[Cite as State v. Willey,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2014CA00222 : BRANDI L. WILLEY : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, case no. 2014 CRB 02074

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 2, 2015

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOSEPH MARTUCCIO GEORGE URBAN CANTON CITY LAW DIRECTOR 116 Cleveland Ave. NW - Ste. 808 ANTHONY J. FLEX Canton, OH 44702 218 Cleveland Ave. SW Canton, OH 44702 Stark County, Case No. 2014CA00222 2

Delaney, J.

{¶1} Appellant Brandi L. Willey appeals from the November 10, 2014 Judgment

Entry of the Canton Municipal Court. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on May 24, 2014, Memorial Day, shortly before 9:00 p.m.

{¶3} Ptl. Branden Allensworth of the Louisville Police Department was on

routine patrol when he noticed a woman with a baby in the neighborhood around 501

North Mill Street, Constitution Township, Louisville. Allensworth also noticed a man

standing with the woman in the road.

{¶4} About five minutes later, a woman called 911 to report an incident at the

501 North Mill address: a woman was "choking out" a man on the front porch and the

caller could see two men fighting inside the residence. The caller was a neighbor

identified as Chastity Herbert. Herbert's residence is a few hundred feet from 501 North

Mill Street, appellant's residence. Herbert said the female assailant had a baby with

her.

{¶5} Ptl. Allensworth responded because he was already nearby. Herbert

flagged him down from her yard and identified the assailant as "Nicky." She also

provided a physical description of "Nicky."

{¶6} Allensworth and Ptl. Mehl proceeded to the 501 North Mill address where

they found two women sitting on the front porch. One of the women was appellant

Brandi L. Willey and the other woman was later identified as "Tiffany." Allensworth

thought appellant might "Nicky" because she matched the description but her

companion did not. Allensworth also initially thought he recognized appellant as the Stark County, Case No. 2014CA00222 3

woman he saw walking with a baby earlier. From the sidewalk, the officers asked

appellant's name and she refused to tell them. The officers stated they were there to

investigate a domestic situation; appellant stated they were having a party and there

was no trouble. Through the glass front door, Allensworth could see and hear children

inside the house upset and crying. He didn't see any males.

{¶7} Appellant continued to insist police had no reason to be there and

repeatedly said she had no information about any domestic violence complaint.

Eventually appellant told police her name but otherwise remained uncooperative. When

Tiffany attempted to interject, appellant told her she "had it handled" and instructed her

to go in the house and take care of the kids. Tiffany went inside to check on the

children and when she was unable to comfort them, appellant asked whether she could

go in to check on them. Officers permitted her to enter the house to check on the

children then she came back out to the porch.

{¶8} Allensworth could not confirm whether a domestic violence incident

occurred and whether everyone was safe. Lt. Fenstemaker, a supervisor, was called to

the scene. His objective upon arrival was to speak to everyone present and figure out

what happened; he knew there were young children inside the house and he wanted to

make sure everyone was safe. Fenstemaker described his interaction with appellant as

"difficult" and "emotionally charged" because she refused to answer his questions,

interrupted him, and continually spoke over him, leading to his warning that he would

soon have no choice but to place her under arrest.

{¶9} The chaos escalated when appellant's boyfriend Jerry Wright came out of

the house onto the porch. Wright insisted no one had to give police any information and Stark County, Case No. 2014CA00222 4

was immediately belligerent with officers, who handcuffed him for safety as appellant

screamed they had no right to arrest him. Fenstemaker testified that the scene

"erupted" when Wright came out of the house yelling and screaming; appellant stood up

and screamed as Wright was cuffed for officer safety. She and Wright yelled back and

forth to each other not to tell officers anything. As Fenstemaker cuffed appellant, she

yelled for "Eric" and continued yelling until she was placed in a patrol car.

{¶10} Once the scene was under control, two men came out of the house and

told officers "Nicky" had been there earlier but left before police arrived, and a male fled

from the back door of the residence upon the officers' arrival. One of the men, "Eric,"

acknowledged there had been a "domestic incident" between Nicky and a man named

Dustin.

{¶11} The officers testified appellant was arrested for obstructing official

business because she would not give them any information or respond to their

questions; she also prevented Tiffany from speaking and hindered the investigation into

the domestic violence allegations.

{¶12} The record includes a video of most of the interaction between appellant,

Tiffany, Wright, and police, including the minutes leading up to her arrest. (State's

Exhibit 1).

{¶13} Appellant was charged by criminal complaint with one count of obstructing

official business pursuant to R.C. 2921.31(A), a misdemeanor of the second degree.

