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State v. Benton

Court of Appeals of Ohio, Second District, Montgomery

May 25, 2018

STATE OF OHIO Plaintiff-Appellee
RICHARD BENTON Defendant-Appellant

          Criminal Appeal from Common Pleas Court T.C. NO. 2017-CR-312/2

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Plaintiff-Appellee.

          ANDREW SCHLUETER, Attorney for Defendant-Appellant.


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the May 19, 2017 Notice of Appeal of Richard Benton, filed by appointed counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Benton's appeal is addressed to his May 9, 2017 judgment entry of conviction, issued following a jury trial, on one count of obstructing official business, in violation of R.C. 2921.31(A), a felony of the fifth degree. Benton received a sentence of 12 months. Counsel for Benton asserts that he "has reviewed the original court file, as well as the transcript of proceedings prepared in this case, and can find no error by the trial court prejudicial to Mr. Benton's rights which may be argued on appeal." This Court notified Benton on December 12, 2017 that counsel asserted an inability to find any meritorious claim to present and granted Benton 60 days to file a pro se brief assigning any errors for review. None has been received. Counsel for Benton presents two potential assignments of error.

         {¶ 2} "We are charged by Anders to determine whether any of these issues are 'wholly frivolous.' Id., at p. 744. If we find that any of them involve legal points that are arguable on their merits, and therefore are not wholly frivolous, per Anders we must appoint other counsel to argue the appeal. Id." State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 2. As this Court further noted in Pullen, ¶ 4:

Anders equated a frivolous appeal with one that presents issues lacking in arguable merit. An issue is not lacking in arguable merit merely because the prosecution can be expected to present a strong argument in reply. An issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.

         {¶ 3} The record reflects the following facts. On or about January 26, 2017, police officers associated with the Montgomery County R.A.N.G.E. (Regional Agencies Narcotic and Gun Enforcement) Task Force attempted to serve an arrest warrant on the target of a drug trafficking investigation. Based upon information provided by a confidential informant regarding the suspect's whereabouts, the officers conducted an undercover operation at a hotel near the Dayton Mall. In the course of their surveillance, they observed a white truck, associated with the target, pull into the hotel parking lot. Three men exited the truck and proceeded to a room on the fourth floor. Officers believed that one of the three occupants of the truck matched the description of their suspect. The officers requested a marked Ohio State Highway Patrol ("OSHP") cruiser to assist them in detaining the occupants of the truck for further investigation. Shortly thereafter, the occupants of the truck returned to it. An OSHP patrolman then arrived in full uniform in a marked cruiser with lights and siren activated and stopped behind the now-occupied truck. In the course of the ensuing confrontation, the driver of the truck rammed an officer's vehicle, drove directly toward another officer who was on foot, and shots were fired by members of law enforcement. Benton and another occupant then fled from the truck, scaled a chain-link fence, and sprinted headlong into traffic on Interstate 75. Benton and his companion crossed all six northbound and southbound lanes of the interstate. Once on the other side of the highway, Benton was confronted by an officer and taken into custody.

         {¶ 4} A witness in a nearby office building heard gunshots from the hotel parking lot, looked out his fifth-floor office window, and observed several police cruisers with flashing lights in the hotel parking lot. The witness then observed two individuals fleeing on foot who climbed a fence and ran towards the interstate. The witness observed the defendant point what appeared to be a gun at oncoming drivers, and he observed vehicles swerve and slow to evade the fleeing men.

         {¶ 5} At trial, Benton's position was that his conduct in fleeing from the officers rose to the level of privilege growing out of necessity.

         {¶ 6} Counsel for Benton's first potential assignment of error is as follows:


         {¶ 7} Counsel for Benton acknowledges that the "only evidence presented at trial supports the state's theory of the case."

         {¶ 8} As this Court ...

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