[Cite as State v. Laporte, 2015-Ohio-294.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 14CA3450 : vs. : : DECISION AND JUDGMENT KANTZ LAPORTE, : ENTRY : Defendant-Appellant. : Released: 01/20/15 _____________________________________________________________ APPEARANCES:
James T. Boulger, Chillicothe, Ohio, for Appellant.
Sherri K. Rutherford, Law Director, City of Chillicothe, and Benjamin A. Sigall, City of Chillicothe Assistant Law Director, Chillicothe, Ohio, for Appellee. _____________________________________________________________
McFarland, A.J.
{¶1} This is an appeal from Appellant Kantz LaPorte’s sentence and
judgment of the Chillicothe Municipal Court filed May 29, 2014. Appellant
contends the trial court erred by determining that the State of Ohio had
proved beyond a reasonable doubt each element of the offense of obstruction
of official business, R.C. 2921.31. Upon review, we find no merit to
Appellant’s argument. Accordingly, we affirm the judgment of the trial
court. Ross App. No. 14CA3450 2
FACTS
{¶2} On May 29, 2014, Appellant was convicted after a bench trial in
the Chillicothe Municipal Court of a violation of R.C. 2921.31, obstructing
official business. The charge arose from events which occurred on
December 31, 2013, at an address on Plyley’s Lane in Ross County, Ohio.
{¶3} At trial, the State first called Officer Jeffrey Dement of the
Chillicothe Police Department. Officer Dement testified on December 31,
2013, at approximately 3:30 a.m., he responded to a possible domestic in
progress at the residence. Dement testified dispatch had received a call
reporting a “male subject shouting, trying to get inside the residence.”
When Dement arrived and went to the back of the apartment, he saw glass
splatter on the ground. Dement testified he saw Appellant standing in the
residence and parting the blinds. Dement identified himself and ordered
Appellant to come outside and show his hands. Appellant replied “O.k.
Give me a second.” Appellant, however, began to retreat, walking
backwards. Dement drew his weapon and repeated his order. Appellant
then said “Give me two minutes,” and he went upstairs. Dement testified he
believed the situation to be a burglary in progress, with a possible victim of a
domestic or a hostage inside. Dement testified he had a right to stop
Appellant, but he did not enter the building because he was alone at that Ross App. No. 14CA3450 3
point, he did not know if Appellant was alone and/or armed, and he could
not see everything inside the apartment.
{¶4} Dement testified the other officer arrived and they finally talked
Appellant into coming outside. When Appellant came down the steps, they
entered the residence, ordered him to the ground, and handcuffed him.
{¶5} Dement testified he asked appellant for his identification because
he felt it was pertinent to know if Appellant had a right to be at the
residence. Appellant advised his wallet was stolen. After a weapons pat, the
officers found the wallet in Appellant’s front pants pocket. Dement testified
Appellant’s failure to respond to the commands when first ordered definitely
delayed the investigation.
{¶6} Sergeant Jonathan Robinson of the Chillicothe Police
Department also testified about the December 31, 2013 incident on Plyley’s
Lane. When Robinson first arrived, he observed a front screen pulled out,
laying in the brush. Robinson observed a person looking out the front of the
apartment. He requested backup from the sheriff’s department and state
patrol. Robinson testified he went around back and for the next several
minutes, both officers yelled at Appellant to exit the apartment. Robinson
testified Appellant only peeked out the window and retreated into the Ross App. No. 14CA3450 4
apartment. The officers eventually entered through the broken patio glass
and took Appellant into custody.
{¶7} Robinson testified it was an unknown situation because the
officers suspected a burglary had occurred, and did not know if Appellant
was arming himself or barricading himself. Robinson testified they were
also fearful for who might be in the apartment with Appellant. Robinson
testified the officers had a legal right to enter because it was a crime scene.
Robinson testified the investigation was delayed by 5-7 minutes.
{¶8} Appellant also testified about the incident. On December 31,
2013, he resided in Columbus and his girlfriend lived at the Plyley’s Lane
address. He was familiar with the apartment because he had stayed
overnight there. Appellant and his girlfriend had spent time together on the
date in question. Around 8:00 p.m., Appellant went to a local bar. He
stayed until closing, when he discovered he could not find his wallet and
keys. Appellant eventually found his wallet, but a bartender drove him to
the apartment.
