[Cite as State v. Parkhurst, 2016-Ohio-1018.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2015-T-0041
        - vs -                                  :

BRUCE R. PARKHURST, JR.,                        :

                 Defendant-Appellant.           :


Criminal Appeal from the Niles Municipal Court, Case No. CRB 1400694.

Judgment: Affirmed.


Terry A. Swauger, Niles City Prosecutor, 15 East State Street, Niles, OH 44446 (For
Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Bruce R. Parkhurst, Jr., appeals his convictions for

Obstructing Official Business and Loud Exhaust, following a jury trial in the Niles

Municipal Court. The issue before this court is whether a conviction for Obstructing

Official Business may be sustained based on the defendant’s arguing and refusing to

cooperate with police officers. For the following reasons, we affirm the decision of the

court below.
       {¶2}    On July 29, 2014, Parkhurst was charged with Obstructing Official

Business, a misdemeanor of the second degree in violation of R.C. 2921.31 (Case No.

CRB 1400694), and Loud Exhaust, a minor misdemeanor in violation of R.C. 4513.22

(Case No. TRD 1401771).

       {¶3}    On August 7, 2014, Parkhurst pled not guilty to both charges at the

arraignment.

       {¶4}    On January 15, 2015, the case was tried before a jury.

       {¶5}    The following testimony was presented on behalf of the State.

       {¶6}    Patrolman Kristopher Hodge of the Weathersfield Police Department

testified that, on July 29, 2014, he was “on State Route 46 sitting in the old McQuaids

Gas Station on stationary patrol,” when he “heard a vehicle traveling northbound on

State Route 46” with “a very loud, excessive muffler.” Hodge followed the vehicle as far

as Mckees Lane where he initiated a traffic stop “for an excessive loud muffler.”

       {¶7}    Patrolman Hodge approached Parkhurst, the driver of the vehicle, and

tried to explain the reason for the stop but “he kept interrupting me and stopped me and

was trying to talk over me.” Parkhurst presented his driver’s license but did not provide

proof of insurance.    There was another person in the front passenger seat of the

vehicle. Hodge returned to his patrol car to run the license on his computer and called

for backup.

       {¶8}    After another officer, Patrolman Daniel Lowery, arrived, Patrolman Hodge

returned to Parkhurst’s vehicle to issue a citation:

               I began to explain the traffic citation to him and explain what he
               needed to do if he wanted to contest the ticket. As I was talking he
               interrupted me several times and obstructed me from giving him his
               traffic ticket. He continued to argue with me for giving him the



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                ticket. At that time I told Mr. Parkhurst I wasn’t arguing with him
                and I needed him to sign his traffic ticket. Mr. Parkhurst said he
                was not signing the traffic ticket. Officer Lowery * * * was on the
                passenger side of the vehicle standing there observing what was
                going on. As Mr. Parkhurst continued to argue with me, he
                immediately went to his left pocket in an assertive move. At that
                time I stepped back not knowing what he was doing. Officer
                Lowery drew his service weapon at Mr. Parkhurst and ordered him
                to put his hands up in the air. Mr. Parkhurst again refused,
                delaying me to give him his traffic citation. Finally after several
                commands to Mr. Parkhurst by Officer Lowery, Mr. Parkhurst finally
                put his hands up. He had a cell phone in his left pocket. At that
                time I advised Mr. Parkhurst to exit the vehicle at which time he
                refused to do so. After, again, two or three more commands to exit
                the vehicle he refused. I then opened his vehicle and took him out
                of the vehicle and placed him into custody.

       {¶9}     Patrolman Lowery of the Weathersfield Police Department testified that

Parkhurst was “yelling” and “arguing” as Patrolman Hodge tried to explain the citation.

Lowery confirmed that Parkhurst “made a quick move with his left hand to the left side

of his body, either to his pocket or his waist band,” which caused him to draw his service

weapon.       Lowery “yelled at him several times to put his hands in the air,” and,

“eventually after the third time he pulled up a cell phone that he had in his hand”:

                Mr. Parkhurst was told to put the phone down. He ended up
                arguing with me some more. Officer Hodge told him to get out of
                the vehicle and he refused to get out of the vehicle. Officer Hodge
                opened the door and pulled Mr. Parkhurst out of the vehicle and at
                the time, I came around * * * front to assist Patrolman Hodge. He
                tried cuffing Mr. Parkhurst. Mr. Parkhurst resisted. We got him
                cuffed and placed him in the back of the vehicle.

       {¶10} At the close of the State’s case, counsel for Parkhurst moved for acquittal,

which motion the municipal court denied.

       {¶11} The following witnesses testified on Parkhurst’s behalf:




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      {¶12} William Salsgiver, a mechanic at B & M Automotive, testified that he

examined Parkhurst’s vehicle on August 20, 2014, and found that it was working

properly and was not excessively loud.

