COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71077 : CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ANNETT SHIELDS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 12, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 94-CRB-2546 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: MICHAEL T. FISHER, ESQ. ALAN C. ROSSMAN, ESQ. Assistant City Prosecutor 1224 Standard Building 8th Floor Justice Center 1370 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Annett Shields, defendant-appellant, appeals a trial judge's bench verdict finding her guilty of resisting the arrest of her nephew, Nicarlo Williams. Shields assigns the following four errors for our review: I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR ACQUITTAL (CRIMINAL RULE 29) WHEN IT RULED THAT APPELLANT'S CONDUCT WAS UNDER TAKEN `RECKLESSLY' AS IS REQUIRED FOR A CONVICTION UNDER CLEVELAND CITY ORDINANCE 615.08. II. THE CONVICTION OF APPELLANT FOR RESISTING THE ARREST OF ANOTHER UNDER CLEVELAND CITY ORDINANCE 615.08 WAS BASED UPON INSUFFICIENT EVIDENCE. III. THE TRIAL COURT ERRED IN SIMPLY DISMISSING THE TESTIMONY OF APPELLANT'S CHARACTER WITNESSES BECAUSE `THEY WERE NOT HERE ON THAT DAY.' (T.206) IV. THE TRIAL COURT'S VERDICT OF GUILTY WAS AGAINST THE WEIGHT OF THE EVIDENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow. Officers Gaetner and Mazur of Cleveland Narcotic Unit began chasing defendant after they observ what they believed to be a drug transaction. During the chase, they observed Williams drop a bag containing cocaine. Williams ran to the home of his aunt, Annett Shields. According to Shields, Williams knocked on her door, and after identifying himself, was allowed to enter. Afterwards, Shields ascended up the stairs. Williams ran past her muttering "they're going to get me." Shields explained that she was standing on the -3- stairway landing when she observed both officers Gaetner and Mazur ascend the stairs. She testified Williams then pulled her in front of him. She stood in that position while questioning the officers regarding their presence in her home. Officer Gaetner verified that Shields was on the landing when he and Mazur began their ascent on the stairway. While the officers were on the stairs and Shields on the landing, Shields asked who they were and why they were in her house. The officers responded "shut up" and "get out of the way." Shields testified the officers were in plain clothing. Shields claimed it was within seconds when six other officers entered the house. Shields again requested information concerning the officers' presence in her home. She was told to shut up and one officer said "arrest that fat bitch." Shields testified the entire incident lasted two minutes, and the evidence showed Shields was arrested without incident. She said she was only told to "shut up." The officers testified that before entering, they knocked on the door and identified themselves as the police. An elderly woman opened the door for them. Upon entering the house, the officers noticed footprints of snow on the stairs. They proceeded up the stairs to search for Williams. Officer Mazur testified that he found Williams under a bed in an upstairs bedroom. After retrieving Williams from under the bed, Officer Mazur placed him in handcuffs and arrested him. As Mazur began to descend the stairs with Williams, Shields appeared and -4- yelled at the officers. She demanded to know who they were and why they were in her home. Officers Shoulders and Deli testified that 1 this is the moment they arrived on the scene. All four officers stated they repeatedly identified themselves as the police, that the word "POLICE" was printed on their jackets, and that their badges and handcuffs were visible. However, not all of the officers wore "POLICE" jackets. Shields and her young daughter, Christina, testified that no one went into the rooms upstairs as Officer Mazur stated. They also testified that neither of them saw the word "POLICE" on the officers' jackets, nor did they see handcuffs or badges. Officer Deli stated he told Shields to "step out of the way. The man is under arrest." When she did not move, Officer Deli told her that she would be arrested for obstruction of justice. Shields admits she repeatedly and loudly requested identification from the officers. Shields testified that if she had known the circumstances from the start, she would have made Williams leave her home so that the officers could arrest him outside. At the end of the case, the trial court found Shields guilty. She was sentenced to one year inactive probation and fined $100.00. This appeal followed. In Shields' first assignment of error, she argues the trial court erred as a matter of law in not granting her Crim.R. 29 1 There were at least two additional officers, Sampson and Gercar, who arrived when Shoulders and Deli did. -5- motion for acquittal. She claims the prosecution failed to prove that her conduct was reckless under the resisting arrest charge. "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of the crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261 at the syllabus. The converse of this rule is also true. If reasonable minds believe the evidence is "so slight or of so little probative value" that reasonable doubt is raised as to the accusers' guilt, the motion must be granted as a matter of law. Id. In substance, Shields argues the evidence against her was so slight as to lack probative value. Thus, as a matter of law on the issue of recklessness, the trial court should have granted her Crim.R. 29 motion. Recklessness exists when the accuser's conduct "shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reason- able, correct, or generally accepted as a course to follow in protecting the safety of others." Rosman v. Sammett (1971), 26 Ohio St.2d 94, 97. For example, going limp when under arrest is the kind of stubbornness proscribed by the resisting arrest law. Rosman goes on to define recklessness as the kind of perversity that an actor engages in "under circumstances and existing conditions that the party doing the act, or failing to act, must be conscious from his knowledge of such surrounding circumstances and existing conditions that his conduct will in all -6- common probability result in injury" or, as in this case arrest. Id. The evidence showed Williams came into Shields' house, ascended the stairs, and pulled Shields in front of him after having said "they're are going to get me." Shields was standing on the landing when Officer Gaetner and Mazur began ascending the stairs. Shields then asked them why they were in her house. To this they responded, "shut up and get out of the way." Shields continued to ask why they were in her house. Two minutes elapsed and she was arrested. Eight officers were in the home to arrest Williams. None of this evidence established that Shields was doing anything but standing in her own home. She did not physically hinder the officers from arresting Williams. She neither hid nor shielded him from the police. Even favorably looking at the prosecution's explanation, we cannot conclude Shields acted recklessly. They claim Shields refused to acknowledge the police authority when she stood between Williams and eight Cleveland police officers and said "you are not going to take him." However, there is nothing in the prosecution's case that suggests that the police could not arrest Williams until they arrested Shields. In fact, the police contradicted them- selves. Officer Mazur testified they were descending the stairs when Shields positioned herself between the officer and a hand- cuffed Williams. Officer Gaetner said they confronted Shields when they ascended the stairs before they had Williams in custody. -7- Regardless of the positioning, none of the city's testimony showed Shields doing anything but talking and standing in her own house. Even under Officer Mazur's account there didn't seem to be any effort to keep him from continuing down the stairs with the handcuffed Williams. Besides, under Rosman, the relevant inquiry for us is what was the actor's inaction in the context of her knowledge of the facts and circumstances existing at the time, which would have enlightened her that her conduct would probably result in her arrest. Shields testified that she was standing in her house requesting information from strangers who were apparently chasing Williams. Her action was not to shield Williams but to receive information. Under the circumstances why would any person in her home believe that asking questions would lead to her arrest? The officers' testimony suggested that they were annoyed with Shields' questions not that they were prevented from accessing Williams. In fact, according to Officer Mazur, Williams was already handcuffed and under arrest. Furthermore, obstinate stubbornness would seem to be indica- tive of prolonged behavior. Shields testified the incident lasted two minutes. The officers testified it lasted one to two minutes. Thus, her request for information over a two minute period did not prolong Williams' arrest. Her request merely annoyed the officers, which is not sufficient to establish recklessness. Consequently, we believe as a matter of law the Crim.R. 29 motion should have been granted. -8- In her second assignment of error Shields argues the trial court erred because the evidence was insufficient as to resisting arrest. The test for sufficiency of the evidence is whether "*** after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia (1979), 443 U.S. 307, 312; State v. Jenks (1991), 61 Ohio St.3d 259; and State v. Garner (1995), 74 Ohio St.3d 49. Our conclusion is that even if what the prosecution witnesses said is true, the evidence does not show recklessness on Shields' part. Consequently, we conclude that, because the evidence was so slight as to lack probative value on the issue of recklessness, reasonable minds should have had a reasonable doubt as to her guilt. Therefore, Shields' assigned error two is sustained. As a result of our conclusions as to assignments of error one and two, we conclude Shields' assigned errors three and four are moot. Shields is hereby discharged. Judgment reversed. -9- This cause is reversed. It is, therefore, considered that said appellant recover of said appellee her 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. Exceptions. KARPINSKI, J., and O'NEILL,*, J., CONCUR. PATRICIA ANN BLACKMON JUDGE (*SITTING BY ASSIGNMENT: JOSEPH E. O'NEILL, RETIRED JUDGE OF THE 7TH DISTRICT COURT OF APPEALS.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .