[Cite as State v. Body, 2018-Ohio-3395.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 27732
                                                 :
 v.                                              :   Trial Court Case Nos. 2017-CRB-606
                                                 :   and 2017-CRB-696
 LAQUITA M. BODY                                 :
                                                 :   (Criminal Appeal from Municipal Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 24th day of August, 2018.

                                            ...........

JOHN D. EVERETT, Atty. Reg. No. 0069911, Prosecuting Attorney, City of Kettering,
2325 Wilmington Pike, Kettering, Ohio 45420
      Attorney for Plaintiff-Appellee

MARK J. BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio
45370
      Attorney for Defendant-Appellant

                                           .............




WELBAUM, P.J.
                                                                                            -2-




       {¶ 1} Defendant-appellant, Laquita M. Body, appeals her conviction for obstructing

official business following a bench trial in the Kettering Municipal Court. In support of

her appeal, Body raises arguments challenging the sufficiency and manifest weight of the

evidence. Body also contends that her First Amendment rights were violated when

police officers prohibited her from observing and filming a traffic stop involving her brother.

For the reasons outlined below, the judgment of the trial court will be affirmed.



                            Facts and Course of Proceedings

       {¶ 2} On March 20, 2017, the State filed a criminal complaint against Body

charging her with obstructing official business in violation of R.C. 2921.31(A), a second-

degree misdemeanor. Body pled not guilty to the charge and the matter proceeded to a

bench trial on July 10, 2017.

       {¶ 3} At trial, the State presented four Kettering police officers who testified

regarding the events that led to Body’s charge for obstructing official business. Officers

Jesse Anderson and Christian Cork testified that during the early morning hours of March

20, 2017, they observed a pickup truck run a red light as it was turning south onto

Wilmington Pike from Dorothy Lane in Kettering. At the time of this traffic violation,

Officers Anderson and Cork were driving separate cruisers and had their cruiser cameras

activated. The officers’ cruiser cameras captured the traffic violation in question and the

footage was presented as evidence at trial. See State’s Exhibit B.

       {¶ 4} After observing the traffic violation, Officers Anderson and Cork conducted a

traffic stop of the pickup truck. In doing so, the officers parked their cruisers in a line
                                                                                        -3-


behind the pickup truck on the curb lane of Wilmington Pike. Officers Anderson and Cork

then approached the pickup truck and obtained identification information from the driver

and passenger. During this time, Anderson detected the odor of marijuana emanating

from the vehicle.

        {¶ 5} Upon checking the driver and passenger’s identification information, Officers

Anderson and Cork discovered that the passenger, Jabree Yates, had an active warrant

for his arrest. The officers also noticed a LEADS entry warning the officers to proceed

with caution due to Jabree having a history of being armed and dangerous. In addition,

Cork testified that he and Anderson were familiar with the driver, Rejuan Yates, who was

suspected of trafficking narcotics.     Under these high-risk circumstances, Officers

Anderson and Cork testified that they decided to request additional assistance from a

third officer.

        {¶ 6} Shortly after Anderson and Cork requested a third officer, Officer Robinson

arrived at the scene of the traffic stop.     After Robinson’s arrival, all three officers

approached the pickup truck to place Jabree under arrest. Anderson and Cork secured

Jabree in handcuffs while Robinson remained at the pickup truck with Rejuan. Anderson

and Cork then walked to Anderson’s cruiser where they searched Jabree’s person.

Following the search of Jabree’s person, Anderson began to secure Jabree inside his

cruiser while Cork stood nearby as backup support.

        {¶ 7} Video footage from Cork’s cruiser camera indicates that Cork noticed

something behind him as he was providing backup support to Anderson. Cork is shown

turning his body away from Anderson and Jabree, and saying “Hey, who is this?” See

State’s Exhibit B (Cork Stream 1). At that moment, Cork testified that he saw a vehicle
                                                                                          -4-


pulling out from a parking lot behind him. Cork also saw that Officers Carl Paulin and

Eric Hall had arrived at the scene and that Hall was shining a flashlight at the vehicle. It

is undisputed that Body was the driver of the vehicle in question.

