Criminal Appeal from the Painesville Municipal Court, Case No. 12CRB01834.
Edward C. Powers, Painesville City Prosecutor, (For Plaintiff-Appellee).
Dominic J. Vitantonio, Argie, D'Amico & Vitantonio, (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
(¶1} Appellant, John George Vitantonio, appeals the judgment of conviction entered by the Painesville Municipal Court, after a bench trial, on one count of obstructing official business, a second-degree misdemeanor in violation of R.C. 2921.31. Appellant's conviction was premised upon his failure to immediately answer the persistent knocking of law enforcement investigating a disturbance call at his apartment. On appeal, appellant argues the verdict is not supported by sufficient evidence and is also against the manifest weight of the evidence. Given the absence of an affirmative act, the elements of obstructing official business have not been proven beyond a reasonable doubt. Accordingly, appellant's conviction is based upon insufficient evidence and must be vacated. The judgment is therefore reversed.
(¶2} Appellant was charged with one count of obstructing official business. The matter proceeded to a bench trial where the following was adduced through testimony.
(¶3} In the early morning hours of August 18, 2012, Karlyle Huntington, a resident at Brentwood Apartments, called the City of Painesville Police Department to file a complaint concerning a domestic disturbance from appellant's apartment, her neighbor. Ms. Huntington explained she heard appellant and his girlfriend having an argument and two children yelling and crying. Ms. Huntington testified that, after phoning the police, she went to appellant's apartment and informed him she felt compelled to notify the authorities. According to Ms. Huntington, appellant apologized for the commotion.
(¶4} Painesville Police Sergeant Michael Slocum arrived with backup units to investigate the disturbance call. Sergeant Slocum first interviewed Ms. Huntington, who directed the officer to the apartment door from which the noise previously emanated. It is unclear whether Ms. Huntington notified Sergeant Slocum that she spoke with appellant. Sergeant Slocum knocked at appellant's door and announced his presence, hearing no noise or commotion from inside the apartment. Sergeant Slocum then went outside and observed a light inside appellant's apartment turn off. Returning inside the building, Sergeant Slocum sought the aid of Diana Reed, property manager at Brentwood Apartments. Ms. Reed attempted the master key to unlock appellant's door; however, the locks on the apartment door had been changed. After knocking and attempting entry for approximately 15 minutes, a female opened the door and the officers investigated the disturbance. Appellant explained he was asleep and did not hear the knocks on his door. Appellant, though cooperative with the officer's investigation, was charged with obstructing official business for failing to open the door.
(¶5}Upon consideration of the evidence, the trial court found appellant guilty of the charge and sentenced him to 30 days in jail, with 20 days suspended and the remaining 10 days subject to an optional community work program in lieu of jail. Appellant was also placed on community control for six months and ordered to pay a $100 fine. According to a notation on the entry, the sentence was stayed pending disposition of the appeal. On November 1, 2012, appellant filed a motion for a new trial pursuant to Crim.R. 33(A)(4) based upon insufficient evidence at trial. On the same day, appellant filed a motion to arrest judgment. On November 15, 2012, the trial court denied both motions.
(¶6} On December 12, 2012, appellant filed his notice of appeal. We note appellant's appeal is timely as his motion for a new trial based upon insufficient evidence, made after the entry of conviction, tolled the time for an appeal pursuant to App.R. 4(B)(3)(b).
(¶7} Appellant asserts two assignments of error. Appellant's first assignment of error states:
There is insufficient evidence to support the judgment of the trial court in finding Appellant guilty of the crime of obstructing official business, where the basis of the conviction is a finding (1) that Appellant failed and/or refused to answer the door to his apartment in response to the persistent knocking of police officers who were responding to a complaint, made by Appellant's neighbor, of a disturbance at Appellant's premises, and (2) that the knocking police officers were possessed with exigent circumstances to enter into the premises.
(¶8} In his first assignment of error, appellant claims there is insufficient evidence by which to support his conviction of obstructing official business.
(¶9} At the outset, appellant did not technically make a Crim.R. 29 motion for acquittal during trial. There is a split of authority-both intra-district and inter-district-concerning whether the failure to make a Crim.R. 29 motion for acquittal results in waiver of the issue of sufficiency on appeal. See State v. Heiney, 11th Dist. Portage No. 2006-P-0073, 2007-Ohio-1199, ¶11 (detailing the split of authority though ultimately concluding defendant did not waive sufficiency argument). However, appellant's counsel interrupted the trial court and argued at the close of all evidence that the elements of the charge were not met, citing to extensive case law requiring an overt act to sustain a conviction of obstructing official business. Thus, though not expressly referring to Crim.R. 29, appellant effectively requested acquittal on the grounds that the elements were not met as a matter of law. Appellant, also in the lower court, filed a Crim.R. 33(A)(4) motion for a new trial based upon ...