State v. Lee , 2012 Ohio 2856 ( 2012 )

[Cite as State v. Lee, 2012-Ohio-2856.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 11-CA-0076
:
:
JASON LEE : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
10-CR-0618
JUDGMENT: Affirmed In Part, Reversed and
Remanded In Part
DATE OF JUDGMENT ENTRY: June 22, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ROBERT BANNERMAN
Prosecuting Attorney P.O. Box 77466
20 S. Second Street, Fourth Floor Columbus, Ohio 43207-0098
Newark, Ohio 43055
[Cite as State v. Lee, 2012-Ohio-2856.]
Edwards, J.
{¶1} Appellant, Jason Lee, appeals a judgment of the Licking County Common
Pleas Court convicting him of obstructing official business (R.C. 2921.31(A)) with a
firearm specification (R.C. 2929.14(D), 2941.145), aggravated menacing (R.C.
2903.21(A)), and possession of marijuana (R.C. 2925.11(A)(C)(3)(a)). He was
sentenced to three years incarceration on the firearm specification to run consecutively
to all other sentences, six months incarceration for obstructing official business, and 180
days incarceration for aggravated menacing to run concurrently with the sentence for
obstructing official business. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On September 23, 2010, officers from the Licking County Sheriff’s
Department went to appellant’s home at 9151 Linville Road, Newark, Ohio, to serve a
writ of possession. Deputies spoke to appellant and explained that his property had
been sold at sheriff’s sale and he needed to make arrangements to vacate. They
agreed on October 11, 2010 as the date by which appellant would vacate, but appellant
stated that he was going to hire an attorney to have the sale set aside.
{¶3} Deputies did not return on October 11, 2010, because a court action was
pending to review the propriety of the sale. However, on October 20, 2010, the court
denied a stay on the writ of possession. Deputies again spoke with appellant at his
home on October 25, 2010, and told him he needed to vacate on October 27, 2010.
{¶4} At about 9:30 a.m. on October 27, deputies arrived at appellant’s home.
Appellant was standing on the front sidewalk. He yelled something to the officers about
having sold his house to someone else and told them to leave. Appellant then ran in
Licking County App. Case No. 11-CA-0076 3
the front door of the home. Officers followed appellant to the front porch but appellant
would not come out or let them in the house. He yelled through the front door that he
was not coming out.
{¶5} Deputies returned to their vehicle to telephone the buyers to inform them
not to come to the property that morning as planned. They called appellant’s attorney,
and also called their supervisor, Captain Bruce Myers. Deputy Tim Caldwell went
around to the back door to attempt to talk to appellant. The blinds covering the French
doors on the back porch flew open and the faces of appellant and another man, later
identified as Karl Weatherby, appeared against the window. The two men began yelling
and screaming at Dep. Caldwell. The corners of their mouths were “full of white stuff”
from yelling and screaming and they were spitting on the window.
{¶6} When Captain Bruce Myers arrived, he went to the back door to speak
with appellant. He advised appellant through the door that appellant’s attorney was on
his way. Capt. Myers saw an arm and a hand come around the side of the blinds
covering the door. The hand was holding a pistol.
{¶7} Much of the staff of the Sheriff’s Department had been dispatched to an
incident involving a van, containing a pipe bomb, which crashed into a church following
a pursuit earlier that morning. At least 25 employees of the Sheriff’s Department and
fire department were dispatched to appellant’s home, including the SWAT team and the
hostage negotiating team.
{¶8} Appellant would not speak to the hostage negotiators through a “throw
phone,” which is the preferred method of communicating so that all communications can
be monitored by the police. However, he agreed to speak to Misty VanBalen through a
Licking County App. Case No. 11-CA-0076 4
cell phone. VanBalen faxed the paperwork concerning the sale of the house to
appellant so they both had all the relevant court papers. Appellant repeatedly told her
that he wanted to die, that he was going to kill whoever entered the residence first and
then kill himself. He also told her that he and Weatherby had a plan to kill each other.
He told her that he could see the officers through the window and could take them out.
He intended to die and take out as many people as he could. Appellant would speak
calmly with her for awhile, then start yelling and hang up. He told her that he had
shown a gun to an officer and knew he was in trouble, he still had the gun, and he
wasn’t going to put it down. He told her he had other guns in the house, including rifles
which Weatherby knew how to handle because he had been in the military. He said
that he wanted the media to be there when he died.
