State v. Lazzaro

Francis E. Sweeney, Sr., J.,

dissenting. I respectfully dissent. I disagree with the majority’s decision to affirm the appellant’s convictions for obstructing official business (R.C. 2921.31[A]) and falsification (R.C. 2921.13[A][3]). I believe the General Assembly never intended to criminalize the situation which occurred here. Therefore, I would reverse the court of appeals’ decision, which affirms the appellant’s convictions.

In reaching my decision, I carefully considered the evidence presented at trial. According to this evidence, it was appellant who summoned the police to the nursing home on October 7, 1993. The police dispatch tape recorded her telephone conversation, where she stated: “I have an employee that — well, I have a resident that has a bloody nose and an employee I suspect of punching him in the nose.” (Emphasis added.) In response to appellant’s call, Patrolman Michael Kish reported to the nursing home to investigate. This investigation lasted a total of thirty-two minutes, when Kish left his cruiser to when he re-entered it to leave the scene. Only ten minutes of his investigation was spent talking to the suspect, Noel Neece, Jr., and appellant.

When interviewed by Kish, Neece stuck to his original story that it was an accident. Appellant knew that another nurse’s aide, Julie Swindell, had given conflicting statements; however, appellant did not know at the time what had really occurred. Appellant had just received the report of this incident about one hour beforehand, and she was in the process of collecting information, so she could reach her own determination of what had occurred. Appellant also stated that she was overwhelmed and had “tunnel vision” because she did not know what her responsibilities were to the patient, the nursing home, the witness, and the suspect. Therefore, appellant did not volunteer Swindell’s name. In addition, she testified that Kish never asked her if there were any witnesses. Instead, the officer only asked whether the patient had a roommate, to which she replied “yes.” Of course, Patrolman Kish’s testimony differs from appellant’s. Kish testified that he asked appellant if there were other witnesses, and she said “no.” Kish also testified that he asked if the patient had a roommate.

*268 Before leaving the nursing home, Kish told appellant he did not think a criminal act had occurred. However, he told appellant to call him if it was later determined that the patient’s nose was broken.

The next day, Friday, October 8, 1993, appellant began preparing her report concerning the incident for the State Department of Health. In her seven years as the administrator, this was the first time she had dealt with a case of physical patient abuse. In connection with preparing her report, appellant learned the extent of the patient’s injury and obtained a copy of Kish’s police report. After considering all the information, appellant concluded that Neece had intentionally struck the patient. Her report to the state, which she sent on October 11, 1993, reflects her conclusion that patient abuse had occurred.

After reaching this conclusion, appellant realized that the police report and her report to the state were conflicting. She did not want to make the police officer look ridiculous, and she realized that Kish had reached his conclusions because he did not know that the patient’s nose was broken or that Swindell had offered a different version from the suspect’s version. After speaking with the head of night security at the nursing home (an off-duty sergeant for the Avon police) on October 11, 1993, appellant called the police station to give Kish this new information. As a result of appellant’s disclosure, the case was reopened and Neece was arrested for assaulting the patient and ultimately pled guilty to that charge.

Based upon these facts, appellant was convicted of obstructing official business (R.C. 2921.31[A]) and falsification (R.C. 2921.13[A][3]). In order to sustain a conviction for obstructing official business, the state was required to prove, inter alia, that appellant (1) performed any act which hampered or impeded a public official in the performance of his lawful duties, and (2) with a purpose to prevent, obstruct, or delay performance by a public official of any authorized act within his official capacity. (Emphasis added.) To prove falsification, the state was required to show that appellant (1) knowingly made a false statement, (2) with purpose to mislead public official in performing his official function. (Emphasis added.)

At oral argument, the prosecutor admitted that the state had to prove appellant’s intent in committing these crimes. Further, the prosecutor conceded, despite all the legal rhetoric in his appellee brief to the contrary, that the only evidence he had to prove this intent was Patrolman Kish’s testimony that appellant stated in response to his inquiry that there were no witnesses. The prosecutor then argued that if Kish’s testimony was true, then intent could be inferred from appellant’s oral statement. This was the sum and substance of the evidence the state produced to prove appellant guilty of these charges. In my *269 mind, this evidence, which was disputed, is wholly inadequate to prove these crimes.

Instead, the evidence clearly shows that appellant was confused and did not know what her responsibilities were when confronted with the police investigation. This confusion is understandable. As the administrator of the nursing home, she was faced with the task of knowing, understanding and juggling her responsibilities to the patient, nursing home employees of the nursing home, and governmental authorities. Nevertheless, appellant discharged her duties under the law. She immediately reported the incident to the police, suspended the suspected wrongdoer, and proceeded to prepare her report to the Department of Health.

After she digested all the information, she arrived at her conclusion that Neece had intentionally struck the patient. This conclusion was recorded in her state report. Because of her concern that her report and the police report did not match, she initiated contact with Patrolman Kish to provide him with all the information she had. She had no legal responsibility to do so. It was not her job to do the investigation for the police. Her only legal obligation was to report a suspected crime, which she did on October 7. However, solely based upon her voluntary actions, Neece was arrested for his crime and charged accordingly. Justice prevailed when Neece entered his guilty plea.

I am at a loss to understand why the majority wants to punish appellant’s actions. By upholding criminal convictions under these facts, I am afraid that today’s decision today will have a far-reaching impact on every conversation between a law enforcement officer and a private citizen. Faced with the very real threat of criminal prosecution if an oral statement is later corrected, a citizen may very well be discouraged from providing any information to the police. In other words, the police, who already have a difficult job in ferreting out crime, have just been dealt a blow to their ability to combat crime. Instead, I believe the goal of obtaining accurate information about criminal misconduct can best be served by shielding from prosecution witnesses who voluntarily come forward to correct a police officer’s misunderstanding about the case. Accordingly, I would reverse appellant’s convictions.

Pfeifer, J., wholeheartedly concurs in the foregoing dissenting opinion.