[Cite as State v. Andrews, 2014-Ohio-2954.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :
                                                                    Case No. 13CA22
        v.                                            :
                                                                    DECISION AND
JAMES R. ANDREWS,                                     :             JUDGMENT ENTRY

        Defendant-Appellant.                          :             RELEASED 06/24/2014


                                              APPEARANCES:

David A. Sams, West Jefferson, Ohio, for Appellant.

Paul G. Bertram, III, City of Marietta Law Director, Marietta, Ohio, for Appellee.



Hoover, J.


        {¶ 1} Defendant-appellant, James R. Andrews (“Andrews”), appeals his conviction in the

Marietta Municipal Court for the offense of resisting arrest in violation of R.C. 2921.33. For the

following reasons, we affirm the judgment of the trial court.

        {¶ 2} On December 16, 2011, Deputy Underwood and Sergeant Hornbeck of the

Washington County Sheriff’s Office were dispatched to the home of Terri McGoye to respond to

a complaint of domestic violence. Once the officers arrived at the home, McGoye alleged that

Andrews, her son, had pushed her against a wall and struck her in the chest earlier that evening.

Andrews resided at the home, in an upstairs bedroom, with his girlfriend. The officers then made

contact with Andrews in his upstairs bedroom and asked him to place his hands above his head

and to exit the bedroom towards Deputy Underwood. Once Andrews exited his bedroom, Deputy

Underwood ordered that he place his hands behind his back. Andrews did not comply with the
Washington App. No. 13CA22                                                                           2


order, even though he had been asked to place his hands behind his back at least twice. At that

time, Andrews was forcibly taken down to the floor; and the officers attempted to handcuff him.

Andrews did not cooperate and the officers used a taser on him two times. Andrews was

eventually handcuffed, taken into custody, and criminal complaints were filed charging him with

the following offenses: domestic violence in violation of R.C. 2919.25(A); resisting arrest in

violation of R.C. 2921.33(A); and obstructing official business in violation of R.C. 2921.31.

          {¶ 3} The case proceeded to jury trial, and after the presentation of the State’s case,

Andrews moved for a directed verdict of acquittal pursuant to Crim.R. 29. The trial court granted

Andrews’ motion for acquittal as to the obstructing official business charge, but ruled that

sufficient evidence had been presented in regards to the domestic violence and resisting arrest

charges. Andrews, through counsel, then presented his defense and rested. After deliberations,

the jury returned a verdict of not guilty on the domestic violence charge, and a verdict of guilty

on the resisting arrest charge. The verdict was journalized and Andrews was sentenced on the

resisting arrest conviction; but the trial court stayed execution of the sentence pending this

appeal.

          {¶ 4} On appeal, Andrews asserts the following assignments of error:

First Assignment of Error:

          THE DEFENDANT-APPELLANT’S CONVICTION FOR RESISTING
          ARREST WAS BASED ON INSUFFICIENT EVIDENCE CONTRARY TO
          OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
Second Assignment of Error:

          THE DEFENDANT-APPELLANT’S CONVICTION AND SENTENCE FOR
          RESISTING ARREST IS CONTRARY TO THE RULE OF REQUIRED
          MERGER UNDER R.C. 2941.25(A) AND THE RULE AGAINST DOUBLE
          JEOPARDY UNDER THE STATE AND FEDERAL CONSTITUTIONS.
Washington App. No. 13CA22                                                                                        3


        {¶ 5} In his first assignment of error, Andrews contends that there was insufficient

evidence to support his conviction for resisting arrest. Specifically, Andrews argues that because

he was never told he was being placed under arrest, “there was no affirmative showing of actual

knowledge on his part that he was being so arrested.” Thus, Andrews asserts that he was merely

being detained, and so, there was insufficient evidence to support a charge of resisting arrest.1

        {¶ 6} “When reviewing the sufficiency of the evidence, our inquiry focuses primarily

upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could

support a finding of guilt beyond a reasonable doubt.” State v. Davis, 4th Dist. Ross No.

12CA3336, 2013-Ohio-1504, ¶ 12. “The standard of review is whether, after viewing the

probative evidence and inferences reasonably drawn therefrom in the light most favorable to the

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

beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

        {¶ 7} Therefore, when we review a sufficiency of the evidence claim in a criminal case,

we review the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d

195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50

(1993). A reviewing court will not overturn a conviction on a sufficiency of the evidence claim

unless reasonable minds could not reach the conclusion the trier of fact did. State v. Tibbetts, 92

Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739

N.E.2d 749 (2001).

