[Cite as State v. Tsibouris,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-120414 C-120415 Plaintiff-Appellant, : TRIAL NOS. C-11CRB-37372A&B

vs. : O P I N I O N. DENISE TSIBOURIS, :

Defendant-Appellee. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: June 18, 2014

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

William F. Oswall, Jr., for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Defendant-appellee Denise Tsibouris appeals her convictions for

resisting arrest, a second-degree misdemeanor, and disorderly conduct, a fourth-

degree misdemeanor, following a jury trial. The jury acquitted her of menacing.

{¶2} On appeal, she argues that (1) the trial court committed plain error

in instructing the jury on resisting arrest; (2) the court committed plain error in

convicting and sentencing her for fourth-degree-misdemeanor disorderly conduct

when the jury instructions and verdict form did not reference the aggravating

elements necessary to elevate the offense to a fourth-degree misdemeanor; and (3)

her trial counsel was ineffective for failing to object to these errors and to the

admission of prejudical testimony.

{¶3} We conclude that the trial court erred as a matter of law in

convicting and sentencing Tsibouris for fourth-degree-misdemeanor disorderly

conduct, when the jury instructions and verdict form only referenced minor-

misdemeanor disorderly conduct. We affirm the trial court’s judgments in all other

respects.

The Jury Trial

{¶4} At trial, the state presented the following evidence. On December 1,

2011, Colerain Township Police Sergeant Scott Owen was working as part of a

robbery task force. He was dressed in plainclothes and patrolling neighborhoods in

an unmarked car with Detective Hendricks, when he observed what he thought was

an unoccupied car on Niagara Street parked behind a marked patrol car. When the

car’s lights suddenly came on and the car made a U-turn, Sergeant Owen followed

the car and radioed in the license plate number. Upon learning that the license plate

had a warrant for menacing attached to it, he radioed for a uniformed officer to make

2 OHIO FIRST DISTRICT COURT OF APPEALS

a traffic stop. But before that could happen, the car pulled into the parking lot of a

Kroger store on Colerain Avenue. The driver exited from the vehicle and walked into

the store.

{¶5} Sergeant Owen saw Officer Stockmeier, who just happened to be

driving through the parking lot on his regular patrol, and asked Officer Stockmeier to

assist him in stopping the driver, who was entering the store. As the three officers

entered the Kroger store, they ran into Officer Hussel, who was in uniform working

an off-duty detail. Together, they approached the driver in front of the customer

service desk. Sergeant Owen asked the driver if her name was “Denise.” She asked

Sergeant Owen, “Why do you want to know?”

{¶6} He explained that the vehicle from which she had just exited had a

menacing warrant attached to it for a person named “Denise.” She eventually said,

“yes” that her name was Denise, and she even told the officer how to pronounce her

last name―Tsibouris. Sergeant Owen explained to her that they needed to go out to

Officer Stockmeier’s patrol car. She told the officers that she was not going outside

with them.

{¶7} Officer Stockmeier then placed handcuffs on Tsibouris. As the

officers were escorting her out of the store, Tsibouris began screaming for help and

shouting racial slurs at the officers. They called for a female officer from Mount

Healthy to come to the scene to search Tsibouris. As they waited by the police car for

the female officer to arrive, Tsibouris continued to scream and yell. Sergeant Owen

and Officer Stockmeier told her repeatedly to calm down, and explained that it was

only a misdemeanor warrant, but Tsibouris continued to scream and call the officers

names.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶8} When a crowd of people began forming in the parking lot, the

officers attempted to put Tsibouris inside the police cruiser. Tsibouris refused to get

inside the cruiser despite being told several times that she was under arrest. Once

the officers got her onto the back seat, she would not slide across the seat, so

Sergeant Owen had to eventually pull her through. Inside the cruiser, Tsibouris

continued to scream and yell racial slurs at the officers, and she kicked the window.

{¶9} Tsibouris, while handcuffed, took her right hand and put it into her

right front pocket. The officers testified that they had to get Tsibouris out of the

cruiser because they did not know what was in her hand. Tsibouris, however,

refused to get out of the cruiser and resisted all of the officers’ commands to open her

hand. So Sergeant Owen reached in to pull Tsibouris out of the vehicle. She kicked

him in the chest. Officer Stockmeier then sprayed mace at her, and the officers were

able to pull her out of the vehicle. Sergeant Owen then pried her hand open, but

there was nothing in it.

{¶10} Around this time, Officer Jamie Byrd arrived from Mount Healthy

and searched Tsibouris. Tsibouris began complaining of the effects of the mace and

was yelling profanities, despite Officer Byrd’s requests that she calm down. Tsibouris

then started complaining of chest pains. The life squad, which had already been

called, tried to examine Tsibouris, but her behavior was so disruptive that it was

difficult for the life squad to do its job. Officer Stockmeier subsequently transported

Tsibouris to the hospital where she was treated and released. He then took her to the

Hamilton County Justice Center.

{¶11} Tsibouris testified that while she was shopping at Kroger, she was

approached by two men in plainclothes, who questioned her about her identity. The

men told Tsibouris that they had a warrant for her arrest, and she should put her

4 OHIO FIRST DISTRICT COURT OF APPEALS

hands behind her back. She complied and was handcuffed. According to Tsibouris,

the officers then walked her out of the store, placed her against the police cruiser,

and vigorously frisked her. While she was in the police cruiser, she heard various

police officers at the scene begin to yell. They rushed the car where she was located

and threw open the doors while continuing to yell. She was scared, so she started

yelling and screaming for them to leave her alone as she tried to get over in the

corner of the vehicle. The officers maced her and pulled her out of the car to the

ground. The officers stepped on her neck and back. Her eyes, chest, and throat were

burning. Tsibouris felt that she had been assaulted. She began screaming for help.

Her chest started hurting and she requested an ambulance. When the ambulance

arrived, the officers took her out of the car and another female officer frisked her.

She was very upset because she had already been frisked. She was put into the

ambulance, and given towels so she could spit out the mace. She was then

transported to the hospital and the Justice Center.

Jury Verdict and Sentence

{¶12} The jury found Tsibouris guilty of resisting arrest and disorderly

conduct, but not guilty of menacing. At the conclusion of her jury trial on May 7,

2012, the trial court ordered that Tsibouris be held in jail without bond pending

sentencing. On May 18, 2012, the trial court sentenced Tsibouris to 90 days in jail

for resisting arrest and 30 days for disorderly conduct. The trial court ordered the

sentences to be served concurrently, and credited Tsibouris with the ten days she had

already served in jail. The trial court also ordered Tsibouris to pay a jury fee of $351.

{¶13} During the time that she was being held in jail pending sentencing,

Tsibouris filed a motion to stay her sentence in conjunction with her notice of appeal.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Following her sentencing hearing, however, Tsibouris withdrew the motion to stay

her sentence.

Tsibouris’s Appeal

{¶14} Tsibouris’s original appellate counsel submitted a no-error brief in

accordance with Loc.R. 16.2 and the procedures detailed in Anders v. California,

,

,

(1967). But because a transcript of the guilt-

or-innocence phase of trial was not filed until eight months after appointed counsel

had filed the first of three no-error briefs, and one day before submission for

decision, we concluded that counsel had failed to conduct a conscientious

examination of the case—an essential prerequisite to concluding that the proceedings

in the trial court were free from error—thus depriving Tsibouris of constitutionally

adequate representation on appeal. We, therefore, granted appointed counsel’s

motion to withdraw and appointed new appellate counsel to represent Tsibouris. See

State v. Tsibouris, 1st Dist. Hamilton Nos. C-120414 and C-120415,

.

{¶15} Tsibouris’s newly-appointed appellate counsel has filed two

separate briefs raising four assignments of error that allege: (1) Tsibouris’s

conviction for resisting arrest must be vacated due to an erroneous jury instruction;

(2) the trial court erred in convicting and sentencing Tsibouris for a fourth-degree-

misdemeanor charge of disorderly conduct; and (3) trial counsel was ineffective in

failing to object to the defective jury instructions, the verdict form for the disorderly-

conduct offense, the trial court’s imposition of a sentence for fourth-degree

disorderly conduct, and highly prejudicial testimony during the trial relating to the

menacing charge.

6 OHIO FIRST DISTRICT COURT OF APPEALS

Mootness

{¶16} Before we can address the merits of Tsibouris’s assignments of

error on appeal, we must first determine if her appeal is moot. Tsibouris argues that

even though she withdrew her motion to stay her sentence, her appeal is not moot

because she has involuntarily served only a portion of her sentence. She relies upon

the Ohio Supreme Court’s decision in City of Cleveland Heights v. Lewis,

,

,

. The state argues that because Tsibouris

had moved for a stay, but then later withdrew it, she has voluntarily served her

sentence and her appeal is moot.

{¶17} In State v. Harris,

,

(1st

Dist. 1996), this court held that a defendant’s appeal was not moot where the record

certified to this court did not demonstrate that “[the defendant] ha[d], in fact,

satisfied the sentence of incarceration meted out by the trial court.” Likewise, in the

case of In re Payne, 1st Dist. Hamilton No. C-040705,

, this

court held that a defendant’s appeal was not moot even though he had not filed a

motion to stay the trial court’s judgment, because the record did not affirmatively

demonstrate that he had paid his court costs or served a court-ordered work detail.

{¶18} Similarly here, our review of the record and the municipal court

docket shows that Tsibouris has involuntarily served only ten days of her 90-day jail

sentence and that she has not paid any of the $351 in jury fees imposed by the trial

court. See R.C. 2746.02(B) and 2947.23 (jury fees are imposed as part of the court

costs in a defendant’s criminal sentence). Even if Tsibouris had served her sentence,

because she has not paid the $351 in jury fees her case would not be moot. See State

v. Hoff, 5th Dist. Fairfield No. 02CA89,

, ¶ 12 (holding that the

defendant’s appeal was not moot because the record did not reflect that the

7 OHIO FIRST DISTRICT COURT OF APPEALS

defendant’s courts costs had been paid); see also State v. Carthon,

,

,

(2d Dist.) (holding a defendant’s

appeal was not moot where the appellate court had obtained information from the

Xenia Municipal Court, indicating that the defendant had remained on probation

and had not paid his fines or costs); State v. Alford, 2d Dist. Montgomery No. 25715,

, (holding that the defendant’s appeal was not moot where

a review of the Montgomery County Municipal Court’s on-line docket reflected that

the defendant had not paid the fine and court costs imposed); State v. Parrish, 2d

Dist. Montgomery Nos. 25050 and 25032,

(holding that when a

defendant has yet to pay his fine and costs, his appeal is not moot because there is

still some relief that can be granted on appeal). As a result, we cannot conclude that

Tsibouris’s appeal is moot. We, therefore, turn to the merits of her assignments of

error.

Jury Instructions

{¶19} Because Tsibouris’s first and third assignments of error are

interrelated, we address them together. In her first assignment of error, Tsibouris

argues that her conviction for resisting arrest must be vacated due to an erroneous

jury instruction. She argues that because disorderly conduct is an offense for which

an arrest is lawful only in narrow circumstances, and the jury was instructed only on

the minor-misdemeanor form of disorderly conduct, the following jury instruction

was improper: “You are instructed as a matter of law, that disorderly conduct is an

offense for which a person could be arrested.”

{¶20} In her third assignment of error, she argues that the trial court erred

in convicting her of disorderly conduct, as a fourth-degree misdemeanor, when the

jury was only instructed on the minor-misdemeanor form of the offense, and the

8 OHIO FIRST DISTRICT COURT OF APPEALS

verdict form failed to specify the degree of the disorderly-conduct offense or the

additional elements necessary to elevate the offense to a fourth-degree misdemeanor.

{¶21} Crim.R. 30 provides that “[o]n appeal a party may not assign as error

the giving or the failure to give any instructions unless the party objects before the

jury retires to consider its verdict, stating specifically the matter objected to and the

grounds of the objection. Opportunity shall be given to make the objection out of the

hearing of the jury.”

