[Cite as State v. Lee, 2012-Ohio-2856.]

COURT OF APPEALS 

 LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJASON LEE 

 

 Defendant-Appellant 

: JUDGES: 

: W. Scott Gwin, P.J. 

: John W. Wise, J. 

: Julie A. Edwards, J. 

: 

: Case No. 11-CA-0076 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from Licking County 

 Court of Common Pleas Case No. 

 10-CR-0618 

JUDGMENT: Affirmed In Part, Reversed and 

 Remanded In Part 

DATE OF JUDGMENT ENTRY: June 22, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT ROBERT BANNERMAN 

Prosecuting Attorney P.O. Box 77466 

20 S. Second Street, Fourth Floor Columbus, Ohio 43207-0098 

Newark, Ohio 43055 

 
[Cite as State v. Lee, 2012-Ohio-2856.]

Edwards, J. 

{¶1} Appellant, Jason Lee, appeals a judgment of the Licking County Common 

Pleas Court convicting him of obstructing official business (R.C. 2921.31(A)) with a 

firearm specification (R.C. 2929.14(D), 2941.145), aggravated menacing (R.C. 

2903.21(A)), and possession of marijuana (R.C. 2925.11(A)(C)(3)(a)). He was 

sentenced to three years incarceration on the firearm specification to run consecutively 

to all other sentences, six months incarceration for obstructing official business, and 180 

days incarceration for aggravated menacing to run concurrently with the sentence for 

obstructing official business. Appellee is the State of Ohio. 

STATEMENT OF FACTS AND CASE

{¶2} On September 23, 2010, officers from the Licking County Sheriff’s 

Department went to appellant’s home at 9151 Linville Road, Newark, Ohio, to serve a 

writ of possession. Deputies spoke to appellant and explained that his property had 

been sold at sheriff’s sale and he needed to make arrangements to vacate. They 

agreed on October 11, 2010 as the date by which appellant would vacate, but appellant 

stated that he was going to hire an attorney to have the sale set aside. 

{¶3} Deputies did not return on October 11, 2010, because a court action was 

pending to review the propriety of the sale. However, on October 20, 2010, the court 

denied a stay on the writ of possession. Deputies again spoke with appellant at his 

home on October 25, 2010, and told him he needed to vacate on October 27, 2010. 

{¶4} At about 9:30 a.m. on October 27, deputies arrived at appellant’s home. 

Appellant was standing on the front sidewalk. He yelled something to the officers about 

having sold his house to someone else and told them to leave. Appellant then ran in 
Licking County App. Case No. 11-CA-0076 3 

the front door of the home. Officers followed appellant to the front porch but appellant 

would not come out or let them in the house. He yelled through the front door that he 

was not coming out. 

{¶5} Deputies returned to their vehicle to telephone the buyers to inform them 

not to come to the property that morning as planned. They called appellant’s attorney, 

and also called their supervisor, Captain Bruce Myers. Deputy Tim Caldwell went 

around to the back door to attempt to talk to appellant. The blinds covering the French 

doors on the back porch flew open and the faces of appellant and another man, later 

identified as Karl Weatherby, appeared against the window. The two men began yelling 

and screaming at Dep. Caldwell. The corners of their mouths were “full of white stuff” 

from yelling and screaming and they were spitting on the window. 

{¶6} When Captain Bruce Myers arrived, he went to the back door to speak 

with appellant. He advised appellant through the door that appellant’s attorney was on 

his way. Capt. Myers saw an arm and a hand come around the side of the blinds 

covering the door. The hand was holding a pistol. 

{¶7} Much of the staff of the Sheriff’s Department had been dispatched to an 

incident involving a van, containing a pipe bomb, which crashed into a church following 

a pursuit earlier that morning. At least 25 employees of the Sheriff’s Department and 

fire department were dispatched to appellant’s home, including the SWAT team and the 

hostage negotiating team. 

{¶8} Appellant would not speak to the hostage negotiators through a “throw 

phone,” which is the preferred method of communicating so that all communications can 

be monitored by the police. However, he agreed to speak to Misty VanBalen through a 
Licking County App. Case No. 11-CA-0076 4 

cell phone. VanBalen faxed the paperwork concerning the sale of the house to 

appellant so they both had all the relevant court papers. Appellant repeatedly told her 

that he wanted to die, that he was going to kill whoever entered the residence first and 

then kill himself. He also told her that he and Weatherby had a plan to kill each other. 

He told her that he could see the officers through the window and could take them out. 

He intended to die and take out as many people as he could. Appellant would speak 

calmly with her for awhile, then start yelling and hang up. He told her that he had 

shown a gun to an officer and knew he was in trouble, he still had the gun, and he 

wasn’t going to put it down. He told her he had other guns in the house, including rifles 

which Weatherby knew how to handle because he had been in the military. He said 

that he wanted the media to be there when he died. 

{¶9} At about 4:15 p.m., Weatherby agreed to come out unarmed and speak to 

the media. Appellant and Weatherby were both concerned about how their cats were 

going to get fed if they surrendered. VanBalen agreed to feed the cats. Appellant came 

out of the house at 6:30 p.m. 

{¶10} During a subsequent search of the house, officers found marijuana. They 

also found three firearms in a cabinet in a basement office, a loaded firearm in a 

garage, a revolver in the first floor dining room, a rifle leaning against an end table in the 

living room, and a rifle in the corner of a first floor bathroom. 

{¶11} Appellant admitted to police that he grabbed a firearm and went to the 

back door. He did not deny brandishing a weapon at Captain Myers and indicated that 

he had a weapon with him. He also admitted that he planned to shoot the first person 

through the door and then shoot himself. 
Licking County App. Case No. 11-CA-0076 5 

{¶12} Appellant was indicted by the Licking County Grand Jury with obstructing 

official business, inducing panic, aggravated menacing, possession of criminal tools, 

possession of marijuana, and two firearm specifications. The first firearm specification, 

applicable to counts one and two, alleged that appellant had one or more firearms on or 

about his person or under his control or that of an accomplice. The second firearm 

specification, also applicable to counts one and two, alleged that appellant or an 

accomplice displayed, brandished, indicated that they possessed a firearm or used it to 

facilitate the offense. 

{¶13} Following jury trial in the Common Pleas Court, appellant was acquitted of 

inducing panic. The jury could not reach a verdict on the charge of possession of 

criminal tools. Appellant was convicted of all other counts. The trial court merged the 

firearm specifications and sentenced appellant to a term of incarceration of three years, 

to be served prior to and consecutively to the remainder of his sentence. He was 

sentenced to six months incarceration for obstructing official business, and 180 days 

incarceration for aggravated menacing to run concurrently with the sentence for 

obstructing official business. 

{¶14} Appellant assigns three errors on appeal: 

{¶15} “I. WAS THE JURY’S FIREARM SPECIFICATION SPECIAL FINDING 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶16} “II. THE DEFENDANT’S SENTENCING ENTRY WAS DEFECTIVE BY 

MERGING FIREARM SPECIFICATIONS FOR A COUNT IN WHICH HE WAS FOUND 

NOT GUILTY. 
Licking County App. Case No. 11-CA-0076 6 

{¶17} “III. THE TRIAL COURT IMPROPERLY ALLOWED PREJUDICIAL 

CUMULATIVE FIREARM EVIDENCE TO GO TO THE JURY, AND EXCLUDED 

EXCULPATORY MENTAL STATE CIVIL FORECLOSURE ERRORS TO BE 

PRESENTED TO THE JURY.” 

I 

{¶18} Appellant argues that the finding on the firearm specification was against 

the manifest weight of the evidence. He argues that because Capt. Myers did not see 

the face of the person who brandished the weapon, there was a 50/50 chance it was 

Karl Weatherby and not appellant who brandished the firearm. 

{¶19} In determining whether a verdict is against the manifest weight of the 

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire 

record, weighs the evidence and all reasonable inferences, considers the credibility of 

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly 

lost its way and created such a manifest miscarriage of justice that the conviction must 

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 

N.E.2d 717 (1983). 

{¶20} R.C. 2929.14(D) provides for a three year term of incarceration if the 

offender had a firearm “on or about the offender's person or under the offender's control 

while committing the offense and displaying the firearm, brandishing the firearm, 

indicating that the offender possessed the firearm, or using it to facilitate the offense.” 

{¶21} Misty VanBalen testified that appellant told her he knew was in trouble and 

that he had shown a gun to an officer. He told her that he still had the gun and wasn’t 
Licking County App. Case No. 11-CA-0076 7 

going to put it down and that he had other guns. He told her he intended to shoot the 

first person who walked through the door and then kill himself. Detective Brock Harmon 

interviewed appellant after the incident. Appellant admitted that he grabbed a firearm 

and took it with him to the back door and that he planned to shoot the first person who 

walked through the door and then shoot himself. Numerous firearms were found in a 

search of the house, including several on the first floor. Captain Myers identified the 

pistol that was displayed to him through the back door. 

{¶22} The judgment on the firearm specification is not against the manifest 

weight of the evidence. 

{¶23} The first assignment of error is overruled. 

II 

{¶24} In his second assignment of error, appellant argues that the court erred in 

merging the firearm specifications on both counts one and two, as he was not convicted 

of count two, inducing panic. 

{¶25} The court’s sentencing entry states in pertinent part: 

{¶26} “The Court finds that the defendant has been convicted of Obstructing 

Official Business (Count 1), a violation of O.R.C. Section 2921.31(A), a felony of the fifth 

degree; Firearm Specification to Counts 1 and 2, in violation of O.R.C. Section 

2929.14(D) and 2941.145; Aggravated Menacing (Count 3), in violation of O.R.C. 

Section 2903.21(A), a first degree misdemeanor; and Possession of Marijuana (Count 

5), in violation of O.R.C. Section 2925.11(A)(C)(3)(a), a minor misdemeanor. 
Licking County App. Case No. 11-CA-0076 8 

{¶27} “For reasons stated on the record, and after consideration of the factors 

under Ohio Revised Code Section 2929.12, the Court also finds that prison is 

mandatory. 

{¶28} “The Court finds that the separate firearm specifications to Counts 1 and 2 

merge. 

{¶29} “It is, therefore, ordered that the defendant serve a state mandatory prison 

term of three (3) years on the firearm specification to be served prior to and 

consecutively with a term of six (6) months on Count 1 at the Orient Reception Center. 

Further, the Court imposes a term of 180 days in jail on Count 3 and orders it run 

concurrently with the sentence of Count 1.” 

{¶30} The jury convicted him of count one, obstructing official business, and 

both firearm specifications attached to this count. The court merged these 

specifications for sentencing, but incorrectly stated that the specification was attached 

to Counts 1 and 2. Because appellant was acquitted on Count Two, the firearm 

specification was only applicable to Count One. 

{¶31} Appellant argues that he should be resentenced. We disagree. While the 

entry should be corrected to remove the reference to the firearm specification on Count 

2, appellant’s sentence was not affected by this error. Appellant was convicted of the 

firearm specification on Count 1, and accordingly was sentenced to three years 

incarceration on the specification. 

{¶32} The second assignment of error is sustained. 
Licking County App. Case No. 11-CA-0076 9 

III 

{¶33} In his third assignment of error, appellant argues that the court erred in 

admitting evidence of firearms found in the house in addition to the weapon identified as 

the one brandished to Captain Myers. He also argues the court erred in excluding 

evidence that there were errors made in his civil foreclosure case because such 

evidence was relevant to his state of mind. 

{¶34} The admission or exclusion of relevant evidence rests within the sound 

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 51 N.E.2d 343, paragraph 

2 of the syllabus (1987). An abuse of discretion implies that the court acted 

unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983). 

{¶35} Appellant argues that the evidence of other firearms found in the 

residence should have been excluded under Evid. R. 403: 

{¶36} “(A) Exclusion mandatory. Although relevant, evidence is not admissible if 

its probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury. 

{¶37} “(B) Exclusion discretionary. Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by considerations of undue 

delay, or needless presentation of cumulative evidence.” 

{¶38} While appellant objected before trial and during the testimony of Det. Marc 

Brill to the admissibility of any gun but the gun displayed to Capt. Myers, appellant failed 

to renew the objection when the exhibits were admitted, and stated that he had no 

objection to the admission of the exhibits. Tr. 396. All of the weapons were included in 
Licking County App. Case No. 11-CA-0076 10 

these exhibits. Generally, when a party fails to renew an objection at the time exhibits 

are admitted into evidence, that party waives the ability to raise the admission on appeal 

absent plain error. Odita v. Phillips, 10th Dist. 09AP-1172, 2010-Ohio-4321, ¶56, citing 

Nicula v. Nicula, 8th Dist. No. 84049, 2009-Ohio-2114. In order to prevail under a plain 

error analysis, appellant bears the burden of demonstrating that the outcome of the trial 

clearly would have been different but for the error. State v. Long, 53 Ohio St.2d 91, 372 

N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at 

paragraph three of the syllabus. 

{¶39} Appellant argues that the 9 mm Beretta and the Smith & Wesson 

semiautomatic were locked in a cabinet in the basement. He further argues that 

evidence that one of the rifles was capable of piercing body armor was unfairly 

prejudicial and confused the jury. 

{¶40} The testimony shows that these weapons were found in a cabinet in the 

basement, but the evidence does not support appellant’s claim that the cabinet was 

locked. Further, the Beretta was identified by Captain Myers as the weapon brandished 

at the back door, which he recognized by the after-market aiming laser attached to the 

weapon. Throughout the incident, appellant made the hostage negotiator aware that 

they had rifles and Weatherby knew how to handle them from being in the military. He 

informed VanBalen that he could see officers through the window and could take them 

out. Evidence of the firearms was relevant to proving the firearm specification. Further, 

the obstructing official business charge was elevated to a felony pursuant to R.C. 