      {¶13} Raymond Anderson, the passenger in Parkhurst’s vehicle, testified that

the initial interaction between Parkhurst and Patrolman Hodge was nonconfrontational

and that Parkhurst was holding his cell phone in his hand during the entire stop. When

Patrolman Hodge returned to the vehicle with the citation, followed by Patrolman

Lowery, Parkhurst told him, “I don’t feel I have to sign the ticket.” This “infuriated the

Officer and he started basically calling him names.”

      {¶14} The “next thing” that happened was that Patrolman Lowery “made a quick

move like a step or two back and he drew his gun.” Patrolman Hodge began “literally

flying off with names and they grabbed [Parkhurst] and pulled him out of the vehicle,”

while he protested, “I’m not resisting.” Although Hodge instructed Parkhurst to get out

of the vehicle, he was not given an opportunity to comply before being yanked out.

      {¶15} Parkhurst testified that he was unaware of the reason why he was being

stopped on July 29, 2014. He complied with Patrolman Hodge’s request to present his

license. Hodge advised that the muffler was loud and he “disagreed with him.” Hodge

asked for his insurance card and registration but these documents were not in the

vehicle. When Hodge went back to his patrol car everything seemed fine.

      {¶16} Parkhurst used the camera on his phone to take pictures of the flashing

lights and the second officer who had arrived on the scene.

      {¶17} Patrolman Hodge returned and “demanded that I sign the ticket.”

Parkhurst replied “that I didn’t understand the ticket so I didn’t want to sign it.” Hodge




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began to swear at and berate him. At that point, Parkhurst noticed that Patrolman

Lowery had “a gun pointed at my head * * * gangster style, * * * just inside the window of

my van and he asked me what the hell I was doing.”

       {¶18} Parkhurst testified that neither officer gave him commands or instructions

at this time. Using the cell phone, he “tried to take a picture * * * of the Officer pointing

the gun.”   While taking the picture, “the Officer on my driver side hit my arm and

knocked the phone out of my hand across the van.” Parkhurst continued:

              Without warning he opened the door and yanked me out of the van
              and started calling me an Asshole and kept saying Sovereign
              Citizen, kept calling me Sovereign. I said, “I’m not resisting. I do
              not comply with this. I contest this.”

       {¶19} The jury found Parkhurst guilty of Obstructing Official Business and Loud

Exhaust.

       {¶20} On March 2, 2015, the municipal court sentenced Parkhurst for

Obstructing Official Business. The court ordered him to pay a fine of $150, to pay court

costs of $112, and to serve 90 days in jail with 90 days suspended.              Parkhurst’s

sentence was memorialized in a March 25, 2015 Amended Judgment Entry.

       {¶21} On April 27, 2015, Parkhurst filed a Notice of Appeal from Case No. CRB

1400694, the Obstructing Official Business charge.

       {¶22} On appeal, Parkhurst raises the following assignments of error:

       {¶23} “[1.] The appellant’s conviction for obstruction of official business is not

supported by sufficient evidence and is, therefore, in violation of the appellant’s due

process rights.”

       {¶24} “[2.] Both of the appellant’s convictions are against the manifest weight of

the evidence.”



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       {¶25} “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 evidence is

insufficient to sustain a conviction of such offense or offenses.” Crim.R. 29(A).

       {¶26} “A claim of insufficient evidence invokes a due process concern and raises

the question whether the evidence is legally sufficient to support the verdict as a matter

of law.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118.

In reviewing the sufficiency of the 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, 574 N.E.2d 492 (1991), paragraph two of the

syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).

       {¶27} The Obstructing Official Business statute 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.” R.C. 2921.31(A).

       {¶28} “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

duties,” and “[a] mere failure or refusal to respond to an officer’s request does not

constitute obstructing official business.” (Citations omitted.) State v. McLaughlin, 2nd




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Dist. Montgomery No. 26521, 2015-Ohio-4611, ¶ 13. “With respect to R.C. 2921.31(A),

[this court has] previously held that ‘an individual cannot be found guilty of obstructing

official business by doing nothing because the statute specifically requires an offender

to act,’ citing to case law throughout Ohio.” State v. Vitantonio, 995 N.E.2d 1291, 2013-

Ohio-4100, ¶ 13 (11th Dist.), citing State v. Brown, 11th Dist. Lake No. 2006-L-064,

2006-Ohio-6872, ¶ 29.

       {¶29} Relying on Vitantonio, Parkhurst maintains that he “committed no

affirmative act which would amount to Obstructing Official Business.” With respect to

reaching for his phone, “there is no indication that the Appellant had been instructed to

keep his hands out of his pockets.” With respect to refusing to sign the citation, “the

arresting officer readily admitted that there was no legal requirement” that he do so.

Appellant’s brief at 6.

       {¶30} In Vitantonio, this court reversed a conviction for Obstructing Official

Business “where appellant refused to respond to the persistent knocking of law

enforcement,” attempting to investigate a domestic disturbance. Vitantonio at ¶ 15.