{¶9} Appellant testified he started knocking at the door but neither his
girlfriend nor anyone else answered. He waited about 10 minutes in the
severe cold, walked around the back of the apartment and knocked.
Appellant testified he suffers from post-traumatic stress disorder (PTSD) and Ross App. No. 14CA3450 5
was having a panic attack. He further testified his body temperature was
dropping and he had to use the bathroom. Appellant grabbed a rock, broke
the sliding glass window, and entered the apartment to get warm. He went
upstairs to use the bathroom.
{¶10} Appellant testified when he exited the bathroom, he heard
unintelligible yelling. He saw spotlights on the window. Appellant testified
he was not thinking clearly and stumbling with his words. Appellant
testified he was told they were going to send in dogs, so he walked from the
back. He testified the officers ordered him to the ground. Appellant
testified they asked him why he broke the glass, what his name was, and
what he was doing there. He told them his girlfriend lived there and gave
them her phone number, and told them about her children. Appellant further
testified he did not have his wallet, but they did not give him a chance to
explain the situation. The trial court also heard evidence on a CD-ROM
which recorded the exchanges amongst Appellant and the officers.
{¶11} The trial court found Appellant guilty and sentenced him to five
days of incarceration with credit for time served, and a $250.00 fine. This
timely appeal followed. His sentence has been stayed pending appeal.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN DETERMINING THAT THE STATE HAD PROVEN BEYOND A REASONABLE Ross App. No. 14CA3450 6
DOUBT EACH ELEMENT OF THE OFENSE OF OBSTRUCTION OF OFFICIAL BUSINESS UNDER 2929.31 R.C. WHEN THE EVIDENCE, VIEWED IN THE LIGHT MOST FAVORABLE TO THE PROSECUTION, WAS, AS A MATTER OF LAW, INSUFFICIENT TO ESTABLISH THE NECESSARY ELEMENTS OF AN AFFIRMATIVE OR OVERT ACT ON THE PART OF THE DEFENDANT PERFORMED WITH A PURPOSE TO PREVENT, OBSTRUCT, OR DELAY.”
A. STANDARD OF REVIEW
{¶12} When reviewing a case to determine whether the record
contains sufficient evidence to support a criminal conviction, our function
“is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. See, also, Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979).
{¶13} This test raises a question of law and does not allow us to weigh
the evidence. State v. Martin, 20 Ohio App.3d 172, 174, 485 N.E.2d 717
(1983). Rather, the test “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to Ross App. No. 14CA3450 7
draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319. We reserve the issues of the weight given to the evidence and the
credibility of witnesses for the trier of fact. State v. Thomas, 70 Ohio St.2d
230, 227, N.E.2d 212 (1986), paragraph one of the syllabus. Whether the
evidence supporting a defendant’s conviction is direct or circumstantial does
not bear on our determination. “Circumstantial evidence and direct evidence
inherently possess the same probative value and therefore should be subject
to the same standard of proof.” Jenks at paragraph one of the syllabus.
B. LEGAL ANALYSIS
{¶14} Appellant argues the language contained in R.C. 2921.31
requires the state to prove as an element of the offense of obstructing official
business, an “affirmative or overt act upon the part of the defendant as
opposed to a refusal to act.” (Appellant’s brief at p. 8, quoting State v. May,
4th Dist. Highland No.06CA10, 2007-Ohio-1428). Appellant frames the
issue as whether his refusal to come out of the house and his movement
within the house for a period of approximately five minutes constitutes an
affirmative act. Appellant directs us to State v. Crowell, 2nd Dist.
Montgomery No. 23539, 2010-Ohio-4917.
{¶15} R.C. 2921.31 provides:
“(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official Ross App. No. 14CA3450 8
of any authorized act within the public official’s capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.”
{¶16} Generally speaking, when law enforcement possesses
reasonable grounds to believe that an emergency exists, they have a legal
duty to enter premises and to investigate. State v. May, 4th Dist. Highland
No. 06CA10, 2007-Ohio-1428, ¶ 11. In State v. Crowell, 2nd Dist.
Montgomery No. 23539, 2010-Ohio-4917, defendant was convicted of
obstructing official business but upon appeal, the court held that the
evidence did not support the conviction. Law enforcement officers were
dispatched to defendant’s residence after receiving a 911 call. Upon arrival
they found the door of the home open, a woman standing outside, very upset
and unable to consent to the officers entering the home. The officers stood
20-25 feet from the open door and repeatedly yelled for the defendant to
come outside. He walked past the open door, wrapped in just a sheet or
towel, but ignored their request and closed the door.