Appellant entered a plea of not guilty and filed a motion to suppress challenging officers'

entry onto the front porch of her residence. The trial court overruled the suppression

motion by judgment entry on September 12, 2014 and the case proceeded to trial by Stark County, Case No. 2014CA00222 5

jury. The trial court overruled appellant's motions for a Crim.R. 29(A) judgment of

acquittal. Appellant was found guilty as charged. The trial court imposed a jail term of

90 days with all 90 suspended on the conditions of appellant's good behavior for 2 years

and completion of 50 hours of community service.

{¶14} Appellant not appeals from the judgment entry of her conviction and

sentence, and by incorporation the judgment entry overruling her motion to suppress.

{¶15} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶16} "I. THE APPELLANT'S CONVICTION FOR ONE COUNT OF

OBSTRUCTING OFFICIAL BUSINESS IN VIOLATION OF R.C. 2921.31 WAS

AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

{¶17} "II. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S

MOTION TO SUPPRESS, VIOLATING HER FOURTH AND FOURTEENTH

AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES."

ANALYSIS

I.

{¶18} In her first assignment of error, appellant argues her conviction upon one

count of obstructing official business is against the manifest weight and sufficiency of

the evidence. We disagree.

{¶19} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins,

,

,

, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, Stark County, Case No. 2014CA00222 6

,

(1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “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. The relevant inquiry

is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.”

{¶20} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶21} Appellant was convicted upon one count of obstructing official business

pursuant to R.C. 2921.31(A), which states: "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."

Appellant argues her failure to cooperate with police cannot rise to the level of Stark County, Case No. 2014CA00222 7

obstructing official business. Having reviewed the record of this case including the

videotape of appellant's actions, we disagree.

{¶22} The officers' "official business" was to investigate the allegations made by

Herbert. When appellant refused to provide information and prevented Tiffany from

providing any, the focus shifted to appellant. Her obstreperous behavior constituted an

“act” within the meaning of the statute. "[Her] persistence in disregarding [the officers']

orders was sufficient evidence from which a rational trier of fact could conclude that

[she] acted with the specific intent to prevent, obstruct, or delay [the officers] in [their]

lawful duties." State v. Shepherd, 5th Dist. Richland No. 14CA63,

; see also, State v. Friedman, 5th Dist. Stark No. 2013CA00150,

; State v. Brooks, 5th Dist. Knox No. 06CA000024,

. Having

listened to the audio of appellant's obnoxious responses to the officers' inquiries, it is

evident she hampered and impeded the investigation.

{¶23} In

we agreed with the Twelfth District Court of Appeals'

rationale in State v. Florence finding that interference with an investigation under similar

circumstances rises to the level of obstructing official business:

"For the purposes of an affirmative act, we have previously found

that moving away from officers, subjecting officers to verbal abuse,

and physically resisting officers was sufficient to convict a

defendant of obstructing official business. State v. Merz, 12th Dist.

Butler No. CA97–05–108,

(July 31, 2000).

Additionally, a defendant's volume and demeanor making it

impossible to investigate a complaint has been found sufficient to Stark County, Case No. 2014CA00222 8

constitute an act for an obstructing official business conviction. City

of Warren v. Lucas, 11th Dist. Trumbull No. 99–T–0019,

(May 19, 2000)."

State v. Shepherd, 5th Dist. Richland No. 14CA63,

, citing State v. Florence, 12th Dist. Butler No. CA2013-08-

148,

.

{¶24} Appellant 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. Appellant characterizes her failure to

cooperate with the officers' inquiry as an "omission" not covered by the offense of

obstructing official business, but we find she acted affirmatively by making it impossible

to investigate the complaint. Appellant repeatedly talked over the officers as they

attempted to confirm or negate the domestic violence allegations. We note the video

supports the officers' uncontroverted testimony about chaos ensuing as they attempted

to evaluate the circumstances of the children audibly screaming in the background. The

audio also includes Wright's belligerent interaction with police and culminates in

appellant screaming incoherently.

{¶25} We conclude appellant's conviction upon one count of obstructing official

business is supported by sufficient evidence and is not against the manifest weight of

the evidence.

{¶26} Appellant's first assignment of error is overruled.

II. Stark County, Case No. 2014CA00222 9

{¶27} In her second assignment of error, appellant argues the trial court should

have granted her motion to suppress. We disagree.

{¶28} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long,

,

(4th Dist. 1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks,

,

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf,

,

(4th Dist. 1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams,

,

(4th Dist. 1993),

overruled on other grounds.

