State v. Shoe

2018 Ohio 3006

• Court: Ohio Court of Appeals
• Decided: July 30, 2018
• Docket: 17-17-22
• Status: Published

Opinion

[Cite as State v. Shoe, 2018-Ohio-3006.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 17-17-22

v.

ROBERT L. SHOE, OPINION

DEFENDANT-APPELLANT.

Appeal from Sidney Municipal Court Trial Court No. 17CRB00561

Judgment Affirmed

Date of Decision: July 30, 2018

APPEARANCES:

Jim R. Gudgel for Appellant

Jeffrey L. Amick for Appellee Case No. 17-17-22

PRESTON, J.

{¶1} Defendant-appellant, Robert Shoe (“Shoe”), appeals the November 14,

2017 judgment entry of sentence of the Sidney Municipal Court. For the reasons

that follow, we affirm.

{¶2} This case stems from a July 17, 2017 investigation by Officer Kevin

Calvert (“Officer Calvert”) of the Sidney Police Department of a report concerning

an injured and distressed dog. After locating the dog in Shoe’s backyard, Officer

Calvert questioned Shoe. Eventually, Shoe became confrontational and

uncooperative with Officer Calvert, cursed at Officer Calvert, and refused to provide

Officer Calvert with his identification. On July 18, 2017, two complaints were filed

against Shoe charging him with one count each of: obstructing official business in

violation of R.C. 2921.31(A), a second-degree misdemeanor, and disorderly

conduct in violation of R.C. 2917.11(A)(2), a fourth-degree misdemeanor. (Doc.

Nos. 1, 2). On July 24, 2017, Shoe appeared for arraignment and entered pleas of

not guilty to both counts. (See Doc. No. 4).

{¶3} A bench trial was held on September 15, 2017. (Sept. 15, 2017 Tr. at

1-3). The trial court found Shoe guilty of obstructing official business in violation

of R.C. 2921.31(A) and not guilty of the disorderly-conduct charge. (Doc. No. 18);

(See Doc. No. 22). On November 14, 2017, the trial court sentenced Shoe to 30

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days in jail and two-years’ probation and ordered him to pay a $150 fine. (Doc. No.

22).

{¶4} On November 17, 2017, Shoe filed a notice of appeal. (Doc. No. 26).

He raises one assignment of error.

Assignment of Error

The Court’s verdict finding the Defendant guilty of Obstructing Official Business is not supported by the sufficiency of the evidence.

{¶5} In his assignment of error, Shoe argues that his obstructing-official-

business conviction is not supported by sufficient evidence. Specifically, Shoe

argues that the State did not produce sufficient evidence to prove (1) that he acted

with the purpose to prevent, obstruct, or delay a public official in the performance

of the public official’s duty or (2) that a public official was hampered or impeded in

the performance of their duties.

{¶6} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction 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.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

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favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id.

{¶7} 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.

To obtain a conviction for obstructing official business in violation of R.C.

2921.31(A), the State must prove that (1) the defendant acted (2) without privilege

to do so and (3) with purpose to prevent, obstruct, or delay the performance by a

public official of any authorized act within the public official’s official capacity and

that (4) the defendant’s act hampered or impeded the public official (5) in the

performance of the public official’s lawful duties. See State v. Pierce, 3d Dist.

Seneca No. 13-16-36, 2017-Ohio-4223, ¶ 11, quoting State v. Dice, 3d Dist. Marion

No. 9-04-41, 2005-Ohio-2505, ¶ 19, citing R.C. 2921.31(A). “A person acts

purposely when it is the person’s specific intention to cause a certain result, or, when

the gist of the offense is a prohibition against conduct of a certain nature, regardless

of what the offender intends to accomplish thereby, it is the offender’s specific

intention to engage in conduct of that nature.” R.C. 2901.22(A). “‘The purpose

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with which a person does an act is determined from the manner in which it is done,

the means used, and all the other facts and circumstances in evidence.’” State v.

Puterbaugh, 142 Ohio App.3d 185, 189 (4th Dist.2001), quoting State v. Hardin,

16 Ohio App.3d 243, 245 (10th Dist.1984).

{¶8} At trial, the State offered the testimony of Frances Knoop (“Knoop”),

one of Shoe’s neighbors at the time of the incident in question. (Sept. 15, 2017 Tr.

at 4). Knoop testified that, on July 17, 2017, she called the Sidney Police

Department to report an injured dog in the backyard of a home that she later learned

was occupied by Shoe. (Id. at 5). She stated that after law enforcement arrived and

confronted Shoe, Shoe was “very belligerent with the officer.” (Id. at 6). According

to Knoop, Shoe was not helpful toward Officer Calvert, and he was “just standing

on his porch[,] yelling at [Officer Calvert], telling him to leave,” and “cursing” at

him. (Id. at 7). She testified that Shoe and Officer Calvert’s conversation lasted

“for maybe 20 minutes or so.” (Id. at 8).

{¶9} On cross-examination, Knoop testified that she was able to observe

Shoe and Officer Calvert’s interaction from a distance of approximately 35 to 40

feet away but she said that it may have been “a little bit further away than that.” (Id.

at 11).

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{¶10} On re-direct examination, Knoop testified that there were “several

instances” over the course of Shoe and Officer Calvert’s interaction where Shoe

used foul language and that he used the “F word” three or four times. (Id. at 12).

{¶11} Next, Officer Calvert testified that he was on duty on the morning of

July 17, 2017 when he received a call concerning an injured dog. (Id. at 14). He

testified that Knoop was the complainant and that when he arrived, Knoop directed

him to the location of the injured dog, which turned out to be Shoe’s yard. (Id. at

14-15). Officer Calvert testified that when he approached Shoe’s backyard, he

observed a gray and white pit bull “lying on its side.” (Id. at 15). According to

Officer Calvert, the dog

wasn’t moving. * * * I didn’t hear any whining or anything from it. It

was panting really hard. * * * It was in distress. I approached it. It

never moved. It just looked at me. Its face was completely wet from

panting and slobbering. There was flies and gnats that were flying all

over the animal, and it was just laying there defenseless.

(Id. at 15-16). Officer Calvert testified that he then knocked on the back door of the

residence in an attempt to see whether the resident “knew anything about the dog.”

(Id. at 16).

{¶12} Officer Calvert testified that although he did not initially get a

response when he knocked on the back door, Shoe eventually emerged from the

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residence. (Id. at 17). Officer Calvert proceeded to ask Shoe whether he knew

anything about the dog. (Id. at 18). Officer Calvert testified that Shoe explained to

him “that the dog was hit last night * * * by a car. [Shoe] said that it was whining

in the house, and he wasn’t able to sleep so he took the dog out and laid it in the

grass.” (Id.). After Shoe explained why the dog was in the backyard, Officer

Calvert asked Shoe for his identification to issue Shoe a citation for animal cruelty.

(Id. at 19).

{¶13} Once Officer Calvert told Shoe that he intended to cite Shoe for animal

cruelty, Shoe became belligerent and uncooperative. (Id. at 19-20). According to

Officer Calvert, Shoe said, “Fuck you, dumb fucker. * * * You’re trespassing. Get

the fuck off my property.” (Id.). Officer Calvert told Shoe that he was “going to be

arrested if [he] continue[d] to use the profanities.” (Id. at 20). Officer Calvert

testified that at that point, “[Shoe went] in the house, [and] apparently call[ed] the

police to get me removed.” (Id.). When Shoe went into his residence, Officer

Calvert also “called for a backup unit because [Shoe] was really loud, yelling, [and]

telling [him] to get the fuck off his property.” (Id.).

{¶14} Officer Calvert testified that after a “minute or two” in his residence,

Shoe eventually reemerged when another law enforcement officer arrived. (Id.).

He stated that, on returning outside, Shoe told the other law enforcement officer to

“get that piece of shit off my property,” referring to Officer Calvert. (Id.). During

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this entire exchange, Shoe had yet to provide Officer Calvert with his identification.

(Id. at 21).

{¶15} Officer Calvert testified that it “might have been 30, 35, 40 minutes”

from the time he first engaged with Shoe until the interaction ended. (Id. at 21-22).

He stated that had Shoe simply gone into his residence and retrieved his

identification as requested, the interaction would not have lasted as long as it did.

(Id. at 22). Officer Calvert testified that due to Shoe’s conduct and delay in

furnishing him with identification, he was not able to perform his job as quickly as

he would otherwise have been able. (Id. at 23). He testified that the animal-cruelty

investigation was eventually turned over to the Shelby County dog warden. (Id. at

25).

{¶16} On cross-examination, Officer Calvert stated that Shoe “had went

back into his house several times while we were there” but admitted that he “forgot”

to put that detail in his initial police report. (Id. at 27, 29). He insisted that Shoe

went “into his house two times” during their interaction although his report reflects

only that Shoe “went to his residence and returned with his identification.” (Id. at

28-29).

{¶17} On re-direct examination, Officer Calvert clarified his testimony as to

Shoe’s movements on the day of the incident. He testified:

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To my recollection he went into his house two times and shut the door.

Once prior to [the other law enforcement officer] arriving and then

after [that officer] arrived, he went back into his house. And when I

was talking to [the other law enforcement officer], he came back out

and gave the ID to [the other officer], not me, and it was handed over

to me.

(Id. at 30-31). Officer Calvert stated that Shoe went back into his residence once

prior to retrieving his identification and that the second time he went into his

residence, he was inside for a minute or two before returning with his identification.

(Id. at 29-30). He further testified that he “called for backup immediately when

[Shoe] started to raise his voice telling [him] to get off his property” and that had

Shoe not acted in that manner, he would not have called for assistance. (Id. at 31).

{¶18} The trial court examined Officer Calvert. When asked about the time

that elapsed from the moment Shoe was first asked to produce identification until

Shoe finally provided his identification, Officer Calvert testified that it was

“[p]robably ten minutes.” (Id. at 33). Officer Calvert summarized the interaction

as follows:

I asked him for his ID. He got very aggressive, loud, using profane

language, telling me to get off his property. I was explaining why I

was there. I was there investigating an incident. I had a legal right to

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be there. He [said] “F you”. You’ve got to get off my property. So

it was a communication between us and then he went back inside.

(Id. at 34). He testified that the initial conversation between him and Shoe lasted

for a few minutes before Shoe first went inside and shut the door. (Id. at 34-35).

Shoe remained in his residence for some time until the other law enforcement officer

arrived. (Id. at 35). At that point, Shoe came back outside where he was once again

“abusive” with Officer Calvert. (Id.). Shoe then went inside again, came out with

his identification, and gave the other law enforcement officer his identification

which that officer then gave to Officer Calvert. (Id.).

{¶19} In the present case, Shoe does not contest that Officer Calvert was

performing an authorized act within his official capacity at the time of the incident,

and he does not assert a claim of privilege. Thus, we presume that Officer Calvert

was acting in the performance of his lawful duty and that Shoe was not privileged

to conduct himself as he did. See State v. Brickner-Latham, 3d Dist. Seneca No. 13-

05-26, 2006-Ohio-609, ¶ 28. As such, we will review only whether the State

presented sufficient evidence to prove that there was (1) an act by Shoe (2) done

with the purpose to prevent, obstruct, or delay Officer Calvert (3) that hampered or

impeded Officer Calvert’s performance of his lawful duty. See State v. Cobb, 2d

Dist. Montgomery No. 19474, 2003-Ohio-3034, ¶ 8, fn. 1.

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{¶20} We conclude that Shoe’s obstructing-official-business conviction is

supported by sufficient evidence. First, the State presented sufficient evidence to

support a finding that Shoe engaged in an “act.” “‘Ohio courts have consistently

held that in order to violate the obstructing official business statute a defendant must

engage in some affirmative or overt act * * *.’” Pierce, 2017-Ohio-4223, at ¶ 12,

quoting State v. Crowell, 189 Ohio App.3d 468, 2010-Ohio-4917, ¶ 11 (2d Dist.),

quoting State v. Harrell, 2d Dist. Montgomery No. 21736, 2007-Ohio-4550, ¶ 12.

“A mere failure or refusal to respond to an officer’s request does not constitute

obstructing official business.” Crowell at ¶ 11, citing Harrell at ¶ 12, citing State v.

Christman, 2d Dist. Montgomery No. 19039, 2002-Ohio-2915; Brickner-Latham at

¶ 26 (noting that “the refusal to produce identification upon request by a police

officer will not support a finding of obstructing official business”), citing State v.

McCrone, 63 Ohio App.3d 831, 835 (9th Dist.1989). However, failure to respond

to a law enforcement officer’s request, such as a request for identification, coupled

with “loud, boisterous, and uncooperative conduct” or a retreat from law

enforcement officers into a house or other building may constitute an affirmative or

overt act for purposes of R.C. 2921.31(A). See Pierce at ¶ 13 (determining that

Pierce “moved into the realm of affirmative action when he decided to flee into the

house in the midst of a police investigation and attempted to close the door on the

officers”); State v. Florence, 12th Dist. Butler No. CA2013-08-148, 2014-Ohio-

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2337, ¶ 12-13 (“[A] defendant’s volume and demeanor making it impossible to

investigate a complaint has been found sufficient to constitute an act for an

obstructing official business conviction.”), citing City of Warren v. Lucas, 11th Dist.

Trumbull No. 99-T-0019, 2000 WL 655446 (May 19, 2000).

{¶21} Here, any rational trier of fact could find beyond a reasonable doubt

that Shoe engaged in an affirmative or overt act. Officer Calvert testified that as

soon as Shoe was asked for his identification and informed that he was going to be

cited for animal cruelty, Shoe became belligerent, profane, and uncooperative.

Shoe’s choice to adopt an antagonistic demeanor with Officer Calvert constitutes an

affirmative act. State v. Parkhurst, 11th Dist. Trumbull No. 2015-T-0041, 2016-

Ohio-1018, ¶ 31 (“Parkhurst’s argumentativeness constituted an affirmative act that,

according to the testimony of Patrolman Hodge, did delay him from issuing the

citation.”); State v. Willey, 5th Dist. Stark No. 2014CA00222, 2015-Ohio-4572, ¶

24 (“[Willey] did not physically resist police in the instant case but her

argumentative demeanor needlessly escalated the entire incident and entirely stalled

the investigation into the original complaint.”); Florence at ¶ 12-13 (“Florence’s

purposeful loud, boisterous, and uncooperative conduct made the performance of

[the deputies’] duties more difficult.”). Moreover, after being informed that Officer

Calvert intended to issue him a citation, Shoe withdrew into his home, depriving

Officer Calvert of the ability to ask Shoe additional questions pertinent to his

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animal-cruelty investigation and further press Shoe to provide identification.

Although Shoe returned outside once the other law enforcement officer arrived,

Shoe failed to bring identification with him, and he still did not provide Officer

Calvert his name. Only after going back into his residence again for a couple

minutes did Shoe reemerge and provide Officer Calvert with his identification.

Shoe’s repeated trips into his residence and away from Officer Calvert’s

investigation, which had the effect of delaying Officer Calvert from finding out

Shoe’s identity, also constitute an affirmative act. See Pierce at ¶ 13-14; State v.

Harris, 9th Dist. Summit No. 27639, 2015-Ohio-5378, ¶ 8 (concluding that “Mr.

Harris’s retreat into his house after being ordered by Deputy Breedan to put his

hands on top of his head and to talk with him constituted an overt act that was

sufficient to support his conviction for obstructing official business.”). See also

Brickner-Latham at ¶ 27 (recognizing that “where an individual ‘also takes

affirmative actions to hamper or impede the police from finding out his or her

identity, the defendant may be guilty of obstructing official business’”), quoting

State v. Justice, 4th Dist. Pike No. 99CA631, 1999 WL 1125113, *5 (Nov. 16,

1999). In sum, Shoe’s decision to twice remove himself from the scene of Officer

Calvert’s investigation before identifying himself and his decision to employ crude

and disruptive language with Officer Calvert are sufficient to satisfy the affirmative

act requirement of R.C. 2921.31(A). See Pierce at ¶ 14; Harris at ¶ 8; Florence at

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¶ 11-13; Dayton v. Turic, 2d Dist. Montgomery No. 20149, 2005-Ohio-131, ¶ 26;

In re Sommer, 5th Dist. Stark No. 2004CA00074, 2004-Ohio-5885, ¶ 12.

{¶22} In addition, a rational trier of fact, evaluating the manner of Shoe’s

conduct and all other facts and circumstances, could find that it was Shoe’s specific

intention to prevent, obstruct, or delay Officer Calvert’s investigation. Pairing

Shoe’s belligerence, profanity, uncooperativeness, and repeated demands that

Officer Calvert “[g]et the fuck off” his property with his persistent failure to provide

identification, a rational trier of fact could infer that it was Shoe’s specific intent to

obstruct Officer Calvert’s investigation by rendering him incapable of asking further

questions or to delay the issuance of a citation for animal cruelty. See State v. Street,

2d Dist. Montgomery No. 26501, 2015-Ohio-2789, ¶ 20-23 (suggesting that a trier

of fact could find that Street purposely hampered or impeded a police officer based

on Street’s “refus[al] to provide [the police officer] with his personal information as

requested,” “yelling, cursing, and interrupting [the police officer]” instead of

answering questions, and “talk[ing] over the other officers and curs[ing] at them,

which prevented the officers from calming down the situation”); State v. Burns, 2d

Dist. Montgomery No. 22674, 2010-Ohio-2831, ¶ 7, 26 (sustaining a jury’s

inference of a purpose to delay or obstruct a police investigation based on Burns’s

“behavior of yelling and screaming” including “using foul language and demanding

that [the police officer] leave” and “call[ing] 911 and demand[ing] the presence of

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a supervisor”); State v. Sims, 2d Dist. Montgomery No. 22528, 2008-Ohio-6242, ¶

20 (suggesting that a purpose to prevent, obstruct, or delay can be inferred from the

duration of an encounter between a law enforcement officer and a defendant, a

defendant’s profanity and screaming, and a defendant’s refusal to comply with a

law enforcement officer’s orders); N. Ridgeville v. Elliott, 9th Dist. Lorain Nos.

