        [Cite as State v. Barnes, 2018-Ohio-3894.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NOS. C-170355
                                                                     C-170356
       Plaintiff-Appellee,                           :   TRIAL NOS. C-17CRB-6180
                                                                    C-17CRB-6181B
 vs.                                                 :
                                                                 O P I N I O N.
JARVIS BARNES,                                       :

    Defendant-Appellant.                             :




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: September 26, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


M ILLER , Judge.

       {¶1}   Following a jury trial, Jarvis Barnes was convicted of one count of

resisting arrest, in violation of R.C. 2921.33(A), and one count of resisting arrest, in

violation of R.C. 2921.33(B). The trial court sentenced Barnes to 90 days in jail, with

credit for 18 days served, for count one, to be served consecutively to 180 days in jail,

with credit for 46 days served, for count two. We affirm.

                                        Facts

       {¶2}   The Springfield Township Police were dispatched to a WesBanco

branch to respond to a call about a man trying to pass a bad check. The police

detained the man, Antonio Johnson, who told them that he was kidnapped at

gunpoint by Barnes and forced to pass the bad check. Johnson pointed out Barnes in

his car in a parking lot across the street. Unbeknownst to the police at the time,

Johnson had fabricated the story of Barnes’s involvement and only coincidentally

encountered Barnes prior to entering the bank, knowing him as a friend of his

brother.

       {¶3}   The police called for backup, surrounded Barnes’s vehicle at his next

stop in a Boost Mobile parking lot with their guns drawn, and ordered him to exit

from his vehicle and get on his knees. Barnes was patted down, handcuffed, and

placed into the back of a police cruiser. Barnes, who testified that he was en route to

an interview, became agitated about the stop and detention. While in the cruiser,

Barnes attempted to hide an object in his pants, which drew suspicion from police

officers. Barnes told an officer that the object was a cell phone, but refused to

surrender it and continued to try to hide the object in his pants. Barnes had to be

removed from the cruiser and wrestled with for police to retrieve what turned out to

be a cell phone. Barnes was then taken to the police department, where another



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                     OHIO FIRST DISTRICT COURT OF APPEALS


struggle ensued. Barnes went limp when officers tried to transport him to the jail,

and kicked an officer while being transferred into another police cruiser.

                            Argument and Analysis

       {¶4}   In his first assignment of error, Barnes claims that the trial court erred

in admitting into evidence Johnson’s statements to the police. “The trial court has

broad discretion in the admission of evidence, and unless it has clearly abused its

discretion and the defendant has been materially prejudiced thereby, an appellate

court should not disturb the decision of the trial court.” State v. Beck, 2016-Ohio-

8122, 75 N.E.3d 899, ¶ 27 (1st Dist.), citing State v. Issa, 93 Ohio St.3d 49, 64, 752

N.E.2d 904 (2001).

       {¶5}   Barnes argues that Johnson’s statements, in which he claimed he was

kidnapped at gunpoint by Barnes and forced to pass a bad check, were hearsay and

admitted to prove that Barnes’s initial arrest was lawful. A conviction under R.C.

2921.33(A) and (B) requires a lawful arrest. Evid.R. 801(C) defines “hearsay” as “a

statement, other than one made by the declarant while testifying at trial or hearing,

offered in evidence to prove the truth of the matter asserted,” which is inadmissible

but by exception. Evid.R. 802.

       {¶6}   Here, Johnson’s statements were introduced during the direct

examination of the arresting officers, who explained that the probable cause for

arresting Barnes was Johnson’s statements.        Officer Mullens testified that the

statements were later discovered to be untrue—that Barnes was not in fact involved

in passing bad checks with Johnson. Importantly, a police officer may only conduct

an arrest if the police officer has probable cause to believe that the arrestee had

committed or was committing a felony offense. R.C. 2935.04; State v. Allen, 2 Ohio

App.3d 441, 443, 442 N.E.2d 784 (1st Dist.1981); see State v. Brown, 115 Ohio St.3d



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                     OHIO FIRST DISTRICT COURT OF APPEALS


55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 66; Gerstein v. Pugh, 420 U.S. 103, 111, 95

S.Ct. 854, 43 L.Ed.2d 54 (1975).

       {¶7}   Accordingly, Johnson’s statements to police officers were not

impermissible hearsay.     They were not admitted for their truth, as they were

declaredly untrue. Nor were they introduced to prove that Barnes had committed a

crime and that his arrest was lawful. Instead, Johnson’s statements were introduced

to explain the actions of the police officers and give context to Barnes’s arrest. Based

on Johnson’s statements, the police believed Barnes to be an armed and dangerous

felon, and that they had probable cause to immediately detain him. Therefore, we

overrule Barnes’s first assignment of error.

       {¶8}   In his second assignment of error, Barnes argues that his convictions

were based on insufficient evidence. In a challenge to the sufficiency of the evidence,

the question is whether after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of

the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

       {¶9}   Barnes asserts that he could not have been charged with misdemeanor

resisting arrest under R.C. 2921.33(A) and (B) for any of his actions subsequent to

being handcuffed and placed in the back of the police cruiser, because his arrest had

already been completed. Instead, Barnes argues that he should have been charged

with felony escape under R.C. 2921.34. In order to reach this conclusion, Barnes

asks us to overrule State v. Bay, 130 Ohio App.3d 772, 721 N.E.2d 421 (1st

Dist.1998), wherein we affirmed a conviction for resisting arrest where a defendant

refused to leave a police cruiser and then purposely went limp while he was being

taken into the Hamilton County Justice Center for intake processing. In Bay, we




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                     OHIO FIRST DISTRICT COURT OF APPEALS


held that the defendant’s arrest did not end with his initial detention and

handcuffing. Rather, an arrest encompasses placing a defendant in a police cruiser

and transporting him to jail or a detention facility. See State v. Darrah, 64 Ohio

St.2d 22, 26, 412 N.E.2d 1328 (1980).            Thus, a charge for resisting arrest is

appropriate where there is interference in this process. We decline to overrule Bay,

and find the facts of this case indistinguishable. Barnes was handcuffed and placed

into a police cruiser, and then struggled with police officers in two different instances

prior to being jailed. After reviewing the record, we hold that the state presented

sufficient evidence to prove Barnes resisted arrest on two separate occasions. We

therefore overrule Barnes’s second assignment of error.

       {¶10} In his third assignment of error, Barnes argues that his convictions

were against the manifest weight of the evidence. In reviewing a challenge to the

weight of the evidence, we must review the entire record, weigh the evidence,

consider the credibility of the witnesses, and determine whether the trier of fact

clearly lost its way and thereby created a manifest miscarriage of justice. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶11} Barnes asserts that excessive force was used against him by the

arresting police officers, which justified his resistance to the arrest. The Ohio Jury

Instructions recognize excessive force as an affirmative defense to resisting arrest. 2

Ohio Jury Instructions CR Section 521.33, citing State v. Logsdon, 3d Dist. Seneca

No. 13-89-10, 1990 WL 197883, *1 (Dec. 4, 1991). “The defendant effectively admits

his resistance, if only to show that it was necessary in order to protect himself from

the officer’s excessive force.” Logsdon at *2.

       {¶12} “[A]ll claims that law enforcement officers have used excessive force—

deadly or not—in the course of an arrest * * * should be analyzed under the Fourth




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                     OHIO FIRST DISTRICT COURT OF APPEALS


Amendment and its ‘reasonableness’ standard.” (Internal quotations omitted.) State

v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 22.                   “The

‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene * * * [and] must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Id., quoting Graham v. Connor, 490 U.S. 386,

396-397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

       {¶13} Here, officers believed that Barnes may have abducted a man at

gunpoint and forced him to cash a bad check at the time of his arrest.              It is

unfortunate that as a result of Johnson’s false statements to the police Barnes was

even involved in the encounter, which could have very easily resulted in his death or

serious injury. Barnes’s confusion, alarm and distress at the time of the stop are

understandable. However, this case begins where Barnes acted on his own volition

in two instances to interfere with his arrest.

       {¶14} In the first instance, Barnes was in a police cruiser while attempting to

hide an object in his pants, which officers believed was possibly a gun. Video footage

from a storefront and a cell phone showed several officers attempting to restrain

Barnes’s body and hands in order to retrieve the object, which they discovered was

his cell phone. Barnes argues, in part, that he was noncompliant in this instance

because the officers did not explain why he was being arrested.           A defendant’s

knowledge is not part of the affirmative defense of resisting arrest. Resisting arrest is

justified where the defendant is effectively being assaulted and responds with

reasonable force to protect his safety, see Logsdon at *2—not where the defendant is

ignorant of his charges and reluctant to surrender his personal property.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶15} In the second instance, Barnes was at the police department and began

acting erratically and struggling with police officers as they tried to transport him to

jail. Video footage from the lobby of the police department shows a distraught

Barnes being arrested, but does not show the struggle to which Barnes and the

arresting officers testified. After reviewing the entire record—including the video

evidence, testimony of the arresting officers and Barnes—we do not agree that

Barnes’s convictions were against the manifest weight of the evidence. We overrule

Barnes’s third assignment of error.

                                      Conclusion

       {¶16} All assignments of error having been overruled, the trial court’s

judgments are affirmed.

                                                                    Judgments affirmed.

M OCK , P.J., and D ETERS , J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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