       {¶ 8} Officers Paulin and Hall testified that when they arrived at the scene of the

traffic stop, they observed the vehicle driven by Body pull into a nearby vacant parking

lot. Officers Paulin and Hall further testified that Hall exited the cruiser in order to make

contact with Body. However, when Hall approached Body’s vehicle and signaled her

with his flashlight, Body exited the parking lot and, in doing so, drove between two police

cruisers that were parked behind the stopped pickup truck.

       {¶ 9} Video footage from Officer Robinson’s cruiser camera shows that Body drove

through a narrow space between Robinson’s and Cork’s parked cruisers. Thereafter,

Body slowly drove by the traffic stop at close proximity and parked in a nearby

handicapped parking space. Officer Anderson testified that the handicapped parking

space in which Body parked was only 25 feet from where the pickup truck was stopped.

       {¶ 10} After Cork observed Body’s vehicle drive between his and Robinson’s

cruisers and park, Cork left his post with Anderson in order to make contact with Body.

Cork testified that he wanted to find out who Body was, why she was there, and whether

there were going to be any safety issues. Cork claimed that he checked Body’s license

plate and determined that she was the registered owner of the vehicle.            Cork also

determined from LEADS that Body was on “probationary release” and had cautions for

violent tendencies and mental issues.

       {¶ 11} Cork testified that after he received Body’s identification information, he

tried to get Body to leave the area because her presence was impeding and obstructing
                                                                                        -5-


him from continuing the traffic stop. Cork also testified that he asked Body to leave

because of her actions, the cautions attached to her in LEADS, and because his back

was turned to the traffic stop.

       {¶ 12} The audio from Cork’s cruiser camera indicates that Body claimed to be

Rejaun’s sister and that Body consistently argued with Cork regarding her right to observe

the traffic stop. To that end, Body repeatedly interrupted Cork as he attempted to explain

why she needed to leave the scene. Body also repeatedly asked Cork for his name,

badge number, and supervisor’s contact information, which Cork provided and gave Body

time to write down. Body, however, continued to argue with Cork and cause delay.

After Body ignored multiple orders from Cork to leave the scene, Cork placed Body under

arrest for obstructing official business.

       {¶ 13} Following the officers’ testimony and the admission of the video evidence,

the State rested its case. Body then moved for a Crim.R. 29 acquittal, which the trial

court overruled. Body did not present any evidence in her defense. After taking the

matter under advisement, the trial court issued a written decision finding Body guilty of

obstructing official business. The trial court thereafter sentenced Body to 90 days in jail

with 88 days suspended. The trial court also imposed a $500 fine with $475 suspended,

court costs, and unsupervised probation for two years.

       {¶ 14} Body now appeals from her conviction, raising three assignments of error

for review.



                          First and Third Assignments of Error

       {¶ 15} For purposes of clarity and convenience, we will review Body’s First and
                                                                                           -6-


Third Assignments of Error together. They are as follows:

       I.     THE STATE MADE A CONSTITUTIONALLY ILLEGAL TRAFFIC

              STOP.

       III.   THE     STATE     FAILED     TO    PROVIDE       THE     DEFENDANT-

              APPELLANT REASONABLE TIME TO COMPLY WITH ITS

              ORDERS.

       {¶ 16} Under her First Assignment of Error, Body challenges her conviction for

obstructing official business by contending that the traffic stop of her brother, Rejuan, was

illegal for want of reasonable articulable suspicion of criminal activity. Body claims that

since her brother’s traffic stop was illegal, the officers were not performing an authorized

act when making the stop, and that she therefore did not hamper or impede the officers

in the performance of their lawful duties. As a result, Body claims her actions on the

morning in question did not constitute the offense of obstructing official business under

R.C. 2921.31(A).

       {¶ 17} Under her Second Assignment of Error, Body challenges her conviction for

obstructing official business on grounds that she was not given enough time to leave the

scene of the traffic stop after Officer Cork ordered her to do so. Body contends that she

intended to leave the scene of the traffic stop after writing down Officer Cork’s information,

but that Cork arrested her before she had a chance to write everything down. In so

arguing, Body again contends that her actions did not constitute the offense of obstructing

official business under R.C. 2921.31(A).

