State v. Grice

906 N.E.2d 1203, 180 Ohio App. 3d 700, 2009 Ohio 372

• Court: Ohio Court of Appeals
• Decided: January 30, 2009
• Docket: No. C-080420.
• Status: Published

Opinions

Cunningham, Judge.

{¶ 1} Defendant-appellant, Leon Grice, appeals his conviction, after a bench trial, for obstructing official business in violation of R.C. 2921.31(A).

{¶ 2} In the evening of December 23, 2007, several police officers from the Colerain Township Police Department responded to a report of “shots fired.” Their investigation led them to an apartment building on Jonrose Avenue, where a group of men had congregated on the front lawn. Some officers questioned the group, while others canvassed the area for evidence of a shooting. The officers found evidence that a gun had been fired in the vicinity but found no shooting victim or witnesses to a shooting.

{¶ 3} One of the officers, Richard Bernecker, attempted to obtain personal identification from those on the scene. Bernecker wanted the information to complete a field identification report that the police could use if a shooting victim surfaced in the future. Grice failed to give Bernecker his identification information, and as a result, Bernecker arrested him for obstructing official business. After arresting Grice, Bernecker took him to the Hamilton County Justice Center, where Bernecker fingerprinted and ultimately identified him. According to Bernecker, the identification process took over two hours to complete.

{¶ 4} After the trial court overruled his motion for acquittal, Grice testified in his own defense. He conceded that he had not identified himself and added that he had not heard any shots fired and that he had told the officers this.

{¶ 5} But Bernecker unequivocally testified that it was only Grice’s failure to identify himself that had interrupted the investigation and had led to his arrest. Importantly, he testified that Grice was uncommunicative and made no statement. Therefore, we can only assume that Bernecker was unaware of any comment by Grice about the “shots fired” report. Bernecker’s testimony was consistent with the testimony of the other investigating officers.

{¶ 6} The trial court convicted Grice after determining that Grice must have lied to the police about not hearing shots fired, and that this, along with his failure to identify himself, constituted an act proscribed by the obstructing official business statute.

{¶ 7} In his sole assignment of law, Grice now challenges the sufficiency of the evidence to support his conviction. Sufficiency is a test of adequacy. 1 The relevant inquiry is whether, after viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. 2

{¶ 8} Grice was convicted under R.C. 2921.31(A), which 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.” (Emphasis added.)

{¶ 9} Grice correctly argues, as indicated by the emphasized language, that a violation of this statute requires an affirmative act. “A person cannot be guilty of obstructing official business by doing nothing or failing to act.” 3 The mere refusal to produce identification upon the request of a police officer cannot support a conviction for obstructing official business. 4 In addition, the defendant’s act must actually hamper or impede the public official in the performance of the official’s duties. 5

{¶ 10} Grice argues that the record is devoid of an affirmative act that impeded or hindered an investigation. The officers testified that Grice’s failure to identify himself had impeded the investigation. But as we have already stated, the failure to identify cannot support a conviction for obstructing official business, because it is not an affirmative act. Despite the state’s theory, the trial court found, relying on Grice’s testimony, that Grice’s statement to the police about not hearing any gunshots was incredible and that this affirmative act established a violation of the statute.

{¶ 11} In our sufficiency review, we review the evidence in the light most favorable to the state. Thus, we accept the trial court’s finding that Grice had lied to the police about hearing shots fired. We hold, however, that the evidence did not support a conviction on this basis, because the evidence did not establish a nexus between this act and the obstructing.

{¶ 12} This court has held that there is no element in R.C. 2921.31(A) requiring the state to prove that the offender’s conduct “prevented” a public official from doing his job. 6 Rather, to “hamper” or “impede,” the conduct at issue must create some “substantial stoppage” of the officer’s progress. 7 This stoppage is not defined by a particular period of time, but it must occur because of the defendant’s act. 8

{¶ 13} A defendant’s unsworn and false oral statement may often hamper or impede an investigation or other official duty. 9 But not always. 10

(¶ 14} In this case, there was no evidence that the officers’ progress was hampered or impeded by Grice’s statement. The officers duly investigated the “shots fired” report, unaware of Grice’s statement. They 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. One could have reasonably concluded only that Grice’s statement had not hampered or impeded this part of the investigation in any measurable way.

{¶ 15} Nor was there any evidence to support a finding that Grice’s statement had affected the officers’ progress in identifying Grice. This was consistent with the officers’ explicit testimony that Grice’s failure to provide identification alone had impeded their duties, namely completing the field investigation report.

{¶ 16} The only “obstructing” that occurred in this case involved the delay in identifying Grice. And the record is devoid of a nexus between this obstructing and the affirmative act — Grice’s statement about not hearing shots fired. Thus, the evidence at trial was insufficient to support a conviction for obstructing official business. Therefore, we sustain the assignment of error, reverse the judgment of conviction, and discharge Grice from further prosecution in this case.

Judgment reversed and appellant discharged.

Hildebrandt, P.J., concurs. Dinkelacker, J., dissents.

1 . State V. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.

2 . State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; State v. Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819.

3 . State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, at ¶ 10, citing State v. King, 3rd Dist. No. 9-06-18, 2007-Ohio-335, 2007 WL 209990, ¶ 58; Hamilton v. Hamm (1986), 33 Ohio App.3d 175, 176, 514 N.E.2d 942.

4 . State v. Brickner-Latham, 3rd Dist. No. 13-05-26, 2006-Ohio-609, 2006 WL 319183, at V 26; State v. Collins (1993), 88 Ohio App.3d 291, 294, 623 N.E.2d 1269, overruled in part on other grounds in State v. Tolliver (Dec. 13, 1996), 2nd Dist. No. 15184, 1996 WL 715438; State v. McCrone (1989), 63 Ohio App.3d 831, 835, 580 N.E.2d 468. See Middletown v. Hollon, 156 Ohio App.3d 565, 2004-Ohio-1502, 807 N.E.2d 945, ¶ 26-34 (interpreting a municipal code section identical to R.C. 2921.31). See also In re Payne, 1st Dist. No. C-040705, 2005-Ohio-4849, 2005 WL 2248870, ¶ 11.

5 . Wellman at ¶ 17, citing State v. Stephens (1978), 57 Ohio App.2d 229, 230, 11 O.O.3d 301, 387 N.E.2d 252. Cf. State v. Westfall, 9th Dist. No. 22898, 2006-Ohio-4729, 2006 WL 2614252 (actual hampering or impeding is an element of obstructing official business but is not an element of obstruction of justice in violation of R.C. 2921.32(A)(5)).

6 . State v. Stayton (1998), 126 Ohio App.3d 158, 163, 709 N.E.2d 1224. Accord State v. Jeter, 1st Dist No. C-040572, 2005-Ohio-1872, 2005 WL 927013, ¶ 16.

7 . Wellman at ¶ 17, citing Stephens.

8 . Id. at ¶ 18, citing State v. Dunn (Mar. 26, 1980), 1st Dist. No. C-790319, 1980 WL 352885.

9 . See State v. Allomare (Nov. 30, 2000), 7th Dist. No. 99-CO-15, 2000 WL 1781581 (defendant's false and intentionally misleading information to an officer of the court who was attempting service of a subpoena interfered with service). See, generally, State v. Lazzaro (1996), 76 Ohio St.3d 261, 667 N.E.2d 384.

10 . Stephens at 230, 11 O.O.3d 301, 387 N.E.2d 252.