In re J.J.

[Cite as In re J.J., 2015-Ohio-4259.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN RE: J.J., A MINOR CHILD : JUDGES:
: Hon. Sheila G. Farmer, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 15-CA-29
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Juvenile
Division, Case No. A2014-0757

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 13, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT ERIN J. MCENANEY
Licking County Prosecutor McEnaney Legal
23 1/2 South Park Place, Suite 207D
By: KARRIE PRATT KUNKEL Newark, OH 43055
Assistant Prosecuting Attorney
20 S. Second Street
Newark, OH 43055
Licking County, Case No. 15-CA-29 2

Baldwin, J.

{¶1} Appellant J.J. appeals a judgment of the Licking County Common Pleas

Court, Juvenile Division, finding him delinquent by reason of resisting arrest. Appellee

is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On November 24, 2014, Maria Redanty, assistant principal of Licking

Heights High School, brought appellant to her office based on an email she received.

Appellant told Redanty that someone told him to shut up, and he was going to shoot her

and kill her. Redanty told appellant that he could not say things like that in school, and

he responded that he didn’t care. Appellant repeated that he was going to shoot her

and kill her.

{¶3} Redanty called the police. Appellant had an ear bud in one ear, listening

to music. He told Redanty, “If the officer comes and he rips the ear bud out of my ear,

I’m going to punch him in his fucking face.” Tr. 21.

{¶4} Officer Gerald Lemons, the school resource officer, was called to assist.

Officer Jason Gross was dispatched from the Pataskala Police Department. Upon

arriving, Gross attempted to speak to appellant, who did not respond. He decided to

remove the ear bud from appellant’s ear. While Redanty tried to warn Gross concerning

the threat made by appellant if the ear bud was removed, before she could finish her

explanation, Gross removed the ear bud. Appellant stood up in an aggressive stance

toward Gross, with his fists clenched.

{¶5} Officer Lemons moved in to protect Gross and Redanty. Gross told

appellant to calm down and sit down, but he did not respond. Redanty heard Gross tell
Licking County, Case No. 15-CA-29 3

appellant he was under arrest when appellant started to lunge at the officers and one of

the officers grabbed his arm. Gross remembered telling appellant that he was under

arrest during this same time period while he attempted to cuff appellant, but appellant

continued to pull away. Gross and Lemon took appellant to the ground and finally

handcuffed him. Appellant continued to resist and struggle until he was handcuffed.

Although Lemons did not hear Gross tell appellant he was under arrest, he heard Gross

tell appellant several times to “stop resisting.”

{¶6} Appellant was charged with delinquency by reason of disorderly conduct

and resisting arrest. He admitted the disorderly conduct charge, and the resisting arrest

charge proceeding to a hearing before a magistrate. The magistrate found appellant

delinquent by reason of resisting arrest. Following objections to the magistrate’s report,

the court overruled the objections and entered judgment in accordance with the

magistrate’s decision.

{¶7} Appellant assigns a single error:

{¶8} “THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO ESTABLISH

EACH AND EVERY ELEMENT OF THE OFFENSE IN QUESTION.”

{¶9} Appellant’s sole argument on appeal is that the State failed to prove that

he was informed and understood that he was under arrest.

{¶10} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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
Licking County, Case No. 15-CA-29 4

crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

{¶11} R.C. 2921.33(A) states, “No person, recklessly or by force, shall resist or

interfere with a lawful arrest of the person or another.” The existence of an arrest is

determined by the existence of four requisite elements: (1) an intent to arrest, (2) under

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.

Barker, 53 Ohio St.2d 135, 372 N.E.2d 1324, paragraph one of the syllabus (1978). An

arrest can occur when an officer performs a seizure of the subject that is tantamount to

an arrest, and can be accomplished without the arresting officer actually telling the

suspect that he is under arrest. State v. Brooks, 5th Dist. Knox No. 06 CA 000024,

2007-Ohio-4025, ¶15.

{¶12} In Brooks, the defendant argued that her conviction of resisting arrest was

against the manifest weight of the evidence because the officer only told her she was

under arrest after she was handcuffed, and she was not resisting at that point in time.

In rejecting her argument, this Court held:

{¶13} “Any ordinary person who is pulled from his or her vehicle, placed on the

ground and handcuffed would understand that he or she is being placed under arrest.

Appellant did not need to hear the magic words ‘you're under arrest’ in order to

understand that she was, in fact, under arrest.” Id. at ¶19.

{¶14} In the instant case, Redanty testified that she heard the words “you’re

under arrest” around the time that appellant lunged at the officers, when one of the

officers attempted to grab his arm. She testified that he continued to squirm during this
Licking County, Case No. 15-CA-29 5

time. Lemons did not remember hearing Gross tell appellant he was under arrest, but

testified that he is hard of hearing and did hear Gross tell appellant to “stop resisting”

several times while they struggled to subdue appellant. Gross testified, “I told him to

stop; to sit down. He refused to comply, so at that point we attempted to take him into

custody and place him in handcuffs and he kept twisting and pulling away. That’s when

I told him he was under arrest and he continued to pull away and resist, and we took the

legs out from underneath him and just laid him on the floor gently, and once we got him

in handcuffs, he stopped resisting.” Tr. 56. The testimony presented in the instant case

provided sufficient evidence to support the court’s finding that appellant was informed

that he was under arrest, and continued resisting after being so informed.

{¶15} Further, based on this court’s reasoning in Brooks, an ordinary person in

appellant’s position would have understood that he was under arrest. Appellant moved

toward Gross in a combative manner with his fists clenched. Officer Lemons attempted

to restrain him by putting him in a bear hug, and Officer Gross attempted to handcuff

him. The officers took his legs out from under him and placed him on the ground.

Appellant continued to struggle and resist until after the handcuffs were finally placed on

him.
Licking County, Case No. 15-CA-29 6

{¶16} The court’s finding of delinquency by reason of resisting arrest is

supported by sufficient evidence. The assignment of error is overruled. The judgment

of the Licking County Common Pleas Court, Juvenile Division, is affirmed. Costs are

assessed to appellant.

By: Baldwin, J.

Farmer, P.J. and

Delaney, J. concur.