[Cite as State v. Walker,
2022-Ohio-3849.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2022-CA-2
:
v. : Trial Court Case No. 21-CRB-001-0360
:
JESSICA R. WALKER : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of October, 2022.
...........
DREW E. WOOD, Atty. Reg. No. 0084181, Special Prosecuting Attorney, Ohio Attorney
General’s Office, 615 West Superior Avenue, 11th Floor, Cleveland, Ohio 44113
Attorney for Plaintiff-Appellee
JESSICA R. WALKER, Atty. Reg. No. 0080138, 3900 Otterbein-Ithaca Road, New
Madison, Ohio 45346
Defendant-Appellant, Pro Se
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Jessica R. Walker, appeals from her conviction in the
Darke County Court of Common Pleas after a jury found her guilty of resisting arrest. In
support of her appeal, Walker raises multiple arguments challenging the sufficiency and
manifest weight of the evidence that was presented at trial to establish the lawful-arrest
element of resisting arrest. For the reasons outlined below, Walker’s conviction will be
affirmed.
Facts and Course of Proceedings
{¶ 2} On June 28, 2021, Walker was charged by complaint with single counts of
resisting arrest in violation of R.C. 2921.33(A), a misdemeanor of the second degree;
disorderly conduct in violation of R.C. 2917.11(A)(3),(E)(3)(a), a misdemeanor of the
fourth degree, telecommunications harassment in violation of R.C. 2917.21(A)(7), a
misdemeanor of the first degree; and improper use of a 9-1-1 system in violation of R.C.
128.32(F), a misdemeanor of the fourth degree. Walker pled not guilty to all the charges,
and the matter proceeded to a jury trial.
{¶ 3} At trial, the State presented testimony and audio-recorded evidence
establishing that on June 28, 2021, Walker made seven non-emergency telephone calls
to the Darke County Sheriff’s dispatch center because she wanted to speak with a specific
sheriff’s deputy—Deputy Young—about past issues with her neighbors’ stalking her. All
of Walker’s calls to the dispatch center were played for the jury and admitted into evidence
as State’s Exhibit 1.
{¶ 4} During Walker’s initial call, the answering dispatcher asked Walker if she had
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a criminal complaint, to which Walker responded: “No.” State’s Ex. 1 (07.43.06). The
dispatcher testified that he put Walker on hold and contacted Dep. Young, who advised
that he would only speak with Walker if she had a criminal complaint. After speaking
with Dep. Young, the dispatcher advised Walker that Dep. Young would not speak with
her since she did not have a criminal complaint. In response, Walker stated that she
“needed to talk to Deputy Young about some past things that have happened.” Id. at
07.43.35. Thereafter, the dispatcher once again explained to Walker that Dep. Young
would not speak with her unless she had a criminal complaint. Walker then said: “Ok, I
have a criminal complaint.” Id.
{¶ 5} After Walker indicated that she had a criminal complaint, the dispatcher
asked her to describe the complaint. Walker became agitated and made the following
comments with escalating anger:
I’m being stalked by my neighbors and Deputy Young has
information about that that I want to speak with him about. I’m very
concerned about this stalking and that the sheriff’s office won’t speak to me
about it. That’s my criminal complaint. That the sheriff’s office isn’t
addressing the stalking situation. Is that good enough? Can I talk to
somebody now? … Please put me in touch with somebody so I can talk
about my criminal concerns about the stalking that is happening with my
neighbors. Could you help that? Would that be okay?
Id.
{¶ 6} In response to Walker’s comments, the dispatcher put Walker on hold and
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transferred her call to Dep. Young’s supervising officer, Sergeant Mullen. When Sgt.
Mullen answered the call, Walker explained to Sgt. Mullen that she wanted to speak with
Dep. Young about her neighbors’ stalking her and complained that no one from the
sheriff’s office would speak with her. As Walker was talking to Sgt. Mullen, the call
accidentally got cut off, and Walker became more agitated. Walker then called dispatch
back and requested to speak with Dep. Young. The answering dispatcher, however,
advised Walker that he had been directed to forward her calls to Sgt. Mullen. The
dispatcher then reconnected Walker to Sgt. Mullen and Walker continued to tell Sgt.
