[Cite as State v. Grice, 180 Ohio App.3d 700, 2009-Ohio-372.

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

THE STATE OF OHIO, : APPEAL NO. C-080420

TRIAL NO. C-07CRB-47841
Appellee, :
O P I N I O N.
v. :

GRICE, :

Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: January 30, 2009

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Tanner B. McFall,

Assistant Prosecuting Attorney, for appellee.

Soumayajit Dutta, for appellant.

CUNNINGHAM, Judge.

{¶1} Defendant-appellant, Leon Grice, appeals his conviction, after a bench

trial, for obstructing official business in violation of R.C. 2921.31(A).

{¶2} In the evening of December 23, 2007, several police officers from the

Colerain Township Police Department responded to a report of “shots fired.” Their

investigation led them to an apartment building on Jonrose Avenue, where a group of

men had congregated on the front lawn. Some officers questioned the group, while others
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canvassed the area for evidence of a shooting. The officers found evidence that a gun had

been fired in the vicinity but found no shooting victim or witnesses to a shooting.

{¶3} One of the officers, Richard Bernecker, attempted to obtain personal

identification from those on the scene. Bernecker wanted the information to complete a

field identification report that the police could use if a shooting victim surfaced in the

future. Grice failed to give Bernecker his identification information, and as a result,

Bernecker arrested him for obstructing official business. After arresting Grice,

Bernecker took him to the Hamilton County Justice Center, where Bernecker

fingerprinted and ultimately identified him. According to Bernecker, the

identification process took over two hours to complete.

{¶4} After the trial court overruled his motion for acquittal, Grice testified

in his own defense. He conceded that he had not identified himself and added that

he had not heard any shots fired and that he had told the officers this.

{¶5} But Bernecker unequivocally testified that it was only Grice’s failure

to identify himself that had interrupted the investigation and had led to his arrest.

Importantly, he testified that Grice was uncommunicative and made no statement.

Therefore, we can only assume that Bernecker was unaware of any comment by Grice

about the “shots fired” report. Bernecker’s testimony was consistent with the

testimony of the other investigating officers.

{¶6} The trial court convicted Grice after determining that Grice must have

lied to the police about not hearing shots fired, and that this, along with his failure to

identify himself, constituted an act proscribed by the obstructing official business

statute.

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{¶7} In his sole assignment of law, Grice now challenges the sufficiency of

the evidence to support his conviction. Sufficiency is a test of adequacy.1 The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

state, any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt.2

{¶8} Grice was convicted under R.C. 2921.31(A), which provides that “[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.” (Emphasis added.)

{¶9} Grice correctly argues, as indicated by the emphasized language, that

a violation of this statute requires an affirmative act. “A person cannot be guilty of

obstructing official business by doing nothing or failing to act.”3 The mere refusal to

produce identification upon the request of a police officer cannot support a

conviction for obstructing official business.4 In addition, the defendant’s act must

actually hamper or impede the public official in the performance of the official’s

duties.5

1 State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.
2 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; State v.
Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819.
3 State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, at ¶10, citing State v.
King, 3rd Dist. No. 9-06-18, 2007-Ohio-335, ¶58; Hamilton v. Hamm (1986), 33 Ohio App.3d
175, 176, 514 N.E.2d 942.
4 State v. Brickner-Latham, 3rd Dist. No. 13-05-26, 2006-Ohio-609, at ¶26; State v. Collins
(1993), 88 Ohio App.3d 291, 294, 623 N.E.2d 1269, overruled in part on other grounds in State v.
Tolliver (Dec. 13, 1996), 2nd Dist. No. 15184, 1996 WL 715438; State v. McCrone (1989), 63 Ohio
App.3d 831, 835, 580 N.E.2d 468. See Middletown v. Hollon, 156 Ohio App.3d 565, 2004-Ohio-
1502, 807 N.E.2d 945, ¶26-34 (interpreting a municipal code section identical to R.C. 2921.31).
See also In re Payne, 1st Dist. No. C-040705, 2005-Ohio-4849, ¶11.
5 Wellman at ¶17, citing State v. Stephens (1978), 57 Ohio App.2d 229, 230, 387 N.E.2d 252. Cf.
State v. Westfall, 9th Dist. No. 22898, 2006-Ohio-4729 (actual hampering or impeding is an
element of obstructing official business but is not an element of obstruction of justice in violation
of R.C. 2921.32(A)(5)).

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{¶10} Grice argues that the record is devoid of an affirmative act that

impeded or hindered an investigation. The officers testified that Grice’s failure to

identify himself had impeded the investigation. But as we have already stated, the

failure to identify cannot support a conviction for obstructing official business,

because it is not an affirmative act. Despite the state’s theory, the trial court found,

relying on Grice’s testimony, that Grice’s statement to the police about not hearing

any gunshots was incredible and that this affirmative act established a violation of

the statute.

{¶11} In our sufficiency review, we review the evidence in the light most

favorable to the state. Thus, we accept the trial court’s finding that Grice had lied to

the police about hearing shots fired. We hold, however, that the evidence did not

support a conviction on this basis, because the evidence did not establish a nexus

between this act and the obstructing.

{¶12} This court has held that there is no element in R.C. 2921.31(A)

requiring the state to prove that the offender’s conduct “prevented” a public official

from doing his job.6 Rather, to “hamper” or “impede,” the conduct at issue must

create some “substantial stoppage” of the officer’s progress.7 This stoppage is not

defined by a particular period of time, but it must occur because of the defendant’s

act.8

{¶13} A defendant’s unsworn and false oral statement may often hamper or

impede an investigation or other official duty.9 But not always.10

6 State v. Stayton (1998), 126 Ohio App.3d 158, 163, 709 N.E.2d 1224. Accord State v. Jeter, 1st
Dist. No. C-040572, 2005-Ohio-1872, ¶16.
7 Wellman at ¶17, citing Stephens.
8 Id. at ¶18, citing State v. Dunn (Mar. 26, 1980), 1st Dist. No. C-790319, 1980 WL 352885.
9 See State v. Altomare (Nov. 30, 2000), 7th Dist. No. 99-CO-15, 2000 WL 1781581 (defendant’s
false and intentionally misleading information to an officer of the court who was attempting

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{¶14} In this case, there was no evidence that the officers’ progress was

hampered or impeded by Grice’s statement. The officers duly investigated the “shots

fired” report, unaware of Grice’s statement. They found a gun, spent casings, and a

damaged window, and they determined not only that shots had been fired but also

from where they had been fired. One could have reasonably concluded only that

Grice’s statement had not hampered or impeded this part of the investigation in any

measurable way.

{¶15} Nor was there any evidence to support a finding that Grice’s

statement had affected the officers’ progress in identifying Grice. This was consistent

with the officers’ explicit testimony that Grice’s failure to provide identification alone

had impeded their duties, namely completing the field investigation report.

{¶16} The only “obstructing” that occurred in this case involved the delay in

identifying Grice. And the record is devoid of a nexus between this obstructing and

the affirmative act—Grice’s statement about not hearing shots fired. Thus, the

evidence at trial was insufficient to support a conviction for obstructing official

business. Therefore, we sustain the assignment of error, reverse the judgment of

conviction, and discharge Grice from further prosecution in this case.

Judgment reversed

and appellant discharged.

HILDEBRANDT, P.J., concurs.

DINKELACKER, J., dissents.
__________________

DINKELACKER, J., dissenting.

service of a subpoena interfered with service). See, generally, State v. Lazzaro (1996), 76 Ohio
St.3d 261, 667 N.E.2d 384.
10 Stephens at 230.

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{¶17} Because I believe that the record contains sufficient evidence that,

when construed in favor of the state, supported Grice’s conviction, I must

respectfully dissent.

{¶18} The majority notes that the trial court determined, as a matter of fact,

that Grice had lied to the police when he said that he had not heard gunshots. The

Ohio Supreme Court has said that “[t]he General Assembly has adopted legislation

intended to discourage individuals from purposely giving false information that

hinders public officials in the performance of their duties. Complete and honest

cooperation with the law enforcement process by all citizens is essential to the

effective operation of the justice system. Therefore, we hold that the making of an

unsworn false oral statement to a public official with the purpose to mislead, hamper

or impede the investigation of a crime is punishable conduct within the meaning of

R.C. 2921.13(A)(3) and 2921.31(A).”11 This court has also noted that “[s]peech alone

may in some cases be sufficient to satisfy the act requirement” in the obstructing

statute.12

{¶19} We must be mindful that the issue before us is the sufficiency of the

evidence. The bar for meeting this test is a low one. The legal concepts of sufficiency

of the evidence and weight of the evidence are both quantitatively and qualitatively

different.13 A judgment will not be reversed upon insufficient or conflicting evidence

if it is supported by competent, credible evidence that goes to all the essential

elements of the case.14

11 (Citations omitted.) State v. Lazzaro (1996), 76 Ohio St.3d 261, 266, 667 N.E.2d 384.
12 In re Payne, 1st Dist. No. C-040705, 2005-Ohio-4849.
13 State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.
14 State v. Edgerson, 8th Dist. No. 87356, 2006-Ohio-5329, at ¶11, citing Cohen v. Lamko (1984),
10 Ohio St.3d 167, 462 N.E.2d 407.

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{¶20} Grice was convicted of a violation of R.C. 2921.31, which provides that

“[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.”

{¶21} The majority contends that the record does not support a finding that

Grice’s act of lying to the police had hampered or impeded the investigation. I would

hold that when a citizen lies to the police during an active crime-scene

investigation—especially one where the police have information that shots have been

fired—that individual necessarily forces the police to stop what they are doing and

process this information, for whatever brief period of time that may be. This is

enough to show that the lie has hampered or impeded the investigation, and to allow

a conviction to survive a claim that it is based upon insufficient evidence.

{¶22} While the majority correctly notes that the act must create a

“substantial stoppage,” the Wellman decision rejected the argument that a set time

was required by the statute. In Wellman, this author noted that “ ‘[w]e do not hold

that any finite period of time constitutes a “substantial stoppage,” be the delay

occasioned by the interference thirty seconds or two minutes.’ ”15 If the record

demonstrates that the defendant’s act hampered or impeded the officer in the

performance of his duties, the evidence supports the conviction.16

{¶23} The trial court concluded that Grice had lied to the police. Lying to

the police—who were investigating whether shots had been fired, who had fired

15 State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, at ¶18, quoting
State v. Dunn (Mar. 26, 1980), 1st Dist. No. C-790319.
16 Wellman, supra, citing State v. Stayton (1998), 126 Ohio App.3d 158, 163-164, 709 N.E.2d
1224; Dunn, supra. Accord State v. Altomare, 2000 WL 1781581.

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them, and whether anyone had been injured—and telling them that no shots had

been fired “hamper[ed] or imped[ed] a public official in the performance of the

public official’s lawful duties.” This was not a failure-to-act situation. Grice did not

remain silent. Grice, without any reason (other than to prevent, obstruct, or delay

police officers) took it upon himself to lie to the police.

{¶24} The question of whether the conviction was against the manifest

weight of the evidence is not before this court. A determination that lying to these

officers in their ongoing investigation did not constitute obstructing official business

would place us in the position of weighing the testimony of Grice against other

evidence presented below. It is only in the context of a manifest-weight argument

that we are permitted to undertake that analysis.

{¶25} For these reasons, I must respectfully dissent.