[Cite as State v. Nodal, 2024-Ohio-2473.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 22CA011862
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE REUBEN A. NODAL LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 20CRB0746
DECISION AND JOURNAL ENTRY
Dated: June 28, 2024
FLAGG LANZINGER, Judge.
{¶1} Defendant-Appellant, Reuben Nodal, appeals from the judgment of the Lorain
Municipal Court. This Court affirms.
I.
{¶2} Nodal’s brother is a combat veteran who suffers from PTSD. When triggered, he
can exhibit paranoia and verbal aggression. One afternoon, Nodal received a frantic call from his
brother. The brother said the police officer who lived next door to him had “called his boys * *
*.” He asked Nodal to come over and pick up his son (i.e., Nodal’s nephew). Nodal immediately
left his home and drove to his brother’s house.
{¶3} Nodal knew his brother and his brother’s next-door neighbors had been involved in
several, recent confrontations. About a month and a half before this incident, Nodal spoke with
the police captain in his brother’s jurisdiction. He alerted the captain that his brother struggled
with PTSD and was having issues with his neighbors. He also alerted the captain that the sight of 2
uniformed officers could escalate any PTSD-related symptoms his brother might be experiencing.
In response to Nodal’s call, the captain emailed the members of his department. He shared Nodal’s
concerns. He also shared Nodal’s request that, if possible, he be phoned to assist with any issues
that might arise with his brother.
{¶4} When Nodal arrived at his brother’s house, two officers were already on scene.
Those two officers were speaking with the next-door neighbors. Nodal went inside his brother’s
house and spent between thirty and forty-five minutes with him. More officers arrived while he
was inside the house. During that same time, Nodal exchanged numerous text messages with an
officer on scene. The officer learned that the brother possessed firearms and had a two year old
inside the house. The officer repeatedly told Nodal the police needed to speak with his brother
outside, but Nodal did not want his brother to leave the house. He suggested alternative forms of
electronic communication that would allow his brother to remain inside. The officer stressed that
the brother needed to come outside.
{¶5} Unbeknownst to Nodal, the police had already authorized charges against his
brother. The officer who was communicating with Nodal did not share that information due to
safety concerns. When she reiterated that the police just wanted to talk to the brother, Nodal agreed
to come outside. He opened the door to the house and came outside alone.
{¶6} Nodal advanced to the driveway to speak with a lieutenant on scene. He quickly
observed officers crouched nearby the house, however, and began yelling at them. His brother
then emerged from the house. According to Nodal, the police charged in to secure his brother and,
in doing so, they shoved him and put their hands on him. According to multiple officers on scene,
Nodal tried ushering his brother back inside and used his body as a barrier to prevent them from
gaining entry. The police quickly secured the brother without incident, but Nodal began screaming 3
and flailing. Several officers attempted to escort him outside as he fought against them. When
the officers began losing their grip on Nodal, a third officer used the dry stun feature on his taser
to help subdue him.
{¶7} Nodal was charged with obstructing official business and resisting arrest. A jury
found him not guilty of obstructing official business. It found him guilty of resisting arrest. The
trial court sentenced him to thirty days in jail. Nodal received one day of jail-time credit, and the
court suspended the remainder of his sentence. The court ordered him to pay his court costs and
court-appointed attorney fees. It stayed the execution of his sentence for purposes of this appeal.
{¶8} Nodal now appeals from his conviction and raises three assignments of error for
our review. For ease of analysis, we combine his first and second assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT FAILED TO INSTRUCT THE JURY TO CONSIDER ALL OF THE ELEMENTS OF RESISTING A WARRANTLESS ARREST AS PRESCRIBED BY THE OHIO JURY INSTRUCTIONS AND PROPOSED BY TRIAL COUNSEL.
ASSIGNMENT OF ERROR II
TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO THE TRIAL COURT’S JURY INSTRUCTIONS OMITTING KEY ELEMENTS OF RESISTING A LAWFUL WARRANTLESS ARREST.
{¶9} In his first assignment of error, Nodal argues the trial court erred when it failed to
instruct the jury on all the elements of resisting arrest. In his second assignment of error, he argues
he received ineffective assistance of counsel because his attorney did not object when the trial
court failed to properly instruct the jury. For the following reasons, we reject his arguments.
