State v. Raines

Marianna Brown Bettman, Judge. Defendant-appellant George Raines appeals from his conviction and sentence for burglary pursuant to R.C. 2911.12(A)(2). His sole assignment of error, that the evidence was insufficient to support his conviction under this provision of the burglary statute, is sustained. In this case, a police officer on routine bicycle patrol saw Raines leaning into the driver’s-side window of a running parked car in a high-crime neighborhood. He then saw Raines reach down and place something in his shoe. The officer testified that when he was about ten feet from Raines, he told Raines to stop because he needed to talk to him. Instead, Raines fled. The officer told him to stop and that he was under arrest, but Raines kept fleeing. Raines ran into an apartment building, knocked on a door at random, and, when it was answered, pushed or “conned” his way inside. The officer followed him and gained *432 admittance to the apartment. • Although no drugs were found, Raines was arrested and ultimately charged with burglary under R.C. 2911.12(A)(2). R.C. 2911.12(A)(2) states that no person by force, stealth, or deception shall trespass in an occupied structure when another person is present, with the purpose to commit any criminal offense therein. It is the state’s position that Raines was guilty of this crime because he entered the apartment with the intent to commit the crime of resisting arrest. We disagree. Further, contrary to the suggestion in the dissenting opinion, at no time in this case, either at the trial level or before this court, has the state argued that Raines entered the dwelling with the intent to obstruct official business. Raines was originally charged with resisting arrest and disorderly conduct. Those charges were dropped in favor of the burglary charge when the matter was bound over from juvenile court. The crime of resisting arrest is codified at R.C. 2921.33(A), which states that “no person recklessly or by force, shall resist or interfere with a lawful arrest of the person or another.” A lawful arrest is an element of this offense. State v. Kuehne (Mar. 6, 1996), Hamilton App. No. C-940971, unreported, 1996 WL 97560. Although the officer testified that he chased Raines and told Raines to stop because he was under arrest, this was not so. “ ‘[A]n officer effects an arrest of a person whom he has authority to arrest by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping and holding him.’ ” California v. Hodari D. (1991), 499 U.S. 621, 624, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690, 696, quoting Whithead v. Keyes (1862), 85 Mass. 495, 501; see, also, State v. Franklin (1993), 86 Ohio App.3d 101, 619 N.E.2d 1182. Alternatively, an arrest is “ ‘an assertion of authority and purpose to arrest followed by submission of the arrestee * * *. [T]here can be no arrest without either touching or submission.’ ” Hodari, supra, at 626-627, 111 S.Ct. at 1551, 113 L.Ed.2d at 697, quoting Perkins, The Law of an Arrest (1940), 25 Iowa L.Rev. 201, 206. Thus, Raines was never arrested in this case before he ran into the apartment. Further, there was no probable cause to arrest Raines established on this record before Raines entered the apartment. The record in this case establishes only that the officer had an articulable suspicion, that Raines was engaged in criminal activity. Where articulable suspicion, but not probable cause to arrest exists, fleeing from a request for a Terry -type stop, while not behavior we condone in any way, does not constitute the crime of resisting arrest. State v. Bradley (Mar. 11, 1993), Franklin App. No. 92AP-1496, unreported, 1993 WL 69474; State v. McCullough (1990), 61 Ohio Misc.2d 607, 580 N.E.2d 1180. Raines’s sole assignment of error is sustained. However, we agree that the evidence at trial does support a conviction for the lesser-degree offense of *433 burglary under 2911.12(A)(4). 1 Accordingly, we reverse the conviction under R.C. 2911.12(A)(2) and remand the matter to the trial court to enter a judgment of conviction in accordance with this decision, including imposition of the appropriate sentence. Judgment reversed and cause remanded. Gorman, J., concurs. Hildebrandt, P.J., dissents. Footnotes [1] R.C. 2911.12 reads as follows: "(A) No person by force, stealth, or deception, shall do any of the following: "(4) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present.”