State v. MitchellState v. Mitchell
Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
O P I N I O N
HUTZEL, J.
{¶1} Defendant-appellant, Ronald J. Mitchell, appeals his conviction and sentence in the Hamilton Municipal Court for spеeding, failure to comply, and resisting arrest.
{¶2} The relevant facts of this case are as follows. On October 29, 2009, Officer Bret Britt of the Hamilton Police Department was performing radar detail in a
{¶3} Officer Britt approached the vehicle, at which time he recognized appellant from several prior traffic incidents. Officer Britt testified he asked appellant 12 separate times to present his driver‘s license, but that appellant sat in his vehicle with his arms crossed and demanded to see a supervisor. Officer Britt warned appellant if he refused to comply with his orders, appellant would be arrested. Officer Britt further testified he ordered appellant to placе his vehicle in park and to turn off the ignition, but appellant continued to ignore him.
{¶4} As a result of appellant‘s noncompliance, he was placed under arrest, but refused to exit his vehicle. Officer Britt thus handcuffed appellant while he remained inside his vehicle and advised appellant he would bе “tazed” if he failed to exit. When appellant finally exited his vehicle, Officer Britt walked him to the police cruiser and attempted to retrieve appellant‘s wallet from his back pocket. In response, appellant pushed off the police cruiser and attempted to turn to faсe Officer Britt. At this time, an off-duty police officer, Officer Timothy Mohr, testified he witnessed the struggle and came to assist Officer Britt in detaining appellant. Officer Mohr performed a pat-down search of appellant and subsequently placed him in the police cruiser.
{¶5} Pursuant to this incident, appellant was charged with failure to comply with an order or signal of a police officer in violation of
{¶6} On March 15, 2010, appellant‘s speeding charge was tried to the bench. Appellant was found guilty as charged, but the court reserved sentencing until a jury rendered a verdict on appellant‘s remaining сharges for failure to comply and resisting arrest. The same day, the jury returned a finding of guilty on both charges, at which time the court fined appellant $250 for resisting arrest. Appellant was also sentenced to serve 97 days in jail with 90 days suspended, given a three-year license suspension, placed on community control for two years, and fined an additional $500 for failure to comply with a police order. Appellant was also ordered to pay $90 in regard to his speeding violation.
{¶7} Appellant timely appeals, raising four assignments of error for review.
{¶8} Assignment of Error No. 1:
{¶9} “THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MITCHELL OF FAILING TO COMPLY WITH AN ORDER OF POLICE OFFICER UNDER RC [sic] 2921.331(B).”
{¶10} Assignment of Error No. 2:
{¶11} “THE TRIAL COURT ERRED IN TRYING AND CONVICTING MITCHELL FOR VIOLATING RC 2921.331(A) WHEN HE WAS CHARGED WITH VIOLATING RC [sic] 2921.331(B).”
{¶12} Appellant‘s first and second assignments of error are closely related, therefore we will address them together.
{¶13} On appeal, appellant correctly states the complaint alleged a violation of ”
{¶14} Initially, wе note appellant failed to object to the alleged defect in the complaint prior to trial, as required by Crim.R. 12(C)(2). See, e.g., Cuyahoga Falls v. Biehl, Summit App. No. 22244, 2005-Ohio-2809, ¶4. Accordingly, our review of the alleged error within the complaint sub judice must proceed, if at all, under the plain error analysis of Crim.R. 52(B). Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. Id.; State v. Biros, 78 Ohio St. 3d 426, 436, 1997-Ohio-204.
{¶15} Under the particular facts of this case, we conclude the omission of a specific subsection within the complaint did not amount to plain error or prejudice appellant in preparing his defense, where its substance was sufficient to inform appellant he was charged with violating
{¶16} Similar facts occurred in State v. Broughton (1998), 51 Ohio App.3d 10, where defendant argued the complaint against her was defective because it failed to designate the statutory subsection with which she was charged, i.e., either
{¶17} In the case at bar, as previously discussеd, the “essential facts” constituting the offense charged clearly pertain to the elements of
{¶18} We also note that appellant, his attorneys, the prosecutor, and the trial judge treated the complaint as valid at all stages of the proceedings, never nоticing any flaw therein. Specifically, during its case-in-chief, the state presented evidence demonstrating appellant failed to comply with Officer Britt‘s numerous orders to present his driver‘s license. Officer Britt explained that at some point, he stopped asking and instead “ordered” appellant to present his license because “he just wouldn‘t comply at all.” While it is true Officer Britt also testified appellant refused to park his vehicle when asked to do so, the jury heard ample evidence that appellant acted, at the least, in a noncompliant manner with respect to the officer‘s order to present his license, in accordance with the elements of
{¶19} Moreover, we note that during the state‘s closing argument, it stated “[t]here is no doubt that Officer Britt had the authority and was using the authority as a traffic officer to order [appellant] to hand over his license. [Apрellant] refused to comply and everything followed from that.” Such a statement clearly follows the language of
{¶20} Finally, appellant‘s jury received instructiоns from the court solely regarding the elements of
{¶21} Based on the evidence presented, the jury clearly found the state carried its burden in proving appellant‘s сonduct constituted the charged offense, as instructed. Thus, even if the complaint had listed the relevant alphabetical subsection, there is nothing in the record to indicate appellant would have been acquitted or that he would have proceeded differently during trial. See Biros, 78 Ohio St. 3d at 437; State v. Carse, Franklin App. No. 09AP-932, 2010-Ohio-4513, ¶19; State v. Bell, Montgomery App. No. 22448, 2009-Ohio-4783, ¶19. Moreover, if appellant remained confused by the omission of the alphabetical subsection, “he could have and should have sought clarification prior to trial.” Meyer, 2000 WL 699658 at *1.
{¶22} Accordingly, appellant‘s first and second assignments of error are overruled.
{¶23} Assignment of Error No. 3:
{¶24} “THE M-4 SPEEDING WAS REQUIRED TO BE TRIED TO A JURY.”
{¶25} In his third assignment of error, appellant argues the trial court lacked jurisdiction to try his speeding charge to the bench since the record contains no
{¶26} “A criminal defendant‘s right to a jury trial is guaranteed in the Sixth and Fourteenth Amendments to the United States Constitution and Sections 5 and 10, Article I of the Ohio Constitution.” State v. Burnside, Montgomery App. No. 23504, 2010-Ohio-1235, ¶45. Regarding serious offenses, an accused may not be deprived of this right unless it is knowingly, intelligently, and voluntarily waived. See
{¶27} In the case at bar, appellant was charged with speeding in violation of Hamilton Codified Ordinance 333.03, a fourth-degree misdemeanor. If convicted of the charge, appellant faced up to 30 days in jail. Thus, appellant was charged with a petty offense. See Crim.R. 2(D) (defining petty offense as “a misdemeanor other than [a] serious offense“). Accordingly, appellant had a right to demand a jury trial, which he indisputably did in a written request filed November 18, 2009. See
{¶28} Accordingly, where appellant filed a written jury demand pursuant to Crim.R. 23(A) and the record does not contain a subsequent written waiver as mandated by
{¶29} Appellant‘s third assignment of error is sustained.
{¶30} Assignment of Error No. 4:
{¶31} “THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MITCHELL OF RESISTING ARREST UNDER RC [sic] 2921.33(A).”
{¶32} In his fourth and final assignment of error, appellant argues there was insufficient evidence before the trial court to support a resisting arrest conviction. Specifically, appellant argues the state presented insufficient evidence to prove an
{¶33} In the case at bar, aрpellant was arrested for failure to comply in violation of
{¶34} As evidence of appellant‘s failure to comply, the state presented Officer Britt‘s testimony that upon initiating the traffic stоp, he asked appellant 12 separate times to present his driver‘s license, but that appellant sat in the vehicle with his arms crossed and demanded to see a supervisor. Officer Britt warned appellant if he refused to comply with his orders, appellant would be arrested.
{¶35} In light of this testimony, we find the evidence presented to the jury was sufficient to establish appellant‘s arrest for failure to comply was “lawful,” i.e., that following a valid traffic stop, Officer Britt had cause to believe appellant committed the offense of failure to comply.
{¶36} At this juncture, we note that under the circumstances of this case,
{¶37} Finally, we reject appellant‘s argument that a police officer may only order a motorist to display his or her license when the motorist‘s “identity is at issue” pursuant to
{¶38} For the foregoing reasons, appellant‘s fourth assignment of error is overruled.
{¶39} Judgment affirmed in part, reversed in part, and the cause is remanded
POWELL, P.J., and RINGLAND, J., concur.