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State v. Frost

Court of Appeals of Ohio, Twelfth District, Fayette

September 3, 2019

STATE OF OHIO, Appellee,
v.
JOSHUA E. FROST, Appellant.

          CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI 20180174

          Jess C. Weade, Fayette County Prosecuting Attorney, Fayette County Courthouse, for appellee.

          Steven H. Eckstein, for appellant.

          OPINION

          S. POWELL, P.J.

         {¶ 1} Appellant, Joshua E. Frost, appeals his conviction in the Fayette County Court of Common Pleas after a jury found him guilty of one count of disrupting public services. For the reasons outlined below, we affirm.

         {¶ 2} On May 4, 2018, the Fayette County Grand Jury returned an indictment charging Frost with one count of disrupting public services in violation of R.C. 2909.04(A)(1), a fourth-degree felony in accordance with R.C. 2909.04(C).[1] Pursuant to R.C. 2909.04(A)(1), no person, "purposely by any means or knowingly by damaging or tampering with any property," shall interrupt or impair:

television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications; radar, loran, radio, or other electronic aids to air or marine navigation or communications; or amateur or citizens band radio communications being used for public service or emergency communications[.]

         For purposes of the disrupting public services statute, R.C. 2909.04(A), the term "impair" means "'to make worse' or 'diminish in quantity, value, excellence, or strength.'" State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 36, quoting Webster's Third New International Dictionary (1986) 1131. "[T]he destruction of a private telephone or cellular telephone constitutes damaging or tampering with property under R.C. 2909.04(A)." Id. at ¶ 29.

         {¶ 3} The charge stemmed from a physical altercation between Frost and his girlfriend that took place in Frost's Fayette County residence. During this altercation, it was alleged Frost prevented his girlfriend from calling 9-1-1 by grabbing his girlfriend's telephone out of her hand and slapping her in the face. After denying Frost's motion to suppress, the matter proceeded to a one-day jury trial. Following deliberations, the jury returned a verdict finding Frost guilty as charged. Upon being found guilty, the trial court sentenced Frost to a 14-month prison term. Frost now appeals his conviction, raising nine assignments of error for review.

         {¶ 4} Assignment of Error No. 1:

         {¶ 5} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

         {¶ 6} In his first assignment of error, Frost challenges the trial court's decision denying his motion to suppress. In support, Frost argues the trial court erred by finding he was not subject to a custodial interrogation when questioned by police regarding the 9-1-1 hang-up call originating from his residence. We disagree.

         {¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence to resolve factual questions and evaluate witness credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore, when reviewing the denial of a motion to suppress, this court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.

         {¶ 8} Two witnesses testified at the suppression hearing: Frost and Officer John Warnecke, a patrolman with the Washington Court House Police Department. Officer Warnecke testified that he was dispatched to Frost's residence on a report of a "hang up 911 call" where a woman was heard "saying that she needed help." It was reported that the woman's call for help was followed shortly thereafter by sounds of "a male in the background" forcibly taking the telephone away from the woman just prior to the call being disconnected. This type of call, as Officer Warnecke testified, is given top priority because of the unknown danger involved "so we have to assume that there was some type of reason for someone to call 911." There is no dispute that the woman who called 9-1-1 was Frost's girlfriend. There is also no dispute Frost's girlfriend called 9-1-1 from Frost's residence.

         {¶ 9} Approximately three minutes after the 9-1-1 hang-up call was made, Officer Warnecke arrived at Frost's residence. Upon his arrival, Officer Warnecke observed Frost exiting his residence and walking through the front yard towards his truck. Seeing Frost walking towards his truck, Officer Warnecke contacted Frost and asked him "if there was a problem." Frost responded by stating "no it was just a misunderstanding and that he needed to leave for work." However, due to the nature of the call, Officer Warnecke told Frost that he needed to stay at the scene until he could "figure out if a crime had occurred or not." Frost's response to Officer Warnecke's instruction was "slightly argumentative." But, although Frost appeared somewhat hesitant to comply with Officer Warnecke's directive, Officer Warnecke testified Frost nevertheless "voluntarily went back inside the residence."

         {¶ 10} Officer Warnecke testified that upon entering Frost's residence, he watched as Frost immediately went up the stairs and "started screaming" at his girlfriend "telling her that nothing had happened[.]" Hearing the commotion upstairs, Officer Warnecke followed Frost up the stairs and observed Frost again "yelling" at his girlfriend telling "her that nothing had happened[.]" Officer Warnecke testified that he believed it best to speak with Frost's girlfriend privately, so he instructed Frost to go back downstairs and wait with Sergeant Kevin Shoopman, who had since arrived at the scene. According to Officer Warnecke, Frost complied with his instructions to go back downstairs and wait with Sergeant Shoopman.

         {¶ 11} , Officer Warnecke testified that once Frost was back downstairs he spoke to Frost's girlfriend about the 9-1-1 hang-up call. As Officer Warnecke testified, this was to investigate the matter and determine why Frost's girlfriend had called 9-1-1 for help. During this conversation, Frost's girlfriend told Officer Warnecke that she called 9-1-1 because Frost had become "violent with her." Explaining further, Frost's girlfriend told Officer Warnecke that "while she was speaking with 911 that Mr. Frost removed the phone from her hands in an effort to stop her from calling 911." Officer Warnecke testified that while he was speaking with Frost's girlfriend, Frost continued to yell up the stairs to his girlfriend that "nothing had happened."

         {¶ 12} After speaking with Frost's girlfriend, Officer Warnecke went downstairs to speak with Frost. Frost, who was standing with his back towards the front door, was not handcuffed at this time. Upon approaching Frost at the bottom of the stairs, Officer Warnecke told Frost what his girlfriend had relayed during the conversation upstairs. Officer Warnecke testified that after Frost heard what his girlfriend had said, he then asked Frost "what had happened." Frost responded and admitted that he and his girlfriend "were in a slight physical altercation." Frost, however, told Officer Warnecke that it was his girlfriend who was the aggressor so he "slapped towards her in an effort to get her away from him." Frost also told Warnecke that "he had tried to prevent [his girlfriend] from calling 911 because he didn't want the police involved in the matter."

         {¶ 13} After speaking with Frost, Officer Warnecke placed Frost under arrest and put him in handcuffs. Officer Warnecke testified that once Frost was placed in handcuffs, Frost began shouting racial slurs at the officers. Officer Warnecke also testified that Frost told both officers that he was going to "assault" them and "stated multiple times that we should watch our backs because he was in a gang and then started hitting his head on the partition in our vehicle." Officer Warnecke further testified that Frost told him that "he wished he would have beat that bitch's ass." There is no dispute that Frost was not notified of his Miranda rights prior to Officer Warnecke placing him under arrest. This was because, according to Officer Warnecke, Frost was not yet in custody because he was still "attempting to figure out what had happened."

         {¶ 14} Frost then testified. Similar to Officer Warnecke's testimony, Frost testified Officer Warnecke approached him in front of his residence while he was getting into his truck to go to work. As Officer Warnecke approached, Frost testified Officer Warnecke contacted him and informed him that he had been dispatched to the scene to investigate a 9-1-1 hang-up call that had originated from his residence. Upon being so informed, Frost testified that he told Officer Warnecke that he did not know that a 9-1 -1 call had been made but that "nothing was going on for the police to be there." Frost testified Officer Warnecke then instructed him to get out of his truck and asked him who was inside his residence. Frost responded that his girlfriend was inside. Frost testified Officer Warnecke then "more or less" just walked him towards his residence and, once inside, told him to sit on the couch. Frost testified that during this time he did not feel that he was free to leave.

         {¶ 15} Frost testified that after he sat down on the couch, Officer Warnecke went upstairs and spoke to his girlfriend. Frost testified that after speaking to his girlfriend, Officer Warnecke came back downstairs and "just told [him] what [his girlfriend] said and told [him] he was under arrest." Frost testified that upon being told he was under arrest, he attempted to tell Officer Warnecke his side of the story. But, according to Frost, Officer Warnecke was not interested in hearing anything he had to say since he had already "told him outside that nothing was going on so that I had already told him[.]" When asked if Officer Warnecke asked him any questions while inside the residence either before or after ...


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