{¶10} A person commits the crime of resisting arrest if he, “recklessly or by force, []
resist[s] or interfere[s] with a lawful arrest of the person or another.” R.C. 2921.33(A). “A lawful 4
arrest is an essential element of the crime of resisting arrest.” State v. Vactor, 9th Dist. Lorain No.
02CA008068, 2003-Ohio-7195, ¶ 34. “‘An arrest is ‘lawful’ if the surrounding circumstances
would give a reasonable police officer cause to believe that an offense has been or is being
committed.’” State v. Wigle, 9th Dist. Summit No. 25593, 2011-Ohio-6239, ¶ 11, quoting State v.
Sansalone, 71 Ohio App.3d 284, 285-286 (1st Dist.1991). “The state need not prove that the
defendant was in fact guilty of the offense for which the arrest was based when proving the element
of lawful arrest.” Vactor at ¶ 34.
{¶11} When instructing the jury on resisting arrest, the trial court stated the following:
The defendant[] also been charged with the allegation of resisting arrest. Again, this alleges that on or about the 25th day of July, 2020, in the city and county of Lorain, Ohio, the defendant, Reuban Nodal, recklessly or by force resisted or interfered with the lawful arrest of himself.
“Force” means any violence, compulsion, or constraint physically incurred by any means upon any person or any thing.
“Resist or interfere” means to oppose, obstruct, hinder, impede, interrupt, or prevent an arrest by a law enforcement officer by the use of force or recklessly by any means, such as going limp, or any other passive or indirect conduct.
“Arrest” means any intent to arrest; under real or pretended authority; accompanied by actual constructive seizure or detention of that person; and which is so understood by that person being arrested.
“Lawful arrest” means you must decide whether the arrest was, in fact, lawful.
“Warrantless arrest.” An arrest is lawful if the offense for which the arrest was being made was one for which a defendant could be arrested.
Nodal did not object to the trial court’s instructions.
{¶12} Nodal argues the trial court erred when it instructed the jury on the lawful arrest
element of resisting arrest. That is because the trial court did not tell the jury that an arrest is lawful
if, under the surrounding circumstances, a reasonable police officer could have believed an offense
had been or was being committed. Nodal argues his arrest was unlawful because no reasonable 5
police officer could have concluded that he was obstructing official business. According to Nodal,
had the jury been properly instructed, the result of his trial would have been different.
{¶13} Nodal acknowledges that his attorney did not object to the jury instructions.
Although he has set forth claims of plain error and ineffective assistance of counsel, he also argues
that his attorney preserved this issue for appeal. He notes that his attorney filed proposed jury
instructions before trial. The proposed instructions defined “lawful arrest” in the manner Nodal
believes that element ought to have been defined. According to Nodal, the filing of the proposed
instructions preserved this issue for appeal despite the lack of an objection at trial.
{¶14} In general, a party who fails to object to jury instructions forfeits all but plain error
on appeal. State v. Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 20. Crim.R.
30(A) requires parties to object to alleged errors in the instructions “before the jury retires to
consider its verdict, stating specifically the matter objected to and the grounds of the objection.”
In certain instances, however, a formal objection may not be required to preserve a jury instruction
issue. See, e.g., State v. Claren, 9th Dist. Wayne No. 19AP0015, 2020-Ohio-615, ¶ 23.
[I]n a criminal case, where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court’s charge to the jury, such party does not waive his objections to the court’s charge by failing to formally object thereto.
State v. Wolons, 44 Ohio St.3d 64, 67 (1989).
{¶15} This Court questions whether Nodal preserved his jury instruction argument for
appeal. He filed proposed instructions two months before trial. His instructions consisted of
twenty-one, single-spaced pages. They touched on a wide array of topics including the elements
of several affirmative defenses and several lesser-included offenses. At trial, the parties and the
trial court only had one discussion about the proposed instructions. The topic of that discussion 6
was Nodal’s affirmative defenses. There was no discussion about the elements of his offenses. At
no point did Nodal bring to the trial court’s attention any potential issue with its instructions on
resisting arrest. Thus, it is debatable whether he “fully apprised” the court of the correct law
“governing a material issue in dispute * * *.” Id. Assuming without deciding that he preserved
this issue for appeal, however, we cannot conclude that he has shown he is entitled to relief.
{¶16} Even if a trial court fails to instruct the jury on an essential element of an offense,
we must determine whether the court’s error “was harmless or whether it affected the outcome of
the proceedings.” City of Akron v. Sage, 9th Dist. Summit No. 28834, 2018-Ohio-3662, ¶ 7. “[T]he
error is harmless if the ‘omitted element is supported by uncontroverted evidence * * *.” State v.
