State v. Pears

[Cite as State v. Pears, 2020-Ohio-739.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2019-P-0077
- vs - :

DIANE IOLA PEARS, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No.
2018 CRB 1046 K.

Judgment: Affirmed.

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

Deano C. Ware, Deano C. Ware, P.C., 23332 Farmington Road, Suite 412,
Farmington Hills, MI 48332, and Brendon J. Kohrs, 3580 Darrow Road, Stow, OH
44224 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Diane Iola Pears, appeals her conviction in the

Portage County Municipal Court, Kent Division, for Obstructing Official Business. The

issue to be determined by this court is whether a charge of obstruction is supported by

sufficient evidence when testimony indicates that the defendant provided false

statements to police which delayed their investigation of another crime for a short period

of time. For the following reasons, we affirm the decision of the trial court.
 {¶2} On August 8, 2018, a Complaint was filed against appellant for violating

R.C. 2921.31(A), Obstructing Official Business, a misdemeanor of the second degree,

by lying to police officers investigating a car accident.

{¶3} A trial to the court was held on March 18, 2019, at which the following

pertinent testimony was presented:

{¶4} Officer Samantha McNulty and Officer Lindsey Llewellyn of the Kent

Police Department responded to a report of a car accident at an apartment complex

which occurred on August 3, 2017, at around 12:28 p.m. They encountered one driver,

Eric Nemeth, and discovered that the second driver, whose identity was unknown but

was later determined to be Tuesday Pears, had left the scene. Nemeth provided the

license plate number and description of the other vehicle as well as photographs of the

vehicle and driver. Nemeth told the officers that the driver had given him a phone

number and the name “Diane Harris.”

{¶5} Following the accident, Llewellyn spoke with the leasing agent of the

apartment complex where the accident occurred, found that the second vehicle was

registered via parking pass to appellant, an apartment resident, and confirmed the car

registration through the LEADS system. According to Llewellyn, the car registered to

appellant was located a couple hundred yards from appellant’s residence and a block

from where the accident occurred. McNulty called the phone number provided by

Nemeth to speak with “Diane” and a person named Tuesday answered the phone and

stated that she was not available.

{¶6} According to Llewellyn, appellant, Tuesday’s mother, subsequently called

and left her information with police dispatch on August 3 after Llewellyn and McNulty

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had ended their shift. On August 5, the officers returned appellant’s call at 8:23 a.m.

and inquired about the vehicle, seeking to obtain insurance and driver information for

the police report. McNulty testified that appellant “immediately stated that the car was

with her at her place of employment [on August 3], and it was – she only had one key to

the vehicle so there was no way that it would be involved in a motor vehicle accident.”

Appellant stated she had been at work from 6:30 a.m. to 5:00 p.m. on the date of the

accident. She denied the vehicle being in an accident and would not give information to

complete the police report or the name of her employer to confirm the location of

appellant and the car on August 3. Llewellyn agreed with McNulty’s characterization of

the phone call, adding that appellant had stated no one had borrowed her vehicle on

August 3.

{¶7} McNulty testified that further investigation performed on August 5 after

speaking with appellant showed that the photo taken by Nemeth matched a Facebook

photo of Tuesday Pears. Llewellyn, in contrast, stated that by the time they spoke with

appellant on the phone, she had already looked at the Facebook photo of Tuesday.

She later testified, however, at the time of the phone call she had not “confirmed though

that the identity of the driver was Tuesday Pears.” On August 5 at 9:59 a.m., McNulty

and Llewellyn went to the Pears’ residence to serve a hit-skip citation on Tuesday, but

appellant would not open the door.

{¶8} McNulty testified that appellant was charged with Obstructing Official

Business because she lied about the involvement of her vehicle in the accident which

impeded the officers’ investigation and prevented them from obtaining insurance and

driver information. Llewellyn testified that the dishonest statements by appellant

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delayed the investigation because they “weren’t able to positively identify her daughter

immediately after the crime had occurred.”

{¶9} Appellant testified that her daughter informed her of the accident on

August 3 and gave her the police department number to call. Appellant called around 3

p.m. and was told the officers investigating the case had left. She called again twice the

next day and was told the officers were not working that day.

{¶10} Appellant testified that when she spoke with Llewellyn and McNulty on

August 5 around 8:23 a.m., she was discombobulated and had taken allergy

medication. She did not recall discussing the car but only her work schedule, telling the

officers she was unclear of the dates she worked. She testified that she did not tell the

officers she had the car with her on August 3 but went over her work schedule to help

demonstrate she was not in the car accident. She stated that she felt more comfortable

going to the police station to discuss information such as the identity of her employer

and told this to the officers.

{¶11} On April 11, 2019, the court issued a Judgment Entry finding “beyond a

reasonable doubt” that appellant committed the offense of Obstructing Official Business.

On June 12, 2019, the court sentenced appellant to pay a $500 fine and serve 90 days

in jail. The jail time and $400 of the fine were suspended upon the conditions of

completing community service and committing no violations of the law for one year.

{¶12} Appellant timely appeals and raises the following assignments of error:

{¶13} “[1.] In its April 11, 2019, one paragraph judgment of entry, the Trial Court

failed to delineate either its ‘findings of fact or conclusions of law’ in finding the

Defendant-Appellant guilty of Obstructing Official Business, nor did the trial court state

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that in doing so, it had found the Defendant was guilty ‘beyond a reasonable doubt.’

Without its findings of fact and conclusions of law, this court is cannot [sic] ‘assume’ that

the court applied the correct standard or was presented with sufficient proofs to find the

Defendant-Appellant guilty beyond a reasonable doubt.

{¶14} “[2.] The trial court in finding the Defendant guilty of Obstructing Official

Business failed to state what ‘affirmative acts’ it found the Defendant-Appellant had

performed that constituted a violation of ORC 2921.31 where the only evidence entered

at trial showed that none of the Defendant-Appellant’s verbal acts either delayed,

hampered or impeded the investigation and the Defendant-Appellant’s ‘act’ of not

allowing the officers into her home could not support a conviction for obstructing official

business as a matter of law.”

{¶15} Appellant’s assignments will be discussed in a consolidated fashion as

they were addressed in her brief. In her first assignment of error, appellant contends

that the trial court did not make findings of fact or conclusions of law nor did it “state that

* * * it had found the Defendant was ‘guilty beyond a reasonable doubt’” to demonstrate

it applied the correct standard. In her second assigned error, she argues there was

insufficient evidence to support her conviction, also raising concerns with the accuracy

of the facts alleged in the officers’ testimony, an issue relating to the weight of the

evidence.

{¶16} Sufficiency is a test of the adequacy of the evidence either to determine

“whether the evidence is legally sufficient to support the * * * verdict as a matter of law.”

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

“An appellate court’s function when reviewing the sufficiency of the evidence to support

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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,” i.e., “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.

{¶17} In contrast, “weight of the evidence addresses the evidence’s effect of

inducing belief” and warrants consideration of “whose evidence is more persuasive - -

the state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,

865 N.E.2d 1264, ¶ 25. 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).

{¶18} First, as to appellant’s contention in both assignments of error that the

court failed to make findings of fact or conclusions of law to support its verdict, such

findings are not required. “In a case tried without a jury the court shall make a general

finding” and “is not required to make findings of fact and conclusions of law.” Crim.R.

23(C); State v. McCune, 11th Dist. Portage No. 1020, 1981 WL 4393, *4 (June 15,

1981). Further, appellant’s contention that the trial court did not state that it found her

guilty “beyond a reasonable doubt” is incorrect. The court’s Judgment Entry states the

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following: “The Court after considering the testimony herein finds beyond a reasonable

doubt that * * * Defendant did commit the offense of Obstructing Official Business.”

{¶19} Appellant next contends that certain elements of the crime of Obstructing

Official Business were not proven by the State with evidence sufficient to sustain a

conviction.

{¶20} Appellant was convicted of Obstructing Official Business, in violation of

R.C. 2921.31(A), which 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.”

{¶21} Appellant argues that the requirement for a defendant to perform an “act”

that impedes the officer was not proven since such “act” must be an affirmative one.

She asserts that failing to cooperate with police or refusing to respond to their requests

does not constitute obstruction.

{¶22} This court has held that “a failure to act,” which “is not in and of itself

an affirmative act” does not constitute conduct sufficient to satisfy this element of

Obstructing Official Business. State v. Vitantonio, 2013-Ohio-4100, 995 N.E.2d 1291, ¶

13-17 (11th Dist.). Appellant contends that her refusal to answer the door when the

officers came to her house to serve Tuesday a traffic citation was not an affirmative act

but a failure to act. However, the evidence demonstrates that appellant’s conviction

was based upon her specific conduct that interfered with the investigation, not her

failure to answer the door after the investigation was completed. Both officers testified

that appellant’s dishonest statements when asked questions about her vehicle were the

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basis for the obstruction charge. Dishonest statements constitute an affirmative act and

are sufficient to establish this element. State v. Lazzaro, 76 Ohio St.3d 261, 667 N.E.2d

384 (1996), syllabus (“[t]he making of an unsworn false oral statement to a public official

with the purpose to mislead, hamper or impede the investigation of a crime is

punishable conduct within the meaning of * * * [R.C.] 2921.31(A)”). The record provides

sufficient evidence that dishonest statements were made, since the officers testified

appellant stated the vehicle had been with her at work and that no one had borrowed it

or had access to keys to drive it on August 3. These statements were contradicted by

the fact that, on August 3, the vehicle was in an accident while being driven by

appellant’s daughter, was located at the apartment complex, and was not with appellant

at work.

{¶23} Although appellant does not specifically raise a manifest weight argument,

she takes issue with the accuracy of the testimony of the officers regarding their

questioning of her. To the extent that this involves weighing of the evidence rather than

its adequacy, we apply a manifest weight standard. Appellant argues that the officers

testified that they asked about the location of the vehicle but her testimony

demonstrates that they did not and she did not lie about this issue. She emphasizes,

presumably in support of her contention that the officers lacked credibility, that they did

not record their conversation with her although this type of conversation was “routinely

recorded.” The trier of fact is in the best position to determine issues of credibility.

State v. Starkey, 11th Dist. Ashtabula No. 2017-A-0022, 2017-Ohio-9327, ¶ 52. The

officers’ testimony contradicted appellant’s, supported the argument that she was

untruthful, and we decline to second guess the fact-finder’s determination of credibility.

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 {¶24} Appellant also argues that she did not hamper or impede the police

officers’ investigation since, when they spoke to her, they already knew Tuesday was

the driver, had a picture of the vehicle, and they arrived at appellant’s residence to

serve the hit-skip citation only an hour and a half after speaking with her.

{¶25} There is some dispute in the testimony as to when the officers identified

Tuesday as the driver of the vehicle but the record demonstrates that some facts

relating to the accident, such as the vehicle involved, were confirmed prior to speaking

with appellant. Nonetheless, even if the officers believed Tuesday was the driver of

appellant’s vehicle during the accident before they spoke to appellant, they testified it

was necessary to speak to her as part of the accident investigation. Appellant’s

statements contradicted the other evidence they had gathered. While the officers

ultimately decided to proceed with citing Tuesday and determined that the information

given by appellant was false, they testified that appellant’s statements caused a delay in

the investigation and impeded their progress. Further, the purpose to obstruct was

evident in her refusal to cooperate, untruthful statements, and due to the fact that these

statements protected her daughter.

{¶26} Where a defendant’s lies have caused a delay in the investigation, even

for a short period of time, this has been found sufficient to support a conviction for

obstructing official business. State v. Ertel, 12th Dist. Warren No. CA2015-12-109,

2016-Ohio-2682, ¶ 11 (defendant’s repeated lies to officers hampered their investigation

by requiring 20 to 30 minutes of additional investigation and questioning); State v.

Shoemaker, 1st Dist. Hamilton No. C-140724, 2015-Ohio-4645, ¶ 15-19 (affirming an

obstruction conviction where the defendant lied about her involvement in a hit skip

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accident to an officer who had already viewed surveillance video of the incident, which

delayed the investigation by five minutes); State v. Novak, 4th Dist. Gallia No. 16CA4,

2017-Ohio-455, ¶ 16 (the trier of fact was free to believe the officer’s testimony that an

arrest would have been made more quickly had the defendant not made a false

statement). Officer Llewellyn testified that they were not able to positively identify

Tuesday “immediately after the crime” because of appellant’s misstatements. It is

reasonable that, even if the investigation seemed to clearly show Tuesday was the

driver, some delay would occur in trying to verify or corroborate contradictory

statements by the owner of the vehicle involved in the accident. While appellant argues

that the testimony regarding immediate identification “doesn’t even make sense” since

officers did not speak to her until two days later, it is evident Llewellyn was referencing

the fact that appellant’s lies caused a delay in the investigation.

{¶27} Based on the foregoing, we find that the elements of Obstructing Official

Business were supported by both the manifest weight of the evidence and sufficient

evidence.

{¶28} The first and second assignments of error are without merit.

{¶29} For the foregoing reasons, appellant’s conviction for Obstructing Official

Business is affirmed. Costs to be taxed against appellant.

THOMAS R. WRIGHT, J.,

MARY JANE TRAPP, J.,

concur.

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