COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60902 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JESSIE WATFORD : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-253787 JUDGMENT: REVERSED AND VACATED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD MULLIN, ESQ. CUYAHOGA COUNTY PROSECUTOR 8228 Mayfield Road BY: RONALD JAMES, ESQ. Chesterland, Ohio 44026 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on one count of obstructing justice on June 26, 1990. R.C. 2921.32. The case was tried to a jury which found appellant guilty as charged. On March 22, 1990, a woman, Klentonia Kellogg, flagged down a police officer on routine patrol. Ms. Kellogg informed the officer that she had just been robbed, according to the officer's testimony. According to Ms. Kellogg's testimony, she explained to the officer that she wanted him to arrest a man whom she knew to have an outstanding warrant. Ms. Kellogg pointed out to the police officer a man standing in a nearby field. When the man saw her motioning toward him and speaking with a police officer, he started moving in the opposite direction at a quick pace. The officer began chasing him and called for back up. The officer testified to seeing the man run toward an apartment building, then he temporarily lost sight of the fleeing man. When the officer ran up the stairs of the apartment building and looked in the front door, he saw the back of the jacket and the pants of the man he was chasing disappear into the appellant's apartment. The officer entered the building, knocked on the apartment door and shouted, "Police." Upon receiving no answer, the officer decided to go around to the back of the building. Appellant was out on his front porch picking up his paper. He shouted to the police officer not to go behind the building. Testimony differs as to the exact words used by the appellant. The officer claims he was sworn at and the appellant claims to only have been - 3 - concerned that his dogs were loose in the back yard. The back up police officers soon arrived. Sergeant Brady convinced the appellant to let him into his apartment to look for the suspect. When the Sergeant was walking toward the apartment he whispered to several other officers to follow him in. When appellant let Brady in and the other men tried to enter, appellant attempted to keep them out by closing the door. Allegedly one of the men was pinned in the door and Brady had to pull the appellant away from the door and physically restrain the appellant from punching at Brady's face. Appellant was at the time sixty-four years old and had just undergone major surgery to his back. Appellant claims to have not wanted all the police in his apartment because of his dogs. Brady noticed the two dobermans during his search for the suspect and quickly left. Appellant was arrested. The suspect turned himself in shortly thereafter. Appellant asserts three assignments of error. I THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF OBSTRUCTING JUSTICE AS THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE ALL THE ELEMENTS BEYOND A REASONABLE DOUBT. The elements of the offense of obstructing justice for which appellant was indicted are set forth in R.C. 2921.32(A)(1) and (3): (A) No person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punish- ment of another for crime, or to - 4 - assist another to benefit from the commission of a crime, shall do any of the following: (1) Harbor or conceal such other person; *** (3) Warn such other person of impending discovery or apprehension. Appellant argues that the State offered no evidence to prove the necessary element of appellant's state of mind. The offense of obstructing justice requires proof of the defendant's purpose to hinder the discovery, apprehension, prosecution, conviction or punishment of the person sought by police. Purpose is defined by R.C. 2901.22: "A person acts purposely when it is his specific intent to cause a certain result..." The State responds that the lack of specific intent to commit the offense was not raised until after the appellant's motion for acquittal at the end of the State's case in chief. The State seems to assume that the burden to prove that he did not have the necessary mens rea to commit the crime is on the defendant. On the contrary, it is the State's responsibility to present evidence as to each element of the crime. The State failed to prove that the appellant had the requisite intent to commit the offense of obstructing justice. The standard used by a reviewing court to determine the sufficiency of the evidence has been set forth by the Ohio Supreme Court: - 5 - The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, at paragraph two of the syllabus. Viewing the evidence in a light most favorable to the prosecution, there was no evidence presented from which a trier of fact could have found that appellant acted with the specific intent to hinder the discovery of the fleeing suspect by harboring or concealing him. There was evidence that the suspect entered the apartment from the first officer's testimony. However, there was no evidence that appellant knew he was in the apartment. See, Cincinnati v. Smith (1986), 31 Ohio App. 3d 158. Appellant denies hearing the officer knock at his door and shout "police" although he testified that just prior to going out on his patio for the paper he was doing floor exercises prescribed by his doctor for his back within six feet of the door. Even accepting the police officer's testimony as true, that he did knock just after seeing the suspect run into appellant's apartment, this is not evidence of appellant's intent to hinder the discovery or apprehension of the suspect. The state failed to prove the essential element of the appellant's purpose, required to commit the offense, beyond a reasonable doubt. - 6 - Appellant's first assignment of error is sustained. II THE VERDICT REACHED IN THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Because of our disposition of the first assignment of error, it is unnecessary to find the verdict also against the manifest weight of the evidence. Therefore, this assignment of error is rendered moot by our ruling on the previous assignment of error and will not be addressed. App. R. 12(A)(1)(c). III THE TRIAL COURT ERRED IN THE REJECTION OF THE DEFENSE REQUESTED INSTRUCTION TO THE JURY THAT UNLESS IT IS FOUND BEYOND A REASONABLE DOUBT THAT PETTIT [THE SUSPECT] WAS FOUND IN DEFENDANT'S APARTMENT, THE DEFENDANT MUST BE FOUND NOT GUILTY. Appellant argues that the offense requires proof that another person was present in order to be harbored. If the suspect was never in the apartment then appellant could never be guilty of obstructing justice. It is quite likely that the jury took into account evidence that the suspect was or was not in the apartment in order to determine if appellant's conduct constituted a violation of the statute. However, the fact of the suspect's presence in the apartment is not an element of the offense to be proven beyond a reasonable doubt by the prosecution. The fact of the suspect's presence is a circumstance to be taken into consideration when determining whether the state indeed met its burden. - 7 - The Ohio Supreme Court set forth the guideline to be followed by trial courts in charging the jury. After arguments are completed, a trial court must fully and com- pletely give the jury all instruc- tions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder. State v. Comen (1990), 50 Ohio St. 3d 206, at paragraph two of the syllabus. The instruction requested by appellant was not necessary in order for the jury to discharge its duty. Appellant's third assignment of error is overruled. The trial court erred in its failure to grant appellant's Civ. R. 29 motion for acquittal at the end of the State's case. The state failed to present any evidence on a necessary element of the offense, therefore the conviction was improper and the motion for acquittal should have been granted. Conviction is reversed and vacated. - 8 - This cause is reversed and vacated for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., CONCURS. JAMES D. SWEENEY, J., CONCURS WITH ATTACHED CONCURRING OPINION PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60902 STATE OF OHIO : : : : PLAINTIFF-APPELLEE : C O N C U R R I N G : vs. : O P I N I O N : JESSIE WATFORD : : : : DEFENDANT-APPELLANT : DATE: AUGUST 20, 1992 JAMES D. SWEENEY, J., CONCURRING: While I concur with the majority opinion as to the first and third assignments of error, I would reverse the trial court on the second assignment of error as well. Although the issue of the manifest weight of the evidence is moot under App. R. 12(A)(1)(C), the issues raised by the appellant warrant discussion. In the case sub judice, the prosecution completely failed to present any evidence as to appellant's mens rea. If no evidence is presented to a jury on an essential element of a crime, the test for determining manifest weight of the evidence as set forth in State v. Martin (1983), 20 App. 3d 172, has not been met. In addition, the State's case was totally devoid of any competent, or credible evidence as to the suspect's criminal - 10 - activity. Despite the fact the police officer was justified in his pursuit of the suspect, appellant cannot be convicted of obstructing justice without the commission of an underlying crime by another. The police had grounds to suspect that a crime was committed, but no proof of that crime was offered at trial. State v. Bronaugh (1980), 69 Ohio App. 2d 24; and Cincinnati v. Smith (1986), 31 Ohio App. 3d 158. See also, State v. Mootispaw (1985), 23 Ohio App. 3d 142, where the evidence showing the suspect was charged with the crime is sufficient, even if no conviction results. I would, therefore, reverse the appellant's conviction on the second assignment of error. .