       {¶ 18} Although not explicit, we construe both of Body’s arguments as challenging

the sufficiency and manifest weight of the evidence presented. “When a defendant
                                                                                         -7-


challenges the sufficiency of the evidence, she is arguing that the State presented

inadequate evidence on an element of the offense to sustain the verdict as a matter of

law.” State v. Matthews, 2d Dist. Montgomery No. 27718, 2018-Ohio-2424, ¶ 7, citing

State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000).               “ ‘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. The relevant inquiry 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.’ ” Id., quoting State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 19} In contrast, “[w]hen a conviction is challenged on appeal as being against

the weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’ ” Id. at ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest

weight of the evidence “only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 20} As previously noted, Body was convicted of obstructing official business in

violation R.C. 2921.31(A). Pursuant to that statute: “No person, without privilege to do
                                                                                        -8-


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.”   “R.C. 2921.31(A) thus includes 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.” (Citations

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

(10th Dist.).

       {¶ 21} “Ohio courts have consistently held that in order to violate the obstructing

official business statute 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, 2d Dist. Montgomery No. 20822,

2005-Ohio-5236, ¶ 16. “A mere failure or refusal to respond to an officer’s request does

not constitute obstructing official business.” (Citations omitted.) State v. Crawford, 2d

Dist. Montgomery No. 25506, 2013-Ohio-4398, ¶ 17.

       {¶ 22} However, “the total course of the defendant’s conduct must be considered”

as opposed to “viewing the acts of a defendant in isolation.” (Citations omitted.) State

v. Overholt, 9th Dist. Medina No. 2905-M, 1999 WL 635717, *2 (Aug. 18, 1999) (finding

defendant’s refusal to leave the scene and interference with an officer’s attempts to

complete an arrest, as well as profane outbursts, were sufficient to constitute the offense

of obstructing official business). See also N. Ridgeville v. Reichbaum, 112 Ohio App.3d
                                                                                         -9-


79, 84, 677 N.E.2d 1245 (9th Dist.1996) (finding multiple affirmative acts taken together

can be sufficient to establish a violation of R.C. 2921.31(A)). “ ‘Where the overall pattern

of behavior is one of resistance, * * * officers may consider the totality of the events and

need not point to a single act that rises to the level of obstruction.’ ” Roseborough v.

Trotwood, S.D.Ohio No. 3:06-cv-129, 2007 WL 3402880, *5 (Nov. 13, 2007), quoting

Lyons v. Xenia, 417 F.3d 565, 574 (6th Cir.2005). (Other citations omitted.)

       {¶ 23} In this case, the evidence indicates that Body engaged in several affirmative

actions that, when taken together, rise to the level of obstructing official business. These

actions include Body’s unexpected arrival at the scene of a high risk traffic stop, as well

as Body’s unusual behavior following her arrival. Specifically, the record indicates that

Body parked in a vacant parking lot near the scene of the traffic stop and drove away as

she was being approached and signaled by an officer. As she exited the parking lot,

Body drove through a narrow space between two parked police cruisers that had their

overhead lights activated. From there, Body slowly drove past the parked police cruisers

and the stopped pickup truck while in close proximity to the vehicles. Body thereafter

parked in a handicapped parking space located 25 feet from the pickup truck. When

Body was ultimately approached by Officer Cork, Body constantly interrupted Cork as he

attempted to explain why she needed to leave the scene of the traffic stop. Body also

ignored Cork’s multiple orders instructing her to leave the scene, repeatedly asked Cork

questions regarding his name, badge number, and supervisor’s contact information in a

dilatory manner, and continually argued her right to observe police activity.

       {¶ 24} From these actions, and when considering the evidence in the light most

favorable to the State, a reasonable trier of fact could reasonably conclude that it was
                                                                                            -10-


Body’s purpose to obstruct or delay Officer Cork in performing his duties with regard to

the traffic stop. “A person acts purposely when it is the person’s specific intention to

cause a certain result[.]” R.C. 2901.22(A). “Because no one can know the mind of

another, a defendant’s intent is ‘not discernible through objective proof.’ ”          State v.

McCoy, 2d Dist. Montgomery No. 22479, 2008-Ohio-5648, ¶ 14, quoting State v.

Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of the syllabus. “Rather,

a defendant’s intent in acting must be ‘determined from the manner in which it [the act] is

done, the means used, and all other facts and circumstances in evidence.’ ” Id., quoting

State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 15 (1st

Dist.). Here, the manner in which Body drove up to the traffic stop and Body’s conduct

in continually interrupting Cork, ignoring Cork’s orders to leave, and repeatedly requesting

the same information from Cork, sufficiently indicates that Body’s actions were done with

the purpose to obstruct or delay Cork in performing his duties with regards to the traffic

stop.

        {¶ 25} The evidence further indicates that Body’s actions hampered or impeded

Cork in performing his lawful duties. In making this determination, “ ‘there must be some

substantial stoppage of the officer’s progress.’ ” State v. Ellis, 2d Dist. Montgomery No.

24003, 2011-Ohio-2967, ¶ 59, quoting Wellman at ¶ 17. There is, however, “no ‘finite

period of time [that] constitutes a “substantial stoppage.” * * * If the record demonstrates

that the defendant’s act hampered or impeded the officer in the performance of his duties,

the evidence supports the conviction.’ ” Id., quoting Wellman at ¶ 18. “ ‘[T]his element

does not require that [the defendant] cause the officers to fail in their duties, but only that,

by acting, [the defendant] disrupted their performance of them.’ ” State v. Terry, 2d Dist.
                                                                                           -11-

Montgomery No. 26722, 2016-Ohio-3484, ¶ 22, quoting McCoy at ¶ 16.

       {¶ 26} In this case, when Body first arrived at the scene, Officer Cork was assisting

Officer Anderson with a high risk traffic stop. Cork was overseeing Anderson as he

secured the passenger, Jabree, into Anderson’s police cruiser, and Cork turned his

attention away from what he was doing and directed his attention to Body’s vehicle as it

pulled out of the vacant parking lot by the traffic stop. The video footage shows that Cork

physically turned his body away from Anderson and said: “Hey, who’s this?” See State’s

Exhibit B (Cork Stream 1). Cork then walked away from Anderson, who was still securing

Jabree in the cruiser, and watched Body’s vehicle as it drove slowly past their cruisers at

such close proximity that Body’s vehicle straddled into the lane where the officers’

cruisers were parked.

       {¶ 27} Due to Body’s unusual behavior, Cork had to leave his post with Anderson

and approach Body’s vehicle for purposes of officer safety. When Cork made contact

with Body, Body repeatedly interrupted him, questioned his authority to order her to leave,

and asked him for information that delayed his ability to return to help with the traffic stop.

While there were other officers at the scene who were eventually able to assist Anderson,

the fact remains that Body’s actions obstructed Cork from continuing his duties with

regard to the traffic stop.

       {¶ 28} As noted by the trial court:

       Police officers must be able to perform their duties in safety and with

       efficiency. Allowing an uninvolved member of the public to become part of

       an investigative scene is unsafe for the Officer, unsafe for the party and

       unsafe for the uninvolved person seeking to intervene. Such action to
                                                                                          -12-


       intervene seriously hampers and impedes the ability of Law Enforcement

       Officers to perform their lawful duties.

Decision and Entry (Aug. 16, 2017), Kettering Municipal Court Case No. 17CRB00696,

Docket No. 14, p. 7. We agree.

       {¶ 29} In so holding, we note that Body’s disruptive actions were not “privileged” in

the context of R.C. 2921.31(A). The privilege element “refers to a positive grant of

authority entitling one to deliberately obstruct or interfere with a police officer performing

his lawful duty.” State v. Stayton, 126 Ohio App.3d 158, 163, 709 N.E.2d 1224 (1st

Dist.1998). While this court has held that a defendant who is not suspected of any

criminal conduct is privileged to refuse a police officer’s request to provide information,

Prestel, 2d Dist. Montgomery No. 20822, 2005-Ohio-5236, at ¶ 18, there is no privilege

for a person to drive through the scene of an active traffic stop and to remain at the scene

after being directed to move away for purposes of officer safety.

       {¶ 30} Furthermore, contrary to Body’s claim otherwise, Officers Anderson and

Cork were acting in the performance of their lawful duties when they conducted the traffic

stop involving Body’s brother, Rejuan. The video evidence from Anderson’s and Cork’s

cruiser cameras clearly show that Rejuan ran a red light when he turned left onto

Wilmington Pike from Dorothy Lane. “Under [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889 (1968)], police officers may briefly stop and/or temporarily detain

individuals in order to investigate possible criminal activity if the officers have a

reasonable, articulable suspicion that criminal activity may be afoot, including a minor

traffic violation.” Kettering v. Maston, 2d Dist. Montgomery No. 27567, 2018-Ohio-1948,

¶ 15, citing State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8.
                                                                                       -13-


Because Rejuan committed a traffic violation, the traffic stop at issue was lawful.

Accordingly, Body’s claim that there was no authorized act or lawful duty from which she

could have obstructed lacks merit.

      {¶ 31} Also lacking merit are Body’s claims that she was not given enough time to

write down Cork’s name, badge number, and supervisor’s contact information, and that

she had intended on leaving the scene of the traffic stop after writing down that

information. The audio from Cork’s cruiser camera indicates that Cork provided Body a

sufficient amount of time to write down the requested information. Moreover, there is

nothing in the record indicating that Body intended to leave the area after she wrote down

the information. In fact, Body’s comments to Cork throughout the encounter indicate

otherwise, as Body repeatedly claimed that she had a right to be at the scene and never

once told Cork that she would leave.

      {¶ 32} Because the State presented legally sufficient evidence on all elements of

obstructing official business under R.C. 2921.31(A), and because the evidence does not

weigh heavily against Body’s conviction, Body’s First and Third Assignments of Error

challenging the sufficiency and weight of the evidence are overruled.



                             Second Assignment of Error

      {¶ 33} Body’s Second Assignment of Error is as follows:

      THE STATE VIOLATED THE DEFENDANT-APPELLANT’S LEGAL RIGHT

      TO OBSERVE AND FILM A TRAFFIC STOP.

      {¶ 34} Under her Second Assignment of Error, Body claims that she had a First

Amendment right to observe and film the traffic stop and that she was unlawfully
                                                                                           -14-


prevented from exercising that right.       Because there is no evidence in the record

indicating that Body attempted to film the traffic stop, we need not address the issue of

filming.    Rather, the only pertinent issue raised by Body is whether she had a

constitutional right to observe the traffic stop.

       {¶ 35} As a preliminary matter, we note that Body’s constitutional claim has been

waived for appeal because Body never raised the claim at the trial court level. See State

v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986) (failure to raise an apparent

constitutional claim at the trial court level constitutes a waiver of that argument on appeal).

This court, however, has the discretion to consider Body’s claim under a plain-error

analysis.    In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.                To

demonstrate plain error, it must be shown that “but for a plain or obvious error, the

outcome of the proceeding would have been otherwise, and reversal must be necessary

to correct a manifest miscarriage of justice.” State v. Quarterman, 140 Ohio St.3d 464,

2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, citing State v. Davis, 127 Ohio St.3d 268, 2010-

Ohio-5706, 939 N.E.2d 147, ¶ 29.

       {¶ 36} Even if we were to consider the constitutional issue, given the facts before

us, Body’s claim that she had a First Amendment right to observe the traffic stop in

question lacks merit. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d

584 (1972), the United States Supreme Court held that a bystander to a traffic stop was

not engaged in activity protected by the First Amendment when the bystander failed,

notwithstanding several requests by an officer, to leave a congested roadside where a

friend in another car was being ticketed for a traffic offense. Id. at 109-110. Specifically,

“the Court held that Colten ‘was not engaged in activity protected by the First Amendment’
                                                                                           -15-


because ‘[h]e had no constitutional right to observe the issuance of a traffic ticket or to

engage the issuing officer in conversation at that time.’ ” King v. Ambs, 519 F.3d 607, 614

(6th Cir.2008), quoting Colten at 109. The court in Colten further explained that “the

State has a legitimate interest in enforcing its traffic laws and its officers were entitled to

enforce them free from possible interference or interruption from bystanders, even those

claiming a third-party interest in the transaction.” Colten at 109.

       {¶ 37} Because any right that Body had to observe police activity was forfeited by

her conduct that obstructed the officers’ lawful actions, Body’s Second Assignment of

Error is also overruled.



                                        Conclusion

       {¶ 38} Having overruled each assignment of error raised by Body, the judgment of

the trial court is affirmed.



                                       .............



FROELICH, J. and TUCKER, J., concur.



Copies mailed to:

John D. Everett
Mark J. Bamberger
Hon. James F. Long
