COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68956 CITY OF SOUTH EUCLID : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CAROLYN A. GAY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JANUARY 25, 1996 CHARACTER OF PROCEEDING Criminal appeal from South Euclid Municipal Court Case No. 06132 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: LEE A. KOOSED, ESQ. WILLIAM D. MOORE, ESQ. 75 Public Square Building 602 Leader Building Suite 1200 Cleveland, Ohio 44114 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Carolyn A. Gay appeals from her conviction following a bench trial in the South Euclid Municipal Court for failure to display her driver's license and obstruction of official business following her citation for running a red light. Defendant contends her constitutional rights were violated. We find no error and affirm. At defendant's trial, the only witness to testify was the South Euclid police officer who issued defendant the citations. He testified that on February 17, 1995 he was performing traffic enforcement duties in the area of South Green and Laurel. He witnessed defendant's car and another car drive through a red light at the intersection. The officer testified that he motioned for defendant to pull over, which she did, he then proceeded to pull the other car over. As he stopped the other car, he noticed defendant driving away. He pursued her and pulled her over for the second time. After stopping defendant the second time, the officer approached the defendant's car and asked for her driver's license. Defendant disputed that she had run the light and refused to give the officer her license. The officer testified that the defendant became "abusive and vulgar" so he went back to his patrol car, obtained his mini tape recorder, and proceeded to tape the conversation. He asked defendant eight or nine times for her license. Each time she refused. She also refused to give her - 3 - name, although she did admit that she owned the car. After this impasse, the officer obtained the car's registration number and license plate number and told defendant to meet him at the station. The officer then went back to the other car and issued a citation to the other driver. Back at the station, the officer then ran defendant's license and registration numbers through the computer system and obtained the information he needed to issue defendant a citation. Once defendant arrived at the station, the officer issued her a citation for running the red light; for driving without a license and for obstructing official business. After receiving the citations, she produced her driver's license. The citation for driving without a license was then changed to failure to display her driver's license. This entire process took about an hour compared with the usual traffic citation of 15 minutes. After this evidence was submitted at trial, defendant pled no contest to the traffic light violation and was found guilty of the remaining charges. Defendant filed a motion to stay the execution of sentence pending appeal, which was granted. A timely appeal ensued. We will address the assignments of error in the order asserted. - 4 - I. THE COURT ERRED IN FINDING DEFENDANT GUILTY OF VIOLATING CITY ORDINANCE 527.07(B), "OBSTRUCTING OFFICIAL BUSINESS." Defendant claims that double jeopardy prevents the court from finding her guilty of both failure to display a license and obstructing official business. Defendant failed to raise this issue at trial. Defense counsel's motion for acquittal only argued that defendant's refusal to present her license was not an overt act which constituted an obstruction of official business and that the State could not amend the complaint. However, we will address defendant's constitutional argument based on plain error. In re M.D. (1988), 38 Ohio St.3d 149, 151; State v. Fields (1994), 97 Ohio App.3d 337, 344; State v. Lang (1995), 102 Ohio App.3d 243, 248; State v. Dehler (May 26, 1994), Cuyahoga App. No. 65006, 66020, unreported. R.C. 2941.25 deals with sentencing a defendant for allied offenses. It states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. - 5 - This statutory protection is rooted in the concept that multiple punishments for single crimes violate the Double Jeopardy Clauses of both the United States and Ohio Constitutions. State v. Thomas (1980), 61 Ohio St.2d 254, 260; State v. Lang (1995), 102 Ohio App.3d 243, 250; State v. Fields (1994), 97 Ohio App.3d 337, 347. The Ohio Supreme Court in Newark v. Vasirini (1990), 48 Ohio St.3d 81, syllabus, set forth the test to be used in determining if two offenses correspond to such a degree as to constitute crimes of similar import: Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. (State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816, 817, approved and followed.) The Court in Vasirini found that the offense of selling beer to a minor and the offense of contributing to the unruliness or delinquency of a minor were crimes of similar import, as the "commission of one offense necessarily results in the commission of the other offense as applied to the facts of this case." The South Euclid ordinances in question state as follows: - 6 - 335.06 DISPLAY OF LICENSE. The operator of a motor vehicle shall display his license, or furnish satisfactory proof that he has such license, upon demand of any peace officer or of any person damaged or injured in any collision in which such licensee may be involved. When a demand is properly made and the operator has his license on or about his person, he shall not refuse to display such license. 525.07 OBSTRUCTING OFFICIAL BUSINESS. * * * (b) No person shall abuse the Municipal Judge or any City officer in the execution of his office, or knowingly and purposely resist, obstruct or abuse any police officer or City official in the execution of his office. (Ord. 81-56. Passed 3-25-57.) (c) Whoever violates this section of [sic] guilty of obstructing official business, a misdemeanor of the second degree. (ORC 2921.31) Applying these ordinances to the facts of this case reveals that, when defendant refused to produce her driver's license in violation of South Euclid Ord. 335.06, she also violated the other ordinance by purposely resisting or obstructing the officer's ability to issue a citation. Therefore, these offenses appear to be crimes of similar import as the refusal to display the driver's license results in the commission of the other offense, i.e. resisting or obstructing the police officer in the execution of his duties. The test to be applied was quoted in State v. Lang (1993), 102 Ohio App.3d 243, 250, as follows: In determining whether the two offenses are allied offenses of similar import, a comparison - 7 - of the elements of the two offenses must be made. However, in making this comparison, it is not a comparison as to whether one offense cannot possibly be committed without committing the other, but rather whether the nature of the elements of the offenses is such that in some instances they may overlap, that is, that in certain instances, both crimes may be committed by the same conduct. It is not necessary that both crimes are always committed by the same conduct ***. (Whiteside J., sitting for Sweeney, J., concurring.) Blankenship, supra, 38 Ohio St.3d at 119, 526 N.E.2d at 816. However, in the case herein, defendant did not merely refuse to present her driver's license, she also attempted to drive away after being pulled over for running the red light. This required the officer to break off his citation of another driver's violation, pursue defendant and pull her over again. This conduct was separate and apart from defendant's failure to display her license, and constituted "knowingly and purposely resist[ing]" a police officer in the "execution of his office" as it obstructed his ability to proceed with issuing the traffic citation. This conduct was sufficient to establish "that the crimes were committed separately or that there was a separate animus for each crime [and] the defendant may be convicted of both offenses." Vasirini, supra. See, also, Waynesville v. Combs (1990), 66 Ohio App.3d 292, 297; Cleveland v. Barnes (1984), 17 Ohio App.3d 30, 34. This assignment of error is overruled. - 8 - II. THE COURT ERRED IN FINDING DEFENDANT'S SPEECH WAS NOT CONSTITUTIONALLY PROTECTED This assignment of error is moot and need not be considered since the defendant's attempt to drive away from the scene constituted sufficient evidence for her conviction of obstructing official business as previously discussed. App. R.12(A)(1)(c). Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the South Euclid Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .