland, L.L.C., 2017-Ohio-380, ¶ 24 (8th Dist.), citing Ingles v. W.

Pancake House, 1977 Ohio App. LEXIS 7507, *7 (10th Dist. Dec. 27, 1977). Accord

Warrensville Hts. v. Jennings, 58 Ohio St.3d 206, 211 (1991) (“[a] police officer’s

continuing duty to obey and enforce the criminal law, even when off duty, has been

recognized in other case law and in certain statutes that impose duties on police

officers without any ‘off-duty’ exception”); State v. Hudson, 2019-Ohio-3497, ¶ 19 (1st

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Dist.) (collecting cases acknowledging the continuing obligation on the part of law

enforcement officers to observe and enforce the laws of the state, irrespective of duty

status).

{¶29} Here, the record indisputably establishes that Harmon was employed

by the City of Cincinnati Police Department and was acting within the jurisdictional

limits of the City of Cincinnati at the time of these events. See Cincinnati v. Alexander,

54 Ohio St.2d 248 (1978), syllabus (construing R.C. 2935.03 to hold that a police

officer’s authority to arrest an individual without a warrant is confined to acts observed

within the geographical boundaries of the municipality employing the officer).

Harmon was thus empowered to arrest Cooper for a violation of Ohio law, regardless

of the officer’s duty status or his purpose for visiting the Stop-N-Go.

{¶30} Second, as discussed under the resisting arrest analysis, the record

supports the lawfulness of the arrest. Thus, Cooper was not privileged to resist the

arrest.

{¶31} Third, the record supports that Cooper’s act of knocking the taser out of

Harmon’s hand and throwing it out of reach impeded or obstructed official business.

This act prolonged the effectuation of Cooper’s arrest and had a greater effect on the

performance of Harmon’s duties than would silence or a refusal to answer on Cooper’s

part. See State v. Hammock, 2024-Ohio-2149, ¶ 23 (1st Dist.). Accordingly, the record

sufficiently supports Cooper’s conviction for obstructing official business.

Differentiating the Actus Rei

{¶32} One final issue bears mention. Cooper also contends that if the official

business engaging Harmon was the arrest for criminal trespass, then the evidence of

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a physical struggle was wrongly used to support both the resisting arrest and

obstructing official business offenses.

{¶33} Admittedly, the parties appeared to conflate the conduct underscoring

the resisting and obstructing offenses at trial.1 But the resisting arrest offense was

rightly based on Cooper’s flailing about, laying down on the ground, tensing up, and

refusing to surrender his arms. By contrast, as Harmon testified at the end of his direct

examination, the obstructing offense was rightly based on Cooper knocking the taser

from Harmon’s hand and throwing it. This prevented Harmon from using the force

he believed was required to complete the arrest. Therefore, different actions

supported the respective offenses.

{¶34} These distinctions are borne out in the complaints. The resisting arrest

charge alleged that “Δ, while advised by A/O that he was under arrest, resisted and

pulled arms away when A/O try to place Δ in handcuffs.” By contrast, the obstructing

complaint averred that “Δ while resisting arrest grabbed A/O taser from A/O hands &

threw it after possessing it.” While charging instruments are not evidence, these

documents afford some clarity as to the actus rei intended to underscore the respective

charges. See State v. Draher, 1981 Ohio App. LEXIS 11942, *4 (4th Dist. Sept. 10,

1981) (“It is a fundamental principal that a complaint or indictment is not evidence of

the allegations contained therein.”). Of note, the testimony elicited by the state at trial

sufficiently supported these allegations.

{¶35} We therefore reject Cooper’s argument that the same conduct was used

to support the two separate offenses.

1 In making this observation, we do not mean to suggest that there would be error had the same conduct supported two separate offenses. We do not reach that issue because the record in this case reveals that the separate criminal charges were based upon different actions by Cooper rather than a singular course of conduct.

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Conclusion

{¶36} Because the record contains sufficient evidence supporting Cooper’s

convictions for resisting arrest and obstructing official business and those convictions

are not against the manifest weight of the evidence, we overrule his sole assignment of

error and affirm the judgments of the trial court.

Judgments affirmed.

BOCK, P.J., and ZAYAS, J., concur.

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