[Cite as State v. Harris , 2018-Ohio-4316.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 18CA4

vs. : PATRICK HARRIS, : DECISION AND JUDGMENT ENTRY Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: Patrick N. Harris, Orlando, Florida, pro se. Lisa A. Eliason, Athens City Law Director, a nd Jessica L. Branner, Athens City Prosecutor, Athens, Ohio, for Appellee.

CRIMINAL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED:10-17-18 ABELE, J. {¶ 1} This is an appeal from an Athens Count y Municipal Court judg ment of conviction

and sentence. The trial court found Patrick N. Harris, defendant below a nd appellant herein, guilty of obstructing official business, in violation of R.C. 2921.31, and possessing an open container of alcohol, in violati on of R.C. 4301.62. Appellant raises the following assignment of

error for review:

“THE EXPLANATION OF CIRCUMSTANCES WAS INSUFFICIENT TO ALLOW THE TRIAL COURT TO MAKE A FINDING OF GUILTY UPON THE DEFENDANT’S PLEA OF NO CONTEST.”[Cite as State v. Harris , 2018-Ohio-4316.] {¶ 2} On November 5, 2017, shortly after midnight, Ohio University Police Lieutenant Farin Barber encountered appella nt and appellant’s two adult ch ildren, a son and a daughter. The lieutenant noticed that both appellant and a ppellant’s daughter posse ssed open containers of alcohol. Lieutenant Barber approached appe llant and asked him to “turn around” so the lieutenant could remove the ope n container from appellant’s pe rson. Appellant refused to comply. Instead, appellant hande d the open container to appellant ’s son and told his son to dispose of the open container. Appellant also instructed his daughter to leave the scene. Lieutenant Barber subsequently arrested appellant and charge d him with obstructing official business and possessing an open container of alcohol. {¶ 3} Subsequently, appellant ente red no-contest pleas to the two charges. At the plea hearing, appellant indicated that , although he agreed to enter no- contest pleas, he did not believe that the facts sufficiently established the offense of obstructing official business. {¶ 4} At the change of plea hearing, the prosecu tor offered Lieutenant Barber’s report as the explanation of circumstances. The report states:

On November 5 th , 2017, at zero thirty-two hours while patrolling in the area of 134 Mill Street, I observed a male la ter identified as 54 year old Patrick N. Harris with an open container of beer, Re d Stripe, tucked under his right arm. I also observed a female with an open contai ner of wine * * * standing next to Mr. Harris, later identified as 22 year old Kaitlyn A. Harris. I asked Mr. Harris to

turn around so I could remove the bottle from under his arm. Mr. Harris looked at me and said, no. I then informed Mr . Harris that he was in possession of an open container. He handed it to his son and said, throw this out and throw it inATHENS, 18CA4 3 the grass. Mr. Harris then told Ms. Harris and his son to leave the area. I

informed Mr. Harris that Ms. Harris was not to leave, and she was also containing [sic] an open container, and if she attempted to leave sh e would be arrested. Mr. Harris again told both to leave and wa s placed under arrest for obstruction of official business. While placing Mr. Harri s in handcuffs, he a ttempted to ask his son to intervene in the arrest, and his s on said, what am I supposed to do? Mr. Harris then stated, you are making a bi g mistake, I was a judge, and you can’t arrest me. While near the patrol car, Mr. Harris shoved backwards attempting to knock me off balance and said, go, now, leave now, speaking to Ms. Harris. I then called for backup and ordered Ms. Ha rris to place her hands on the back of my patrol car. Ms. Harris refused and sa id, what do I do? Mr. Harris again told Ms. Harris to leave. I again ordered Ms. Harris to place her hands on my patrol

car and to not leave or she would also be arrested for obstruction. Ms. Harris then turned around and walked away in the direction of Stewart Street. I informed arriving officers to place Ms. Harris under arrest for obstruction of

official business. Both were trans ported back to OUPD for processing.” {¶ 5} Following the prosecutor’s explanation of circumstances, appellant entered no-contest pleas to both charges, and the trial court found appella nt guilty as charged. This appeal followed. {¶ 6} In his sole assignment of error, appellant asserts that the prosecution’s explanation of circumstances did not sufficiently establish the essential elements of th e offense of obstructingATHENS, 18CA4 4 official business. In particular, he contends that the facts fail to show that he committed an affirmative act, or that his conduct actually interfered with the o fficer’s investigation.

