State v. Riefers

[Cite as State v. Riefers, 2026-Ohio-3500.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY STATE OF OHIO, : CASE NO. CA2025-11-103 Appellee, : OPINION AND vs. : JUDGMENT ENTRY 9/8/2026 BRANDON RIEFERS, : Appellant. : : CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 24CR42165 David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee. Christopher Bazeley, for appellant. ____________ OPINION M. POWELL, J. {¶ 1} Brandon Riefers appeals his convictions for obstructing official business and resisting arrest. He contends that the two offenses were allied offenses of similar  Warren CA2025-11-103 import and that the trial court was required to merge them before imposing sentence. Disagreeing with this contention, we affirm. I. Factual and Procedural Background {¶ 2} On a Saturday in early November 2024, Riefers spent the day and evening drinking with Ashley Burns, whom he had been seeing for about two weeks, and her longtime friends Lindsay and Robin Davis, at the Davis home in Deerfield Township, Warren County. Riefers grew visibly intoxicated and increasingly agitated, and the Davises told him it was time to leave. Riefers packed his bag and got into his white Toyota Highlander. He backed out of the driveway with the door open, striking Burns, then backed into the neighbors' car and drove away. He returned a short time later, pounded on the front door, jumped the fence, and struck the sliding door to the sunroom before returning to his vehicle. Lindsay Davis called 9-1-1 and reported that a heavily intoxicated and verbally aggressive man had been trying to get into the house, that he was or had been a Texas state trooper, that he had struck her friend with his car, and that he had just driven off in a white Toyota Highlander. {¶ 3} Warren County Sheriff's Sergeant Jack Simpson responded. The reference to the Riefers's service as a state trooper made Simpson suspect that the man might be armed. Simpson spotted the Highlander nearby the Davis home, and as he turned to get behind it, the vehicle accelerated through the subdivision well above the speed limit. Simpson activated his lights and siren, and Riefers continued on for a short distance before pulling over and lurching to a stop. While calling in the license plate, Simpson saw Riefers moving about inside the vehicle and asked dispatch to send another unit. As Simpson approached on foot, he saw Riefers punch at the windshield, and he radioed again to ask that backup come more quickly. At the window Simpson smelled a strong odor of alcohol. Riefers stared straight ahead with his hands on the wheel. He refused to -2-  Warren CA2025-11-103 produce his license, insurance, and registration, telling Simpson that he was a retired Texas state trooper and did not have to. He raised his voice to demand what probable cause supported the stop, and he would not answer when Simpson asked whether he had a firearm. {¶ 4} Sergeant Simpson then asked Riefers to step out, and Riefers complied. Seeing a clip on his pants pocket of the kind used to carry a pocketknife, Simpson told Riefers that he was placing him in handcuffs and detaining him for officer safety while he completed his investigation. When Simpson took hold of Riefers's right arm, Riefers pulled it away. Simpson shifted to the left arm and warned Riefers that if he resisted the detention he would be arrested for obstructing. Riefers stiffened, and the two were locked in that posture for several seconds before Simpson said, "I'm arresting you for obstructing." Simpson testified that he had not made up his mind to arrest Riefers until Riefers pulled away, and that until then he was simply trying to detain him for the stop and take the weapon off him. {¶ 5} Simpson then disengaged entirely. He stepped back, drew his taser, and notified dispatch that he was holding Riefers at taser point until backup arrived. Over the next several minutes, Simpson ordered Riefers to get on the ground and put his hands behind his back and then to turn away from him with his hands up. Riefers did not comply with the first command, and although he briefly turned away, he kept turning back to argue. Riefers then muttered something Simpson could not make out and came at him. Simpson pushed him back, and Riefers swatted several times at Simpson's extended arms. When Riefers advanced again with a clenched fist, Simpson deployed his taser once, then twice, and Riefers broke the probe wires both times, kicked up at Simpson from the ground, and rose to his feet in Simpson's face. Simpson used the taser in drive- stun mode and then resorted to his baton. Riefers continued kicking and refused to put -3-  Warren CA2025-11-103 his hands behind his back. When Deputies Levi McClellan and Reid Eastham arrived, Riefers kept his hands pinned beneath his body, and the deputies had to pull them free to handcuff him. A search incident to the arrest yielded a pocketknife and a loaded .380 handgun. {¶ 6} Riefers was indicted on five counts, including obstructing official business as a fifth-degree felony and resisting arrest as a second-degree misdemeanor. Riefers represented himself at trial. Burns, the Davises, Sergeant Simpson, and Deputies McClellan and Eastham testified for the State. A jury found Riefers guilty of the above two offenses and not guilty of the other three. The court sentenced him on November 5, 2025, to one year of non-reporting community control with the condition that he serve 90 days in jail, without work release, and participate in the litter program. Neither party asked the court to consider merger. {¶ 7} Riefers appealed. II. Analysis {¶ 8} Riefers presents a single assignment of error: THE TRIAL COURT PLAINLY ERRED WHEN IT FAILED TO MERGE RIEFERS'[S] CONVICTIONS FOR SENTENCING. {¶ 9} Merger questions are ordinarily reviewed de novo. State v. Lane, 2026- Ohio-2034, ¶ 12 (12th Dist.). But because Riefers did not raise merger in the trial court, he forfeited all but plain error, and he bears the burden of demonstrating "a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus." State v. Rogers, 2015-Ohio-2459, ¶ 3. In making that determination we review the entire record. Lane at ¶ 14, citing State v. Washington, 2013-Ohio-4982, ¶ 24. {¶ 10} R.C. 2941.25 governs merger. Division (A) of the statute permits only one -4-  Warren CA2025-11-103 conviction where the same conduct constitutes two or more allied offenses of similar import. Division (B) permits multiple convictions where the offenses are of dissimilar import, or where they were "committed separately or with a separate animus as to each." R.C. 2941.25(B). Accordingly, offenses do not merge if they were of dissimilar import, were committed separately, or were committed with a separate animus, and an affirmative answer to any one question permits separate convictions. State v. Ruff, 2015-Ohio-995, ¶ 31. The defendant bears the burden of establishing that he is entitled to merger. State v. Penwell, 2017-Ohio-7465, ¶ 11 (12th Dist.). We have concluded that "'because one offense was completed before the other offense occurred, the two offenses were committed separately for purposes of R.C. 2941.25(B) notwithstanding their proximity in time and that one was committed in order to commit the other.'" State v. Lane, 2014-Ohio- 562, ¶ 16 (12th Dist.), quoting State v. DeWitt, 2012-Ohio-635, ¶ 33 (2d Dist.). {¶ 11} That principle decides the issue here. Resisting arrest requires that the defendant "resist or interfere with a lawful arrest," R.C. 2921.33(A), and an arrest requires, among other elements, a seizure "so understood by the person arrested," State v. Barker, 53 Ohio St.2d 135 (1978), paragraph one of the syllabus. No arrest occurred until Sergeant Simpson announced it. Everything the jury could have relied on for the obstructing charge came before that announcement, namely Riefers's physical resistance to Simpson's attempt to search him for weapons in a safe manner (i.e., the pull of the arm and the stiffening when Simpson tried to handcuff him temporarily). Everything supporting the resisting charge came after it. The obstructing was complete before the resisting began. {¶ 12} Riefers implicitly contends that the attempted handcuffing was itself an arrest. But it wasn't. Officers conducting a lawful stop may take steps "reasonably necessary to protect their personal safety and to maintain the status quo," and the use of -5-  Warren CA2025-11-103 force to that end does not necessarily convert a stop into an arrest. State v. Hairston, 2019-Ohio-1622, ¶ 21, quoting United States v. Hensley, 469 U.S. 221, 235 (1985); see Terry v. Ohio, 392 U.S. 1, 30 (1968). Sergeant Simpson was alone at night, without backup, with a man he reasonably believed to be intoxicated and armed. He said he was detaining Riefers for officer safety, and he warned that