         [Cite as State v. Collier, 2015-Ohio-3891.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                         :   APPEAL NO. C-140576
                                                           TRIAL NO. 13CRB-31128
        Plaintiff-Appellee,                            :
                                                               O P I N I O N.
  vs.                                                  :

TYSHOWN COLLIER,                                       :

    Defendant-Appellant.                               :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 25, 2015




Paula Boggs Muething, City Solicitor, Heidi Rosales, Interim City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Josh Thompson,
Assistant Public Defender, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     Following a jury trial, defendant-appellant Tyshown Collier was

convicted of obstructing official business under R.C. 2921.31. We find no merit in his

four assignments of error, and we affirm his conviction.

                                I.   Factual Background

       {¶2}     The record shows that Detective Terry McGuffey of the Cincinnati

Police Homicide Unit was investigating the murder of Shawn Guilford, who was

killed on May 19, 2013, at approximately 9:20 p.m.         Cincinnati police officers

recovered Guilford’s cell phone at the scene, and McGuffey obtained a search

warrant for Guilford’s phone records.

       {¶3}     After viewing the records for Guilford’s phone, McGuffey saw that

several calls were made to and from a certain number around the time of the murder.

After obtaining the phone records for that number, McGuffey discovered that it was

used by Piante Wallace, who would become one of two suspects in the homicide.

McGuffey also obtained phone records for Javonte McCloud, who also became a

suspect.

       {¶4}     Wallace’s and McCloud’s phone records both contained a specific

number.       McGuffey called that number and Collier answered.        Subsequently,

McGuffey and his partner interviewed Collier about Wallace, who was still at large.

During that interview, Collier denied knowing Wallace.       McGuffey showed him

photographs of the two suspects, as well as calls and text messages from Collier’s

phone to and from Wallace’s phone. McGuffey asked Collier to tell the truth, but he

still denied knowing Wallace. Eventually, Collier stated that he did not remember

the calls and attributed his poor memory to being shot in the head.



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         {¶5}   Because of Collier’s denials, McGuffey obtained a search warrant for

his phone records. Collier’s phone records showed 101 phone calls of varying length

between Collier and Wallace over a five-month period. A number of calls occurred in

the hours before and after the time of the homicide. Several calls occurred right

before McGuffey interviewed Collier on October 10, 2013.

         {¶6}   Collier was subsequently arrested. Following a jury trial, he was found

guilty of obstructing official business, and appropriately sentenced. He has filed a

timely appeal from his conviction.

                             II.   Obstructing Official Business

         {¶7}   In his first assignment of error, Collier contends that the evidence was

insufficient to support his conviction. He argues that the state failed to prove that

there was a “substantial stoppage” of a public official’s progress or that the purpose

of his statements was to prevent, obstruct, or delay the public official’s performance

of any authorized act in his official capacity. This assignment of error is not well

taken.

         {¶8}   R.C. 2921.31(A) provides that “[n]o 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.” A violation of this statute requires an affirmative act. A person cannot be

guilty of obstructing official business by doing nothing or failing to act. State v.

Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 10 (1st Dist.).

The proper focus in a prosecution for obstructing official business is on the

defendant’s conduct, verbal or physical, and its effect on the public official’s ability to

perform the official’s lawful duties. Id. at ¶ 12.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}   The state must prove that the defendant’s conduct in fact hampered or

impeded the public official in the performance of the official’s duties. This court has

held that “there must be some substantial stoppage of the officer’s progress before

one can say he was hampered or impeded.” Id. at ¶ 17, quoting State v. Stephens, 57

Ohio App.2d 229, 230, 387 N.E.2d 252 (1st Dist.1978). But we have declined to state

what period of time constitutes a “substantial stoppage.” If the record demonstrates

that the defendant’s act hampered or impeded the officer in the performance of his

duties, the evidence supports the conviction. Wellman at ¶ 18; State v. Stayton, 126

Ohio App.3d 158, 163-164, 709 N.E.2d 1224 (1st Dist.1998).

       {¶10} McGuffey stated that Collier’s failure to tell the truth “made me

wonder what his involvement may have been, and I kind of shifted my focus, then, on

to him to try and find out why we would not tell us the truth about these two

subjects.” He had to order additional phone records to rebut Collier’s claims that he

did not know the prime suspect in the murder investigation. McGuffey further

testified that phone records take a substantial amount of time to go through and

understand. He also stated that he had to schedule a subsequent meeting with

Collier to “clear up” what Collier had told him. Finally, McGuffey testified that it

hampers or impedes his investigation when he has to investigate additional people in

the course of the primary investigation.

       {¶11} Thus, the record shows that Collier did not merely passively fail to

assist in the investigation. He engaged in a course of conduct that misdirected the

police investigation. See State v. Lazzaro, 76 Ohio St.3d 261, 265, 667 N.E.2d 384

(1996). Under the circumstances, the evidence was sufficient to allow the jury to

conclude that there was a “substantial stoppage” of the detective’s progress in




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                     OHIO FIRST DISTRICT COURT OF APPEALS



investigating the homicide. See State v. Jones, 1st Dist. Hamilton Nos. C-120570 and

C-120571, 2013-Ohio-4775, ¶ 39-40.

       {¶12}   Collier further argues that the state failed to prove that he acted with

purpose to prevent, obstruct, or delay the detective’s performance of his duties. 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).

       {¶13} The purpose with which a person does an act is determined from the
manner in which it is done, the means used, and all the other facts and

circumstances in evidence. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879

N.E.2d 215, at ¶ 15. The Ohio Supreme Court has held that 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. Lazzaro at 276; Jones at ¶ 38

       {¶14} In this case, Collier repeatedly lied to the police even though the
detective told him that he knew that Collier had lied and he explained to Collier the

effect of his lies on the homicide investigation. Thus, there was evidence from which

the jury could have reasonably inferred that Collier acted with purpose to hinder or

impede the investigation.

       {¶15} The record shows that a rational trier of fact, after viewing the
evidence in a light most favorable to the prosecution, could have found that the state

had proved beyond a reasonable doubt all of the elements of obstructing official

business under R.C. 2921.31. Therefore, the evidence was sufficient to support the

conviction, and we overrule Collier’s first assignment of error. See State v. Jenks, 61




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Wellman at ¶

20.

       {¶16} In his second assignment of error, Collier contends that his conviction
was against the manifest weight of the evidence. Collier did not testify at trial. He

argued that his statements to the police that he did not know the victim and that he

could not remember any phone calls due to being shot in the head were credible. But

matters as to credibility were for the jury to decide. See State v. Bryan, 101 Ohio

St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116; State v. Bell, 1st Dist. Hamilton

No. C-140345, 2015-Ohio-1711, ¶ 59.

       {¶17} After reviewing the record, we cannot say that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse Collier’s

conviction and order a new trial. Therefore, the conviction was not against the

manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997); State v. Blair, 1st Dist. Hamilton Nos. C-100150 and C-

100151, 2010-Ohio-6310, ¶ 24. We overrule Collier’s second assignment of error.

                             III. Prosecutorial Misconduct

       {¶18} In his third assignment of error, Collier contends that he was denied a
fair trial due to prosecutorial misconduct. He argues that the prosecutor improperly

elicited testimony about his refusal to take a polygraph examination and then

improperly referred to that refusal in closing argument. Collier also argues that the

prosecutor improperly commented on his exercise of his right to counsel. This

assignment of error is not well taken.

       {¶19} Prosecutors are normally entitled to wide latitude in their remarks.
State v. Mason, 82 Ohio St.3d 144, 162, 694 N.E.2d 932 (1998); State v. Thomas, 1st

Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 37. The test for prosecutorial

misconduct is (1) whether the remarks were improper, and (2) if so, whether the

remarks affected the accused’s substantial rights. State v. Lott, 51 Ohio St.3d 160,


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                     OHIO FIRST DISTRICT COURT OF APPEALS



165, 555 N.E.2d 293 (1990); Thomas at ¶ 37.          The conduct of the prosecuting

attorney cannot be grounds for error unless it deprives the defendant of a fair trial.

State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993); Thomas at ¶ 37.

       {¶20} The record shows that Collier failed to object to the comments he now
claims were improper. Therefore, he has waived all but plain error. See State v.

Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983); Thomas at ¶ 38.

       {¶21} The record shows that in the recording of Collier’s interview with

police, McGuffey asked him to take a polygraph test and Collier refused.           This

statement was admitted into evidence without objection.         The prosecutor asked

McGuffey about Collier’s refusal to take a polygraph and highlighted that refusal

during closing arguments.

       {¶22} The results of a polygraph examination cannot be admitted unless

strict criteria are met. State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978),

syllabus. The refusal to undergo a polygraph test is also inadmissible. State v.

Gilliam, 1st Dist. Hamilton No. C-110587, 2012-Ohio-5034, ¶ 13. The reason for

these restrictions is that serious questions exist as to the reliability of polygraph

tests. See United States v. Scheffer, 523 U.S. 303, 310-312, 118 S.Ct. 1261, 140

L.Ed.2d 413 (1998); State v. Caperton, 1st Dist. Hamilton No. C-000666, 2001 Ohio

App. LEXIS 5758, *6-7 (Dec. 21, 2001).

       {¶23} Additionally, after discussing Collier’s refusal to take a polygraph test,

the prosecutor stated, “[t]hen he lawyers up.” Courts strongly disapprove of using a

defendant’s exercise of his right to remain silent or to consult an attorney against the

defendant. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶

91; State v. Combs, 62 Ohio St.3d 278, 280-281, 581 N.E.2d 1071 (1991). It is

fundamentally unfair and a deprivation of due process to use a defendant’s assertion




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                      OHIO FIRST DISTRICT COURT OF APPEALS



of his rights against him, because it is a penalty imposed for exercising a

constitutional privilege. Doyle v. Ohio, 426 U.S. 610, 612-618, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976); Griffin v. California, 380 U.S. 609, 613-614, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965).

       {¶24} These comments by the prosecutor were patently improper, and we
caution against using such tactics in the future. Nevertheless, given the otherwise

overwhelming evidence against Collier, we cannot hold that but for the improper

comments the result of the proceeding would have been otherwise. Therefore, any

error does not rise to the level of plain error. See State v. Wickline, 50 Ohio St.3d

114, 119-120, 552 N.E.2d 913 (1990); State v. Baldwin, 1st Dist. Hamilton No. C-

081237, 2009-Ohio-5348, ¶ 6. We overrule Collier’s third assignment of error.

                         IV. Ineffective Assistance of Counsel

       {¶25} In his fourth assignment of error, Collier contends that he was denied
the effective assistance of counsel. He argues that his counsel was ineffective for

failing to object to numerous instances of prosecutorial misconduct and for failing to

renew his pretrial motion in limine. This assignment of error is not well taken.

       {¶26} Counsel’s failure to object is not, by itself, sufficient to sustain a claim
of ineffective assistance of counsel. State v. Conway, 108 Ohio St.3d 214, 2006-

Ohio-791, 842 N.E.2d 996, ¶ 168; Thomas, 1st Dist. Hamilton No. C-120561, 2013-

Ohio-5386, at ¶ 53. Further, the failure to renew the motion in limine would be

prejudicial only if Collier had a reasonable probability of success on that motion. See

State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65; State v.

McCrary, 1st Dist. Hamilton No. C-080860, 2009-Ohio-4390, ¶ 13. In his motion in

limine, Collier asked the trial court to exclude evidence that the police were

investigating a homicide. The trial court denied the motion before trial, finding that




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                      OHIO FIRST DISTRICT COURT OF APPEALS



evidence was relevant. We agree. Thus, Collier had little probability of success on

that motion.

       {¶27} The record shows that generally, Collier’s counsel provided him with a
diligent defense. We have concerns about counsel’s failure to object to the references

to Collier’s refusal to take a polygraph test and to his assertion of his right to counsel.

But given the evidence against Collier, we cannot say that he has demonstrated that

but for counsel’s errors, the result of the proceeding would have been otherwise.

Therefore, he has failed to meet his burden to show ineffective assistance of counsel.

See Strickland. v. Washington, 466 U.S. 668, 687-689, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); Bell, 1st Dist. Hamilton No. C-140345, 2015-Ohio-1711, at ¶ 53; Thomas

at ¶ 50-52. We overrule Collier’s fourth assignment of error and affirm the trial

court’s judgment.

                                                                     Judgment affirmed.

                                                                                          .

H ENDON , P.J., and D E W INE , J., concur.


Please note:
       The court has recorded its own entry this date.




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