A {¶ 7} Generally, appellate c ourts conduct a de novo review of a trial court’s finding of guilt pursuant to a no-contest plea in a misdemeanor case. State v. Erskine , 2015-Ohio-710, 29 N.E.3d 272 (4 th Dist.), ¶ 10, citing Cuyahoga Falls v. Bowers , 9 Ohio St.3d 148, 150, 459 N.E.2d 532 (1984). In the case sub judice we therefore independently review wh ether the trial court properly accepted appellant’s no-contest plea. Id.

B {¶ 8} R.C. 2937.07 governs no-contest pleas in mis demeanor cases. Th e statute states that a no-contest plea to a misdemeanor offense constitutes “an admission of the truth of the facts alleged in the complaint.” The statute further provides that the trial court “may make a finding of guilty or not guilty from the explanation of the circumstances of the offense.” This explanation-of-circumstances requirement ensures that the prosecution establishes all of the

essential elements of a misdemea nor offense and prevents the tria l court from finding a defendant guilty in a “‘perfunctory fashion.’” Bowers , 9 Ohio St.3d at 150, quoting Springdale v.

Hubbard , 52 Ohio App.2d 255, 259-260, 369 N.E.2d 808 (1st Dist.1977). Accordingly, the explanation of circumstan ces “‘”serves as the evidence upon whic h the trial court is to base its finding of guilty or not guilty.”’” Euclid v. Cannon , 8th Dist. No. 105733, 2018-Ohio-286, 105 N.E.3d 481, 2018 WL 565496, ¶ 6, quoting State v. Schornak , 2d Dist. Greene No. 2014-CA-59, 2015-Ohio-3383, 41 N.E.3d 168, ¶ 7, quoting State v. Steward , 2d Dist. Montgomery No. 19971, 2004 WL 1352628, *1–2 (June 10, 2004). A defendant has a substantive right to an acquittal ifATHENS, 18CA4 5 the explanation of circumstances fails to establish all of the essential elements of the offense.

Bowers , 9 Ohio St.3d at 150; e.g., Cannon at ¶ 6; Erskine at ¶ 11. {¶ 9} Although R.C. 2937.07 does not define “explan ation of the circumstances,” courts have held that “the explanati on ‘necessarily involves, at a min imum, some positive recitation of facts which, if the court finds them to be true, would permit the court to enter a guilty verdict and a judgment of conviction on the charge to which the accused has offered a plea of no contest.’”

Cannon at ¶ 7, quoting State v. Keplinger , 2d Dist. Greene No. 98–CA–24, 1998 WL 864837, *3 (Nov. 13, 1998); accord State v. Czech , 6th Dist. Lucas No. L-13-1141, 2015-Ohio-458, ¶ 18. The explanation, therefore, must be more than a bare recitation of the elements of the offense charged. Id.

C {¶ 10} R.C. 2921.31(A) contains the essential elem ents of the offense of obstructing

official business. Th e statute 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, sh all do any act that hampers or impedes a public official in the performance of the public official’s lawful duties. {¶ 11} A trial court may find a defendant guilty of obstructing official business, pursuant to a misdemeanor no-contest plea, when the explan ation of circumstances es tablish five essential elements: “(1) an act by the defendant, (2) done w ith the purpose to prevent, obstruct, or delay a public official, (3) that actually hampers or imped es a public official, (4) while the official is acting in the performance of a lawful duty, and (5) the defendant so acts without privilege.”ATHENS, 18CA4 6

State v. Kates , 169 Ohio App.3d 766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 21 (10th Dist.) (citations omitted). {¶ 12} In the case sub judice, appellant argues that the prosecution’s explanation of circumstances did not sufficiently establish that he (1) committed an act, (2) that hampered or impeded the officer’s performance of his lawful dutie s. Appellant claims that he did not engage in any affirmative acts, but rather, he simply re fused to provide informa tion. Appellant further asserts that, even if he engaged in an affirm ative act, his conduct did not actually hamper or impede the officer’s perform ance of his lawful duties. Appella nt contends that none of his acts prevented the officer from successfully concluding the investigation. A ppellant observes that the officer ultimately arrested both appellant and appellant’s daughter. Appellant thus claims that none of his actions actually hampered or impeded the officer.