Mullen that she wanted to talk to Dep. Young about her neighbors’ stalking her.
Specifically, Walker told Sgt. Mullen that she wanted to know the details of a May 3rd
telephone call between Dep. Young and her neighbors. Sgt. Mullen told Walker that he
would follow-up with Dep. Young and call her back.
{¶ 7} Approximately three hours later, Walker called dispatch again and asked to
speak with Sgt. Mullen. The answering dispatcher advised Walker that Sgt. Mullen was
unable to speak with her because he was in a meeting and that Sgt. Mullen would call
her back. Approximately 30 minutes later, Walker called dispatch again and requested
to speak with a different sergeant. In response, the answering dispatcher advised
Walker that the sergeant she requested was unavailable and then transferred her to the
voicemailbox of Captain Linkous.1 Walker then left an angry voice message for Capt.
Linkous in which she complained about everyone hanging up on her. Walker also told
Capt. Linkous in the message that she had two years-worth of information to discuss with
1 Capt. Linkous has since been promoted to Chief Sheriff’s Deputy, but for purposes of
this appeal, we will refer to him as “Capt. Linkous.”
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him regarding her neighbors.
{¶ 8} After leaving the voice message, Walker called dispatch again and asked to
speak with Sgt. Mullen. The answering dispatcher told Walker that he had been advised
to transfer her calls to Capt. Linkous’s voicemailbox and transferred the call despite
Walker’s protesting. Walker thereafter called the dispatch center’s non-emergency line
three more times. Unsatisfied with those efforts, Walker then made a 9-1-1 emergency
call.
{¶ 9} During the 9-1-1 emergency call, Walker told the dispatcher that she had
stalkers living next door to her and that she wanted someone to come out to her residence
and deal with it. The dispatcher asked Walker what kind of stalkers she was speaking
of, and Walker responded:
The kind of stalkers that you guys won’t answer my calls about when
I tell you that they are shooting off guns around me and threatening me, that
kind of stalker. I can’t even get Captain Linkous. I have to get his
voicemail and I can’t get any sergeant or other deputy to come and respond
to me. So, I guess I got to call into 9-1-1. Let’s get this all recorded now.
Please come help me with this stalker situation I’ve been dealing with for
the last two years that I’ve been telling you about. Can you help me? …
Send somebody who can do something. … I want you to come out here
and take care of this situation for me and I’m not going to have you putting
me into somebody’s voicemail. This is an emergency. It is an absolute
emergency. It’s been going on for two years now. I am terrified. I am
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terrified.
State’s Ex. 1 (11.51.22).
{¶ 10} Capt. Linkous and Sgt. Mullen testified that they responded to Walker’s 9-
1-1 emergency call by making contact with Walker at her residence. The officers’
encounter with Walker was video-recorded on Sgt. Mullen’s cruiser camera, and the video
was played for the jury and admitted into evidence as State’s Exhibit 2. The video
evidence showed that during the encounter, Capt. Linkous continually tried to ascertain
what emergency had precipitated Walker’s 9-1-1 call. In response to his inquiries,
Walker continued to express concerns about her neighbors’ stalking her and other past
conduct that frightened her. Walker also indicated that she had called 9-1-1 because
she had received a recording the previous day from Dep. Young concerning her
neighbors, the contents of which frightened her as well.
{¶ 11} The video evidence showed that Walker became emotional and angry at
the officers because she believed the sheriff’s office had failed to address her ongoing
concerns about her neighbors. Although Walker insisted her 9-1-1 call was based on an
emergency, Capt. Linkous ultimately disagreed and instructed Sgt. Mullen to issue a
citation for improper use of a 9-1-1 system.2 Capt. Linkous testified that when Walker
learned that she was being issued a citation, she walked toward him and asked him some
questions. Capt. Linkous testified that Walker did not like his responses to her questions
and “slapped [him] on the shoulder.” Trial Tr. (Mar. 11, 2022), p. 210. Capt. Linkous
2
On the video, Capt. Linkous tells Sgt. Mullen to “burn it,” which Sgt. Mullen and Capt.
Linkous testified meant for Sgt. Mullen to write a citation for improper use of a 9-1-1
system. Trial Tr. (Mar. 11, 2022), p. 174 and 220.
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testified that Walker slapped or hit him four different times despite his telling her to stop.
Capt. Linkous admitted that Walker’s slaps were not “extremely forceful.” Id. at 210. He
also agreed that they were not something that would “cause [him] to react violently” or
“create a violent response.” Id. at 221-222.
{¶ 12} Continuing, Capt. Linkous testified that he told Walker: “[Y]ou hit me, you’re
going to go to jail.” Id. at 211. Capt. Linkous testified that the final time Walker struck
him he determined that he was going to take her into custody. Capt. Linkous testified
that, at that point, he grabbed Walker’s wrist and tried to put it behind her back, but she
tensed up and started to resist. Although Capt. Linkous and Walker were not in view of
the camera when these events took place, the following conversation could be heard on
the cruiser camera video:
Capt. Linkous: Don’t touch me. Don’t touch me.
Walker: Ah, that’s funny.
Capt. Linkous: Don’t touch me.
Walker: That’s funny. (Walker laughing)
Capt. Linkous: Don’t touch me cause, you are going to go to jail.
Walker: Uh oh. Cite me for touching him. I touched him.
State’s Ex. 2 (31:23 to 31:32).
{¶ 13} Eventually, Capt. Linkous and Walker moved into view of the cruiser camera
and, at that point in time, the video showed Capt. Linkous attempting to restrain Walker
at the hood of Sgt. Mullen’s cruiser. Sgt. Mullen then came to assist Capt. Linkous as
Walker continued to resist the officers’ attempts to handcuff her. Specifically, the video
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showed that Walker moved her arms, dropped to the ground, and kicked up her legs to
prevent the officers from placing her in handcuffs. Walker also continued to resist after
she was handcuffed, as she went limp and refused to move when the officers attempted
to walk her to Sgt. Mullen’s cruiser. Capt. Linkous testified that a third officer was called
to the scene to assist them in getting Walker inside the cruiser. Video footage from the
second, rear cruiser camera was admitted into evidence as State’s Exhibit 3. That
footage showed Walker resisting as the officers placed her inside the cruiser. The video
also showed that Walker was smiling as she screamed for help and complained about
the officers hurting her.
{¶ 14} After the foregoing evidence was presented at trial, the jury deliberated and
found Walker guilty of resisting arrest but not guilty of disorderly conduct,
telecommunications harassment, or improper use of a 9-1-1 system. The trial court
sentenced Walker to a 90-day jail term with 89 days suspended and one day of credit for
time served. The court also ordered Walker to serve one year of probation with mental
health treatment and to pay a $250 fine and court costs.
{¶ 15} Walker now appeals from her conviction for resisting arrest, raising a single
assignment of error for review.
Assignment of Error
{¶ 16} Walker argues that her conviction for resisting arrest should be reversed
because she was not lawfully arrested during the incident in question. Because resisting
arrest in violation of R.C. 2921.33(A) is committed when a person, recklessly or by force,
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resists or interferes with a lawful arrest of the person or another, we construe Walker’s
assignment of error as challenging the sufficiency and manifest weight of the evidence
that was presented at trial to establish the lawful-arrest element of resisting arrest.
Standards of Review
{¶ 17} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins,
78 Ohio St.3d 380,
678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis,
79 Ohio St.3d 421, 430,
683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.)
Id.
{¶ 18} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction was against the manifest weight of the evidence, the appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
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of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State
v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61
and 2013-CA-62,
2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14. A judgment of conviction
should be reversed as being against the manifest weight of the evidence only in
exceptional circumstances.
Martin at 175.
Lawful Arrest
{¶ 19} To establish the offense of resisting arrest, the State was required to prove
that Walker resisted a lawful arrest. State v. Terry, 2d Dist. Montgomery No. 26722,
2016-Ohio-3484, ¶ 26, citing R.C. 2921.33(A). “ ‘Although the arrest must be “lawful,” it
is not necessary for the state to prove that the defendant was in fact guilty of the offense
for which the arrest was made to uphold a conviction for resisting arrest.’ ” State v. Blair,
2d Dist. Montgomery No. 24784,
2012-Ohio-1847, ¶ 8, quoting State v. Sansalone,
71
Ohio App.3d 284, 285-286,
593 N.E.2d 390 (1st Dist.1991), citing State v. Hurst, 1st Dist.
Hamilton No. C-880706,
1989 WL 140010, *1 (Nov. 22, 1989).
{¶ 20} “ ‘An arrest is “lawful” if the surrounding circumstances would give a
reasonable police officer cause to believe that an offense has been or is being
committed.’ ” Id. In other words, “an arrest is lawful if it is made on probable cause.”