{¶17} The officers could see defendant walk to the master bedroom so
they went to that window and ordered him to climb out the window. At first
he refused, but when threatened with tasering, he climbed out, without
clothing and smelling strongly of alcohol. Defendant claimed not to have
heard the officers requests, he denied closing the door, and claimed he had Ross App. No. 14CA3450 9
been asleep. The officers found an infant inside safe and asleep when they
were able to enter the home. Defendant was arrested, charged, and
convicted of obstructing official business.
{¶18} On appeal, defendant argued the state failed to present
sufficient evidence that defendant performed an affirmative act that actually
hampered or impeded public officials in the performance of their duties.
The appellate court agreed. The appellate court found that defendant’s
closing of the front door was in the nature of a continued refusal to
cooperate with officers and, even if it was an overt act, the state had not
proven the act of closing the front door had the effect of hampering or
impeding the investigation of the officers who were standing 20- 25 feet
away. The appellate court further found that, if defendant lied to the
officers, there was no evidence that his statements were made with the intent
to hamper or impede the investigation or that the statements actually had the
effect of hampering or impeding the investigation.
{¶19} In response, Appellee contends that Crowell is distinguishable
in that the court emphasized that the defendant’s action did not actually
hamper or impede law enforcement. Appellee further points out that the
situation here is analogous to a defendant who flees a Terry stop, which this
court has already established is an affirmative act that can constitute Ross App. No. 14CA3450 10
obstructing official business. Appellee directs us to State v. Certain, 180
Ohio App.3d 457, 2009-Ohio-148. Appellee frames the issue as whether the
defendant had the right to refuse contact with law enforcement at the time he
fled. Appellee argues when the defendant does not have the right to refuse
contact, such as during a Terry stop, or when, as here, the situation requires
law enforcement to make entry into a home in order to investigate an
“apparent active serious felony with possible victims inside,” then fleeing
such contact can constitute obstructing official business. (Appellee’s brief at
p. 7).
{¶20} Whenever a police officer accosts an individual and restricts his
freedom of movement, that individual’s Fourth Amendment rights are
implicated. State v. Brickner-Latham, 3rd Dist. Senenca No. 13-05-26,
2006-Ohio-609, ¶ 18. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). In
order for a police officer to temporarily detain someone for investigative
purposes, absent the presence of probable cause, the police officer must have
a reasonable articulable suspicion that illegal activity is afoot. Brickner-
Latham, supra; State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489,
citing Terry, 392 U.S. at 21. Reasonable articulable suspicion necessary to
effectuate an investigative stop has been defined as “specific and articulable
facts which, taken together with rational inferences from those facts, Ross App. No. 14CA3450 11
reasonably warrant that intrusion * * * .” Brickner- Latham, supra, quoting
Terry, 392 U.S. at 21.
{¶21} In State v. Certain, 180 Ohio App.3d 457, 2009-Ohio-148, 905
N.E.2d 1259 (4th Dist.), the state charged defendant with obstructing official
business after he fled from a sheriff’s deputy who was attempting to make an
investigative stop. Defendant moved to dismiss the complaint relying on the
court’s holding in State v. Gillenwater, that “mere flight from a request for a
Terry stop” does not constitute a violation of R.C. 2921.31. Concluding that
Gillenwater controlled the case, the trial court dismissed the complaint
against Certain. On appeal, this court reviewed the Gillenwater decision.1
{¶22} There, police responded to a disorderly-conduct call at
Gillenwater’s apartment. Looking for another individual at the scene, an
officer discovered Gillenwater hiding behind a dumpster. The officer
ordered Gillenwater to come out from behind the dumpster but he refused.
As the officer attempted to move Gillenwater, he jumped up and ran. The
officer ran after him, ordering Gillenwater to stop, but he continued running
and eluded the officer. The state charged Gillenwater with obstructing
official business. The court of appeals reversed Gillenwater’s conviction on
the charge, holding that the “appellant did not perform an affirmative act that
1 This court overruled Gillenwater to the extent that it conflicted with Certain and held that flight may, in appropriate circumstances, constitute a violation of R.C. 2921.31. Ross App. No. 14CA3450 12
directly interfered with the [officer’s] duty. See, Certain, at ¶ 8. In
Gillenwater, we observed that when Gillenwater refused to cooperate by
remaining in a seated position, he did not violate R.C. 2921.31, but when he
ran and continued running after being ordered to stop, he committed an
affirmative act beyond the refusal to cooperate.
{¶23} In Gillenwater, and Certain, we cited State v. Brickner-Latham,
3rd Dist, Seneca No. 13-05-25, 2006-Ohio-609. In Brickner-Latham, the
citing officer testified while on regular patrol, he observed three subjects
crossing the street when he heard one of the three yelling very loudly, which
was unusual for the time of night. As the officer proceeded on the street, he
noted the subjects crossed into a city lot and as he passed the lot, someone in
the group yelled “police.” The officer then backed up and turned into the lot
to investigate the situation and tell the subjects to quiet down. When he
entered the lot, two of the subjects stopped, while Brickner-Latham kept
walking through the lot. He instructed Brickner-Latham multiple times to
stop but he kept ignoring him and walking away. He further testified he
requested Brickner-Latham to stop because he believed Brickner-Latham
was the person yelling and he did not know if he was trying to avoid him
because of a warrant or another issue. He eventually detained Brickner- Ross App. No. 14CA3450 13
Latham by his shirt, asked him his name several times without a response,
and finally placed him under arrest.
{¶24} On appeal, the appellate court found that based upon the
testimony at the suppression hearing, Brickner-Latham’s conduct gave rise
to enough of a reasonable articulable suspicion that illegal activity was afoot
to permit the officer to conduct an investigative stop of Brickner-Latham.
The appellate court further found that:
“Brickner-Latham’s walking away from [the officer] was an affirmative act that hindered or impeded [the officer] in the performance of his official duties. Further, Brickner-Latham’s persistence in disregarding Officer O’Connor’s requests to stop was sufficient evidence for a rational trier of fact to conclude that Brickner-Latham acted with the specific intent to prevent, obstruct, or delay [the officer’s] lawful duties.” Id. at ¶ 28.
{¶25} In rendering its decision herein, the trial court stated that
Crowell can be distinguished from the facts in Appellant’s case. We agree.
The trial court noted in Crowell, the defendant on the officer’s arrival was
present and outside of the residence and the victim was no longer in harm’s
way. It was the defendant’s residence to which the officers had responded.
That is not the case here.
{¶26} Here the Chillicothe police officers were dispatched to a
possible domestic call with broken glass indicating forced entry. Officers
Dement and Robinson had no way of knowing whether or not Appellant was Ross App. No. 14CA3450 14
armed and whether or not there was another person, a victim, inside the
home. The officers believed a burglary was in progress. It was the officers’
duty to investigate a possible crime scene. The trial court found Appellant’s
failure to obey their orders to step outside and raise his hands impeded the
officers’ ability to investigate the scene. Although the officers testified to a
5-7 minute delay in their investigation, a victim or an officer could have
been critically injured or killed in even a brief time period.
{¶27} Furthermore, the trial court noted the audio portion of the CD-
ROM presented in evidence demonstrated that Officer Dement clearly
advised Appellant to come out with his hands up, which was inconsistent
with Appellant’s testimony. The transcript reveals when Officer Dement
first arrived, Appellant was standing in the apartment and it appeared to
Dement that Appellant was getting ready to exit because he parted the
blinds. Dement identified himself and ordered Appellant to come out, but
Appellant retreated. By contrast, Appellant testified he had been in the
house, upstairs, about 15 minutes when he exited the bathroom and heard
yelling. The trial court found Officer Dement’s testimony to be more
credible. We are mindful that the credibility of the witnesses and the weight
to be given to their testimony are matters for the trier of facts to resolve. Ross App. No. 14CA3450 15
State v. Crawford, 2nd Dist. Montgomery No. 25506, 2013-Ohio-4398, ¶ 13;
State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶28} We find after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of obstructing official business proven beyond a reasonable doubt.
We find Appellant’s act of retreating from the officers to be an overt act
which delayed them from performing official duties and hampered their
investigation of a possible crime scene. As such, we overrule Appellant’s
assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Ross App. No. 14CA3450 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Chillicothe 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 proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier 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 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.
Hoover, P.J. & Abele, J.: Concur in Judgment Only.
For the Court,
BY: __________________________________ Matthew W. McFarland, Administrative 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.