        {¶ 8} Andrews was convicted of violating R.C. 2921.33(A), which provides that “[n]o

person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or

1
 In his appellate briefs, Andrews concedes that the officers had a reasonable basis to arrest him for domestic
violence; but he maintains that he was never advised that he was being placed under arrest, and did not know he was
being placed under arrest. He does not contest any other elements of the offense.
Washington App. No. 13CA22                                                                          4


another.” Here, Andrews contends that the State failed to present any evidence at trial that he

was ever lawfully placed under arrest. Notably, in his brief, Andrews does not challenge whether

an arrest for domestic violence would have been proper under the circumstances. Andrews

merely argues that he was unaware that he was being placed under arrest.

       {¶ 9} “Arrest involves four elements: ‘(1) [a]n intent to arrest, (2) under a real or

pretended authority, (3) accompanied by an actual or constructive seizure or detention of the

person, * * * (4) which is so understood by the person arrested.’ ” State v. Burns, 5th Dist.

Coshocton No. 2013CA0005, 2013-Ohio-4498, ¶ 11, quoting State v. Carroll, 162 Ohio App.3d

672, 2005-Ohio-4048, 834 N.E.2d 843, ¶ 8 (1st Dist.), quoting State v. Darrah, 64 Ohio St.2d

22, 26, 412 N.E.2d 1328 (1980), citing State v. Terry, 5 Ohio App.2d 122, 128, 214 N.E.2d 114

(8th Dist.1966). Thus, inter alia, to obtain a conviction for resisting arrest, the evidence must

show that the subject of the arrest knew, or reasonably should have known, that he was under

arrest. Id., citing State v. Deer, 6th Dist. Lucas No. L–06–1086, 2007–Ohio–1866, ¶ 33; In re

B.M., 2d Dist. Montgomery Nos. 25093, 25206, 2012-Ohio-6221, ¶ 14, citing State v. Hatch, 2d

Dist. Montgomery No. 18986, 2002 WL 10449, *4 (Jan. 4, 2002).

       {¶ 10} In the case sub judice, Sergeant Hornbeck testified that he was dispatched to the

McGoye residence to respond to a domestic violence complaint. He was advised by dispatch that

the suspect, Andrews, had retreated to an upstairs bedroom and was gathering homemade

weapons. After speaking briefly with Terri McGoye, Sergeant Hornbeck made contact with

Andrews in the upstairs bedroom. Sergeant Hornbeck then asked Andrews if he had any

weapons on his person, to which, Andrews produced a utility knife. Sergeant Hornbeck also saw

part of a metal bedframe on a couch in the bedroom. Sergeant Hornbeck testified that he then

ordered Andrews to place his hands above his head and to exit the bedroom towards Deputy
Washington App. No. 13CA22                                                                          5


Underwood. Andrews complied with this order. Sergeant Hornbeck testified that once Andrews

was outside the bedroom, Deputy Underwood ordered him to place his hands behind his back at

least a couple of times. Andrews then grabbed a doorframe and refused to let go. Sergeant

Hornbeck testified that he and Deputy Underwood then forcibly took Andrews to the floor, and

attempted to handcuff him. Andrews continued to resist, and Sergeant Hornbeck then deployed

his X-26 Taser. Sergeant Hornbeck testified that he and Andrews then fell down the stairs to the

first floor of the residence. At that time, Sergeant Hornbeck initiated a second “shock” with his

taser. On cross-examination, Sergeant Hornbeck testified that he never verbally said that he was

placing Andrews under arrest, even though that was his intention in ordering him to exit the

room towards Deputy Underwood. On re-direct, he testified that he did not announce his

intention to place Andrews under arrest because he was worried about the safety of the

individuals involved given the confined space, the accessibility of weapons in the room, and the

presence of Andrews’ girlfriend in the bedroom. “The safest way to do it was to get him in

handcuffs first; search him for additional weapons; and then take him into custody.”