{¶29} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning,

,

(1982); State v. Klein,

,

(4th Dist. 1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See,

Finally, an appellant may argue the trial court has incorrectly decided the Stark County, Case No. 2014CA00222 10

ultimate or final issues raised in a motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court’s conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry,

,

(8th Dist. 1994).

{¶30} Here, appellant's argument is twofold: police had no basis to continue their

investigatory "stop" of appellant absent a reasonable suspicion of criminal behavior, and

their presence on appellant's front porch constituted an entry upon the curtilage of her

property in violation of the Fourth Amendment prohibition against unreasonable search

and seizure. We disagree with appellant's characterization of the facts of appellant's

interaction with police.

{¶31} As we have observed, the law within the State of Ohio recognizes three

types of police-citizen encounters: consensual encounters, Terry stops, and arrests.

State v. Stonier, 5th Dist. Stark No. 2012 CA 00179, 2013–0hio–2188, ¶ 41, citing State

v. Taylor,

, 747–749,

(2nd Dist. 1995). A

consensual encounter occurs when a police officer approaches a citizen in public,

engages that person in conversation, requests information, and that person is free to

refuse to answer and walk away.

A consensual encounter does not implicate the

Fourth Amendment's protection unless the police officer has in some way restrained the

person's liberty by a show of authority or force such that a reasonable person would not

feel free to decline the officer's request or otherwise terminate the encounter.

. An officer's request to examine a person's identification or search a

person's belongings does not make an encounter nonconsensual. Florida v. Rodriguez, Stark County, Case No. 2014CA00222 11

, 4–6,

(1984); Florida v. Bostick,

,

(1991).

{¶32} A Terry stop is an investigatory detention. Such a stop is valid if the officer

has reasonable and articulable suspicion of criminal activity.

. For such a

stop to be valid, the officer must be able to point to specific facts when coupled with

reasonable inferences from those facts to reasonably warrant the intrusion. The stop

“must be viewed within the totality of the circumstances” presented to the officer at the

time. State v. Freeman,

,

, (1980), paragraph one of

syllabus. “An officer need not shrug his shoulders at suspected criminal activity because

he lacks probable cause to arrest; rather a brief stop of a suspicious individual, in order

to determine his identity or to maintain the status quo while obtaining more information

may be reasonable in light of the facts known to the officer at the time.” Freeman, at

295–296; citing Adams v. Williams,

, 145–146,

(1972)

(internal citations omitted).

{¶33} Appellant characterizes her entire interaction with police as a Terry stop,

although we note the interaction began as a consensual encounter and became an

inquiry focused upon appellant due to her refusal to answer even the most basic

questions. Appellant relies upon our decision in State v. Isles to support her argument

that the officers' investigatory "stop" of her had to cease absent reasonable suspicion of

criminal behavior. 5th Dist. Stark No. 2005CA000173,

. The facts of

Isles are not comparable to the facts here; appellant ignores the escalating "chaos" she

initiated and contributed to. In Isles, we noted the facts established the defendant's

benign conduct and did not support a reasonable suspicion of criminal behavior: "When Stark County, Case No. 2014CA00222 12

questioned by the police, appellant identified himself, albeit incorrectly, and was

cooperative. * * * *. There was no action on appellant's part that could lead to

reasonable suspicion of criminal behavior. Appellant's only act was to identify himself

and admit [another person present at the scene] was his cousin. * * * *."

, citations omitted. In the instant case, appellant's refusal to

cooperate, her silencing of Tiffany, and her increasingly frenzied conduct upon Wright's

involvement is not comparable to the defendant's conduct in Isles and instead supports

the officers' reasonable suspicion of criminal behavior.

{¶34} Appellant also relies upon Florida v. Jardines as authority for her

argument that police could not enter upon her porch; that case generally stands for the

proposition that the government's use of trained police dogs to investigate the home and

its immediate surroundings ("curtilage") is a “search” within the meaning of the Fourth

Amendment. Florida v. Jardines,

,

(2013).

The trial court found Jardines to be inapplicable to the instant case and we agree. The

testimony at the suppression hearing established the officers spoke to appellant from

their position on the sidewalk. T. 7. At trial, Fenstemaker testified it was only when

Wright came out of the house yelling and screaming that the "scene erupted" and

Allensworth and Mehl entered upon the porch to speak to Wright and control the scene.

Appellant does not explain how Jardines is relevant to these facts.

{¶35} The trial court did not err n overruling appellant's motion to suppress and

her second assignment of error is therefore overruled. Stark County, Case No. 2014CA00222 13

CONCLUSION

{¶36} Appellant's two assignments of error are overruled and the judgment of

the Canton Municipal Court is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.