Meinke, 9th Dist. Lorain Nos. 15CA010738, 15CA010739, 2017-Ohio-7787, ¶ 20, quoting Neder
v. United States, 527 U.S. 1, 18 (1999).
{¶17} Lieutenant Tabitha Angelo testified that she responded to a home on Magnolia
Drive after its residents reported an assault. She knew Nodal’s brother lived next door and had
been implicated in the assault. A few weeks earlier, she had received an email about the brother
from her captain. She also knew Nodal personally and was friends with his parents. As she
responded to the scene, she texted Nodal to tell him that officers were heading to his brother’s
house. He quickly responded that he was already on his way.
{¶18} Lieutenant Angelo and other officers first met with the brother’s next-door
neighbors. They gathered information and decided to arrest the brother for aggravated menacing,
criminal trespass, and assault. At that point, the brother was inside his house with Nodal.
Lieutenant Angelo exchanged numerous messages with Nodal. She repeatedly notified him that
the police needed to speak with his brother. Nodal initially said he did not want his brother to
speak with the police because his brother was triggered. He eventually asked whether it would be 7
possible for his brother to speak with Lieutenant Angelo through the Ring camera or FaceTime.
As Lieutenant Angelo continued to try to get the brother outside, she learned that he had legal
firearms inside the house along with his two-year-old son. She told Nodal that she needed him to
come outside with his nephew, but Nodal indicated the child was sleeping. Nodal asked Lieutenant
Angelo to come inside, but she maintained that it was impossible for her to come inside alone or
position herself on the porch to use the Ring camera. She once again told Nodal to take his brother
outside. Nodal responded by asking if his brother was going to be safe. He also asked: “What’s
your goal? Just to talk or take him in?” When Lieutenant Angelo replied that the police wanted
to talk, Nodal agreed he would open the door.
{¶19} Lieutenant Angelo testified that, for safety reasons, she did not tell Nodal the police
intended to arrest his brother. She feared sharing that information would cause the situation to
escalate further. Although Nodal responded to her text messages, she did not believe that he acted
in a helpful or cooperative manner. She estimated that she spent well over thirty minutes
exchanging messages with him as he repeatedly offset her efforts to get his brother outside.
{¶20} Several officers testified about Nodal’s actions when he finally opened the door to
his brother’s house and came outside. Lieutenant Corey Middlebrooks was positioned in the
driveway, just behind Nodal’s parked car. Meanwhile, Officers Gino Taliano, Joshua Roberts,
and Brendin Velez were positioned at the front, right corner of the house. Lieutenant
Middlebrooks recalled Nodal walking toward him and stopping about thirty to fifty feet from the
front door. Nodal began speaking before he noticed the officers waiting at the corner of the house.
At that point, he began yelling at the officers. Lieutenant Middlebrooks testified that he was trying
to convince Nodal to talk to him when the brother took a few steps outside. He and the surrounding
officers all testified that Nodal turned his attention to his brother. Nodal repeatedly yelled at his 8
brother to run back inside while frantically motioning with his arms and moving back in that
direction.
{¶21} Lieutenant Middlebrooks testified that he saw the brother moving back inside the
house and hurried to stop him. As he rushed forward to secure the brother, the other officers
followed. The lieutenant found the brother to be very cooperative. He was able to approach him
and handcuff him without incident. Because he was so focused on the brother, Lieutenant
Middlebrooks did not recall how Nodal acted from the time he (the lieutenant) hurried inside and
the time he handcuffed the brother. Once he secured the brother, however, the lieutenant noticed
Nodal was still yelling. He instructed the other officers to remove Nodal from the vicinity.
Afterwards, he learned that Nodal had put his hands on the other officers and had tried to prevent
them from coming inside.
{¶22} Officer Roberts was the first officer to enter the house behind Lieutenant
Middlebrooks. He testified that the lieutenant had to push past Nodal to reach the brother. Nodal
then tried to stop Officers Roberts, Taliano, and Velez from entering. Officers Roberts and Taliano
testified that Nodal yelled at them, put his hands on them, and actively put his body between them
and his brother. The officers had to push Nodal aside to reach Lieutenant Middlebrooks. Officer
Roberts testified that Nodal’s behavior created a safety issue because it caused the officers to split
their focus and divert resources to address his behavior.
