STATE OF OHIO v. JASON M. NEWSOME
Case No. 17CA2
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 08/31/17
[Cite as State v. Newsome, 2017-Ohio-7488.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
Benjamin E. Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee.
McFarland, J.
{1} Jason Newsome appeals from the trial court‘s judgment revoking his community control and imposing a prison term after it determined he had violated his community control by obstructing official business. On appeal, Appellant contends that 1) the State failed to prove obstructing official business or any other offense by a preponderance of the evidence; and 2) the trial court erred by admitting and relying upon hearsay in finding that he committed a probation violation. Because the State provided substantial evidence that Appellant obstructed official business, and because the Ohio Rules of Evidence regarding hearsay do not apply to
FACTS
{2} Appellant, Jason Newsome, pled guilty to one count of trafficking in heroin, a fourth degree felony, and was sentenced to community control on April 11, 2013. A motion was filed on September 26, 2016, alleging Appellant had violated the terms of his supervision and requesting his community control be revoked, based upon the following:
“1. Condition #1: ‘I will obey federal, state and local laws and ordinances, including those related to illegal drug use and registration with authorities. I will have no contact with the victim of my current offense(s).’
To wit: On or about 09/14/2016, in the vicinity of Hocking County, you caused or attempted to cause physical harm to Carol J. Francis.
To wit: On or about 09/14/2016, in the vicinity of Hocking County, you purposely delayed the performance by a public office of the public officials [sic] authorized acts.”
{4} Testimony presented by Deputy Wesselhoeft indicated that on the night in question, he was dispatched to Carol Francis’ residence in response to a complaint that Appellant had assaulted her, as well as numerous calls that an intoxicated individual was knocking on doors. The deputy testified that while he was conducting his investigation at the victim‘s residence, he observed a car quickly pull in and then out of the victim‘s driveway. Because he was informed by the victim and another individual there that Appellant was in the vehicle, the deputy quickly left and initiated a traffic stop of the vehicle. However, because the deputy was informed by the vehicle occupants that Appellant had been dropped off at the victim‘s house, he returned to her house. Upon arriving, he was informed that Appellant had briefly entered the house and the fled to the
{5} Defense counsel raised several objections to the deputy‘s testimony, arguing it constituted hearsay evidence. The trial court, however, overruled the objections. After hearing the evidence, the trial court revoked Appellant‘s community control and ordered him to serve the remainder of the original term of an eighteen-month prison sentence. It is from this decision that Appellant now brings his timely appeals, setting forth two assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. THE STATE FAILED TO PROVE OBSTRUCTING OFFICIAL BUSINESS OR ANY OTHER OFFENSE BY A PREPONDERANCE OF THE EVIDENCE.
II. THE COURT ERRED BY ADMITTING AND RELYING UPON HEARSAY IN FINDING THAT MR. NEWSOME COMMITTED A PROBATION VIOLATION.”
ASSIGNMENT OF ERROR I
{6} In his first assignment of error, Appellant contends the State failed to prove that he obstructed official business, or any other offense, by a preponderance of the evidence. The State counters by arguing that Deputy Wesselhoeft‘s testimony established the elements of obstructing official business, and that the trial court properly concluded the State provided
{7} This Court recently reflected on the proper standard of review when reviewing decisions revoking community control in State v. Johnson, 4th Dist. Meigs No. 14CA10, 2015-Ohio-1373. In Johnson, we noted that this Court has previously applied a two-part standard in such cases, as follows:
” ‘Because a community control revocation hearing is not a criminal trial, the State does not have to establish a violation with proof beyond a reasonable doubt. State v. Wolfson, Lawrence App. No. 03CA25, 2004-Ohio-2750, 7, citing State v. Payne, Warren App. No. CA2001-09-081, 2002-Ohio-1916, in turn citing State v. Hylton (1991), 75 Ohio App.3d 778, 782, 600 N.E.2d 821. Instead, the prosecution must present “substantial” proof that a defendant violated the terms of his community control sanctions. Wolfson, citing Hylton at 782, 600 N.E.2d 821. Accordingly, we apply the “some competent, credible evidence” standard set forth in C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, to determine whether a court‘s finding that a defendant violated the terms of his community control sanction is supported by the evidence. Wolfson at ¶ 7, citing State v. Umphries (July 9, 1998), Pickaway App. No. 97CA45; State v. Puckett (Nov. 12, 1996), Athens App. No. 96CA1712. This highly deferential standard is akin to a preponderance of the evidence burden of proof. Wolfson, citing State v. Kehoe (May 18, 1994), Medina App. No. 2284-M. * * * Thus, we conclude the appropriate review in this matter is twofold. First, we review the record to determine whether there is substantial evidence to support the court‘s finding that C.M.C. violated the terms of probation or community control. If it does, then we
review the court‘s ultimate decision to revoke probation, i.e., the sanction, under the more deferential abuse of discretion standard.’ ” Johnson at ¶ 13; quoting In the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009-Ohio-4223, ¶ 17.
{8} Here, a notice of violation was filed alleging Appellant had violated the terms of his community control by obstructing official business.
“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.”
As previously noted by this Court, “Ohio courts have interpreted this statute to criminalize only affirmative acts, not the failure to act.” State v. Certain, 2009-Ohio-148, 905 N.E.2d 1259, ¶ 12 (4th Dist.); citing State v. May, 4th Dist. Highland No. 06CA10, 2007-Ohio-1428, fn. 5 (“An affirmative act is required to prove a
{9} Appellant contends that the State failed to prove an affirmative act on his part or that he acted without privilege. Appellant also contends the State failed to prove that law enforcement was actually hampered or impeded. Appellant claims that his actions of running into the woods and hiding in the weeds when he saw law enforcement was not criminal conduct, absent some law enforcement command to do otherwise, and that he simply exercised his constitutional right to refrain from speaking with the deputies. Appellant further informs this Court that he has been unable to locate a single case where an obstructing official business conviction was upheld where the defendant merely avoided law enforcement without disobeying a verbal command of law enforcement.
{10} In State v. Harris, 2015-Ohio-5378, 56 N.E.3d 286 (9th Dist.), ¶ 7, the court acknowledged that “[a]n affirmative act is required in order to support a finding that an individual was guilty of obstructing official
{11} Here, the evidence suggests Appellant ran and hid from law enforcement when he saw law enforcement, but before law enforcement spotted him. Thus, law enforcement didn‘t have an opportunity to order Appellant to stop. They were, nevertheless, looking for him, and the evidence suggests Appellant knew that and sought to evade them. As such, the evidence indicates Appellant was aware that police officers were attempting to detain him when he fled into the woods and hid in the weeds. The officers’ “official business” was to investigate the allegations made by the various callers as well as Appellant‘s ex-girlfriend, Carol Francis‘, report that Appellant had assaulted her. Appellant had no privilege to hamper the officers in the performance of their official duties, but his actions caused
{12} In State v. LaPorte, 4th Dist. Ross No. 14CA3450, 2015-Ohio-294, ¶ 19, a situation involving law enforcement responding to a residence as a result of a domestic violence report was compared to a situation where a defendant flees from a Terry stop. See also State v. Willey, 2015-Ohio-4572, 46 N.E.3d 1121 (5th Dist.) (comparing a situation involving law enforcement responding to a residence in response to a report of a “domestic incident” as a Terry stop.) As noted by the Willey court, “the law within the State of Ohio recognizes three types of police-citizen encounters: consensual encounters, Terry stops (brief investigatory stop or detention), and arrests.” Id. at ¶ 31 (internal citations omitted); see also State v. Millerton, 2015-Ohio-34, 26 N.E.3d 317 (2nd Dist.); State v. Glauser, 5th Dist. Tuscarawas No. 2011AP100039, 2012-Ohio-3230; State v. DeBrossard, 4th Dist. Ross No. 13CA3395, 2015-Ohio-1054. A Terry stop is an investigatory detention and is valid if an officer has reasonable and articulable suspicion of criminal activity. Willey at ¶ 32.
{13} As set forth above, law enforcement responded to Appellant‘s ex-girlfriend‘s house on the night in question due to several reports of an intoxicated individual knocking on doors, as well as a report that Appellant
{14} Several courts have held that a defendant‘s act of fleeing from a Terry stop is an affirmative act and constitutes obstructing official business. In State v. Ross, 5th Dist. Stark No. 2007-CA-00127, 2008 WL 568303, ¶ 28, the court explained that ” ‘[h]eadlong flight-wherever it occurs-is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainty suggestive of such.’ ” Quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673 (2000); see also State v. Glauser, supra, at ¶ 21 (unprovoked flight is simply not a mere refusal to cooperate.) Similarly, this Court concluded in State v. Certain, 180 Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d 1259, ¶ 14, that “fleeing from police ‘to hamper or impede the police from finding out [the defendant‘s] identity’ would be a violation of
{15} We further reject Appellant‘s argument that he was under no obligation to make himself available to law enforcement on the night in question and that he was merely exercising his Fifth Amendment right to remain silent. In State v. Glauser the court reasoned as follows in determining that an officer had reasonable suspicion of criminal activity to justify pursuing the appellant with an intent to stop him:
“In Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the suspect fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. An officer exited his patrol car and stopped the suspect. In upholding the stop, the United States Supreme Court held that headlong flight is not necessarily indicative of wrongdoing, but it is certainly suggestive of wrongdoing:
‘Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Id., at 498, 103 S.Ct. 1319. And any “refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one‘s business“; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual‘s right to go about his business or to stay put and remain silent in the face of police questioning.’ ” Glauser at ¶¶ 19-21.
Thus, while Appellant is correct that he had a right to remain silent in the face of questioning by law enforcement, he was without privilege to flee from them to avoid investigation.
{16} Additionally, with regard to any suggestion by Appellant that he could not have obstructed official business without disobeying the order of an officer, there is no such requirement contained in the elements of obstructing official business. Appellant was not charged with resisting arrest or failure to comply with the order of a police officer. Disobeying an order of a police officer is not an element the State was required to prove in order to demonstrate, by a preponderance of the evidence, that Appellant obstructed official business. Although many cases involving this offense have fact patterns that include defendants failing to obey an order and fleeing from law enforcement, we conclude a defendant can still obstruct official business without disobeying an order of law enforcement. See State v. Puterbaugh, 142 Ohio App.3d 185, 755 N.E.2d 359, *363 (reasoning that
{17} Finally, with respect to Appellant‘s assertions that the State‘s failure to file a formal criminal complaint charging Appellant with obstructing official business and dismissal of the assault charges involving Appellant‘s girlfriend in some way invalidates the State‘s claim that he violated his probation, we disagree. As this Court has previously explained, “community control, probation, and parole can be revoked, even if the underlying criminal charges are dismissed, the defendant is acquitted, or the conviction is overturned, unless all factual support for the revocation is removed.” State v. Johnson, supra, at ¶ 16; citing Barnett v. Ohio Adult Parole Auth., 81 Ohio St.3d 385, 387, 692 N.E.2d 135 (1998); State v. McCants, 1st Dist. Hamilton No. C-120725, 2013-Ohio-2646, ¶ 9.
{18} As discussed above, Appellant‘s interaction with law enforcement on the night in question was essentially pursuant to a Terry-type stop or investigatory detention. Terry stops “must be viewed within the totality of the circumstances” presented to the officer at the time. State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044, (1980), paragraph one of syllabus. At the time law enforcement sought Appellant, they were investigating a report of an assault by Appellant of his ex-girlfriend. The fact that the State did not go forward on their original claim in the notice of violation that referenced the assault because the victim would not cooperate does not diminish the fact that law enforcement was responding to a domestic report on the night in question and was operating under those facts at the time. The dismissal of the assault complaint and failure to file a complaint charging obstructing official business in this case did not remove all factual support for the trial court‘s finding that he violated his community control. Therefore, the trial court‘s determination that Appellant violated his community control by obstructing the official business of law enforcement officers who were responding to investigate a report of Appellant assaulting his ex-girlfriend was supported by substantial proof.
{19} Thus, in light of the foregoing, we cannot conclude that the trial court erred or abused its discretion in finding the State proved, by a preponderance of the evidence, that Appellant violated the terms of his community control by obstructing official business. Accordingly, Appellant‘s first assignment of error is overruled.
{20} In his second assignment of error, Appellant contends that the trial court erred by admitting and relying upon hearsay in finding that he committed a probation violation. In making this argument, Appellant concedes that the Rules of Evidence do not apply at community control revocation hearings. Nevertheless, he argues that he was prejudiced by the introduction of hearsay evidence because it was the only evidence that was presented by the State. He contends “[t]he present case involves evidence that is exclusively hearsay[,]” and that his due process rights require that he be provided a right to confront and cross-examine witnesses.
{21} This Court has previously noted, with regard to the applicability of the Rules of Evidence to community control or probation revocation hearings, that ” ‘[p]robation-revocation hearings are not subject to the rules of evidence and thus allow for the admission of [otherwise inadmissible] evidence.’ ” State v. Johnson, supra, at ¶ 24; quoting State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675, ¶ 21 (6th Dist.); State v. Estep, 4th Dist. Gallia No. 03CA22, 2004-Ohio-1747, ¶ 6 (“The Rules of Evidence do not apply to community control revocation hearings“);
{22} With respect to Appellant‘s argument that the evidence presented by the State was exclusively hearsay and that the trial court‘s reliance upon it, without more, deprived him of his due process rights and constituted reversible error, Appellant is correct that ” ‘[t]he introduction of hearsay evidence into a probation-revocation hearing is reversible error
{23} Here, however, the trial court did not rely exclusively on hearsay evidence. Hearsay is an out-of-court statement offered in court as evidence to prove the truth of the matter asserted.
{25} While some of the information contained in Appellant‘s testimony was provided to Appellant by individuals that did not testify at trial, some of the testimony was based upon the deputy‘s eyewitness account
{26} Having found that the State provided substantial proof that Appellant obstructed official business, we cannot conclude that the trial court erred or abused its discretion in revoking Appellant‘s probation. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error II; Concurs in Judgment Only as to Assignment of Error I.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.