State v. Crowder, 2d Dist. Montgomery No. 22344,
2008-Ohio-3708, ¶ 16, citing City of
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Dayton v. Myers, 2d Dist. Montgomery No. 16699, 1998 WL 425498, *5 (July 24, 1998).
“ ‘Generally, probable cause exists when the facts and circumstances within the officer’s
knowledge are sufficient to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense.’ ”
Id., quoting 26 Ohio Jurisprudence 3d, Criminal Law,
Section 646. See also State v. Steele,
138 Ohio St.3d 1,
2013-Ohio-2470,
3 N.E.3d 135,
¶ 26, citing Beck v. Ohio,
379 U.S. 89, 96,
85 S.Ct. 223,
13 L.Ed.2d 142 (1964).
{¶ 21} “[T]he probable cause inquiry does not focus on offenses that officers
subjectively contemplate at the time of arrest, nor is the inquiry limited to offenses with
which a criminal defendant is actually charged.” Gessner v. Schroeder, 2d Dist.
Montgomery No. 21498, 2007-Ohio-570, ¶ 37. That is, “an arresting officer’s state of
mind (except for the facts that he knows) is irrelevant to the existence of probable cause,”
and the officer’s “subjective reason for making the arrest need not be the criminal offense
as to which the known facts provide probable cause.” (Citations omitted.) Devenpeck
v. Alford,
543 U.S. 146, 153,
125 S.Ct. 588,
160 L.Ed.2d 537 (2004). “Instead, courts
look at the known facts and whether those facts, viewed objectively, establish probable
cause for the officers’ actions.”
Gessner at ¶ 37, citing
Devenpeck at 153. “In fact, the
offense establishing probable cause need not even be closely related to, or based on the
same conduct as, the offense an arresting officer identifies at the time of arrest.”
Id.,
citing
Devenpeck at 153-154.
Probable Cause to Arrest for Disorderly Conduct
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{¶ 22} Walker first argues that there was no lawful arrest in this case because her
arrest was based on a charge of disorderly conduct that was not supported by probable
cause. Walker was charged with disorderly conduct in violation of R.C. 2917.11(A)(3),
which provides that: “No person shall recklessly cause inconvenience, annoyance, or
alarm to another by … [i]nsulting, taunting, or challenging another, under circumstances
in which that conduct is likely to provoke a violent response[.]” (Emphasis added.) R.C.
2917.11(A)(3). Walker claims that the evidence established that her conduct on the day
in question was not “likely to provoke a violent response” because Capt. Linkous
specifically testified that her conduct did not cause him to react violently and was not the
type of conduct that would create a violent response. Because of this, Walker claims
that Capt. Linkous and Sgt. Mullen did not have probable cause to arrest her for disorderly
conduct and therefore arrested her unlawfully.
{¶ 23} In State v. Ellis, 2d Dist. Montgomery No. 24003, 2011-Ohio-2967, this court
explained that the question of whether a person provoked a violent response for purposes
of committing disorderly conduct is determined based on an objective test and that “ ‘the
officer need not in fact be inconvenienced, annoyed or alarmed, or personally provoked
to a violent response.’ ” Id. at ¶ 47, quoting Sansalone,
71 Ohio App.3d at 286,
593
N.E.2d 390. “ ‘The question, instead, focuses on whether, under the circumstances, it is
probable that a reasonable police officer would find the accused’s language and conduct
annoying or alarming and would be provoked to want to respond violently.’ ”
Id.