1 {¶ 13} R.C. 2921.31 recognizes that “[c]omplet e and honest cooperation with the law enforcement process by all citizens is essential to the effective operation of the justice system.” State v. Lazzaro , 76 Ohio St.3d 261, 667 N.E.2d 384 (1996) (construing R.C. 2921.31(A) and 2921.13(A)(3)). However, R.C. 2921.31 “criminalize[s] only affirmative acts, not the failure to

act.” State v. Certain , 2009–Ohio–148, 905 N.E.2d 1259, ¶ 12 (4th Dist.), citing State v. May , 4th Dist. Highland No. 06CA10, 2007–Ohio–1428, fn. 5; accord State v. Newsome , 4 th Dist. Hocking No. 17CA2, 2017-Ohio-7488; State v. Wellman , 173 Ohio App.3d 494, 2007–Ohio–2953, 879 N.E.2d 215, ¶ 10; State v. Grooms , 10th Dist. Franklin No. 03AP–1244, 2005–Ohio–706, ¶ 18. Thus, a refusal to provide re quested information to a law enforcement officer, without more, does not vi olate the obstruction statute. Cleveland Hts. v. Lewis , 187ATHENS, 18CA4 7 Ohio App.3d 786, 2010-Ohio-2208, 933 N.E.2d 1146 (8th Dist.), ¶¶ 36-37. Instead, “a defendant must engage in some affirmative or overt act or undert aking that hampers or impedes a public official in the pe rformance of the offi cial’s lawful duties, as opposed to merely failing or refusing to cooperate or obey a poli ce officer’s request for information.” State v. Prestel , 2nd Dist. Montgomery No. 20822, 2005–Ohio–5236, ¶ 16. For example, courts have found that the following conduct constitutes an affirmative act under the obstruction statute: (1) “taunting”

officers in a “loud and boisterous manner” and pulling away during an arrest, State v. Greene , 9th Dist. Lorain No. 08CA009465, 2009-Ohio-2518, 2009 WL 1515367, ¶ 15; (2) “snatching” a driver’s license from an officer attempting to write an open container ticket, State v. Lester , 12th Dist. Butler No. CA2003-09-244, 2004-Ohio- 2909, 2004 WL 1239179, ¶ 49; (3) physically interfering with an officer’s attempt to i ssue citations for open container violations, State v. Daily , 4th Dist. Athens No. 97CA25, 1998 WL 18139, *1; (4) actively evading an officer, State

v. Newsome , 4 th Dist. Hocking No. 17CA2, 2017-Ohio-7488; (5) making a false statement, State

v. Novak , 4 th Dist. Gallia No. 16CA4, 2017-Ohio-455, 2017 WL 495603; (6) preventing officers from closing a police cruiser door, State v. Dunn , Pickaway App. No. 06CA6, 2006-Ohio-6550, 2006 WL 3575807, ¶ 47; (7) refusing officer’s instru ction to put down knife while pointing it at officer, State v. Neptune , 4 th Dist. Athens No. 99CA25, 2000 WL 502830 (Apr. 21, 2000); (8) fleeing after request to stop, State v. Certain , 180 Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d 1259 (4th Dist.); (9) “repeatedly yelling insults at the officers, purposefully distracting them from an arrest, and brandishing the pepper spray,” State v. Bryant , 9 th Dist. Summit No. 17547 (Aug. 28, 1996), *6; and (10) acting in “an antagonistic” manner, State v. Shoe , 3rd Dist. Shelby No. 17-17-22, 2018-Ohio-3006, 2018 WL 3621052, ¶ 21.[Cite as State v. Harris , 2018-Ohio-4316.] {¶ 14} In the case at bar, the prosecution’s explan ation of circumstances established that appellant did more than simply refuse to respond to the officer’s request to “turn around.” The officer informed appellant that appellant possessed an open container and asked appellant “to turn around so [the lieutenant] could remove the bottle from under [appellant’s] arm.” Rather than complying with the officer’s request, appe llant handed the container to his son. Thus, appellant did not simply refuse to obey the officer’s request to “turn around,” but, instead, affirmatively handed the container to another individual. Furthe rmore, appellant directed his daughter, whom the officer also suspected of possessing an open container, to flee the scene. The officer explicitly informed appellant that appellant’s daughter could not depart the area, yet appellant again told her to leave. Thus, appellant’s verbal instruc tion to his daughter to leave the area constituted an affirmative act of disobedience, not a mere failure to refuse to comply with the officer’s request. Again, appe llant directly contra vened the officer’s order that appellant’s daughter could not leave the ar ea. Moreover, when the officer arrested appellant, appellant

instructed his son to intervene and continued to advise his daughter to leave the scene. We therefore reject appellant’s a ssertion that his conduct constitute d a mere refusal to respond and that he did not engage in an affirmative act.

2 {¶ 15} Appellant next asserts that even if he engaged in an affirmative act, none of his actions actually hampered or impeded the officer’s investigation. Appellant first contends that even if telling his son to discard the container constituted an affirmative act, the explanation of

circumstances fails to reveal how this affirmative act hampered or impeded the investigation. Appellant also observes that the explanati on of circumstances di d not indicate whetherATHENS, 18CA4 9 appellant’s son actually discarded th e container, as appellant ordere d. Appellant thus claims that the explanation of circumstances fails to show that appellant’s alleged affirmative act adversely affected the officer’s investigati on. Appellant also argues that, ev en if advising his children to leave the scene of an active investigation constituted an affirmative act, the explanation of circumstances shows that his children did not, in fact, leave the scene. Because his children did not leave the scene, appellant reasons, his conduct did not act ually hamper or impede the officer’s investigation. Appella nt further points out that the officer ultimately successfully arrested both him and his daughter. {¶ 16} Many Ohio court decisions indicate that an obstructing official business conviction does not require that the defendant “be successf ul in preventing the officers from doing their job.” State v. Daily , 4th Dist. Athens No. 97CA25, 1998 WL 18139, *4; accord State v. Luke , 4th Dist. Washington No. 09CA30, 2010-Ohio-4309, 2010 WL 3532092, ¶ 15; State v. Bailey , 4th Dist. Hocking No. 09CA9, 2010-Ohio-213, 2010 WL 259082, ¶ 36; State v. Stayton , 126 Ohio App.3d 158, 709 N.E.2d 1224 (1st Dist. Hamilton 1998); State v. McCoy , Montgomery App. No. 22479, 2008-Ohio-5648, 2008 WL 4763231, ¶ 16 (s tating that defendant need not “cause the officers to fail in their duties, but only that, by acting, he disrupted their performance of them”). Rather, “the record must demonstr ate only that the defendant ’s conduct hampered or impeded the public official’s ability to perform his or her official duties.” Novak at ¶ 16 (citations omitted). That is not to suggest that every act that can conceivably be said to hinder a police officer rises to the level of criminal conduct. Certainly there is a level of hindrance that is simply too casual, remote , or indirect to be punishable under the statute. Although entitled to full resp ect of the badge and uniform in the execution of his or her duty, a police officer is expected to tolerate a certain levelATHENS, 18CA4 10 of uncooperativeness, especially in a free society in which the citizenry is not obliged to be either blindly or silently obeisant to law enforcement. Interference with the police by citizens must, therefore, be necessarily viewed as a continuum along which, at a certain point, the line is crossed. Stayton , 126 Ohio App.3d at 164. However, the obstruc ting official business statute thus “‘does not criminalize [every] minor delay, annoyance, irrita tion or inconvenience.’” State v.

