[Cite as In re B.M., 2012-Ohio-6221.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN RE: B.M. :
: C.A. CASE NOS. 25093 and 25206
: T.C. NOS. A-2011-9523-OE
: JC2012-0678-02
: (Civil appeal from Common
Pleas Court, Juvenile Division)
:
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OPINION
Rendered on the 31st day of December , 2012.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MELISSA REPLOGLE, Atty. Reg. No. 0084215, 2312 Far Hills Avenue, #145, Dayton,
Ohio 45419
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} B.M. appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which adjudicated B.M. to be a delinquent child for
resisting arrest in Case No. JC 2012-678 and found that B.M. had violated the terms of his
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probation and suspended commitment in Case No. JC 2011-9523. The court ordered that
Case No. JC 2012-678 be “admonished and closed,” and that B.M. be committed to the
custody of the Department of Youth Services in Case No. JC 2011-9523 for a minimum of
six months and a maximum not to exceed his 21st birthday. B.M. appeals.
{¶ 2} For the following reasons, the judgment of the juvenile court will be
reversed as to the adjudication for resisting arrest, and it will be reversed and remanded for
further proceedings with respect to B.M.’s violations of probation and the terms of
suspended commitment.
I
{¶ 3} In January 2012, B.M., age 16, was charged with criminal damaging,
domestic violence, and resisting arrest (Case No. JC 2012-678). B.M. was also charged
with violations of probation and the terms of his suspended commitment, based on
conditions imposed in a prior case (Case No. JC 2011-9523); in the earlier case, B.M. had
been adjudicated a delinquent based on the trial court’s finding that he had committed
menacing by stalking, a felony of the fourth degree. The juvenile court held an adjudicatory
hearing in February 2012 and found B.M. delinquent for resisting arrest; the juvenile court
granted B.M.’s motion to dismiss the criminal damaging and domestic violence charges due
to insufficient evidence. The court also found that B.M. had violated his probation and the
terms of his suspended commitment in the earlier case. B.M. was sentenced as described
above.
II
{¶ 4} B.M. appeals, raising two assignments of error. The first assignment of
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error states:
The State failed to prove beyond a reasonable doubt that B.M.
committed the charge of resisting arrest and the court’s finding of
responsibility is a manifest miscarriage of justice.
{¶ 5} B.M. contends that his adjudication for resisting arrest was supported by
insufficient evidence and was against the manifest weight of the evidence.
{¶ 6} A sufficiency of the evidence argument challenges whether the State has
presented adequate evidence on each element of the offense to sustain the verdict as a matter
of law. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. “An
appellate court’s function when reviewing the sufficiency of the evidence to support a
criminal conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. 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. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In contrast, “a weight of the
evidence argument challenges the believability of the evidence and asks which of the
competing inferences suggested by the evidence is more believable or persuasive.” State v.
Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12.
{¶ 7} R.C. 2921.33(A) defines resisting arrest as follows: “No person,
recklessly or by force, shall resist or interfere with a lawful arrest of the person or another.”
In order to show a “lawful arrest,” the State must prove that there was a reasonable basis to
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believe an offense was committed for which the defendant could be lawfully arrested, but the
State need not prove beyond a reasonable doubt the elements of the underlying offense for
which the arrest was being made. State v. Burns, 2d Dist. Montgomery No. 22674,
2010-Ohio-2831, ¶ 29; State v. Dumas, 8th Dist. Cuyahoga No. 89070, 2007-Ohio-5724, ¶
22.
{¶ 8} One acts recklessly when, with heedless indifference to the consequences,
he perversely disregards a known risk that his conduct is likely to cause a certain result or is
likely to be of a certain nature. R.C. 2901.22(C). One acts by force when one uses “any
violence, compulsion, or constraint physically exerted by any means upon or against a
person or thing.” R.C. 2901.01(A)(1).
{¶ 9} With respect to the sufficiency of the evidence, B.M. argues that the State
failed to prove that he was under arrest at the time of the actions in question and,
alternatively, that if he were under arrest, the State failed to prove that he had resisted arrest
recklessly or by force.
{¶ 10} The State’s evidence established the following facts.
{¶ 11} On January 26, 2012, Miami Township Police Officer Robert Sakal
responded to a call of domestic violence and criminal damaging at 2114 Mattis Drive; he
was given the name of the suspect (B.M.), as well as a physical description. As he neared
the home, Sakal saw B.M., who was known to him from prior encounters and who matched
the physical description Sakal had been given. B.M. did not stop when Sakal called to him
from his cruiser. When Sakal parked and exited the cruiser, blocking B.M.’s path, B.M.
asked why he was being stopped and asked Sakal to stop hassling him. Sakal informed
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B.M. that B.M. was being detained for investigation of domestic violence and criminal
damaging complaints. According to Sakal, B.M. was not under arrest at that point, and
Sakal informed B.M. of this fact.
{¶ 12} At the cruiser, while Sakal gave B.M. a “quick pat down” for weapons in
preparation for transporting him back to the house, B.M. called Sakal names and threatened
to “beat [Sakal’s] ass.” B.M. also tried to turn or “pull away” from Sakal as Sakal patted
him down from behind. Sakal interpreted B.M.’s movements as an “aggressive action” or
threat, so Sakal pinned B.M. against the cruiser and handcuffed him. Sakal then reported to
dispatch that B.M. was being disorderly. Sakal testified that he had decided to take B.M.
into custody as soon as B.M. started making threats. B.M. did not make any other physical
movements toward Sakal. B.M. was placed in the cruiser and taken to the juvenile
detention facility.
{¶ 13} B.M. also testified at the hearing. B.M. stated that he was walking to see
his probation officer when Sakal stopped him, that he had not heard Sakal call to him from
the cruiser, and that the cruiser window had been closed. B.M. admitted to asking Sakal
why he was being “harassed,” but testified that during their encounter, Sakal had
“immediately” grabbed his arm and put handcuffs on him. B.M. admitted that he had
turned his head to ask a question while being searched, but he denied that he had turned in a
threatening way. B.M. stated that he called Sakal names and threatened him only after he
had been handcuffed and placed in the cruiser.
{¶ 14} “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
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an actual or constructive seizure or detention of the person, and (4) which is so understood
by the person arrested.” State v. Darrah, 64 Ohio St.2d 22, 26, 412 N.E.2d 1328 (1980);
State v. Turic, 2d Dist. Greene No. 2010 CA 56, 2011-Ohio-6713, ¶13. The evidence must
show that the subject of an arrest should reasonably have understood that such a seizure
occurred. State v. Hatch, 2d Dist. Montgomery No. 18986, 2002 WL 10449 (Jan. 4, 2002).
{¶ 15} The State’s evidence established that, when Sakal stopped B.M., Sakal
intended to detain B.M. for further investigation, and Sakal informed B.M. of this fact. As
Sakal frisked B.M. from behind, B.M. began to threaten Sakal and “pulled away” or turned
“a little bit” in a way that Sakal found threatening. According to Sakal’s testimony, B.M.’s
threats occurred simultaneously with the pat down. As a result of the threats, Sakal changed
his mind about the detention and decided to arrest B.M. instead, but Sakal did not
communicate to B.M. that he was under arrest.
{¶ 16} Although we understand why Sakal might have felt threatened by B.M.’s
movement, coupled with his verbal threats, we see no basis to conclude that B.M. knew he
was under arrest when he turned during the pat down. Even Sakal admitted that he (Sakal)
did not decide to arrest B.M. until B.M. threatened to assault Sakal. Thus, even if the threat
might have constituted resisting arrest under other circumstances, Sakal admitted that B.M.
was only being detained, not arrested, when the threat was made. Because a reasonable
person in B.M.’s position would not have known he was under arrest, the State failed to
establish one of the requisite elements of an arrest. B.M. could not have resisted arrest if he
did not know he was under arrest.
{¶ 17} Moreover, even if we were to conclude that the State had proven that B.M.
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knew or should have known that he was under arrest, B.M.’s conviction would be supported
by insufficient evidence because the State failed to establish that B.M. resisted or interfered
with an arrest “recklessly or by force,” as required under R.C. 2921.33(A). The State does
not argue that B.M. acted recklessly; it contends that B.M.’s turning or pulling away during
the pat down constituted the use of force. But Sakal and B.M. each testified that B.M. did
not touch Sakal or inflict any physical injury on him. We cannot conclude that B.M.’s
turning toward Sakal, purportedly to ask a question about the reason for his detention or to
call Sakal a name, constituted “violence, compulsion, or constraint physically exerted by any
means” against Sakal.
{¶ 18} For these reasons, we agree with B.M.’s argument that his conviction was
supported by insufficient evidence and must be vacated. As such, we need not address his
argument that his conviction was against the manifest weight of the evidence.
{¶ 19} The first assignment of error is sustained.
III
{¶ 20} B.M.’s second assignment of error states:
B.M.’s adjudication for violation of probation and suspended
commitment was not supported by sufficient evidence.
{¶ 21} B.M. contends that, if his conviction for resisting arrest was supported by
insufficient evidence, then the trial court’s finding that he had violated the terms of his
probation and the terms of his suspended commitment was also against the manifest
evidence.
{¶ 22} It is not clear from the record that the juvenile court’s findings of violations
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of probation and the terms of suspended commitment in Case No. JC 2011-9523 were based
solely on its finding that B.M. had resisted arrest in Case No. JC 2012-678. The complaint
in Case No. JC 2011-9523 for violations of probation and suspended commitment stated
three bases for the complaint: B.M. had violated curfew, B.M. had failed to meet with his
probation officer, and B.M. had violated his suspended commitment by being arrested on
three new complaints. Two of the new charges were dismissed, and we have found that the
third charge, resisting arrest, was supported by insufficient evidence. However, the juvenile
court could have nonetheless concluded that B.M. violated his probation and the terms of his
suspended commitment by violating curfew and/or failing to meet with his probation officer,
as alleged in the complaint.
{¶ 23} The juvenile court’s dispositional order regarding the violations of
probation and the terms of suspended commitment merely referred to B.M.’s prior
adjudication as a delinquent and stated that “the child could benefit from being committed to
the legal custody of [DYS] for care and rehabilitation and that said commitment is the least
restrictive form of treatment which is appropriate.” Because we cannot determine, on this
record, whether the juvenile court’s finding that B.M. had violated his probation and the
terms of his suspended commitment was based entirely on his adjudication for resisting
arrest in Case No. JC 2012-678 (which would be improper in light of our finding that
resisting arrest was supported by insufficient evidence) or was based on other legitimate
considerations related to the terms of the court’s prior orders, we will also reverse the trial
court’s judgment in Case No. JC 2011-9523, and remand this matter to the juvenile court for
further proceedings. Upon remand, the juvenile court shall determine, without
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consideration of the resisting arrest adjudication, whether B.M. violated his probation and
the terms of his suspended commitment by violating curfew and/or failing to meet with his
probation officer, and enter an appropriate new judgment on the basis of its findings. Any
appeal of that judgment will require the filing of a new notice of appeal.
{¶ 24} The second assignment of error is sustained.
{¶ 25} The judgment of the juvenile court in Case No. JC 2012-678 will be
reversed insofar as it found that B.M. had resisted arrest. The judgment in Case No. JC
2011-9523 will be reversed, and the matter is remanded to the juvenile court for further
proceedings consistent with this opinion.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Michele D. Phipps
Melissa Replogle
Hon. Nick Kuntz
In re B.M.
Combined Opinion