[Cite as State v. Swaney, 2019-Ohio-3141.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-18-20

        v.

MARK A. SWANEY,                                           OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Auglaize County Municipal Court
                           Trial Court No. 2018 CRB 396

                                      Judgment Affirmed

                             Date of Decision: August 5, 2019




APPEARANCES:

        Thomas J. Lucente, Jr. for Appellant

        Laia Zink for Appellee
Case No. 2-18-20


PRESTON, J.

       {¶1} Defendant-appellant, Mark A. Swaney (“Swaney”), appeals the

November 2, 2018 judgment of the Auglaize County Municipal Court. For the

reasons that follow, we affirm.

       {¶2} This case stems from an April 28, 2018 incident in which Mary Music

(“Music”), a tenant at Defiance Commons, contacted the Wapakoneta Police

Department to assist her in entering her apartment after she lost her keys. (Doc. No.

7). Swaney, the maintenance worker at the complex, got into an altercation with

one of the responding officers, culminating in his arrest. (Id.).

       {¶3} On April 30, 2018, a complaint was filed in the Auglaize County

Municipal Court charging Swaney with a single count of obstructing official

business in violation of R.C. 2921.31(A), a second-degree misdemeanor. (Doc. No.

8). On May 2, 2018, Swaney appeared for arraignment and entered a plea of not

guilty. (Doc. No. 12).

       {¶4} A jury trial was held on September 24, 2018. (Doc. No. 53); (Sept. 24,

2018 Tr. at 1). At the close of the State’s case, Swaney made a motion for acquittal

under Crim.R. 29, which the trial court denied. (Sept. 24, 2018 Tr. at 112-113).

The jury found Swaney guilty of obstructing official business in violation of R.C.

2921.31(A). (Doc. No. 53); (Sept. 24, 2018 Tr. at 162). On September 25, 2018,

the trial court filed its judgment entry of conviction. (Doc. No. 53).


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       {¶5} On November 2, 2018, the trial court sentenced Swaney to three years

of community control, a $500 fine, and 90 days in jail with all 90 days suspended.

(Doc. No. 55); (Nov. 2, 2018 Tr. at 20-23).

       {¶6} On November 21, 2018, Swaney filed a notice of appeal. (Doc. No.

60). He raises three assignments of error. We will address the first two assignments

of error together.

                            Assignment of Error No. I

       The trial court erred in denying appellant’s motion for acquittal
       at the close of the State’s case in chief, where there was legally
       insufficient evidence to establish each material element of the
       offense beyond a reasonable doubt.

                           Assignment of Error No. II

       Appellant’s conviction on Obstruction of Official Business was
       against the manifest weight of the evidence and is contrary to law.

       {¶7} In his first two assignments of error, Swaney argues that the trial court

erred by denying his Crim.R. 29(A) motion for acquittal and that his obstructing-

official-business conviction is against the manifest weight of the evidence.

       {¶8} Crim.R. 29(A) provides:

       (A)    Motion for Judgment of Acquittal. The court on motion of a

       defendant or on its own motion, after the evidence on either side is

       closed, shall order the entry of a judgment of acquittal of one or more

       offenses charged in the indictment, information, or complaint, if the


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       evidence is insufficient to sustain a conviction of such offense or

       offenses. The court may not reserve ruling on a motion for judgment

       of acquittal made at the close of the state’s case.

“An appellate court reviews a denial of a Crim.R. 29 motion for judgment of

acquittal using the same standard that is used to review a sufficiency of the evidence

claim.” State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11, citing

State v. Carter, 72 Ohio St.3d 545, 553 (1995).

       {¶9} “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.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he 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. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).


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See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses 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.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶11} Swaney was convicted of obstructing official business in violation of

R.C. 2921.31(A), which provides:




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       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.

To obtain a conviction for obstructing official business the State must prove that (1)

the defendant acted (2) without privilege to do so and (3) with purpose to prevent,

obstruct, or delay the performance by a public official of any authorized act within

the public official’s official capacity and that (4) the defendant’s act hampered or

impeded the public official (5) in the performance of the public official’s lawful

duties. See State v. Pierce, 3d Dist. Seneca No. 13-16-36, 2017-Ohio-4223, ¶ 11,

quoting State v. Dice, 3d Dist. Marion No. 9-04-41, 2005-Ohio-2505, ¶ 19, citing

R.C. 2921.31(A). “A person acts purposely when it is the person’s specific intention

to cause a certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is the offender’s specific intention to engage in conduct of that nature.”

R.C. 2901.22(A). “‘The purpose with which a person does an act is determined

from the manner in which it is done, the means used, and all other facts and

circumstances in evidence.’” State v. Puterbaugh, 142 Ohio App.3d 185, 189 (4th

Dist.2001), quoting State v. Hardin, 16 Ohio App.3d 243, 245 (10th Dist.1984).


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         {¶12} At trial, Music, a resident of Defiance Commons, testified that on

April 28, 2018, she called the Wapakoneta Police Department for assistance getting

into her apartment after she lost her keys. (Sept. 24, 2018 Tr. at 61-62). Music

stated that prior to contacting the police, she asked Swaney, the maintenance worker

at Defiance Commons, to unlock her door for her, but he refused. (Id. at 62). Music

stated that when the police officers arrived, they helped her get into her apartment

through an unlocked window. (Id. at 63).

         {¶13} On cross-examination, she stated that the policy at Defiance Commons

is that the management will only unlock apartments during their business hours on

Tuesdays and Thursdays because management does not consider it an emergency.

(Id. at 63-64).

         {¶14} Next, the State offered the testimony of Patrolman Cory Zwiebel

(“Patrolman Zwiebel”), a patrol officer for the Wapakoneta Police Department. (Id.

at 67-68). Patrolman Zwiebel testified that he was dispatched on April 28, 2018 at

approximately 3:30 p.m. to Defiance Commons to help Music into her apartment.

(Id. at 68-69, 74). Patrolman Zwiebel identified part of State’s Exhibit 1 as his body

camera footage from the incident.1 (Id. at 73).




1
  State’s Exhibit 1 is a disc containing three separate files. (See State’s Ex. 1). The disc contains: (1) an
audio recording of Music’s call to the Wapakoneta Police Department on April 28, 2018, (2) a video
recording of Officer Zwiebel’s body camera footage from the call to Defiance Commons on April 28, 2018,
and (3) a video recording of Officer Clark’s body camera footage from the call to Defiance Commons on
April 28, 2018. (See State’s Ex. 1).

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      {¶15} Patrolman Zwiebel’s body camera footage shows Patrolman Zwiebel

and Patrolman Jared Clark (“Patrolman Clark”) arriving at the scene. (State’s Ex.

1). Music stated that she had just asked Swaney to open the door to her apartment

for her but that he “slammed the door in [her] face.” (Id.). Upon Patrolman

Zwiebel’s request, Music directed the police officers to Swaney’s apartment, which

is also located at Defiance Commons. (Id.). Patrolman Zwiebel knocked on

Swaney’s door and asked him if he is “able to get [Music] into her apartment” to

which Swaney responds, “Why should I?” (Id.). After Swaney stated again that he

would not unlock the door to Music’s apartment, Patrolman Zwiebel walked away

from Swaney’s door and told Music that she could use “whatever means” necessary

to get into her apartment. (Id.). Swaney, who was still standing in the open doorway

of his apartment, yelled out that they better not break the window. (Id.). Patrolman

Zwiebel examined the front window of Music’s apartment and, upon finding it

unlocked, was able to open the window for Music to crawl in. (Id.).

      {¶16} While Patrolman Zwiebel was working on opening the door and

window, Swaney came over and stood on the sidewalk outside of Music’s

apartment. (Id.). He yelled to Music and the police officers not to break the

window. (Id.). Patrolman Zwiebel then instructed Swaney to leave the scene if he

was not going to offer assistance. (Id.). After Music entered her apartment,

Patrolman Zwiebel turned to walk away and found Swaney standing on the


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sidewalk. (Id.). The officers then began walking to their patrol vehicles while

Swaney followed behind them and told them that they were on private property and

that they did not have the authority to be there. (Id.).

         {¶17} The officers continued walking to their vehicles when Swaney again

told them not to come back to Defiance Commons. (Id.). Patrolman Zwiebel then

told Swaney, “Obviously you do not have the manhood to help somebody out.”

(Id.). Swaney was visibly upset by the comment and continued to engage Patrolman

Zwiebel in conversation. (Id.). Swaney moved directly in front of Patrolman

Zwiebel on the sidewalk, standing in the pathway between Patrolman Zwiebel and

his patrol vehicle. (Id.). Despite repeated instructions to move out of the way,

Swaney did not move. (Id.). As a result, Patrolman Zwiebel was forced to walk

around him. (Id.). As he moved past Swaney, Patrolman Zwiebel appeared to

inadvertently brush against Swaney, who yelled out angrily. (Id.). Patrolman

Zwiebel then walked to his patrol vehicle and unlocked and opened the vehicle door.

(Id.).

         {¶18} Patrolman Zwiebel then saw Swaney standing by the vehicle and shut

his patrol vehicle door without getting in. (Id.). Patrolman Zwiebel and Swaney

engaged in more conversation and Patrolman Zwiebel again opened the door to his

patrol vehicle. (Id.). Patrolman Zwiebel asked Swaney for the name of his boss so

that he could submit a complaint. (Id.).


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       {¶19} Patrolman Zwiebel then locked his vehicle and began walking toward

the apartment of the property manager, Marjorie Buettner (“Buettner”). (Id.). As

Patrolman Zwiebel and Swaney moved closer to the apartment, Swaney began to

walk faster and arrived at Buettner’s door ahead of Patrolman Zwiebel. (Id.).

Swaney then pointed to a piece of paper taped to the screen door and asked, “Notice

that sign?” (Id.). Patrolman Zwiebel asked Swaney to move away from the door.

(Id.). Instead of complying, Swaney ordered Patrolman Zwiebel to back up. (Id.).

Swaney was then arrested. (Id.).

       {¶20} Explaining what was depicted in the footage, Patrolman Zwiebel

testified that it is standard protocol for him to tell an individual locked out of their

vehicle or their home that are able to employ whatever means are necessary to gain

access to the vehicle or home. (Sept. 24, 2018 Tr. at 70). He also testified that after

he aided Music in gaining access to her apartment, he planned on getting back into

his patrol vehicle and leaving the scene. (Id. at 71). Patrolman Zwiebel testified

that after Swaney became argumentative and questioned the officers’ authority to

be on the premises, Patrolman Zwiebel decided that he wanted to speak to Swaney’s

supervisor to get additional names and telephone numbers so that they could “[t]ry

to avoid this problem in the future.” (Id. at 72).

       {¶21} Patrolman Zwiebel stated that Swaney’s actions delayed the

performance of his duties as a law enforcement officer because Swaney forced


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Patrolman Zwiebel to walk around him, argued with Patrolman Zwiebel, and

refused to follow Patrolman Zwiebel’s directions. (Id. at 72-73). He also testified

that Swaney “block[ed] [his] ability to knock on the [property] managers [sic] door”

and “add[ed] extra time.” (Id. at 72-73).

       {¶22} On cross-examination, Patrolman Zwiebel testified that Swaney could

choose not to unlock Music’s door and that his refusal to assist was not a crime. (Id.

at 81). Patrolman Zwiebel stated that he could hear the concern in Swaney’s voice

in response to Patrolman Zwiebel’s comment to Music that she could employ

whatever means were necessary to gain entrance into her apartment, and he believed

Swaney’s concern was reasonable. (Id. at 83).

       {¶23} Patrolman Zwiebel admitted that he became frustrated with Swaney

and acknowledged that “everything elevated” after he made the comment about

Swaney’s manhood. (Id. at 88-89). Patrolman Zwiebel acknowledged that when

he got into the verbal confrontation with Swaney by his patrol vehicle, his job had

concluded and he could have left. (Id. at 89). He admitted that it had become a

“standoff” between the two men and he was not going to be the first to back down.

(Id. at 93). He also acknowledged that he chose to reengage Swaney when he was

at his police cruiser. (Id.).

       {¶24} Finally, Patrolman Zwiebel testified that his reasons for going to

Buettner’s door were to file a complaint against Swaney, inquire about the


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apartment complex’s rules regarding tenants who have been locked out of their

apartments, and look into how to resolve similar issues in the future, such as through

a master key kept at the police station. (Id. at 98).

       {¶25} On re-direct examination, Patrolman Zwiebel testified that if he had

not gotten into the confrontation with Swaney and had been able to get back into his

patrol vehicle without incident, he would have gone back on patrol and been

available for incoming calls. (Id. at 102). He further testified that his confrontation

with Swaney kept him from responding to other calls. (Id.).

       {¶26} The State next offered the testimony of Patrolman Clark. (Id. at 103).

Patrolman Clark testified that he activated his body camera during the call because

Swaney began acting aggressively toward Patrolman Zwiebel. (Id. at 104-105).

Patrolman Clark agreed that once Patrolman Zwiebel made the comment regarding

Swaney’s “manhood,” the situation between Swaney and Patrolman Zwiebel further

escalated. (Id. at 108). Patrolman Clark stated that he observed Swaney approach

Patrolman Zwiebel in an “aggressive manner” and that it escalated further as the

officers were attempting to leave the scene. (Id.). Finally, Patrolman Clark

identified part of State’s Exhibit 1 as his body camera footage from the incident.

(Id. at 104-105). (See State’s Ex. 1). Patrolman Clark’s body camera footage

corroborates Patrolman Zwiebel’s account of the incident. (See State’s Ex. 1).




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       {¶27} Thereafter, the State rested. (Sept. 24, 2018 Tr. at 112). State’s

Exhibit 1 was admitted by stipulation. (Id.). Swaney then made a Crim.R. 29

motion for acquittal, which the trial court denied. (Id. at 112-113).

       {¶28} Swaney offered the testimony of Buettner, the Defiance Commons

property manager. (Id. at 114, 116). Buettner testified that on April 28, 2018, she

had a note affixed to her apartment door stating that she was sleeping. (Id. at 116).

Buettner stated that she is the direct supervisor of Swaney, who is employed as the

maintenance worker at Defiance Commons. (Id. at 117). Buettner testified that

although Swaney is not typically “on call,” part of his job description is to respond

to emergency situations, which are defined as fire, a major water break, an electrical

problem, and no heat in the winter. (Id. at 118). Buettner further testified that during

office hours, Swaney lets tenants into their apartments when they lock themselves

out, although that is “not really” part of his job description. (Id. at 118-119).

       {¶29} Finally, Swaney testified in his defense. (Id. at 126). He stated that

he is the maintenance worker at Defiance Commons and his supervisor is Buettner.

(Id. at 127-128). He stated that except for specifically defined emergency situations,

he is not on call. (Id. at 129). Swaney stated that he does not have any responsibility

to let tenants into their apartments, but admitted that he has done so in the past. (Id.).

Swaney testified that Music came to his door on April 28, 2018 to request his




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assistance in unlocking her door. (Id. at 130). He admitted that he refused to help,

but he denied slamming the door in Music’s face “that day.” (Id.).

       {¶30} Swaney testified that he became concerned when he heard Patrolman

Zwiebel tell Music that she could use whatever means were necessary to enter her

apartment. (Id. at 131). He stated that, as the maintenance worker, he felt it was his

responsibility to witness any kind of property damage. (Id. at 131-132). Swaney

denied interfering “in any way” with the police officers gaining access into Music’s

apartment. (Id. at 132). Swaney admitted that as the police officers were walking

back to their vehicles, he told them they did not have any reason to be there. (Id.).

However, he contended that he misspoke and meant to convey to the police officers

that they did not have “any right” to knock on his door for assistance with a locked

door because his door is private property. (Id. at 132-133, 140). Swaney testified

that he was bothered that the officers came to his door on a weekend to request help.

(Id. at 133). Swaney denied threatening either officer. (Id.). He admitted that he

was upset when Patrolman Zwiebel “question[ed] [his] manhood,” and he believed

that Patrolman Zwiebel’s comment escalated the situation. (Id.).

       {¶31} Swaney testified that he went with Patrolman Zwiebel to Buettner’s

apartment because he knew that she had a temporary sign on her door stating that

she was sleeping and Swaney wanted to “protect” Buettner from the police officers

coming to her door by making sure that they saw the note. (Id. at 134). Swaney


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also admitted he wanted to make sure that he had the opportunity to tell Buettner

“[his] side of the story.” (Id.).

       {¶32} Swaney further testified that his intent upon arriving at Buettner’s door

was to ensure that Patrolman Zwiebel saw the note on her door requesting that she

not be disturbed. (Id. at 134-135). However, Swaney admitted that as his next

course of action, he was going to “beat on [Buettner’s] door.” (Id. at 135). Swaney

testified that he was trapped between Patrolman Zwiebel and Buettner’s door, that

he “[did not] know what [Patrolman Zwiebel] was going to do,” and that Patrolman

Zwiebel was “beyond angry” with him. (Id.). He stated that, as a result, he asked

Patrolman Zwiebel to back up. (Id.).

       {¶33} On cross-examination, Swaney stated that, as the Defiance Commons

maintenance worker, he felt that it was his responsibility to witness the efforts Music

and the police officers took to get Music into her apartment so that he would have

an eyewitness account in the event that the property was damaged. (Id. at 136, 139).

Swaney admitted that he has access to a key to Music’s apartment, but that he did

not bring the key out with him when Music and the officers were trying to get into

Music’s apartment. (Id. at 136-137).

       {¶34} Swaney denied blocking Patrolman Zwiebel’s pathway to his vehicle.

(Id. at 141). He stated that he told Patrolman Zwiebel to move around him because

Swaney “was standing on the sidewalk and [he] didn’t have to move anywhere.”


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(Id.). He denied that he intended to start a confrontation by telling the officers to

move around him. (Id.).

        {¶35} Thereafter, Swaney moved to admit his exhibit and rested. (Id. at 142).

Defendant’s Exhibit A was admitted without objection.2 (Id. at 142-143). The State

did not present any additional witnesses on rebuttal. (Id. at 143).

        {¶36} We first review the sufficiency of the evidence supporting Swaney’s

obstructing-official-business conviction. State v. Velez, 3d Dist. Putnam No. 12-13-

10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46,

1999 WL 355190, *1 (Mar. 26, 1999).

        {¶37} Swaney argues that the State failed to provide evidence demonstrating

that he purposely committed an act and that it failed to demonstrate precisely what

lawful duty was hampered or impeded by his conduct. Swaney does not argue that

his conduct was privileged. Therefore, we will review only whether the State

presented sufficient evidence to prove that there was (1) an act by Swaney (2) done

with the purpose to prevent, obstruct, or delay Patrolman Zwiebel (3) that hampered

or impeded Patrolman Zwiebel’s performance of a lawful duty. See State v. Cobb,

2d Dist. Montgomery No. 19474, 2003-Ohio-3034, ¶ 8, fn.1.

        {¶38} We conclude that Swaney’s obstructing-official-business conviction

is supported by sufficient evidence. First, the State presented sufficient evidence to


2
 Defendant’s Exhibit A is a copy of a sign affixed to Buettner’s office door defining emergency situations
and listing emergency contact numbers. (Sept. 24, 2018 Tr. at 119). (See Defendant’s Ex. A).

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support a finding that Swaney engaged in an “act.” “‘“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 * * *.”’” Pierce, 2017-Ohio-4223, at ¶ 12,

quoting State v. Crowell, 189 Ohio App.3d 468, 2010-Ohio-4917, ¶ 11 (2d Dist.),

quoting State v. Harrell, 2d Dist. Montgomery No. 21736, 2007-Ohio-4550, ¶ 12.

“‘[O]ne cannot obstruct official business by doing nothing.’” Id., quoting Garfield

Hts. v. Simpson, 82 Ohio App.3d 286, 291 (8th Dist.1992). “A mere failure or

refusal to respond to an officer’s request does not constitute obstructing official

business.” Crowell at ¶ 11, citing Harrell at ¶ 12, citing State v. Christman, 2d Dist.

Montgomery No. 19039, 2002-Ohio-2915, ¶ 53. However, failure to respond to a

law enforcement officer’s request, coupled with “loud, boisterous, and

uncooperative conduct,” may constitute an affirmative or overt act under R.C.

2921.31(A). State v. Shoe, 3d Dist. Shelby No. 17-17-22, 2018-Ohio-3006, ¶ 20,

citing Pierce at ¶ 13. Moreover, moving into and blocking a law enforcement

officer’s path of travel falls into the realm of affirmative action for purposes of R.C.

2921.31(A). See State v. Neftzer, 62 Ohio Misc.2d 384, 387 (1992) (noting “that

the affirmative placing of one’s self in an officer’s intended path of travel, * * * as

distinguished from the mere failure to move from one’s position, would constitute

an act and not an omission”); State v. Ghaster, 8th Dist. Cuyahoga No. 90838, 2009-

Ohio-2117, ¶ 51-52, 58 (upholding a conviction for obstructing official business


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where the defendant moved into the pathway of the officers’ patrol vehicles as the

officers attempted to leave the scene).

       {¶39} Here, any rational trier of fact could find beyond a reasonable doubt

that Swaney engaged in an affirmative or overt act. The footage from Patrolman

Zwiebel’s body camera and his testimony establish that Swaney moved into the

pathway of Patrolman Zwiebel on several occasions. Patrolman Zwiebel instructed

Swaney several times to move out of the way, but Swaney refused to move, and in

fact, demanded that Patrolman Zwiebel step around him, which he eventually did.

The record also establishes that Swaney engaged in a foot race with Patrolman

Zwiebel to Buettner’s apartment. Swaney reached the apartment before Patrolman

Zwiebel and then stood between Patrolman Zwiebel and the door. Again, Patrolman

Zwiebel ordered Swaney to move and Swaney refused. Thus, by standing in the

path of travel of Patrolman Zwiebel, blocking Patrolman Zwiebel’s access to

Buettner’s door, and failing to heed the officer’s repeated instructions to move out

of the way, Swaney engaged in an affirmative act under R.C. 2921.31(A). See

Neftzer at 387; Ghaster at ¶ 51-52, 58.

       {¶40} Moreover, throughout the encounter, Swaney was uncooperative and

argumentative with the officers. Although his initial decision not to assist the

officers by unlocking Music’s door was not an affirmative act under R.C.

2921.31(A), his actions thereafter did constitute an act. After the officers assisted


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Music into her apartment, Swaney questioned their authority and told the officers

that they do not have a right to be on the property. Throughout the encounter, he

was argumentative, uncooperative, and hostile and thereby delayed Patrolman

Zwiebel in exercising his duties. In the totality of the circumstances, Swaney’s

antagonistic behavior and demeanor constitutes an affirmative act under R.C.

2921.31(A). See Shoe, 2018-Ohio-3006, at ¶ 21 (“Shoe’s choice to adopt an

antagonistic demeanor with Officer Calvert constitutes an affirmative act.”), citing

State v. Parkhurst, 11th Dist. Trumbull No. 2015-T-0041, 2016-Ohio-1018, ¶ 31

(“Parkhurst’s argumentativeness constituted an affirmative act that, according to the

testimony of Patrolman Hodge, did delay him from issuing the citation.”); State v.

Henry, 10th Dist. Franklin No. 16AP-846, 2018-Ohio-1128, ¶ 56, quoting State v.

Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, ¶ 13 (1st Dist). (“Ohio courts

have upheld convictions for obstructing official business in instances in which an

individual prevented law enforcement officers from gaining control of a situation

based upon ‘belligerent and argumentative’ behavior.”).

       {¶41} In addition, a rational trier of fact, evaluating Swaney’s demeanor and

conduct under the circumstances of the encounter, could find that it was Swaney’s

specific intention to prevent, obstruct, or delay Patrolman Zwiebel in the

performance of his duties. Swaney’s actions of stepping in front of Patrolman

Zwiebel, both as the officer was en route back to his patrol vehicle and at Buettner’s


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door, coupled with his argumentative and uncooperative behavior and his

proclamations that the officers did not have a right to be on the property could lead

a rational finder of fact to find that it was Swaney’s specific intention to delay

Patrolman Zweibel or prevent him from performing his duties. Although Swaney

argues that he did not intend to hinder the officers from performing their duties and

that he was merely asking the officers questions and expressing his feelings, his

assertions are undermined by his uncooperative behavior throughout the encounter,

his decision to move into the line of travel of Patrolman Zwiebel, and his refusal to

heed Patrolman Zwiebel’s repeated requests for him to step aside. Therefore, we

conclude that a rational trier of fact could infer that Swaney purposely acted to

prevent, obstruct, or delay Patrolman Zwiebel from performing his official duties.

       {¶42} Finally, the State presented sufficient evidence from which any

rational trier of fact could find beyond a reasonable doubt that Swaney’s conduct

hampered or impeded Officer Zwiebel in the performance of his duties. “The proper

focus in a prosecution for obstructing official business is on the defendant’s conduct,

verbal or physical, and its effect on the public official’s ability to perform the

official’s lawful duties.”   Wellman at ¶ 12.      “[I]n order to be convicted for

obstructing official business, there must be evidence presented indicating the

defendant actually interfered with the performance of an official duty, thereby

making the performance of that duty more difficult.” State v. Ertel, 12th Dist.


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Case No. 2-18-20


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 82593, * 2 (June 18, 1990). See State v.

Ellis, 2d Dist. Montgomery No. 24003, 2011-Ohio-2967, ¶ 59 (noting that to

“hamper or impede” a law enforcement officer, “‘there must be some substantial

stoppage of the officer’s progress’” but there is no “‘finite period of time [that]

constitutes a “substantial stoppage”’”), quoting Wellman at ¶ 17-18.

      {¶43} Swaney argues that he did not impede the officers in the performance

of their official duties because the officers had completed their duty of assisting

Music into her apartment when his confrontation with Patrolman Zwiebel occurred.

We disagree. First, we note that Swaney invites us to view his actions in isolation.

“However, ‘the total course of the defendant’s conduct must be considered’ as

opposed to ‘viewing the acts of a defendant in isolation.’” State v. Body, 2d Dist.

Montgomery No. 27732, 2018-Ohio-3395, ¶ 22, quoting State v. Overholt, 9th Dist.

Medina No. 2905-M, 1999 WL 635717, *2 (Aug. 18, 1999). “‘Interference with

the police by citizens must * * * be necessarily viewed as a continuum along which,

at a certain point, the line is crossed.’”    State v. Lenzy, 5th Dist. Stark No.

2018CA00023, 2018-Ohio-3485, ¶ 25, quoting State v. Stayton, 126 Ohio App.3d

158, 164 (1st Dist.1998).




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Case No. 2-18-20


       {¶44} Here, the parties do not dispute that Swaney was not legally obligated

to unlock Music’s apartment door. Thus, when the officers came to Swaney’s door

and he declined to assist the officers, he was not breaking the law in so choosing.

However, Patrolman Zwiebel’s body camera footage and testimony indicates that

Swaney delayed Patrolman Zwiebel from resuming his duties as a patrol officer by

blocking him from getting to his patrol vehicle. See State v. Ghaster, 2009-Ohio-

2117, at ¶ 52. Moreover, contrary to Swaney’s arguments that Patrolman Zwiebel

went to Buettner’s door with the sole purpose to “tattle” on Swaney, Patrolman

Zwiebel testified that his intentions when going to Buettner’s door were (1) to ask

for clarification regarding the apartment complex’s rules regarding tenants who

locked themselves out of their units, (2) to file a complaint against Swaney, and (3)

to look into how to resolve the issue of tenants who have been locked out of their

apartments in the future, perhaps through a master key kept at the police station.

Thus, a rational trier of fact could determine that Patrolman Zwiebel was acting

within his official capacity during his encounter with Swaney.

       {¶45} Therefore, viewing the evidence presented in a light most favorable to

the prosecution, a rational trier of fact could have found that Swaney acted with the

purpose to prevent, obstruct, or delay Patrolman Zwiebel’s performance of an

authorized act within his official capacity and that Patrolman Zwiebel was hampered

or impeded in the performance of his lawful duties. Accordingly, we conclude that


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Swaney’s obstructing-official-business conviction is supported by sufficient

evidence. As a result, the trial court did not err by denying Swaney’s Crim.R. 29(A)

motion for acquittal.

       {¶46} Having     concluded   that   Swaney’s       obstructing-official-business

conviction is based on sufficient evidence, we next address Swaney’s argument that

his conviction is against the manifest weight of the evidence. See Velez, 2014-Ohio-

1788, at ¶ 76.

       {¶47} Swaney asserts that his conviction is against the manifest weight of

the evidence because he had no legal responsibility to unlock Music’s door.

(Appellant’s Brief at 14-16). Moreover, he contends that Patrolman Zwiebel was

not performing a lawful duty by “[u]nlocking a door, questioning a resident’s

manhood, or engaging in a footrace to a resident’s employer’s office to tattle on

him.” (Id. at 16). Swaney contends that the jury lost its way because the judge and

jury “seemed put off because [he] would not unlock the door and his apparent

disrespect of the police officers.” (Id.). We disagree.

       {¶48} With regard to his argument that his conviction is against the manifest

weight of the evidence because he had no legal responsibility to unlock Music’s

door, we note that, as outlined above, Swaney’s initial decision not to assist the

officers by unlocking Music’s door was not an affirmative act under R.C.

2921.31(A). Thus, Swaney’s failure to assist law enforcement officers does not


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Case No. 2-18-20


supply the basis of his conviction. Furthermore, with respect to his argument that

the jury and the judge “seemed put off because Mr. Swaney would not unlock the

door and his apparent disrespect of the police officers and convicted him on that

basis rather than following the law,” we find this allegation to be wholly without

merit. The record of the trial proceedings is completely devoid of any indication

that the judge or jury seemed “put off” by Swaney’s decision not to unlock Music’s

door and his disrespect of the police officers.

       {¶49} Rather, we conclude that the evidence in the record weighs strongly in

favor of Swaney’s obstructing-official-business conviction. First, the evidence

overwhelmingly demonstrates that by twice blocking Patrolman Zwiebel’s path of

travel and by adopting a belligerent attitude toward Patrolman Zwiebel, Swaney

engaged in affirmative or overt acts for purposes of R.C. 2921.31(A). Moreover,

contrary to Swaney’s argument, there is considerable evidence that these acts had

the effect of hampering or impeding Patrolman Zwiebel in the performance of his

lawful duties. Patrolman Zwiebel testified that his performance of his official duties

was delayed by Swaney’s actions because he was delayed in getting back to his

patrol vehicle, “having to walk around” Swaney, “having to argue with [Swaney]

for [Patrolman Zwiebel’s] reason to be on the property,” “adding extra time,”

“blocking [his] ability to knock on [Buettner’s] door and make contact with her,”

and “not following [Patrolman Zwiebel’s] directions.” Patrolman Zwiebel stated


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Case No. 2-18-20


that he was “absolutely” delayed in his duties by Swaney’s actions. Thus, the

evidence weighs in favor of a finding that Patrolman Zwiebel was hampered or

impeded in performing his duties.

       {¶50} Finally, the evidence supports that Swaney acted with purpose to

obstruct or delay Patrolman Zwiebel’s performance of his lawful duties. Swaney

testified that he did not act with the intention of delaying the officers in the

performance of their duties. (Sept. 24, 2018 Tr. at 131-132). However, “the weight

to be given the evidence and the credibility of the witnesses are primarily for the

trier of the facts.” DeHass, 10 Ohio St.2d at paragraph one of the syllabus. “‘When

examining witness credibility, “the choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may

not substitute its own judgment for that of the finder of fact.”’” State v. White, 3d

Dist. Seneca No. 13-16-21, 2017-Ohio-1488, ¶ 50, quoting In re N.Z., 11th Dist.

Lake Nos. 2010-L-023, 2010-L-035 and 2010-L-041, 2011-Ohio-6845, ¶ 79,

quoting State v. Awan, 22 Ohio St.3d 120, 123 (1986). “‘A fact finder is free to

believe all, some, or none of the testimony of each witness appearing before it.’”

Id., quoting In re N.Z. at ¶ 79, citing State v. Thomas, 11th Dist. Lake No. 2004-L-

176, 2005-Ohio-6570, ¶ 29. See also State v. Missler, 3d Dist. Hardin No. 6-14-06,

2015-Ohio-1076, ¶ 44, quoting State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-

Ohio-2128, ¶ 68, quoting State v. Antill, 176 Ohio St. 61, 67 (1964). ““‘A verdict


                                        -25-
Case No. 2-18-20


is not against the manifest weight of the evidence because the [jury] chose to believe

the State’s witnesses rather than the defendant’s version of the events.”’” Missler

at ¶ 44, quoting State v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15,

quoting State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.

       {¶51} Here, the jury was presented with Swaney’s testimony that his actions

were not intended to obstruct or delay Patrolman Zwiebel. The jury was able to

assign whatever credibility it deemed appropriate to Swaney’s testimony and the

fact that it ultimately disbelieved Swaney does not render his obstructing-official-

business conviction against the weight of the evidence. Furthermore, as discussed

in detail under our sufficiency-of-the-evidence analysis, the jury was presented with

ample evidence from which it could infer that Swaney’s actions were intended to

prevent, obstruct, or delay the performance of Patrolman Zwiebel’s official duties.

       {¶52} Therefore, having weighed the evidence and all reasonable inferences,

and considering the credibility of the witnesses, we conclude that the jury did not

clearly lose its way and create such a manifest miscarriage of justice that Swaney’s

conviction must be reversed. Accordingly, Swaney’s conviction is not against the

manifest weight of the evidence.

       {¶53} Swaney’s first and second assignments of error are overruled.

                           Assignment of Error No. III

       Defendant was denied the effective assistance of counsel as
       required by the Sixth Amendment to the U.S. Constitution.

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Case No. 2-18-20



       {¶54} In his third assignment of error, Swaney argues that his trial counsel

was ineffective.   Specifically, Swaney argues that his trial counsel failed to

“properly lay out for the jury” that the State had failed in its burden of proof “in a

way the jury could follow.” (Appellant’s Brief at 17). Furthermore, Swaney

contends that his trial counsel failed to ask Patrolman Zwiebel “precisely what

official business was being obstructed” and failed to “demonstrate to the jury just

how out of line [Patrolman Zwiebel] was in his treatment of [Swaney].” (Id.).

       {¶55} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment.          Strickland at 689.

“[C]ounsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance.” State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

                                        -27-
Case No. 2-18-20


essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

       {¶56} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

       {¶57} If the petitioner cannot prove one of the elements, “[i]t [is]

unnecessary for a court to consider the other prong of the test.” State v. Walker, 3d

Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.

       {¶58} Here, we conclude that Swaney has failed to demonstrate that his trial

counsel’s performance fell below an objective standard of reasonableness. Swaney

argues that he was denied the effective assistance of counsel because his trial

counsel “failed to properly lay out for the jury how the [S]tate blatantly failed to

prove all elements of Obstructing Official Business in a way the jury could follow.”

(Appellant’s Brief at 17). Swaney contends that “[s]imply breaking down each

element and explaining the case to the jury based on each element could have gone

a long way in helping the jury understand the obvious failings of the State’s case.”

(Id.). However, in closing arguments, Swaney’s counsel did argue to the jury that

the trial court failed to meet its burden of proof regarding several elements of the


                                        -28-
Case No. 2-18-20


offense. (See Sept. 24, 2018 Tr. at 146-151). Moreover, Swaney’s trial counsel

urged the jury to consult the jury instructions, which detail the elements of the

offense. (Id. at 146). Swaney’s trial counsel reasoned to the jury that, upon applying

the elements of the offense to the facts presented in the trial, they would find that

Swaney’s conduct did not constitute the offense of obstructing official business. (Id.

at 146-151). Thus, the jury was made aware of the elements of the offense and the

need to find each proven beyond a reasonable doubt through the jury instructions,

which Swaney’s trial counsel referenced. Accordingly, we cannot conclude that

Swaney has overcome the strong presumption that his trial counsel provided

competent representation.

       {¶59} Swaney also argues that his trial counsel was ineffective with respect

to his treatment of Patrolman Zwiebel’s testimony. Specifically, he argues that his

trial counsel was ineffective because he failed to demonstrate “how out of line

[Patrolman Zwiebel] was in his treatment of [him]” and that his trial counsel failed

to ask Patrolman Zwiebel “precisely what official business was being obstructed.”

(Appellant’s Brief at 17). We disagree.

       {¶60} State’s Exhibit 1, which includes Patrolman Zwiebel’s body camera

footage of the encounter, was admitted into evidence and played during the jury

trial. (Sept. 24, 2018 Tr. at 73). (See State’s Ex. 1, Patrolman Zwiebel’s Body

Camera Footage). Thus, the jury had the opportunity to see and hear the encounter


                                        -29-
Case No. 2-18-20


between Swaney and Patrolman Zwiebel in its entirety. Moreover, during cross-

examination, Swaney’s trial counsel thoroughly questioned Patrolman Zwiebel

regarding his comments to Swaney. (Sept. 24, 2018 Tr. at 88-98). For instance,

Swaney’s trial counsel elicited admissions from Patrolman Zwiebel that his

comment regarding Swaney’s “manhood” was not necessary and that both

Patrolman Zwiebel’s and Swaney’s actions were at fault for the escalation of their

encounter. (Id. at 88-89).

       {¶61} Furthermore, we do not find Swaney’s argument that his trial counsel

was ineffective because he failed to inquire from Patrolman Zwiebel “precisely what

official business was being obstructed” compelling.           Swaney assumes that

Patrolman Zwiebel’s answer to this proposed question would have been favorable

to him and would have enticed the jurors to find him not guilty of obstructing official

business. However, we note that if Swaney’s trial counsel had asked Patrolman

Zwiebel “precisely what official business was being obstructed” during cross-

examination, Patrolman Zwiebel would have had the opportunity to answer the

question in a manner that the jury may have found favorable to the State. Therefore,

the decision not to ask the question may have been a tactical or strategic decision.

Thus, we cannot find that his failure to clarify “precisely what official business was

being obstructed” was unreasonable under the circumstances.




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Case No. 2-18-20


       {¶62} Having concluded that Swaney’s trial counsel’s performance did not

fall below an objective standard of reasonableness, we need not address whether

Swaney was prejudiced by his trial counsel’s performance.

       {¶63} Accordingly, Swaney’s third assignment of error is overruled.

       {¶64} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                        -31-