{¶22} During the course of Tsibouris’s trial, the court asked defense counsel

and the prosecuting attorney if they had had an opportunity to review the jury

instructions. Defense counsel told the court that he had reviewed the jury

instructions and had no issue with them. Further, defense counsel offered no

objection before the jury retired to consider its verdict as required by Crim.R. 30.

We, therefore, review Tsibouris’s arguments under a plain-error analysis. See State

v. Steele,

,

,

.

{¶23} The Ohio Supreme Court has held that when a jury instruction relieves

the state of its burden of proving an element of the offense, it violates the defendant’s

due-process rights. State v. Adams,

,

(1980).

However, for such an error to rise to the level of plain error, it must be prejudicial to the

appellant, in that that outcome of the trial clearly would have been different. See

; see also State v. Cooperrider,

,

(1983).

Notice of plain error is to be taken with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. State v. Long,

,

(1978), paragraph three of the syllabus. This court “must

review the jury instructions as a whole and the entire record to determine whether a

9 OHIO FIRST DISTRICT COURT OF APPEALS

manifest miscarriage of justice has occurred as a result of the error in the instructions.”

State v. Wamsley,

,

,

, ¶ 17.

Trial Court’s Instructions

{¶24} Here, the trial court provided the following instructions to the jury on

resisting arrest and disorderly conduct:

The Defendant is charged with resisting arrest. Before you can

find the defendant guilty, you must find beyond a reasonable doubt

that on or about the first day of December, 2011 and in Hamilton

County, Ohio, the Defendant recklessly resisted or interfered with the

lawful arrest of herself.

If you find the State proved beyond a reasonable doubt all the

essential elements of the offense of resisting arrest, your verdict

should be guilty.

If you find that the state failed to prove beyond a reasonable doubt

any one of the essential elements of the offense of resisting arrest,

your verdict must be not guilty.

{¶25} The trial court then provided the jury with definitions for “recklessly,”

“resist or interfere,” and “arrest.” The court went on to state that:

The state must prove the arrest was in the process of taking place

when the resistance or interference occurred.

Lawful arrest, you must also decide whether the arrest was lawful.

Warrantless arrest, an arrest is lawful if the offense for which the

arrest was being made was one for which the Defendant could be

arrested, and the arresting officer had authority to make the arrest at the

time and place where the alleged resistance or interference took place.

10 OHIO FIRST DISTRICT COURT OF APPEALS

And a reasonable police officer under the facts and circumstances

in evidence would have believed that the following elements of disorderly

conduct had been committed by the Defendant. To wit, recklessly caused

inconvenience, annoyance, or alarm to another by engaging in turbulent

behavior.

The State need not prove that the Defendant was, in fact, guilty of

the offense, but only that Police Officers Owen and Stockmeier had a

reasonable belief of Defendant’s guilty [sic].

You are instructed as a matter of law that disorderly conduct is an

offense for which a person could be arrested.

If you find that Police Officers Owen and Stockmeier were law

enforcement officers employed by Colerain Township Police Department,

and that the arrest took place in Colerain Township, you are instructed as

a matter of law that Police Officers Owen and Stockmeier had the

authority to make the arrest.

Next offense is disorderly conduct:

Defendant is also charged with disorderly conduct. Before you

can find the Defendant guilty, you must find beyond a reasonable doubt

that on or about the first day of December, 2011, in Hamilton County,

Ohio, the Defendant recklessly caused inconvenience, annoyance, or

alarm to another by engaging in turbulent behavior.

If you find that the State proved beyond a reasonable doubt all the

essential elements of the offense of disorderly conduct, your verdict must

be guilty.

11 OHIO FIRST DISTRICT COURT OF APPEALS

If you find that the State failed to prove beyond a reasonable

doubt any one of the essential elements of the offense of disorderly

conduct, your verdict must be not guilty.

The trial court then defined the terms “recklessly” and “risk.”

Resisting Arrest

{¶26} We first address Tsibouris’s arguments relating to the jury instruction on

resisting arrest. Resisting arrest is defined in R.C. 2921.33(A), which provides that, “No

person recklessly or by force shall resist or interfere with the lawful arrest of a person or

another.” A lawful arrest is an essential element of the crime of resisting arrest. State v.

