[Cite as State v. Gibson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-36 : v. : Trial Court Case No. 2017-CRB-3856 : REED AUSTIN GIBSON : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 22nd day of March, 2019.

...........

MARC T. ROSS, Atty. Reg. No. 0070446, and MATTHEW DIBARTOLA, Atty. Reg. No. 0088702, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorneys for Plaintiff-Appellee

VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, and AMANDA J. LANTZ, Atty. Reg. No. 0090540, 333 N. Limestone Street, Suite 202A, Springfield, Ohio 45503 Attorneys for Defendant-Appellant

............. -2-

FROELICH, J.

{¶ 1} Reed Austin Gibson appeals from his conviction in the Clark County

Municipal Court on a single count of obstructing official business. The judgment of the

trial court will be affirmed.

Factual and Procedural Background

{¶ 2} Shortly before 4:00 a.m. on October 31, 2017, Wittenberg University student

Dustin Thornton was awakened by the sound of two men fighting inside one of the other

apartments within the on-campus house where Thornton lived.1 Thornton heard one man

“yelling that he was going to kill the other one.” After the fighting had continued for several

minutes, Thornton went outside and knocked on the back door of the adjacent apartment.

Inside he heard someone calling for help. Thornton then returned to his own apartment

and called 911 to report the incident.

{¶ 3} At about 4:00 a.m. on that date, Officers Jordan Guillozet and Josh Thomas

of the Wittenberg University police division responded to the house. They contacted

Thornton, who described in more detail what he had heard. Using flashlights, the officers

then went to the front of the house, where Officer Guillozet observed a broken window in

a darkened first-floor bedroom, with “glass inside the residence” and what appeared to

be a person “on the bed * * * with their shirt ripped and * * * covered in blood.” Guillozet

also saw a knife on a coffee table next to that person, who later was identified as Gibson.

{¶ 4} Identifying themselves as “the police,” one officer called through the broken

1 According to Thornton, the two-story house contained two single apartments and one triple apartment; each apartment had a different street address. -3-

window while the other knocked on the front door in an effort to get someone inside the

apartment to respond. Gibson eventually arose, exposing a significant laceration on his

forehead. After some disjointed conversation through the window, during which Gibson

expressed reluctance to admit the officers into the apartment, Gibson “got up, shut the

lights off [on the porch and in the front hallway] and locked the deadbolt on the [front]

door” before returning to his bedroom.

{¶ 5} Concerned that Gibson and/or someone else in the house might have serious

injuries, the officers made several telephone calls, attempting to get authorization from

University officials to enter the house without the residents’ consent. During that process,

however, Gibson exited through the front door, holding a telephone on which he was

talking first to a dispatcher and later to a lieutenant with the Springfield police department.

Gibson asked that an officer from Springfield be sent to the scene to tell the Wittenberg

officers to leave. Officer Guillozet attempted to question Gibson to determine “if he

[Gibson] was okay” and “where the other person [involved in the fight] was,” but Gibson

was intoxicated, “uncooperative,” and “just wanted to plead the [F]ifth.” Officer Guillozet

testified that Gibson told the officers they “didn’t have a right to be there” and that “[i]f [the

officers] wanted to come in the house, [they] needed a search warrant.”

{¶ 6} During the trial, the State played video footage from the bodycams both

officers were wearing the night of October 31, 2017. That video recorded the following

exchange that took place shortly after Gibson exited the house:

Officer Guillozet: I’m going to go in the house.

***

[Gibson]: [on telephone] They’re, they’re going into my house right now. I -4-

do not give consent.

Officer Guillozet: Well, you’re bloody, you’re arguing with somebody

else . . .

[Gibson]: You have to have a search warrant.

Officer Guillozet: . . . so I have probable cause to get into the house.

[Gibson]: Sir, you have, no, you do not.

Officer Guillozet: Yes I do.

[Gibson]: No you do not. I, you have to have a search warrant for that. I

know my laws.

Officer Thomas: You obviously don’t because it’s called exigent

circumstances . . .

[Gibson]: No you . . .

Officer Thomas: . . . and there are . . .

[Gibson]: Okay.

Officer Thomas: . . . people in your house . . .

[Gibson]: Alright.

Officer Thomas: . . . and we’re going to . . .

[Gibson]: Alright.

Officer Thomas: . . . make sure they’re okay.

***

[Gibson]: You can go ahead.

Officer Thomas: So hang tight.

[Gibson]: Go ahead. You’re not . . . -5-

Officer Thomas: Hang tight. Hang tight

[Gibson]: You’re not going to, you’re, you’re not going [to] find anything.

***

(See Trial Exh. #2); (see also Trial Transcript (“Tr.”), pp. 91-92).

{¶ 7} While Guillozet checked for any other injured persons inside and to assure

that the interior of the apartment was secure, Thomas remained on the porch with Gibson,

who continued to be uncooperative and to invoke “the Fifth.” Officer Thomas also called

for medics to come assess the laceration on Gibson’s head.

{¶ 8} Inside the apartment, Officer Guillozet found blood pooled, spattered and/or

smeared on the hardwood floors, on the stairway and landing carpet, on walls, on interior

doors and door frames, and on the toilet, sink and bathroom floor. He also found blood

stains on the sheets and pillows in Gibson’s bedroom. Photographs of those bloodied

areas were presented to the jury. While walking through the space, Officer Guillozet

encountered another male student who appeared to be uninjured; that man confirmed

that he was a resident of the house. When the second student approached the front porch

where Gibson was being held, Gibson called him “Ben,” and repeatedly instructed the

second student to “plead the Fifth.”

{¶ 9} Meanwhile, Officer Guillozet found a third male, Matthew Bayler, upstairs in

the house. Bayler, who had a swollen nose and bruising and abrasions on and around

his face, confirmed that Gibson had caused his injuries, but said that they were friends

and that he (Bayler) did not want to press charges. Officer Guillozet radioed Officer

Thomas to check on the status of the medics, believing Bayler also needed medical

attention. -6-

{¶ 10} Still on the porch with Gibson, Officer Thomas was attempting to question

“Ben,” over Gibson’s repeated interjections. At that point, Gibson began to re-enter the

apartment, contrary to Officer Thomas’s instructions. Explaining his unwillingness to let

Gibson go inside, Thomas stated:

I only had one officer inside. [H]e [Officer Guillozet] didn’t know what all was

in the house yet. We did have a knife on the table. We didn’t know what

other weapons were in there. We didn’t know who else was involved, what

he [Officer Guillozet] was going into, and [Gibson] was keeping us from

figuring that out and I couldn’t have him going back inside with[, e]specially

with the knife we hadn’t secured yet.

(Tr., pp. 158-159).

{¶ 11} Thomas radioed Guillozet and requested his assistance downstairs on the

front porch. Officer Guillozet returned to the porch, where he found Gibson “halfway in

the door” and Officer Thomas telling Gibson to get back outside. When Gibson continued

to refuse to leave the house, Guillozet grabbed Gibson and ushered him back out to the

porch, where Thomas placed him in handcuffs.

{¶ 12} Medics from the Springfield Fire Division responded to the scene. They

examined Gibson’s head wound and determined that he needed further medical

treatment. They also examined Bayler and recommended that he be seen at the hospital

to check his complaints of head pain and possibly to have his split lip closed with stitches.

However, the medics did not want to transport Bayler in the same ambulance with Gibson,

who continued to be argumentative and uncooperative. Therefore, a second squad was

called to transport Bayler. -7-

{¶ 13} Gibson was charged with a single count of obstructing official business in

violation of R.C. 2921.31(A), a second-degree misdemeanor. During a jury trial on that

charge, Gibson testified that he and his roommates hosted a party on the night of October

30, 2017, during which Gibson and Bayler had “an altercation.” (Tr., p. 192). Later, when

Gibson was awakened by police officers shining a light through his broken bedroom

window, he “didn’t understand what was going on.” (Id.). He initially thought “that they [the

police officers] were the ones that had broken the window and that they were trying to

break into my home to question me * * *.” (Id.). He called the Springfield police department

“just to feel reassured,” and was instructed to go outside to talk to the Wittenberg

University officers. (Id., pp. 192-193). He did so, “wearing a t-shirt that had been ripped

probably like three quarters of the way down[,] and jeans and barefoot.” (Id., p. 194).

Gibson testified that he went back into the house because he “was really cold”; “I just

thought I could get my coat real quick and come back.” (Id.). Although he claimed that he

did not realize that the investigation was still ongoing when he went into the house, Gibson

admitted that a police officer had told him not to re-enter the house. (Id.).

{¶ 14} On cross-examination, Gibson acknowledged that he had tried to stop “Ben”

from talking to the police officers. (Id., pp. 199-200). He also admitted that he had been

wrong about the officers’ breaking his bedroom window, and that he did not know at that

time whether Bayler might be suffering from a concussion or internal injuries. (Id., pp.

101-102).

{¶ 15} The jury found Gibson guilty of obstructing official business. The trial court

sentenced Gibson to a 14-day suspended sentence, $250 in fines, and court costs.

{¶ 16} Gibson appeals from that judgment, raising four assignments of error: -8-

1) The trial court erred as a matter of law in failing to properly instruct the

jury.

2) The trial court erred as a matter of law when it failed to include in its

instructions to the jury, the specific instructions requested by Mr. Gibson.

3) The trial court erred as a matter of law in failing and refusing to answer

the jury’s question.

4) Structural errors by the trial court permeated the proceedings.

Law Regarding Obstruction of Official Business

{¶ 17} R.C. 2921.31 provides in pertinent part as follows:

(A) 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.

(B) Whoever violates this section is guilty of obstructing official business.

Except as otherwise provided in this division, obstructing official business is

a misdemeanor of the second degree * * *

{¶ 18} To be guilty of the offense of obstructing official business, an individual must

commit an overt act done with an intent to obstruct a public official, such as a police

officer, and the act must succeed in actually hampering or impeding that officer. State v.

Davis,

,

(2d Dist.). “The proper focus in a prosecution

for obstructing official business is on the defendant’s conduct, verbal or physical, and its

effect on the public official’s ability to perform the official’s lawful duties.” State v. Henry, -9-

,

(10th Dist.), quoting State v. Wellman,

,

,

(1st Dist.). Verbal acts alone can

constitute a “proscribed act” under R.C. 2921.31. Id. at ¶ 56, citing State v. Jeter, 1st Dist.

No. C-040572,

, State v. Lazzaro,

, 667 N.E.384

(1996). In fact, “Ohio courts have upheld convictions for obstructing official business in

instances [where] an individual prevented law enforcement officers from gaining control

of a situation [through] ‘belligerent and argumentative’ behavior.”

quoting

, and citing State v. Florence, 12th Dist. No. CA2013-08-148,

(affirming conviction for obstructing official business of defendant whose “purposeful loud,

boisterous, and uncooperative conduct made the performance of [the police officers’]

duties more difficult”).