resistance to the detention would result in an arrest, a warning that suggests no arrest had yet occurred. {¶ 13} Riefers responds that this injects Sergeant Simpson's subjective intention into the merger analysis, a factor not found in R.C. 2941.25 and Ruff. Intent to arrest is indeed one element of arrests under Ohio law. Barker at 139. But it is not the only one, another being that the seizure be "so understood by the person arrested." Id. It follows, then, that an officer's unspoken resolve does not complete an arrest that the arrestee does not understand to have occurred. Id. So even accepting Simpson's testimony that he made up his mind to arrest Riefers when he moved from one arm to the other, Riefers could not have understood himself to be under arrest until he was told, which is what makes the announcement the operative event. Riefers also argues that his conduct formed one continuous course of action. But continuity is not simultaneity. See Lane, 2014-Ohio-562, at ¶ 16 (12th Dist.); State v. Back, 2015-Ohio-4447, ¶ 12 (12th Dist.) (quoting Lane). In any event, the break here was substantial. Simpson withdrew, broke off the confrontation, and stood at a distance for several minutes before Riefers renewed it. {¶ 14} Decisions from other districts reach the same conclusion on facts similar to those here. In State v. Hathy, 1991 WL 157614 (11th Dist. Aug. 16, 1991), the Eleventh District upheld convictions for both offenses because the obstructing rested on the defendant's prearrest conduct and the resisting on her post-arrest struggle with the officer who was placing her in a squad car. Id. at *3. Accord State v. McCrary, 2009-Ohio-4390, -6-  Warren CA2025-11-103 ¶ 34 (1st Dist.) (obstructing rested on false information given during a traffic stop, resisting on the defendant's later flight and struggle). Riefers is correct that merger was not among the assignments of error in Hathy, whose discussion of R.C. 2941.25 appears within the court's treatment of a manifest-weight claim. He is also correct that Hathy concluded, applying the abstract-elements comparison of State v. Logan, 60 Ohio St.2d 126 (1979), that obstructing and resisting are allied offenses of similar import in the abstract. Hathy is an old decision, and it could never be more than persuasive here. We rely on it, as on McCrary, only as confirmation of a rule our own precedent supplies. Its abstract-elements comparison has been superseded by Ruff's instruction that "the analysis must focus on the defendant's conduct." Ruff, 2015-Ohio-995, at ¶ 30. But what survives is the ground on which the Eleventh District actually upheld both convictions, which is separate conduct. This also disposes of Riefers's objection that both cases predate Ruff. Ruff clarified the meaning of dissimilar import. It did not narrow the separate-commission ground, which comes from the text of R.C. 2941.25(B) itself and which Ruff carried forward. Id. at ¶ 20, 31. {¶ 15} Riefers's remaining points require only a brief response. His contention that the State conceded the issue by never arguing two courses of conduct is mistaken. In closing arguments, the prosecutor described the post-announcement conduct as the basis for "resisting or interference of his own arrest for the obstructing," which is the sequence we have described. In any event, the merger inquiry looks to the record rather than to the State's emphasis in closing. Lane, 2026-Ohio-2034, at ¶ 24, 26 (12th Dist.). {¶ 16} Having found that the offenses were committed separately, we need not reach the remaining Ruff questions, that is, whether they were of dissimilar import or were committed with a separate animus. -7-  Warren CA2025-11-103 III. Conclusion {¶ 17} The trial court did not commit plain error, and did not err at all, in imposing sentence on both convictions. See State v. Earley, 2015-Ohio-4615, ¶ 16 (no plain error where the offenses at issue are not allied offenses of similar import). The assignment of error is overruled, and the trial court's judgment is affirmed. PIPER, P.J., and SIEBERT, J., concur. JUDGMENT ENTRY The assignment of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed. It is further ordered that a mandate be sent to the Warren County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27. Costs to be taxed in compliance with App.R. 24. /s/ Robin N. Piper, Presiding Judge /s/ Mike Powell, Judge /s/ Melena S. Siebert, Judge -8-