       {¶ 11} Deputy Underwood testified that during his interaction with Andrews, he stood in

the doorway of the bedroom and never entered the room. He testified that after confiscating the

utility knife, Sergeant Hornbeck instructed Andrews to raise his hands above his head and to

walk out into the hallway. Andrews complied with that order, and when he reached the doorway,

Deputy Underwood ordered him to put his hands behind his back. Deputy Underwood testified

that he ordered him to put his hands behind his back “[f]our or five times.” Andrews did not

comply with Deputy Underwood’s order, but rather grabbed the top of a nearby doorframe.

Deputy Underwood testified that at that time, he and Sergeant Hornbeck took Andrews to the

floor where Andrews continued to resist their efforts to handcuff him by laying on top of his
Washington App. No. 13CA22                                                                            6


arms. Deputy Underwood also corroborated Sergeant Hornbeck’s earlier testimony that the taser

was used twice, and that he, Sergeant Hornbeck, and Andrews all “went skipping down the

steps” to the first floor of the residence. After the second taser shock, Andrews was handcuffed.

On cross-examination, Deputy Underwood testified that during the incident, nobody told

Andrews that he was under arrest.

       {¶ 12} Terri McGoye testified that while she did not see the interaction between the

officers and Andrews, she heard the officers order him to turn around and place his hands behind

his back three times. Stephen McGoye, Andrews’ step-father, testified that while he was

downstairs and did not see the interaction of Andrews with the officers, he heard the officers

order Andrews to put his hands behind his back two or three times.

       {¶ 13} Each officer had also tape recorded the incident, and portions of the audio

recordings were played before the jury and admitted into evidence. In one of the audio

recordings, the officers can be heard ordering Andrews to “turn around” four times, to “put [his]

hands behind [his] back” thirteen times, to “get on the ground” two times, to “roll over” five

times, and to “stop resisting” two times. At the beginning of one recording, Andrews says

“Dude, I can walk out of here[,]” to which Deputy Underwood replies “No, you don’t even want

to go there.”

       {¶ 14} Andrews also testified in his own defense at trial. Andrews testified that he did not

hit or push his mother, and that he did not know that he was being arrested. He testified that

when asked to place his hands behind his back, he put one hand behind his back and the officers

put a handcuff on that hand. He further testified that at that time he lost his balance and hit his

head on a door. He then testified that he grabbed the door to regain his balance, but the door was

knocked loose from its frame. He then fell to the floor, and was bent over the steps with his arms
Washington App. No. 13CA22                                                                           7


underneath his body. He testified, that after he fell to the floor, he only remembered “bits and

pieces.”

       {¶ 15} Based on the foregoing circumstances, we conclude that there was sufficient

evidence that Andrews knew, or reasonably should have known, that he was under arrest.

Sergeant Hornbeck clearly ordered him to exit the room with his hands above his head. Once

outside of the bedroom, in a safer space, Deputy Underwood ordered Andrews to turn around

and to place his hands behind his back. Several witnesses testified that they heard Deputy

Underwood make this order at least two times. It is also clear from the audio recording that the

officers continually made demands to which Andrews did not comply, and that the officers

attempted to handcuff Andrews who refused to comply. Also, at one point during the encounter

the officers made clear to Andrews that he was not free to leave. A struggle ensued in which both

officers took Andrews to the floor, and Andrews was instructed to “roll over,” to “put his hands

behind his back,” and to “stop resisting” over and over again. Although the officers did not

announce that Andrews was “under arrest,” a reasonable person in Andrews’ position would

have known they were under arrest. A statement articulating arrest is not necessary where an

arrest may be inferred from the circumstances. See In re S.C.W., 9th Dist. Summit No. 25421,

2011-Ohio-3193, ¶ 30 (“We have said, and other districts have concurred, that a statement

articulating arrest is not necessary, but rather an arrest may be inferred from the

circumstances.”); City of Warren v. Culver, 11th Dist. Trumbull No. 2003-T-0023, 2004-Ohio-

333, ¶ 18 (“[T]he magic words ‘you are under arrest’ are not necessary to constitute an arrest.”).

Accordingly, we find that Andrews’ conviction is not against the sufficiency of the evidence

because, after viewing the evidence in a light most favorable to the prosecution, any rational trier
Washington App. No. 13CA22                                                                              8


of fact could have found the essential elements of the crime of resisting arrest proven beyond a

reasonable doubt.

        {¶ 16} In his reply brief, Andrews also contends that the arrest was deficient under R.C.

2935.07, because the officers did not inform him that they were placing him under arrest.

        {¶ 17} R.C. 2935.07 states: “When an arrest is made without a warrant by an officer, he

shall inform the person arrested of such officer’s authority to make the arrest and the cause of the

arrest.” However, “[w]hen probable cause exists for an arrest by a police officer, the failure to

notify the accused of the cause of his arrest does not render the arrest illegal if he is notified of

the offense with which he is charge[d] soon after he is taken into custody.” Culver at ¶ 16, citing

State v. Fairbanks, 32 Ohio St.2d 34, 41, 289 N.E.2d 352 (1972).

        {¶ 18} Here, criminal complaints charging Andrews with domestic violence, resisting

arrest, and obstructing official business were completed the same day of the incident. Moreover,

Deputy Underwood prepared an affidavit of facts in support of the complaints. Andrews was

provided these documents. Thus, the officers complied with R.C. 2935.07. Accordingly, because

Andrews knew or should have known that he was under arrest, and because the arrest was

otherwise lawful, Andrews’ first assignment of error is overruled.

        {¶ 19} In his second assignment of error, Andrews contends that the obstructing official

business and resisting arrest charges, under the facts of the case, are allied offenses of similar

import, which must merge. Thus, he argues that “[g]iven their allied legal nature and involving

the same conduct, the directed verdict of acquittal on the obstruction charge barred a subsequent

conviction for resisting under res judicata/collateral estoppel/jeopardy.”

        {¶ 20} Andrews’ merger argument is misplaced. Under Ohio law, “[w]here the same

conduct by [the] defendant can be construed to constitute two or more allied offenses of similar
Washington App. No. 13CA22                                                                        9


import, the indictment or information may contain counts for all such offenses, but the defendant

may be convicted of only one.” R.C. 2941.25(A). But “[w]here the defendant's conduct

constitutes two or more offenses of dissimilar import, or where his conduct results in two or

more offenses of the same or similar kind committed separately or with a separate animus as to

each, the indictment or information may contain counts for all such offenses, and the defendant

may be convicted of all of them.” R.C. 2941.25(B).

       {¶ 21} R.C. 2941.25 “codified the judicial doctrine of merger” and “prohibited the

‘cumulative punishment of a defendant for the same criminal act where his conduct can be

construed to constitute two statutory offenses, when, in substance and effect, only one offense

has been committed.’ ” State v. Ware, 63 Ohio St.2d 84, 86, 406 N.E.2d 1112 (1980), quoting

State v. Roberts, 62 Ohio St.2d 170, 172–173, 405 N.E.2d 247 (1980); see also State v. Clay, 4th

Dist. Lawrence No. 11CA23, 2013-Ohio-4649, ¶ 83 (“R.C. 2941.25 ‘codifies the protections of

the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple punishments for the

same offense.’ ”). The Supreme Court of Ohio has “consistently recognized that the purpose of

R.C. 2941.25 is to prevent shotgun convictions, that is, multiple findings of guilt and

corresponding punishments heaped on a defendant for closely related offenses arising from the

same occurrence.” State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, ¶

43.

       {¶ 22} In other words, upon finding one or more counts to constitute two or more allied

offenses of similar import, R.C. 2941.25(A) requires that the convictions be merged for the

purposes of sentencing and that the defendant only be sentenced on one of the counts. State v.

Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182, ¶ 5.
Washington App. No. 13CA22                                                                                        10


        {¶ 23} Here, Andrews was only sentenced on the resisting arrest charge, because he had

been acquitted of the obstructing official business charge. Thus, he did not receive multiple

punishments for the same offense, and the merger doctrine is not applicable.

        {¶ 24} We also disagree with Andrews’ contention that his acquittal of the obstruction

charge barred a subsequent conviction for resisting arrest under the Double Jeopardy Clause.

        {¶ 25} The Double Jeopardy Clause provides that no person shall “be subject for the

same offence to be twice put in jeopardy of life or limb.”2 Thus, the Double Jeopardy Clause

prohibits: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution

for the same offense after conviction, and (3) multiple punishments for the same offense.” State

v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 10.

        {¶ 26} The Supreme Court of Ohio has applied the so-called “same elements” test

articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306

(1932), to determine whether two offenses are the same or whether each is a separate offense for

double jeopardy purposes. State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶

18.

