COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69325 : CITY OF MAPLE HEIGHTS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DAVID J. DRAVES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 25, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case No. 94-CRB-4490 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: MICHAEL G. CIARAVINO, ESQ. SHERRY A. PIDALA, ESQ. Maple Heights Prosecutor 650 Broadway Avenue 5353 Lee Road Bedford, Ohio 44146 Maple Heights, Ohio 44137 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, David J. Draves, appeals his conviction of Obstructing Official Business in violation of R.C. 2921.31. Draves assigns the following for our review: I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTIONS FOR ACQUITTAL PURSUANT TO OHIO RULE OF CRIMINAL PROCEDURE 29 IN THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JUDGMENT AGAINST THE APPELLANT. II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXCESSIVE SENTENCE ON DEFENDANT. Having reviewed the record of proceedings, and the legal arguments presented by the parties, we affirm the decision of the trial court. The facts of this case are taken from the App.R. 9(C) state- ments as provided by both the prosecution and the defense. The trial court in its journal entry dated September 21, 1995 combined both statements and approved each. Consequently, this court, having reviewed both and considered the evidence in the light most favorable to the prosecution, presents the following facts. Officer Gene Kulp encountered David J. Draves on the morning of July 1, 1994 when Officer Kulp was directing traffic at the intersection of Friend Road and Lee Road, which was the scene of a gas leak. As a result of the encounter, Draves was arrested for obstructing official business. It is undisputed that the encounter occurred during a peak rush hour period, that the gas leak was the scene of an emergency, and that the area was being evacuated. Consequently, all traffic -3- was being diverted from the area. Additionally, it is undisputed that Draves' son drove into this area after Officer Kulp commanded him not to do so. Officer Kulp testified he ordered Draves' son to stop at least ten times, and on each occasion, he refused and continued into the area. Thereafter, Officer Kulp ordered Draves' son from the area at the threat of arrest. The son exited his vehicle and shouted at the officer, at which time Officer Kulp proceeded to issue a citation to the son for disobeying his order during an emergency. Draves charged toward Officer Kulp and positioned himself between Officer Kulp and his son and shouted "don't you f--- with him." Draves remained between Officer Kulp and his son, with clenched fists, and in a very hostile, combative manner, stated "Don't you f---ing interfere with him! You don't have no f---ing business stopping him! He's on private property!" Officer Kulp advised Draves to desist. Officer Kulp informed Draves he was interfering and could be arrested. Thereafter, Officer Kulp radioed for assistance. Draves continued standing nose-to-nose with Officer Kulp, with his fists clenched in a threatening manner, while continuing to yell profanities at the officer. Officer Kulp testified, because of Draves' actions, he was hindered from issuing the citation and unable to divert traffic from the area. Eventually, Draves was arrested for obstructing official business. He was ultimately found guilty by a jury and sentenced accordingly. -4- The issue raised in Draves' first assignment of error is whether sufficient evidence existed to find him guilty beyond a reasonable doubt. We think so and conclude his first assignment of error lacks merit. The substance of Draves' argument lies in the line of cases he cited in his brief. They all propound that an omission or failure to act does not constitute obstructing official business. Garfield Hts. v. Simpson (1992), 82 Ohio App.3d 286; State v. McCrone (1989), 63 Ohio App.3d 831; Hamilton v. Hamm (1986), 33 Ohio App.3d 175; and Columbus v. Michael (1978), 55 Ohio App.2d 46. Although we agree with Draves' analysis of the cases, we do not agree that his actions constituted an omission as defined by those cases. In fact, each case concludes that in order to be convicted of obstruction, the actor must be engaged in conduct that in fact impedes or hinders. Here, Draves approached the officer, placed himself between the officer and a suspect, and hindered the officer in the performance of his duty. As a result, the officer was hindered from both his attention on a suspect and his duties at the emergency. Consequently, in viewing the evidence in a light most favorable to the prosecution, a reasonable jury could find that the prosecution had quantitatively proven each essential element of the charge beyond a reasonable doubt. In Garfield Hts. v. Simpson, the court held there must be an illegal act, which causes the officer to perform his duty, and there must be interference with intent to impede that enforcement. Here, the illegal act was Draves' son's entrance into the forbidden -5- area during an emergency. This illegal act caused the officer to cite the son. The interference with the act of enforcement occurred when Draves placed himself between the officer and his son and said "don't f--- with him." This act interfered with the officer in the performance of his official business. Draves, however, argues he committed no affirmative act. An affirmative act has been defined by this court as the act of commission rather than omission. Garfield Hts. v. Simpson at 291. Consequently, the refusal to do an act has been held not to be obstruction of official business. Id. See Hamilton v. Hamm, supra, (refusal to sign an agreement to pay the fine imposed is not obstruction.) In Garfield Hts. this court cited other refusal to act cases as omissions and not commissions. In defining Simpson's actions in the Garfield Hts. case, this court concluded his refusal to get into the police cruiser was not obstruction. In this case, however, Draves approached officer Kulp who was in the process of issuing a citation to Draves' son; Draves with fist clinched placed himself between the officer and the suspect. Draves stood nose-to-nose with the officer impeding and hindering his ability to do his job. All the while Draves shouted profan- ities and on several occasions rebuked the officer by saying "don't f--- with him," referring to his son. Additionally, Officer Kulp was hindered from diverting traffic, which traffic he said continued to enter the forbidden area. Thus, under the Hamilton- Garfield Hts.-McCrone trilogy, Draves' action was commission which constitutes the crime of obstructing official business. -6- Accordingly, the trial court correctly refused to grant Draves' motion for acquittal. Thus, Draves' first assignment of error lacks merit and is overruled. In Draves' second assignment of error he asserts the trial court abused its discretion in sentencing him. Obstructing Official Business is a second degree misdemeanor. It carries a penalty of 90 days in jail or $750 fine or both. The trial court sentenced Draves to a $750 fine and cost, and suspended $500. Additionally, it sentenced Draves to 90 days in jail, 60 days suspended; one year active probation. This court concludes the trial court did not abuse its discretion. A trial court abuses its discretion when it walks in the area beyond its authority. Abuse connotes more than an error of law or judgment. It implies conduct by the trial court that is unreasonable, arbitrary, or unconscion- able. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Draves argues the trial court failed to consider the mitigation criteria of R.C. 2929.22. He claims it must not have considered them because it imposed the maximum sentence. Furthermore, he argues there were two mitigating factors the court ignored, i.e., no physical harm to the officer and Draves' lack of knowledge regarding the emergency. We find little merit in this argument. Where a criminal sentence is within statutory limits, the trial court is presumed to have considered the statutory mitigating criteria. State v. Crouse (1987), 39 Ohio App.3d 18. Draves has the responsibility to overcome this presumption, which he has not done. The two factors he points to raise in this -7- court's mind that the trial court did consider them as mitigatory because it suspended $500 of the fine and 60 days of the jail time. Consequently, we conclude Draves' second assignment of error is without merit and is overruled. Judgment affirmed. -8- 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 Garfield Heights 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. JAMES D. SWEENEY, P.J., and TIMOTHY E. MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .