         [Cite as State v. Buttram, 2020-Ohio-2709.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-190034
                                                       TRIAL NO. 18CRB-27354
        Plaintiff-Appellee,                        :
                                                          O P I N I O N.
  vs.                                              :

DON F. BUTTRAM,                                    :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 29, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

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



C ROUSE , Judge.

       {¶1}   Defendant-appellant    Don       Buttram   appeals his conviction    for

obstructing official business.    For the reasons set forth below, we affirm the

judgment of the trial court.

                                 Facts and Procedure

       {¶2}   On October 1, 2018, Officer Kelly Garner of the Norwood Police

Department received a call to investigate a possible overdose. Garner, as well as fire

and EMS units, responded to Buttram’s address. Garner activated a body-worn

camera upon her arrival.       The body camera captured the entirety of Garner’s

encounter with Buttram.

       {¶3}   Footage from the body camera shows Garner entering Buttram’s

apartment, announcing her presence, and proceeding toward the bathroom. Garner

testified that when she reached the bathroom doorway, she observed Buttram seated

on the floor with an “uncapped, loaded syringe in his hand.” Garner testified that

Buttram “appeared to be ready to use the syringe. He had a belt around his arm.”

Garner also observed a dose of Narcan on the bathroom sink. Garner testified that

she was unable to determine if Buttram had ingested the Narcan prior to her arrival.

       {¶4}   Garner immediately instructed Buttram to place the syringe on the

floor, but he refused. After approximately four or five orders, Buttram unsteadily

rose to his knees. At that point, Garner and the medics warned Buttram that if he

failed to comply with Garner’s orders, he would be sprayed with pepper spray.

Buttram still refused to comply, and Garner administered pepper spray to Buttram’s

face. Garner then instructed Buttram three more times to drop the syringe, but

Buttram continued to stand and walk toward her. Garner again administered pepper

spray to Buttram’s face, this time rendering him unable to continue forward.



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       {¶5}     With Buttram temporarily incapacitated, the medics were able to grab

the syringe from his hand. Garner placed the syringe in a secure container and the

medics treated Buttram for a possible overdose and for contamination from the

pepper spray.

       {¶6}     On October 16, 2018, Buttram was charged with one count of

obstructing official business in violation of R.C. 2921.31(A). Following a bench trial,

the trial court found Buttram guilty as charged and sentenced him to 90 days in jail.

Buttram unsuccessfully sought to stay execution of his sentence. This timely appeal

followed.

                                   Law and Analysis

       {¶7}     In his sole assignment of error, Buttram challenges the sufficiency and

weight of the evidence supporting his conviction for obstructing official business.

                           I.   Sufficiency of the Evidence

       {¶8}     To determine whether a conviction is supported by sufficient evidence,

“[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.” State v. Jenks, 61 Ohio

St.3d 259, 274, 574 N.E.2d 492 (1991).

       {¶9}     Buttram was convicted of obstructing official business under R.C.

2921.31(A), which 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.”

       {¶10} To support a conviction for obstructing official business, the state must

prove that Buttram “(1) performed an act; (2) without privilege; (3) with purpose to



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

within the public official’s official capacity; and (4) that hampered or impeded the

performance of the public official’s duties.” In re Payne, 1st Dist. Hamilton No. C-

040705, 2005-Ohio-4849, ¶ 11.

        {¶11} Buttram claims that his conviction must be reversed for several

reasons. First, Buttram argues that he did not perform an affirmative act. He asserts

that he merely refused to cooperate with the officer’s demands. Second, Buttram

argues that he did not intend to prevent, obstruct, or delay the officer’s investigation.

Buttram contends that he did not possess the requisite intent where he lacked

coherence and body coordination due to the ingestion of narcotics. Third, Buttram

argues that his conduct did not rise to the level of hampering or impeding the

officer’s investigation. We consider each argument in turn.

   a.   Affirmative Act

        {¶12} A violation of R.C. 2921.31 requires an affirmative act.          State v.

Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 10 (1st Dist.). A

failure or refusal to comply with a police officer’s order is insufficient to support a

conviction for obstructing official business. See, e.g., State v. Crowell, 189 Ohio

App.3d 468, 2010-Ohio-4917, 938 N.E.2d 1115 (2d Dist.) (refusal to exit from one’s

home upon a police officer’s request is not an “act”); State v. King, 3d Dist. Marion

No. 9-06-18, 2007-Ohio-335 (refusal to disclose identifying information to an officer

is not an “act”); Middletown v. Hollon, 156 Ohio App.3d 565, 2004-Ohio-1502, 807

N.E.2d 945 (12th Dist.) (refusal to provide officer with driver’s license is not an

“act”). However, the proper focus in a prosecution for obstructing official business is

on the total course of the defendant’s conduct, verbal and physical. Wellman at ¶ 12;

State v. Body, 2018-Ohio-3395, 117 N.E.3d 1024, ¶ 22 (2d Dist.).



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         {¶13} Although Garner testified that Buttram impeded her investigation

“with his refusal to place down the syringe,” video footage from her body camera

demonstrates that Buttram’s conduct went beyond simply refusing to comply with

Garner’s orders. The video shows that Buttram stood up, walked toward Garner, and

forced the response team to physically restrain him. Thus, viewed in the light most

favorable to the state, this evidence demonstrates that Buttram performed an

affirmative act and did not merely fail to obey Garner’s orders.

   b. Intent

         {¶14} From Buttram’s actions, and when considering the evidence in the

light most favorable to the state, the trier of fact could reasonably conclude that

Buttram acted with the purpose to prevent, obstruct, or delay Garner in performing

her duties.

         {¶15} “A person acts purposely when it is the person’s specific intention to

cause a certain result[.]” 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 the

other facts and circumstances in evidence.” In re Payne, 1st Dist. Hamilton No. C-

040705, 2005-Ohio-4849, at ¶ 15. However, “[v]oluntary intoxication may not be

taken into consideration in determining the existence of a mental state that is an

element of a criminal offense.” R.C. 2901.21(E).

         {¶16} The record demonstrates that Buttram’s conviction was based upon his

conscious choice to act contrary to Garner’s instructions. Specifically, the trial court

found,

         [T]here was no evidence submitted of an overdose. There was no

         evidence that [Buttram] was not acting in and out of his own volition.

         There was no evidence that he was not communicating of his own will.



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       And there was no evidence that he was unconscious, that he did not

       understand the officer’s instructions. He was communicating with

       them. * * * On the contrary, I think the evidence establishes that

       [Buttram] was conscious, choosing to behave in a way that did amount

       to a violation of [R.C.] 2921.31.

       {¶17} We agree. The facts and circumstances suggest that Buttram did not

intend to be cooperative from the outset of his encounter with Garner. The body

camera footage shows a uniformed Garner entering Buttram’s apartment, closely

followed by the medics.      Garner quickly located Buttram in the bathroom and

immediately ordered him to put the syringe down. Buttram refused and instead

tried to stand up, despite knowing that an officer was telling him to stop. According

to Garner, “at one point he said that he wasn’t going to drop it, or no, or something of

that nature[.]” Garner and the medics warned Buttram that if he continued to

refuse, he would be sprayed with pepper spray. Buttram still did not comply with

Garner’s orders and Garner twice administered pepper spray to Buttram’s face

before he was physically unable to continue forward.          Over the course of her

interaction with Buttram, Garner ordered Buttram approximately 15 times to put the

syringe down.

       {¶18} Under these circumstances, the nature of Buttram’s conduct supports

a finding that he was aware Garner was attending to the scene, yet he refused to

comply and repeatedly engaged in actions contrary to Garner’s orders. Thus, viewed

in the light most favorable to the state, the evidence demonstrates that Buttram

acted with the intent to obstruct official business.




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   c. Hamper or Impede

       {¶19} To support a conviction for obstructing official business, “the state

must prove that the defendant’s conduct in fact hampered or impeded the public

official in the performance of the official’s duties.” Wellman, 173 Ohio App.3d 494,

2007-Ohio-2953, 879 N.E.2d 215, at ¶ 17. The state does not have to show that the

defendant prevented the officer from performing her duties, only that he had

obstructed her from doing so. Id. at ¶ 19.

       {¶20} “There must be some substantial stoppage of the officer’s progress

before one can say [she] was hampered or impeded.” State v. Stephens, 57 Ohio

App.2d 229, 230, 387 N.E.2d 252 (1st Dist.1978). However, this court has held that

no finite period of time constitutes a substantial stoppage, “be the delay * * * thirty

seconds or two minutes.” Wellman at ¶ 18. If the defendant’s act had “more effect

on the performance of the police than silence or a refusal to answer would have had,”

then the evidence supports the conviction. State v. Gordon, 9 Ohio App.3d 184, 187,

458 N.E.2d 1277 (1st Dist.1983).

       {¶21} Garner testified that she responded to Buttram’s apartment “to

investigate a possible overdose.” Garner stated that the normal procedure when

handling an overdose is to ensure the safety of everybody on the scene and to render

aid if a subject needs medical attention. According to Garner, it is important to act

quickly because “the subject who is possibly overdosing has likelihood of death.”

       {¶22} In this case, the total interaction took approximately one minute and

40 seconds. Garner testified that during that time, she was able to evaluate Buttram

for his safety and that she was able to determine that “[t]he scene, other than the fact

that he holds a syringe, uncapped, loaded with an unknown substance, [was] fairly

safe.” However, Garner also testified that the response team could not determine if



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Narcan had already been administered. Thus, according to Garner, “I was not fully

able to assess him completely without worrying about my safety, as well as the

medics on scene that were there to assist him.” Notably, during the investigation,

Garner twice had to take steps to protect herself due to Buttram’s actions of walking

toward her with an uncapped, loaded syringe in his hand.

          {¶23} Under these circumstances, Buttram’s conduct prevented Garner from

gaining control of the situation when danger to the response team was evident.

Thus, viewed in the light most favorable to the state, the evidence demonstrates that

Buttram’s conduct hampered or impeded Garner in the performance of her duties.

                        II.   Manifest Weight of the Evidence

          {¶24} In reviewing a challenge to the weight of the evidence, we sit as a

“thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).     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 created a manifest miscarriage of justice. Id.

          {¶25} Buttram’s     weight-of-the-evidence     argument      concerns     the

interpretation of the evidence presented at trial—i.e., the testimony of Garner and

the video footage from Garner’s body camera. “[W]hen evidence is susceptible to

more than one construction, a reviewing court must give it the interpretation that is

consistent with the judgment.” In re J.C., 1st Dist. Hamilton No. C-180493, 2019-

Ohio-4027, ¶ 20.       Ultimately, “[t]he weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass,

10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

          {¶26} During the bench trial, the trial court listened to the testimony of

Garner and watched the video footage from Garner’s body camera. After closing



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arguments, the court took a brief recess to rewatch the body camera footage in its

entirety. Thereafter, the court found that the state proved all of the elements beyond

a reasonable doubt. Based upon our review of the record, we agree. This is not a

case where the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that Buttram’s conviction must be reversed.

                                      Conclusion

       {¶27} For the foregoing reasons, Buttram’s sole assignment of error is overruled

and the judgment of the trial court is affirmed.

                                                                      Judgment affirmed.

Z AYAS , P.J., and W INKLER , J., concur.


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




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