State v. Parsons

[Cite as State v. Parsons, 2016-Ohio-8109.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2015-P-0084
- vs - :

LARRY E. PARSONS, JR., :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. K
2014 CRB 1547.

Judgment: Affirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Dawn M. King, 209 South Main Street, Suite 801, Akron, OH 44308 (For Defendant-
Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Larry E. Parsons, appeals his convictions in the

Portage County Municipal Court, Kent Division, as well as the trial court’s denial of his

Motion to Suppress. The issues to be determined by this court are whether a stop was

properly conducted when the defendant violated a traffic law and the officer suspects an

individual may be in danger, and whether a defendant is properly convicted of Resisting

Arrest based on an arrest for Obstructing Official Business where he prevented police
from entering a home to conduct a warrantless arrest of another person. For the

following reasons, we affirm the decision of the court below.

{¶2} On August 15, 2014, Complaints were filed in the Portage County

Municipal Court, Kent Division, asserting that Parsons had committed the following

offenses: Resisting Arrest, a misdemeanor of the second degree, in violation of R.C.

2921.33(A); two counts of Aggravated Menacing, misdemeanors of the first degree, in

violation of R.C. 2903.21(A); and Obstructing Official Business, a misdemeanor of the

second degree, in violation of R.C. 2921.31(A). The grand jury subsequently charged

him with a second count of Obstructing Official Business.

{¶3} Parsons filed a Motion to Suppress on October 29, 2014. A hearing on

the Motion was held on December 18, 2014.1

{¶4} Officer Steven Gyoker, a police officer with the Brimfield Township Police

Department, testified that on August 14, 2014, at 8:48 p.m., he observed a male and a

female, later identified as Larry Parsons and Angelia Caponi, walking down the side of

the road, with the male appearing to be holding up the female, who was having difficulty

walking. Officer Gyoker began to follow them and observed them walking down the

middle of the road. He stopped and yelled at them to come back to his vehicle, wanting

to check if Caponi had a medical issue or if “she was being held against her will.” They

continued walking and he again followed them and requested that they stop. After the

two reached their residence, Caponi started to enter and Officer Gyoker told her to

come back, that he needed to see her identification, and that if she did not comply, she

would be arrested. He tried to enter the home but was blocked by Parsons, who put his

1. The hearing also involved Motions to Suppress of the other defendants in this matter, Angelia Caponi
and Gina Caponi.

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body in front of him and “kind of shoved [him] back.” Parsons was placed under arrest

for obstruction.

{¶5} Officer Matthew Kennedy, a patrolman with the Brimfield Police

Department, arrived at the scene to assist Officer Gyoker, and saw him having difficulty

with Parsons. Officer Gyoker asked Officer Kennedy to arrest another individual

present, Christopher Bisard, who was “struggling” with Caponi inside the house and

shoving her. He subsequently arrested them both.

{¶6} The court issued a Judgment Entry on February 5, 2015, in which it

denied the Motion to Suppress. The court made factual findings, in pertinent part, that

Officer Gyoker observed Parsons assisting Caponi, she had difficulty walking, and

Officer Gyoker exited his vehicle, asking them to stop so he could investigate if Caponi

was okay. The court also found that the two did not stop and “continued to walk down

the street.” The court concluded that Officer Gyoker had “reasonable grounds” to order

Parsons and Caponi to stop “not only for investigative purposes to determine if Angelia

Caponi was ill or in need of assistance, but also because both [Parsons and Caponi]

were walking down the middle of the street in violation of law.”

{¶7} A trial was held for Parsons and Gina and Angelia Caponi, on September

9 and 10, 2015. The following pertinent testimony was presented:

{¶8} Officer Gyoker testified to the same circumstances outlined above

regarding his observations of Caponi being held up by Parsons, the two refusing to

stop, and that they walked in the middle of the road. After they walked into the front

yard of the residence where they lived, Parsons was yelling that Officer Gyoker was

trespassing and violating the law, and was acting “agitated.” When Officer Gyoker

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approached the house to arrest Caponi, Parsons stuck his arm in front of him and

“pushes [him] back,” preventing him from entering the home. Officer Gyoker described

that Parsons “grab[bed] [his] arm, shove[d] it away.”

{¶9} Officer Gyoker informed Parsons that he was under arrest, based on

obstructing him from making contact with Caponi. Parsons “tense[d] up his body” and

pulled away while Officer Gyoker was trying to handcuff him. Another individual, Gina

Caponi, exited the house and tried to get between Officer Gyoker and Parsons, grabbed

at his belt, and was knocking his hand with the taser away.

{¶10} Parsons did not comply with verbal commands and continued to call

Officer Gyoker names after being handcuffed. Parsons threatened him while in the car,

stating that he would “be sorry.” After he was placed in a holding cell, Parsons stated

that Officer Gyoker “better hope [he] never get[s] out” and he was “going to find out

where [Officer Gyoker] lives.”

{¶11} Officer Kennedy received a call at around 9:00 p.m. on August 14 to assist

Officer Gyoker. When he arrived, he witnessed Parsons, who had already been

handcuffed, struggling with Officer Gyoker. He saw Officer Gyoker also struggling to

handcuff Gina Caponi while trying to hold Parsons back. Officer Gyoker said “arrest

them” and pointed to the front door, where, inside the house, Officer Kennedy observed

Angelia Caponi and Christopher Bisard fighting. Bisard prevented Caponi from

“get[ting] out of the door of the outside.” (sic). Officer Kennedy arrested Bisard and then

Caponi for interfering with that arrest.

{¶12} At the conclusion of the State’s case, Parsons moved for acquittal

pursuant to Crim.R. 29(A). The court granted the motion as to one count of Obstructing

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Official Business and for Aggravated Menacing as it related to Officer Kennedy,

amended the Aggravated Menacing charge as to Officer Gyoker to misdemeanor

Menacing, and denied the motion as to the remaining offenses.

{¶13} Bisard, Caponi’s son and Parsons’ nephew, testified for the defense. After

dinner the night of the incident, he believed Caponi and Parsons were outside their

home working in the garden. While he was inside, he heard noise, looked outside, and

saw Parsons being “tackled from behind” by Officer Gyoker. He began to videotape the

incident. He observed Officer Gyoker telling Parsons to “stop resisting” and Parsons

exclaiming that he was not, keeping his hands behind his back the whole time.

{¶14} On September 11, 2015, the jury found Parsons guilty of Menacing and

Resisting Arrest and not guilty of Obstructing Official Business. The court issued a

Judgment memorializing the verdict on September 14, 2015.

{¶15} Following a sentencing hearing, the court issued a November 17, 2015

Journal Entry, sentencing Parsons to serve 30 days in jail, as well as pay a $250 fine.

{¶16} Parsons timely appeals and raises the following assignments of error:

{¶17} “[1.] The trial court committed prejudicial error by denying Parsons’

motion to suppress based upon a finding that the police officer ha[d] reasonable

grounds to stop Parsons[] and thereby violating appellant’s Fourth and Fourteenth

Amendment rights and Article I, Section 14 of the Ohio Constitution against

unreasonable searches and seizures * * *.

{¶18} “[2.] The trial court erred as a matter of law in denying Parsons’ Crim.R.

29 Motion because the state failed to establish on the record sufficient evidence to

support the charges levied against [Parsons] in violation of the due process clause of

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the 14th Amendment to the U.S. Constitution and Article I, Sections 1, 10, & 16 of the

Ohio Constitution.

{¶19} “[3.] Parsons’ convictions are against the manifest weight of the evidence

possession in violation of the due process clause of the 14th Amendment to the U.S.

Constitution and Article I, Sections 1, 10, & 16 of the Ohio Constitution.” (sic)

{¶20} “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. At a suppression hearing, “the trial court is best able to decide facts and evaluate

the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833

N.E.2d 1216, ¶ 41. “Its findings of fact are to be accepted if they are supported by

competent, credible evidence, and we are to independently determine whether they

satisfy the applicable legal standard.” Id., citing Burnside at ¶ 8; State v. Wysin, 11th

Dist. Portage No. 2013-P-0037, 2013-Ohio-5363, ¶ 27 (“[o]nce the appellate court

accepts the trial court’s factual determinations, the appellate court conducts a de novo

review of the trial court’s application of the law to these facts”) (citation omitted).

{¶21} The Fourth Amendment to the United States Constitution provides for

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” “[W]henever a police officer accosts an

individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v.

Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶22} An officer who conducts a “Terry stop,” or an investigatory stop, “must be

able to ‘point to specific and articulable facts, which taken together with rational

inferences with those facts, reasonably warrant an intrusion.’” In re Jackson, 11th Dist.

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Portage No. 2006-P-0119, 2007-Ohio-4955, ¶ 15, citing Terry at 21. Such a stop “must

be limited in duration and scope and can last only as long as is necessary for an officer

to confirm or dispel his suspicions that criminal activity is afoot.” State v. Holnapy, 194

Ohio App.3d 444, 2011-Ohio-2995, 956 N.E.2d 897, ¶ 34 (11th Dist.) “The reasonable

suspicion necessary” to conduct an investigatory stop “involves a consideration of ‘the

totality of the circumstances.’” Maumee v. Weisner, 87 Ohio St.3d 295, 299, 720

N.E.2d 507 (1999), citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66

L.Ed.2d 621 (1981).

{¶23} Parsons argues that his Motion to Suppress should have been granted

because there were no grounds, other than a “hunch,” to conduct an investigatory stop

pursuant to Terry and Officer Gyoker “simply had no legal right to stop and question * * *

Parsons.”2

{¶24} As an initial matter, it is not entirely clear to what extent Parsons was

“stopped,” since he did not respond to Officer Gyoker’s request to stop and was

arrested immediately after he tried to prevent Officer Gyoker from following Caponi into

the home to arrest her, an event that occurred without Officer Gyoker ever successfully

stopping or meaningfully interacting with the two individuals. His mere decision to

approach Parsons and attempt to interact with and obtain information from him does not

automatically equate to a finding that a stop/seizure occurred for the purposes of the

Fourth Amendment. See State v. Phipps, 11th Dist. Portage No. 2006-P-0098, 2007-

Ohio-3842, ¶ 19 (“the act of a police officer approaching an individual in a parked

2. The State raises various arguments as to the validity of the arrest and entry into the home. Parsons’
first assignment of error argues only that the stop was unconstitutional and should be suppressed. To the
extent that the other matters are relevant for determining whether Parsons’ conviction for Resisting Arrest
was supported by the evidence, this will be addressed in the remaining assignments of error.

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vehicle and asking him questions does not constitute a ‘seizure’ for the purposes of the

Fourth Amendment”). Regardless, even presuming a stop of Parsons briefly occurred

prior to the arrest, there were proper grounds for such a stop.

{¶25} An investigative stop is permissible under Terry when there is reasonable

suspicion the individual is currently engaged in criminal activity. Terry v. Ohio, 392 U.S.

at 21. Reasonable suspicion to stop an individual has been found to exist in cases

involving misdemeanor traffic offenses, including where pedestrians are walking in the

middle of a roadway. State v. Shorts, 9th Dist. Lorain No. 11CA009965, 2011-Ohio-

6202, ¶ 10-18; State v. Moorer, 10th Dist. Franklin No. 14AP-224, 2014-Ohio-4776, ¶

21. Officer Gyoker testified at the suppression hearing that he saw Parsons and Caponi

“walking up the middle of the road once they turned onto Neville [the street where the

residence was located].” This would be a violation of R.C. 4511.50(C), which requires

pedestrians to walk “as near as practicable to an outside edge of the roadway.” This

provided proper grounds to conduct a stop of Parsons.

{¶26} In addition, Officer Gyoker testified that he was concerned about Caponi’s

safety, noting both that he was not sure if she was being held against her will or if there

was a medical issue, expressing concern that she “was having a great deal of difficulty

walking,” as well as that they were walking up the middle of the road with her in this

state. Under the community-caretaking/emergency aid exception to the Fourth

Amendment, which has been applied to protect those in the community, police officers

may “stop a person to render aid if they reasonably believe that there is an immediate

need for their assistance to protect life or prevent serious injury.” State v. Dunn, 131

Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, syllabus. Given that Officer Gyoker

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did testify to concerns, which the trial court believed in its role as the fact-finder, this

concern for Caponi’s safety would provide the grounds for a temporary, noninvasive

stop of the pair to determine that Caponi was safe. State v. Barzacchini, 2014-Ohio-

3467, 17 N.E.3d 1186, ¶ 22 (5th Dist.) (the officer’s “generalized concern for safety

could certainly have justified him in approaching the car and making contact with their

occupants in a nonintrusive manner”).

{¶27} Parsons also argues that he was not required to provide identification to

Officer Gyoker, pursuant to R.C. 2921.29, which requires an individual to provide certain

identifying information when an officer reasonably believes that person has committed

or witnessed a criminal offense. This has no bearing on whether the stop was valid.

R.C. 2921.29 merely sets forth that it is a crime to fail to provide it under certain

circumstances, an offense for which Parsons was not charged. Even if Parsons’ failure

to provide identification was not a crime, Gyoker was still permitted to ask for

identification, especially since there were valid grounds for the stop. See also R.C.

2935.26(A)(2) (an officer issuing a citation for a minor misdemeanor may arrest an

individual who “cannot or will not offer satisfactory evidence of his identity”).

{¶28} The first assignment of error is without merit.

{¶29} In his second and third assignments of error, Parsons argues that his

convictions were against the sufficiency and manifest weight of the evidence. Primarily,

he asserts that he was not lawfully arrested for Obstructing Official Business, since he

stopped Officer Gyoker from unlawfully entering his home, and, thus, he could not be

convicted of Resisting Arrest.

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 {¶30} Pursuant to Crim.R. 29(A), “[t]he court on motion of a defendant * * *, after

the evidence on either side is closed, shall order the entry of a judgment of acquittal * * *

if the evidence is insufficient to sustain a conviction of such offense or offenses.” In

reviewing the sufficiency of the evidence, an appellate court must “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.” State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “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.” Id. “In essence, sufficiency is a test of

adequacy.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶31} In contrast, manifest weight of the evidence “addresses the evidence’s

effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court

asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An

appellate court considering whether a verdict is against the manifest weight of the

evidence must consider all the evidence in the record, the reasonable inferences, the

credibility of the witnesses, and whether, “in resolving conflicts in the 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.” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

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 {¶32} Parsons was convicted of Resisting Arrest. Pursuant to R.C. 2921.33(A):

“No person, recklessly or by force, shall resist or interfere with a lawful arrest of the

person or another.” As noted in the statute, an element of the offense of resisting arrest

is that the underlying arrest must be lawful. However, “the state need not prove that the

defendant was guilty of the offense for which the arrest is made to uphold a subsequent

conviction for resisting arrest.” State v. Wooden, 11th Dist. Portage No. 2003-P-0035,

2004-Ohio-5514, ¶ 32. Instead, “[t]he arresting officer must only have probable cause

to believe that the defendant’s conduct, for which the arrest is being made, amounted to

an offense.” Id.

{¶33} Parsons contends that the Obstructing Official Business charge, for which

he was acquitted, was improper, and thus, the lack of a lawful arrest invalidates his

conviction for Resisting Arrest.

{¶34} Regarding Obstructing Official Business, R.C. 2921.31(A) provides: “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 the public official’s official

capacity, shall do any act that hampers or impedes a public official in the performance

of the public official’s lawful duties.”

{¶35} Parsons’ argument centers upon the assumption that he should not have

been arrested for preventing Officer Gyoker from entering his home to arrest Caponi

since such an entry was not justified under the law or part of Gyoker’s lawful duties.

{¶36} The Ohio Supreme Court has held that “[w]hen officers, having identified

themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest,

the police may enter without a warrant, regardless of whether the offense for which the

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suspect is being arrested is a misdemeanor.” Middletown v. Flinchum, 95 Ohio St.3d

43, 765 N.E.2d 330 (2002), syllabus. This holding applies in cases involving minor

misdemeanors. State v. Lam, 2d Dist. Montgomery No. 25336, 2013-Ohio-505, ¶ 19,

24.

{¶37} In this case, as noted above, there is an indication that Caponi committed

at least one offense due to her conduct of walking in the street. It is unclear, however,

specifically what Officer Gyoker intended to arrest Caponi for, as he indicated in his

testimony that, as she gets “into the front door” he told her “she is under arrest if she

does not come out.” Even if Officer Gyoker had no legally valid grounds to enter the

home and was not in “hot pursuit,” Parsons’ conduct still justified an arrest for

obstruction. Ohio courts have held that when an unlawful entry to a home occurs,

“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. Stevens, 5th Dist. Morgan No. 07-CA-0004, 2008-

Ohio-6027, ¶ 37, citing State v. Pembaur, 9 Ohio St.3d 136, 138, 459 N.E.2d 217

(1984); State v. Burns, 2d Dist. Montgomery No. 22674, 2010-Ohio-2831, ¶ 19. In this

case, a thorough review of the facts outlined above does not demonstrate bad faith in

attempting to enter the home to arrest Caponi and Parsons was not permitted to take it

upon himself to prevent Officer Gyoker from doing so.

{¶38} Given that the arrest was valid, and considering the testimony presented,

the Resisting Arrest conviction was supported by the evidence. Officer Gyoker testified

that after he told Parsons he was under arrest and began to place him in handcuffs,

Parsons “tense[d] up his body,” and was “trying to pull away from [Officer Gyoker’s] grip

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as well.” He also failed to comply with commands to the extent that Officer Gyoker

threatened to use his taser. This conduct was sufficient to support a conviction for

Resisting Arrest. State v. Kornilov, 11th Dist. Portage No. 2012-P-0029, 2012-Ohio-

6218, ¶ 33. Parsons also provides no argument in his brief that he did not resist and

points to no evidence that would render his conviction against the weight of the

evidence, given the foregoing testimony.

{¶39} We note that Parsons was also convicted of Menacing. While he

generally states that his “convictions” were against the weight and sufficiency of the

evidence, he provides no argument relating to his Menacing conviction, which arose

from his conduct in threatening Officer Gyoker after his arrest. It is unclear from his

brief if he even intended to raise an error as to this conviction.3 Thus, we decline to

address this issue since Parsons provided no argumentation, as required by App.R.

12(A)(2) and 16(A).

{¶40} The second and third assignments of error are without merit.

{¶41} For the foregoing reasons, the judgment of the Portage County Municipal

Court, Kent Division, is affirmed. Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.

3. Parsons takes issue with his “convictions” but addresses only Resisting Arrest and Obstructing Official
Business, describing the elements necessary “to find Parsons is guilty” of the Obstructing offense.
Parsons was not convicted of Obstructing Official Business and, as noted above, did not need to be found
guilty to be convicted of Resisting Arrest.

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