{¶ 19} “Generally, an individual can be found guilty of obstructing official business

when he persists in performing a specific act [after] a police officer has told him to stop.”

Girard v. Oakman,

,

(11th Dist.). For example, the

Third District Court of Appeals affirmed the conviction under R.C. 2921.31 of a man who

“grabbed [his] briefcase, unzipped it, and put his hands wrist-deep into it” after

“repeatedly” being told by police “to stay away from his briefcase.” State v. Watson, 3d

Dist. Union No. 14-09-01,

. Although the defendant in Watson

claimed to have thought the officers intended to harass him by conducting a fabricated

investigation, “his decision to disbelieve them, disobey their orders, and, in turn, to delay

their investigation, was made at his own peril.” Id. at ¶ 36. Similarly, the Fifth District Court

of Appeals affirmed the obstructing official business conviction of a defendant who, when

police officers arrived in response to a domestic violence complaint, refused to provide -10-

information and also prevented her companion from providing any information to the

officers, and repeatedly talked over the officers as they attempted to conduct their

investigation. See State v. Willey,

,

(5th Dist.). According

to that court, the defendant’s “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.”

(Brackets sic.) Id. at 22, quoting State v. Shepherd, 5th Dist. Richland No. 14CA63, 2015-

Ohio-4330, ¶ 30.

{¶ 20} We, too, have concluded that a police officer “was within her rights to arrest

[the defendant] for obstructing official business” where the defendant “repeatedly refused

to comply with [the officer]’s instructions.” Dayton v. Turic, 2d Dist. Montgomery No.

20149,

, ¶ 26.

Assignments of Error #1 and #2 – Jury Instructions

{¶ 21} Although a trial court “has broad discretion to decide how to fashion jury

instructions,” such instructions must “present a correct, pertinent statement of the law that

is appropriate to the facts” of the case. State v. White,

, 2015-Ohio-

492,

, citing State v. Griffin,

,

,

, ¶ 5; State v. Lessin,

,

(1993).

Accordingly, “a court should not give an instruction unless it is specifically applicable to

the facts in the case.” State v. Fritz,

,

,

(2d Dist.), citing State v. Guster,

,

(1981). “A

trial court has discretion to determine whether the evidence adduced at trial was sufficient

to warrant an instruction.” State v. Austin, 8th Dist. Cuyahoga Nos. 106215 and 106530, -11-

, citing State v. Fulmer,

,

,

, ¶ 72. “In reviewing the record to ascertain the presence of sufficient

evidence to support the giving of a [particular] jury instruction, an appellate court should

determine whether the record contains evidence from which reasonable minds might

reach the conclusion sought by the instruction.” State v. Stevens,

,

, ¶ 37 (12th Dist.), citing State v. Davis,

,

, ¶ 35

(12th Dist.).

{¶ 22} A trial court’s decision to give or to withhold particular jury instructions is

reviewed for an abuse of discretion. State v. Pendleton, 2d Dist. Clark No. 2017-CA-17,

, citing State v. Underwood, 2d Dist. Montgomery No. 26711, 2016-

Ohio-1101, ¶ 9. The facts and circumstances of the case are relevant in determining

whether a trial court abused its discretion in giving a particular instruction. State v.

Grissom, 2d Dist. Montgomery No. 25750,

, citing State v. Fair, 2d

Dist. Montgomery No. 24388,

. “A trial court abuses its discretion

when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

citing

State v. Darmond,

,

,

. “An abuse

of discretion includes a situation in which the trial court did not engage in a ‘sound

reasoning process.’ ”

quoting State v. Morris,

,

,

, ¶14; see also Underwood at ¶ 9 (abuse of discretion includes decisions

that are “grossly unsound, unreasonable, illegal, or unsupported by the evidence”).

{¶ 23} Gibson argues that the trial court erred “as a matter of law” both by “fail[ing]

to advise the jury of the precise behavior for which [Gibson] had been charged”

(Assignment of Error #1) and by declining to give “the specific instructions [Gibson] -12-

requested.” (Assignment of Error #2). Because those two assignments of error are related

and subject to the same standard of review,2 we will consider them together.

a. Failure to Instruct on “Precise Behavior” Charged

{¶ 24} In its final instructions to the jury after the close of evidence in Gibson’s

case, the trial court set out the elements of the offense at issue as follows:

* * * [T]he defendant is charged with obstructing official business. Before

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

that on or about the 31st day of October, 2017 and in Springfield, Clark

County, Ohio the defendant without privilege to do so and with purpose to

prevent, obstruct, or delay the performance by a public official in any

authorized act within his official capacity did an act that hampered or

impeded the official in the performance of his lawful duties.

(Tr., p. 246). The foregoing instruction mirrored the language of Ohio Jury Instructions,

CR Section 521.31, and was consistent with R.C. 2921.31’s statutory language.

{¶ 25} Gibson’s first assignment of error nonetheless argues that the trial court

erred by giving that instruction without further elaboration. Observing that the complaint

filed against him alleged that Gibson committed the offense of obstructing official

business, “TO WIT,” by going “back into his residence while officers were attempting to

check for further injured parties inside the residence” (Trial Court Docket #1, p. 2), Gibson

suggests that the trial court should have instructed the jury that it was restricted to

considering Gibson’s act of re-entering his residence as the basis for the obstructing

2 Although Gibson suggests that de novo review applies, the appropriate standard of review in this case is for an abuse of discretion, as the afore-cited cases illustrate. -13-

official business offense.3 He further argues that the trial court compounded the error of

that omission by refusing to instruct the jury in accordance with certain specific

instructions he requested.4 (Citing Tr., pp. 224-226).

{¶ 26} Due process of law entitles an accused to be advised “of the essential facts

constituting the offense for which he is tried.” State v. Lackey,

,

, ¶ 60 (2d Dist.). A charging document is “defective” if “one of the vital elements

identifying the crime is omitted.”

Not all facts surrounding an offense are “vital

elements,” however. “[A]n indictment generally is sufficient if it contains, in substance, a

statement that the accused has committed some public offense therein specified.” State

v. Sellards,

,

(1985). “A certain degree of

inexactitude of averments, where they relate to matters other than the elements of the

offense, is not per se [sic] impermissible or necessarily fatal to a prosecution.”

.

A defendant may obtain more specific details by requesting a bill of particulars.

citing

R.C. 2941.07. Additionally, “the prosecution is entitled to offer differing theories as to what

actually transpired in the commission of an offense.” State v. Miller,

,

,

, ¶ 30.

{¶ 27} Contrary to Gibson’s premise, a defendant charged with obstructing official

business is not prejudiced when the conduct underlying the State’s theory at trial differs

3 The record reflects that after the trial court read the charge but before the jury retired to deliberate, Gibson’s counsel requested a sidebar to question the trial court’s omission of the “to wit” clause from the jury instructions. (Tr., pp. 249-250). The State argued that the “to wit” language was “not an element of the offense” and that “it would still be a valid charge” even if that language had not been included in the complaint. (Id., p. 250). The trial court denied defense counsel’s request that the trial court read the complaint’s “to wit” clause to the jury. (Id., pp. 250-251).

4 See second assignment of error, below. -14-

from the conduct specified by the State in the charging documents. See, e.g., State v.

Thomas, 8th Dist. Cuyahoga No. 84728,

(even though evidence

presented at trial focused on conduct different from that described in indictment for

obstructing official business, State had not “abandoned its original theory of the case” to

introduce a “distinct and unexpected theory of guilt”); State v. Stayton,

,

(1st Dist. 1988) (affirming defendant’s obstructing official business

conviction based on evidence that she hampered police officer attempting to issue

parking citations, even though bill of particulars charged that she “prevented” officer from

doing so). Indeed, existing case law counsels that a trial court should not give jury

instructions that narrowly define the exact conduct that may constitute an obstructing

official business offense. See State v. Bowman,

,

(12th Dist. 2001).

{¶ 28} In Bowman, the trial court’s jury instructions regarding the obstructing

official business charges against the defendants specified that each defendant had

hampered a law enforcement officer in the performance of his duties “by pulling on” an

individual the officer was attempting to arrest.

On appeal, the appellate court opined

that the trial court “should not have added the phrase” about “pulling on” the suspect, as

that “limit[ed] the jury to finding [the defendants] guilty only if [the jury] found that [the

defendants] ‘by pulling on [the suspect]’ obstructed official business.”

. Because

“[t]he record [wa]s replete with evidence of many other acts by which the jury could have

concluded that [the defendants] obstructed official business,” the jury should not have

been limited to considering only one example that might satisfy the requirement of an

overt act.

-15-

{¶ 29} Having reviewed the transcript of Gibson’s trial, we conclude that this record

likewise is “replete with evidence” of acts by Gibson, in addition to his reentering the

house, that a reasonable jury might find to have hampered or impeded Officers Guillozet

and Thomas’s investigation of the report of someone needing help at Gibson’s residence.

See

The trial court did not abuse its discretion by adhering to the standard Ohio Jury

Instructions and failing to give an instruction more narrowly tailored to reflect the “precise

behavior” alleged in the original complaint. Gibson’s first assignment of error is overruled.

b. Failure to Give Specific Instructions Gibson Requested

{¶ 30} Gibson’s second assignment of error faults the trial court for declining to

give a number of jury instructions 5 that Gibson proposed. 6 Before the trial court

administered its final instructions, the trial court and counsel for the parties engaged in an

extended discussion of the proposed instructions. (See Tr., pp. 218-227). We will address

the trial court’s denial of those instructions in groupings suggested by that discussion.7

i. Proposed Instruction #1

{¶ 31} The record reflects the following:

[Gibson’s counsel]: * * * [P]roposed jury instruction number one states that

5 Gibson’s brief refers to “14 specific requests” for instructions (Brief of Appellant, p. 1), but the record refers to “thirteen.” (Tr., p. 221). 6 Despite Gibson’s assertion that his attorney “filed a Motion for Specific Jury Instructions” on February 6, 2018 (see Brief of Appellant, p. 1), no such motion appears on the docket produced by the trial court for this appeal. Nevertheless, we are able to glean from the transcript of the jury charge conference the substance of most of the instructions Gibson requested. (See Tr., pp. 218-227). To the extent the proposed instructions can be discerned from the record, we will address them. 7 The trial court later confirmed that Gibson’s objections to the trial court’s denial of Gibson’s specific jury instructions were preserved for purposes of the record. (See Tr., p. 251). -16-

the defendant asserts that he has the right to privacy in his own home by

way of the Fourth Amendment to the Constitution of the United States[,]

which states that the right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches and seizures

shall not be violated and warrants shall issue but upon pre [sic] probable

cause supported by oath or affirmation in particularly describing the place

to be searched and the person or things to be seized. And that cites to the

U.S. Constitution Amendment[,] Fourth Amendment. * * *

[Trial Court]: * * * [D]oes the * * * State want to be heard in regard to * * *

number one * * *?

[Prosecutor]: Sure[,] Your Honor. * * * [I]t’s really not even a jury instruction.

It’s just the recitation of the Fourth Amendment. * * * [T]he police conduct in

this case is not what’s at issue. This isn’t a motion to suppress or anything

like that. It’s the defendant’s conduct that’s at issue. * * * [S]o I don’t think

it’s * * * relevant here. * * *

***

[Gibson’s counsel]: * * * [T]he testimony of the officers that the State used

as witnesses indicated that my client * * * caused a delay in them accessing

the[ ] home. At the time [Gibson] believed * * * he was entitled to protection

under the Fourth Amendment of the Constitution[,] which is what he kept

restating * * * [S]o it goes to intent and what he thought he was lawful in

doing at the time.

[Trial Court]: Well[,] with all due respect[,] * * * if he misunderstands the -17-

application of the law[,] repeating it fifty times will not make the

misapplication * * * become effective. * * * [H]e’s charged with a violation of

the * * * Ohio Statute * * * [T]he * * * U.S. Constitution * * * doesn’t give

someone * * * more rights than they have * * * under these circumstances

as they were described and testified to. * * * * I don’t think they’re entitled to

a Constitutional * * * arguments [sic] under the circumstances of this case

under the statute that’s involved. So * * * let’s go to number two.

(Tr., pp. 219-221).

{¶ 32} The trial court did not abuse its discretion by refusing to give a proposed

instruction pertaining to constitutional concepts that were irrelevant to the offense with

which Gibson was charged. Gibson’s first assignment of error is overruled.

ii. Proposed Instructions #2, #3

{¶ 33} The second and third instructions Gibson proposed were as follows:

[Gibson’s counsel]: [I]n order to find the defendant guilty of obstructing

official business you must find that the defendant committed an affirmative

act. And this can actually be combined with * * * the next one[,] because

then an affirmative act is defined as any conduct physical, verbal that

hampers or impedes the officer in the performance of his duties.

[Trial Court]: I actually think that’s included in the instructions. * * *

***

[Gibson’s counsel]: Well[,] this instruction indicates an affirmative act.

***

[Trial Court]: * * * I would * * * respectfully disagree with that. * * * I think did -18-

an act that hampered or impeded is * * * the operative * * * phrasing. So

* * * I think that’s what’s the controlling * * * language[,] is to do an act * * *

as opposed to * * * resisting or * * * something passive. * * * So I’m sticking

with the * * * experts on this one. * * *

[Gibson’s counsel]: Can I point something out in * * * the OJI [i]nstructions

for obstructing official business? It states that the trial judge should be

aware of current case law interpreting what constitutes a prohibited act

within the scope of this statute. And the instruction I just proposed is a 2018

case, Posona [sic] v. McCord.8

***

[Gibson’s counsel]: I’m not asking you to change the description of OJI’s

* * * obstruction of * * * official business[.] I’m just asking you to * * * add an

additional instruction for the jury[,] * * * stating that in order to find the

defendant guilty of obstructing you must find that the act was affirmative.

[Trial Court]: And I’m saying that I don’t think the magic word is an

affirmative act[.] I think it’s an act. So * * * you’ve made your motion[,] I’m

denying it. * * * [L]et’s go to * * * number four.

(Tr., pp. 221-223.)

{¶ 34} This court also has recognized “that in order to violate the obstructing official

business statute a defendant must engage in some affirmative or overt act or undertaking

8 The case Gibson’s counsel presumably intended to cite is Pisoni v. McCord, 5th Dist. Stark No. 2017CA00111,

, where the appellate court stated, “Courts have generally required an affirmative act for the offense of obstructing official business.” That case did not involve jury instructions. -19-

* * *.” State v. Crowell,

,

, quoting State v. Harrell,

2d Dist. Montgomery No. 21736,

, and State v. Prestel, 2d Dist.

Montgomery No. 20822,

. However, Gibson has directed us to no

case in which an Ohio court found that a defendant charged with obstructing official

business was entitled to an “affirmative act” instruction. Furthermore, at least one Ohio

appellate court has concluded explicitly that a trial court did not abuse its discretion by

failing to give a requested instruction specifying that R.C. 2921.31 would require “an

affirmative act in order to trigger culpability.” Wellman,

, 2007-Ohio-

2953,

. “[A]fter reviewing the jury instructions as a whole,” the

court in Wellman determined that “[t]he jury could not have reasonably concluded, after

hearing the instructions, that they could find [the defendant] guilty for a failure to act.” Id.

at 28.

{¶ 35} Like the court in Wellman, we determine that the jury instructions given by

the trial court, taken as a whole, adequately apprised the jury that Gibson could be found

guilty of obstructing official business only for an actual “act.” Accordingly, the trial court

did not abuse its discretion by failing to give Gibson’s proposed jury instructions number

two and three.

iii. Proposed Instructions #4, #5, #6

{¶ 36} The discussion relevant to Gibson’s fourth through sixth 9 proposed jury

instructions follows:

[Gibson’s counsel]: * * * [P]roposed instruction number four is: * * * in order

9 Although the record does not mention specifically proposed instructions five and six, we can infer from the context that the trial court addressed those proposed instructions in combination with proposed instruction four, and denied all three on the basis stated. -20-

to find the defendant’s physical actions constituted obstruction of official

business the defendant’s act must actually hamper or impede the official in

the performance of his duties. And then it goes on to define hamper.

[Trial Court]: Okay. Well[,] I think * * * the same thing’s going to apply here.

* * * [W]e can beat a dead horse by trying to define every possible word in

the English language or * * * we can tell ‘em hamper or impede * * * and the

jury can * * * use its common[ ]sense in defining what hamper or impeded

means. * * * That would take us to seven * * *.

(Tr., pp. 223- 224).

{¶ 37} Once again, our review of the jury instructions as a whole leads us to

conclude that the instructions as given sufficiently apprised the jury of all information

necessary to find Gibson guilty or not guilty of the offense charged. The trial court did not

abuse its discretion by declining to supplement the standard OJI instructions with

additional instructions providing arguably redundant details. See State v. Griffin,

,

,

, ¶ 5 (“No purpose is served * * * by requiring

courts to present redundant jury instructions or instructions that are so similar to other

instructions to be presented as to be confusing.”).

iv. Proposed Instructions #7, #8

[Gibson’s counsel]: * * * [N]ow seven and eight go together.

***

[Gibson’s counsel]: * * * In order to find the defendant’s verbal conduct to

constitute obstructing official business[,] you must find that the manner and

context [sic] of the defendant’s statement prevented a public official from -21-

carrying out his lawful duty. If you find that the defendant’s actions were

verbal in nature you must give considerable latitude to citizens to express

their views about the police and activities.

[Trial Court]: * * * I’m not even sure * * * that’s appropriate in this case.

[Gibson’s counsel]: Well[,] * * * I think that our argument was * * *

strengthened by the testimony of Officer Guillozet when he was saying that

my client used profanity and that impeded his investigation so that turns it

to a verbal issue under obstruction. * * * [B]asically Guillozet * * * said that

the profanity used by my client impeded his investigation. * * *

[Trial Court]: I think again it would confuse the jury * * * to allege * * * that

the act * * * was verbal in nature and * * * it wasn’t. * * * [G]oing back * * *

[to] how the charge was written * * *. So again[,] * * * I’m gonna * * * take

issue * * * with you making the argument for the [S]tate that they said it was

a verbal * * * action. * * * It wasn’t verbal[,] * * * [i]t was an actual act * * *

that caused him to be arrested * * *.

(Tr., pp. 224-225).

{¶ 38} We first note that Gibson’s seventh proposed instruction misstates the law.

It is not true that in order to return a guilty verdict, the jury was required to find that

Gibson’s verbal conduct “prevented” the officers from carrying out their duty. Rather, proof

that his conduct hampered or impeded the officers would be sufficient. See State v. Jeter,

1st Dist. Hamilton No. C-040572,

(defendant was “mistaken in

arguing that the state was required to prove that [defendant]’s conduct actually prevented

an arrest of a person violating the law”; “[t]he state merely had to prove that [defendant]’s -22-

conduct obstructed the police from performing their official duties”). The trial court was

justified in declining to give proposed instruction number seven for that reason alone.

{¶ 39} In addition, our review of the record reveals that Gibson’s attorney in

requesting those instructions mischaracterized Officer Guillozet’s testimony. On cross-

examination, Guillozet was asked whether Gibson at any time “display[ed] any threats of

violence.” (Tr., p. 116). Guillozet answered that Gibson was “just verbally upset, but

nothing physically.” (Id.). Defense counsel then asked, “He did continue to restate his

constitutional rights, correct?” (Id.). Officer Guillozet replied, “Yes, and * * * he did * * *

make a statement that had some profanities in it as well.” (Id.).

{¶ 40} That was the entirety of Officer Guillozet’s testimony about Gibson’s use of

profanity, elicited by Gibson’s counsel. It in no way intimated that Gibson was arrested or

charged based on his use of profanity. Accordingly, there was insufficient factual basis

for proposed instructions seven and eight.

{¶ 41} Furthermore, we once again find that the standard OJI instruction given by

the trial court “adequately informed the jurors that they had to find that [Gibson] had

committed an affirmative act that hampered or impeded the officers in the performance

of their duties,” regardless of whether the “act” giving rise to culpability was physical or

verbal. See Wellman,

,

,

.

The trial court did not abuse its discretion by refusing to give proposed instructions seven

and eight.

v. Proposed Instructions #9, #10, #11, #12

{¶ 42} Gibson’s ninth through twelfth proposed jury instructions all focus on the

content of his verbal remarks to the officers, as illustrated by the excerpt below: -23-

[Gibson’s counsel]: * * * [N]umber nine. If the defendant’s language did not

constitute fighting words[,] a citizen’s verbal assault on a police officer does

not standing alone constitute criminal conduct.

[Trial Court]: Now again[,] * * * fighting words * * * don’t seem to apply in this

case. * * * [W]ords * * * are not why he was * * * cited * * *.

***

[Gibson’s counsel]: * * * [W]e did include in our motion for special jury

instructions number ten[,] fighting words are those by which their very

utterance inflict injury or intend to incite an immediate breach of the peace.

And I understand your stance on it. I can move to eleven.

[Trial Court]: * * * I just don’t see it * * * being applicable in * * * this set of

circumstances.

[Gibson’s counsel]: * * * [N]umber eleven[,] the instruction is: otherwise[,] in

order to find the defendant’s verbal conduct punishable as obstructing

official business[,] you must find that the defendant made unsworn false

statements to a public official with the purpose to mislead, hamper, or

impede the investigation of a crime.

[Trial Court]: Again, I don’t think there’s any allegation of unsworn false

statements * * *.

***

[Gibson’s counsel]: * * * [N]umber twelve is: a citizen may decline to answer

the question or answer honestly but he cannot within [sic] impunity,

knowingly and willfully answer with a falsehood. -24-

[Trial Court]: And I think the same thing applies there[.] [H]e wasn’t lying

* * * to the police . . .

