[Cite as State v. Curtin, 2020-Ohio-4189.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2020-A-0010
        - vs -                                  :

PATRICK K. CURTIN,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula Municipal Court, Case No. 2019 CRB 01247.

Judgment: Affirmed.


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).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Patrick K. Curtin, appeals the February 26, 2020 judgment of

the Ashtabula Municipal Court sentencing him to 60 days in jail on one count of resisting

arrest. For the reasons stated herein, the judgment is affirmed.

        {¶2}     On the afternoon of July 28, 2019, a man later identified as appellant

drove a vehicle into a building at high speed, then departed the scene on foot before

officers arrived.       When officers from the Ashtabula Police Department responded,

witnesses informed them which direction appellant traveled.        The officers pursued
appellant, who was bleeding from his head and had removed his shirt and shoes.

When Patrolman Martin ordered him to stop, appellant turned and ran away. Patrolman

Martin gave chase, ordering him to stop and threatening to “tase him.” Appellant ran

around a vehicle and ducked out of sight. Patrolman Martin ordered appellant not to

move and to “show me your hands” but appellant did not emerge from behind the

vehicle. As Patrolman Martin approached him, appellant was lying on his back with his

hands in the air; he immediately rolled over when instructed by the officer. As appellant

was covered in blood, Patrolman Martin paused before handcuffing appellant to put on

gloves. The officer then placed appellant in handcuffs using “pain compliance,” which

the officer testified was “a method of physical control where * * * [he] applies pressure to

get some pain. When [one] complied to what [he is] asking, [he] begins to let off’ so if

[one does] what [he] asks, [he] eliminates the pain. The minute [one] start[s] to fight

again, [he] can reapply the pain [and] get compliance.” Patrolman Martin testified that

appellant was “interfering with an investigation” and “leaving the scene of the accident.”

       {¶3}   Patrolman Martin testified, and the body camera video evidence shows,

that once handcuffed, appellant began to fidget and persistently complain about the

temperature of the asphalt and the tightness of the handcuffs. Patrolman Martin moved

appellant from the ground and started to walk him toward the cruiser; he testified that

appellant was refusing to walk by stiffening his legs and pushing back into the officer.

Nevertheless, Patrolman Martin was able to escort appellant to his cruiser, where he

began to pat down appellant as Patrolman Howell arrived.

       {¶4}   Appellant continued to complain about the tightness of the handcuffs,

began to fidget more, and intentionally bashed his head against the hood of the cruiser.

As they moved him away from the patrol car so that he could not hurt himself, appellant


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attempted to headbutt Patrolman Howell, though he was able to avoid contact. The two

officers placed appellant face-down in the grass and adjusted the handcuffs. At this

point, EMS arrived, but appellant refused treatment, stating he could not afford an

ambulance ride. Once the handcuffs were adjusted, Patrolman Martin and Patrolman

Howell testified that appellant was noticeably calmer and was transported to jail and

booked without further incident.

       {¶5}   Appellant was charged with one count resisting arrest, in violation of R.C.

2921.33(A), a misdemeanor of the second degree. He was tried by a jury of his peers

and found guilty.    The court sentenced appellant to 60 days in jail with 30 days

suspended upon the following conditions: one year of reporting probation, 24 hours of

community service, and no similar offense for two years. Appellant now appeals,

assigning two errors for our review, which we address together. They state:

       {¶6}   [1.] The trial court committed reversible error in convicting
              Appellant-Defendant of resisting arrest as it was against the
              manifest weight of the evidence presented at trial.

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

       {¶8}   “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.’”   State v. Thompkins, 78 Ohio St.3d 380, 387 (1997) (emphasis removed),

quoting Black’s Law Dictionary 1594 (6th Ed.1990). In order “[t]o determine whether a

verdict is against the manifest weight of the evidence, a reviewing court must consider

the weight of the evidence, including the credibility of the witness and all reasonable

inferences, to determine whether the trier of fact ‘clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial




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ordered.’” Thompkins, supra, 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.” Thompkins, supra, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).

       {¶9}   A challenge to the sufficiency of the evidence, on the other hand, “raises a

question of law as to whether the prosecution met its burden of production at trial.”

State v. Bernard, 11th Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56, citing

Thompkins, supra, at 390 and State v. Windle, 11th Dist. Lake No. 2010-L-033, 2011-

Ohio-4171, ¶25.     “‘In reviewing the record for sufficiency, “[t]he 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.”’” Bernard, supra, quoting State v. Smith, 80 Ohio St.3d 89, 113

(1997), quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus;

see also State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.).

       {¶10} R.C. 2921.33(A), of which appellant was convicted, states:

       {¶11} No person, recklessly or by force, shall resist or interfere with a
             lawful arrest of the person or another.

       {¶12} On appeal, appellant argues, without citing authority, that R.C. 2921.33(A)

requires that his resistance occurred prior to or contemporaneous with his arrest, which

he contends was completed once he was in handcuffs. Therefore, appellant argues,

the state improperly relied on appellant’s actions after he was handcuffed to support the

charge of resisting arrest.




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       {¶13} “An arrest occurs when the following four requisite elements are involved:

(1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an

actual or constructive seizure or detention of the person, and (4) which is so understood

by the person arrested.” State v. Everett, 11th Dist. Lake No. 2018-L-142, 2019-Ohio-

2397, ¶29, citing State v. Barker, 53 Ohio St.2d 135 (1978), paragraph one of the

syllabus.

       {¶14} Patrolman Martin testified that he was in uniform at the time he first

emerged from his patrol car and ordered appellant to stop, and that he did not intend to

arrest him at that point, but to “stop him and speak with him.” Once appellant was

ordered to roll over and put his hands behind his back, Patrolman Martin testified that

“he would have been under arrest at that point.” Thus, at the time of handcuffing

appellant, the officer had the intent to arrest and the authority to do so.

       {¶15} A careful review of the evidence shows that appellant was compliant while

the officer placed the handcuffs on him, rolling over and placing his hands behind his

back when so instructed. This is further supported by the fact that the officer was able

to place gloves on his hands before handcuffing appellant. However, the evidence also

showed that appellant stiffened his legs as the officer was walking him back to the patrol

car, intentionally bashed his head on the hood of the patrol car and attempted to

headbutt an officer. Thus, there is no question that the state presented evidence to

show appellant resisted. Appellant argues, however, that his behavior after he was

handcuffed cannot be considered resistance during arrest, as he argues his arrest was

already effectuated at the time he was handcuffed.

       {¶16} This court has previously addressed this argument and held that “a formal

arrest is ‘not necessarily an instantaneous event,’ but instead is ‘a process beginning


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with the seizure of a person, which can encompass acts necessary to effect the formal

charging of a crime.’ The initial handcuffing and detention of a defendant does not mean

the ‘arrest’ for the purposes of resisting arrest has already been completed.’” (Citation

omitted.) State v. Mathis, 11th Dist. Lake No. 2018-L-111, 2019-Ohio-2289, ¶32, citing

State v. Bay, 130 Ohio App.3d 772, 775 (1st Dist.1998).

       {¶17} Several other appellate courts have held the same. See Columbus v.

Calhoun, 10th Dist. Franklin No. 79AP-394, 1979 WL 209411 (distinguishing State v.

Cross, 58 Ohio St. 2d 482 (1979) and stating that “the arrest is not effected for the

purposes of resisting arrest until such time as the arrest procedure has been completed

by the placing of defendant in custody, detainment or confinement. While the arresting

officer is in the process of securing the defendant to complete the implementation of the

arrest, a resisting arrest charge may still apply.”); Bay, supra, at 774 (where the prisoner

was transported to the justice center but went “limp” while being escorted inside, the

evidence supported his conviction; “[a] formal arrest * * * is ‘not necessarily an

instantaneous event,’ * * * but rather is a process beginning with the seizure of a

person, which can encompass acts necessary to effect the formal charging of a crime.”

(Citation omitted)); State v. Cole, 2d Dist. Miami No. 2009 CA 20, 2010-Ohio-1608

(affirming a conviction where the resistance occurred while the officers were in the

course of booking the defendant); and Cleveland v. Ellsworth, 8th Dist. Cuyahoga No.

83040, 2004-Ohio-4092 (affirming defendant’s conviction for resisting arrest where the

defendant was uncooperative during the booking process).

       {¶18} Here, while appellant was in handcuffs, he was still in the process of being

arrested when his resistance occurred; he had not yet been patted down, placed in the




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patrol car, or transported to jail. Thus, appellant’s arrest was in progress when his

resistance took place. Appellant’s argument to the contrary is without merit.

       {¶19} The cases to which appellant attempts to draw support are clearly

distinguishable.   In Warren v. Patrone, 75 Ohio App.3d 595 (11th Dist.1991), the

defendant’s resistance was limited to stating, “I’m not going anywhere” and walking

away from an officer who had told him there was an outstanding warrant for his arrest.

Similarly, in State v. Hesley, 7th Dist. Mahoning No. 03 MA 215, 2004-Ohio-7065, the

defendant, who had been stopped for a traffic violation, got out of his vehicle and ran

from the officers, eventually, having to be told several times to lay down on the ground

and give up his hands to be handcuffed. The Seventh District reviewed the facts and

determined that has was not “resisting as much as he was not complying with the

officer’s orders.” Id. at ¶69.

       {¶20} Here, however, appellant did not simply flee when Patrolman Martin told

him to stop; he also stiffened his legs as the officer walked him to the patrol car, bashed

his head against the hood of the patrol car, and attempted to headbutt an officer.

Appellant argues that his responses were a result of the pain he was in or an attempt to

get the officers’ attention. However, while fidgeting may be indicative of pain, stiffing

one’s legs, bashing one’s head, and headbutting an officer are not typical responses to

pain. Furthermore, regardless of whether his motive in taking such actions was to get

the attention of the officers, it is not unreasonable for the trier of fact to find that

appellant’s actions were, either recklessly or by force, interfering with his arrest.

       {¶21} Moreover, we find that the state presented compelling evidence of the

remaining element of resisting arrest, to wit: lawful arrest. A “lawful arrest” does not

require that the defendant be found guilty of the offense for which he was arrested, but


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that the arresting officer had probable cause to believe that the defendant’s conduct for

which the arrest was made amounted to an offense. Patrone, supra, at 599.

       {¶22} The state played for the jury the video recording of the initial traffic

accident, which was captured by the security cameras on an adjacent building.

Additionally, Patrolman Martin testified that witnesses were pointing which way

appellant had traveled and pointing at him once he was within eyesight.             He also

testified that appellant was shoeless, shirtless, and bleeding from a gash on the back of

his head, which is characteristic of someone who had been in a car accident. The

officer testified that appellant was “inferring with an investigation” and “leaving the scene

of an accident.” Given the witnesses identifying appellant as the driver of the crashed

vehicle and his bloodied state, we conclude the officer had probable cause to arrest him

for leaving the scene of the accident, and thus his arrest was lawful.

       {¶23} Accordingly, the state’s evidence was sufficient to support appellant’s

conviction for resisting arrest, and his conviction was not against the manifest weight of

the evidence. Appellant’s assignments of error are without merit.

       {¶24} In light of the foregoing, the judgment of the Ashtabula Municipal Court is

affirmed.


MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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