2921.31(B) because the offense created a risk of physical harm to any person. The fact 
Licking County App. Case No. 11-CA-0076 11 

that appellant and Weatherby were armed with multiple kinds of weapons, several of 

which were found on the first floor of the home, was relevant to proving that appellant 

created a risk of harm to the officers he threatened throughout the course of the 

incident. 

{¶41} Appellant has not demonstrated error in admission of the firearms. 

{¶42} Appellant next argues that the court erred in excluding evidence that he 

believed the court made a mistake in ordering the sheriff to execute the writ because 

there were errors in the process by which the writ of possession was obtained. 

{¶43} Appellant’s claim is essentially one of defense of property. Ohio law does 

not provide appellant the right to defend his property by threatening to shoot police 

officers who are there to execute a writ of possession issued by a court of law simply 

because he believes there were errors made in the civil proceeding that led to the 

sheriff’s sale of his property. 

{¶44} In State v. Burns, 2nd Dist. No. 22674, 2010-Ohio-2831, the appellant 

argued that her conviction for obstructing official business was against the manifest 

weight of the evidence because the officer whom she impeded in his efforts to search 

her mother’s home was there unlawfully, without a search warrant. The court rejected 

this argument, holding: 

{¶45} “Appellant contests that Officer Wolpert was performing ‘lawful duties’ 

when he entered her mother's house prior to obtaining a search warrant. Although an 

unlawful entry may result in the exclusion of evidence, ‘absent bad faith on the part of a 

law enforcement officer, an occupant cannot obstruct the officer in the discharge of his 

duty, whether or not the officer's actions are lawful under the circumstances.’ State v. 
Licking County App. Case No. 11-CA-0076 12 

Stevens, Morgan App. No. 07-CA-0004, 2008-Ohio-6027, ¶ 37, quoting State v. 

Paumbaur (1984), 9 Ohio St.3d 136, 138. There is no evidence of ‘bad faith’ on the part 

of Officer Wolpert. He explained that his reason for entering the home was to ensure the 

safety of all concerned and to ensure that evidence could not be removed or destroyed. 

Even if Officer Wolpert's entry had been unlawful under these particular circumstances, 

absent evidence of bad faith, Appellant was not justified in obstructing his efforts to 

secure the residence.” Id. at ¶19. 

{¶46} In the instant case, appellant’s proffered evidence did not demonstrate in 

any way that the police were acting in bad faith. The evidence suggested that as of 

October 27, 2010, the deed to the home was still in appellant’s name. However, as 

noted by the court, nothing in appellant’s proffered testimony demonstrated that the 

sheriff acted in bad faith in executing the writ of possession. While it might be 

uncommon for a writ to issue prior to the deed being recorded, the sheriff’s department 

had a writ of possession and a judgment of the court, dated October 20, 2010, denying 

appellant’s motion for a stay on the writ of possession. The court did not err in 

excluding evidence that the writ issued before the deed was recorded and before the full 

purchase price was paid. 

{¶47} Further, while a homeowner may say almost anything to officers in an 

attempt to persuade them not to enter, the Fourth Amendment does not grant a 

homeowner the right to use deadly force to resist an unlawful entry. State v. McCoy, 2nd

Dist. No. 22479, 2008-Ohio-5648, ¶19. In the instant case, appellant’s right to resist 

entry, even if the police were acting on bad faith, did not extend to a threat of deadly 

force and show of a firearm. 
Licking County App. Case No. 11-CA-0076 13 

{¶48} The third assignment of error is overruled. 

{¶49} The judgment of the Licking County Common Pleas Court is affirmed in all 

respects except the merger of the firearm specification on Count Two. This cause is 

remanded to that court for the limited purpose of correcting the judgment to remove the 

reference to a firearm specification on Count Two, on which appellant was acquitted. 

By: Edwards, J. 

Gwin, P.J. and 

Wise, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

JAE/r0227 
[Cite as State v. Lee, 2012-Ohio-2856.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JASON LEE : 

 : 

 Defendant-Appellant : CASE NO. 11-CA-0076 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Licking County Court of Common Pleas is reversed solely as to the 

reference to the firearm specification on Count Two, and remanded for the limited 

purpose of correcting the judgment entry. In all other respects the judgment is affirmed. 

Costs assessed to appellant. 

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 JUDGES