State v. Lowe

[Cite as State v. Lowe, 2018-Ohio-3916.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO : APPEAL NOS. C-170494
C-170495
Plaintiff-Appellee, : C-170498
C-170505
vs. : TRIAL NOS. 17CRB-20692A
17CRB-20692B
JAVONTE LOWE, : 17CRB-20710
17CRB-24718
Defendant-Appellant. :

: O P I N I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: September 28, 2018

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Ashley
Melson, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Presiding Judge.

{¶1} In these consolidated appeals, defendant-appellant Javonte Lowe

challenges the weight and sufficiency of the evidence adduced to support his

convictions for criminal damaging, menacing, and resisting arrest, resulting from a

violent confrontation with his former girlfriend. During the trial of these charges,

Lowe was found in direct, criminal contempt of court. He has also challenged that

conviction.

{¶2} In the early evening of July 28, 2017, Lowe phoned his former

girlfriend, Kelsey Nelson. The two had lived together in Nelson’s Cincinnati

apartment for a one-month period. A dispute over Nelson’s brother had ended the

relationship.

{¶3} Standing outside the apartment, Lowe demanded that Nelson come

outside. Lowe threatened, “Bitch. I’ll beat your ass.” Nelson, afraid for her safety,

stayed inside. Through her window, she took a photograph of Lowe brandishing a

rock while he threatened her on the phone. He also made an obscene finger gesture

to Nelson. According to Nelson, Lowe then violently kicked her door, damaging it

below the lock. Nelson later took a photograph of the damaged door.

{¶4} Though he stated that he had come with roses to apologize to Nelson,

Lowe admitted that he had brandished the rock and made the gesture. Lowe later

offered that perhaps brandishing the rock was only a “coping skill” for his “mental

health issues.” But Lowe denied threatening Nelson or damaging the bottom of the

door. His friend, who had driven him to Nelson’s apartment, later testified that he

had not seen any damage to the bottom of the door.

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{¶5} Nelson summoned the police, who arrived shortly after Lowe’s

departure. Cincinnati Police Officer Jay Stephens came to Nelson’s apartment after

the responding officers had taken Nelson’s statement. They indicated that Lowe

would be charged with criminal damaging and menacing. After receiving a

description of Lowe, Officer Stephens began a search of the immediate area in his

marked police cruiser.

{¶6} Officer Stephens was wearing a body camera. The video from the

camera provides a precise timeline of the subsequent events. Some five minutes into

his search, Officer Stephens returned to the apartment parking lot. Nelson informed

him that Lowe was nearby and had removed his shirt.

{¶7} The officer drove around the area and returned again to talk to Nelson,

who had begun a cellular telephone call with Lowe. Nelson used the audio speaker

on the phone and their conversation was recorded by Officer Stephens’ body cam.

Lowe cursed Nelson for calling the police, telling her that “I didn’t think you was one

of them.” The two argued until Officer Stephens joined their conversation. He

addressed Lowe, “Hey, man. Hey, Javonte,” identified himself as a police officer, and

informed Lowe that warrants had been issued for his arrest. In a storm of profanity,

Lowe stated that he wasn’t going to turn himself in and that the police would have to

chase him. Lowe hung up and Officer Stephens renewed his search in the nearby

streets.

{¶8} Three and one-half minutes later, Officer Stephens spotted a person

walking along Winneste Avenue. Though evening was falling, with the aid of light

cast by nearby streetlights, Officer Stephens identified Lowe as the walker. Officer

Stephens stopped his cruiser, exited from the vehicle, and yelled, “Hey, man.” Lowe

fled through backyards. The body cam recorded Officer Stephens’ words but did not

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show Lowe. Despite a long foot chase, Officer Stephens was unable to catch Lowe.

The record reflects only that Lowe was taken into custody at some later time.

{¶9} The menacing and criminal-damaging charges were tried to the bench.

Nelson, Lowe, and his driver each testified. At the beginning of his testimony, Lowe

admitted that he had a prior conviction for felonious assault and that he was on

“parole” for that offense. At the conclusion of the trial, the court declared that Lowe

was not a credible witness, and entered findings of guilt on both charges.

{¶10} The court then heard the resisting-arrest charge. Officer Stephens

testified that he had spotted Lowe from a distance of ten to 15 feet away. The trial

was continued while the body cam video was obtained. The video was played for the

court. Lowe did not testify. The trial court again found Lowe guilty.

{¶11} During the sentencing hearing, and before sentencing was completed,

Lowe engaged in an expletive-laden tirade directed at Officer Stephens and the trial

court. For that outburst, Lowe was found guilty of contempt of court and sentenced

to an additional 180 days’ incarceration. The court also imposed 60- and 26-day

periods of confinement for the criminal-damaging, menacing, and resisting-arrest

criminal offenses. In each instance, the court credited Lowe with 26 days already

served, and imposed $100 fines. The court also ordered restitution for the damage

caused to the door. Lowe brought these appeals.

I. Sufficiency- and Weight-of-the-Evidence Claims

{¶12} In his first assignment of error, Lowe challenges the weight and the

sufficiency of the evidence adduced to support his convictions for criminal damaging,

menacing, and resisting arrest. In reviewing Lowe’s sufficiency-of-the-evidence

challenges, we must determine, after viewing the evidence in a light most favorable

to the state, whether a rational trier of fact could have found the elements of the

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crimes proven beyond a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). In contrast, when reviewing the weight-of-the-

evidence challenges, we must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trial court, sitting as the trier of

fact, clearly lost its way and created a manifest miscarriage of justice. See id. at 387.

a. The menacing and criminal-damaging offenses

{¶13} In the case numbered 17CRB-20692A, Lowe was convicted of criminal

damaging. R.C. 2909.06(A)(1) defines the offense and provides that no person shall

knowingly cause physical harm to any property of another without the other person’s

consent. In the case numbered 17CRB-20692B, Lowe was convicted of menacing.

Under R.C. 2903.22(A), “[n]o person shall knowingly cause another to believe that

the offender will cause physical harm to the person or property of the other person *

* * .”

{¶14} Our review of the entire record fails to persuade us that the trial court,

acting as the trier of fact, clearly lost its way and created such a manifest miscarriage of

justice that the convictions must be reversed and a new trial ordered. See Thompkins at

387. We can find no basis in the record to conclude that this is “an exceptional case”

in which the trier of fact lost its way. See State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

{¶15} The court was entitled to reject Lowe’s explanation that he did not kick

or throw a rock at Nelson’s door, that any damage to the door existed before his

arrival at the apartment, and that he had not threatened Nelson but had merely

returned to her apartment to apologize and to recover his possessions. The state

presented ample evidence to support the convictions, including Nelson’s testimony

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that Lowe had appeared outside her apartment, had yelled for her to come outside,

had brandished a rock and threatened to assault her, and had kicked her door,

damaging it below the lock as reflected in the photograph admitted into evidence.

{¶16} As the weight to be given the evidence and the credibility of the

witnesses were for the trial court, sitting as the trier of fact, to determine, in resolving

conflicts and limitations in the testimony, the court could have found that Lowe had

knowingly caused physical harm to the apartment door and had knowingly caused

Nelson to believe that he would cause her physical harm when he yelled, “Bitch. I’ll

beat your ass,” and brandished the rock. See R.C. 2909.06(A)(1) and 2903.22(A);

see also State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.

{¶17} Here, the record also reflects substantial, credible evidence from which the

trial court could have reasonably concluded that all elements of the charged crimes of

criminal damaging and menacing had been proved beyond a reasonable doubt. See

Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.

b. The resisting-arrest offense

{¶18} In the case numbered 17CRB-20710, Lowe was convicted of

recklessly resisting his own arrest when he fled from Officer Stephens. No person,

either recklessly or by force, is permitted to resist or interfere with his own lawful

arrest. R.C. 2921.33(A). An arrest occurs when the following four requisite elements

are present: (1) an intent to arrest, (2) under a real or pretended authority, (3)

accompanied by an actual or constructive seizure or detention of the person, (4)

which is so understood by the person arrested. See State v. Carroll, 162 Ohio App.3d

672, 2005-Ohio-4048, 834 N.E.2d 843, ¶ 7-8 (1st Dist.), citing State v. Darrah, 64

Ohio St.2d 22, 26, 412 N.E.2d 1328 (1980).

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{¶19} The key element challenged by Lowe in this appeal is whether a lawful

arrest had occurred. Lowe argues that the state failed to adduce evidence

demonstrating that Officer Stephens had an intent to arrest Lowe, and that a

reasonable person in Lowe’s position would have understood that he was under

arrest when a uniformed police officer exited from a police cruiser and yelled, “Hey,

man.”

{¶20} This court has long held that a person who simply flees when a police

officer approaches and yells, “Halt,” has not been arrested, where the person had no

knowledge that a warrant for his arrest had been issued. See, e.g., State v. Bailey, 1st

Dist. Butler No. CA 75-08-0077, 1977 WL 199625, *1 (Jan. 5, 1977); see also Carroll

at ¶ 14. But here, examining the evidence in a light most favorable to the state, we

hold that a rational trier of fact could have found the elements of resisting arrest

beyond a reasonable doubt.

{¶21} First, Officer Stephens testified that he knew that the officers

investigating the menacing and criminal-damaging offenses had issued warrants for

Lowe’s arrest. Seven minutes before Officer Stephens spotted Lowe, he had told

Nelson, “If we find [Lowe], we’ll take him to jail.” Based on those statements, it is

clear that the state adduced sufficient evidence that Officer Stephens had probable

cause to arrest Lowe and that he indented to arrest Lowe on sight. See State v.

Jackson, 1st Dist. Hamilton No. C-990371, 2000 WL 376420, *1 (Apr. 14, 2000);

compare Carroll, 162 Ohio App.3d 672, 2005-Ohio-4048, 834 N.E.2d 843, at ¶ 17

(distinguishing Jackson, and noting that where an arresting officer had no basis to

arrest a defendant save that he was running from a brother officer, there was not

sufficient evidence of resisting arrest).

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{¶22} Next, a reasonable person in Lowe’s position would have understood

that he was under arrest when Officer Stephens exited from his police cruiser and

yelled, “Hey, man.” Lowe knew that warrants had been issued for his arrest and that

the police were looking for him. Compare Carroll, 162 Ohio App.3d 672, 2005-

Ohio-4048, 834 N.E.2d 843, at ¶ 16. When Nelson was talking with Lowe over her

cell phone’s speaker, Officer Stephens had addressed Lowe, “Hey, man. Hey

Javonte,” and identified himself as a police officer. Officer Stephens told Lowe that

“You got some warrants. You need to take care of them. * * * You got warrants. You

need to turn yourself in.” In response, Lowe challenged Officer Stephens that he

would have to be caught.

{¶23} Less than four minutes later, Officer Stephens saw Lowe walking along

the street. Officer Stephens was in uniform and had exited from a marked police

cruiser. He yelled, “Hey, man,” and Lowe fled.

{¶24} Considering these facts, where proof existed that Lowe had been

informed only moments before that the police were looking specifically for him to

execute warrants for his arrest, and that his flight amounted to an obvious

interference with his apprehension, we hold that the record reflects substantial,

credible evidence from which the trial court could have reasonably concluded that each

element of resisting arrest had been proved beyond a reasonable doubt, including that the

police had an intent to arrest Lowe and that Lowe knew of that intention. See R.C.

2921.33(A); see also Carroll, 162 Ohio App.3d 672, 2005-Ohio-4048, 834 N.E.2d

843, at ¶ 8; Thompkins, 78 Ohio St.3d 380 at 386, 678 N.E.2d 541.

{¶25} Moreover, our review of the record fails to persuade us that the trial

court clearly lost its way and created a manifest miscarriage of justice in convicting

Lowe of resisting arrest. The state presented ample evidence that Lowe had resisted

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arrest, including the testimony of Officer Stephens and the body cam recording. As

the weight to be given the evidence and the credibility of the witnesses was primarily

for the trier of fact to determine, the trial court could properly have found that Lowe

had recklessly resisted or interfered with his own lawful arrest, and was thus guilty of

resisting arrest under R.C. 2921.33(A). See Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541. The first assignment of error is overruled.

II. Lowe’s Contumacious In-Court Behavior

{¶26} In his second assignment of error, Lowe argues that the trial court

erred in holding him in contempt and in sentencing him to 180 days of confinement

as a sanction for contempt.

{¶27} Prior to Lowe’s outburst at sentencing, the trial court had warned him

against making disparaging remarks about Officer Stephens. During the trial of the

resisting-arrest charge, immediately after the officer’s in-court identification of

Lowe, the trial court was forced to interrupt the proceedings and warn Lowe’s

counsel that “Your client is mouthing * * * threats to this officer, and I will not stand

for it in this courtroom.”

{¶28} Nevertheless, Lowe persisted in the proscribed behavior. As the trial

judge was imposing sentence on the menacing offense, Officer Stephens heard Lowe

mutter something and asked what he had said.

{¶29} Lowe responded, “I called you a bitch.” The trial court immediately

intervened.

THE COURT: You are in contempt.

THE DEFENDANT: Fuck you.

THE COURT: You are in contempt.

THE DEFENDANT: I’m good. I’m good.

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THE COURT: I’m sentencing you to six months in jail.

THE DEFENDANT: You a bitch too. You a bitch ass police

officer. You ain’t never seen me run.

THE COURT: Do you want a year?

THE DEFENDANT: I’m already doing a year.

THE COURT: I’m ready to give you a year.

THE DEFENDANT: I’m on parole. I been in prison. What the

fuck you talking about? You ain’t seen nothing. What the fuck you

talking about?

{¶30} The trial judge then left the bench and the disrupted proceedings were

recessed. When the trial judge returned to the bench, he imposed a 180-day term of

confinement and remitted a $100 fine in response to Lowe’s “prolonged profanity

toward the judge including threats.”

{¶31} On appeal, Lowe asserts that his initial comment at sentencing, calling

Officer Stephens a “bitch,” did not disrupt the courtroom proceedings, but rather

Officer Stephens’ request that Lowe repeat his comment prompted and justified

Lowe’s outburst. He also claims that the trial court’s sanction was excessive.

{¶32} Contempt of court is “conduct which brings the administration of

justice into disrespect” and “which tends to * * * obstruct a court in the performance

of its functions.” Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15,

520 N.E.2d 1362 (1988). The power to punish contumacious conduct—to ensure the

effective administration of justice, to secure the dignity of the court, and to affirm the

supremacy of the law—is inherent in a trial court, as well as derived from statute.

See Denovchek at 15.

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{¶33} R.C. 2705.01 empowers a court to “summarily punish” direct contempt.

Direct contempt is misbehavior that is committed in the presence of the court in its

judicial function, and that obstructs the orderly administration of justice. See State v.

Adams, 2014-Ohio-2728, 14 N.E.3d 1071, ¶ 12 (1st Dist.); see also State v. Webster, 1st

Dist. Hamilton No. C-070027, 2008-Ohio-1636, ¶ 56.

{¶34} The sanction for direct contempt can be criminal in nature. Criminal

contempt involves a punitive sanction imposed for an already completed act of

disobedience, and designed to vindicate the authority of the court. See Denovchek at 16;

see also State v. Kilbane, 61 Ohio St.2d 201, 204-205, 400 N.E.2d 386 (1980). Criminal

contempt proceedings require proof of guilt beyond a reasonable doubt. See In re

Thomas, 1st Dist. Hamilton No. C-030429, 2004-Ohio-373, at ¶ 5. Thus, to find direct,

criminal contempt a court need only determine, beyond a reasonable doubt, that the

contemnor’s actions obstructed the administration of justice. Adams at ¶ 15.

{¶35} Here, Lowe’s actions constituted direct, criminal contempt of court. Lowe

made his repugnant statements in open court, during court proceedings, and in the

presence of the trial judge. Despite being previously warned not to make threats, Lowe

engaged Officer Stephens again. This second outburst occurred while the court was

imposing sentence on Lowe’s misdemeanor offenses. See R.C. 2929.22; see also

Crim.R. 32. Lowe’s profanity-laced tirade was not simply made in response to

Officer Stephens but was also directed at the trial court. The outburst disrupted the

proceedings, necessitating a recess. The record demonstrates, beyond a reasonable

doubt, that Lowe’s actions obstructed the administration of justice in the municipal

court. See R.C. 2705.01; see also Adams at ¶ 15. The trial court did not err in finding

Lowe guilty of direct, criminal contempt.

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{¶36} Lowe next challenges the length of the 180-day sentence imposed for

his contumacious behavior. He notes that the sanction was well in excess of the 30-

day limit for a first contempt offense identified in R.C. 2705.05(A)(1). But as Lowe

acknowledges, R.C. 2705.05 does not apply to limit the punishment that a court may

impose for direct contempt. See Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386, at

paragraph one of the syllabus. Rather, an appellate court will not reverse the

punishment imposed for direct contempt absent an abuse of discretion. See id. at

207; see also Bank One Trust Co. v. Scherer, 176 Ohio App.3d 694, 2008-Ohio-2952,

893 N.E.2d 542, ¶ 47 (10th Dist.).

{¶37} Here, the court imposed a 180-day jail sentence for the contempt

finding. The trial court found that Lowe interfered with the orderly administration

of justice and made threats to the court. Lowe had disobeyed the court’s prior

admonition to refrain from disparaging a state’s witness. We cannot say that this

sentence was not “reasonably commensurate with the gravity of the offense,” and

thus was an abuse of discretion. See Kilbane at paragraph one of the syllabus; see

also Webster, 1st Dist. Hamilton No. C-070027, 2008-Ohio-1636, at ¶ 58 (affirming a

120-day sentence for multiple interruptions of court proceedings). The second

assignment of error is overruled.

Conclusion

{¶38} Having overruled each of Lowe’s two assignments of error, we affirm

the judgments of the trial court.

Judgments affirmed.

ZAYAS and MYERS, JJ., concur.

Please note:
The court has recorded its own entry on the date of the release of this opinion.

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