[Gibson’s counsel]: Right[,] but once again[,] Your Honor[,] * * * Officer

Guillozet’s testimony indicated that his investigation was delayed by my

client’s use of profanity. So my client based on these instructions is allowed

to use profanity so long as it’s not * * * defined as fighting words.

***

[Trial Court]: * * * [T]hose aren’t the * * * facts * * * of this case * * *.

(Tr., pp. 225-227).

{¶ 43} Gibson has not demonstrated that the instructions he proposed regarding

the content of his speech are an accurate statement of the law. “R.C. 2921.31 is content-

neutral on its face. A person has a right to verbally protest a police officer’s actions or

even to argue with or curse at an officer. But that person does not have the right to hamper

or impede the officer in the performance of the officer’s duties.”

.

Therefore, even if Gibson’s remarks to the police officers were truthful and did not

constitute “fighting words,” he was not insulated from prosecution under R.C. 2921.31 if

his actions – verbal and otherwise – hampered or impeded the officers in the performance

of their duties. See, e.g., Turic, 2d Dist. Montgomery No. 20149,

, at ¶ 26

(affirming conviction under R.C. 2921.31 based in part on defendant’s “belligerent

conduct” toward officers); Henry,

,

(“Ohio courts

have upheld convictions for obstructing official business” based on defendant’s “

‘belligerent and argumentative’ behavior”); Florence, 12th Dist. No. CA2013-08-148,

(affirming conviction for obstructing official business of -25-

defendant whose “purposeful loud, boisterous, and uncooperative conduct made the

performance of [the police officers’] duties more difficult”); N. Ridgeville v. Reichbaum,

,

(9th Dist. 1996) (affirming conviction for

obstructing official business of defendant who, among other acts, shouted so that police

officer could not obtain another person's version of what had precipitated call). Gibson

cites no legal authority to the contrary. The trial court’s refusal to give proposed

instructions nine through twelve was not an abuse of discretion.

vi. Proposed Instruction #13

{¶ 44} The discussion surrounding the last jury instruction Gibson requested was

as follows:

[Gibson’s counsel]: Our final proposed jury instruction is: defendant’s mere

refusal to disclose his name to a police officer will not support a conviction

for obstructing official business.

[Trial Court]: * * * [H]e told ‘em who he was[,] so * * * that really isn’t an issue

here either. * * * I think a number of these are not * * * on point * * * in terms

of * * * what was testified to in this particular case. * * * I don’t find them to

be applicable. So * * * for the record[,] I’m stickin’ with * * * the OJI instruction

and the definition of purposely and * * * we’ll trust the jury to be able to apply

that to the facts * * * as they’ve been testified to in this case * * *.

(Tr., p. 227).

{¶ 45} The trial court correctly observed that Gibson did tell the officers his name.

The court did not abuse its discretion by declining to give a requested instruction that was

not supported by the evidence. See Fritz,

,

, 837 -26-

N.E.2d 823, at ¶ 19.

{¶ 46} Gibson’s second assignment of error is overruled.

Allegation of Error #3 – Jury Question

{¶ 47} Following the jury instruction conference, Gibson’s trial proceeded to

closing arguments. (See Tr., pp. 243). The closing presented by Gibson’s counsel

included the following argument to the jury:

What you need to remember is that [Gibson] is only being charged for * * *

[going] back into his residence while officers were attempting to check for

further injured parties inside that residence. [Gibson] is not charged for

being a little snot. * * * [B]eing annoying or like in this case the little snot that

he was is not a criminal act * * *.

***

Just to make sure you all understand and that there’s no confusion[,] * * *

my client’s not being charged for anything he said or anything he did other

than trying to go back into his house to get his coat. So you can’t consider

in order to find him guilty that he used profanity. You can’t consider in order

to find him guilty that he plead [sic] the Fifth or told his friend to plead the

Fifth. You can’t consider in order to find him guilty that he was being

argumentative. You can’t find him guilty for not letting officers into his house

to begin with. You can’t find him guilty for being belligerent and you can’t

find him guilty for being drunk. * * * [Y]ou have to find that beyond a

reasonable doubt [Gibson] went back into his house to specifically interfere

with the investigation of the officers. -27-

(Id., pp. 239-241).

{¶ 48} The State, however, argued that the jury should consider “the whole totality

of the conduct” Gibson displayed. (See, e.g., id., p. 242).

{¶ 49} Although the trial transcript does not reflect such, the parties have stipulated

that after some deliberation, the jury had a question for the trial court. According to the

parties’ joint stipulation to supplement the record, the following occurred:

1. During jury deliberations, the jurors submitted a hand[-]written question

to the [trial court], which stated, “Are we supposed to consider only the

Defendant’s act of re-entering his house, or all of the acts by the

Defendant?”

2. The Judge stated to counsel that his response to the jurors is that he

would not answer their questions, and [would] “leave it up to them to

decide.”

(6/28/18 Joint Stipulation Supplementing Record on Appeal.) No further information about

the jury question or the trial court’s response appears in the record before us.

{¶ 50} The joint stipulation gives no indication that Gibson’s counsel objected to

the trial court’s proposed answer at that time. In the absence of an objection to the trial

court’s response to a jury question, a party waives all but plain error. See State v. Gibson,

2d Dist. Greene No. 2017-CA-47,

. To demonstrate plain error, it

must be shown that “but for a plain or obvious error, the outcome of the proceeding would

have been otherwise, and reversal must be necessary to correct a manifest miscarriage

of justice.”

citing State v. Quarterman,

,

,

, citing State v. Davis,

,

, 939 N.E.2d -28-

147, ¶ 29. “The burden of demonstrating plain error is on the party asserting it.”

quoting

.

