[Cite as State v. Benton, 2018-Ohio-2042.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :  C.A. CASE NO. 27592
                                                   :
 v.                                                :  T.C. NO. 2017-CR-312/2
                                                   :
 RICHARD BENTON                                    :  (Criminal Appeal from
                                                   :  Common Pleas Court)
         Defendant-Appellant                       :
                                                   :
                                              ...........

                                             OPINION

                              Rendered on the 25th day of May, 2018.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Fifth Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee


ANDREW SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385
    Attorney for Defendant-Appellant

                                             .............




DONOVAN, J.
                                                                                          -2-




       {¶ 1} This matter is before the Court on the May 19, 2017 Notice of Appeal of

Richard Benton, filed by appointed counsel pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Benton’s appeal is addressed to his May 9,

2017 judgment entry of conviction, issued following a jury trial, on one count of obstructing

official business, in violation of R.C. 2921.31(A), a felony of the fifth degree. Benton

received a sentence of 12 months. Counsel for Benton asserts that he “has reviewed

the original court file, as well as the transcript of proceedings prepared in this case, and

can find no error by the trial court prejudicial to Mr. Benton’s rights which may be argued

on appeal.” This Court notified Benton on December 12, 2017 that counsel asserted an

inability to find any meritorious claim to present and granted Benton 60 days to file a pro

se brief assigning any errors for review. None has been received. Counsel for Benton

presents two potential assignments of error.

       {¶ 2} “We are charged by Anders to determine whether any of these issues are

‘wholly frivolous.’ Id., at p. 744. If we find that any of them involve legal points that are

arguable on their merits, and therefore are not wholly frivolous, per Anders we must

appoint other counsel to argue the appeal. Id.” State v. Pullen, 2d Dist. Montgomery No.

19232, 2002-Ohio-6788, ¶ 2. As this Court further noted in Pullen, ¶ 4:

              Anders equated a frivolous appeal with one that presents issues

       lacking in arguable merit. An issue is not lacking in arguable merit merely

       because the prosecution can be expected to present a strong argument in

       reply. An issue lacks arguable merit if, on the facts and law involved, no

       responsible contention can be made that it offers a basis for reversal.
                                                                                        -3-


       {¶ 3} The record reflects the following facts. On or about January 26, 2017, police

officers associated with the Montgomery County R.A.N.G.E. (Regional Agencies Narcotic

and Gun Enforcement) Task Force attempted to serve an arrest warrant on the target of

a drug trafficking investigation.   Based upon information provided by a confidential

informant regarding the suspect’s whereabouts, the officers conducted an undercover

operation at a hotel near the Dayton Mall. In the course of their surveillance, they

observed a white truck, associated with the target, pull into the hotel parking lot. Three

men exited the truck and proceeded to a room on the fourth floor. Officers believed that

one of the three occupants of the truck matched the description of their suspect. The

officers requested a marked Ohio State Highway Patrol (“OSHP”) cruiser to assist them

in detaining the occupants of the truck for further investigation. Shortly thereafter, the

occupants of the truck returned to it. An OSHP patrolman then arrived in full uniform in

a marked cruiser with lights and siren activated and stopped behind the now-occupied

truck. In the course of the ensuing confrontation, the driver of the truck rammed an

officer’s vehicle, drove directly toward another officer who was on foot, and shots were

fired by members of law enforcement. Benton and another occupant then fled from the

truck, scaled a chain-link fence, and sprinted headlong into traffic on Interstate 75.

Benton and his companion crossed all six northbound and southbound lanes of the

interstate. Once on the other side of the highway, Benton was confronted by an officer

and taken into custody.

       {¶ 4} A witness in a nearby office building heard gunshots from the hotel parking

lot, looked out his fifth-floor office window, and observed several police cruisers with

flashing lights in the hotel parking lot. The witness then observed two individuals fleeing
                                                                                        -4-


on foot who climbed a fence and ran towards the interstate. The witness observed the

defendant point what appeared to be a gun at oncoming drivers, and he observed vehicles

swerve and slow to evade the fleeing men.

       {¶ 5} At trial, Benton’s position was that his conduct in fleeing from the officers

rose to the level of privilege growing out of necessity.

       {¶ 6} Counsel for Benton’s first potential assignment of error is as follows:

              MR. BENTON’S CONVICTION FOR OBSTRUCTING OFFICIAL

       BUSINESS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 7} Counsel for Benton acknowledges that the “only evidence presented at trial

supports the state’s theory of the case.”

       {¶ 8} As this Court has previously noted:

              * * * “[A] weight of the evidence argument challenges the believability

       of the evidence and asks which of the competing inferences suggested by

       the evidence is more believable or persuasive.” [State v.] Wilson [,2d Dist.

       Montgomery      No.    22581,    2009-Ohio-525] at    ¶ 12. See Eastley     v.

       Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶

       19 (“ ‘manifest weight of the evidence' refers to a greater amount of

       credible evidence and relates to persuasion”). When evaluating whether a

       conviction is against the manifest weight of the evidence, the appellate

       court must review the entire record, weigh the evidence and all reasonable

       inferences, consider witness credibility, 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
                                                                                             -5-

       and a new trial ordered.” [State v.] Thompkins, 78 Ohio St.3d [380,] 387,

       678 N.E.2d 541 [(1997)], citing State v. Martin, 20 Ohio App.3d 172, 175,

       485 N.E.2d 717 (1st Dist.1983).

              Because the trier of fact sees and hears the witnesses at trial, we

       must defer to the factfinder's decisions whether, and to what extent, to credit

       the   testimony    of   particular   witnesses. State    v.    Lawson, 2d    Dist.

       Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However, we

       may determine which of several competing inferences suggested by the

       evidence should be preferred. Id. The fact that the evidence is subject to

       different   interpretations   does    not   render    the     conviction   against

       the manifest weight of the evidence. Wilson, at ¶ 14.             A judgment of

       conviction should be reversed as being against the manifest weight of the

       evidence only in exceptional circumstances. Martin at 175.

State v. Robinson, 2d Dist. Montgomery No. 26710, 2016-Ohio-4723, ¶ 17-18.

       {¶ 9} 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.”

       {¶ 10} As counsel for Benton further acknowledges, this Court has recognized that

“ ‘[f]leeing from a police officer who is lawfully attempting to detain the suspect . . ., is an

affirmative act that hinders or impedes the officer in performance of the officer’s duties as

a public official and is a violation of R.C. 2921.31 * * *.’ ” State v. Branham, 2d Dist.

Montgomery No. 22480, 2008-Ohio-5158, ¶ 10, quoting State v. Kates, 169 Ohio App.3d
                                                                                            -6-


766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 24 (10th Dist.)

       {¶ 11} At trial, Benton did not testify on his own behalf and presented no witnesses.

He thoroughly cross-examined the State’s witnesses, and no inconsistencies were

revealed nor motivations to be untruthful. The jury clearly credited the testimony of the

State’s witnesses, and we defer to the jury’s assessment of credibility.               Having

thoroughly reviewed the entire record, we conclude that this potential assignment of error

is wholly frivolous.

       {¶ 12} Benton’s second potential assignment of error is as follows:

              THE TRIAL COURT ERRED IN SENTENCING MR. BENTON TO A

       TWELVE-MONTH SENTENCE.

       {¶ 13} Counsel for Benton notes that although “community control sanctions are

mandatory for some offenders convicted of a fifth-degree felony, [Benton] did not fit into

this category because he had previous felony convictions.”              Counsel for Benton

acknowledges that although “the trial court was not obligated to explain its reasoning for

a maximum sentence, it indicated that Mr. Benton’s previous felony convictions and the

‘significant risk of injury to the public and police officers’ created ‘by running . . . across

the highway’ were factors in its decision.”

       {¶ 14} As this Court recently noted:

              “This court no longer applies an abuse of discretion standard when

       reviewing felony sentences, as the Supreme Court of Ohio has made clear

       that felony sentences are to be reviewed in accordance with the standard

       set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016–

       CA–28, 2016–Ohio–7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516,
                                                                                  -7-

2016–Ohio–1002,      59    N.E.3d    1231,    ¶   10,   16. Accord State     v.

Rodeffer, 2013–Ohio–5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.). Under the plain

language of R.C. 2953.08(G)(2), “an appellate court may vacate or modify

a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court's findings under

relevant statutes or that the sentence is otherwise contrary to

law.” Marcum at ¶ 1. “This is a very deferential standard of review, as the

question is not whether the trial court had clear and convincing evidence to

support its findings, but rather, whether we clearly and convincingly find that

the record fails to support the trial court's findings.” State v. Cochran, 2d

Dist. Clark No. 2016–CA–33, 2017–Ohio–217, ¶ 7, citing Rodeffer at ¶ 31.

       Even before Marcum, we had indicated “[t]he trial court has full

discretion to impose any sentence within the authorized statutory range,

and the court is not required to make any findings or give reasons for

imposing maximum or more than minimum sentences.” (Citation

omitted.) State v. Nelson, 2d Dist. Montgomery No. 25026, 2012–Ohio–

5797, ¶ 62. Accord State v. Terrel, 2d Dist. Miami No. 2014–CA–24, 2015–

Ohio–4201, ¶ 14. But “in exercising its discretion, a trial court must consider

the statutory policies that apply to every felony offense, including those set

out in R.C. 2929.11 and R.C. 2929.12.” (Citations omitted.) State v.

Castle, 2016–Ohio–4974, 67 N.E.3d 1283, ¶ 26 (2d Dist.). It follows, then,

that “ ‘a maximum sentence is not contrary to law when it is within the

statutory range and the trial court considered the statutory purposes and
                                                                                           -8-


       principles of sentencing as well as the statutory seriousness and recidivism

       factors.’ ” State v. Walden, 2d Dist. Clark No. 2014–CA–84, 2016–Ohio–47,

       ¶ 7, quoting State v. Martin, 2d Dist. Clark No. 2014–CA–69, 2015–Ohio–

       697, ¶ 8.

State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105, ¶ 5-6.

       {¶ 15} Benton’s twelve-month sentence is within the statutory range for a felony

of the fifth degree. R.C. 2929.14(A)(5) provides that “[f]or a felony of the fifth degree, the

prison term shall be six, seven, eight, nine, ten, eleven, or twelve months.” The court at

sentencing indicated that Benton had prior felony offenses and he was on both federal

probation supervision and post-release control at the time of the instant offense. R.C.

2929.13(B)(1)(b)(x) provides that a court has the discretion to impose a prison term when

the offender has previously served a prison term. The court indicated that it considered

the purposes and principles of sentencing in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. As counsel for Benton notes, it was significant to the

court that Benton endangered the officers at the scene and the public by fleeing across

the highway. For the foregoing reasons, we conclude that Benton’s second potential

assignment of error is wholly frivolous.

       {¶ 16} Having fulfilled our responsibilities pursuant to Anders, and since Benton’s

appeal lacks any arguable merit, the judgment of the trial court is affirmed.



                                           .............


HALL, J. and TUCKER, J., concur.
                         -9-




Copies mailed to:

Andrew T. French
Andrew C. Schlueter
Richard Benton
Hon. Barbara P. Gorman
