Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court T.C. NO.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for
SCHLUETER, Attorney for Defendant-Appellant.
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
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:
MR. BENTON'S CONVICTION FOR OBSTRUCTING OFFICIAL BUSINESS
IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
7} Counsel for Benton acknowledges that the
"only evidence presented at trial supports the
state's theory of the case."
8} As this Court ...