{¶ 51} After reviewing the record, we cannot conclude that the trial court’s

response to the jury’s question led to a manifest miscarriage of justice. Indeed, under

existing Ohio Supreme Court precedent, even if Gibson’s counsel had objected to the trial

court’s response, we cannot conclude that the trial court erred. See State v. Carter,

,

(1995). In Carter, the trial court responded to a

question from the jury “by refusing to instruct further, and by telling the jury that it had all

the instructions it needed.”

The Supreme Court stated “that where, during the course

of its deliberations, a jury requests further instruction, or clarification of instructions

previously given, a trial court has discretion to determine its response to that request. A

reversal of a conviction based upon a trial court’s response to such a request requires a

showing that the trial court abused its discretion.”

Specifically noting defense counsel’s

failure to object to the trial court’s response, the Supreme Court determined that trial court

“acted within the scope of its discretion in view of the nature of the instructions previously

given.”

{¶ 52} Under the circumstances before us, we also conclude that the trial court did

not commit error, plain or otherwise. Gibson’s third assignment of error is overruled.

Allegation of Error #4 – Structural Errors Permeating Trial

{¶ 53} In his final allegation of error, Gibson contends that the judgment against

him must be reversed because the trial court’s errors “so permeated the entire conduct

of the trial” that the court failed to “reliably serve its function as a vehicle for determination

of guilt or innocen[ce].” In support of that proposition, he cites State v. Colon, 118 Ohio -29-

St.3d 26,

,

, rev’d on other grounds, State v. Horner,

,

,

, paragraph one and three of

syllabus.

{¶ 54} In Colon, the Ohio Supreme Court stated:

Structural errors are “constitutional defects that ‘ “defy analysis by

‘harmless error’ standards” because they “affect [ ] the framework within

which the trial proceeds, rather than simply [being] an error in the trial

process itself.” ’ ” (Brackets added in Fisher.) State v. Perry,

,

,

, quoting State v. Fisher,

,

,

, at ¶ 9, quoting Arizona

v. Fulminante (1991),

,

,

. * * * “[A] structural error mandates a finding of ‘per se prejudice.’ ”

(Emphasis sic.) State v. Fisher,

,

,

, at ¶ 9.

“In determining whether an alleged error is ‘structural,’ our threshold

inquiry is whether such error ‘involves the deprivation of a constitutional

right.’ ” Id., citing State v. Issa (2001),

,

(Cook, J., concurring). If an error in the trial court is not a constitutional error,

then the error is not structural error. See State v.

(Cook, J., concurring).

Id. at ¶ 20-21.

{¶ 55} The basis for the “structural error” identified in Colon was described by the

Supreme Court as follows: “In summary, the defective indictment in this case failed to -30-

charge all the essential elements of the offense of robbery and resulted in a lack of notice

to the defendant of the mens rea required to commit the offense.” Id. at ¶ 32.10 In contrast,

the alleged errors identified by Gibson as amounting to “structural error” are the trial

court’s failure to “record the arguments of counsel,” 11 refusal to answer the jury’s

question, failure to include the jury question in the record on appeal, and erroneous

judgment entry indicating that Gibson was convicted on a guilty plea rather than a jury

verdict. We determine that those alleged errors, even taken cumulatively, do not

constitute structural error warranting reversal.

{¶ 56} As detailed in footnote 11, below, Gibson has not identified what “arguments

of counsel” he contends should have been but are not included in the record. Without a

proffer of such information in the trial court or supplementation of the record in accordance

with App.R. 9, we cannot consider whether the trial court erred in that respect.

Additionally, we determined above that the trial court did not abuse its discretion in

responding to the jury’s question during deliberations. The fact that we were able to

address that issue based on the parties’ joint stipulation about the jury question also

negates the effects of any potential error in the trial court’s failure to include that jury

question in the record.

{¶ 57} Finally, although the trial court’s judgment entry does indicate, mistakenly,

10 Interestingly, the Supreme Court’s later decision in Horner put into question even that purported “structural error.” See Horner,

,

,

, paragraph one of syllabus. 11 Gibson’s brief fails to specify what arguments are alleged to have been omitted. However, the opening arguments of both attorneys are transcribed in the record (see Tr., pp. 62-66, 67-69), as are their closing arguments (see Tr., pp. 229-236, 236-242, 242- 243), and their arguments regarding the jury instructions. (Id., pp. 218-229). -31-

that Gibson was convicted by guilty plea rather than pursuant to a jury verdict, that clerical

error may be corrected through a nunc pro tunc order, in an exercise of the trial court’s

“inherent authority to correct errors in judgment entries so that the record speaks the

truth.” See, e.g., State v. Ritchie, 2d Dist. Montgomery No. 24088,

.

Gibson suffered no constitutional deprivation as a result of that clerical error. See Colon,

,

,

. Consequently, Gibson’s

fourth assignment of error is overruled. Nevertheless, this matter will be remanded to the

trial court for the sole purpose of correcting that clerical error.

{¶ 58} The judgment of the trial court will be affirmed, and this matter will be

remanded to the trial court to issue a corrective nunc pro tunc judgment entry.

.............

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Marc T. Ross Matthew DiBartola Valerie Juergens Wilt Amanda J. Lantz Hon. Stephen A. Schumaker