{¶9} At about 4:15 p.m., Weatherby agreed to come out unarmed and speak to
the media. Appellant and Weatherby were both concerned about how their cats were
going to get fed if they surrendered. VanBalen agreed to feed the cats. Appellant came
out of the house at 6:30 p.m.
{¶10} During a subsequent search of the house, officers found marijuana. They
also found three firearms in a cabinet in a basement office, a loaded firearm in a
garage, a revolver in the first floor dining room, a rifle leaning against an end table in the
living room, and a rifle in the corner of a first floor bathroom.
{¶11} Appellant admitted to police that he grabbed a firearm and went to the
back door. He did not deny brandishing a weapon at Captain Myers and indicated that
he had a weapon with him. He also admitted that he planned to shoot the first person
through the door and then shoot himself.
Licking County App. Case No. 11-CA-0076 5
{¶12} Appellant was indicted by the Licking County Grand Jury with obstructing
official business, inducing panic, aggravated menacing, possession of criminal tools,
possession of marijuana, and two firearm specifications. The first firearm specification,
applicable to counts one and two, alleged that appellant had one or more firearms on or
about his person or under his control or that of an accomplice. The second firearm
specification, also applicable to counts one and two, alleged that appellant or an
accomplice displayed, brandished, indicated that they possessed a firearm or used it to
facilitate the offense.
{¶13} Following jury trial in the Common Pleas Court, appellant was acquitted of
inducing panic. The jury could not reach a verdict on the charge of possession of
criminal tools. Appellant was convicted of all other counts. The trial court merged the
firearm specifications and sentenced appellant to a term of incarceration of three years,
to be served prior to and consecutively to the remainder of his sentence. He was
sentenced to six months incarceration for obstructing official business, and 180 days
incarceration for aggravated menacing to run concurrently with the sentence for
obstructing official business.
{¶14} Appellant assigns three errors on appeal:
{¶15} “I. WAS THE JURY’S FIREARM SPECIFICATION SPECIAL FINDING
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} “II. THE DEFENDANT’S SENTENCING ENTRY WAS DEFECTIVE BY
MERGING FIREARM SPECIFICATIONS FOR A COUNT IN WHICH HE WAS FOUND
NOT GUILTY.
Licking County App. Case No. 11-CA-0076 6
{¶17} “III. THE TRIAL COURT IMPROPERLY ALLOWED PREJUDICIAL
CUMULATIVE FIREARM EVIDENCE TO GO TO THE JURY, AND EXCLUDED
EXCULPATORY MENTAL STATE CIVIL FORECLOSURE ERRORS TO BE
PRESENTED TO THE JURY.”
I
{¶18} Appellant argues that the finding on the firearm specification was against
the manifest weight of the evidence. He argues that because Capt. Myers did not see
the face of the person who brandished the weapon, there was a 50/50 chance it was
Karl Weatherby and not appellant who brandished the firearm.
{¶19} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983).
{¶20} R.C. 2929.14(D) provides for a three year term of incarceration if the
offender had a firearm “on or about the offender's person or under the offender's control
while committing the offense and displaying the firearm, brandishing the firearm,
indicating that the offender possessed the firearm, or using it to facilitate the offense.”
{¶21} Misty VanBalen testified that appellant told her he knew was in trouble and
that he had shown a gun to an officer. He told her that he still had the gun and wasn’t
Licking County App. Case No. 11-CA-0076 7
going to put it down and that he had other guns. He told her he intended to shoot the
first person who walked through the door and then kill himself. Detective Brock Harmon
interviewed appellant after the incident. Appellant admitted that he grabbed a firearm
and took it with him to the back door and that he planned to shoot the first person who
walked through the door and then shoot himself. Numerous firearms were found in a
search of the house, including several on the first floor. Captain Myers identified the
pistol that was displayed to him through the back door.
{¶22} The judgment on the firearm specification is not against the manifest
weight of the evidence.
{¶23} The first assignment of error is overruled.
II
{¶24} In his second assignment of error, appellant argues that the court erred in
merging the firearm specifications on both counts one and two, as he was not convicted
of count two, inducing panic.
{¶25} The court’s sentencing entry states in pertinent part:
{¶26} “The Court finds that the defendant has been convicted of Obstructing
Official Business (Count 1), a violation of O.R.C. Section 2921.31(A), a felony of the fifth
degree; Firearm Specification to Counts 1 and 2, in violation of O.R.C. Section
2929.14(D) and 2941.145; Aggravated Menacing (Count 3), in violation of O.R.C.
Section 2903.21(A), a first degree misdemeanor; and Possession of Marijuana (Count
5), in violation of O.R.C. Section 2925.11(A)(C)(3)(a), a minor misdemeanor.
Licking County App. Case No. 11-CA-0076 8
{¶27} “For reasons stated on the record, and after consideration of the factors
under Ohio Revised Code Section 2929.12, the Court also finds that prison is
mandatory.
{¶28} “The Court finds that the separate firearm specifications to Counts 1 and 2
merge.
{¶29} “It is, therefore, ordered that the defendant serve a state mandatory prison
term of three (3) years on the firearm specification to be served prior to and
consecutively with a term of six (6) months on Count 1 at the Orient Reception Center.
Further, the Court imposes a term of 180 days in jail on Count 3 and orders it run
concurrently with the sentence of Count 1.”
{¶30} The jury convicted him of count one, obstructing official business, and
both firearm specifications attached to this count. The court merged these
specifications for sentencing, but incorrectly stated that the specification was attached
to Counts 1 and 2. Because appellant was acquitted on Count Two, the firearm
specification was only applicable to Count One.
{¶31} Appellant argues that he should be resentenced. We disagree. While the
entry should be corrected to remove the reference to the firearm specification on Count
2, appellant’s sentence was not affected by this error. Appellant was convicted of the
firearm specification on Count 1, and accordingly was sentenced to three years
incarceration on the specification.
{¶32} The second assignment of error is sustained.
Licking County App. Case No. 11-CA-0076 9
III
{¶33} In his third assignment of error, appellant argues that the court erred in
admitting evidence of firearms found in the house in addition to the weapon identified as
the one brandished to Captain Myers. He also argues the court erred in excluding
evidence that there were errors made in his civil foreclosure case because such
evidence was relevant to his state of mind.
{¶34} The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 51 N.E.2d 343, paragraph
2 of the syllabus (1987). An abuse of discretion implies that the court acted
unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶35} Appellant argues that the evidence of other firearms found in the
residence should have been excluded under Evid. R. 403:
{¶36} “(A) Exclusion mandatory. Although relevant, evidence is not admissible if
its probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.
{¶37} “(B) Exclusion discretionary. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by considerations of undue
delay, or needless presentation of cumulative evidence.”
{¶38} While appellant objected before trial and during the testimony of Det. Marc
Brill to the admissibility of any gun but the gun displayed to Capt. Myers, appellant failed
to renew the objection when the exhibits were admitted, and stated that he had no
objection to the admission of the exhibits. Tr. 396. All of the weapons were included in
Licking County App. Case No. 11-CA-0076 10
these exhibits. Generally, when a party fails to renew an objection at the time exhibits
are admitted into evidence, that party waives the ability to raise the admission on appeal
absent plain error. Odita v. Phillips, 10th Dist. 09AP-1172, 2010-Ohio-4321, ¶56, citing
Nicula v. Nicula, 8th Dist. No. 84049, 2009-Ohio-2114. In order to prevail under a plain
error analysis, appellant bears the burden of demonstrating that the outcome of the trial
clearly would have been different but for the error. State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at
paragraph three of the syllabus.
{¶39} Appellant argues that the 9 mm Beretta and the Smith & Wesson
semiautomatic were locked in a cabinet in the basement. He further argues that
evidence that one of the rifles was capable of piercing body armor was unfairly
prejudicial and confused the jury.
{¶40} The testimony shows that these weapons were found in a cabinet in the
basement, but the evidence does not support appellant’s claim that the cabinet was
locked. Further, the Beretta was identified by Captain Myers as the weapon brandished
at the back door, which he recognized by the after-market aiming laser attached to the
weapon. Throughout the incident, appellant made the hostage negotiator aware that
they had rifles and Weatherby knew how to handle them from being in the military. He
informed VanBalen that he could see officers through the window and could take them
out. Evidence of the firearms was relevant to proving the firearm specification. Further,
the obstructing official business charge was elevated to a felony pursuant to R.C.