Vitantonio , 2013-Ohio-4100, 995 N.E.2d 1291 (11th Dist.), ¶ 14, quoting Lakewood v. Simpson , 8th Dist. Cuyahoga No. 80383, 2002-Ohio-4086, 2002 WL 1824975. Instead, the statute

criminalizes conduct that causes “s ome substantial stoppage of the officer’s progress” or that makes the performance of an official duty “more difficult.” Wellman at ¶ 17; 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). {¶ 17} Additionally, courts that consider whethe r a defendant hampered or impeded an officer generally examine the tota lity of the defendant’s conduct. State v. Body , 2nd Dist. Montgomery No. 27732, 2018-Ohio-3395, 2018 WL 4050522, ¶ 22, citing State v. Overholt , 9th Dist. Medina No. 2905-M, 1999 WL 635717, *2 (Aug. 18, 1999) (finding defendant’s refusal to leave the scene, interference with an officer’s attempts to complete an arrest, and profane outbursts sufficiently establishe d defendant hampered or imped ed officer’s efforts), and North Ridgeville v. Reichbaum , 112 Ohio App.3d 79, 84, 677 N.E.2d 1245 (9th Dist.1996) (concluding multiple affirmative acts taken together can be sufficient to establish that defendant hampered or impeded officer’s lawful duties). Thus, when a defendant’s “overa ll pattern of be havior is one of resistance, * * * officers may consider the totality of the events and need not point to a singleATHENS, 18CA4 11

act that rises to the level of obstruction.” Lyons v. Xenia , 417 F.3d 565, 574 (6th Cir.2005), quoted in Body at ¶ 22. {¶ 18} In the case sub judice, we believe that the explanation of circumstances sufficiently shows that appellant ’s overall conduct actually hamper ed or impeded the officer’s official duties. Although a ppellant asserts that his conduc t did not actually prevent the lieutenant from concluding his inve stigation and arresting appellant and appellant’s daughter, we observe that the question under the obstruction stat ute is not whether a de fendant prevented an officer from completing an official duty, but rather whether the defendant made the officer’s performance of that dut y more difficult. See Wellman at ¶ 17. {¶ 19} In Novak , for example, we affi rmed the defendant’s c onviction for obstructing official business even though the defendant asserted that his c onduct did not prevent the officers from completing the official duty. The defendant argued that he could not be convicted under the obstruction statute when a false statement that he gave to the law enforcement officers did not actually hamper or impede their apprehension of a suspect. The defendant claimed that the officers ultimately apprehended the suspect and that his false statement did not, therefore, hamper or impede their efforts. We, however , rejected the defendant’s argument. We emphasized that the defendant’s conduct needed only to delay, impede or obstruct–and not completely prevent–the officers’ apprehension of the suspect to constitute a violation of the

statute. {¶ 20} For this same reason, we reject appella nt’s argument that his conduct did not actually hamper or impede the officer’s investig ation of the open-contai ner violations or the arrest of appellant a nd appellant’s daughter. Even thoug h the officer ultimately successfullyATHENS, 18CA4 12 arrested both appellant and hi s daughter, the officer noted that appellant hindered the investigation and arrests by advising his son to intervene in the arrest and by advising his daughter to leave the scene. The officer further not ed that appellant’s conduct required him to

contact other officers for assistance. See Overholt at *3 (determining that defendant’s actions sufficiently hampered or impeded officer when defendant’s conduct caused officer “to characterize the situation as high-risk and to f ear for his own safety a nd the safety of other officers on the scene”). {¶ 21} Moreover, appellant’s affirmative acts hampered or impeded the officer’s open-container investigation. Appellant’s act of handing th e open container to his son, combined with instructions to his daughter to leave the area, delayed the officer’s investigation into the alleged violation. Both actions inte rfered with the officer’s ability to investigate whether appellant and his daughter were, in fact, violating the statute. Even if the officer ultimately successfully complete d his investigation, appellant’s conduct neverthe less hampered or impeded the officer’s investigation. {¶ 22} Consequently, after our revi ew we believe that the prosecutor’s explanation of circumstances adequately shows that appellant committed an affirmative act, and that appellant’s act actually hampered or impeded the offi cer’s performance of hi s official duties.

D {¶ 23} Accordingly, based upon the foregoin g reasons, we overrule appellant’s assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.[Cite as State v. Harris , 2018-Ohio-4316.]

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Municipal Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted by the trial court or this court, it is temporarily c ontinued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allo w 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 pursuan t to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if th e 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 that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Hoover, P.J. & Harsha, J.: C oncur in Judgment & Opinion

For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.