[Cite as State v. Conkle, 2019-Ohio-4242.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

CITY OF AKRON                                         C.A. No.     28927

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PAULA CONKLE                                          AKRON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   17-CRB-08623

                                 DECISION AND JOURNAL ENTRY

Dated: October 16, 2019



        SCHAFER, Presiding Judge.

        {¶1}     Defendant-Appellant, Paula Conkle, appeals her conviction in the Akron Municipal

Court. This Court affirms.

                                                 I.

        {¶2}     On September 10, 2017, officers from the Akron Police Department were searching

for an individual named Barry Hartman. The Wadsworth Police Department notified Akron Police

that they had “pinged” Mr. Hartman’s cell phone to a residence located at 246 Kingston Place in

Akron, Ohio, where they believed he may be staying with Paula Conkle. Pursuant to information

relayed to the Akron officers through police dispatch, the officers believed that Mr. Hartman had

recently been present at 246 Kingston Place, and were warned that he may be armed and that he

has threatened “suicide by cop” in the past.

        {¶3}     Several police units arrived at 246 Kingston Place. Akron Police Officers Adam

Guilmette and David White approached the side door of the residence intending to locate and arrest
                                                2


Mr. Hartman on outstanding warrants. Ms. Conkle answered the door and declined to let the

officers inside to search for Mr. Hartman. However, in speaking with the officers, Ms. Conkle did

acknowledge that she knew Mr. Hartman and suggested to the officers that they may possibly be

able to figure something out. During this brief four-to-five-minute encounter at the side door, the

home security alarm sounded, and Ms. Conkle made a telephone call to her alarm company

requesting assistance from other law enforcement agencies.

       {¶4}    At this point, despite Ms. Conkle’s refusal, Officer White decided to make entry

into the residence. He attempted to go through the door, but Ms. Conkle pulled it shut and briefly

held it closed. Officer White was able to force the door open, and Ms. Conkle fell to the floor

screaming and blocking the door with her body. Officers were able to step over Ms. Conkle and

enter the home. While inside, they apprehended Mr. Hartman and placed him under arrest.

       {¶5}    The officers alleged that Ms. Conkle obstructed the officers by closing and blocking

the door and calling her alarm company. Ms. Conkle was charged with one count of obstructing

official business in violation of Akron City Code 136.11, a misdemeanor of the second degree.

Ms. Conkle entered a plea of not guilty to the charge.

       {¶6}    The matter proceeded to a bench trial. At the start of trial, counsel for Ms. Conkle

asserted his intention to argue that any action she took “was a privileged protection of her Fourth

Amendment rights under the Constitution.” Upon the conclusion of the State’s case, the trial court

denied Ms. Conkle’s Crim.R. 29 motion for acquittal. The trial court found Ms. Conkle guilty of

obstructing official business and imposed a sentence on December 18, 2017. Ms. Conkle timely

appealed her conviction, raising one assignment of error for our review.
                                                  3


                                                  II.

                                      Assignment of Error I

       The trial court erred as a matter of law in finding [Ms.] Conkle guilty of
       obstructing official business.

       {¶7}    In her sole assignment of error, Ms. Conkle argues that the trial court erred in

finding her guilty of obstructing official business. Although Ms. Conkle does not identify a

standard of review in her brief, her argument sounds in sufficiency. See State v. Hayes, 9th Dist.

Summit No. 26388, 2013-Ohio-2429, ¶ 9 (“An argument that the State failed to prove one of the

elements of a crime is one sounding in sufficiency, not weight.”). Accordingly, this Court will

consider whether Ms. Conkle’s conviction is supported by sufficient evidence.

       {¶8}    A challenge to the sufficiency of a criminal conviction presents a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out

this review, our “function * * * 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. After

such an examination and taking the evidence in the light most favorable to the prosecution, we

must decide whether “any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” Id. Although we conduct a de novo review when considering

a sufficiency of the evidence challenge, the appellate court does not resolve evidentiary conflicts

or assess the credibility of witnesses as those functions belong to the trier of fact. State v. Tucker,

9th Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.

