[Cite as State v. Matthews,

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

STATE OF OHIO, : APPEAL NO. C-140663 TRIAL NO. C-14CRB-22241B Plaintiff-Appellee, :

vs. : O P I N I O N.

NATASHA MATTHEWS, :

Defendant-Appellant. :

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. OHIO FIRST DISTRICT COURT OF APPEALS

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.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶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,

,

,

. 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 C-

120571,

. 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.

OHIO FIRST DISTRICT COURT OF APPEALS

,

(1st Dist. 1996); see also State v.

Sansalone,

,

(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,

,

(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,

,

(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,

,

,

, ¶ 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.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶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,

,

(2000). The right of allocution

belongs to the defendant herself. See State v. Thompson, 1st Dist. Hamilton No. C-

120516,

. It is not enough for the trial court to give defense counsel

the opportunity to speak on the defendant’s behalf. See

.

{¶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,

,

(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,

;

compare State v. Reynolds,

,

(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,

,

,

(1st Dist.); see also State v. Yarbrough,

,

,

, ¶ 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

5 OHIO FIRST DISTRICT COURT OF APPEALS

this opinion and the law. See Campbell,

,

, 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 and STAUTBERG, JJ., concur.

Please note:

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

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