STATE OF OHIO v. AMANDA TERRY
Appellate Case No. 26722
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
June 17, 2016
[Cite as State v. Terry, 2016-Ohio-3484.]
Trial Court Case No. 14-CRB-4993 (Criminal Appeal from Dayton Municipal Court)
Rendered on the 17th day of June, 2016.
BARBARA J. DOSECK, Atty. Reg. No. 0079159, AND STEPHANIE L. COOK, Atty. Reg. No. 0067101, by TROY B. DANIELS, Atty. Reg. No. 0084957, City Prosecutor‘s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Defendant-Appellant
HALL, J.
{¶ 1} Amanda Terry appeals from her convictions for obstructing official business
I. Background
{¶ 2} Just after midnight on the morning of July 5, 2014, Huber Heights police officer Robert Bluma was on his way back to Huber Heights from the Dayton jail. While still in the City of Dayton, Bluma saw a red pickup truck, travelling fast, veer over the double yellow center lines into oncoming traffic and then cut back into its lane. The truck swerved again and the driver briefly slammed on the brakes, leaving behind smoke and skid marks. The truck then spun its tires and pulled into the parking lot of a Dayton restaurant.
{¶ 3} Officer Bluma followed, thinking that the driver could be drunk or high or having a medical emergency. He was concerned that the driver could be a danger to himself and others. His cruiser‘s windows were down, and when he pulled in, he could hear a man and woman screaming in the truck. Bluma radioed dispatch to send a second officer to assist him, and Huber Heights police officer Joshua Fosnight was sent. Bluma also asked dispatch to contact the Dayton police and ask them to send officers because he was in their jurisdiction.
{¶ 4} Officer Bluma, on foot, approached the truck‘s driver‘s side. He continued to hear loud yelling and screaming from the occupants, leading him to think that it could be a domestic-violence situation. Bluma began talking to the driver, Patrick O‘Connell. Officer Fosnight soon arrived and began talking to the passenger, Amanda Terry. While the officers were speaking with them, Terry and O‘Connell continued to argue, making it difficult to determine what the problem was. While watching the two argue, Bluma noticed that Terry had a 24 oz. can of Miller Light beer open between her legs. She appeared to
{¶ 5} Officer Bluma testified that he wanted to talk to O‘Connell for two reasons. One, he wanted to determine whether O‘Connell was drunk, and two, given the conduct that he had observed, Bluma wanted to determine whether any domestic violence had occurred between the two. While he talked to O‘Connell at the rear of the truck, Terry screamed at them from the driver‘s side door. She cursed Officer Bluma and told O‘Connell to stop talking to him. Despite Officer Fosnight telling her to stop yelling, Terry continued. She was so loud that Bluma could not hear what O‘Connell was saying. Finally, O‘Connell became frustrated and stopped talking to Officer Bluma. Turning his attention to Terry, Bluma told her that her “behavior [wa]s unacceptable and she need[ed] to calm down.” (Id. at 24). Bluma had her stand farther away, next to his patrol car. After this, Terry calmed down. Officer Bluma was able to get the basic outline from O‘Connell of what had happened. O‘Connell said it was just a heated argument, no violence or threats of violence. Suddenly, Bluma heard Terry start yelling and cursing again and saw her walking towards them. He repeatedly told her to stay by his cruiser, and Terry finally complied. O‘Connell then finished telling Officer Bluma what had happened. O‘Connell said that during the argument Terry reached over and grabbed the steering wheel, making the truck veer into the other lane. She tried to grab the wheel again, and he slammed on
{¶ 6} When Officer Bluma finished talking to O‘Connell, Dayton police still had not arrived. So Bluma sat in his cruiser, with the door open, and began writing a report of the encounter. Terry, who had been standing in front of the cruiser with her back facing it, turned around and told Officer Bluma that “she was going to get in her truck and leave.” (Trial Tr. 28). O‘Connell had taken the keys out of the ignition when he stepped out of the truck. But the truck belonged to Terry, and Officer Bluma was unsure whether Terry had a set of keys too. Believing that Terry was extremely intoxicated, Bluma told her that “she was not getting into her truck” and was “not leaving.” (Id.). Terry replied that he could not do anything about it and began walking to the truck. Exiting his cruiser, Officer Bluma repeatedly ordered Terry to stop. She didn‘t. So Bluma grabbed her wrist and told her that she was under arrest for obstructing official business. Terry struggled to break free, so Officer Fosnight grabbed her other wrist. Terry tried to kick the officers as they forced her away from the truck and back toward Officer Bluma‘s cruiser. Bluma had to use an “arm bar” control technique to get handcuffs on Terry. She continued kicking the officers and pushed away from the cruiser when they tried to seat her inside. Officer Bluma had to force Terry‘s head down and push her into the backseat while Officer Fosnight pulled her in from the other side. Once she was locked inside the cruiser, Terry screamed at the officers, kicked the cruiser‘s windows and ceiling, and banged her head against the cages. She also managed to get one of her hands out of the handcuff.
{¶ 7} After they got Terry into his cruiser, Officer Bluma turned on the cruiser‘s video camera. While the camera faces forward, toward the front of the cruiser, it records sound from inside the vehicle. The audio and video recorded after Terry was put in was
{¶ 8} Dayton police officers arrived 10-15 minutes after Terry was put in the cruiser. When the Dayton officers finished their investigation, they moved Terry from Officer Bluma‘s cruiser to a Dayton police cruiser. Bluma testified that Terry did not go gracefully and resisted being handcuffed. (She had gotten one hand out of the handcuffs that Officer Bluma put on.) It took the efforts of two Dayton police officers to get the handcuffs on. And while being moved, Terry planted her feet in an attempt to prevent the officers from moving her. It took both officers to move her to their cruiser. Once inside, Terry began yelling and screaming at the Dayton police officers. The audio and video from the Dayton police cruiser that Terry was put in was also played at trial and admitted into evidence.
{¶ 9} Terry was charged with two second-degree misdemeanors—obstructing official business in violation of
{¶ 10} Terry appealed.
II. Analysis
{¶ 11} Terry assigns three errors to the trial court. The first assignment of error challenges the ruling on the motion to suppress. The second challenges the sufficiency of the evidence supporting her convictions. And the third assignment of error challenges Officer Bluma‘s testimony describing her conduct as “unacceptable behavior” and challenges the admission of his police-cruiser video.
A. There is no remedy for a violation of R.C. 2935.03 .
{¶ 12} The first assignment of error alleges that Terry‘s arrest violated
{¶ 13} Despite her claim that the charges should have been dismissed, we understand this assignment of error to be arguing that the motion to suppress, not the motion for acquittal, should have been granted because of an
{¶ 14} The standards used to review a motion-to-suppress ruling were recently restated by the Ohio Supreme Court:
“Appellate review of a motion to suppress presents a mixed question of law and fact.” In ruling on a motion to suppress, “the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” On appeal, we “must accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Accepting those facts as true, we must then “independently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶ 15}
{¶ 16} The state does not argue that the Huber Heights officer had authority to arrest Terry under
{¶ 17} Even if there were a remedy, there is no suppressible evidence here. As the trial court found, no evidence was obtained as a result of Terry‘s arrest: “I don‘t believe there are any suppressible statements, even as argued by the defense. I don‘t believe there are any suppressible statements. I don‘t believe there is any physical evidence that was obtained.” (Suppression Tr. 50). The only material evidence, said the court, is “the observations of the officers.” (Id. at 47). Terry‘s arrest was predicated primarily on her pre-arrest conduct, according to Officer Bluma, and no other evidence was obtained after her arrest. The evidence that supports the state‘s case comes from sources independent of Terry‘s post-arrest statements, i.e., the officer‘s observations. So the arrest led to no evidence subject to suppression.
{¶ 18} The first assignment of error is overruled.
B. The evidence supporting the verdicts is sufficient.
{¶ 20} In a sufficiency challenge, the question is “whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). “In other words, an appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” (Citation omitted.) Id.
{¶ 21} Terry was convicted of obstructing official business in violation of
{¶ 22} Terry acted purposefully if she acted with the “specific intention to cause a certain result,”
{¶ 23} Walking away from a police investigation and failing to heed a police officer‘s orders to stop can be sufficient to find a person guilty of obstructing official business. In Dayton v. Turic, 2d Dist. Montgomery No. 20149, 2005-Ohio-131, we held that a defendant‘s “belligerent conduct, her refusal to give her identification and her refusal to stop walking away from the officer when instructed to stop obstructed the officer‘s investigation of the altercation between [the defendant] and [others].” (Citations omitted.) Turic at ¶ 26. In that case, the defendant refused to show identification when a police officer requested it and attempted to exit the restaurant in which an altercation involving the defendant had occurred. Following the defendant, the officer told her several times to stop because the officer was still investigating. The defendant did not stop
{¶ 24} Here, Officer Bluma testified that while he was sitting in his cruiser entering notes and waiting for Dayton police to arrive, Terry told him that “she was going to get in her truck and leave.” (Trial Tr. 28). Bluma replied, “no, you‘re not.” (Id.). Terry then said “you can‘t do anything about it or something like that,” turned around, and walked toward the truck. (Id.). Officer Bluma again told her that she “was not getting into her truck.” (Id.). But Terry “continued to walk towards her truck.” (Id.). So Bluma followed, grabbed her wrist, and told her that she was under arrest for obstructing official business. Terry resisted violently, and Bluma had to restrain her.
{¶ 25} Terry did not offer testimony of her intent so the evidence about her intent is limited to reasonable inferences that can be drawn from the state‘s evidence. We are required to draw all reasonable inferences in favor of the state. After doing so from the evidence in the record, we think that the trial court reasonably found that Terry‘s intent in walking to the truck and ignoring Officer Bluma‘s command to stop was to prevent, obstruct, or delay the ongoing investigation. We also believe that the court reasonably found that this act hampered or impeded that investigation. Although Appellant does not make the specific argument that a Huber Heights police officer was not conducting official business while traversing the City of Dayton, we have no reservation finding that he was. We reasonably expect an on-duty police officer who observes potentially dangerous criminal activity to stop and investigate regardless of jurisdictional boundary. The evidence supporting Terry‘s conviction for obstructing official business is sufficient.
{¶ 26} To prove that a defendant committed the offense of resisting arrest, the
{¶ 27} Curiously, Terry does not argue that her arrest was unlawful under
{¶ 28} The second assignment of error is overruled.
C. The challenged evidence was admissible.
{¶ 29} The third assignment of error alleges that the trial court erred by allowing Officer Bluma to use pejorative language in his testimony to describe Terry‘s yelling to O‘Connell not to talk to the police and erred by showing the video recording from Officer Bluma‘s cruiser. “We will not disturb a trial court‘s evidentiary rulings unless we find ‘an abuse of discretion that has created material prejudice.’ ” State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 53, quoting State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 43.
{¶ 30} As an initial matter, Terry did not object at trial to this testimony from Officer Bluma, so she has waived all but plain error. “In order to prevail under a plain error analysis, [the appellant] bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the errors. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim. R. 52(B). Notice of plain error ‘is taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ Id. at ¶ 3 of the syllabus.” State v. Coots, 2015-Ohio-126, 27 N.E.3d 47, ¶ 48 (2d Dist.).
{¶ 31} Of course, evidence is not inadmissible merely because it is prejudicial. Were this the case, no defendant would be convicted. It is only if there is unfair prejudice that evidence may be excluded and then only if the danger of unfair prejudice substantially outweighs the probative value of the statement. Evid.R. 403(A). Here, Officer Bluma
{¶ 32} Terry argues that Officer Bluma‘s referring to her invocation of constitutional rights as “unacceptable behavior” severely prejudiced her, though she does not say how. After reviewing Bluma‘s testimony, we do not think that he is referring to what she was yelling to O‘Connell so much as that she was yelling. Her yelling made it difficult for Bluma to hear what O‘Connell was saying, which is why he told Terry to calm down. Also, we doubt very much that without this testimony the trial court would have found Terry not guilty.
{¶ 33} Turning to the video, Terry argues that it does not satisfy the relevancy requirement in Evid.R. 402. Because the video begins after her arrest, she says, it does not show her pre-arrest conduct that is the basis of the resisting-arrest conviction. But Officer Bluma testified that the screaming, cursing, banging, and shaking of the cruiser heard and seen in the video is a continuation of her earlier conduct. So the video tends to make it more probable that Terry resisted the officers’ efforts to arrest her. Terry alternatively argues that the video is inadmissible under Evid.R. 403, because its probative value is substantially outweighed by the danger of unfair prejudice. She says that showing the video prejudiced her and prevented her from having a fair trial. We watched the video, and we see little danger of unfair prejudice.
{¶ 35} The third assignment of error is overruled.
III. Conclusion
{¶ 36} We have overruled each of the assignments of error and the judgment of the trial court is affirmed.
. . . . . . . . . . . . .
DONOVAN, P.J., concurs.
FROELICH, J., concurring:
{¶ 37} I concur. I note, however, that the intersection of an officer‘s authority outside of his or her territorial jurisdiction, see, e.g., State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, and an officer‘s caretaking responsibilities, see e.g., State v. Dawley, Fifth District Fairfield No. 15-CA-66, 2016-Ohio-2904, could, with slightly different facts, result in a different outcome.
Copies mailed to:
Barbara J. Doseck
Stephanie L. Cook
Troy Daniels
Hilary Lerman
Hon. Christopher D. Roberts