[Cite as State v. Harris, 2018-Ohio-4316.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY


STATE OF OHIO,                                      :

        Plaintiff-Appellee,                  :      Case No. 18CA4

        vs.                                         :

PATRICK HARRIS,                              :      DECISION AND JUDGMENT ENTRY

        Defendant-Appellant. :

_________________________________________________________________

                                                 APPEARANCES:

Patrick N. Harris, Orlando, Florida, pro se.

Lisa A. Eliason, Athens City Law Director, and Jessica L. Branner, Athens City Prosecutor,
Athens, Ohio, for Appellee.


CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-17-18
ABELE, J.

        {¶ 1} This is an appeal from an Athens County Municipal Court judgment of conviction

and sentence. The trial court found Patrick N. Harris, defendant below and appellant herein,

guilty of obstructing official business, in violation of R.C. 2921.31, and possessing an open

container of alcohol, in violation of R.C. 4301.62. Appellant raises the following assignment of

error for review:

                 “THE EXPLANATION OF CIRCUMSTANCES WAS
                 INSUFFICIENT TO ALLOW THE TRIAL COURT TO MAKE A
                 FINDING OF GUILTY UPON THE DEFENDANT’S PLEA OF
                 NO CONTEST.”
[Cite as State v. Harris, 2018-Ohio-4316.]
        {¶ 2} On November 5, 2017, shortly after midnight, Ohio University Police Lieutenant

Farin Barber encountered appellant and appellant’s two adult children, a son and a daughter.

The lieutenant noticed that both appellant and appellant’s daughter possessed open containers of

alcohol.    Lieutenant Barber approached appellant and asked him to “turn around” so the

lieutenant could remove the open container from appellant’s person.             Appellant refused to

comply. Instead, appellant handed the open container to appellant’s son and told his son to

dispose of the open container.          Appellant also instructed his daughter to leave the scene.

Lieutenant Barber subsequently arrested appellant and charged him with obstructing official

business and possessing an open container of alcohol.

        {¶ 3} Subsequently, appellant entered no-contest pleas to the two charges. At the plea

hearing, appellant indicated that, although he agreed to enter no-contest pleas, he did not believe

that the facts sufficiently established the offense of obstructing official business.

        {¶ 4} At the change of plea hearing, the prosecutor offered Lieutenant Barber’s report as

the explanation of circumstances. The report states:

                 On November 5th, 2017, at zero thirty-two hours while patrolling in the

        area of 134 Mill Street, I observed a male later identified as 54 year old Patrick N.

        Harris with an open container of beer, Red Stripe, tucked under his right arm. I

        also observed a female with an open container of wine * * * standing next to Mr.

        Harris, later identified as 22 year old Kaitlyn A. Harris. I asked Mr. Harris to

        turn around so I could remove the bottle from under his arm. Mr. Harris looked

        at me and said, no. I then informed Mr. Harris that he was in possession of an

        open container. He handed it to his son and said, throw this out and throw it in
ATHENS, 18CA4                                                                                     3

       the grass. Mr. Harris then told Ms. Harris and his son to leave the area. I

       informed Mr. Harris that Ms. Harris was not to leave, and she was also containing

       [sic] an open container, and if she attempted to leave she would be arrested. Mr.

       Harris again told both to leave and was placed under arrest for obstruction of

       official business. While placing Mr. Harris in handcuffs, he attempted to ask his

       son to intervene in the arrest, and his son said, what am I supposed to do? Mr.

       Harris then stated, you are making a big mistake, I was a judge, and you can’t

       arrest me. While near the patrol car, Mr. Harris shoved backwards attempting to

       knock me off balance and said, go, now, leave now, speaking to Ms. Harris. I

       then called for backup and ordered Ms. Harris to place her hands on the back of

       my patrol car. Ms. Harris refused and said, what do I do? Mr. Harris again told

       Ms. Harris to leave. I again ordered Ms. Harris to place her hands on my patrol

       car and to not leave or she would also be arrested for obstruction. Ms. Harris

       then turned around and walked away in the direction of Stewart Street.              I

       informed arriving officers to place Ms. Harris under arrest for obstruction of

       official business. Both were transported back to OUPD for processing.”

       {¶ 5} Following the prosecutor’s explanation of circumstances, appellant entered

no-contest pleas to both charges, and the trial court found appellant guilty as charged. This

appeal followed.

       {¶ 6} In his sole assignment of error, appellant asserts that the prosecution’s explanation

of circumstances did not sufficiently establish the essential elements of the offense of obstructing
ATHENS, 18CA4                                                                                    4

official business. In particular, he contends that the facts fail to show that he committed an

affirmative act, or that his conduct actually interfered with the officer’s investigation.

                                                  A

       {¶ 7} Generally, appellate courts conduct a de novo review of a trial court’s finding of

guilt pursuant to a no-contest plea in a misdemeanor case. State v. Erskine, 2015-Ohio-710, 29

N.E.3d 272 (4th Dist.), ¶ 10, citing Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 150, 459 N.E.2d

532 (1984). In the case sub judice we therefore independently review whether the trial court

properly accepted appellant’s no-contest plea. Id.

                                                  B

       {¶ 8} R.C. 2937.07 governs no-contest pleas in misdemeanor cases. The statute states

that a no-contest plea to a misdemeanor offense constitutes “an admission of the truth of the facts

alleged in the complaint.” The statute further provides that the trial court “may make a finding

of guilty or not guilty from the explanation of the circumstances of the offense.”            This

explanation-of-circumstances requirement ensures that the prosecution establishes all of the

essential elements of a misdemeanor offense and prevents the trial court from finding a defendant

guilty in a “‘perfunctory fashion.’”      Bowers, 9 Ohio St.3d at 150, quoting Springdale v.

Hubbard, 52 Ohio App.2d 255, 259-260, 369 N.E.2d 808 (1st Dist.1977). Accordingly, the

explanation of circumstances “‘”serves as the evidence upon which the trial court is to base its

finding of guilty or not guilty.”’” Euclid v. Cannon, 8th Dist. No. 105733, 2018-Ohio-286, 105

N.E.3d 481, 2018 WL 565496, ¶ 6, quoting State v. Schornak, 2d Dist. Greene No. 2014-CA-59,

2015-Ohio-3383, 41 N.E.3d 168, ¶ 7, quoting State v. Steward, 2d Dist. Montgomery No. 19971,

2004 WL 1352628, *1–2 (June 10, 2004). A defendant has a substantive right to an acquittal if
ATHENS, 18CA4                                                                                      5

the explanation of circumstances fails to establish all of the essential elements of the offense.

Bowers, 9 Ohio St.3d at 150; e.g., Cannon at ¶ 6; Erskine at ¶ 11.

       {¶ 9} Although R.C. 2937.07 does not define “explanation of the circumstances,” courts

have held that “the explanation ‘necessarily involves, at a minimum, some positive recitation of

facts which, if the court finds them to be true, would permit the court to enter a guilty verdict and

a judgment of conviction on the charge to which the accused has offered a plea of no contest.’”

Cannon at ¶ 7, quoting State v. Keplinger, 2d Dist. Greene No. 98–CA–24, 1998 WL 864837, *3

(Nov. 13, 1998); accord State v. Czech, 6th Dist. Lucas No. L-13-1141, 2015-Ohio-458, ¶ 18.

The explanation, therefore, must be more than a bare recitation of the elements of the offense

charged. Id.

                                                 C

       {¶ 10} R.C. 2921.31(A) contains the essential elements of the offense of obstructing

official business. The statute provides:

               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.

       {¶ 11} A trial court may find a defendant guilty of obstructing official business, pursuant

to a misdemeanor no-contest plea, when the explanation of circumstances establish five essential

elements: “(1) an act by the defendant, (2) done with the purpose to prevent, obstruct, or delay a

public official, (3) that actually hampers or impedes a public official, (4) while the official is

acting in the performance of a lawful duty, and (5) the defendant so acts without privilege.”
ATHENS, 18CA4                                                                                    6

State v. Kates, 169 Ohio App.3d 766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 21 (10th Dist.)

(citations omitted).

       {¶ 12} In the case sub judice, appellant argues that the prosecution’s explanation of

circumstances did not sufficiently establish that he (1) committed an act, (2) that hampered or

impeded the officer’s performance of his lawful duties. Appellant claims that he did not engage

in any affirmative acts, but rather, he simply refused to provide information. Appellant further

asserts that, even if he engaged in an affirmative act, his conduct did not actually hamper or

impede the officer’s performance of his lawful duties. Appellant contends that none of his acts

prevented the officer from successfully concluding the investigation. Appellant observes that

the officer ultimately arrested both appellant and appellant’s daughter. Appellant thus claims

that none of his actions actually hampered or impeded the officer.

                                             1

       {¶ 13} R.C. 2921.31 recognizes that “[c]omplete and honest cooperation with the law

enforcement process by all citizens is essential to the effective operation of the justice system.”

State v. Lazzaro, 76 Ohio St.3d 261, 667 N.E.2d 384 (1996) (construing R.C. 2921.31(A) and

2921.13(A)(3)). However, R.C. 2921.31 “criminalize[s] 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; accord State v. Newsome, 4th Dist.

Hocking No. 17CA2, 2017-Ohio-7488; State v. Wellman, 173 Ohio App.3d 494,

2007–Ohio–2953, 879 N.E.2d 215, ¶ 10; State v. Grooms, 10th Dist. Franklin No. 03AP–1244,

2005–Ohio–706, ¶ 18. Thus, a refusal to provide requested information to a law enforcement

officer, without more, does not violate the obstruction statute. Cleveland Hts. v. Lewis, 187
ATHENS, 18CA4                                                                                      7

Ohio App.3d 786, 2010-Ohio-2208, 933 N.E.2d 1146 (8th Dist.), ¶¶ 36-37.                  Instead, “a

defendant must engage in some affirmative or overt act or undertaking that hampers or impedes a

public official in the performance of the official’s lawful duties, as opposed to merely failing or

refusing to cooperate or obey a police officer’s request for information.” State v. Prestel, 2nd

Dist. Montgomery No. 20822, 2005–Ohio–5236, ¶ 16. For example, courts have found that the

following conduct constitutes an affirmative act under the obstruction statute: (1) “taunting”

officers in a “loud and boisterous manner” and pulling away during an arrest, State v. Greene, 9th

Dist. Lorain No. 08CA009465, 2009-Ohio-2518, 2009 WL 1515367, ¶ 15; (2) “snatching” a

driver’s license from an officer attempting to write an open container ticket, State v. Lester, 12th

Dist. Butler No. CA2003-09-244, 2004-Ohio-2909, 2004 WL 1239179, ¶ 49; (3) physically

interfering with an officer’s attempt to issue citations for open container violations, State v.

Daily, 4th Dist. Athens No. 97CA25, 1998 WL 18139, *1; (4) actively evading an officer, State

v. Newsome, 4th Dist. Hocking No. 17CA2, 2017-Ohio-7488; (5) making a false statement, State

v. Novak, 4th Dist. Gallia No. 16CA4, 2017-Ohio-455, 2017 WL 495603; (6) preventing officers

from closing a police cruiser door, State v. Dunn, Pickaway App. No. 06CA6, 2006-Ohio-6550,

2006 WL 3575807, ¶ 47; (7) refusing officer’s instruction to put down knife while pointing it at

officer, State v. Neptune, 4th Dist. Athens No. 99CA25, 2000 WL 502830 (Apr. 21, 2000); (8)

fleeing after request to stop, State v. Certain, 180 Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d

1259 (4th Dist.); (9) “repeatedly yelling insults at the officers, purposefully distracting them from

an arrest, and brandishing the pepper spray,” State v. Bryant, 9th Dist. Summit No. 17547 (Aug.

28, 1996), *6; and (10) acting in “an antagonistic” manner, State v. Shoe, 3rd Dist. Shelby No.

17-17-22, 2018-Ohio-3006, 2018 WL 3621052, ¶ 21.
[Cite as State v. Harris, 2018-Ohio-4316.]
        {¶ 14} In the case at bar, the prosecution’s explanation of circumstances established that

appellant did more than simply refuse to respond to the officer’s request to “turn around.” The

officer informed appellant that appellant possessed an open container and asked appellant “to

turn around so [the lieutenant] could remove the bottle from under [appellant’s] arm.” Rather

than complying with the officer’s request, appellant handed the container to his son. Thus,

appellant did not simply refuse to obey the officer’s request to “turn around,” but, instead,

affirmatively handed the container to another individual. Furthermore, appellant directed his

daughter, whom the officer also suspected of possessing an open container, to flee the scene.

The officer explicitly informed appellant that appellant’s daughter could not depart the area, yet

appellant again told her to leave. Thus, appellant’s verbal instruction to his daughter to leave the

area constituted an affirmative act of disobedience, not a mere failure to refuse to comply with

the officer’s request. Again, appellant directly contravened the officer’s order that appellant’s

daughter could not leave the area. Moreover, when the officer arrested appellant, appellant

instructed his son to intervene and continued to advise his daughter to leave the scene. We

therefore reject appellant’s assertion that his conduct constituted a mere refusal to respond and

that he did not engage in an affirmative act.

                                                 2

        {¶ 15} Appellant next asserts that even if he engaged in an affirmative act, none of his

actions actually hampered or impeded the officer’s investigation.    Appellant first contends that

even if telling his son to discard the container constituted an affirmative act, the explanation of

circumstances fails to reveal how this affirmative act hampered or impeded the investigation.

Appellant also observes that the explanation of circumstances did not indicate whether
ATHENS, 18CA4                                                                                      9

appellant’s son actually discarded the container, as appellant ordered. Appellant thus claims that

the explanation of circumstances fails to show that appellant’s alleged affirmative act adversely

affected the officer’s investigation. Appellant also argues that, even if advising his children to

leave the scene of an active investigation constituted an affirmative act, the explanation of

circumstances shows that his children did not, in fact, leave the scene. Because his children did

not leave the scene, appellant reasons, his conduct did not actually hamper or impede the

officer’s investigation.   Appellant further points out that the officer ultimately successfully

arrested both him and his daughter.

       {¶ 16} Many Ohio court decisions indicate that an obstructing official business conviction

does not require that the defendant “be successful in preventing the officers from doing their

job.” State v. Daily, 4th Dist. Athens No. 97CA25, 1998 WL 18139, *4; accord State v. Luke,

4th Dist. Washington No. 09CA30, 2010-Ohio-4309, 2010 WL 3532092, ¶ 15; State v. Bailey,

4th Dist. Hocking No. 09CA9, 2010-Ohio-213, 2010 WL 259082, ¶ 36; State v. Stayton, 126

Ohio App.3d 158, 709 N.E.2d 1224 (1st Dist. Hamilton 1998); State v. McCoy, Montgomery

App. No. 22479, 2008-Ohio-5648, 2008 WL 4763231, ¶ 16 (stating that defendant need not

“cause the officers to fail in their duties, but only that, by acting, he disrupted their performance

of them”). Rather, “the record must demonstrate only that the defendant’s conduct hampered or

impeded the public official’s ability to perform his or her official duties.” Novak at ¶ 16

(citations omitted).

               That is not to suggest that every act that can conceivably be said to hinder
       a police officer rises to the level of criminal conduct. Certainly there is a level of
       hindrance that is simply too casual, remote, or indirect to be punishable under the
       statute. Although entitled to full respect of the badge and uniform in the
       execution of his or her duty, a police officer is expected to tolerate a certain level
ATHENS, 18CA4                                                                                   10

       of uncooperativeness, especially in a free society in which the citizenry is not
       obliged to be either blindly or silently obeisant to law enforcement. Interference
       with the police by citizens must, therefore, be necessarily viewed as a continuum
       along which, at a certain point, the line is crossed.

Stayton, 126 Ohio App.3d at 164. However, the obstructing official business statute thus “‘does

not criminalize [every] minor delay, annoyance, irritation or inconvenience.’”             State v.

Vitantonio, 2013-Ohio-4100, 995 N.E.2d 1291 (11th Dist.), ¶ 14, quoting Lakewood v. Simpson,

8th Dist. Cuyahoga No. 80383, 2002-Ohio-4086, 2002 WL 1824975.                 Instead, the statute

criminalizes conduct that causes “some substantial stoppage of the officer’s progress” or that

makes the performance of an official duty “more difficult.” Wellman at ¶ 17; State v. Ertel, 12th

Dist. Warren No. CA2015-12-109, 2016-Ohio-2682, ¶ 8, citing State v. Standifer, 12th Dist.

Warren No. CA2011-07-071, 2012-Ohio-3132, ¶ 28, citing State v. Whitt, 12th Dist. Butler No.

CA89-06-091, 1990 WL 82592, *2 (June 18, 1990).

       {¶ 17} Additionally, courts that consider whether a defendant hampered or impeded an

officer generally examine the totality of the defendant’s conduct. State v. Body, 2nd Dist.

Montgomery No. 27732, 2018-Ohio-3395, 2018 WL 4050522, ¶ 22, citing State v. Overholt, 9th

Dist. Medina No. 2905-M, 1999 WL 635717, *2 (Aug. 18, 1999) (finding defendant’s refusal to

leave the scene, interference with an officer’s attempts to complete an arrest, and profane

outbursts sufficiently established defendant hampered or impeded officer’s efforts), and North

Ridgeville v. Reichbaum, 112 Ohio App.3d 79, 84, 677 N.E.2d 1245 (9th Dist.1996) (concluding

multiple affirmative acts taken together can be sufficient to establish that defendant hampered or

impeded officer’s lawful duties). Thus, when a defendant’s “overall pattern of behavior is one

of resistance, * * * officers may consider the totality of the events and need not point to a single
ATHENS, 18CA4                                                                                  11

act that rises to the level of obstruction.” Lyons v. Xenia, 417 F.3d 565, 574 (6th Cir.2005),

quoted in Body at ¶ 22.

           {¶ 18} In the case sub judice, we believe that the explanation of circumstances

sufficiently shows that appellant’s overall conduct actually hampered or impeded the officer’s

official duties.     Although appellant asserts that his conduct did not actually prevent the

lieutenant from concluding his investigation and arresting appellant and appellant’s daughter, we

observe that the question under the obstruction statute is not whether a defendant prevented an

officer from completing an official duty, but rather whether the defendant made the officer’s

performance of that duty more difficult. See Wellman at ¶ 17.

           {¶ 19} In Novak, for example, we affirmed the defendant’s conviction for obstructing

official business even though the defendant asserted that his conduct did not prevent the officers

from completing the official duty. The defendant argued that he could not be convicted under

the obstruction statute when a false statement that he gave to the law enforcement officers did not

actually hamper or impede their apprehension of a suspect. The defendant claimed that the

officers ultimately apprehended the suspect and that his false statement did not, therefore,

hamper or impede their efforts.        We, however, rejected the defendant’s argument.         We

emphasized that the defendant’s conduct needed only to delay, impede or obstruct–and not

completely prevent–the officers’ apprehension of the suspect to constitute a violation of the

statute.

           {¶ 20} For this same reason, we reject appellant’s argument that his conduct did not

actually hamper or impede the officer’s investigation of the open-container violations or the

arrest of appellant and appellant’s daughter. Even though the officer ultimately successfully
ATHENS, 18CA4                                                                                 12

arrested both appellant and his daughter, the officer noted that appellant hindered the

investigation and arrests by advising his son to intervene in the arrest and by advising his

daughter to leave the scene. The officer further noted that appellant’s conduct required him to

contact other officers for assistance. See Overholt at *3 (determining that defendant’s actions

sufficiently hampered or impeded officer when defendant’s conduct caused officer “to

characterize the situation as high-risk and to fear for his own safety and the safety of other

officers on the scene”).

       {¶ 21} Moreover, appellant’s affirmative acts hampered or impeded the officer’s

open-container investigation.     Appellant’s act of handing the open container to his son,

combined with instructions to his daughter to leave the area, delayed the officer’s investigation

into the alleged violation.     Both actions interfered with the officer’s ability to investigate

whether appellant and his daughter were, in fact, violating the statute. Even if the officer

ultimately successfully completed his investigation, appellant’s conduct nevertheless hampered

or impeded the officer’s investigation.

       {¶ 22} Consequently, after our review we believe that the prosecutor’s explanation of

circumstances adequately shows that appellant committed an affirmative act, and that appellant’s

act actually hampered or impeded the officer’s performance of his official duties.

                                                D

       {¶ 23} Accordingly, based upon the foregoing reasons, we overrule appellant’s

assignment of error and affirm the trial court’s judgment.

                                                                       JUDGMENT AFFIRMED.
[Cite as State v. Harris, 2018-Ohio-4316.]



                                             JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens County
Municipal Court 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 that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        Hoover, P.J. & Harsha, J.: Concur in Judgment & Opinion

                                                       For the Court




                                                       BY:
                             Peter B. Abele, 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.