{¶ 24} Ohio’s Fourth, Twelfth, and First Appellate Districts have issued decisions
holding that when there is no evidence establishing that a defendant engaged in conduct
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that was likely to provoke a violent response, there is no probable cause to arrest the
defendant for disorderly conduct, and, in turn, no lawful arrest on which to base a charge
of resisting arrest. See, e.g., State v. Lamm, 80 Ohio App.3d 510, 515-516,
609 N.E.2d
1286 (4th Dist.1992); State v. Maynard,
110 Ohio App.3d 6,
673 N.E. 2d 603 (4th
Dist.1996); State v. Johnson,
6 Ohio App.3d 56,
453 N.E.2d 1101 (12th Dist.1982);
Sansalone at 286. With the exception of the First District case, Sansalone, the
aforementioned cases are distinguishable from the instant case in that disorderly conduct
was the only offense on which the resisting arrest charge could have been based. In
contrast, Walker’s conduct prior to her arrest resulted in her being charged with not only
disorderly conduct, but two other arrestable offenses—improper use of a 9-1-1 system
and telecommunications harassment.
{¶ 25} Similar to this case, in Sansalone, the defendant was charged with multiple
arrestable offenses in addition to resisting arrest. Specifically, the defendant was
charged with disorderly conduct and driving without a license. Sansalone at 285. The
charges arose after the defendant called the arresting officer an “asshole” multiple times
for issuing the defendant a parking citation.
Id. at 285. Based on that conduct, the
officer testified that he decided to pull the defendant over and charge the defendant with
disorderly conduct.
Id. at 286. After pulling the defendant over, the officer did a
computer check on the defendant’s driver’s license and determined that the defendant’s
license was suspended.
Id. at 285. The officer thereafter issued the defendant a
citation for driving under suspension, and the defendant crumpled up the citation.
Id. The
officer then arrested the defendant for disorderly conduct and the defendant resisted the
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arrest. Id. at 285-286.
{¶ 26} Following a bench trial, the trial court in Sansalone found the defendant not
guilty of disorderly conduct and driving without a license, but guilty of resisting arrest. Id.
at 285. The defendant thereafter appealed her conviction for resisting arrest on grounds
that the State failed to present sufficient evidence to establish that she had been lawfully
arrested. Upon review, the appellate court determined that there was nothing in the
record indicating that a reasonable person would have found the defendant’s conduct to
be so annoying as to provoke a violent response, and thus concluded that there was no
evidence establishing probable cause to arrest the defendant for disorderly conduct.
Id.
at 286. As a result, the appellate court found that the defendant’s arrest was unlawful
and reversed her conviction for resisting arrest.
Id.
{¶ 27} Although Sansalone is similar to this case, it is significant that Sansalone
was decided 13 years before the United States Supreme Court issued its decision in
Devenpeck, 543 U.S. 146, 153,
125 S.Ct. 588,
160 L.Ed.2d 537. As previously
discussed, Devenpeck rejected the notion that the offense establishing probable cause
for an arrest must be “ ‘closely related’ to, and based on the same conduct as, the offense
identified by the arresting officer at the time of arrest.”
Id. at 153. That is, an officer’s
“subjective reason for making an arrest need not be the criminal offense as to which the
known facts provide probable cause.”
Id. at 153. Currently, “courts look at the known
facts and whether those facts, viewed objectively, establish probable cause for the
officers’ actions.” Gessner, 2d Dist. Montgomery No. 21498,
2007-Ohio-570, at ¶ 37,
citing
Devenpeck at 153. Therefore, because Sansalone was decided before
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Devenpeck, we do not find it instructive, as it is possible that the facts known to the officer
in Sansalone provided the officer with probable cause to arrest the defendant for driving
without a license.
{¶ 28} In this case, although Capt. Linkous testified that he arrested Walker for
disorderly conduct, per Devenpeck, Capt. Linkous’s subjective reason for arresting
Walker is irrelevant. When applying the principles set forth in Devenpeck, we find that
even if this court were to conclude that the evidence failed to establish that the officers
had probable cause to arrest Walker for disorderly conduct due to Walker’s not engaging
in conduct that would provoke a violent response, the evidence otherwise established
that the officers had probable cause to arrest Walker for improper use of a 9-1-1 system
in violation of R.C. 128.32(F).
Probable Cause to Arrest for Improper Use of a 9-1-1 System
{¶ 29} One commits improper use of a 9-1-1 system in violation of R.C. 128.32(F)
when he or she “knowingly use[s] a 9-1-1 system for a purpose other than obtaining
emergency service.” R.C. 128.32(F). “ ‘Emergency service’ means emergency law
enforcement, firefighting, ambulance, rescue, and medical service.” R.C. 128.01(N). In
this case, there is no dispute that Walker knowingly called Darke County’s 9-1-1
emergency line on the day in question. Therefore, for purposes of the probable-cause-
to-arrest inquiry, the only issue is whether the evidence presented at trial established that
a reasonable officer in Capt. Linkous’s position would have believed that Walker called
9-1-1 for a purpose other than to obtain an emergency service.
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{¶ 30} The video evidence established that when the officers responded to
Walker’s 9-1-1 call, Walker calmly met the officers in her driveway and was not in any
distress. After approaching Walker, Capt. Linkous could be heard on the video asking
Walker: “[W]hat’s the emergency?” State’s Ex. 2 (0:56 to 0:58). In response, Walker
advised the officers that she had “a bunch of stalkers living next door to [her].” Id. (1:00
to 1:04). To clarify the purported emergency, Capt. Linkous asked: “What’s going on
right now?”
Id. (1:09 to 1:11). To that, Walker responded: “Well right now is that you
won’t speak to me.”
Id. (1:11 to 1:14). Thereafter, Capt. Linkous continued to try and
identify Walker’s emergency and stated the following:
Capt. Linkous: So, we have more people close by. We have
emergencies right now. You’re telling me there is not
really an emergency you just want to talk to us, is that
correct?
Walker: No, no, no, it’s an emergency. It is absolutely an
emergency.
Capt. Linkous: How is it an emergency?
Walker: These people live next to me. … Every moment that
they’re there and their existence is an emergency for
me.
Capt. Linkous: Okay.
Walker: Yeah. You get what my emergency is?
Capt. Linkous: No, I do not.
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State’s Ex. 2 (1:29 to 1:53).
{¶ 31} Thereafter, Capt. Linkous continued to ask Walker what had occurred that
day to precipitate her 9-1-1 call. The relevant portion of their conversation is set forth
below:
Walker: What I think is, if we are going to talk about today, my
concern is how much these people have stalked me.
…
So, what I am really scared about is the gunfire and the
drive bys and stuff like that. I’m scared about that.
…
I’m frightened. I’m really really scared about these
people. And I’ve been telling you about that for two
years now. Right. And okay. … These people are
set up on me and I’ve been talking to you guys about
that for a while now. And I think I have it pretty much
all recorded. And I’ve been talking to other
jurisdictions about it and I’m very scared. And so,
that’s that’s really what I’m calling about today. I don’t
want to talk to some voicemail or some shit like that.
You know what I mean?
…
Capt. Linkous: Did something happen today? That--
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Walker: Nah, I just feel like—no. I--I got--I picked up um ah
you know last night-ish, maybe early this morning, um
the ah recordings that I had asked for and I listened to
them and one that was—ok, well there have been a lot
of scary other ones that I have gotten from you guys
that I’ve heard before now--but this one from Young,
that is what I wanted to talk to you about.
(Emphasis added.) State’s Ex. 2 (3:38 to 8:19).
{¶ 32} Over the next 20 minutes, the conversation continued, and Capt. Linkous
kept trying to ascertain Walker’s emergency:
Capt. Linkous: So today, tell me what the emergency is because we’ve
investigated each individual case. Every time you call
in you have an urgent problem and I think we come
down and investigated it, correct?
Walker: Well, so that is the thing, I haven’t been able to talk to
deputy [inaudible]. … There’s a lot going on here.
There’s a lot going on here that I haven’t been able to
talk to you guys about because you sort of cut me off.
…
But I’m very scared and that is what I called you about
today.
…
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Capt. Linkous: What is the specific problem? … What I’m asking you
today, what was the specific thing that caused the
problem today for you to feel the way you do? … What
today has changed. You told me you watched or
listened to a video or recording.
Walker: Of your deputy. Yep.
Capt. Linkous: There is no other specific situation or scenario going
outside that recording [inaudible] is that correct?
Walker: I’m not sure. So, let’s be clear. You have--you are
acknowledging that you have reviewed everything I’ve
brought to you since 2019?
Capt. Linkous: No, I have not. I just told you that. I have not.
Walker: Ok, then we are in kind of a weird spot, huh? Right.
We can’t really talk about anything. That is kind of the
problem.
…
Capt. Linkous: You are the one who called us down here today and
said you had an emergency.
Walker: I do have an emergency. My emergency is you. Do
you get it? Do you get what I’m saying? Right.
Capt. Linkous: So, you really don’t have an emergency.
Walker: I do.
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Capt. Linkous: Okay.
Walker: Oh, it doesn’t count if it’s you? Right.
Capt. Linkous: I wasn’t here at the time.
Walker: No, no, no. When I called you about the emergency,
that is you. You’re saying that doesn’t qualify as an
emergency. Is that what you’re saying?
Capt. Linkous: So, what you are saying is that you called 911 just to
get us down here so you could talk to us.
Walker: No, no, no. … (Walker continues talking over Capt.
Linkous)
(Emphasis added.) State’s Ex. 2 (16:10 to 26:22).
{¶ 33} The video-recorded conversation and the testimony presented at trial
indicated that Walker called 9-1-1 because, after calling Darke County’s non-emergency
line several times, she was unable to speak with Dep. Young or any other officer about
her concerns with her neighbors’ past conduct and about the audio-recording that Dep.
Young had provided her the previous day. During her conversation with Capt. Linkous,
Walker repeatedly indicated that she was afraid of her neighbors, but she never described
an active emergency for which she needed an emergency service. Instead, Walker
discussed events from the past and her issues with calling dispatch that day.
{¶ 34} When viewing the evidence in a light most favorable to the State, a rational
factfinder could have concluded that the facts and circumstances within Capt. Linkous’s
knowledge were sufficient to warrant a reasonable officer to believe that Walker knowingly
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called 9-1-1 for a purpose other than to an obtain an emergency service and, by doing
so, she committed the offense of improper use of a 9-1-1 system in violation of R.C.
128.32(F). Therefore, under the circumstances of this case, we find that there was
sufficient evidence presented at trial to establish that Capt. Linkous had probable cause
to arrest Walker for that offense.
{¶ 35} Simply because Capt. Linkous chose to cite Walker for improper use of a 9-
1-1 system and later arrested her for disorderly conduct is irrelevant to the probable-
cause-to-arrest determination. As previously discussed, an officer’s “subjective reason
for making an arrest need not be the criminal offense as to which the known facts provide
probable cause.” Devenpeck, 543 U.S. at 153-154,
125 S.Ct. 588,
160 L.Ed.2d 537.
All that matters is that the facts and circumstances known to Capt. Linkous provided
probable cause to arrest Walker for improper use of a 9-1-1 system.
{¶ 36} Because the State presented sufficient evidence of probable cause to arrest
Walker, there was, in turn, sufficient evidence for the jury to find that Walker was lawfully
arrested for purposes of finding her guilty of resisting arrest. After reviewing the entire
record and weighing all the evidence and reasonable inferences, we do not find that the
jury’s determination in that regard created a manifest miscarriage of justice that warrants
a reversal of Walker’s conviction. Therefore, in addition to being supported by sufficient
evidence, Walker’s conviction for resisting was also not against the manifest weight of the
evidence.
Seizure Constitutes Arrest
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{¶ 37} As an alternative argument, Walker claims that there was no lawful arrest
to support her resisting arrest conviction because the evidence established that the
officers’ seizure of her person did not constitute an actual arrest. Walker claims that her
seizure did not constitute an arrest because she did not understand or know that she was
being arrested due to the officers failing to tell her that she was under arrest.
{¶ 38} This court has explained that:
An arrest can occur under either of two circumstances. This first of
those circumstances is a formal arrest where the officer explicitly and
unequivocally informs the subject that he or she is under arrest. The
second, and less clear, circumstance is when a police officer performs a
seizure of the subject that is tantamount to an arrest. A seizure is sufficient
to give rise to an arrest when: 1) there is an intent to arrest; 2) under real or
pretended authority; 3) accompanied by an actual or constructive seizure or
detention; and 4) which is so understood by the person arrested.
