[Cite as Mayfield Hts. v. Brown, 2013-Ohio-4374.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99222



                       CITY OF MAYFIELD HEIGHTS
                                                    PLAINTIFF-APPELLEE

                                                     vs.


                                    BETTY J. BROWN
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART
                            AND REMANDED


                                       Criminal Appeal from the
                                      Lyndhurst Municipal Court
                                       Case No. 08 CRB 01100

        BEFORE: Kilbane, J., Jones, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                          October 3, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEY FOR APPELLEE

Dominic J. Vitantonio
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Mayfield Village, Ohio 44143
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Betty J. Brown, appeals her conviction for obstructing

official business. After careful review of the record and relevant case law, we affirm

defendant’s conviction, but we reverse and remand for the recalculation of court costs.

      {¶2} Defendant was charged with one count of obstructing official business, in

violation of Mayfield Heights Codified Ordinances Section 505.14, and in connection

with her actions on November 8, 2008, while paramedics were at the home of Evelyn

Schwartz (“Schwartz”).     Defendant pled not guilty and filed a number of pro se

pleadings. On March 17, 2009, the trial court appointed counsel for her and sua sponte

ordered her to appear for a competency evaluation.

      {¶3} The trial court found the defendant competent to stand trial. On June 9,

2009, the defendant discharged her court-appointed attorney, and the matter proceeded to

a jury trial on September 29, 2010. The defendant elected to represent herself with the

assistance of stand-by counsel. On October 1, 2010, the jury found the defendant guilty

of the charge of obstructing official business. On appeal, this court held that the trial

court failed to ensure that the defendant knowingly, intelligently, and voluntarily waived

her right to counsel, and the matter was reversed and remanded for a new trial. See

Mayfield Hts. v. Brown, 8th Dist. Cuyahoga No. 96062, 2012-Ohio-167 (“Brown I”).

      {¶4} The retrial commenced on September 19, 2012.                Mayfield Heights

dispatcher, Nancy Horvath (“Horvath”), testified that on November 7, 2008, at 3:41 p.m.,
the city received a call for assistance at 1143 Genesee Avenue.          The caller, Dean

Marinpietri (“Marinpietri”), told the dispatcher that he resides at 1143 Genesee Avenue

with his aunt, 92-year-old Schwartz. He stated that he was currently in the hospital and

that Schwartz had an unwanted visitor, Eleanor Uhlir (“Uhlir”), and he asked that the

police remove Uhlir from the home. Marinpietri stated that Schwartz was ill, and that

Uhlir wanted to take her to the hospital, but Schwartz wanted to die at home. Horvath

told Marinpietri that she was sending police officers to the home for a welfare check.

       {¶5} At approximately 4:06 p.m., Mayfield Heights dispatcher, Anita Pisanni

(“Pisanni”), received a follow-up call from Marinpietri. Pisanni advised him that the

officers spoke with Schwartz and determined that she wanted Uhlir at her house and that

Uhlir was taking care of her. After speaking with police officers on the scene, EMS was

dispatched to the home at 4:45 p.m.

       {¶6} Mayfield Heights police officer Robert Lord (“Officer Lord”) testified that

he responded to 1143 Genesee Avenue for a welfare check. The resident, Schwartz, was

in bed. She explained that she felt ill so she called Uhlir, and that Uhlir was not an

intruder in the home. During the welfare check, Marinpietri called the home twice.

During these phone calls, he stated that he had power of attorney over Schwartz. Officer

Lord subsequently learned that Marinpietri was not related to Schwartz; but rather, he was

her handyman. He had moved into the house to help Schwartz care for it, but it was

cluttered and in disarray. Officer Lord also subsequently learned that Marinpietri does

not have power of attorney over Schwartz, and that the individual with the power of
attorney is Dorothy Buzek (“Buzek”), who lives in Tennessee. The officers also learned

that Uhlir is Schwartz’s sister-in-law. Officer Lord became concerned that Schwartz was

the victim of undue influence so they determined that they would write a report on the

matter and refer it to the city social worker.

       {¶7} Officer Lord testified that Linda Jones (“Jones”), a worker at Manor Care,

subsequently arrived at Schwartz’s home, and brought fluids for her. At that point, the

defendant arrived.     The defendant initially refused to provide identification for the

officers or to explain her presence at the home, but she eventually stated that she had

arrived to care for Schwartz. Schwartz stated that she did not want the defendant there,

and that she wanted Uhlir to remain with her. The defendant explained that she was just

there to say hello.

       {¶8} Officer Lord observed vomit on Schwartz’s nightgown and also observed

that her bed was soiled. She had a cough and told the officer that she had been throwing

up. At approximately 4:52 p.m., Officer Lord called EMS for Schwartz. Eventually,

Schwartz told emergency workers that she wanted to go to the hospital.

       {¶9} At this point, according to officer Lord, the defendant stated that Schwartz

was not going to the hospital, attempted to refute the officer’s concerns for Schwartz’s

health, and began answering questions that the officer directed to Schwartz.           The

defendant repeatedly refused Lord’s requests for her to leave Schwartz’s bedroom, and as

the officers considered calling Schwartz’s doctor, the defendant insisted that she would be

calling the individual with the power of attorney over Schwartz. The defendant then
crawled onto Schwartz’s bed and prevented the paramedics from taking Schwartz’s vital

signs. She was placed under arrest.

      {¶10} Retired Mayfield Heights police sergeant Larry Brizie (“Brizie”) testified

that he and EMS workers made a joint decision that it would be in Schwartz’s best

interest to go to the hospital. The defendant, however, insisted that she was not going to

the hospital, impeded the officers from taking her vital signs, and climbed “spread eagle”

on top of Schwartz, preventing the officers from taking Schwartz to the hospital.

      {¶11} Michael Puin and Mark Palumbo of the Mayfield Heights Fire Department

testified that the defendant blocked their entrance to Schwartz’s bedroom, interrupted the

officers as they attempted to speak with Schwartz, and got onto Schwartz’s bed to keep

them from assessing Schwartz’s condition. They repeatedly asked her to get out of the

room but she refused.

      {¶12} The defendant elected to present evidence and presented testimony from

Jones and Marinpietri. Jones testified that she met Schwartz when Schwartz was at the

nursing home. During this time, Jones met Marinpietri, who was living at Schwartz’s

home. He cooked for her and did work around her house for the past 15 years. Jones

cared for Schwartz during the evening, several days per week. According to Jones, after

Schwartz became ill, Uhlir insisted that she go to the hospital, but Schwartz did not want

to go and preferred to wait until Marinpietri could take her to see her doctor. Following

the disagreement with Uhlir, the police arrived for a welfare check. As they prepared to

leave, the defendant arrived. The officers later observed that Schwartz had vomited, and
they decided to take her to the hospital. At that point, the paramedics asked to clear the

room. According to Jones, Schwartz did not want to go to the hospital, so the defendant

said, “no, I am doing what Evelyn wants.” The defendant then reached for the phone to

call Buzek, as one of the officers reached for the phone. The defendant was then

arrested. Jones denied that the defendant jumped onto Schwartz’s bed.

       {¶13} Marinpietri testified that he was in the hospital recovering from quadruple

bypass surgery at the time of the events at issue. He stated that on the day of the

incident, Schwartz told him that she did not want to go to the hospital, and that she asked

him to call the police to get Uhlir out of her house.

       {¶14} On September 20, 2012, the jury found the defendant guilty of obstructing

official business. On November 14, 2012, the trial court sentenced the defendant to 90

days in jail, suspended “provided no similar circumstances,” and a $750 fine with $250

suspended, plus court costs. On appeal, the defendant assigns three errors.

                                 Assignment of Error One

       Defendant was denied due process of law when the court refused to dismiss

       the charges.

       {¶15} When reviewing a challenge to the sufficiency of evidence, an appellate

court must view the evidence in a light most favorable to the prosecution and determine if

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.       Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
      {¶16} Mayfield Heights Codified Ordinances Section 505.14 is modeled after R.C.

2921.31 and 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.

      {¶17} The offense of obstruction of official business requires an affirmative act,

not just an omission to act. Columbus v. Michel, 55 Ohio App.2d 46, 48, 378 N.E.2d

1077 (10th Dist.1978); State v. McCrone, 63 Ohio App.3d 831, 835, 580 N.E.2d 468 (9th

Dist.1989). Mere failure to obey a law enforcement officer’s request does not constitute

obstruction of official business. Garfield Hts. v. Simpson, 82 Ohio App.3d 286, 611

N.E.2d 892 (8th Dist.1992). Nonetheless, the statute is satisfied by any act that hampers

or impedes a public official in the performance of his lawful duties. State v. Stayton, 126

Ohio App.3d 158, 163, 709 N.E.2d 1224 (1st Dist.1998). A violation of R.C. 2921.31

does not require the accused to be successful in preventing officers from doing their job.

State v. Luke, 4th Dist. Washington No. 09CA30, 2010-Ohio-4309.

       {¶18} In this matter, the evidence presented by the city established that the

defendant blocked firefighters from entering Schwartz’s room, grabbed the telephone

when a police officer attempted to call Schwartz’s physician, got onto Schwartz’s bed,

and obstructed the emergency workers as they attempted to determine Schwartz’s vital
signs. From the evidence presented by the city, a jury could reasonably conclude that the

defendant obstructed or delayed the emergency workers in the performance of their

official duties in conducting the welfare check of Schwartz, and impeded them in the

performance of their duties. There is sufficient evidence to support the conviction for

obstructing official business in violation of Mayfield Codified Ordinances Section

505.14.

       {¶19} The first assignment of error is without merit.

                                 Assignment of Error Two

       Defendant was denied due process of law when the court imposed costs
       concerning the first and second trials.

       {¶20} The imposition of costs is governed by R.C. 2947.23. Judgment for costs

and jury fees

       (A) (1) (a) In all criminal cases, including violations of ordinances, the
       judge or magistrate shall include in the sentence the costs of prosecution,
       including any costs under section 2947.231 of the Revised Code, and render
       a judgment against the defendant for such costs. * * *

       {¶21} Ohio courts have consistently interpreted this statute to hold that a trial court

may assess the costs related to a prosecution only if the State is successful and a

defendant has been found guilty and sentenced. State v. Simmons, 8th Dist. Cuyahoga

No. 91628, 2007-Ohio-6636; State v. Powers, 117 Ohio App.3d 124, 128, 690 N.E.2d 32

(6th Dist.1996). The Powers court reasoned that the statutory reference to the term

“sentence” requires a “judgment formally pronounced by the court or judge upon the

defendant after his conviction in a criminal prosecution.”         Id.   Further, in State v.
Kortum, 12th Dist. Warren No. CA2001-04-034, 2002-Ohio-613, the court held that

because the defendant’s original conviction resulted in a reversal because of the state’s

failure to provide reliable discovery, the costs of the first jury trial should not be assessed

against her.

       {¶22} In accordance with the foregoing, since the defendant’s original conviction

was reversed because the trial court failed to ensure that she knowingly, intelligently, and

voluntarily waived her right to counsel, and that she voluntarily represented herself, the

costs from the original proceedings cannot be assessed to her. Rather, costs may only be

assessed from the point of our remand in Brown I, i.e., January 19, 2012, to final

disposition.

       {¶23} The second assignment of error is well taken.

                                 Assignment of Error Three

       Defendant was denied due process of law when the court imposed a

       condition on defendant without placing her on probation.

       {¶24} Trial courts are given broad discretion in their sentencing authority when it

comes to conditions of probation. Garfield Hts. v. Tvergyak, 8th Dist. Cuyahoga No.

84825, 2005-Ohio-2445, ¶ 5. Under R.C. 2929.27(C), the court “may impose any other

sanction that is intended to discourage the offender or other persons from committing a

similar offense if the sanction is reasonably related to the overriding purposes and

principles of misdemeanor sentencing.”          Thus, the sentencing court can impose

additional conditions aimed at preserving the interests of justice, protection of the
community, and the rehabilitation of the offender.        Id. In describing conditions of

probation, a term then used to describe suspended sentences for misdemeanors,1 the Ohio

Supreme Court in State v. Jones, 49 Ohio St.3d 51, 52, 550 N.E.2d 469 (1990), stated

that

       courts should consider whether the condition [of probation] (1) is
       reasonably related to rehabilitating the offender, (2) has some relationship
       to the crime of which the offender was convicted, and (3) relates to the
       conduct which is criminal or reasonably related to future criminality and
       serves the statutory ends of probation.

The duration of such conditions may not exceed five years. R.C. 2929.25(A)(2).

       {¶25} In this matter, the trial court suspended the 90-day jail term “provided no

similar circumstances.” This condition clearly bears a relationship to the offense at

issue, is related to rehabilitating the defendant, and is fashioned to prevent future crimes

of obstructing official business. It is not consistent with the purposes of misdemeanor

sentencing.   The trial court did not err and abuse its discretion in establishing this

condition for the suspension of the 90-day jail term, but it is subject to a five-year limit.



       {¶26} The third assignment of error is without merit.

       {¶27} The defendant’s conviction is affirmed, the costs portion of the court’s final

journal entry is reversed, and the case is remanded for a recalculation of court costs.


       1As explained in State v. Mack, 6th Dist. Lucas No. L-11-1065,
2011-Ohio-2439, “[p]rior to the amendment of R.C. 2951.02 and enactment of R.C.
2929.25 under H.B. 490, effective in 2003, the term ‘probation’ was used when
referring to suspended sentences for misdemeanors. See former R.C. 2951.02.”
      It is ordered that appellant and appellee share 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 Lyndhurst

Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