{¶23} When Lieutenant Middlebrooks gave the command to remove Nodal from the
vicinity, Officer Velez grabbed him. Officer Velez testified that Nodal continued screaming and
began flailing and kicking. Officer Taliano offered his assistance, and the two officers managed
to bring Nodal outside. When they tried handcuffing him, he refused to hold still. Officer Velez
testified that Nodal was moving his arms and kicking his legs so much that they were losing their 9
grip on him. Officer Velez cautioned Nodal that he would be tased if he continued to struggle, but
Nodal did not listen. Officer Mark Pultrone then came to their aid and used his taser gun in a dry
stun fashion to subdue Nodal. He testified that he subdued Nodal because he appeared to be
breaking free from Officer Velez and Officer Taliano’s grasp.
{¶24} Nodal testified in his own defense. He testified that, when he arrived at his
brother’s house, he only saw two police officers next door. He spent time helping his brother de-
escalate while remaining in contact with Lieutenant Angelo. According to Nodal, he did not know
the police wanted to arrest his brother. Nor did he know how many officers had responded to the
scene. When he came outside, he reacted to the presence of so many officers because it looked
like they “were getting ready to SWAT [his] brother’s house.”
{¶25} Nodal testified that he “technically” never told his brother to go back inside. He
only told him to stay where he was so he could analyze the situation. Nodal claimed he was still
doing so when Lieutenant Middlebrooks whistled and signaled the other officers to move in. He
was then swept inside the house in “kind of a hurricane of officers * * *.” Nodal testified that,
when the officers touched him, they triggered his own PTSD. He then went into “full flight or
fight mode * * *.” He acknowledged that multiple officers became involved because they could
not keep hold of him. Even so, he denied having resisted arrest. He testified that he was “just
trying to regain autonomy over [his] body * * *.” He also claimed the arrest was an unlawful one.
He testified that, had the police told him they wanted to arrest his brother, he would have helped
them facilitate the arrest.
{¶26} Having reviewed the record, we cannot conclude that any error the trial court made
in defining the lawful arrest element for the jury affected the outcome of the proceedings. See
Sage, 2018-Ohio-3662, at ¶ 7. The State set forth uncontroverted evidence that Nodal resisted the 10
initial efforts the police made to have face-to-face contact with his brother. It also set forth
uncontroverted evidence that, once Nodal was outside, he yelled at the police, encouraged his
brother not to come outside, and briefly hampered their efforts to gain entry to the house. Several
officers testified that he stood in their way and acted as a barrier. Those same officers testified
that he screamed at them, flailed his arms, kicked, and made it very difficult to remove him from
the vicinity. While Nodal insisted that he was merely trying to “regain autonomy over [his] body,”
he admitted that he yelled, flailed, and made it difficult for officers to hold him. Even if his
personal motives were altruistic or unintentionally harmful, a reasonable officer could have
concluded that he was trying to hamper the police in the performance of their lawful duties. See
R.C. 2921.31(A). The fact that the jury acquitted him of obstructing official business is inapposite.
“[J]uries are not required to reach consistent verdicts between separate counts.” State v. Singh,
9th Dist. Summit No. 28819, 2018-Ohio-3473, ¶ 15. Moreover, to secure a conviction for resisting
arrest, the State did not need to prove Nodal was in fact guilty of obstructing official business. See
Vactor, 2003-Ohio-7195, at ¶ 34. The record supports the conclusion that any error the trial court
made when instructing the jury on the lawful arrest element was harmless beyond a reasonable
doubt. See Sage at ¶ 7. Accordingly, Nodal’s first assignment of error is overruled.
{¶27} Nodal also argues that he received ineffective assistance of counsel when his
attorney failed to object to the trial court’s lawful arrest instruction. To establish prejudice in an
ineffective assistance of counsel claim, an appellant must show that there existed a reasonable
probability that, but for his counsel’s errors, the outcome of the proceeding would have been
different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138. We have already
determined that any error the trial court made in its lawful arrest instruction was harmless beyond
a reasonable doubt. Accordingly, Nodal “‘cannot show the necessary prejudice required to support 11
an ineffective assistance of counsel claim.’” State v. Taylor, 9th Dist. Summit No. 27867, 2016-
Ohio-3439, ¶ 20, quoting State v. Blankenship, 9th Dist. Summit No. 16019, 1993 WL 329962, *4
(Sept. 1, 1993). Nodal’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO PRESENT A DEFENSE AND ARGUE TO THE JURY THAT THE ARRESTING POLICE OFFICERS HAD NO PROBABLE CAUSE TO BELIEVE THAT APPELLANT COMMITTED OBSTRUCTION OF OFFICIAL BUSINESS.