(Emphasis added.) State v. Qualey, 2d Dist. Montgomery No. 16705, 1998 WL 403881,
*4 (Mar. 27, 1998), citing State v. Darrah,
64 Ohio St. 2d 22, 26,
412 N.E.2d 1328 (1980).
{¶ 39} We note that “an officer is not required to specifically state that a person is
under arrest in order to effectuate an arrest.” (Citations omitted.) State v. Hagstrom,
12th Dist. Butler No. CA98-07-157, 1999 WL 527785, *4 (June 21, 1999). Accord State
v. Carroll,
162 Ohio App.3d 672,
2005-Ohio-4048,
834 N.E.2d 843, ¶ 14 (1st Dist.); State
v. Maurer,
15 Ohio St.3d 239, 255,
473 N.E.2d 768 (1984). The evidence, however,
“must show that the subject of an arrest should reasonably have understood that such a
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seizure occurred.” In re B.M., 2d Dist. Montgomery Nos. 25093, 25206, 2012-Ohio-
6221, ¶ 14, citing State v. Hatch, 2d Dist. Montgomery No. 18986, 2002 WL 10449 (Jan.
4, 2002). “A seizure is an arrest … if a ‘reasonable person’ in the suspect’s position
would have understood the situation to constitute a restraint on his [or her] freedom of
movement of the degree the law associated with formal arrest.” Hatch at *4, citing United
States v. Corral-Franco,
848 F.2d 536 (5th Cir.1988).
{¶ 40} In this case, we find that a rational factfinder could have concluded from the
video evidence that a reasonable person in Walker’s position would have understood that
Capt. Linkous and Sgt. Mullen were restraining her for purposes of placing her under
arrest. In reaching this conclusion, we rely on the following conversation that can be
heard between Walker and the officers just prior to the officers’ restraining Walker:
Walker: Hi Sergeant Mullen, what you got for me?
Sgt. Mullen: Citation.
Walker: A citation. Uh oh. What a surprise.
…
(Walker continues talking to Capt. Linkous out of the
camera’s view.)
Capt. Linkous: Don’t touch me. Don’t touch me.
Walker: Ah, that’s funny.
Capt. Linkous: Don’t touch me.
Walker: That’s funny. (Walker laughing)
Capt. Linkous: Don’t touch me, cause you are going to go to jail.
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Walker: Uh oh. Cite me for touching him. I touched him.
Capt. Linkous: Stop resisting. Stop resisting. Stop resisting. I do
not want to hurt you. Stop resisting. Stop resisting.
Stop resisting.
(Emphasis added.) State’s Ex. 2 (30:04 to 32:00).
{¶ 41} Although Walker and the officers were not in view of the camera when the
foregoing conversation took place, the conversation indicated that Capt. Linkous began
attempting to place Walker in custody after she continued to touch him against his wishes
and after he told her she was “going to go to jail.” This is because soon after Capt.
Linkous told Walker that she was going to jail, Capt. Linkous and Walker moved into view
of the camera and Capt. Linkous could be seen attempting to handcuff Walker at the hood
of Sgt. Mullen’s police cruiser while Walker resisted. While she was resisting, Walker
also asked the officers: “What are you going to do? Are you going to take me to jail?”
and Capt. Linkous responded: “Yeah.” Id. (32:35).
{¶ 42} Based on Capt. Linkous and Walker’s conversation and their actions, we
find that a rational factfinder could have concluded that a reasonable person in Walker’s
position would have believed that he or she were being arrested and taken to jail.
Therefore, Walker’s alternative claim that there was insufficient evidence showing that
there was an arrest underlying her resisting arrest conviction lacks merit.
{¶ 43} Because the lawful-arrest element of resisting arrest was supported by
sufficient evidence and because the weight of the evidence supported the jury’s finding
that the lawful-arrest element was established beyond a reasonable doubt, Walker’s sole
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assignment of error is overruled.
Conclusion
{¶ 44} The judgment of the trial court is affirmed.
.............
DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Drew E. Wood
Jessica R. Walker
Hon. Julie L. Monnin