Thompson,

,

(1st Dist. 1996); State v. Hendren,

,

(11th Dist. 1986). In order to show a lawful arrest,

the state must prove not only that there was a reasonable basis to believe an offense had

been committed, but also that the offense was one for which the defendant could be

lawfully arrested. See State v. Kuehne, 1st Dist. Hamilton No. C-940971, 1996 Ohio App

LEXIS 813, *7 (March 6, 1996); Thompson at 743-744. However, 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. Hurst, 1st Dist.

Hamilton No. C-880706, 1989 Ohio App LEXIS 4323, *3-4 (Nov. 22, 1989).

{¶27} Although the trial court instructed the jury that the underlying offense

for which Tsibouris had been arrested was disorderly conduct, the undisputed evidence

at trial was that the active menacing warrant against Tsibouris was the sole reason she

had been arrested by the police. While we recognize that Tsibouris was acquitted of the

menacing offense, it was not necessary for the state to prove that Tsibouris was in fact

guilty of menacing to uphold her conviction for resisting arrest. See State v. Hurst, 1st

Dist. Hamilton No. C-880706,

, *3-4 (Nov. 22, 1989). As a

12 OHIO FIRST DISTRICT COURT OF APPEALS

result, we cannot conclude that a manifest miscarriage of justice has occurred because of

the trial court’s erroneous jury instruction. We, therefore, overrule her first

assignment of error.

Disorderly Conduct

{¶28} Tsibouris also argues that the trial court erred in convicting and

sentencing her for fourth-degree-misdemeanor-disorderly conduct where the trial court

failed to instruct the jury on the additional elements that would have elevated her

conduct to a fourth-degree misdemeanor and failed to include the aggravating elements

or the degree of the offense on the verdict form signed by the jury. She contends that the

jury could have only found her guilty of disorderly conduct as a minor misdemeanor.

The state properly and professionally concedes this error―the disorderly conduct should

be amended to a minor misdemeanor.

{¶29} Tsibouris was charged by complaint with disorderly conduct in

violation of R.C. 2917.11(E)(3)(a), which provides that disorderly conduct is a

misdemeanor of the fourth degree if “* * * [t]he offender persists in disorderly

conduct after reasonable warning or request to desist.” The trial court, however, did

not instruct the jury that in order to find her guilty of disorderly conduct, it was

required to determine that Tsibouris had persisted in disorderly conduct after a

reasonable warning or request to desist. Because the jury was not instructed on the

additional elements that would have elevated Tsibouris’s conduct from a minor

misdemeanor to a misdemeanor of the fourth degree, it could not have found her guilty

of disorderly conduct as a misdemeanor of the fourth degree. See Mansfield v. Studer,

5th Dist. Richland Nos. 2011-Ohio-CA-93 and 2011-CA-94,

(holding that the defendant could not be sentenced for more than minor -

misdemeanor disorderly conduct where the complaint did not charge her with a

13 OHIO FIRST DISTRICT COURT OF APPEALS

fourth-degree misdemeanor and the jury was not instructed on such a charge); see

also City of Bedford v. Scott, 8th Dist. Cuyahoga No. 49658,

, *8 (Oct. 24, 1985).

{¶30} Likewise, the verdict form for disorderly conduct signed by the jury

provided only as follows: “We the jury in this case being duly impaneled and sworn, do

find the Defendant guilty of disorderly conduct, O.R.C. 2917.11(A).” The Ohio Supreme

Court has held that

pursuant to the clear language of R.C. 2945.75, a verdict form signed

by a jury must include either the degree of the offense of which the

defendant is convicted or a statement that an aggravating element has

been found to justify convicting a defendant of a greater degree of the

criminal offense.

State v. Pelfrey,

,

,

, syllabus; see State

v. McDonald,

,

,

. The court further

explained that the state cannot satisfy R.C. 2945.75 by presenting evidence establishing

the aggravating element at trial. Pelfrey at 426. The court concluded that the failure to

include such language in the verdict form amounts to plain error and, under R.C.

