[Cite as State v. Young,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2020CA00155 ROCHARD SEBASTIAN YOUNG

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2020-CR-1003

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 10, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE BERNARD L. HUNT Prosecuting Attorney 2395 McGinty Road, N.W. Stark County, Ohio North Canton, Ohio 44720

VICKI L. DESANTIS Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South – Suite #510 Canton, Ohio 44702-1413 Stark County, Case No. 2020CA00155 2

Hoffman, J. {¶1} Defendant-appellant Rochard Sebastian Young appeals the judgment

entered by the Stark County Common Pleas Court convicting him of trespass in a

habitation when a person is present or likely to be present (R.C. 2911.12(B)), domestic

violence (R.C. 2919.25(C),(D)(3)), and obstructing official business (R.C.

2921.31(A),(B)), and sentencing him to an aggregate term of incarceration of 12 months.

Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 24, 2020, Appellant knocked on the apartment door on 25th Street

in Canton, Ohio, where his on-and-off girlfriend, Ashley Butler, resided. Because

Appellant appeared to be drunk, Butler grabbed her shoes and keys, and locked the door

behind her. She went outside with Appellant, where they argued. Appellant walked back

to the apartment building, but could not enter through the locked security door. Butler

stood in front of the door to prevent Appellant from getting in. Appellant yelled at Butler,

“Bitch, if you don’t move your head, I’m going to punch your head through that glass.” Tr.

(1) 184. Butler believed Appellant would cause her physical harm. The pair entered the

apartment building.

{¶3} The argument continued in the hallway of the building, causing Butler to fear

neighbors would call the police. A neighbor who was acquainted with Appellant came to

the hallway to try to talk to Appellant, but Appellant called her names and started throwing

things. At some point, someone in the building called 911.

{¶4} Sgt. Anthony Birone of the Canton Police Department responded to the call.

When he arrived, Appellant was sitting outside the building. Butler told Sgt. Birone she

wanted Appellant to leave. When Sgt. Birone left the building, Appellant was walking Stark County, Case No. 2020CA00155 3

away. The officer asked Appellant if he needed a ride, and Appellant responded he did

not. Sgt. Birone told Appellant not to go back to Butler’s apartment.

{¶5} Shortly after Sgt. Birone left, Butler looked out her window and saw

Appellant walking back up the street to her apartment. She left the building, went outside

to the back parking deck, and called 911. When she walked around to the front of the

building, she noticed her screened window was broken. Butler went back inside and

found Appellant in her apartment, smoking a cigarette. Appellant asked Butler to make

him some food. When the police arrived, Appellant motioned to Butler to “shh” and ran

out the back door.

{¶6} Officer Camden Sens of the Canton Police Department responded to the

call with his partner, Patrolman Johnson. Officer Sens saw Appellant running from the

building. As Officer Sens approached, Appellant “juked” out of the officer’s way, and

stood squared up to the officer in a fighting stance. Appellant did not comply when asked

to show his hands. Patrolman Johnson tackled Appellant. Appellant did not actively resist

arrest, but became very tense and refused to give up his left hand to be handcuffed.

Working in tandem, the two officers were able to handcuff Appellant.

{¶7} Appellant was indicted by the Stark County Grand Jury with aggravated

burglary, domestic violence, obstructing official business, and resisting arrest.1 The State

amended the charge of aggravated burglary to a charge trespass in a habitation when a

person is present or likely to be present.

{¶8} At his arraignment on July 2, 2020, Appellant refused representation by the

public defender and indicated he would retain counsel. His arraignment was continued

1The charge of resisting arrest was not presented to the jury, and was nolled by the State on October 29, 2020, subsequent to trial. Stark County, Case No. 2020CA00155 4

to allow him to retain counsel. On July 10, 2020, Appellant had not yet retained counsel,

and entered a plea of not guilty. On August 10, 2020, the State made a plea offer.

Appellant again refused representation by the public defender, but had not retained

counsel. The trial court appointed new counsel on August 11, 2020.

{¶9} On August 17, 2020, the trial court held a pretrial hearing. The trial court

suggested Appellant sign a time waiver to allow his new counsel time to prepare for trial,

but Appellant refused. The trial court at first believed based on House Bill 197, the

statutory time within which Appellant must be brought to trial was tolled from the time of

his May 24 arrest through July 30, and the 90 days within which Appellant must be brought

to trial did not start until July 31.

{¶10} However, the trial court later determined the tolling bill only applied to cases

where the time within which the defendant must be brought to trial expired between the

dates of March 9, 2020, and July 30, 2020. Because Appellant’s time would not expire

until August 21, 2020, the tolling bill did not apply to Appellant. The trial court continued

the case until September 23, 2020, based on a lack of available courtroom space due to

the restraints of the Covid-19 pandemic, as well as the fact Appellant’s counsel was newly

appointed.

{¶11} The case proceeded to jury trial on September 23, 2020. Following trial,

Appellant was convicted of all charges. The trial court sentenced him to twelve months

incarceration for trespass in a habitation, 30 days incarceration for domestic violence,

and 30 days incarceration for obstructing official business, with all sentences to be served

concurrently for an aggregate term of twelve months in prison. Stark County, Case No. 2020CA00155 5

{¶12} It is from the October 2, 2020 judgment of conviction and sentence

Appellant prosecutes his appeal, assigning as error:

I. THE APPELLANT’S STATUTORY SPEEDY TRIAL RIGHTS

WERE VIOLATED WHEN HIS TRIAL WAS CONTINUED BEYOND THE

STATUTORY TIME LIMITS, IN O.R.C. 2945.71.

II. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE

APPELLANT’S CRIMINAL RULE 29, MOTION FOR ACQUITTAL.

I.

{¶13} In his first assignment of error, Appellant argues his statutory right to speedy

trial was violated by the trial court’s sua sponte continuance of the trial to September 23,

2020.

{¶14} We find the trial court did not err in its conclusion House Bill 197 did not toll

the time within which Appellant must be brought to trial, as the bill was applicable solely

to cases in which the expiration of the statutory speedy trial time occurred between the

dates of March 9, 2020, and July 30, 2020. The parties and the trial court agreed the

date by which Appellant must be brought to trial was August 21, 2020.

{¶15} R.C. 2945.72 allows the statutory speedy trial time to be extended as

follows in pertinent part: Stark County, Case No. 2020CA00155 6

The time within which an accused must be brought to trial, or, in the

case of felony, to preliminary hearing and trial, may be extended only by the

following:

(H) The period of any continuance granted on the accused's own

motion, and the period of any reasonable continuance granted other than

upon the accused's own motion[.]

{¶16} “When sua sponte granting a continuance under R.C. 2945.72(H), the trial

court must enter the order of continuance and the reasons therefor by journal entry prior

to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to

trial.” State v. Mincy,

,

(1982). The record of the trial court

must in some manner affirmatively demonstrate a sua sponte continuance by the trial

court was reasonable in light of its necessity or purpose. State v. Lee,

,

(1976).

{¶17} On August 20, 2020, which was prior to the expiration of the time limit

prescribed in R.C. 2945.71 for bringing Appellant to trial, the trial court journalized an

entry setting forth its reasons for the continuance:

After speaking with all parties, the Court has several concerns with

such a quick trial date. First, there is a nationwide pandemic. This has

caused enormous obstacles to almost all courts and proceedings in jury

trials. The Stark County Common Pleas Court appointed a strategic

planning committee, which for three months developed a protocol for Stark County, Case No. 2020CA00155 7

reinitiating jury trials. In doing so, after factoring in health regulations and

social distancing, there are only two courtrooms in which to operate.

Plexiglas has been installed for separating all parties and jurors. Thus, with

five judges sharing two courtrooms, the majority of dates in the next several

months have been filled, especially trying to address the cases in which

time limitations are expiring after being halted during the tolling period.

Therefore, the Court would not have an available courtroom to set forth a

jury trial in the upcoming weeks. The Court has two trials scheduled to go

next week, and shortly thereafter will oversee two murder cases.

At the same time, the Court has concerns on moving so fast since

Defendant’s counsel has only been on the case approximately ten days.

The record demonstrates that he just received a 911 call and other critical

evidence from the State of Ohio. In addition, counsel will need enough time

to assist the Defendant in preparation of the case and file any motions that

could benefit the Defendant.

{¶18} Judgment entry, August 20, 2020.

{¶19} A continuance to allow new counsel to prepare for trial may be a reasonable

sua sponte continuance by the trial court. See, e.g., State v. McRae,

,

(1978); State v. Gartrell, 3rd Dist. Marion No. 9-14-02, 2014-

Ohio-5203,

, ¶ 114; State v. Redelman, 12th Dist. Clinton No. CA2012-04-

010,

. A continuance based on a crowded docket may also be a

reasonable continuance within the meaning of R.C. 2945.72(H). See., e.g., State v. Lee, Stark County, Case No. 2020CA00155 8

,

(1976); State v. Davis, 5th Dist. Richland

No. 2019 CA 0112,

.

{¶20} Further, the Ohio Supreme Court has addressed the reasonableness of

continuing cases due to the pandemic:

And as all Ohio judges have been advised, trial judges have the

authority to continue trials for defendants on a case-by-case basis without

violating speedy-trial requirements. The Ohio Attorney General has opined

that courts may suspend jury trials to prevent the spread of the coronavirus

and they may do so consistent with state and federal speedy-trial

obligations. 2020 Ohio Atty. Gen. Ops. No. 2020-002. Specifically, R.C.

2945.72(H) provides that speedy-trial time may be extended by “the period

of any reasonable continuance granted other than upon the accused's own

motion”; continuing a trial because of a pandemic state of emergency is

“reasonable.”

{¶21} In re Disqualification of Fleegle,

,

,

. ¶7.

{¶22} We find the trial court set forth detailed reasons for the continuance, both

as to the need for time for newly appointed counsel to prepare for trial, and the

unavailability of a courtroom based on the challenges facing the judicial system in coping

with the ongoing global pandemic. We find the record establishes the reasonableness of

the continuance, and Appellant’s speedy trial rights were not violated. Stark County, Case No. 2020CA00155 9

{¶23} The first assignment of error is overruled.

II.

{¶24} In his second assignment of error, Appellant argues the trial court erred in

denying his Crim. R. 29(A) motion for acquittal because the State failed to present

sufficient evidence as to any of the charges.

{¶25} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence

presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351, citing

State v. Williams,

, 1996–Ohio–91,

; State v. Miley,

,

(4th Dist. 1996). Crim. R. 29(A) allows a trial

court to enter a judgment of acquittal when the state's evidence is insufficient to sustain

a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,

after viewing the evidence in a light most favorable to the State, the court finds no rational

finder of fact could find the essential elements of the charge proven beyond a reasonable

doubt. State v. Franklin, 5th Dist. Stark No. 2007–CA–00022, 2007–Ohio–4649 at ¶ 12,

citing State v. Dennis,

, 1997–Ohio–372,

.

{¶26} Appellant was convicted of trespassing in a habitation when a person is

present or likely to be present in violation of R.C. 2911.12(B), which provides, “No person,

by force, stealth, or deception, shall trespass in a permanent or temporary habitation of

any person when any person other than an accomplice of the offender is present or likely

to be present.”

{¶27} Ashley Butler testified she saw Appellant walking toward her apartment

building. She ran out the back of the building to call 911. When she walked around to

the front of the building, she noticed her screened window was broken out. She went Stark County, Case No. 2020CA00155 10

back to the apartment, and found Appellant inside. He was smoking a cigarette, and

asked her to make him some food. When Appellant heard the police arrive, he motioned

for Butler to be quiet and he left the building. Officer Sens also testified the window to

the apartment was broken. This is sufficient evidence from which a rational trier of fact

could find all the elements of R.C. 2911.12(B) proven beyond a reasonable doubt.

{¶28} Appellant was also convicted of domestic violence in violation of R.C.

2919.25(C),(D)(3):

(C) No person, by threat of force, shall knowingly cause a family or

household member to believe that the offender will cause imminent physical

harm to the family or household member.

(D)(3) Except as otherwise provided in division (D)(4) of this section,

if the offender previously has pleaded guilty to or been convicted of

domestic violence, a violation of an existing or former municipal ordinance

or law of this or any other state or the United States that is substantially

similar to domestic violence, a violation of section 2903.14, 2909.06,

2909.07, 2911.12, 2911.211, or 2919.22 of the Revised Code if the victim

of the violation was a family or household member at the time of the

violation, a violation of an existing or former municipal ordinance or law of

this or any other state or the United States that is substantially similar to any

of those sections if the victim of the violation was a family or household

member at the time of the commission of the violation, or any offense of

violence if the victim of the offense was a family or household member at Stark County, Case No. 2020CA00155 11

the time of the commission of the offense, a violation of division (A) or (B)

of this section is a felony of the fourth degree, and, if the offender knew that

the victim of the violation was pregnant at the time of the violation, the court

shall impose a mandatory prison term on the offender pursuant to division

(D)(6) of this section, and a violation of division (C) of this section is a

misdemeanor of the second degree.

{¶29} Appellant first argues the State did not present evidence he lived with

Ashley Butler at the time of the offense, and therefore did not present sufficient evidence

he was a family or household member.

{¶30} R.C. 2919.25(F) defines “family or household member” to include the

following:

(F) As used in this section and sections 2919.251 and 2919.26 of the

Revised Code:

(1) “Family or household member” means any of the following:

(a) Any of the following who is residing or has resided with the

offender:

(i) A spouse, a person living as a spouse, or a former spouse of the

offender;

(2) “Person living as a spouse” means a person who is living or has

lived with the offender in a common law marital relationship, who otherwise

is cohabiting with the offender, or who otherwise has cohabited with the Stark County, Case No. 2020CA00155 12

offender within five years prior to the date of the alleged commission of the

act in question.

{¶31} Ashley Butler testified three or four years prior to this incident, she and

Appellant had lived together as boyfriend and girlfriend. This testimony was sufficient for

a rational trier of fact to conclude Appellant was a “person living as a spouse” as defined

by R.C. 2919.25(F)(2), and thus was a family or household member as defined by statute.

{¶32} Appellant also argues there was no evidence he harmed Ashley Butler.

Appellant was convicted of R.C. 2919.25(C), which does not require actual harm, but

requires proof Appellant by threat of force caused Butler to believe he would cause her

imminent physical harm. Butler testified Appellant threatened to punch her head through

the glass if she did not move from blocking the door to the apartment building. When

asked if she felt he was going to cause her physical harm, she responded, “Hell yeah.”

Tr. (1) 184. This evidence was sufficient to support a finding Appellant caused Ashley

Butler to believe he would cause her imminent physical harm.

{¶33} Appellant was convicted of obstructing official business in violation of R.C.

2921.31(A):

(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. Stark County, Case No. 2020CA00155 13

{¶34} Appellant argues he had his hands at his sides when he was tackled and

arrested, and the State therefore did not produce any evidence he committed the crime

of obstructing official business.

{¶35} 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. Montgomery). “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,

,

(10th Dist. Franklin), quoting State

v. Wellman,

,

,

(1st Dist.

Hamilton).

{¶36} “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. Trumbull). For

example, the Third District Court of Appeals affirmed a conviction under R.C. 2921.31

where the defendant “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. Stark County, Case No. 2020CA00155 14

{¶37} This Court affirmed a conviction of obstructing official business where the

defendant, when police officers arrived in response to a domestic violence complaint,

refused to provide information to the officers, prevented her companion from providing

any information to the officers, and repeatedly talked over the officers as they attempted

to conduct their investigation. State v. Willey,

,

(5th Dist.

Stark).

{¶38} Similarly, in State v. Shepherd, 5th Dist. Richland No. 14CA63, 2015-Ohio-

4330, this Court agreed with the Twelfth District Court of Appeals' rationale in State v.

Florence, finding interference with an investigation 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 constitute an act for an obstructing official business

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

(May 19, 2000).”

{¶39} Shepherd at ¶31, citing State v. Florence, 12th Dist. Butler No. CA2013–

08–148,

. Stark County, Case No. 2020CA00155 15

{¶40} In the instant case, Officer Sens testified he saw Appellant running from the

building, and when he caught up with Appellant, Appellant, “kind of juked out of my way

as I was trying to go hands-on with him.” Tr. (1) 148. Officer Sens testified Appellant

stood squared up to him, as if Appellant was in a “fighting stance.” Officer Sens asked

Appellant to show his hands, and Appellant did not comply with the order. Ptl. Johnson

then tackled Appellant. Officer Sens testified Appellant did not actively resist the arrest,

but Appellant was tense and refused to give up his arms to be handcuffed. Officer Sens

described Appellant’s conduct as “passive resistance:” Appellant was not fighting, but not

letting the officers place him in custody. We find the testimony of Officer Sens was

sufficient evidence, if believed by the jury, to support a conviction of obstructing official

business.

{¶41} The trial court did not err in overruling Appellant’s Crim. R. 29(A) motion for

a directed verdict of acquittal.

{¶42} The judgment of the Stark County Common Pleas Court is affirmed.

By: Hoffman, J. Baldwin, P.J. and Delaney, J. concur