The state’s theory of the case, however, does not constitute the offense of obstructing official business.
State v. Kelly
2022 – Ohio – 1696
Sixth District Appellate Court
May 20, 2022
On Sunday October 25, 2020 Toledo Police Officer Nicole Tucker observed a male later identified as Mr. Anthony Kelly driving with an expired registration sticker on his vehicle. Officer Tucker began to follow the vehicle, and initiated a traffic stop as Mr. Kelly was parking his car in the parking lot of the Oak Hills Apartment complex.
Officer Tucker stopped Mr. Kelly at the Oak Hill Apartment complex in Toledo, Ohio which led to his arrest and subsequent appeal.
Officer Tucker testified that she approached the vehicle and asked Mr. Kelly to present his driver’s license and insurance, and he refused. Officer Tucker asked several more times for his license and insurance information, and Mr. Kelly responded that he was not going to give it to her because he was home, and there was nothing that she could do. Officer Tucker testified that Mr. Kelly’s act of refusing to produce his driver’s license or insurance information impeded her lawful duties to conduct an investigation at that traffic stop. Officer Tucker did note, however, that once she ran the vehicle registration, she was able to determine that Mr. Kelly had a suspended driver’s license.
Officer Tucker then ordered Mr. Kelly to step out of the vehicle, and Mr. Kelly replied that he was not going to get out of the vehicle. Officer Tucker informed Mr. Kelly that if he did not exit the vehicle, then he was going to go to jail. Mr. Kelly continued to refuse to get out of the vehicle, so Officer Tucker used force to remove him.
Officer Tucker stated that Mr. Kelly did not comply with her efforts to get him out of the vehicle, and that he tried to pull himself back into the vehicle. Mr. Kelly wrapped his hand around the door of the car and attempted to pull away from Officer Tucker. Officer Tucker testified that she was able to pry Mr. Kelly’s fingers off of the door frame, and then her partner, Officer James Schroeder, assisted in placing Mr. Kelly’s hands behind his back so that he could be handcuffed. Officer Tucker testified that Mr. Kelly was actively pulling away and resisting while she was placing the handcuffs on him.
Officer Tucker’s bodycam video was entered into evidence and played for the court. The video shows Officer Tucker approaching the passenger’s side of Mr. Kelly’s vehicle and asking him how he is doing. Mr. Kelly responds that he is “bored.”, soon his boredom would be satiated. Officer Tucker then asks for his license and insurance, and Mr. Kelly replies “I’m at home.” Officer Tucker asks again, and Mr. Kelly looks down at the middle console and replies, “something right here.” Officer Tucker then walks around to the driver’s side of the vehicle, and while walking, she comments that “this isn’t going to go well.”. Officer Tucker is a wise officer.
Once at Mr. Kelly’s driver’s side window, she says “Give me your driver’s license and insurance please.” Mr. Kelly begins looking in his console again and can be heard saying something that sounds like “it’s in a card, ma’am.” Officer Tucker tells Mr. Kelly to keep his hands where she can see them, so he stops looking through the console and puts his hands up by the wheel. Officer Tucker then asks, “Do you even have a license, and don’t lie to me because I already know the answer to this.” Mr. Kelly responds, “You know everything about me.” Officer Tucker then opens the driver’s side door and instructs Mr. Kelly to come out of the vehicle.
Mr. Kelly remains seated in the vehicle for about seven seconds while Officer Tucker tells him four times to come out. When Officer Tucker tells Mr. Kelly to come out of the car and put his hands on top of the car, Mr. Kelly raises both hands as if to surrender while still seated in the driver’s seat. Officer Tucker again tells Mr. Kelly to come out of the car, her voice becoming more assertive in tone. Mr. Kelly looks at Officer Tucker and asks “Who told you all this?” Officer Tucker then warns Mr. Kelly, “Don’t make me pull you out of this car,” to which Mr. Kelly responds, “Lady if you was to kill me I wouldn’t get a (unintelligible).” Officer Tucker replies “Did I say that?” and then forcefully yells at Mr. Kelly to get out of the car. Mr. Kelly says “I’m getting out the car,” but is not making any movements to do so. Mr. Kelly then asks Officer Tucker if her camera is on, and she replies “Yes.”.
Mr. Kelly only begins to slowly move his legs as Officer Tucker begins pulling on his left arm. Mr. Kelly then exclaims, “You ain’t gotta grab me like this,” and Officer Tucker replies, “Apparently, I do.” Mr. Kelly repeats that “You ain’t gotta grab me cause you know I was gonna get out.” While Mr. Kelly was saying that, he can be seen getting out of the car. As he gets out of the car, Mr. Kelly grabs the top of the car door with both hands. The camera shows Officer Tucker putting Mr. Kelly’s left hand behind his back. As this is happening, Mr. Kelly’s right hand can be seen loosening its grip on the car door, but then the view of Mr. Kelly’s right hand becomes obscured. About four seconds later, Officer Tucker demands that Mr. Kelly put his right hand behind his back, because he had not yet done so. Officer Tucker then handcuffs Mr. Kelly and walks him over to her police cruiser, informing him that he is being arrested for “obstructing” and “resisting.”
We note that Officer Tucker ordered Mr. Kelly out of the car after approximately twenty-two seconds of questioning regarding his license and insurance, and the entire encounter from when Officer Tucker first approached Mr. Kelly to when she secured the handcuffs on him took approximately eighty seconds. This brevity would be at the core of Mr. Kelly’s appeal.
Mr. Kelly remained calm and composed the whole time. He did not yell or raise his voice. He did not utter profanities. He did not make any verbal threats. He did not make any menacing gestures or sudden movements with any part of his body. Although Mr. Kelly’s verbal answers were not directly responsive to Officer Tucker’s questions regarding his license and insurance, and although Mr. Kelly moved slowly when ordered out of the vehicle, it is clear from the video that Mr. Kelly did not exhibit any belligerent, argumentative, or obstreperous behavior at any time during the stop.
Officer Schroeder also testified about the incident. Officer Schroeder testified that he observed Mr. Kelly driving on Hill Avenue with an expired registration sticker. Once the stop had been initiated, Officer Schroeder heard Officer Tucker ask Mr. Kelly several times for his driver’s license and insurance information, but Mr. Kelly failed to provide it. Officer Schroeder claimed that Mr. Kelly’s actions of refusing to produce his license and insurance, and staying in the car, impeded Officer Schroeder’s lawful duty to conduct an investigation into the stop.
Officer Schroeder testified that Officer Tucker opened the driver’s side door and escorted Mr. Kelly out of the car by grabbing his left arm and applying pressure to a point on the back of his right shoulder. Officer Schroeder described that when they got Mr. Kelly’s left hand behind his back, Mr. Kelly clutched the door frame of the car with his right hand and would not give his right hand to the officers. Officer Schroeder detailed that Mr. Kelly “had a full grip on the — it was not resting, it was more of a grip onto the door.” Officer Schroeder testified that Officer Tucker “pried his fingers off of the door where he had gripped it. And each time he kind of made a movement like he was trying to, you know, pull away.”. Officer Schroeder further testified that Mr. Kelly “pulled away a couple times,” but because of where Mr. Kelly was positioned between the car door and the body of the car he really could not go anywhere. According to Officer Schroeder, although Mr. Kelly did not engage in any wild movements, he nonetheless actively resisted his arrest.
Officer Schroeder’s body camera video was also entered into evidence and played for the court. In the video, Officer Tucker can be seen grabbing Mr. Kelly’s left arm with her left arm, and placing her right arm inside the vehicle, presumably on Mr. Kelly’s back. Although Mr. Kelly initially grabs the top of the car door with both hands, he quickly allows his left hand to be placed behind his back. Officer Schroeder can be seen holding Mr. Kelly’s left arm, but the video is obscured and does not show any of Officer Tucker’s struggle with Mr. Kelly’s right arm.
Mr. Kelly, in his own defense, testified that he was not driving that day, and was simply listening to music in his car. Mr. Kelly described that when Officer Tucker approached him she was aggressive and in a hurry to “beat [him] down,” but he was calm. Mr. Kelly testified, in effect, that he was complying with Officer Tucker, but that he was moving slowly and she wanted to rush him.
Once Mr. Kelly was arrested and in the back of the police cruiser, Mr. Kelly began making threatening comments, and continued doing so after they arrived at the jail. According to Officer Tucker, Mr. Kelly told the officers that “he should have just killed us when he had the chance and that he should have fought us much more than he did.” Mr. Kelly also threatened to cut the heads off of white people and threatened to shoot Officer Tucker with an AK-47. Officer Tucker testified that while some of Mr. Kelly’s threats were general comments, others were personal to her, and caused her to fear for her own safety.
