[Cite as State v. Vitantonio, 2013-Ohio-4100.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2012-L-144
        - vs -                                   :

JOHN GEORGE VITANTONIO,                          :

                 Defendant-Appellant.            :


Criminal Appeal from the Painesville Municipal Court, Case No. 12CRB01834.

Judgment: Reversed and conviction vacated.


Edward C. Powers, Painesville City Prosecutor, 270 East Main Street, Suite 360,
Painesville, OH 44077 (For Plaintiff-Appellee).

Dominic J. Vitantonio, Argie, D’Amico & Vitantonio, 6449 Wilson Mills Road, Mayfield
Village, OH 44143-3402 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, John George Vitantonio, appeals the judgment of conviction

entered by the Painesville Municipal Court, after a bench trial, on one count of

obstructing official business, a second-degree misdemeanor in violation of R.C.

2921.31. Appellant’s conviction was premised upon his failure to immediately answer

the persistent knocking of law enforcement investigating a disturbance call at his

apartment.       On appeal, appellant argues the verdict is not supported by sufficient

evidence and is also against the manifest weight of the evidence. Given the absence of
an affirmative act, the elements of obstructing official business have not been proven

beyond a reasonable doubt.        Accordingly, appellant’s conviction is based upon

insufficient evidence and must be vacated. The judgment is therefore reversed.

      {¶2}   Appellant was charged with one count of obstructing official business.

The matter proceeded to a bench trial where the following was adduced through

testimony.

      {¶3}   In the early morning hours of August 18, 2012, Karlyle Huntington, a

resident at Brentwood Apartments, called the City of Painesville Police Department to

file a complaint concerning a domestic disturbance from appellant’s apartment, her

neighbor. Ms. Huntington explained she heard appellant and his girlfriend having an

argument and two children yelling and crying.      Ms. Huntington testified that, after

phoning the police, she went to appellant’s apartment and informed him she felt

compelled to notify the authorities. According to Ms. Huntington, appellant apologized

for the commotion.

      {¶4}   Painesville Police Sergeant Michael Slocum arrived with backup units to

investigate the disturbance call. Sergeant Slocum first interviewed Ms. Huntington, who

directed the officer to the apartment door from which the noise previously emanated. It

is unclear whether Ms. Huntington notified Sergeant Slocum that she spoke with

appellant. Sergeant Slocum knocked at appellant’s door and announced his presence,

hearing no noise or commotion from inside the apartment. Sergeant Slocum then went

outside and observed a light inside appellant’s apartment turn off. Returning inside the

building, Sergeant Slocum sought the aid of Diana Reed, property manager at

Brentwood Apartments. Ms. Reed attempted the master key to unlock appellant’s door;




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however, the locks on the apartment door had been changed. After knocking and

attempting entry for approximately 15 minutes, a female opened the door and the

officers investigated the disturbance. Appellant explained he was asleep and did not

hear the knocks on his door.          Appellant, though cooperative with the officer’s

investigation, was charged with obstructing official business for failing to open the door.

       {¶5}   Upon consideration of the evidence, the trial court found appellant guilty of

the charge and sentenced him to 30 days in jail, with 20 days suspended and the

remaining 10 days subject to an optional community work program in lieu of jail.

Appellant was also placed on community control for six months and ordered to pay a

$100 fine. According to a notation on the entry, the sentence was stayed pending

disposition of the appeal. On November 1, 2012, appellant filed a motion for a new trial

pursuant to Crim.R. 33(A)(4) based upon insufficient evidence at trial. On the same

day, appellant filed a motion to arrest judgment. On November 15, 2012, the trial court

denied both motions.

       {¶6}   On December 12, 2012, appellant filed his notice of appeal. We note

appellant’s appeal is timely as his motion for a new trial based upon insufficient

evidence, made after the entry of conviction, tolled the time for an appeal pursuant to

App.R. 4(B)(3)(b).

       {¶7}   Appellant asserts two assignments of error. Appellant’s first assignment

of error states:

              There is insufficient evidence to support the judgment of the trial
              court in finding Appellant guilty of the crime of obstructing official
              business, where the basis of the conviction is a finding (1) that
              Appellant failed and/or refused to answer the door to his apartment
              in response to the persistent knocking of police officers who were
              responding to a complaint, made by Appellant’s neighbor, of a



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              disturbance at Appellant’s premises, and (2) that the knocking
              police officers were possessed with exigent circumstances to enter
              into the premises.

       {¶8}   In his first assignment of error, appellant claims there is insufficient

evidence by which to support his conviction of obstructing official business.

       {¶9}   At the outset, appellant did not technically make a Crim.R. 29 motion for

acquittal during trial. There is a split of authority—both intra-district and inter-district—

concerning whether the failure to make a Crim.R. 29 motion for acquittal results in

waiver of the issue of sufficiency on appeal. See State v. Heiney, 11th Dist. Portage

No. 2006-P-0073, 2007-Ohio-1199, ¶11 (detailing the split of authority though ultimately

concluding defendant did not waive sufficiency argument).            However, appellant’s

counsel interrupted the trial court and argued at the close of all evidence that the

elements of the charge were not met, citing to extensive case law requiring an overt act

to sustain a conviction of obstructing official business. Thus, though not expressly

referring to Crim.R. 29, appellant effectively requested acquittal on the grounds that the

elements were not met as a matter of law. Appellant, also in the lower court, filed a

Crim.R. 33(A)(4) motion for a new trial based upon insufficient evidence which, though

technically distinct from a Crim.R. 29 motion by way of its remedy, nonetheless tests the

legal sufficiency of the conviction. For these reasons, we cannot conclude appellant

waived the issue of sufficiency on appeal.

       {¶10} The test for determining the issue of sufficiency is “whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, citing Jackson




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v. Virginia, 443 U.S. 307, 315 (1979). Thus, the claim of insufficient evidence invokes a

question of due process, the resolution of which does not allow for a weighing of the

evidence. State v. Lee, 11th Dist. Lake No. 2010-L-084, 2011-Ohio-4697, ¶9.

       {¶11} R.C. 2921.31 sets forth the charge of obstructing official business.        It

states, in relevant part:

       {¶12} “(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.”

       {¶13} Here, the purported “act” that allegedly impeded law enforcement in the

performance of their duty to investigate the reported domestic disturbance was, in fact,

a non-act: appellant’s failure to open his apartment door.             With respect to R.C.

2921.31(A), we previously held that “an individual cannot be found guilty of obstructing

official business by doing nothing because the statute specifically requires an offender

to act,” citing to case law throughout Ohio. State v. Brown, 11th Dist. Lake No. 2006-L-

064, 2006-Ohio-6872, ¶29. One such case cited with approval in Brown is analogous to

the case sub judice. In Columbus v. Michel, 55 Ohio App.2d 46 (10th Dist.1978), the

Tenth Appellate District concluded the defendant’s refusal to open the door to his home

at the request of police officers investigating a domestic disturbance call did not

constitute an act sufficient for an obstructing official business conviction under

Columbus City Code 2315.03(A), which mirrors R.C. 2921.31. Id. at 48. The Tenth

District concluded:

              The court is not unmindful of the situation faced by the officers. It
              would appear that under the facts of the instant case the officers



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              would have been justified in breaking open the door of the
              apartment to determine whether anyone was injured in the
              apartment. However, defendant’s failure to open the door to the
              apartment is not made a crime under Columbus City Code 2315.03.
Id.

        {¶14} Similarly, in Lakewood v. Simpson, 8th Dist. Cuyahoga No. 80383, 2002-

Ohio-4086, the Eighth Appellate District examined Lakewood Codified Ordinance

525.07 which prohibits obstructing official business in identical language as R.C.

2921.32. Id. at ¶15. There, the defendant dialed 9-1-1 and hung up. Dispatch sent law

enforcement units to the address and called back the listed number. The defendant

explained to dispatch that he dialed 9-1-1 in error. The police arrived at the defendant’s

apartment door and persistently knocked.          The defendant refused them entry,

explaining through the door that everything was fine and they were not needed. Id. at

¶2-4.   The Eighth District, though noting that exigent circumstances authorized the

officers to eventually make a warrantless entry into the apartment, concluded that the

defendant’s “refusal to respond to the building entrance buzzer, open his door at the

officers’ request, or consent to their entry are not affirmative acts, but omissions, and

L.C.O. 525.07 does not, and cannot prohibit a failure to act.” Id. at ¶15-16. The Eighth

District explained that obstructing official business clearly “does not criminalize a minor

delay, annoyance, irritation or inconvenience.” Id. at ¶16.

        {¶15} Similarly here, we are faced with a circumstance where appellant refused

to respond to the persistent knocking of law enforcement: a failure to act, not in and of

itself an affirmative act. Counsel for appellant acknowledged at oral argument that there

were exigent circumstances that permitted the police to enter the premises. However,

this merely means appellant was without privilege to refuse entry and the police could




                                            6
forcibly enter.   Consistent with the express language of the statute, as well as the

above-framed case law, the only issue to decide here is whether, beyond a reasonable

doubt, appellant performed any act that hampered or impeded law enforcement in their

investigation of the call, with purpose to do so. Missing from the evidence before the

trial court was any act appellant committed to impede the investigation.

       {¶16} Moreover, “the State must prove not only the commission of an overt act

done with an intent to obstruct the officers, ‘but it also must prove that [the defendant]

succeeded in actually hampering or impeding them.’”         State v. Crowell, 189 Ohio

App.3d 468, 2010-Ohio-4917 (2d Dist.), ¶12, quoting State v. McCoy, 2d Dist.

Montgomery No. 22479, 2008-Ohio-5648, ¶16. Here, appellant’s act of refusing entry

was, at most, an inconvenience for the officers who had to seek out a key and ultimately

consider breaking down the door. However, the door opened approximately 15 minutes

after the officer began knocking and announcing his presence, at which time the officers

investigated the nature of the disturbance and ensured the safety of the occupants.

       {¶17} We therefore conclude that, even when viewed in a light most favorable to

the prosecution, the elements of obstructing official business have not been met. This

holding should not be construed to dilute law enforcement’s ability to ardently

investigate domestic disputes when there is a reasonable belief that someone is in

imminent danger, has been injured, or is in need of immediate assistance. The eerie

calm following a reported domestic disturbance, coupled with a light going off in the

apartment and no response at the door, provided exigent circumstances to enter the

apartment in this case. Appellant was without privilege to refuse entry, and the record

indicates law enforcement was indeed prepared to forcibly enter the apartment;




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however, consistent with Michel and Simpson, supra, this satisfies but one element of

the statute criminalizing obstruction and is not dispositive of all other elements.

       {¶18} Appellant’s first assignment of error has merit.

       {¶19} Appellant’s second assignment of error states:

              The judgment of the trial court in finding Appellant guilty of the
              crime of obstructing official business is against the manifest weight
              of the evidence, where the basis of the conviction is a finding (1)
              that Appellant failed and/or refused to answer the door to his
              apartment in response to the persistent knocking of police officers
              who were responding to a complaint, made by Appellant’s
              neighbor, of a disturbance at Appellant’s premises, and (2) that the
              knocking police officers were possessed with exigent
              circumstances to enter into the premises.

       {¶20} The disposition of appellant’s first assignment of error renders the

assignment of error concerning manifest weight of the evidence moot.

       {¶21} In light of the foregoing, the judgment of the Painesville Municipal Court is

reversed. Appellant’s conviction for obstructing official business is hereby vacated.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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