[Cite as State v. Montalvo, 2020-Ohio-3418.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                     :           OPINION

                 Plaintiff-Appellee,               :
                                                               CASE NOS. 2019-A-0075
        - vs -                                     :                     2019-A-0076

REYNALDO MONTALVO,                                 :

                 Defendant-Appellant.              :


Criminal Appeals from the Ashtabula Municipal Court.
Case Nos. 2018 CRB 01351 A & B.

Judgment: Affirmed in part and reversed in part; remanded.


Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For
Plaintiff-Appellee).

Rebecca R. Grabski, 206 South Meridian Street, Suite B, Ravenna, OH 44266 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Reynaldo Montalvo, appeals from the judgment entry of

sentence issued in the Ashtabula Municipal Court on September 13, 2019.                The

judgment is affirmed in part and reversed in part.

                                          Procedural History

        {¶2}     Two complaints were filed against appellant in the Ashtabula Municipal

Court on August 27, 2018, charging him with one count of Obstructing Official Business,
a second-degree misdemeanor in violation of R.C. 2921.31(A), and one count of

Aggravated Disorderly Conduct, a fourth-degree misdemeanor in violation of R.C.

2917.11(A)(1). Appellant was found guilty of both charges following a jury trial.

      {¶3}   Appellant was sentenced on September 13, 2019. The trial court imposed

60 days in jail and a $250.00 fine for Obstructing Official Business, with 30 days

suspended. The trial court imposed 30 days in jail and a $150.00 fine for Aggravated

Disorderly Conduct. The jail terms were run concurrent to each other, with credit for

one day time served.

      {¶4}   Appellant was ordered to jail for 3 days forthwith, with the remaining 27

days of his non-suspended sentence to be served 90 days from the date of sentence.

Those 27 days were further suspended on the conditions that appellant complete 24

hours of community service while wearing a shirt that reads, “I disrespect police,” and

commit no similar offenses for two years.

      {¶5}   On September 19, 2019, the trial court granted appellant a stay of

execution of his sentence pending appeal.

                                 Assignments of Error

      {¶6}   Appellant raises the following two assignments of error:

             [1.] The trial court committed reversible error in convicting
             Appellant-Defendant as it was against the manifest weight of the
             evidence presented during trial.

             [2.] The trial court committed reversible error as the evidence was
             insufficient to sustain a conviction.

      {¶7}   Appellant contends neither of his convictions are supported by sufficient

evidence and both are against the manifest weight of the evidence.

      {¶8}   “With respect to sufficiency of the evidence, ‘“sufficiency” is a term of art

meaning that legal standard which is applied to determine whether the case may go to

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the jury or whether the evidence is legally sufficient to support the jury verdict as a

matter of law.’” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting Black’s

Law Dictionary 1433 (6th Ed.1990) and citing Crim.R. 29(A). “In essence, sufficiency is

a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a

question of law.     In addition, a conviction based on legally insufficient evidence

constitutes a denial of due process.” Id. at 386-387, citing State v. Robinson, 162 Ohio

St. 486 (1955) and Tibbs v. Florida, 457 U.S. 31, 45 (1982).

       {¶9}   “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the

other.’” Id. at 387 (emphasis sic), quoting Black’s, supra, at 1594.

              ‘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.’

Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “When a court of

appeals reverses a judgment of a trial court on the basis that the verdict is against the

weight of the evidence, the appellate court sits as a ‘“thirteenth juror”’ and disagrees

with the factfinder’s resolution of the conflicting testimony.” Id., quoting Tibbs, supra, at

42.

                                The Officers’ Testimony

       {¶10} The only testimony at trial was given by the five law enforcement officers

that were involved with the incident: Deputy Brian Sterrick, of the Ashtabula County

Sheriff’s Department; and Patrolman Jay Janek, Lieutenant Rodney Blaney, Patrolman



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Cody Caruso, and Patrolman Logan Nickles, all of the City of Ashtabula Police

Department.

         {¶11} Deputy Sterrick was patrolling the city of Ashtabula searching for Antonio

Brown, who was wanted on a felony warrant and said to be in possession of a firearm.

Deputy Sterrick observed Brown and appellant at a Circle K, standing together behind a

running vehicle at the gas pumps. The deputy pulled in and placed Brown in custody,

but he had to wait for a transport car.

         {¶12} Appellant began questioning Deputy Sterrick as to why Brown was being

arrested. Appellant retrieved Brown’s cell phone from his person, while Brown was

handcuffed, and called Brown’s family. Deputy Sterrick testified that appellant became

a distraction to the performance of his duties.

         {¶13} Patrolman Janek arrived on scene. While Patrolman Janek attempted to

focus on Brown, appellant began to engage the officer in conversation about joining the

police academy. Appellant did the same to Patrolman Caruso when he arrived on

scene.

         {¶14} Patrolman Janek testified that leaving a car running unattended at a gas

pump is a violation of a city ordinance. He asked appellant and Brown who owned the

vehicle, but neither of them responded. Appellant refused to provide identification or

orally identify himself. Patrolman Janek reached in through an open window and shut

off the vehicle, then he ran the license plate number through dispatch.        Appellant

protested both of these actions but still refused to identify himself or whether he owned

the vehicle.     Patrolman Caruso testified that appellant was becoming loud and

aggressive.




                                             4
       {¶15} All three of these officers testified that appellant made a comment about

having a loaded firearm in the vehicle and a concealed carry permit. Appellant refused

to provide the permit when requested.

       {¶16} After the vehicle came back registered to a female, Patrolman Janek

opened the car door to look for a loaded firearm. Appellant began recording the officer

on his cell phone and told him he “can’t be in there.” Appellant then stated his permit

was in the visor and gave the officer permission to retrieve it.               Patrolman Janek

discovered the paper was merely a certificate for completion of a concealed carry class.

Appellant again refused to identify himself.

       {¶17} Thereafter, Lieutenant Blaney arrived on scene. He also testified that he

heard appellant say he had a loaded firearm in the vehicle. Lieutenant Blaney left his

police vehicle as appellant’s behavior escalated. The officers searched the vehicle for a

loaded firearm. They found a loaded magazine, but no firearm was located.

       {¶18} Appellant    again   refused      to   identify   himself   and    became   more

argumentative. The lieutenant advised appellant that if he refused again, he would be

placed under arrest. Patrolman Caruso testified that because appellant stated he had a

loaded firearm and a concealed carry permit, he was required to provide identification

and the permit when requested.        Appellant was ultimately arrested for obstructing

official business.

       {¶19} Appellant was placed in the back of Patrolman Caruso’s police vehicle,

where appellant proceeded to yell, scream, swear, and kick at the bars on the window.

The officers were unable to identify appellant until some of his family members arrived

on scene. Appellant refused to calm down after repeated requests and only responded

with “f--k you.”


                                               5
       {¶20} Because he refused to calm down, Patrolman Caruso transported

appellant to the Ashtabula City Jail. Patrolman Nickles was called in to assist. Both

officers testified appellant refused to cooperate, refused to identify himself, refused to

answer general medical questions, and only responded with “f--k you.”               Appellant

refused to allow the officers to fingerprint him and repeatedly stuck out his tongue while

booking photos were taken.       Patrolman Nickles testified that appellant was irate,

uncooperative, combative, and referred to the officers as “pigs” and “f--k boys.”

       {¶21} Appellant refused to change into a jail uniform.          Patrolman Nickles

undressed appellant—not by force, as appellant was passively resisting. Appellant then

refused to put on the jail uniform.     While the officer escorted appellant, who was

unclothed, to his jail cell, appellant deliberately bumped into the walls and used his feet

to stop forward motion.     Once in the cell, appellant “buzzed” dispatch, yelling and

screaming.

       {¶22} Patrolman Nickles testified the booking process normally takes 30 to 45

minutes. He attempted to complete the process with appellant for over an hour, and it

was not finally completed until the following day. The officer testified that while they

were attending to appellant, calls for service went unanswered due to his behavior.

                             Obstructing Official Business

       {¶23} Appellant was initially arrested on a charge of Obstructing Official

Business: “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).




                                            6
       {¶24} “While Ohio courts have concluded that the mere refusal to answer

questions does not constitute an ‘act’ necessary to support a conviction of obstructing

official business, it is well-established that where an individual also takes affirmative

actions to hamper or impede the police, such conduct may support a conviction of

obstructing official business.” State v. Jackson, 11th Dist. Lake No. 2008-L-147, 2009-

Ohio-6226, ¶21, citing State v. Justice, 4th Dist. Pike No. 99CA631, 1999 WL 1125113,

*5 (Nov. 16, 1999). “The making of an unsworn false oral statement to a public official

with the purpose to mislead, hamper or impede the investigation of a crime is

punishable conduct within the meaning of * * * R.C. 2921.31(A).” State v. Lazzaro, 76

Ohio St.3d 261 (1996), syllabus.

                                Sufficiency of the Evidence

       {¶25} Appellant contends there was no testimony of what “lawful duties” or

“authorized act” the officers were neglecting as a result of his actions.

       {¶26} The jury was instructed that “lawful duties” means “any act or acts

required by law.” It is undisputed that the officers were involved in the investigation and

arrest of a suspect involved in an unrelated offense, who was assumed to be in

possession of a firearm. This is without question a lawful duty and an authorized act of

a law enforcement officer.

       {¶27} Appellant’s argument is not well taken.

                             Manifest Weight of the Evidence

       {¶28} Appellant argues his conviction is against the manifest weight of the

evidence because the officers’ testimony did not establish that appellant acted “with

purpose” to hinder the police investigation.




                                               7
      {¶29} “A person acts purposely when it is the person’s specific intention to cause

a certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is the

offender’s specific intention to engage in conduct of that nature.” R.C. 2901.22(A).

      {¶30} The jury was additionally instructed that “it must be established in this

case that at the time in question there was present in the mind of the defendant a

specific intention to prevent, obstruct or delay the performance by an Ashtabula Police

Officer of an act within his official capacity. * * * The purpose with which a person does

an act or brings about a result is determined from the manner in which it is done, the

means used and all the other facts and circumstances in evidence.”

      {¶31} The jury could reasonably infer from the officers’ testimony, and find

beyond a reasonable doubt, that appellant’s specific intention was to engage in

conduct—retrieving Brown’s cell phone from his person, distracting officers with

unnecessary conversation, and announcing there was a loaded firearm in the vehicle—

that hampered or impeded the officers in performing their lawful duties. Appellant’s

argument is not well taken.

      {¶32} Appellant further contends his conviction is against the manifest weight

because the officers failed to communicate properly amongst themselves regarding

appellant, which was what hindered the officers’ ability to perform their lawful duties.

This argument ignores the fact that, had appellant not inserted himself into the situation

and protested the actions of the officers as they were taking Brown into custody, the

officers would have had no reason to concern themselves with appellant.                The

testimony establishes appellant created any confusion surrounding himself by refusing

to identify himself and announcing there was a loaded firearm in the vehicle.


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       {¶33} Appellant’s conviction for Obstructing Official Business is supported by

sufficient evidence and is not against the manifest weight of the evidence.

                            Aggravated Disorderly Conduct

       {¶34} Appellant was also charged with Aggravated Disorderly Conduct. The

statute provides, in pertinent part, that “[n]o person shall recklessly cause

inconvenience, annoyance, or alarm to another by * * * [e]ngaging in fighting, in

threatening harm to persons or property, or in violent or turbulent behavior[.]” R.C.

2917.11(A)(1).

       {¶35} “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the

person’s conduct is likely to cause a certain result or is likely to be of a certain nature.”

R.C. 2901.22(C).

                                Sufficiency of the Evidence

       {¶36} Appellant contends his actions were not reckless, by definition, because

he was merely exercising his First Amendment right to freedom of speech.                This

argument is inapposite to the crime of which he was convicted. There are portions of

the disorderly conduct statute that prohibit certain speech and expression, to wit: (A)(2)

and (A)(3). However, the subdivision under which appellant was charged—(A)(1)—

“prohibits certain behavior.” State v. Reeder, 18 Ohio St.3d 25, 26 (1985) (emphasis

added); see also State v. Logue, 7th Dist. Mahoning No. 97-BA-22, 2000 WL 246485,

*4 (Feb. 25, 2000) (“this section of the Revised Code contains elements prohibiting

behavior”).

       {¶37} Thus, while “mere words are insufficient to support a conviction of

disorderly conduct” under (A)(1), “conduct showing ‘a blatant disrespect for the law’ has


                                             9
been held to rise to the level of violent or turbulent behavior.” Akron v. Concannon, 9th

Dist. Summit No. 24512, 2009-Ohio-4162, ¶17, quoting State v. Stewart, 11th Dist.

Trumbull No. 93-T-5000, 1994 WL 721733, *2 (Dec. 16, 1994).

       {¶38} Appellant’s freedom of speech argument is not well taken, as it is

inapposite to the offense of which he was convicted.

                             Manifest Weight of the Evidence

       {¶39} Appellant contends his conviction is against the manifest weight of the

evidence because the officers’ testimony was inconsistent and because all of his

disorderly behavior took place after he was already in handcuffs and removed from the

situation.

       {¶40} Initially, it is not necessary that appellant’s behavior take place prior to his

arrest. He was arrested for obstructing official business, following which he engaged in

behavior that precipitated the disorderly conduct charge.

       {¶41} “The word, ‘turbulent,’ in the context of Ohio’s disorderly conduct statute,

refers to tumultuous behavior or unruly conduct characterized by violent disturbance or

commotion.” Reeder, supra, at 27. Courts have held that “vulgar language, when

accompanied by aggressive behavior, can be sufficient for a disorderly conduct

conviction based on ‘turbulent behavior.’” Middletown v. Carpenter, 12th Dist. Butler

No. CA2006-01-004, 2006-Ohio-3625, ¶17 (citation omitted); accord State v. Jackson,

2d Dist. Montgomery No. 17128, 1998 WL 801367, *2-4 (Nov. 20, 1998) (where, in

addition to verbally berating the officer, the defendant grabbed the officer’s shirt) and

State v. Rajeski, 12th Dist. Warren No. CA2002-11-120, 2003-Ohio-2783, ¶2 (where, in

addition to vulgar language directed to the officer, the defendant stormed out of an

apartment complex towards the officer in an aggressive manner).


                                             10
       {¶42} The testimony of the officers outlined above establishes that appellant

engaged in turbulent behavior when placed in the back of the police vehicle and after

arriving at the police station. Any minor inconsistencies in the officers’ testimony did not

rise to the level of a manifest miscarriage of justice. This is not the exceptional case

where the evidence weighs heavily against the conviction.

       {¶43} Appellant’s conviction for violating R.C. 2917.11(A)(1) is not against the

manifest weight of the evidence.

                                    Aggravating Factor

       {¶44} Finally, appellant contends there was insufficient evidence of an

aggravating factor to elevate his offense.

       {¶45} Disorderly Conduct is generally a minor misdemeanor offense, R.C.

2917.11(E)(2), and is aggravated to a misdemeanor of the fourth degree in certain

circumstances. R.C. 2917.11(E)(3) provides, in pertinent part:

              Disorderly conduct is a misdemeanor of the fourth degree if any of
              the following applies:

              (a) The offender persists in disorderly conduct after reasonable
              warning or request to desist.

              ***

              (c) The offense is committed in the presence of any law
              enforcement officer, firefighter, rescuer, medical person,
              emergency medical services person, or other authorized person
              who is engaged in the person’s duties at the scene of a fire,
              accident, disaster, riot, or emergency of any kind.

       {¶46} The complaint issued against appellant charged him as follows: “One

REYNALDO MONTALVO, did recklessly cause inconvenience, annoyance or alarm to

another by engaging in fighting, in threatening harm to persons or property, or in violent

or turbulent behavior. Said REYNALDO MONTALVO did persist in disorderly conduct


                                             11
in the presence of law enforcement officer.” (Emphasis added.) This charge is a hybrid

of a portion of the aggravating factors found in subsections (3)(a) and (3)(c), but

charges neither of them completely. The complaint does, however, state the degree of

the offense of which appellant was accused, to wit: fourth-degree misdemeanor.

       {¶47} Immediately prior to trial, the state requested to amend the complaint by

replacing the phrase “did persist in” with the word “committed.” The prosecutor stated,

“Based on my reading of the jury instructions in OJI and the Revised Code, the conduct

does not have to persist in the presence of a law enforcement officer. The mere fact

that it was committed in front of a law enforcement officer is what gives it the M4

designation.”

       {¶48} The trial court allowed the amendment. Thus, the allegation for trial was

that appellant “committed disorderly conduct in the presence of law enforcement

officer,” which is not a complete statement of the aggravating factor found in (3)(c). To

convict appellant of Aggravated Disorderly Conduct, the state had the burden to

produce evidence sufficient for a jury to conclude, not only that the conduct was

committed in the presence of a law enforcement officer, but that the officer was

engaged in his or her “duties at the scene of a fire, accident, disaster, riot, or emergency

of any kind.”

       {¶49} Not only was appellant not charged and prosecuted with this language,

the jury was not instructed as to all of the additional elements it must find under (3)(c).

The jury was instructed that it must find the disorderly conduct was committed “in the

presence of a law enforcement officer.” It was not instructed, however, that it must find

the law enforcement officer was “engaged in the person’s duties at the scene of a fire,

accident, disaster, riot, or emergency of any kind,” despite the fact that the OJI provides


                                            12
for this instruction. The jury verdict form also does not state that this additional element

was present, nor does it state the degree of the offense.

       {¶50} “When the presence of one or more additional elements makes an offense

one of more serious degree: * * * [a] guilty verdict shall state either the degree of the

offense of which the offender is found guilty, or that such additional element or elements

are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree

of the offense charged.” R.C. 2945.75(A)(2). “Pursuant to the clear language of R.C.

2945.75, a verdict form signed by a jury must include either the degree of the offense of

which the defendant is convicted or a statement that an aggravating element has been

found to justify convicting a defendant of a greater degree of a criminal offense.” State

v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, syllabus; see also State v. Perry, 11th

Dist. Lake No. 2011-L-125, 2013-Ohio-5803, ¶7.

       {¶51} While no argument is raised on appeal as to the jury instruction or verdict

form, we conclude that the omission is plain error. The complaint did not completely

state the aggravating factor, the prosecution did not acknowledge the complete set of

facts it must prove when it amended the complaint prior to trial, and the jury was not

properly instructed.

       {¶52} Accordingly, we conclude under the facts of this case that due process

requires appellant only be found guilty of the least degree of Disorderly Conduct, which

is a minor misdemeanor.

       {¶53} As stated above, appellant’s conviction for the least degree of Disorderly

Conduct is supported by sufficient evidence and is not against the manifest weight of

the evidence.   It was error, however, to convict appellant of Aggravated Disorderly

Conduct.


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                                       Disposition

      {¶54} Appellant’s first assignment of error is without merit. Appellant’s second

assignment of error has merit to the extent indicated.

      {¶55} It is the judgment of this court that the judgment of the Ashtabula

Municipal Court is affirmed in part and reversed in part.    Appellant’s conviction of

Obstructing Official Business is affirmed.       Appellant’s conviction of Aggravated

Disorderly Conduct is reversed. This matter is remanded for the trial court to enter a

conviction for the minor misdemeanor offense of Disorderly Conduct and to resentence

appellant accordingly on that count.



CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




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