[Cite as State v. Kehres, 2020-Ohio-1292.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-A-0059
- vs - :
BEVERLY J. KEHRES, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula Municipal Court, Case No. 2018 CRB 01165.
Judgment: Affirmed.
Michael Franklin, Ashtabula City Solicitor, Lori B. Lamer, Assistant City Solicitor,
Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, Ohio 44004 (For Plaintiff-
Appellee).
Jane Timonere, Timonere Law Offices, LLC, 4 Lawyers Row, Jefferson, Ohio 44047 (For
Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Beverly J. Kehres, appeals her misdemeanor convictions for
obstructing official business, falsification, and endangering children, challenging the
sufficiency or the manifest weight of the evidence. We affirm.
{¶2} As of July 2018, appellant and her boyfriend, Scott Donathan, lived in a
small home in the City of Ashtabula. For a one-week period, Sergeant Matthew Johns of
the Ashtabula County Sheriff’s Department was sporadically watching the home, hoping
to see Donathan driving appellant’s vehicle. Donathan was a suspect in a series of thefts
in a neighboring city, and there were three outstanding warrants for his arrest.
{¶3} At approximately 2:00 a.m. on July 27, 2018, Sergeant Johns heard over
his radio that police officers from the neighboring city had been chasing Donathan in
appellant’s vehicle after another alleged theft, but they broke off the chase because
Donathan was driving too recklessly. As a result, Johns drove to the couple’s home and
saw the vehicle parked in the driveway very closely to a side door. Johns decided to
arrest Donathan on the outstanding warrants and asked the department to dispatch
additional officers to assist.
{¶4} While multiple officers surrounded the home, Johns and a second officer,
Deputy Justin Hammond, knocked on the front door and announced who they were and
that they were there to arrest Donathan on the warrants. During the next nine minutes,
Johns and Hammond continued to knock on the door and increased the intensity of their
knocks and the volume of their voices, yet no one answered. Consequently, one of the
officers kicked in the front door, but the door was difficult to open because a heavy piece
of furniture was directly behind it.
{¶5} Upon entering, Johns and Hammond stepped into a small vestibule which
had a second door leading into the main part of the home. The second door did not have
a door knob; instead, there was a piece of rope running through the hole. This door was
secured solely by a large deadbolt lock that could only be opened from the inside. Johns
and Hammond began pounding on the second door and again yelled that they were there
to arrest Donathan. After a few minutes, appellant came to the door. When they asked
appellant to open the second door, she stuck one of her fingers through the hole where
the door knob had been and made a motion as if she was trying to open the door. After
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doing this several times for a few minutes, appellant told the officers that she could not
open the door.
{¶6} Hammond used a crowbar to break down the second door. Upon entering,
Johns asked appellant where Donathan was located. She said that she did not know if
he was there and that she had not seen him. However, Johns noticed that there was a
pair of men’s shoes in the living room, so other deputies began searching the home and
ultimately found Donathan hiding in a bedroom closet. Donathan told Hammond that he
had heard the officers’ yelling and banging and that he hid to avoid arrest.
{¶7} In searching the home, Johns entered a different bedroom and saw two
young girls, ages four and one, sitting on a bed. Appellant said she was babysitting the
girls for a friend. In looking for Donathan, Johns also saw that it was cluttered and very
dirty. In addition to bugs in the kitchen, he saw multiple piles of dried dog feces throughout
the structure. Johns also found a crack pipe on a plate in the bathroom. Thus, he called
children’s services to take custody of the girls.
{¶8} Appellant was charged with three offenses: obstructing official business, a
second-degree misdemeanor under R.C. 2921.31(A); falsification, a first-degree
misdemeanor under R.C. 2921.13(A)(3); and endangering children, a first-degree
misdemeanor under R.C. 2919.22(A). Following a one-day jury trial in March 2019,
appellant was found guilty on all three charges. In addition to imposing a $150 fine on
each charge, the trial court sentenced her to consecutive terms of 60 days for child
endangering, 30 days for obstructing official business, and 30 days for falsification, but
then suspended 90 of the 120-day total. The court ordered all the jail time suspended if
appellant performed 100 hours of community service.
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{¶9} Appellant raises three assignments for review:
{¶10} “[1.] The jury verdict finding that Beverly J. Kehres committed the offense of
Obstructing Official Business in violation of Ohio Revised Code §2921.31(A) is against
the manifest weight of the evidence.
{¶11} “[2.] The jury verdict finding that Beverly J. Kehres committed the offense of
Falsification in violation of Ohio Revised Code §2921.13(A)(3) is against the manifest
weight of the evidence.
{¶12} “[3.] The jury verdict finding that Beverly J. Kehres committed the offense of
Endangering Children in violation of Ohio Revised Code §2919.22(A) is against the
manifest weight of the evidence or the evidence educed at trial is insufficient to support
the verdict.”
{¶13} Although identified as a manifest weight of the evidence challenge,
appellant’s first assignment asserts a sufficiency argument. She contends her conviction
for obstructing official business must be overturned because the state did not present any
evidence that she engaged in an affirmative act that hindered the deputies in entering the
home and finding Donathan.
{¶14} “Sufficiency of the evidence is the ‘legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.’ State v. Thompkins, 78 Ohio St.3d 380, 386
(1997), superseded by statute on other grounds. The question of whether the evidence
is legally sufficient to support a verdict is a test of adequacy and a question of
law. Id. ‘“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
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elements of the crime proven beyond a reasonable doubt.”’ State v. Robinson, 124 Ohio
St.3d 76, 2009–Ohio–5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus, superseded by statute on other grounds, following Jackson
v. Virginia, 443 U.S. 307 (1979). An appellate court will not disturb a verdict unless, after
viewing the evidence in a light most favorable to the prosecution, it is clear that reasonable
minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio
St.3d 460, 484 (2001).
{¶15} “* * *
{¶16} “The test for determining whether a conviction is against the manifest weight
of the evidence differs from the test as to whether there is sufficient evidence to support
the conviction. ‘Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the
other.”’ Thompkins at 387, quoting Black's Law Dictionary 1594 (6th Ed.1990) (emphasis
omitted). Even though an appellate court finds sufficient evidence to support a judgment,
the court may conclude that a judgment is against the manifest weight of the
evidence. Taylor at ¶ 10, citing Thompkins at 387. An appellate court 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 jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. Id.” State v. Anderson, 10th Dist. Franklin No.
14AP-1047, 2015-Ohio-4458, ¶ 14-16.
{¶17} Appellant was charged with obstructing official business under R.C.
2921.31(A):
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{¶18} “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.”
{¶19} “R.C. 2921.31(A) includes five essential elements: (1) an act by the
defendant, (2) done with the purpose to prevent, obstruct, or delay a public official, (3)
that actually hampers or impedes a public official, (4) while the official is acting in the
performance of a lawful duty, and (5) the defendant so acts without privilege.” State v.
Howell, 5th Dist. Richland No. 18CA49, 2019-Ohio-1506, ¶ 12. To satisfy the first
element, the state must show that the accused engaged in an overt act; refusing to
answer the door or refusing to obey an officer’s request cannot form the basis of a
conviction for obstructing official business. State v. Prestel, 2nd Dist. Montgomery No.
20822, 2005-Ohio-5236, ¶ 16. In addition, the overt act must succeed in impeding the
officer’s performance of his duty. State v. Easterling, 2nd Dist. Greene No. 2018-CA-33,
2019-Ohio-2470, ¶ 35.
{¶20} Here, the fact that appellant did not open the second door for the officers is
insufficient to base an obstructing official business conviction. Yet, there is still some
evidence demonstrating that appellant committed an overt act that impeded the officers
from entering the home. As noted, Hammond testified that after the officers asked her to
open the second door, appellant stuck one of her fingers through the doorknob hole a few
times. Hammond explained that appellant “made a very low effort attempt to try to get
the door open.”
{¶21} During his testimony, Johns did not reference appellant’s efforts to open the
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door but testified that she engaged in stalling activities that went on for several minutes.
Johns also stated that after the officers gained access to the home, he noted that the
deadbolt was the only thing preventing appellant from opening the door, and it was within
her reach.
{¶22} Taken as a whole, the officers’ testimony supports a finding that when
appellant stuck her finger through the hole and tried to pull on the door, she was engaging
in a ruse designed to delay the officers’ entry. Their testimony further shows that she
delayed their entry by a few minutes. Thus, even though the officers ultimately entered
the home, she impeded their access for a short period.
{¶23} Given the absence of any credible challenge to the truthfulness of the
officers’ testimony, the jury did not lose its way in finding that appellant engaged in an
overt act to prevent the officers from performing their duties. Appellant’s conviction for
obstructing official business is supported by sufficient evidence and is not against the
manifest weight of the evidence. Her first assignment is without merit.
{¶24} Appellant’s second assignment challenges her falsification conviction,
which was pursuant to R.C. 2921.13(A)(3):
{¶25} “(A) No person shall knowingly make a false statement, or knowingly swear
or affirm the truth of a false statement previously made, when any of the following applies:
{¶26} “ * * *
{¶27} “(3) The statement is made with purpose to mislead a public official in
performing the public official's official function.”
{¶28} As noted, after he broke down the second door, Johns asked appellant if
she knew where Donathan was, and she told Johns she had not seen Donathan in the
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home. In arguing that her falsification conviction is against the manifest weight of the
evidence, appellant maintains that the state failed to present evidence that her statement
to Johns was false. Building upon this, she further maintains that this conviction was
based solely on the nature of her relationship with Donathan.
{¶29} As discussed under the first assignment, by inserting her finger in the
doorknob hole and pretending to open the door, appellant engaged in behavior intended
to delay the officers’ entry. Given that the officers announced that they were there to
arrest Donathan, one could infer that appellant’s delay was an effort to protect him.
Moreover, her statements that she did not know if he was home and that she had not
seen him contradict the fact that a pair of men’s shoes was found in the living room and
that Donathan was subsequently found hiding in a closet. This coupled with the testimony
that Donathan had just been involved in a police chase while driving appellant’s vehicle
that was currently parked in the driveway supports the jury’s conclusion that appellant
knowingly lied to Johns to prevent the deputies from searching her home.
{¶30} Under Ohio law, circumstantial evidence has the same probative value as
direct evidence. State v. Martin, 11th Dist. Lake Nos. 2017-L-005 & 2017-L-006, 2019-
Ohio-22, ¶ 90, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. Appellant’s conduct during the incident supports an
inference that she had seen Donathan in the home and, therefore, made a false statement
to the officers to protect him. Thus, her falsification conviction is not against the manifest
weight of the evidence, and appellant’s second assignment lacks merit.
{¶31} Under her third assignment, appellant asserts that her endangering children
conviction must be reversed because the state’s evidence did not support a finding that
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the two girls were subject to a substantial risk of harm inside her home. She emphasizes
that there is no dispute that she was only babysitting the children for the evening, and
that they were safe when Johns found them in her bedroom. She also notes that the
condition of her bedroom was relatively better than the remainder of the house and that
there is no evidence the girls left that room while they were there.
{¶32} The offense of endangering children is defined in R.C. 2919.22, which
states in part:
{¶33} “(A) No person, who is the parent, guardian, custodian, person having
custody or control, * * * shall create a substantial risk to the health or safety of the child,
by violating a duty of care, protection, or support.”
{¶34} Recklessness is the culpable mental state for misdemeanor child
endangering under R.C. 2919.22(A). State v. Hill, 11th Dist. Lake No. 2009-L-004, 2010-
Ohio-709, ¶ 30. “A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the person’s
conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C.
2901.22(C).
{¶35} The term “substantial risk” is defined as “a strong possibility, as contrasted
with a remote or significant possibility, that a certain result may occur or that certain
circumstances may exist.” R.C. 2901.01(A)(8). Regarding a feces-contaminated home,
expert testimony is not necessary for a reasonable trier of fact to find that such a place
poses a substantial risk to a child’s health and safety. State v. Caton, 137 Ohio App.3d
742, 751, 739 N.E.2d 1176 (1st Dist.2000).
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{¶36} Johns summarized the conditions of appellant’s home in his testimony,
stating:
{¶37} “Overall, the house was extremely cluttered and dirty, with piles of clothing
and just stuff, just garbage piling up. Specifically, there was also piles of dog feces all
over the floor in different areas of the house; like actual full piles of dog feces. Um, there
was bugs on the floor. They would scatter - - when you shined the light or walked through
the room, the bugs would all try to go hide. There was electrical switches without any
covers. The wires were just sticking out of the wall. There was - - like, the child’s room
had a dirty mattress with no sheets on it, and just piles of used clothes and toys all around.
There was a pair of little girls’ underwear on the floor intermingled with just a pile of dog
feces. Um, the whole house smelled like, kind of like urine, like, cat urine or some type of
ammonia or uriny smell.”
{¶38} Johns further testified that the amount and condition of the feces
demonstrated that this was not an instance in which one dog had an accident during the
night; i.e., the feces was throughout the house and had been there for a long period.
Additionally, he testified that a crack pipe was found on a counter in the home’s only
bathroom.
{¶39} The evidence shows that the girls were not at appellant’s home for a
momentary visit, but that they were there for a substantial number of hours. Hence, even
if appellant’s bedroom was in relatively better shape than the rest of the home, they would
have still needed to use the bathroom. Moreover, Johns’ testified that he saw children’s
toys and clothing near a pile of feces.
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{¶40} Given the very nature of a crack pipe, dog feces, and exposed electrical
wires, any reasonable juror could find that appellant acted recklessly and created a
substantial risk of harm when she exposed the girls to these conditions for several hours.
The jury did not lose its way in finding appellant guilty of endangering the two children,
and her conviction is not against the manifest weight of the evidence. Appellant’s third
assignment lacks merit.
{¶41} The judgment of the Ashtabula Municipal Court is affirmed.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.
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