2945.75(B), the defendant may only be convicted of the least degree of the offense

charged. Id. See State v. Carthon,

,

,

(2d Dist.); State v. Floyd, 4th Dist. Lawrence No. 08CA33,

,

¶ 24-27. Accordingly, the guilty verdict constitutes a finding that Tsibouris is guilty of

the least degree of the offense charged, that being a minor misdemeanor.

{¶31} Because the trial court instructed the jury on only the minor-

misdemeanor form of disorderly conduct, and the verdict form failed to include the

aggravating elements or the degree of the offense, we agree with Tsibouris and the state

14 OHIO FIRST DISTRICT COURT OF APPEALS

that the trial court erred in sentencing her for disorderly conduct, as a fourth-degree

misdemeanor. We, therefore, sustain her third assignment of error.

Ineffective Assistance

{¶32} In her second and fourth assignments of error, Tsibouris argues that

her trial counsel was ineffective for a number of reasons. She argues that counsel

failed to object to the jury instructions, failed to object to the defective verdict form

for disorderly conduct, failed to move the trial court to amend the disorderly conduct

to a minor misdemeanor at sentencing, and failed to object to highly prejudicial

testimony during the trial relating to the menacing charge.

{¶33} To demonstrate ineffective assistance of counsel, Tsibouris must show

that her counsel’s representation fell below an objective standard of reasonableness

and that she was prejudiced by her counsel’s deficient performance. See Strickland

v. Washington,

,

,

(1984); State

v. Bradley,

,

(1989).

{¶34} Tsibouris first argues that her trial counsel was ineffective for failing

to object to the jury instruction on resisting arrest. But given our resolution of

Tsibouris’s first assignment of error, where we concluded that Tsibouris had been

lawfully arrested on the menacing warrant, Tsibouris cannot show that she was

prejudiced by her counsel’s failure to object to the instruction.

{¶35} Tsibouris next argues that counsel was ineffective for failing to object

to the defective verdict form for disorderly conduct and for failing to move the trial

court to amend the disorderly conduct to a minor misdemeanor at sentencing. But

because we concluded in our disposition of Tsibouris’s third assignment of error that

the trial court’s failure to instruct the jury on the additional elements that would

have elevated disorderly conduct to a fourth-degree misdemeanor and that the

15 OHIO FIRST DISTRICT COURT OF APPEALS

absence of such aggravating elements or degree of the offense from the verdict form

constitutes plain error, trial counsel’s failure to object to the verdict form actually

inured to Tsibouris’s benefit. See, e.g., State v. Goodwin, 9th Dist. Summit No.

23787,

(noting that the defendant’s failure to object to the

verdict form actually prejudices the state, not the defendant, and thus the defendant

need not object below to preserve the issue on appeal); see also Carthon,

,

,

(noting that a defendant is

better off because of his counsel’s failure to object to the verdict form because the

trial court may grant leave to correct the verdict form). Likewise, the trial court’s

error in sentencing Tsibouris for disorderly conduct, as a misdemeanor of the fourth

degree, is plain error that the trial court must correct on remand. As a result,

whether counsel was ineffective for not objecting to the error at the sentencing

hearing is rendered moot, and we need not address that issue in this appeal. See

App.R. 12(A)(1)(c).

{¶36} Finally, Tsibouris argues that her counsel was ineffective for failing to

object to her neighbors’ testimony relating to the menacing offense. Tsibouris,

however, cannot demonstrate any prejudice from the testimony because she was

ultimately acquitted of menacing and the state’s evidence on disorderly conduct and

resisting arrest arose from separate facts and was supported by the testimony of

three police officers. We, therefore, overrule her second and fourth assignments of

error.

Conclusion

{¶37} Having sustained Tsibouris’s third assignment of error, we reverse the

fourth-degree-misdemeanor disorderly-conduct conviction, and remand this cause

to the trial court to enter a judgment convicting her of minor-misdemeanor

16 OHIO FIRST DISTRICT COURT OF APPEALS

disorderly conduct and to sentence her accordingly. We affirm the trial court’s

judgments in all other respects. Judgments reversed in part, affirmed in part, and cause remanded.

HENDON, P.J, and DEWINE, J., concur.

Please note: The court has recorded its own entry this date.

17