In this case, even if it was not his purpose, Mr. Miletto was aware that his conduct would probably hinder the officers in the discharge of their duties.

 

State v. Miletto

2023 – Ohio – 2161

Fifth District Appellate Court

Ashland County, Ohio

June 27, 2023

 

A Well Being Check Leads to a Headbutted Telephone Pole

On Friday September 25, 2020, Lieutenant Donald Sims of the Ashland County Sheriff’s Office conducted a welfare check at Mr. Denin Miletto’s residence in response to a 911 call reporting a possible domestic disturbance, which raised concerns for the safety of family members. Lieutenant Sims arrived at the residence, at which time Mr. Miletto yelled at Lt. Sims through the door, telling him to leave. Mr. Miletto then appeared at the door and belligerently ordered Lt. Sims to leave the property. When Lt. Sims tried to speak with Mr. Miletto and explain the reason for his presence, Mr. Miletto exited the residence, threw a child’s toy in the air, ran at Lt. Sims, then bypassed him and headbutted a telephone pole several times. Lt. Sims warned Mr. Miletto that he would be tased if he did not calm down. Lt. Sims was thereafter able to speak with Mr. Miletto’s wife and ensure that she and the couple’s infant daughter had not been harmed. She also advised Lt. Sims that there was a shotgun in the residence.

A Second Call to the Residence that Mr. Miletto Slit His Throat

Lieutenant Sims left the residence, only to receive a call to return in response to a report that Mr. Miletto had “slit his throat” and “cut his wrist.” Lt. Sims arrived at Mr. Miletto’s residence, where he met with Deputy Dudte and Trooper Kluever, both of whom had been dispatched to assist. Because Mr. Miletto’s wife had advised Lt. Sims of the shotgun, the deputies tactically parked their vehicles in the driveway. Lt. Sims telephoned Mr. Miletto’s wife and, after speaking with her briefly, was concerned that Mr. Miletto was holding her inside the residence against her will.

Mr. Miletto Points a Shotgun at Law Enforcement

Lieutenant Sims heard a window break while discussing the situation with the other deputies on the scene, one of whom yelled “gun.” Both Deputy Dudte and Trooper Kluever testified that they saw what appeared to be a shotgun pointing out one of the windows of the residence towards the deputy and trooper. The deputies took protective cover, at which time Mr. Miletto’s wife exited the residence. The couple’s infant daughter, however, remained inside.

Hostage – Barricade Incident Begins

Lieutenant Sims ordered Mr. Miletto to come out with his hands up, but Mr. Miletto refused to comply. Lt. Sims coordinated efforts to surround the residence and contacted the emergency squad. He also contacted the Special Response Team, which has specialized skills for hostage situations.

Miletto Gives Up Peacefully

Approximately two hours later, Mr. Miletto exited the home with his infant daughter. He was transported by squad to the hospital due to his self-inflicted wounds. A subsequent search of Mr. Miletto’s residence resulted in the recovery of 12-gage shotgun.

Indicted

On April 8, 2021, Mr. Miletto was indicted on the following: count one, intimidation in violation of O.R.C. §2921.03(A) and (B) with two firearm specifications, a third degree felony; count two, obstruction of official business in violation of O.R.C. §2921.31(A) and (B) with two firearm specifications, a fifth degree felony; and, count three, endangering children in violation of O.R.C. §2919.22(A) and O.R.C. §2919.22(E)(2)(a), a first degree misdemeanor. Mr. Miletto pleaded not guilty to all charges.

Trial and Conviction

On December 7, 2021, the matter proceeded to a bench trial, which lasted two days. The trial court heard testimony from Leah Snyder, friend of Mr. Miletto and his family, regarding the calls and texts she received that prompted her to call 911; and, Kelsey Leighty, who also knew Mr. Miletto’s family, regarding her 911 call concerning Mr. Miletto’s actions on September 25, 2020.

Lt. Sims also testified regarding his initial interaction with Mr. Miletto, as well as the two hour standoff during which Mr. Miletto was holed up in his home with his infant daughter.

Deputy Dudte testified that he saw the gun when Mr. Miletto pointed it at the officers through the window, and he believed to be a shotgun. According to Dep. Dudte, Mr. Miletto broke the window with the barrel of the gun and swept it between the police cars before the gun receded back into the house.

Trooper Kluever testified that he heard a window break, and saw what appeared to be a shotgun barrel pointed out the window.

Chief Deputy Carl Richert of the Ashland County Sheriff’s Office also testified, stating that he spoke with Mr. Miletto, kept him calm, and persuaded him to come out of the house with his infant daughter.

Lieutenant Scott Smart, who had retired from the Ashland County Sheriff’s Office at the time of trial, testified that he prepared search warrants for information regarding Mr. Miletto’s actions on the day in question, one of which led to recovery of Mr. Miletto’s 12-gage shotgun used by Mr. Miletto during the incident.

Mr. Miletto presented no witnesses at trial.

The trial court found Mr. Miletto guilty on all three counts, at which time it scheduled the matter for a sentencing hearing and ordered that a presentence investigation be prepared

Sentenced to Ninety Days

On February 14, 2022, the trial court conducted a sentencing hearing at which time it sentenced Mr. Miletto to 90 days in jail on each count, to be served concurrently. 

Mr. Miletto filed a timely appeal, and sets forth the following assignments of error.  Mr. Miletto argues that his conviction on the charge of obstructing official business was not supported by sufficient evidence, and that his conviction for intimidation was against the weight of the evidence and unsupported by sufficient evidence. We disagree.

Obstructing Official Business

Obstructing official business is defined by O.R.C. §2921.31, which provides in pertinent part:

(A) 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 official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.

Established Case Law – Obstructing Official Business

The court in State v. Moss, 2018-Ohio-4747 addressed the crime of obstructing official business, stating:

. . . a suspect may indeed obstruct official business when he creates a significant delay by ignoring an officer’s repeated orders, thereby impeding the officer’s ability to perform his lawful duties. State v. Woodson, 2008-Ohio-1469.

Rather than viewing the suspect’s actions in isolation, the total course of his conduct must be considered. State v. Overholt, 1999 WL 635717 (Aug. 18, 1999).

Multiple affirmative acts that go beyond a single act of simply not producing identification – such as shouting and repeatedly answering police questions posed to a different individual, despite several warnings to refrain from such conduct – may constitute sufficient evidence to support a conviction for obstructing official business.North Ridgeville v. Reichbaum, 112 Ohio App.3d 79 (1996)

Applying the Facts to Obstructing Official Business Conviction

In this case, Mr. Miletto engaged in multiple affirmative acts that resulted in the obstruction of official business. During Lieutenant Lt. Sims’ first call to Mr. Miletto’s residence, Mr. Miletto yelled at Lt. Sims and then appeared at the door and belligerently ordered Lt. Sims to leave the property. He then exited the residence, threw a toy in the air, ran at Lt. Sims, and headbutted a telephone pole several times. During Lt. Sims’ second call to Mr. Miletto’s residence, Lt. Sims heard a window break and another officer on scene saw a gun pointed towards the officers through the broken window, forcing the officers to take protective cover. Lt. Sims ordered Mr. Miletto, who was holed up in his home with his infant daughter, to come out with his hands up, but Mr. Miletto refused to comply, resulting in a two-hour standoff.

We find that, after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Mr. Miletto committed the essential elements of obstructing official business.

Intimidation Statute

Intimidation is defined by O.R.C. §2921.03, which provides in pertinent part:

(A) No person, knowingly and by force, by unlawful threat of harm to any person or property, or by filing, recording, or otherwise using a materially false or fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder a public servant, a party official, or an attorney or witness involved in a civil action or proceeding in the discharge of the person’s the duties of the public servant, party official, attorney, or witness.

In order to prevail at trial on the intimidation charge, the appellee had to prove beyond a reasonable doubt that Mr. Miletto:

1) Knowingly;

2) By unlawful threat

of harm;

3) Attempted;

4) To influence, intimidate or hinder;

5) The officers in the discharge of their duties.

A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.” O.R.C. §2901.22(B).

Established Case Law – Intimidation

This court addressed the crime of intimidation in State v. Hamilton, 2014-Ohio-3171. In Hamilton, the defendant told a Richland County Sheriff’s lieutenant that “[I]f he got any charges out of this [possessing the cellular telephone] that he was going to make my life a living hell.” The defendant/Mr. Miletto argued that the lieutenant’s testimony was not sufficient to establish intimidation because he was not able to carry out his threat. This court stated:

Notably, O.R.C. §2921.03(A) requires only an ‘attempt’ to influence, intimidate, or hinder; it is not necessary to establish that the officer was actually prevented from doing a particular task.” State v. Myers, 2000–Ohio–1677, Lieutenant Young testified he took the words to be a threat. Lieutenant Young’s wife is a sergeant and also works at the jail. We find Mr. Miletto’s statement to be sufficient to establish a threat against Lieutenant Young and the elements of intimidation.

Applying the Facts to the Intimidation Conviction

In this case, even if it was not his purpose, Mr. Miletto was aware that his conduct would probably hinder the officers in the discharge of their duties. The officers engaged in continuing efforts over a two-hour period to persuade the Mr. Miletto to exit the home with his hands up. His response, at least initially, was to brandish a shotgun towards them while keeping his infant daughter in the home, which certainly prevented the officers from taking further action in response to the 911 call. We thus find that, after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Mr. Miletto committed the essential elements of intimidation.

Furthermore, the trial court’s verdict on the charge of intimidation is not against the manifest weight of the evidence, as we cannot say that the trial court clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

Conclusion and Holding

Based upon the foregoing, we find that Mr. Miletto’s convictions on the charges of obstructing official business and intimidation were supported by sufficient evidence, and his conviction on the charge of intimidation was not against the manifest weight of the evidence. Accordingly, Mr. Miletto’s first and second assignments of error are overruled.

Mr. Miletto filed another appeal based on sentence that included Community Control.  That appeal is not evaluated in this article.

Information this article was obtained from State v. Miletto, 2023 – Ohio – 2161.

State v. Miletto, 2023 – Ohio – 2161 was issued by the Fifth District Appellate Court on June 27, 2023 and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Increased Mental Health Calls for Service – Law enforcement officers are responding to an increased number of mental health calls and the two calls for service on Mr. Miletto underscore this increased frequency. On the initial call, Lt. Sims was able to determine that Mr. Miletto was acting oddly but no crime had been committed.  Thereafter, at the second call, Mr. Miletto was acting in violation of the law that led to a two-hour standoff with a small child inside the residence.  The patience exhibited by the responding officers should be commended, most especially after he pointed a shotgun at the officers.
  2. De-escalation Does Not Always Work – These types of incidents do not always end so peacefully as de-escalation does not always work. This type of call is one of the most challenging for first responding officers and tactical team members who arrive subsequently.  What would have occurred had the Special Response Team had forced entry to the home?  Would Mr. Miletto had pointed his shotgun at the deputies? Shot at the deputies? Shot the child? Shot himself?  No one can answer these questions, yet all the officers, the first responding officers and Special Response Team members, would be highly questioned both officially and unofficially in the court of public opinion.  Because this incident ended peacefully with Mr. Miletto’s self-inflicted injuries being the only reported injuries, this was simply a short news story.  However, if it ended in a violently in some other persons sustaining harm, the questions would be never ending.
  3. Intimidation –R.C. §2921.03 is an underutilized criminal charge as it states in pertinent part “(A) No person, knowingly and by force, by unlawful threat of harm to any person or property … shall attempt to influence, intimidate, or hinder a public servant, a party official … or proceeding in the discharge of the person’s the duties of the public servant, party official, attorney, or witness. Violation of this statute is a third-degree felony. Lt. Sims, his teammates and the Ashland County Prosecutors office worked in concert to establish the elements of this crime as Mr. Miletto’s actions were a textbook application of behavior that was violative of this statute.  Well done!
  4. Pre-Sent Arms! Donald Sims, the other unnamed responding deputies to include the Special Response Team and the Ashland County Prosecutors Office should be highly commended for their actions on Friday September 25, 2020! Ashland County Sheriff’s Office Chief Deputy Carl Richert should also be recognized for responding to the scene!

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