05CA008686 and 05CA008687, 2006-Ohio-3332, ¶ 3, 9-12. Furthermore, Shoe’s

multiple trips into his residence during the course of Officer Calvert’s investigation

support an inference that Shoe intended to obstruct Officer Calvert’s investigation

and delay the issuance of a citation for animal cruelty for as long as possible. See

Pierce at ¶ 15 (noting that Pierce’s actions demonstrated an intent to hamper or

impede, in part, because Pierce “‘darted’ into [a] house and attempted to shut the

front door”). Although Shoe argues that he went into his residence not for the

purpose of any delay but to call for additional law enforcement assistance because

he did not agree with Officer Calvert’s presence on his property, his argument is

undermined by the fact that, rather than returning to the scene of Officer Calvert’s

investigation as quickly as possible to submit to possible further questioning, Shoe

remained in his residence until the other law enforcement officer arrived.

Additionally, while Shoe had an opportunity to retrieve his identification the first

time he went into his residence, he did not bring it with him when he returned to

meet the other officer; instead, Shoe had to go back into his residence yet again to

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retrieve his identification, sequestering Shoe from the investigation and further

delaying Officer Calvert from learning Shoe’s identity. As such, we conclude that

a rational trier of fact could infer that Shoe purposely acted to prevent, obstruct, or

delay Officer Calvert from performing an authorized act within the scope of Officer

Calvert’s official capacity.

{¶23} Finally, the State presented sufficient evidence from which any

rational trier of fact could find beyond a reasonable doubt that Shoe’s conduct

hampered or impeded Officer Calvert in the performance of his duties. “The proper

focus in a prosecution for obstructing official business is on the defendant’s conduct,

verbal or physical, and its effect on the public official’s ability to perform the

official’s lawful duties.” State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953,

¶ 12 (1st Dist.). “[I]n order to be convicted for obstructing official business, there

must be evidence presented indicating the defendant * * * interfered with the

performance of an official duty, thereby making the performance of that duty more

difficult.” State v. Ertel, 12th Dist. Warren No. CA2015-12-109, 2016-Ohio-2682,

¶ 8, citing State v. Standifer, 12th Dist. Warren No. CA2011-07-071, 2012-Ohio-

3132, ¶ 28, citing State v. Whitt, 12th Dist. Butler No. CA89-06-091, 1990 WL

82592, *2 (June 18, 1990). See State v. Ellis, 2d Dist. Montgomery No. 24003,

2011-Ohio-2967, ¶ 59 (noting that to “hamper or impede” a law enforcement

officer, “‘there must be some substantial stoppage of the officer’s progress’” but

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that there is no “‘finite period of time [that] constitutes a “substantial stoppage”’”),

quoting Wellman at ¶ 17-18.

{¶24} Here, Officer Calvert testified to a delay of approximately ten minutes

from the time he first requested that Shoe produce his identification until Shoe

provided his identification. Officer Calvert estimated that the entire episode took

between 30 and 40 minutes and that, but for Shoe’s conduct, he would have been

able to conclude his investigation sooner. Knoop’s testimony supports Officer

Calvert’s assertion as to the duration of the encounter. According to Officer Calvert,

Shoe’s actions rendered it impossible for him to perform his job as quickly as he

would otherwise have been able. The delay occasioned by Shoe’s conduct made it

more difficult for Officer Calvert to continue his animal-cruelty investigation and

to determine whether to issue Shoe a citation. See State v. Shoemaker, 1st Dist.

Hamilton No. C-140724, 2015-Ohio-4645, ¶ 15, 19 (finding that a five-minute delay

in an investigation of a hit-skip collision hampered or impeded a law enforcement

officer’s performance of his duties); Wellman at ¶ 18-19 (suggesting that a delay of

“approximately two to five minutes” can constitute hampering or impeding). Thus,

we conclude that the State presented sufficient evidence that Shoe hampered or

impeded a public official in the performance of his lawful duties.

{¶25} Therefore, viewing the evidence presented in a light most favorable to

the prosecution, a rational trier of fact could have found that Shoe acted with the

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purpose to prevent, obstruct, or delay Officer Calvert’s performance of an

authorized act within his official capacity and that Officer Calvert was hampered or

impeded in the performance of his lawful duties. Accordingly, we conclude that

Shoe’s obstructing-official-business conviction is supported by sufficient evidence.

{¶26} Shoe’s assignment of error is overruled.

{¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

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