2921.31(B) because the offense created a risk of physical harm to any person. The fact
Licking County App. Case No. 11-CA-0076 11
that appellant and Weatherby were armed with multiple kinds of weapons, several of
which were found on the first floor of the home, was relevant to proving that appellant
created a risk of harm to the officers he threatened throughout the course of the
incident.
{¶41} Appellant has not demonstrated error in admission of the firearms.
{¶42} Appellant next argues that the court erred in excluding evidence that he
believed the court made a mistake in ordering the sheriff to execute the writ because
there were errors in the process by which the writ of possession was obtained.
{¶43} Appellant’s claim is essentially one of defense of property. Ohio law does
not provide appellant the right to defend his property by threatening to shoot police
officers who are there to execute a writ of possession issued by a court of law simply
because he believes there were errors made in the civil proceeding that led to the
sheriff’s sale of his property.
{¶44} In State v. Burns, 2nd Dist. No. 22674, 2010-Ohio-2831, the appellant
argued that her conviction for obstructing official business was against the manifest
weight of the evidence because the officer whom she impeded in his efforts to search
her mother’s home was there unlawfully, without a search warrant. The court rejected
this argument, holding:
{¶45} “Appellant contests that Officer Wolpert was performing ‘lawful duties’
when he entered her mother's house prior to obtaining a search warrant. Although an
unlawful entry may result in the exclusion of evidence, ‘absent bad faith on the part of a
law enforcement officer, an occupant cannot obstruct the officer in the discharge of his
duty, whether or not the officer's actions are lawful under the circumstances.’ State v.
Licking County App. Case No. 11-CA-0076 12
Stevens, Morgan App. No. 07-CA-0004, 2008-Ohio-6027, ¶ 37, quoting State v.
Paumbaur (1984), 9 Ohio St.3d 136, 138. There is no evidence of ‘bad faith’ on the part
of Officer Wolpert. He explained that his reason for entering the home was to ensure the
safety of all concerned and to ensure that evidence could not be removed or destroyed.
Even if Officer Wolpert's entry had been unlawful under these particular circumstances,
absent evidence of bad faith, Appellant was not justified in obstructing his efforts to
secure the residence.” Id. at ¶19.
{¶46} In the instant case, appellant’s proffered evidence did not demonstrate in
any way that the police were acting in bad faith. The evidence suggested that as of
October 27, 2010, the deed to the home was still in appellant’s name. However, as
noted by the court, nothing in appellant’s proffered testimony demonstrated that the
sheriff acted in bad faith in executing the writ of possession. While it might be
uncommon for a writ to issue prior to the deed being recorded, the sheriff’s department
had a writ of possession and a judgment of the court, dated October 20, 2010, denying
appellant’s motion for a stay on the writ of possession. The court did not err in
excluding evidence that the writ issued before the deed was recorded and before the full
purchase price was paid.
{¶47} Further, while a homeowner may say almost anything to officers in an
attempt to persuade them not to enter, the Fourth Amendment does not grant a
homeowner the right to use deadly force to resist an unlawful entry. State v. McCoy, 2nd
Dist. No. 22479, 2008-Ohio-5648, ¶19. In the instant case, appellant’s right to resist
entry, even if the police were acting on bad faith, did not extend to a threat of deadly
force and show of a firearm.
Licking County App. Case No. 11-CA-0076 13
{¶48} The third assignment of error is overruled.
{¶49} The judgment of the Licking County Common Pleas Court is affirmed in all
respects except the merger of the firearm specification on Count Two. This cause is
remanded to that court for the limited purpose of correcting the judgment to remove the
reference to a firearm specification on Count Two, on which appellant was acquitted.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0227
[Cite as State v. Lee, 2012-Ohio-2856.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JASON LEE :
:
Defendant-Appellant : CASE NO. 11-CA-0076
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is reversed solely as to the
reference to the firearm specification on Count Two, and remanded for the limited
purpose of correcting the judgment entry. In all other respects the judgment is affirmed.
Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES