[Cite as Lakewood v. Abdelhaq, 2014-Ohio-4572.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100857



                               CITY OF LAKEWOOD
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                   FRED ABDELHAQ
                                                        DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          REVERSED


                                      Criminal Appeal from the
                                     Lakewood Municipal Court
                                     Case No. 2013 CRB 01521

        BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: October 16, 2014
ATTORNEY FOR APPELLANT

Rick L. Ferrara, Esq.
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Pamela L. Roessner
City of Lakewood
12650 Detroit Avenue
Lakewood, Ohio 44107




EILEEN A. GALLAGHER, J.:
       {¶1} Fred Abdelhaq appeals from his conviction rendered in Lakewood Municipal

Court. Abdelhaq argues that the appellee, city of Lakewood (“City”),        did not support

his conviction for obstructing official business with sufficient evidence, that his

conviction is against the manifest weight of the evidence, that his conviction violates

Abdelhaq’s constitutional rights, that the City committed prosecutorial misconduct and

that his trial counsel rendered ineffective assistance. Finding merit to the instant appeal,

we reverse the decision of the trial court and vacate Abdelhaq’s conviction and sentence.

       {¶2} On September 9, 2013, officer Alan Beno arrived to the scene of a disabled

motor vehicle on the South Marginal off-ramp of Interstate 90, west of McKinley

Avenue.    When he arrived, Officer Beno       saw Samira Zeitoun standing next to the

vehicle while her young daughter remained inside. Ms. Zeitoun told Officer Beno that

she called Nationwide Insurance to tow her vehicle.      After waiting several minutes for

the tow truck to arrive, the officer called Kufner Towing to have the vehicle removed.

       {¶3} Yasmin Wahdan, Ms. Zeitoun’s sister, arrived at the scene, pulled up

alongside the disabled vehicle and parked her SUV, blocking a second lane of South

Marginal. Ms. Wahdan removed Ms. Zeitoun’s daughter from the disabled vehicle and

placed her into her own vehicle.      Officer Beno ordered Ms. Wahdan to move her

vehicle. Ms. Wahdan complied and moved her SUV directly in front of the disabled

vehicle.

       {¶4} A tow truck from Kufner Towing arrived to remove the disabled vehicle but,

because of where Ms. Wahdan had parked her SUV, the driver was unable to immediately
do so.     Shortly after Kufner arrived, the appellant, brother to both women, appeared to

help his sisters. Abdelhaq approached Officer Beno and asked if he could speak with

the tow truck driver in order to make arrangements to have the vehicle privately towed;

Officer Beno testified that he allowed Abdelhaq to approach the driver.         Abdelhaq and

Jerry Bowman, the tow truck driver, were unable to arrange for a private tow and began

arguing.

         {¶5} Abdelhaq began using his cellular telephone to record the events on South

Marginal. The video begins with Jerry Bowman raising his middle finger to appellant as

Bowman tows Zeitoun’s vehicle. The video shows that Abdelhaq is behind the guardrail

and out of the street. The video also records Abdelhaq telling his sisters to get out of the

way and for Ms. Wahdan to move her vehicle.            The video then records Officer Beno

approaching Abdelhaq and asking to see his identification. Officer Beno stated that

Abdelhaq was causing a problem, that he was obstructing official business and that he

needed to see Abdelhaq’s identification.         Abdelhaq offered to leave the scene but

Officer Beno would not allow him to leave.

         {¶6} Officer Beno placed Abdelhaq’s sister      Zeitoun under arrest and then asked

to search Abdelhaq for weapons.        Abdelhaq informed Officer Beno that he worked in

heating and air conditioning and had a work razor that he used for his job on his person.

Officer Beno confiscated the razor and cited Abdelhaq for obstructing official business.

         {¶7} The case proceeded to a jury trial and, after a one- day trial, the jury returned

a verdict of guilty on the sole count of obstructing official business. The trial court
sentenced Abdelhaq to one year of community control sanctions, a $250 fine, 40 hours of

community work service, anger management classes and a suspended jail sentence.

       {¶8} Abdelhaq appeals, raising the following assigned errors:

       1.      Insufficient evidence supported appellant’s conviction for obstruction of
               official business.

       2.      Appellant’s conviction for obstruction of official business was in direct
               violation of appellant’s rights under the First Amendment to the United
               States Constitution, as applied to the facts.

       3.      The manifest weight of the evidence did not support appellant’s conviction
               for obstruction.

       4.      The City of Lakewood committed prosecutorial misconduct.

       5.      Defense counsel provided constitutionally ineffective assistance.

       {¶9} In his first assignment of error, Abdelhaq claims there is insufficient evidence to

support his conviction of obstructing official business. We agree.

       {¶10} The test for determining the issue of sufficiency is “whether, after viewing the

evidence in the 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. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.             “Thus, the claim of

insufficient evidence invokes a question of due process, the resolution of which does not allow

for a weighing of the evidence.”        State v. Vitantonio, 11th Dist. Lake No. 2012-L-144,

2013-Ohio-4100.

       {¶11} Under the Lakewood Municipal Code, the act of obstructing official business is

defined exactly as it is in R.C. 2921.31:

       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 his official
       capacity, shall do any act which hampers or impedes a public official in the

       performance of his lawful duties.

       {¶12} Here, the purported act that allegedly impeded law enforcement in the performance

of their duties was Abdelhaq’s “purposeful, affirmative action in delaying the car from being

towed.” State’s brief p. 6. With respect to R.C. 2921.31(A), Ohio courts have repeatedly

required an affirmative act for the offense of obstructing official business. Cleveland Hts. v.

Lewis, 8th Dist. Cuyahoga No. 92917, 2004-Ohio-476. [“[A]n individual cannot be found guilty

of obstructing official business by doing nothing because the statute specifically requires an

offender to act.”] State v. Brown, 11th Dist. Lake No. 2006-L-064, 2006-Ohio-6872; Lakewood

v. Simpson, 8th Dist. Cuyahoga No. 80383, 2002-Ohio-4086.

       {¶13} In Lakewood, this court examined the same ordinance as in this case. There, the

defendant dialed 911 and hung up. Dispatch sent law enforcement units to the address and

called back the listed number. The defendant explained to dispatch that he dialed 911 in error.

The police arrived at the defendant’s apartment door and persistently knocked. The defendant

refused them entry, explaining through the door that everything was fine and they were not

needed.   This court, though noting that exigent circumstances authorized the officers to

eventually make a warrantless entry into the apartment, concluded that the defendant’s “refusal to

respond to the building entrance buzzer, open his door at the officers’ request, or consent to their

entry are not affirmative acts, but omissions, and L.C.O. 525.07 does not, and cannot, prohibit a

failure to act.” Id. This court explained that obstructing official business clearly “does not

criminalize a minor delay, annoyance, irritation or inconvenience.” Id.

       {¶14} Here, we are similarly faced with a circumstance where Abdelhaq did not commit

an affirmative act. Although Officer Beno and Kufner driver Bowman testified that Abdelhaq
got in the way of the tow truck as it was towing Zeitoun’s vehicle, the cellular phone video

directly contravenes their testimony. The video recording shows Abdelhaq behind the guardrail,

away from the tow truck and records Abdelhaq telling his sisters to get out of the way.

       {¶15} Moreover, “the [City] must prove not only the commission of an overt act done

with an intent to obstruct the officers, ‘but it also must prove that [the defendant] succeeded in

actually hampering or impeding them.’” State v. Crowell, 189 Ohio App.3d 468,

2010-Ohio-4917, 938 N.E.2d 1115. Here, Abdelhaq’s presence on South Marginal was, at

most, an inconvenience for the officer as he dealt with the disabled vehicle blocking traffic.

However, the tow truck driver successfully towed Zeitoun’s vehicle, removing the obstacle from

the road and allowing traffic to freely flow.

       {¶16} We, therefore, conclude that, even when viewed in a light most favorable to the

prosecution, the elements of obstructing official business have not been met.

       {¶17} Abdelhaq’s first assignment of error has merit. Our analysis of Abdelhaq’s first

assigned error renders the remainder of his appeal moot.

       {¶18} The judgment of the trial court is reversed. Abdelhaq’s conviction and sentence

for obstructing official business are hereby vacated.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Lakewood

Municipal Court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES SR., J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)


FRANK D. CELEBREZZE, JR., P.J., DISSENTING:

       {¶19} I respectfully dissent from the majority’s position that appellant’s conviction

for obstructing official business was not supported by sufficient evidence.

       {¶20} As stated by the majority, “an individual cannot be found guilty of

obstructing official business by doing nothing because the statute specifically requires the

offender to act.” Brown, 11th Dist. Lake No. 2006-L-064, 2006-Ohio-6872, at ¶ 29.

       {¶21} I disagree, however, with the majority’s holding that appellant did not

commit an affirmative or overt act.    Here, tow truck driver Jerry Bowman testified that

on the day of the incident, he was dispatched by police to remove a disabled vehicle “that

police wanted removed because it was a hazard.” Bowman stated the once he arrived at

the scene, appellant approached him and asked if Bowman accepted AAA.             Bowman

testified that when he informed appellant that he was not an AAA garage, appellant

became upset and began “causing an obstruction to me doing my job.”               Bowman

testified that appellant was standing near the door of his tow truck while videotaping him

with his cell phone and yelling that he was going to put Bowman on YouTube. Bowman

stated that appellant’s act of “being in his way as he tried to tow [the] hazard on the

roadway” caused a “large delay” and that the tow took over 40 minutes to complete.
       {¶22} Similarly, Officer Alan Beno testified that appellant’s conduct “interfered

with” and “delayed his performance of getting that hazard [the disabled vehicle] off the

roadway.”

       {¶23} Thus, the evidence established that Bowman’s duties required him to tow

the vehicle due to its hazardous position in the left-hand lane.   Officer Beno came to the

scene to assist Bowman in the performance of that duty.

       {¶24} Viewing this testimony in a light most favorable to the prosecution, I believe

that a reasonable juror could conclude that appellant’s conduct obstructed Officer Beno in

the performance of his duty to have the vehicle towed in an orderly and safe fashion.

Accordingly, I would find that the state presented sufficient evidence that appellant

obstructed or delayed the performance of Officer Beno’s lawful duties when he interfered

and delayed the tow truck driver’s attempt to tow the disabled       vehicle. See State v.

Harrell, 2d Dist. Montgomery No. 21736, 2007-Ohio-4550 (finding that obstruction of

official business was supported by sufficient evidence where defendant delayed officers

performance of their duties in having a car towed).

       {¶25} Accordingly, I would overrule appellant’s first assignment of error and

address his remaining assignments of error.
