[Cite as State v. Lee, 2012-Ohio-2856.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 11-CA-0076
                                               :
                                               :
JASON LEE                                      :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Licking County
                                                    Court of Common Pleas Case No.
                                                    10-CR-0618

JUDGMENT:                                           Affirmed In Part, Reversed and
                                                    Remanded In Part

DATE OF JUDGMENT ENTRY:                             June 22, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KENNETH W. OSWALT                                   ROBERT BANNERMAN
Prosecuting Attorney                                P.O. Box 77466
20 S. Second Street, Fourth Floor                   Columbus, Ohio 43207-0098
Newark, Ohio 43055
[Cite as State v. Lee, 2012-Ohio-2856.]


Edwards, J.

        {¶1}     Appellant, Jason Lee, appeals a judgment of the Licking County Common

Pleas Court convicting him of obstructing official business (R.C. 2921.31(A)) with a

firearm specification (R.C. 2929.14(D), 2941.145), aggravated menacing (R.C.

2903.21(A)), and possession of marijuana (R.C. 2925.11(A)(C)(3)(a)).              He was

sentenced to three years incarceration on the firearm specification to run consecutively

to all other sentences, six months incarceration for obstructing official business, and 180

days incarceration for aggravated menacing to run concurrently with the sentence for

obstructing official business. Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     On September 23, 2010, officers from the Licking County Sheriff’s

Department went to appellant’s home at 9151 Linville Road, Newark, Ohio, to serve a

writ of possession. Deputies spoke to appellant and explained that his property had

been sold at sheriff’s sale and he needed to make arrangements to vacate. They

agreed on October 11, 2010 as the date by which appellant would vacate, but appellant

stated that he was going to hire an attorney to have the sale set aside.

        {¶3}     Deputies did not return on October 11, 2010, because a court action was

pending to review the propriety of the sale. However, on October 20, 2010, the court

denied a stay on the writ of possession. Deputies again spoke with appellant at his

home on October 25, 2010, and told him he needed to vacate on October 27, 2010.

        {¶4}     At about 9:30 a.m. on October 27, deputies arrived at appellant’s home.

Appellant was standing on the front sidewalk. He yelled something to the officers about

having sold his house to someone else and told them to leave. Appellant then ran in
Licking County App. Case No. 11-CA-0076                                               3


the front door of the home. Officers followed appellant to the front porch but appellant

would not come out or let them in the house. He yelled through the front door that he

was not coming out.

      {¶5}   Deputies returned to their vehicle to telephone the buyers to inform them

not to come to the property that morning as planned. They called appellant’s attorney,

and also called their supervisor, Captain Bruce Myers.      Deputy Tim Caldwell went

around to the back door to attempt to talk to appellant. The blinds covering the French

doors on the back porch flew open and the faces of appellant and another man, later

identified as Karl Weatherby, appeared against the window. The two men began yelling

and screaming at Dep. Caldwell. The corners of their mouths were “full of white stuff”

from yelling and screaming and they were spitting on the window.

      {¶6}   When Captain Bruce Myers arrived, he went to the back door to speak

with appellant. He advised appellant through the door that appellant’s attorney was on

his way. Capt. Myers saw an arm and a hand come around the side of the blinds

covering the door. The hand was holding a pistol.

      {¶7}   Much of the staff of the Sheriff’s Department had been dispatched to an

incident involving a van, containing a pipe bomb, which crashed into a church following

a pursuit earlier that morning. At least 25 employees of the Sheriff’s Department and

fire department were dispatched to appellant’s home, including the SWAT team and the

hostage negotiating team.

      {¶8}   Appellant would not speak to the hostage negotiators through a “throw

phone,” which is the preferred method of communicating so that all communications can

be monitored by the police. However, he agreed to speak to Misty VanBalen through a
Licking County App. Case No. 11-CA-0076                                                     4


cell phone.    VanBalen faxed the paperwork concerning the sale of the house to

appellant so they both had all the relevant court papers. Appellant repeatedly told her

that he wanted to die, that he was going to kill whoever entered the residence first and

then kill himself. He also told her that he and Weatherby had a plan to kill each other.

He told her that he could see the officers through the window and could take them out.

He intended to die and take out as many people as he could. Appellant would speak

calmly with her for awhile, then start yelling and hang up. He told her that he had

shown a gun to an officer and knew he was in trouble, he still had the gun, and he

wasn’t going to put it down. He told her he had other guns in the house, including rifles

which Weatherby knew how to handle because he had been in the military. He said

that he wanted the media to be there when he died.

       {¶9}   At about 4:15 p.m., Weatherby agreed to come out unarmed and speak to

the media. Appellant and Weatherby were both concerned about how their cats were

going to get fed if they surrendered. VanBalen agreed to feed the cats. Appellant came

out of the house at 6:30 p.m.

       {¶10} During a subsequent search of the house, officers found marijuana. They

also found three firearms in a cabinet in a basement office, a loaded firearm in a

garage, a revolver in the first floor dining room, a rifle leaning against an end table in the

living room, and a rifle in the corner of a first floor bathroom.

       {¶11} Appellant admitted to police that he grabbed a firearm and went to the

back door. He did not deny brandishing a weapon at Captain Myers and indicated that

he had a weapon with him. He also admitted that he planned to shoot the first person

through the door and then shoot himself.
Licking County App. Case No. 11-CA-0076                                                5


       {¶12} Appellant was indicted by the Licking County Grand Jury with obstructing

official business, inducing panic, aggravated menacing, possession of criminal tools,

possession of marijuana, and two firearm specifications. The first firearm specification,

applicable to counts one and two, alleged that appellant had one or more firearms on or

about his person or under his control or that of an accomplice. The second firearm

specification, also applicable to counts one and two, alleged that appellant or an

accomplice displayed, brandished, indicated that they possessed a firearm or used it to

facilitate the offense.

       {¶13} Following jury trial in the Common Pleas Court, appellant was acquitted of

inducing panic. The jury could not reach a verdict on the charge of possession of

criminal tools. Appellant was convicted of all other counts. The trial court merged the

firearm specifications and sentenced appellant to a term of incarceration of three years,

to be served prior to and consecutively to the remainder of his sentence. He was

sentenced to six months incarceration for obstructing official business, and 180 days

incarceration for aggravated menacing to run concurrently with the sentence for

obstructing official business.

       {¶14} Appellant assigns three errors on appeal:

       {¶15} “I. WAS THE JURY’S FIREARM SPECIFICATION SPECIAL FINDING

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶16} “II. THE DEFENDANT’S SENTENCING ENTRY WAS DEFECTIVE BY

MERGING FIREARM SPECIFICATIONS FOR A COUNT IN WHICH HE WAS FOUND

NOT GUILTY.
Licking County App. Case No. 11-CA-0076                                                       6


       {¶17} “III. THE TRIAL COURT IMPROPERLY ALLOWED PREJUDICIAL

CUMULATIVE FIREARM EVIDENCE TO GO TO THE JURY, AND EXCLUDED

EXCULPATORY          MENTAL     STATE     CIVIL       FORECLOSURE       ERRORS       TO   BE

PRESENTED TO THE JURY.”

                                                  I

       {¶18} Appellant argues that the finding on the firearm specification was against

the manifest weight of the evidence. He argues that because Capt. Myers did not see

the face of the person who brandished the weapon, there was a 50/50 chance it was

Karl Weatherby and not appellant who brandished the firearm.

       {¶19} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1983).

       {¶20} R.C. 2929.14(D) provides for a three year term of incarceration if the

offender had a firearm “on or about the offender's person or under the offender's control

while committing the offense and displaying the firearm, brandishing the firearm,

indicating that the offender possessed the firearm, or using it to facilitate the offense.”

       {¶21} Misty VanBalen testified that appellant told her he knew was in trouble and

that he had shown a gun to an officer. He told her that he still had the gun and wasn’t
Licking County App. Case No. 11-CA-0076                                                   7


going to put it down and that he had other guns. He told her he intended to shoot the

first person who walked through the door and then kill himself. Detective Brock Harmon

interviewed appellant after the incident. Appellant admitted that he grabbed a firearm

and took it with him to the back door and that he planned to shoot the first person who

walked through the door and then shoot himself. Numerous firearms were found in a

search of the house, including several on the first floor. Captain Myers identified the

pistol that was displayed to him through the back door.

       {¶22} The judgment on the firearm specification is not against the manifest

weight of the evidence.

       {¶23} The first assignment of error is overruled.

                                                II

       {¶24} In his second assignment of error, appellant argues that the court erred in

merging the firearm specifications on both counts one and two, as he was not convicted

of count two, inducing panic.

       {¶25} The court’s sentencing entry states in pertinent part:

       {¶26} “The Court finds that the defendant has been convicted of Obstructing

Official Business (Count 1), a violation of O.R.C. Section 2921.31(A), a felony of the fifth

degree; Firearm Specification to Counts 1 and 2, in violation of O.R.C. Section

2929.14(D) and 2941.145; Aggravated Menacing (Count 3), in violation of O.R.C.

Section 2903.21(A), a first degree misdemeanor; and Possession of Marijuana (Count

5), in violation of O.R.C. Section 2925.11(A)(C)(3)(a), a minor misdemeanor.
Licking County App. Case No. 11-CA-0076                                                8


       {¶27} “For reasons stated on the record, and after consideration of the factors

under Ohio Revised Code Section 2929.12, the Court also finds that prison is

mandatory.

       {¶28} “The Court finds that the separate firearm specifications to Counts 1 and 2

merge.

       {¶29} “It is, therefore, ordered that the defendant serve a state mandatory prison

term of three (3) years on the firearm specification to be served prior to and

consecutively with a term of six (6) months on Count 1 at the Orient Reception Center.

Further, the Court imposes a term of 180 days in jail on Count 3 and orders it run

concurrently with the sentence of Count 1.”

       {¶30} The jury convicted him of count one, obstructing official business, and

both firearm specifications attached to this count.          The court merged these

specifications for sentencing, but incorrectly stated that the specification was attached

to Counts 1 and 2.      Because appellant was acquitted on Count Two, the firearm

specification was only applicable to Count One.

       {¶31} Appellant argues that he should be resentenced. We disagree. While the

entry should be corrected to remove the reference to the firearm specification on Count

2, appellant’s sentence was not affected by this error. Appellant was convicted of the

firearm specification on Count 1, and accordingly was sentenced to three years

incarceration on the specification.

       {¶32} The second assignment of error is sustained.
Licking County App. Case No. 11-CA-0076                                                   9


                                                III

       {¶33} In his third assignment of error, appellant argues that the court erred in

admitting evidence of firearms found in the house in addition to the weapon identified as

the one brandished to Captain Myers. He also argues the court erred in excluding

evidence that there were errors made in his civil foreclosure case because such

evidence was relevant to his state of mind.

       {¶34} The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 51 N.E.2d 343, paragraph

2 of the syllabus (1987). An abuse of discretion implies that the court acted

unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶35} Appellant argues that the evidence of other firearms found in the

residence should have been excluded under Evid. R. 403:

       {¶36} “(A) Exclusion mandatory. Although 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.

       {¶37} “(B) Exclusion discretionary.       Although relevant, evidence may be

excluded if its probative value is substantially outweighed by considerations of undue

delay, or needless presentation of cumulative evidence.”

       {¶38} While appellant objected before trial and during the testimony of Det. Marc

Brill to the admissibility of any gun but the gun displayed to Capt. Myers, appellant failed

to renew the objection when the exhibits were admitted, and stated that he had no

objection to the admission of the exhibits. Tr. 396. All of the weapons were included in
Licking County App. Case No. 11-CA-0076                                                10


these exhibits. Generally, when a party fails to renew an objection at the time exhibits

are admitted into evidence, that party waives the ability to raise the admission on appeal

absent plain error. Odita v. Phillips, 10th Dist. 09AP-1172, 2010-Ohio-4321, ¶56, citing

Nicula v. Nicula, 8th Dist. No. 84049, 2009-Ohio-2114. In order to prevail under a plain

error analysis, appellant bears the burden of demonstrating that the outcome of the trial

clearly would have been different but for the error. State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at

paragraph three of the syllabus.

      {¶39} Appellant argues that the 9 mm Beretta and the Smith & Wesson

semiautomatic were locked in a cabinet in the basement.          He further argues that

evidence that one of the rifles was capable of piercing body armor was unfairly

prejudicial and confused the jury.

      {¶40} The testimony shows that these weapons were found in a cabinet in the

basement, but the evidence does not support appellant’s claim that the cabinet was

locked. Further, the Beretta was identified by Captain Myers as the weapon brandished

at the back door, which he recognized by the after-market aiming laser attached to the

weapon. Throughout the incident, appellant made the hostage negotiator aware that

they had rifles and Weatherby knew how to handle them from being in the military. He

informed VanBalen that he could see officers through the window and could take them

out. Evidence of the firearms was relevant to proving the firearm specification. Further,

the obstructing official business charge was elevated to a felony pursuant to R.C.

2921.31(B) because the offense created a risk of physical harm to any person. The fact
Licking County App. Case No. 11-CA-0076                                                11


that appellant and Weatherby were armed with multiple kinds of weapons, several of

which were found on the first floor of the home, was relevant to proving that appellant

created a risk of harm to the officers he threatened throughout the course of the

incident.

       {¶41} Appellant has not demonstrated error in admission of the firearms.

       {¶42} Appellant next argues that the court erred in excluding evidence that he

believed the court made a mistake in ordering the sheriff to execute the writ because

there were errors in the process by which the writ of possession was obtained.

       {¶43} Appellant’s claim is essentially one of defense of property. Ohio law does

not provide appellant the right to defend his property by threatening to shoot police

officers who are there to execute a writ of possession issued by a court of law simply

because he believes there were errors made in the civil proceeding that led to the

sheriff’s sale of his property.

       {¶44} In State v. Burns, 2nd Dist. No. 22674, 2010-Ohio-2831, the appellant

argued that her conviction for obstructing official business was against the manifest

weight of the evidence because the officer whom she impeded in his efforts to search

her mother’s home was there unlawfully, without a search warrant. The court rejected

this argument, holding:

       {¶45} “Appellant contests that Officer Wolpert was performing ‘lawful duties’

when he entered her mother's house prior to obtaining a search warrant. Although an

unlawful entry may result in the exclusion of evidence, ‘absent bad faith on the part of a

law enforcement officer, an occupant cannot obstruct the officer in the discharge of his

duty, whether or not the officer's actions are lawful under the circumstances.’ State v.
Licking County App. Case No. 11-CA-0076                                              12

Stevens, Morgan App. No. 07-CA-0004, 2008-Ohio-6027, ¶ 37, quoting State v.

Paumbaur (1984), 9 Ohio St.3d 136, 138. There is no evidence of ‘bad faith’ on the part

of Officer Wolpert. He explained that his reason for entering the home was to ensure the

safety of all concerned and to ensure that evidence could not be removed or destroyed.

Even if Officer Wolpert's entry had been unlawful under these particular circumstances,

absent evidence of bad faith, Appellant was not justified in obstructing his efforts to

secure the residence.” Id. at ¶19.

      {¶46} In the instant case, appellant’s proffered evidence did not demonstrate in

any way that the police were acting in bad faith. The evidence suggested that as of

October 27, 2010, the deed to the home was still in appellant’s name. However, as

noted by the court, nothing in appellant’s proffered testimony demonstrated that the

sheriff acted in bad faith in executing the writ of possession.      While it might be

uncommon for a writ to issue prior to the deed being recorded, the sheriff’s department

had a writ of possession and a judgment of the court, dated October 20, 2010, denying

appellant’s motion for a stay on the writ of possession.      The court did not err in

excluding evidence that the writ issued before the deed was recorded and before the full

purchase price was paid.

      {¶47} Further, while a homeowner may say almost anything to officers in an

attempt to persuade them not to enter, the Fourth Amendment does not grant a

homeowner the right to use deadly force to resist an unlawful entry. State v. McCoy, 2nd

Dist. No. 22479, 2008-Ohio-5648, ¶19. In the instant case, appellant’s right to resist

entry, even if the police were acting on bad faith, did not extend to a threat of deadly

force and show of a firearm.
Licking County App. Case No. 11-CA-0076                                                13


      {¶48} The third assignment of error is overruled.

      {¶49} The judgment of the Licking County Common Pleas Court is affirmed in all

respects except the merger of the firearm specification on Count Two. This cause is

remanded to that court for the limited purpose of correcting the judgment to remove the

reference to a firearm specification on Count Two, on which appellant was acquitted.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                              JUDGES

JAE/r0227
[Cite as State v. Lee, 2012-Ohio-2856.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JASON LEE                                         :
                                                  :
                        Defendant-Appellant       :       CASE NO. 11-CA-0076




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is reversed solely as to the

reference to the firearm specification on Count Two, and remanded for the limited

purpose of correcting the judgment entry. In all other respects the judgment is affirmed.

Costs assessed to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