       {¶9}    Initially this Court notes that Ms. Conkle has presented a very limited outline of an

argument in her merit brief. Ms. Conkle contends that there are issues as to whether she “had the

privilege to attempt to prevent the police officer from entering her home, and whether the police
                                                 4


were legitimately in the performance of their lawful duties when they forcefully entered [her]

home.” In support of these contentions, Ms. Conkle asserts that officers lacked a reasonable belief

that Mr. Hartman was anything more than a guest in Ms. Conkle’s home and, that no exigent

circumstances existed to justify “immediate, forcible[,] and warrantless entry” into her home to

arrest Mr. Hartman. In her reply brief, she contends that the “police had no reasonable belief or

probable cause to believe that [Mr.] Hartman was a resident of the premises[—]which would have

justified entry under the Fourth Amendment[—]other than a vague bit of information that he

‘stayed there’, with no further details.”

       {¶10} Ms. Conkle was convicted of obstructing official business in violation of Akron

City Code 136.11. That ordinance states:

       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 his official
       capacity, shall do any act which hampers or impedes a public official in the
       performance of his lawful duties.

Akron City Code 136.11(A), see also R.C 2931.31(A). Ms. Conkle challenges the State’s

production of evidence as to two elements of obstructing official business: (1) that officers were

in the performance of their lawful duties, and (2) that she acted without privilege.

       {¶11} The Fourth Amendment to the United States Constitution protects “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures.” See also Article I, Section 14 of the Ohio Constitution. The Fourth Amendment

confers the constitutional right upon a defendant to refuse to consent to a warrantless entry, and

the assertion of this right cannot be a crime. Camara v. Mun. Court, 387 U.S. 523, 530–540

(1967); Akron v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095 ¶ 14 (9th Dist.).

       {¶12} To lawfully enter Ms. Conkle’s residence, officers needed either consent, a warrant,

or exigent circumstances. Steagald v. United States, 451 U.S. 204, 205 (1981). The record clearly
                                                  5


establishes that the officers did not have consent to enter the residence to search for Mr. Hartman.

At trial, Officers Guilmette and White each testified that they did not have a search warrant.

However, both officers testified that they verified arrest warrants for Mr. Hartman and Officer

Guilmette further testified as to his belief that, because there was an arrest warrant, “[w]ith the

information we had at hand we did not need a search warrant to enter that house for a felony

warrant.”

       {¶13} Whether an arrest warrant, as opposed to a search warrant, adequately protects the

Fourth Amendment interests of a individuals who are not named in the warrant during a

nonconsensual search of their home depends upon what the warrant authorized the officers to do.

Steagald at 212-213. “[F]or Fourth Amendment purposes, an arrest warrant founded on probable

cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives

when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603

(1980). An “arrest warrant is sufficient [authorization] to enter a * * * residence to effectuate the

warrant if [a] police [officer] has reason to believe that the suspect lives in the [residence] and is

in fact [there] at the time the arrest warrant is executed.” (Emphasis sic.) State v. Turpin, 2d Dist.

Montgomery No. 27453, 2017-Ohio-7435, ¶ 13, quoting State v. Cooks, 2d Dist. Clark No. 2016-

CA-40, 2017-Ohio-218, ¶ 10; see also State v. Mansaray, 8th Dist. Cuyahoga No. 93562, 2010-

Ohio-5119, ¶ 18; State v. Hughes, 11th Dist. Ashtabula No. 2018-A-0035, 2018-Ohio-5069, ¶ 15.

Reasonable belief that the subject of a warrant lives at a particular residence “is established by

looking at common sense factors and evaluating the totality of the circumstances.” Cooks at ¶ 10,

quoting United States v. Pruitt, 458 F.3d 477, 482 (6th Cir.2006).

       {¶14} At trial, Officer Guilmette testified that the Wadsworth police department relayed

the information that caused him to believe that Mr. Hartman, the subject of felony arrest warrants,
                                                  6


was staying at 246 Kingston Place with Ms. Conkle and that his cell phone had recently pinged to

that address. Officer Guilmette testified that he had verified the arrest warrants for Mr. Hartman

and, in speaking with Ms. Conkle, informed her that Mr. Hartman had a felony warrant and that

the officers had knowledge that he was staying at that location. He testified that she refused to

cooperate or to allow the officers to gain entry into the home.

