Here, the state presented ample evidence that Mr. Carrion engaged in an affirmative act, going beyond the mere failure to act, within the meaning of the obstruction-of-official-business statute.

State v. Carrion

2023 – Ohio – 4386

First District Appellate Court

December 6, 2023

Raymond had an Active Felony Warrant

The incident which forms the basis for this appeal occurred on Thursday January 12, 2023, when Cincinnati Police Officers Justin Bittinger and Robert Dews arrived at Mr. Raymond Carrion’s home to serve him with a felony arrest warrant for a parole violation from Kentucky.

Who are You?  The Police!

At trial, Officer Bittinger testified that when he arrived at Mr. Carrion’s home, he knocked on the front door twice. When no one responded, Officer Bittinger opened the unlocked door. Mr. Carrion then appeared in the opening from the hallway, and Officer Bittinger asked him to step out from the hallway. Mr. Carrion asked Officer Bittinger, “Who are you,” and asked why Officer Bittinger was at his home. Officer Bittinger informed Mr. Carrion that police were there to serve an arrest warrant for a parole violation. Officer Bittinger then told Mr. Carrion to “come here,” but Mr. Carrion did not comply. Officer Bittinger then further entered Mr. Carrion’s home and made physical contact with Mr. Carrion.

Mr. Carrion Refused to Comply

As Officer Bittinger approached Mr. Carrion, he asked Mr. Carrion to put his hands behind his back. Mr. Carrion complied with respect to one hand, which Officer Bittinger was able to hold, but Mr. Carrion placed his other hand against the wall. A scuffle then ensued. Officer Bittinger grabbed Mr. Carrion’s hand from the wall in an attempt to arrest him. Mr. Carrion spun around, and his hand from the wall was freed from Officer Bittinger’s grip. Aided by Officer Dews, who had subsequently entered the house, Officer Bittinger then took Mr. Carrion to the ground to handcuff him.

Three Officers and One Macing Later, Mr. Carrion is Cuffed

Officer Bittinger testified that when he tried to get Mr. Carrion on the ground, Mr. Carrion was tucking his hands, not placing them behind his back. Officer Bittinger testified that while Mr. Carrion was on the ground, he was tensing his muscles, after which Officer Bittinger maced him. Officer Bittinger further testified that it took three officers—himself, Officer Dews, and another officer who arrived to assist—to detain Mr. Carrion. Ultimately, medics were called, and Mr. Carrion was placed inside the police vehicle without further incident.

“Hold On” … and Refused to be Handcuffed

Officer Dews testified that when the officers entered Mr. Carrion’s home, they did not immediately announce themselves as police officers. Officer Dews heard Mr. Carrion ask the officers to “hold on” because he had just woken up. Officer Dews testified that right after Mr. Carrion said this, Officer Bittinger “guided” him to the ground. Officer Dews testified that while Mr. Carrion was on the ground being asked to put his hands behind his back, both he and another officer were holding Mr. Carrion’s hands. Officer Dews heard Mr. Carrion say that he was trying to put his hands behind his back, even though one of the officers had his hand before Mr. Carrion was maced. Officer Dews acknowledged that this was preventing Mr. Carrion from placing his hands behind his back.

Three Officers, a Macing and One Minute and Forty-Five Seconds to Handcuff Mr. Carrion

The entire encounter, from when Officer Bittinger opened the door until officers had Mr. Carrion in handcuffs, lasted approximately one minute and 45 seconds. The state presented body-worn camera footage at trial that corroborated Officer Bittinger’s and Officer Dews’s accounts of Mr. Carrion’s arrest.

On Parole … and Possibly Constipated?

Mr. Carrion testified on his own behalf at trial. He explained that he was on parole in Kentucky and was only allowed to cross state lines for an emergency regarding his daughter. On the day of the incident, Mr. Carrion was at the house in Cincinnati because his daughter was sick. He explained that he woke up to someone knocking at his door, and when he rounded the corner, he saw people standing in the doorway, but could not make them out due to a flashlight being shined. Mr. Carrion testified that he was surprised that the officers were there, because he was in communication with his parole officer and was usually informed if problems arose. He explained that when Officer Bittinger took one of his hands and placed it behind his back, Mr. Carrion put his other hand on the wall and continued to ask the officers why they were there, to which he received no response. Mr. Carrion testified that one to two seconds later, he was on the floor. Mr. Carrion told the officers multiple times that he was going down, that he had a broken shoulder, and that he was unable to put his hand behind his back because one of the officers had it pinned to the ground. Officer Bittinger then maced Mr. Carrion and the third officer said he was going to “tase the sh*t out of [Mr. Carrion]” but did not end up tasing him. Mr. Carrion testified that he had a “burning sensation across my whole face, my eyes, and my mouth. Couldn’t breathe, soreness on my dislocated shoulder” as a result of the incident.

Mr. Carrion was Convicted of Obstructing Official Business

Mr. Carrion was charged with one count of obstructing official business, a misdemeanor of the second degree, and one count of resisting arrest, a misdemeanor of the second degree. The jury convicted Mr. Carrion of obstruction of official business in violation of O.R.C. §2921.31 but acquitted him of resisting arrest. The trial court sentenced Mr. Carrion to 90 days incarceration with credit for 25 days and ordered him to pay a $250 fine plus court fees.

Mr. Carrion timely appealed.

Mr. Carrion raises two assignments of error on appeal. First, Mr. Carrion argues that the state failed to present sufficient evidence to support his conviction. Second, Mr. Carrion argues that his conviction is against the manifest weight of the evidence.

We begin with Mr. Carrion’s first assignment of error regarding the sufficiency of the evidence.

Obstructing Official Business O.R.C. §2921.31(A)

O.R.C. §2921.31(A) defines the crime of obstruction of official business as follows: “[N]o 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.” Consistent with this statute, to sustain a conviction for obstruction of official business, the state is required to prove that the defendant: “(1) performed an act; (2) without privilege; (3) with purpose to prevent, obstruct, or delay the performance of a public official of any authorized act within the public official’s official capacity; and (4) that hampered or impeded the performance of the public official’s duties.” In re S.J., 2023-Ohio-3441. 

Did Mr. Carrion Commit an Affirmative Act to Obstruct the Officers?

Mr. Carrion does not challenge the sufficiency of the evidence presented to show that he acted without privilege and with purpose to prevent, obstruct, or delay the performance of an official act. Thus, we only address whether there was sufficient evidence of an affirmative act and that Mr. Carrion’s conduct hampered or impeded the performance of the police officers’ official duties. We conclude that there was.

Mr. Carrion Testifies that Refusing to be Handcuffed and Spinning Away from the Officers is Not Obstructing

Mr. Carrion first asserts that he did not engage in an affirmative act. He alleges that placing his hand on the wall was not an affirmative act because it was done without the purpose of preventing officers from arresting him. He further alleges that his other conduct, including spinning away from Officer Bittinger and struggling with officers, did not constitute an affirmative act because officers were physically controlling his body and because he was not attempting to walk away or otherwise evade arrest. 

Established Case Law for an ‘Affirmative Act’

“[A] violation of [the obstruction] statute requires an affirmative act.” State v. Grice, 2009-Ohio-372.  An affirmative act is defined as any conduct, physical or verbal, that hampers or impedes the officer in the performance of his or her duties. State v. Wellman, 2007-Ohio-2953. “A person cannot be guilty of obstructing official business by doing nothing or failing to act. Further, mere failure to obey an officer’s order does not give rise to obstruction.” In re S.J. at ¶ 24. Further, “the nature of a defendant’s conduct must be such that a trier of fact can reasonably infer that the accused intended his conduct to obstruct official business.” In re Payne, 2005-Ohio- 4849. 

Both the Trial Court and the First District Appellate Court Holds Mr. Carrion Committed an ‘Affirmative Act’

Here, the state presented ample evidence that Mr. Carrion engaged in an affirmative act, going beyond the mere failure to act, within the meaning of the obstruction-of-official-business statute. First, the evidence demonstrated that Mr. Carrion placed his hand on the wall and asked the officers to “hold on” while they were attempting to arrest him. Second, Officer Bittinger testified that Mr. Carrion tucked his wrists and tensed his muscles to avoid the placement of handcuffs. While these acts were brief in duration, reviewing the evidence in the light most favorable to the state, we find Mr. Carrion’s conduct sufficient to establish that an affirmative act occurred.

Mr. Carrion Asserts He Did Not Hamper the Officers Attempt to Arrest Him

Mr. Carrion next asserts that he did not hamper and impede the officers in their official duties, given that it took less than two minutes for him to be arrested after officers entered his home.

Established Case Law for an ‘Hamper’

Although “hamper” and “impede” are not defined in O.R.C. §2921.31, this court has stated that an act violates the statute when it creates a “substantial stoppage” of the officers’ progress. In re R.B., 2021-Ohio- 3749. This “substantial stoppage” requirement is not defined by any particular period of time, but rather must merely occur because of the defendant’s act.

If it Takes Three Officers to Arrest a Combative Suspect … Does that meet the Hamper Requirement?

Officer Bittinger testified that he was obstructed and delayed in arresting Mr. Carrion when Mr. Carrion put “his hands on the wall trying to push away.” Officer Dews testified that officers were impeded and delayed by Mr. Carrion failing to give his hands to the officers when asked. Officer Dews also testified that it took three officers to arrest Mr. Carrion rather than the usual one.

Both the Trial Court and the First District Appellate Court Holds Mr. Carrion ‘Hampered’ His Arrest

Therefore, however slight the hampering and impeding may have been, when reviewing the record in a light most favorable to the state, there is evidence to show that Mr. Carrion’s actions hampered and impeded the officers in effectuating the arrest.

Therefore, we overrule Mr. Carrion’s first assignment of error.

Manifest Weight

In his second assignment of error, Mr. Carrion challenges his conviction under the manifest-weight-of-the-evidence standard. 

Mr. Carrion argues that his conviction was against the manifest weight of the evidence solely as to one element of obstruction of official business: purpose to prevent, obstruct, or delay a public official.

Established Case Law – Obstructing Official Business

“[T]he nature of a defendant’s conduct must be such that a trier of fact can reasonably infer that the accused intended his conduct to obstruct official business. To constitute obstruction, a defendant must act with purpose, meaning it is his or her specific intention to cause a certain result or engage in a conduct of a certain nature.”In re S.J., 2023-Ohio-3441.

Mr. Carrion’s Actions Do Not Comport with His Appeal

With regard to purpose, the evidence shows that Mr. Carrion placed his hand on the wall and asked the officers to “hold on.” Mr. Carrion explained he had just awakened and wanted more time before being arrested. While an understandable human reaction, Mr. Carrion’s statement offers a glimpse into his state of mind, which was a desire to delay his arrest. Given this evidence, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice in finding that Mr. Carrion acted purposely in hampering or impeding his arrest.

Both the Trial Court and the First District Appellate Court Holds Mr. Carrion is Guilty of Obstructing Official Business

Therefore, we overrule Mr. Carrion’s second assignment of error.

Holding

For the reasons set forth in this opinion, we affirm the judgment of the trial court.

Information for this article was obtained from State v. Carrion, 2023 – Ohio – 4386.

State v. Carrion, 2023 – Ohio – 4386 was issued by the First District Appellate Court and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Obstructing Official Business – O.R.C. §2921.31(A) defines the crime of obstruction of official business as follows: “[N]o 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.” the state is required to prove that the defendant: “(1) performed an act; (2) without privilege; (3) with purpose to prevent, obstruct, or delay the performance of a public official of any authorized act within the public official’s official capacity; and (4) that hampered or impeded the performance of the public official’s duties.”
  2. Carrion’s Actions – Mr. Carrion told the officers to “Hold on”, refused to place his hands behind his back and twisted away from the officers. Thereafter he was maced and threatened with being tased.  After a one minute and forty-five second struggle with three officers working in concert, Mr. Carrion was handcuffed.  These noncompliant actions are clearly the obstruction of his own arrest and both the trial and appellant court recognized the absurdity of Mr. Carrion’s argument that he was compliant.
  3. What is not Obstructing Official Business – In context to Mr. Carrion’s actions and this article, the First District Appellate court does caution as to what is not Obstructing Official Business as identified in established case. Here the court quoted a 2023 case; “A person cannot be guilty of obstructing official business by doing nothing or failing to act. Further, mere failure to obey an officer’s order does not give rise to obstruction.” In re S.J. at ¶ 24.  In the case of In re S.J., the court held that failing to follow an officer’s order is not Obstructing Official Business, as the suspect must commit an affirmative act.
  4. Pre-Sent Arms! Cincinnati Police Officers Justin Bittinger and Robert Dews and the unnamed officer should be highly commended for their actions on Thursday January 12, 2023, when they arrested Mr. Carrion. The officers worked in concert to bring this parole violator into custody with minimal force and no one getting hurt to include Mr. Carrion.  Well done!

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!

Robert H. Meader Esq.