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State v. Barnes

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JACK E. BARNES, JR., Defendant-Appellant.

Criminal Appeal from the Portage County Court of Common Pleas. Case No. 2012 CR 0021. Judgment.

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, (For Plaintiff-Appellee).

Brian A. Smith, (For Defendant-Appellant).

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Jack E. Barnes, Jr., appeals the judgment of conviction entered by the Portage County Court of Common Pleas, after trial by jury, on one count of vandalism and one count of resisting arrest. As the record establishes a sufficient evidentiary basis by which a jury could conclude the act of vandalism was committed out of necessity, and as appellant's trial counsel failed to request an instruction on the defense of necessity, we conclude trial counsel's representation in defending against the vandalism charge fell below an objective standard of reasonable representation and prejudiced Mr. Barnes. Mr. Barnes' conviction for vandalism is therefore reversed and the matter remanded for a new trial. Mr. Barnes' remaining conviction for resisting arrest is affirmed.

{¶2} Mr. Barnes was indicted on one count of vandalism, a fifth-degree felony in violation of R.C. 2909.05(B)(1)(b), and one count of resisting arrest, a second-degree misdemeanor in violation of R.C. 2921.33(A). The matter proceeded to a jury trial where the following facts were adduced through testimony and exhibits.

{¶3} On the warm, sunny evening of September 14, 2011, at approximately 6:30 p.m., Officer Scott Hearns of the Windham Police Department responded to a domestic disturbance call at a private residence in the village of Windham. Upon arrival, Officer Hearns observed Mr. Barnes and Ms. Maria Disanza outside the home along with two other residents. Officer Hearns approached Ms. Disanza to obtain a narrative of events that prompted the disturbance call.

{¶4} As Officer Hearns began questioning Ms. Disanza, Mr. Barnes, appearing both agitated and inebriated, injected himself into the investigation in an effort to argue his version of events. After Officer Hearns unsuccessfully advised Mr. Barnes to calm himself, the officer attempted to place Mr. Barnes in handcuffs. When Mr. Barnes became resistant, Officer Hearns forced him to the ground. Mr. Barnes, whose face was planted in dog excrement, continued to frustrate the officer's efforts to place him in handcuffs. Officer Hearns sprayed the side of Mr. Barnes' face with pepper spray and finally successfully placed him in handcuffs. Mr. Barnes explained at the scene that he would not enter the cruiser until Officer Hearns "got this shit" off his face, referring literally to the dog excrement. Mr. Barnes was placed into the cruiser with the excrement and pepper spray still on his face. Officer Hearns explained to Ms. Disanza that Mr. Barnes was under arrest for disturbing the peace.

{¶5} Officer Hearns returned to the station, backed the cruiser into the garage and shut the garage door. The officer turned off his cruiser and went into the dispatch area to work on his arrest report. Rather than place Mr. Barnes in the booking room, Officer Hearns left Mr. Barnes in the back of his cruiser. The rear windows were shut, though Officer Hearns left the driver and passenger side windows "slightly cracked" and had the small plexi-glass partition door open.

{¶6} At approximately 7:00 p.m., Officer Jason Lamtman arrived on duty and, according to his testimony, observed Mr. Barnes for a short period. Testimony differs at this point: Mr. Barnes explained the pepper spray in conjunction with the extremely warm cabin was burning his face. He testified sweat was pouring down his face and he began to hyperventilate. He explained he yelled out that he could not breathe, but no one came. Officer Lamtman and Officer Hearns acknowledged Mr. Barnes was yelling, but did not remember him specifically stating he could not breathe.

{¶7} Officer Lamtman then left the garage to take a call at a nearby Circle K convenience store, leaving Mr. Barnes in the back of the cruiser completely unattended. After 45 minutes of being in the garage, Mr. Barnes explained he felt asphyxiated and had no choice but to break the cruiser window. Officer Hearns conceded Mr. Barnes had been in the back of the cruiser in the garage for 45 minutes.

{¶8} Mr. Barnes broke the cruiser window with his foot, cutting his leg in the process. Photographs admitted into evidence illustrate a large amount of dried blood on the rear vinyl seat of the cruiser. Mr. Barnes was treated for minor injuries and released into custody.

{¶9} Despite trial counsel eliciting the testimony and arguing that Mr. Barnes had no choice but to kick out the window in order to breathe, he did not assert the defense of necessity and did not request any such jury instruction.

{¶10} The jury returned a verdict of guilty on both charges, and Mr. Barnes was sentenced to two years probation.

{¶11} Mr. Barnes now appeals and asserts four assignments of error, which will be addressed out of numerical order. Appellant's second assignment of error states:

{¶12} "Trial counsel's failure to define and explain the defense of necessity during the trial, or to request a jury instruction regarding the defense of necessity constituted ...


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