“[A]ppellant’s act of refusing entry was, at most, an inconvenience for the officers who

had to seek out a key and ultimately consider breaking down the door,” before the door

was eventually opened. Id. at ¶ 16.

       {¶31} The facts of the present case, however, are materially distinguishable from

those of Vitantonio. Here, Parkhurst’s argumentativeness constituted an affirmative act

that, according to the testimony of Patrolman Hodge, did delay him from issuing the

citation. That delay was increased by Parkhurst’s reaching for his phone in a manner




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that caused Patrolman Lowery to draw his weapon and his subsequent refusal to put his

hands up and/or put the phone down and to exit the vehicle.

       {¶32} Such conduct has been found to be sufficient to sustain a charge of

Obstructing Official Business. In Warren v. Lucas, 11th Dist. Trumbull No. 99-T-0019,

2000 Ohio App. LEXIS 2146 (May 19, 2000), this court sustained a conviction for

Obstructing Official Business where the offender repeatedly interrupted officers

attempting to question a witness: “his volume and demeanor * * * made it impossible for

officers to question Ms. Bowling.” Id. at 9. This court held that “it was necessary to

examine the overall conduct of an appellant to determine whether his yelling at police

officers and refusing to cooperate with their orders was sufficient to sustain a conviction

for obstruction of official business.” Id. at 8. Also, State v. Willey, 5th Dist. Stark No.

2014CA00222, 2015-Ohio-4572, ¶ 24 (“[a]ppellant did not physically resist police in the

instant case but her argumentative demeanor needlessly escalated the entire incident

and entirely stalled the investigation into the original complaint”); State v. Florence, 12th

Dist. Butler No. CA2013-08-148, 2014-Ohio-2337, ¶ 13 (“Florence’s purposeful loud,

boisterous, and uncooperative conduct made the performance of their duties more

difficult”); State v. Niebauer, 11th Dist. Ashtabula No. 2007-A-0097, 2008-Ohio-3988, ¶

22 (“Niebauer’s refusal to obey Deputy Roach’s orders [to remain in the car and place

her hands where he could see them] gave him probable cause to believe that she was

impeding the performance of his duty in violation of R.C. 2921.31”); State v. Wellman,

173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 31 (1st Dist.) (appellant’s

“volume and demeanor and his other actions that hindered the officers in conducting




                                             8
their investigation * * * ‘crossed the line between fair protest and actual obstruction’”)

(citation omitted).

       {¶33} Finally, we note that it does not matter if Parkhurst’s conduct was in

contravention of a patrolman’s order. “A conviction for obstructing official business is

properly focused * * * on the actor’s conduct and the effect that conduct has on a public

official.” State v. Neptune, 4th Dist. Athens No. 99CA25, 2000 Ohio App. LEXIS 1884,

27-28 (Apr. 21, 2000).

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

       {¶35} In Ohio, “a court of appeals has the authority to reverse a judgment as

being against the weight of the evidence.” Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 7. “No judgment resulting from a trial by jury shall

be reversed on the weight of the evidence except by the concurrence of all three judges

hearing the cause.” Ohio Constitution, Article IV, Section 3(B)(3).

       {¶36} “In weighing the evidence, the court of appeals must always be mindful of

the presumption in favor of the finder of fact.” Eastley at ¶ 21.

              The court, reviewing the entire record, weighs the evidence and all
              reasonable inferences, considers the credibility of witnesses and
              determines whether in resolving conflicts in the evidence, the jury
              clearly lost its way and created such a manifest miscarriage of
              justice that the conviction must be reversed and a new trial ordered.
              The discretionary power to grant a new trial should be exercised
              only in the exceptional case in which the evidence weighs heavily
              against the conviction.

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

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶37} Parkhurst claims his convictions are against the manifest weight of the

evidence as “the only corroboration for the arresting officer’s testimony was the backup



                                             9
officer that showed up at the scene and only viewed events after the arresting officer

was explaining the ticket to the Appellant,” whereas “the Appellant presented testimony

of his passenger and the passenger verified that things did not get out of control until

the arresting officer became upset with the fact that Appellant refused to sign the ticket.”

Appellant’s brief at 9.

       {¶38} We find no reason to disturb the fact-finder’s resolution of the conflicting

testimony presented at trial. The fact that Patrolman Hodge “called for a backup car

due to the continued arguing from Mr. Parkhurst” even before he refused to sign the

citation gives credence to the patrolmen’s version of events.

       {¶39} With respect to the Loud Muffler conviction, Parkhurst failed to appeal this

conviction and, therefore, it is not subject to review. Local Appellate Rule 3(B)(3)(a)

(“[a] separate Notice of Appeal shall be filed in the trial court for each case appealed

whether or not the case was consolidated in the trial court for hearing with one or more

other cases”).

       {¶40} The second assignment of error is without merit.

       {¶41} For the foregoing reasons, Parkhurst’s conviction for Obstructing Official

Business is affirmed. Costs to taxed against appellant.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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