Video from Officer Tucker’s body camera was again entered into evidence and played for the court. The video showed the officers and Mr. Kelly arriving at the jail. Mr. Kelly refused to exit the cruiser, and insisted that Officer Tucker grab him out, just like she grabbed him out of his car. As Mr. Kelly was being escorted into the jail, he began a long, expletive-filled tirade, in which he repeated over and over that he “hate[s] white people.” Mr. Kelly also threatened, “I wish I could cut ‘em by the motherf***in neck,” and “You can do completely nothin’ until you stab ‘em, right where the f*** they work at, nig***. * * * And if you could vote for Trump, nig***, kill that nig***. F*** white people, nig***.”
Officer Schroeder likewise testified that as they were driving Mr. Kelly to the jail, Mr. Kelly was making statements about how he should have fought them more, and that he should have killed them when he had the chance. Once they arrived at the jail, Officer Schroeder testified that Mr. Kelly told Officer Tucker that he had an AK-47 with her name on it and that she should get a TPO against him. Only someone who has previously been subject to a TPO would suggest that Officer Tucker get a TPO.
Officer Schroeder’s body camera video was also entered into evidence and recorded much of the same threats made by Mr. Kelly as Officer Tucker’s video. Upon the conclusion of the trial, the trial court found Mr. Kelly not guilty of the traffic charges against him—i.e., tinted glass violation, expired registration, seatbelt violation, and driving under suspension.
The trial court specifically noted that the state failed to meet its burden to prove these violations beyond a reasonable doubt. The trial court explained that the state did not produce any evidence beyond the testimony of the officers to prove that Mr. Kelly was operating a motor vehicle with excessively tinted glass or expired plates, and it found that the officer testimony, alone, did not satisfy the state’s high burden of proof.
Similarly, the trial court noted that although the officers testified that Mr. Kelly did not have his seat belt on, the state did not produce any evidence beyond that “conclusory statement” to demonstrate “what led [the officers] to that conclusion.” Finally, on the charge of driving under suspension, the trial court found that the state did produce a LEADS report, but that the report was not certified, and there was no testimony as to the type of driver’s license suspension, the length, the date that it started, or the date that it ended.
The trial court then addressed the criminal charges against Mr. Kelly and found him guilty on all counts. Specifically, the trial court found Mr. Kelly guilty of the offense of obstructing official business, reasoning:
[T]aking the totality of the circumstances that occurred within that time, the defendant’s not answering her question in a reasonable way when she asked for his license; he said I’m bored. Asked again for his license; he said I’m at home. He refused to exit the vehicle in the parking lot. His body language, according to the officer, was tensing up, you know, hunkering down. The footage from her camera shows clearly that she’s grabbing the suspect’s left arm. She testified that there was a pressure point that is off the camera. You know, the body cameras aren’t perfect, you only see a very limited view. We can’t see what’s outside of the view of that camera. But her testimony indicated that she had a pressure point on him and was pulling him out of the car, that he was not exiting the car upon her reasonable command. And then he grabbed the door, and her testimony revealed that he had — she had to pry his hand off of the doorframe.
And, again, looking at his conduct and the totality of the circumstances, the court is aware he was already under arrest for obstructing when he got down to the sallyport at the jail, but certainly that obstructive conduct continued in the sallyport, refusing to exit there and, again, having them having to delay and having to take extra steps to simply get him out of the car.
In finding Mr. Kelly guilty on the offense of resisting arrest, the court commented:
As to the resisting, some of the conduct overlaps; pulling away from
the officer, refusing to put his hand behind his back and as a consequence Officer Schroeder that he had to assist her in getting both hands behind his
back. Officer Schroeder indicated he had to grab his left wrist while
Officer Tucker was prying his fingers off of the doors. And, again, this
conduct is somewhat fluid in going from the obstructing into the point
where they’re asking you to put your hands behind your back because
you’re now under arrest. The act of grabbing the door to get out of the car,
I could see that, but when she’s literally prying your fingers off. You
weren’t letting go, you were resisting, you were pulling away. It was
quick. It’s not the worst resisting I’ve seen. It’s certainly not the worst
resisting they’ve experienced, but it was there.”
Finally, on the offense of aggravated menacing, the court found Mr. Kelly guilty based upon his specific threat to Officer Tucker that he had an AK-47 with her name on it and that she needed to get a TPO.
Following the trial, the court proceeded immediately to sentencing, and ordered Mr. Kelly to serve 180 days in jail on the charge of aggravated menacing, and 90 days in jail, each, on the charges of resisting and obstructing. The court suspended all of the days of the sentence, and ordered Mr. Kelly to serve one year of probation, with the conditions that he have no more criminal convictions, and that he be fully compliant with his treatment at the Zepf Mental Health Center.
Analysis
Obstructing Official Business
No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties. O.R.C. 2921.31(A)
The court held “(N)ot only did the criminal complaint specifically allege that the obstruction charge was based upon appellant’s mere refusal to produce a license, this was the state’s theory throughout trial. When asked by the prosecutor whether “the defendant’s acts of refusing to produce the license or any documentation … impede[d] your lawful duties to conduct an investigation at that traffic stop,” both Officer Tucker and Officer Schroeder confirmed that it did. The state’s theory of the case, however, does not constitute the offense of obstructing official business.”
Resisting Arrest
No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another. O.R.C. 2921.33(A)
Officer Tucker told appellant she was arresting him because he was driving “with no license” and had expired plates, and the criminal complaint here provides two reasons that officers decided to arrest appellant: the obstruction charge and the charge for driving under a suspended license.
| “We find that the evidence makes clear that the officers lacked a reasonable basis to believe that appellant could be arrested for driving under suspension. This is because both Tucker and Schroeder testified that at the point they ordered appellant to step out of the vehicle (after which they immediately arrested him), appellant had not yet been identified. Both clearly testified that they “did not have any idea of who he was at that point.” (“[W]e just didn’t know who we were talking to at that point once |
| he [refused to produce his identification].”) If neither officer knew who appellant was at the point they arrested him, they necessarily could not have known that his license was suspended and could not have reasonably believed that appellant had committed the crime of driving under suspension. Accordingly, because the officers lacked a reasonable belief that appellant committed either of the two crimes for which they had arrested him, appellant was not lawfully arrested and appellant’s resisting conviction is not supported by sufficient evidence.”.
|
Aggravated Menacing
No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family. O.R.C. 2903.21(A)
The evidence demonstrates that appellant made specific violent threats against Tucker, which, according to her, caused her to be in fear of serious physical harm. We find her testimony regarding her fear to be reasonable and credible in light of all the circumstances of this case. Therefore, we hold that appellant’s conviction for aggravated menacing is not against the manifest weight of the evidence.
Information for this case was obtained from State v. Kelly, 2022 – Ohio – 1696.
This case was issued by the Sixth District Appellate Court which is only binding in the following Ohio Counties: Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood.
Lessons Learned:
- Obstructing Official Business – the appellate court had the opportunity to review the body camera video as did the trial court.The appellate court determined that although Mr. Kelly was moving slowly, even pausing/stopping to exit the vehicle at one point, it was not enough to rise to the level of prevent, obstruct, or delay the performance by a public official. The key here is for officers to give the suspect multiple verbal warnings to exit the vehicle.Here is a good example of how to establish a charge of Obstructing Official Business on a traffic stop analogous to the stop of Mr. Kelly. This occurred on January 10, 2022 in Cuyahoga County, Ohio.
https://www.youtube.com/watch?v=wIfCw7AS0bE&t=12s
- Resisting Arrest – The appellate court takes issue that Officer Tucker made the arrest prior to actually identifying Mr. Kelly. Since Mr. Kelly matched the description of the vehicle owner, I believe that Officer Tucker had probable cause to make the arrest, which would have then sustained the charge of Resisting Arrest. Law enforcement does not have to be right, only reasonable. In this case Officer Tucker was reasonable and the Sixth District Court Appellate Court unreasonably held the officer to a higher legal standard. The other significant issue on the Resisting Arrest charge came from the LEADS report not being authenticated. The prosecutor submitted a LEADS report that Mr. Kelly was driving under suspension. However, the report was not authenticated by court standards and therefore was inadmissible. Because the prosecution could not prove Mr. Kelly was driving under suspension the court dismissed the Resisting Arrest charge.
- Aggravated Menacing – Mr. Kelly clearly physically threatened Officer Tucker using racist language.Ultimately the court upheld this charge.
- This incident is a prime example of the difficulty of law enforcement.Officer Tucker was doing her job to enforce traffic laws and arrest a recalcitrant racist. Not only did the court fail Officer Tucker but also Officer Schroeder were threatened to be killed because of their race. Law enforcement is THE hardest job in America. Our communities should all be appreciative for the difficult job officers do each day!
Does your agency train on Obstructing Official Business?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!