        {¶ 27} The Blockburger court explained the test as follows:

        * * * The applicable rule is that, where the same act or transaction constitutes a

        violation of two distinct statutory provisions, the test to be applied to determine

        whether there are two offenses or only one, is whether each provision requires

        proof of a fact which the other does not. * * *

Blockburger at 304.



2
 The Double Jeopardy Clause was made applicable to the states through the Fourteenth Amendment. State v.
Tolbert, 60 Ohio St.3d 89, 90, 573 N.E.2d 617 (1991). Moreover, Article 1, Section 10, of the Ohio Constitution
provides: “No person shall be twice put in jeopardy for the same offense.”
Washington App. No. 13CA22                                                                           11


        {¶ 28} “A single act may be an offense against two statutes, and if each statute requires

proof of an additional fact which the other does not, an acquittal or conviction under either

statute does not exempt the defendant from prosecution and punishment under the other.” State v.

Best, 42 Ohio St.2d 530, 330 N.E.2d 421 (1975), at paragraph three of the syllabus. “This test

focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a

given case.” State v. Thomas, 61 Ohio St.2d 254, 259, 15 O.O.3d 262, 400 N.E.2d 897 (1980),

overruled on other grounds in State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990),

syllabus. Thus, the “same elements” test “inquires whether each offense contains an element not

contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional

punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct.

2849, 125 L.Ed.2d 556 (1993).

        {¶ 29} Here, Andrews was acquitted, via directed verdict, of obstructing official

business. R.C. 2921.31(A) 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.” The crime for which Andrews was convicted,

resisting arrest, provides that “[n]o person, recklessly or by force, shall resist or interfere with a

lawful arrest of the person or another.” R.C. 2921.33(A).

        {¶ 30} The elements of R.C. 2921.31(A) and 2921.33(A) differ. See City of Cleveland

Heights v. Veasley, 8th Dist. Cuyahoga No. 38053, 1978 WL 208077, *2 (Dec. 14, 1978)

(comparing municipal ordinances with identical language to the revised code statutes). Most

notably, the culpable mental state required by each offense is different. Obstructing official

business must be done purposefully; whereas, resisting arrest only recklessly. Thus, under the
Washington App. No. 13CA22                                                                          12


“same elements” test discussed supra, because obstructing official business and resisting arrest

contain different elements, Andrews’ prosecution for resisting arrest was not a successive

prosecution and did not violate the Double Jeopardy Clause.

       {¶ 31} Andrews also argues that his conviction for resisting arrest is barred by the

doctrine of collateral estoppel. Collateral estoppel is a concept that has been judicially integrated

into double jeopardy analysis. Ashe v. Swenson, 397 U.S. 436, 443-446, 90 S. Ct. 1189, 25

L.Ed.2d 469 (1970). “It is clear from a review of the case law applying the rule of collateral

estoppel in criminal cases that collateral estoppel will preclude successive prosecutions for

separate but related offenses only in those situations where the second prosecution requires the

relitigation of ultimate factual issues which have been previously resolved against the state and

in favor of the accused in the first prosecution.” (Emphasis sic.) State v. Starcher, 21 Ohio

App.3d 94, 95-96, 487 N.E.2d 319 (9th Dist.1984); see also Ashe at 443 (Collateral estoppel

“means simply that when an issue of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”).

       {¶ 32} In the instant case, there was never a second prosecution, or a relitigation of the

issues between the parties. Rather, Andrews was acquitted of the obstructing offense at the

conclusion of the State’s case, via a Crim.R. 29 motion. In other words, the State had already

presented the evidence necessary to convict Andrews on the resisting arrest charge at the time

that the he was acquitted of the obstructing official business charge. Moreover, there was never a

determination of the ultimate factual issues in favor of Andrews. The trial court simply

determined that insufficient evidence had been presented to support a claim of obstructing

official business. Accordingly, we cannot conclude, under the facts and circumstances of this
Washington App. No. 13CA22                                                                        13


case, that collateral estoppel precluded Andrews’ conviction on the charge of resisting arrest.

Andrews’ second assignment of error is overruled.

       {¶ 33} Based on the foregoing, Andrews’ assignments of error are overruled, and the trial

court’s judgment is affirmed.

                                                                       JUDGMENT AFFIRMED.
Washington App. No. 13CA22                                                                       14


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Marietta
Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, P. J. & McFarland, J.: Concur in Judgment & Opinion.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
