[Cite as State v. Carter, 2011-Ohio-522.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY



STATE OF OHIO,                                             CASE NO. 11-10-08

   PLAINTIFF-APPELLEE,

  v.

DONALD E. CARTER,                                            OPINION

   DEFENDANT-APPELLANT.



                           Appeal from Paulding County Court
                             Trial Court No. CRB1000062A

                                       Judgment Affirmed

                            Date of Decision: February 7, 2011




APPEARANCES:

        Scott R. Gordon for Appellant

        Matthew A. Miller for Appellee
Case No. 11-10-08




ROGERS, P.J.

       {¶1} Defendant-Appellant, Donald Carter, appeals from the judgment of the

County Court of Paulding County convicting him of one count of disorderly

conduct with persistence in violation of R.C. 2917.11(A)(4), (E)(3)(a), sentencing

him to a two year term of community control, and ordering that he pay a $200 fine

and complete an anger management program. On appeal, Carter argues that the

trial court erred in permitting testimony regarding firearms found on his property

in violation of Evid.R. 401 and 403(A), and that the trial court erred in denying his

Crim.R. 29 motion for judgment of acquittal. Based on the following, we affirm

the judgment of the trial court.

        {¶2} In March 2010, Carter was charged by complaint with one count of

obstructing official business in violation of R.C. 2921.31, a misdemeanor of the

second degree, and one count of disorderly conduct in violation of R.C.

2917.11(A)(4), a minor misdemeanor1. The complaint arose from an incident

whereby Carter became belligerent when agents from the electric company came

to his residence to turn off the power to his home but refused to remove the utility




1
  We note that the complaint incorrectly listed disorderly conduct in violation of R.C. 2917.11(A)(4) as a
misdemeanor of the fourth degree. However, a violation of that section of the statute is a minor
misdemeanor unless an additional enhancing section is charged. Nonetheless, Carter was later charged
under an amended complaint of the enhancing section to properly elevate the offense to a misdemeanor of
the fourth degree.

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poles on his property. Subsequently, Carter entered a not guilty plea to both

counts in the complaint.

        {¶3} In June 2010, the State filed an amended complaint, adding to Count

II that Carter “did persist in such disorderly conduct after a reasonable warning or

request to desist” in violation of R.C. 2917.11(A)(4), (E)(3)(c)2.                         (June 2007

Amended Complaint, p. 1).

        {¶4} Subsequently, the case proceeded to jury trial. Before the presentation

of evidence, Carter raised an oral motion to exclude the evidence of the hand gun

found on his person and the rifle found in his residence at the time of his arrest,

arguing that they were not relevant to the charges against him under Evid.R. 401

and that their probative value was outweighed by unfair prejudice pursuant to

Evid.R. 403(A). The State responded that his possession of the firearms was

relevant to demonstrate the mens rea of purposely for the offense of obstructing

official business. The trial court then denied Carter’s motion, finding that both

firearms were relevant under Evid.R. 401 to demonstrate Carter’s purposeful

actions in obstructing official business, and that the probative value of the

evidence was not outweighed by its prejudicial impact.


2
  We note that the amended complaint contained the incorrect statute number, as R.C. 2917.11(E)(3)(c)
reads as follows: “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.” We assume
that the State meant R.C. 2917.11(E)(3)(a), as that was the language contained within the amended
complaint. However, we find this clerical error to be harmless, as the jury was properly instructed on the
language in R.C. 2917.11(E)(3)(a).

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       {¶5} Thereafter, Doug Johanns testified that he was an operation supervisor

at Paulding Putnam Electric (“PPE”); that Carter sent an email to PPE asking that

his electric service be disconnected because he no longer wished to receive

electricity from PPE; that a crew was sent to Carter’s residence to disconnect the

service, but Carter asked them to leave the property; that Carter then sent another

email indicating that he wanted the utility poles removed from his property; that

he went with a crew a second time to Carter’s residence to disconnect Carter’s

electric service; that, as soon as he pulled into Carter’s driveway, Carter

confronted him as to disconnecting the service and moving the utility poles off of

the property; that he informed Carter there were costs associated with removing

the poles, and that Carter would be responsible for those costs; that Carter told him

he would not pay anything and that PPE would disconnect the service and remove

the poles; that he discussed a plan with Carter to remove the poles, but Carter

continued to insist that he would not pay for the removal, and Carter asked them to

leave; that he did not believe the power could be safely disconnected from Carter’s

residence due to Carter’s continued agitation; that Carter stated, “if you think you

can go up there and disconnect that then go right ahead. * * * I am man [sic] of

this property” (trial tr., vol. 1, p. 89); that they left Carter’s residence, returned to

their office, and decided to have a sheriff’s deputy accompany them back to

Carter’s residence; that, when they returned to the residence, he asked Carter if he


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was going to pay the delinquent amount on his bill; that Carter stated he would not

pay the bill, and he told Carter they would not remove the poles from his property;

that Carter told them he would not allow them to disconnect service unless they

removed the poles; that he asked Carter a second time if Carter would pay his

delinquent bill, and, at that point, a Sheriff’s deputy stepped in and asked Carter to

step aside and give them access to the property; that Carter continued to decline

the deputy’s request to step aside, and Carter was then placed under arrest; that,

throughout this period, Carter was loud at times and upset that they would not

remove the poles from his property; that Carter’s presence and actions prevented

them from disconnecting Carter’s electric service; and, that it “wasn’t a peaceful

situation.” (Id. at 91).

       {¶6} Johanns continued that, as the deputy was handcuffing Carter, the

deputy discovered a firearm on Carter; that, after Carter was arrested, they were

able to disconnect Carter’s electric service; that they did not have the ability to

shut off the power to Carter’s house from their office; that, the first time a crew

was sent to Carter’s property, they also did not feel they could safely disconnect

the power to Carter’s residence, so they left; and, that he was alarmed and

inconvenienced by Carter’s actions before the arrest.

       {¶7} Dennis Clark testified that he was employed as a line supervisor for

PPE; that, in March or April 2010, he and another employee went to Carter’s


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residence to disconnect the electric service, as Carter had requested; that, when

they arrived at the residence, Carter asked if they were going to remove the

equipment from the property, and they told him they were not; that Carter told

them they could not disconnect the power unless the equipment was also removed

from the property; that Johanns subsequently arrived and spoke with Carter about

having the equipment removed from the property; that they left when Carter would

not allow them to disconnect the electric service; that they later returned to

Carter’s residence after they “were called back * * * [and] the Sheriff’s

Department was contacted” (id. at 116); that, when they arrived at the residence,

the sheriff was speaking with Carter, and Carter was acting irritated and was

occasionally being loud; that he heard the sheriff tell Carter that Carter needed to

let them disconnect the electric service, but Carter continued to insist that they

could not disconnect the service unless the equipment was also removed; that

Carter “was told two or three times to stand down and * * * was put under arrest”

(id. at 117); and, that they then disconnected the electric service on Carter’s

property.

       {¶8} Deputy Robert Garcia of the Paulding County Sheriff’s Office

testified that, on March 26, 2010, he was called to Carter’s residence to “keep the

peace at the request of [PPE]” (trial tr., vol. 2, p. 144); that he arrived at Carter’s

residence and Carter explained to him that he asked PPE to come to his property


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and shut off his electricity and remove the utility poles from the his property; that

Carter was a “little irritated” as he spoke to him (id. at 147); that Sheriff Harrow

then arrived and spoke with Carter; that PPE then arrived at Carter’s residence and

Carter became more agitated and began talking louder and faster; that Sheriff

Harrow informed Carter that PPE had the right of way to enter Carter’s property to

turn off the power; that Carter insisted PPE did not have the right to enter his

property and that if PPE did not remove the utility poles from his property, Carter

would not let them do anything; that Sheriff Harrow warned Carter multiple times

that he was being disorderly and would be arrested if he did not desist his actions;

that Carter then pointed at Sheriff Harrow, waived his hands, and said, “fuck you

buddy, get the fuck off my property. I want everyone the fuck out of here” (id. at

150); that Sheriff Harrow then placed Carter under arrest; that, while Carter was

being handcuffed, he saw a handgun sticking out of Carter’s pants; that the

handgun was found to be loaded; that, just before Carter was arrested, Carter was

an “8” on a scale of 1-10 in loudness; that Carter’s actions prior to his arrest

prevented their ability to keep the peace; that Carter’s actions were not accidental

and Carter appeared to mean what he was saying; and, that, while he was there, he

did not hear anyone from PPE inform Carter that he had not paid his bill.

       {¶9} Deputy Mark Butler from the Paulding County Sheriff’s Office

testified that he received a call from PPE to keep the peace at Carter’s residence so


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that PPE could turn off the power to the residence; that he went to the residence,

and Deputy Garcia was present and speaking with Carter by the garage; that he

noticed an assault rifle in Carter’s garage3; that, as he and Deputy Garcia spoke to

Carter, Carter became more agitated; that Carter continued to speak louder, would

“back up in a defensive position once in a while,” and stated that he was not going

to allow PPE on his property unless they took the utility poles off of his property;

(id. at 181); that, subsequently, Sheriff Harrow and PPE arrived at the scene; that

Carter became more agitated and was placed under arrest after he failed to heed

multiple warnings to cease and desist; that he removed a pistol from Carter as

Carter was being placed in handcuffs; that Carter prevented PPE from entering his

property and turning off the electricity, despite their efforts to inform Carter that

PPE had a right to enter the property; and, that he was told PPE had an easement

across Carter’s property to the utility pole, but he never saw a document verifying

that.

           {¶10} Sheriff David Harrow of the Paulding County Sheriff’s Department

testified that he was called to Carter’s residence to keep the peace while PPE shut

off the power to Carter’s residence; that, as he spoke with Carter, Carter became

more agitated, raising his voice, coming towards the deputies, shifting his weight

from foot to foot, and ordering people off the property; that he informed Carter on



3
    We note that Carter’s trial counsel objected to the testimony regarding the handgun and the assault rifle.

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at least two occasions that Carter was engaging in disorderly conduct and needed

to cease and desist; that Carter’s actions interfered with PPE’s ability to disconnect

the power; that they then placed Carter under arrest; that, while Carter was being

arrested, they removed a handgun from the back of Carter’s pants, underneath his

belt; that he was not aware that one of the purposes of PPE’s presence on Carter’s

property was to collect money owed to them by Carter; that he was not aware of

whether PPE filed a civil action against Carter for monies owed to them; and, that

Carter placed himself between PPE employees and the utility pole on the property

during the time Carter was agitated.

       {¶11} Thereafter, the State rested and moved for the admission of exhibits,

including the handgun seized from Carter, and Carter again objected to the

admission of the handgun, which the trial court overruled.

       {¶12} Subsequently, Carter moved for a judgment of acquittal pursuant to

Crim.R. 29(A), arguing that insufficient evidence was presented to establish that

he committed the offense of disorderly conduct with persistence, as it was not

shown that PPE had any lawful purpose or right to be on his property. The trial

court then denied the motion.

       {¶13} Following Carter’s testimony, the jury acquitted Carter on

obstructing official business under R.C. 2921.31, but convicted him of disorderly

conduct with persistence under R.C. 2917.11(A)(4), (E)(3)(a).


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      {¶14} In July 2010, the trial court sentenced Carter to a two-year term of

community control and ordered that he pay a $200 fine and complete an anger

management program.

      {¶15} It is from his conviction and sentence that Carter appeals, presenting

the following assignments of error for our review.

                            Assignment of Error No. I

      THE TRIAL COURT ERRED AS A MATTER OF LAW BY
      ALLOWING TESTIMONY AND EVIDENCE TO BE
      PRESENTED TO THE JURY REGARDING THE HANDGUN.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED BY OVERRULING HIS
      CRIM.R. 29 MOTION FOR ACQUITTAL.

                            Assignment of Error No. I

      {¶16} In his first assignment of error, Carter argues that the trial court erred

by permitting testimony regarding the handgun found on his person and by

allowing the introduction of the handgun into evidence.         Specifically, Carter

contends that the handgun was not relevant to either the charge of obstructing

official business or the charge of disorderly conduct pursuant to Evid.R. 401, and,

even if relevant, was substantially more prejudicial than probative pursuant to

Evid.R. 403(A).

      {¶17} We initially note that Carter objected to the presentation of testimony

regarding the handgun and the admission of the handgun into evidence, both

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before trial and during the trial, thereby preserving this issue for appeal. See State

v. Eaton, 3d Dist. Nos. 2-10-10, 2-10-11, 2010-Ohio-6065, ¶12, citing State v.

Grubb (1986), 28 Ohio St.3d 199, 203

       {¶18} An appellate court reviews the trial court’s decision on the admission

of evidence for an abuse of discretion. State v. Heft, 3d Dist. No. 8-09-08, 2009-

Ohio-5908, ¶62, citing State v. Issa, 93 Ohio St.3d 49, 64, 2001-Ohio-1290.

Accordingly, an appellate court will not disturb a trial court’s evidentiary decision

unless the trial court acted unreasonably, arbitrarily, or unconscionably. State v.

Barnes, 94 Ohio St.3d 21, 23, 2002-Ohio-68.           When applying an abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL

777835.

       {¶19} Evid.R. 402 provides that relevant evidence is generally admissible

except as otherwise provided by the rules of evidence and other laws or statutes.

Evid.R. 401 defines relevant evidence as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

Furthermore, Evid.R. 403(A) provides that relevant evidence is not admissible “if

its probative value is substantially outweighed by the danger of unfair prejudice,

of confusion of the issues, or of misleading the jury.”


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      {¶20} In the case at bar, Carter was charged with obstructing official

business under R.C. 2921.31, which provides as follows:

      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.

Additionally, Carter was charged with disorderly conduct under R.C.

2917.11(A)(4), (E)(3)(a), which provides as follows:

      (A) No person shall recklessly cause inconvenience,
      annoyance, or alarm to another by doing any of the following:

      ***

      (4) Hindering or preventing the movement of persons on a
      public street, road, highway, or right-of-way, or to, from, within,
      or upon public or private property, so as to interfere with the
      rights of others, and by any act that serves no lawful and
      reasonable purpose of the offender;

      ***

      (E)(3) 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.

      {¶21} In ruling upon Carter’s motion to exclude the evidence of the

handgun, the trial court found that the presence of the handgun was relevant under

Evid.R. 401 to demonstrate the mens rea of purposeful with respect to the



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obstructing official business charge and that it was not substantially more

prejudicial than probative under Evid.R. 403(A).

      {¶22} While we may disagree with the trial court’s ruling on the matter, as

it appears the possession of the handgun may not have been relevant to the charges

based upon the facts of the case, we note that, even if the trial court abused its

discretion in admitting the evidence, there was no prejudice to Carter. The State

argued for the admission of the handgun, and the trial court admitted it on the

basis that the handgun was relevant to show Carter’s mental state in committing

the offense of obstructing official business. However, Carter was acquitted on that

charge by the jury. Moreover, because the jury acquitted Carter on that charge, it

appears unlikely the evidence of the handgun would have prejudicially affected

the jury’s decision on the remaining charge of disorderly conduct. Therefore, any

error in admission of the evidence of the handgun was harmless in this case.

      {¶23} Accordingly, we overrule Carter’s first assignment of error.

                            Assignment of Error No. II

      {¶24} In his second assignment of error, Carter argues that the trial court

erred in denying his Crim.R. 29(A) motion for judgment of acquittal. Specifically,

he contends that the State presented no evidence demonstrating that PPE had an




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easement or right to enter and remain on his property4.

         {¶25} When an appellate court reviews a record for sufficiency, the

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. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, ¶47, citing State v. Jenks (1981), 61 Ohio St.3d 259,

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of

whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson

(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other

grounds as stated in Smith, supra.

         {¶26} Carter        was      convicted       of    disorderly       conduct       under      R.C.

2917.11(A)(4), (E)(3)(a), as set forth in the first assignment of error. At trial,

Doug Johanns testified that Carter told him to leave Carter’s property when he

indicated to Carter that he would not remove the utility poles; that Carter also told

him Carter would not pay his delinquent bill; that he felt he could not safely



4
  We also note that Carter asserts in his second assignment of error that insufficient evidence was presented
to support a conviction under R.C. 2917.11(A)(4), (E)(3)(c), as no testimony was presented establishing
that the officer’s presence on his property was due to a fire, accident, disaster, riot, or emergency.
However, Carter’s conviction was under R.C. 2917.11(A)(4), (E)(3)(a), as we previously noted that the
amended complaint’s inclusion of section (E)(3)(c) was a harmless clerical error, and that the intended
statutory language under (E)(3)(a) was used and the jury properly instructed on subsection (E)(3)(a).

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disconnect the power due to Carter’s actions; and, that Carter refused to heed the

deputies’ multiple warnings to stand aside so he could disconnect the power.

       {¶27} Additionally, Deputy Garcia testified that Carter informed him he

would not allow PPE on his property unless they removed the utility poles from

his property; that he informed Carter that PPE had a right to enter his property to

disconnect the power; and, that Carter was arrested after he failed to heed multiple

warnings to cease and desist in his disruptive actions.

       {¶28} Consequently, we find that sufficient evidence was presented to

establish that Carter engaged in disorderly conduct in violation of R.C.

2917.11(A)(4), (E)(3)(a). Although Carter contends that the State failed to present

evidence that PPE had the right to enter his property, Deputy Garcia testified that

he informed Carter that PPE had the right to enter the property to disconnect the

power. Additionally, Carter testified that the utility poles were PPE’s property,

which we find to be an acknowledgment of PPE’s right-of-way over Carter’s

property, and that he was delinquent on his utility bill, thereby giving PPE the

right to enter his property onto the right-of-way to disconnect the power.

       {¶29} Accordingly, we overrule Carter’s second assignment of error.

       {¶30} Having found no error prejudicial to the appellant herein, in the




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particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jnc




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