       {¶15} Officer White also testified that, based on information the Wadsworth police

department relayed through dispatch, he believed Mr. Hartman was at 246 Kingston Place. He

testified as to his understanding that Mr. Hartman stayed at that residence with Ms. Conkle, and

that Mr. Hartman’s cell phone had been at that address within the past fifteen minutes. Further,

Officer White testified that he believed Mr. Hartman was a resident at Ms. Conkle’s house because

his call notes indicated that he stays there with the defendant and that led him to believe that Mr.

Hartman did indeed live there, which he felt was corroborated by the circumstances. Officer White

also testified that the officers told Ms. Conkle that they had confirmed a warrant for Mr. Hartman’s

arrest, but did not have a paper version of it.

       {¶16} The officers’ uncontroverted testimony establishes that they were acting pursuant

to their authority to execute an arrest warrant when they entered the home in which they believed—

based on the information relayed through dispatch, the call notes, and the totality of the

circumstances—that Mr. Hartman lived and where they had “reason to believe the suspect [wa]s

within.” Payton, 445 U.S. at 603. Under such circumstances, an arrest warrant would be sufficient

to enter the residence. Cooks, 2017-Ohio-218 at ¶10. In this Court’s assessment, this testimony,

viewed in a light most favorable to the prosecution, was sufficient to permit a rational factfinder

to determine that officers were performing their lawful duties when they executed the arrest

warrant upon a reasonable belief that Mr. Hartman resided and was present at 246 Kingston Place
                                                  7


and, therefore, Ms. Conkle was without privilege to impede the officers from entering the residence

to apprehend Mr. Hartman. Accordingly, this Court rejects Ms. Conkle’s argument that the State

failed to present sufficient evidence as to those elements of obstructing official business.

       {¶17} Moreover, to the extent Ms. Conkle, in her merit brief, intended to argue privilege

as an affirmative defense to obstructing official business, the record does not reflect that she raised

that argument to the trial court. “‘Privilege’ means an immunity, license, or right conferred by

law, or bestowed by express or implied grant, arising out of status, position, office, or relationship,

or growing out of necessity.” R.C. 2901.01(A)(12). Although the State bears the burden to prove,

beyond a reasonable doubt, all essential elements of an offense, the absence of privilege is not an

essential element of obstructing official business which the State must prove beyond a reasonable

doubt. See State v. Novak, 4th Dist. Gallia No. 16CA4, 2017-Ohio-455, ¶ 18; State v. Stevens, 5th

Dist. Morgan No. 07-CA-0004, 2008-Ohio-6027, ¶ 35; State v. Williams, 8th Dist. Cuyahoga No.

83574, 2004-Ohio-4476, ¶ 38. In that context, a “privilege is more of an affirmative defense or a

mitigating circumstance that if shown to exist would prevent an accused from being convicted of

obstructing official business.” State v. Stevens, 5th Dist. Morgan No. 07-CA-0004, 2008-Ohio-

6027, citing State v. Gordon, 9 Ohio App.3d 184, 187 (1st Dist.1983). “The burden of proof is on

the defendant to establish a privilege.” State v. Williams, 8th Dist. Cuyahoga No. 83574, 2004-

Ohio-4476, ¶ 38; R.C. 2901.05(A).

       {¶18} Ms. Conkle did not present a case at trial, but counsel asserted during opening

remarks that any action she took “was a privileged protection of her Fourth Amendment rights

under the Constitution.” The State indicated that both parties had presented the trial court with

some case law on this issue, however, this submission of case law was not made part of the record,

and the record is devoid of any explicit identification of the nature of Ms. Conkle’s claimed
                                                  8


privilege. Ms. Conkle did not present any cognizable argument to the trial court to demonstrate

that she claimed a privilege, specifically, to exercise her right as a third-party resident of the home

to refuse entry to search for a nonresident subject of an arrest warrant. See Steagald, 451 U.S. at

212; State v. Howard, 75 Ohio App.3d 760, 769 (4th Dist.1991) (contrary to the dissent’s assertion

that the present case is similar to Howard, the Fourth District concluded in that case that the

warrant requirement serves to protect third-party residents of a home where a nonresident—as

distinguished from a resident—is the subject of the search). Furthermore, on appeal, Ms. Conkle

did not point to any evidence in the record to substantiate a claim that Mr. Hartman did not reside

with her, or to challenge the officers’ claims as to their reasonable belief as that he resided there.

This Court cannot infer from the limited argument presented on appeal any challenge other than

sufficiency of the evidence. “[A]n affirmative defense, on which the defendant bears the burden

of proof, it is not properly reviewed in the context of the sufficiency of the evidence.” State v.

Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 5, citing R.C. 2901.05(A).

Consequently, this Court cannot review Ms. Conkle’s argument that she was privileged to refuse

officers entry to the home to apprehend the subject of an arrest warrant.

       {¶19} Viewing the evidence presented at trial in a light most favorable to the State, this

Court concludes the evidence was sufficient to permit the trier of fact to find Ms. Conkle guilty of

obstructing official business. Consequently, Ms. Conkle’s assignment of error is overruled.

                                                 III.

       {¶20} Ms. Conkle’s assignment of error is overruled. The judgment of the Akron

Municipal Court is affirmed.

                                                                                  Judgment affirmed.
                                                 9




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT




TEODOSIO, J.
CONCURS IN JUDGMENT ONLY.

HENSAL, J.
DISSENTING.

       {¶21} Ms. Conkle’s conviction should be reversed because the officers did not show her

their alleged warrant and, thus, she was privileged to deny them entry into her home. See Camara

v. Mun. Court, 387 U.S. 523, 540 (1967) (explaining that, because the housing inspector in that

case did not have a warrant, “appellant was unable to verify either the need for or the appropriate
                                                 10


limits of the inspection.”). This case is similar to State v. Howard, 75 Ohio App.3d 760 (4th

Dist.1991). In Howard, law enforcement officers pursued a tip that an individual for which they

had an arrest warrant was at James Howard’s trailer. When they arrived at the trailer, Mr. Howard

“demanded to see a warrant[,]” but the officers did not have it with them. Id. at 763-764. Mr.

Howard, therefore, refused entry to his trailer. The Grand Jury subsequently indicted him for

obstruction of justice.   The Fourth District concluded that Mr. Howard’s “assertion of his

constitutional right to refuse to consent to the entry and search cannot be a crime * * *.” Id. at

772. It explained that “[c]ourts disapprove of penalties imposed for exercising constitutional

rights.” Id., citing State v. Landrum, 53 Ohio St.3d 107, 110 (1990).

        {¶22} The Ninth Circuit Court of Appeals has outlined the privilege of a resident to deny

entry to a law enforcement officer who does not present a warrant. United States v. Prescott, 581

F.2d 1343, 1350 (9th Cir.1978). In Prescott, it explained that, if an “officer demands entry but

presents no warrant, there is a presumption that the officer has no right to enter, because it is only

in certain carefully defined circumstances that lack of a warrant is excused.” Id. “An occupant

can act on that presumption and refuse admission.” Id. “He need not try to ascertain whether, in

a particular case, the absence of a warrant is excused. He is not required to surrender his Fourth

Amendment protection on the say so of the officer. The Amendment gives him a constitutional

right to refuse to consent to entry and search. His asserting it cannot be a crime.” Id. at 1350-

1351.

        {¶23} In this case, the officers admitted that Ms. Conkle asked to see a warrant and that

they did not show her Mr. Hartman’s arrest warrant before entering her home. They admitted that

they could have printed out a copy of the arrest warrant or accessed an electronic version of it on

their cell phones. Under these facts, I would conclude that Ms. Conkle had a privilege to prevent,
                                                11


obstruct, or delay the entry of the officers into her home. See Akron City Code 136.11(A); City of

Middleburg Heights v. Theiss, 28 Ohio App.3d 1, 4 (8th Dist.1985) (explaining that resisting

entrance may be accomplished by “locking or closing the door or physically placing one’s self in

the officer’s way.”). It does not matter whether Mr. Hartman was a resident or non-resident of the

home as the issue is whether Ms. Conkle was privileged to deny the officers entry after they failed

to produce the warrant she asked to see. See Prescott at 1351 (“[A resident] is not required to

surrender h[er] Fourth Amendment protection on the say so of the officer.”). I must therefore

respectfully dissent.


APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER, Assistant Director of Law, for
Appellee.
