[Cite as State v. Matthews, 2015-Ohio-5075.] 

Criminal Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and 

 Cause Remanded

Date of Judgment Entry on Appeal: December 9, 2015 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond T. Faller, Hamilton County Public Defender, and Josh Thompson, 

Assistant Public Defender, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

NATASHA MATTHEWS, 

 Defendant-Appellant. 

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: 

: 

: 

: 

APPEAL NO. C-140663 

TRIAL NO. C-14CRB-22241B 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

CUNNINGHAM, Presiding Judge. 

{¶1} Following a bench trial, defendant-appellant Natasha Matthews 

appeals from her conviction for resisting arrest, in violation of R.C. 2921.33. 

Matthews had persisted in yelling and cursing at her sister, Erika Higgins, after 

police officers had warned her to leave or face arrest. While we affirm the trial court’s 

finding of guilt, because the court did not afford Matthews the right of allocution 

before imposing sentence, we reverse the sentence, and remand the cause to the trial 

court for resentencing. 

{¶2} St. Bernard, Ohio police officers had responded to an emergency 

telephone call stating that two women were fighting. When they arrived, the officers 

found Matthews screaming at Higgins, just outside of Higgins’ residence. A number of 

persons, including children, had gathered to watch the altercation. After separating the 

two and speaking with each, the officers told Matthews that she needed to leave the 

residence. Despite being told four times to leave, and being warned that she faced arrest 

for disorderly conduct, Matthews refused to leave, and continued yelling at her sister and 

the officers. An officer then attempted to put Matthews under arrest. She struggled with 

the officer and tried to pull away from him when he attempted to place her in handcuffs. 

{¶3} Matthews was ultimately charged with misconduct at an emergency, in 

violation of R.C. 2917.13, and with resisting arrest. At trial, the court granted Matthews’ 

motion for a judgment of acquittal on the misconduct-at-an-emergency charge. After 

hearing the testimony of the arresting officers and of Matthews, the trial court found 

Matthews guilty of resisting arrest. At sentencing, the court sought mitigation from 

Matthews’ counsel, but it did not personally address Matthews and ask whether she 

wished to make a statement in her own behalf or to present any information in mitigation 

of punishment. The trial court stayed the imposition of its sentence, including a 

suspended jail term and a six-month period of community control. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶4} In her first assignment of error, Matthews asserts that the trial court 

lacked jurisdiction to proceed because the criminal complaint initiating the 

resisting-arrest charge against her had not included the numerical designation of 

the applicable statute and had misnamed Matthews, referring to her in one of three 

places on the face of the complaint as “Natasha Higgins.” We disagree. 

{¶5} First, Matthews has waived the misnaming issue, and it cannot form 

the basis of any claimed error on appeal. See State v. Payne, 114 Ohio St.3d 502, 

2007-Ohio-4642, 873 N.E.2d 306, ¶ 23. Matthews intentionally relinquished the 

issue when she brought it to the trial court’s attention and then indicated that she 

was ready to proceed despite the fact that the court “might have [had her name] as 

Higgins.” 

{¶6} Next, Crim.R. 3 provides that a complaint shall include the 

numerical designation of the applicable statute. But Matthews’ failure to raise this 

issue in the trial court forfeits all but plain error. Payne at ¶ 23. Since the omission 

of the numerical designation did not mislead Matthews in the preparation of her 

defense, any error in the complaint did not rise to the level of plain error. See

Crim.R. 52(B); see also State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C120571, 2013-Ohio-4775, ¶ 14-15. The first assignment of error is overruled. 

{¶7} In two interrelated assignments of error, Matthews challenges the 

weight and the sufficiency of the evidence adduced to support her conviction for 

resisting arrest. She argues that the state failed to prove that she had been lawfully 

arrested, and that her actions had constituted resistance against the police officers. 

{¶8} The offense of resisting arrest, defined in R.C. 2921.33(A), provides 

that, “[n]o person recklessly or by force shall resist or interfere with the lawful arrest 

of a person or another.” Although the arrest must be lawful, it is not necessary for 

the state to prove that the defendant was in fact guilty of the offense for which the 

arrest was made to uphold a conviction for resisting arrest. See State v. Thompson, 
OHIO FIRST DISTRICT COURT OF APPEALS

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116 Ohio App.3d 740, 743, 689 N.E.2d 86 (1st Dist.1996); see also State v. 

Sansalone, 71 Ohio App.3d 284, 285, 593 N.E.2d 390 (1st Dist.1991). 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. See Thompson at 743-

744. 

{¶9} Our review of the record fails to persuade us that the trial court, acting as 

the trier of fact, clearly lost its way and created such a manifest miscarriage of justice that 

the conviction must be reversed and a new trial ordered. See State v. Thompkins, 78 

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The state adduced ample evidence that the 

officers had observed a loud altercation between the sisters, and that after the officers had 

repeatedly asked Matthews to leave or face arrest, she persisted in yelling and cursing. 

These actions would cause a reasonable police officer to believe that Matthews had 

engaged in disorderly conduct, an arrestable offense under R.C. 2917.11(E)(3)(a). The 

officers’ testimony also revealed that Matthews had pulled away from the officer 

attempting to take her into custody. Since the weight to be given to the evidence in this 

case and to the credibility of the witnesses was for the trial court, sitting as the trier of 

fact, to determine, it was entitled to reject Matthews’ theory that the arrest had not been 

lawful and that she had not resisted arrest. See R.C. 2921.33(A); see also State v. 

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. 

{¶10} Moreover, the record reflects substantial, credible evidence from which 

the trier of fact could have reasonably concluded that all elements of the resisting-arrest 

offense had been proved beyond a reasonable doubt, including that Matthews’ disorderly 

conduct had persisted after the officers had warned her to leave or face arrest. See R.C. 

2921.33(A); see also State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 

996, ¶ 36. The second and third assignments of error are overruled. 

{¶11} In her fourth assignment of error, Matthews asserts that the trial court 

erred by denying her the right of allocution before it imposed the sentence. We agree. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶12} When imposing sentence, the trial court must address the defendant 

personally and ask whether she wishes to make a statement in her own behalf or present 

any information in mitigation of punishment. See Crim.R. 32(A)(1); see also State v. 

Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d 1208 (2000). The right of allocution 

belongs to the defendant herself. See State v. Thompson, 1st Dist. Hamilton No. C120516, 2013-Ohio-1981, ¶ 5. It is not enough for the trial court to give defense counsel 

the opportunity to speak on the defendant’s behalf. See Green at 359-360. 

{¶13} If a trial court imposes sentence without first asking the defendant if she 

wants to exercise the right of allocution, resentencing is required unless the error is 

invited error or harmless. See State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 

(2000), paragraph three of the syllabus. Here, the trial court failed to address Matthews 

personally and ask her if she wished to make a statement in her own behalf or to present 

any information in mitigation of punishment before imposing sentence. This was error, 

and the unusual circumstances that could render the error harmless are not present in 

this case. See State v. Osume, 1st Dist. Hamilton No. C-140390, 2015-Ohio-3850, ¶ 24; 

compare State v. Reynolds, 80 Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998). Since 

Matthews was not afforded an opportunity to speak in mitigation before the trial court 

imposed sentence, we sustain the fourth assignment of error. See Osume at ¶ 24. 

{¶14} Matthews’ fifth assignment of error, in which she alleges that she was 

denied a fair trial because of the cumulative effect of the errors in the case, is overruled. 

Since Matthews’ trial was not infected with multiple instances of harmless error, 

the cumulative-error doctrine does not apply. See State v. Leach, 150 Ohio App.3d 567, 

2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st Dist.); see also State v. Yarbrough, 104 Ohio 

St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 112. 

{¶15} Having sustained her fourth assignment of error, we reverse Matthews’ 

sentence, and we remand the cause to the trial court for resentencing in accordance with 
OHIO FIRST DISTRICT COURT OF APPEALS

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this opinion and the law. See Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178, at 

paragraph three of the syllabus. We affirm the trial court’s judgment in all other respects. 

Judgment affirmed in part, reversed in part, and cause remanded. 

DEWINE andSTAUTBERG,JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.