{¶28} In his third assignment of error, Nodal argues he received ineffective assistance of
counsel because his attorney did not present a defense regarding his charge of resisting arrest.
According to Nodal, his attorney should have advanced and argued the theory that officers lacked
probable cause to lawfully arrest him. For the following reasons, we reject his argument.
{¶29} To prevail on a claim of ineffective assistance of counsel, an appellant must
establish: (1) that his counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and (2) that
“the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). A deficient performance is one that falls below an objective standard of reasonable
representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To
establish prejudice, an appellant must show that there existed a reasonable probability that, but for
his counsel’s errors, the outcome of the proceeding would have been different. Sowell at ¶ 138.
{¶30} Nodal argues his only defense to resisting arrest was that his arrest was unlawful.
Therefore, he insists his attorney was obligated to set forth evidence and argue that officers lacked
probable cause to arrest him. He claims the police were aware of his intentions and efforts to de-
escalate any potential incidents involving his brother. They also were aware that he was in a
relationship with a police officer from their department and had prior interactions with various 12
members of their department. Nevertheless, Nodal argues, his attorney did not cross-examine the
officers who testified about “the reasonableness of their interpretations of [his] actions” that day.
He argues that he was the only one who explained the thought process behind his actions to the
jury. According to Nodal, had his attorney effectively argued that officers lacked probable cause
to lawfully arrest him, there is a reasonable probability the jury would have acquitted him of
resisting arrest.
{¶31} Assuming without deciding that Nodal’s counsel engaged in a deficient
performance, we cannot conclude that it prejudiced the outcome of the proceedings. See Stickland,
466 U.S. at 687. The jury heard testimony that Nodal was in a relationship with a member of the
police department and had a number of personal contacts there. They also heard testimony
regarding the proactive efforts he made to alert the department about his brother’s diagnosis and
offer his services if any issues arose. Yet, his charge stemmed from his actions at the scene, not
his relationships, personal motives, or subjective intentions. The jury heard testimony that he
resisted the initial efforts the police made to have face-to-face contact with his brother. They heard
testimony that, when he finally came outside, Nodal began yelling at officers and tried to stop his
brother from coming outside. They heard testimony that he kept his body between the officers and
his brother as they entered the house and immediately began screaming. Finally, they heard
testimony that he flailed his arms, kicked his legs, and actively resisted their efforts to hold onto
him and remove him from the vicinity. As noted, when viewing the circumstances objectively, a
reasonable officer could have concluded that Nodal was trying to hamper the police in the
performance of their lawful duties. See Discussion, supra, citing R.C. 2921.31(A). Nodal has not
shown that, had his attorney advanced additional arguments regarding the lawfulness of his arrest,
there is a reasonable probability the outcome of the proceedings would have been different. See 13
Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, at ¶ 138. Accordingly, his third assignment of error
is overruled.
III.
{¶32} Nodal’s assignments of error are overruled. The judgment of the Lorain Municipal
Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Lorain Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JILL FLAGG LANZINGER FOR THE COURT
HENSAL, J. CONCURS. 14
CARR, P. J. DISSENTING.
{¶33} I respectfully dissent. Given that Nodal was acquitted of the obstruction charge, I
would focus the analysis primarily on the facts that were pertinent to the charge of resisting arrest
when analyzing the validity of the trial court’s jury instructions. Understanding the factual context
is critical in this case. Nodal had established a relationship with police regarding his brother’s
struggles and he was communicating electronically with police throughout the course of the
incident. When Nodal exited the house, he was unaware that charges against his brother had
already been authorized. Based on his communications with police, Nodal was under the
impression that the officers just wanted to speak with his brother. Accordingly, during the raucous
events that followed, it is plausible to assume that Nodal was operating with the mindset that he
was an intermediary between his brother and the police. Under these circumstances, I would hold
that the trial court’s failure to properly define “lawful” arrest when instructing the jury resulted in
prejudice to Nodal. I would sustain the first assignment of error.
APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
ROCKY R. RADEFF, Attorney at Law, for Appellee.