[Cite as State v. Whetstone, 2016-Ohio-6989.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-114
- vs - :
JOHN W. WHETSTONE, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 15 CR 000032.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, John W. Whetstone, appeals the judgment of the Lake County
Court of Common Pleas finding him guilty, following a bench trial, of two counts of
assault and one count of resisting arrest. Based on the following, we affirm.
{¶2} Officers Josh Williams and Brent Bramley of the City of Mentor-on-the-
Lake Police Department responded to an altercation at Lakeway Lounge, a bar, where
they observed appellant being held on the ground by a man that appellant allegedly
assaulted. Appellant was intoxicated. Appellant was cited for disorderly conduct based
upon his intoxication and conduct and eventually taken to his home by Officer Williams.
{¶3} At his home, appellant’s fiancée, Joanna Paul, signed a responsibility
form; appellant was given his citation; and he was released. After he was released,
appellant became increasingly agitated. Despite Officer Williams’ attempts to diffuse
the situation, appellant became more agitated and began to become aggressive.
According to Officer Williams, despite repeated warnings to calm down, appellant took a
step toward him with a closed fist that made the officer feel threatened. At this point,
Officer Williams attempted to place appellant under arrest for fourth-degree
misdemeanor persistent disorderly conduct. While trying to place appellant under
arrest, a struggle ensued. Officer Williams was able to call for back-up, and Officer
Bramley arrived at appellant’s residence. Upon arrival, Officer Williams was still
struggling to place appellant under arrest. During this struggle, appellant yelled for his
fiancé to videotape the incident; she complied. Eventually, the officers secured
appellant; however, when making their way to the police cruiser, appellant continued to
tussle with the officers. Appellant performed a “leg sweep” on Officer Bramley causing
him to fall to the ground. Appellant continued this behavior of performing “leg sweeps”
on both officers causing both officers to fall to the ground. Appellant also scratched the
hand of Officer Williams. Eventually, the officers had to call for more back-up. It took
four officers to get appellant into the police cruiser. While inside the cruiser, appellant
continued to struggle and kicked Officer Williams several times in the chest.
2
{¶4} Officers Williams and Bramley testified they sustained injuries as a result
of appellant’s conduct. Specifically, Officer Williams testified he sought medical
treatment for approximately one month after the incident due to swelling in his back and
scratches on his hand.
{¶5} Appellant and Ms. Paul also testified. Appellant testified that he purposely
resisted arrest. He made it difficult for the officers to remove him from his home
because he did not understand why he was being placed under arrest. He testified that
when they went outside he was still trying to push back while the officers were trying to
push him forward and that he purposely dropped his body to the ground to make it
difficult for the officers. Appellant, however, cited to the slippery condition of the
walkway as cause for why the officers fell. Moreover, appellant testified that while the
officers were holding him down, he tried pulling and twisting his hands, but they were
restrained in handcuffs.
{¶6} Ms. Paul testified that although appellant was being uncooperative, she
did not observe him trip any of the officers. She did testify, however, that while she was
recording the incident, she heard the officers tell appellant to stop scratching, biting, and
punching.
{¶7} The trial court, as the trier of fact, also viewed the recording of the events
that evening.
{¶8} Appellant was indicted on two counts of assault, fourth-degree felonies, in
violation of R.C. 2903.13(A)(5) and one count of resisting arrest, a first-degree
misdemeanor, in violation of R.C. 2921.33(B). After a bench trial, the trial court found
3
appellant guilty on all three counts. Appellant was sentenced to consecutive 13-month
prison terms on each felony, for a total imprisonment term of 36 months.
{¶9} Appellant filed a timely notice of appeal.
{¶10} Upon review of the record, this court found the record did not contain any
disposition for Count 3, Resisting Arrest. The entry did not impose any sentence for
Count 3 nor did it merge that count with either of the other counts. Accordingly, this
court ordered, sua sponte, that the case be remanded to the trial court for the purpose
of including a disposition for Count 3.
{¶11} On July 21, 2016, the Lake County Court of Common Pleas held a hearing
wherein it granted appellant’s motion for judicial release. In the same judgment entry
that granted judicial release, the court indicated that appellant’s sentence was amended
to include a merger of Count 3 into Count 2. We now have jurisdiction to consider
appellant’s appeal.
{¶12} On appeal, appellant alleges:
{¶13} “The trial court erred to the prejudice of the defendant-appellant when it
returned a verdict of guilty against the manifest weight of the evidence in violation of his
due process rights, as guaranteed by the Fourteenth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.”
{¶14} Under his sole assignment of error, appellant maintains the trial court’s
finding of guilt as to the two counts of aggravated assault was against the manifest
weight of the evidence.
{¶15} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
4
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997).
{¶16} “The trier of fact is in the best position to evaluate inconsistencies in
testimony by observing the witness’s manner and demeanor on the witness stand—
attributes impossible to glean through a printed record.” State v. Williams, 11th Dist.
Lake No. 2012-L-078, 2013-Ohio-2040, ¶21. Therefore, we must defer to the weight
and credibility the trier of fact gave to the evidence in this case. State v. Barnes, 11th
Dist. Portage No. 2012-P-0133, 2013-Ohio-2836, ¶49; see also State v. DeHass, 10
Ohio St.2d 230 (1967), paragraph one of the syllabus. .
{¶17} A judgment of the trial court should be reversed as being against the
manifest weight of the evidence “only in the exceptional case in which the evidence
weighs heavily against the conviction.” Thompkins, supra, at 387.
{¶18} Appellant was found guilty of two counts of assault, in violation of R.C.
2903.13(A), which states: “No person shall knowingly cause or attempt to cause
physical harm to another * * *[.]” (emphasis added). Appellant was also found guilty of
resisting arrest, in violation of R.C. 2921.33(B), which states: “No person, recklessly or
by force, shall resist or interfere with a lawful arrest of the person or another person
and, during the course of or as a result of the resistance or interference, cause physical
harm to a law enforcement officer.” As noted, this count was merged with one count of
assault.
5
{¶19} Appellant argues he did not act “knowingly.” “A person acts knowingly,
regardless of purpose, when the person is aware that the person’s conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge
of circumstances when the person is aware that such circumstances probably exist.”
R.C. 2901.22(B). “The legal concept of ‘knowingly’ incorporates the scienter
requirement that one ought to know one’s actions will ‘probably cause certain results.’
The concept of reasonable probability literally embraces the concept of foreseeability.”
State v. Barker, 11th Dist. Portage No. 2010-P-0044, 2012-Ohio-522, ¶114.
{¶20} The concept of “knowingly” also incorporates “purpose” and “intent.” R.C.
2901.22(E) specifically states: “When knowledge suffices to establish an element of an
offense, then purpose is also sufficient culpability for such element.” R.C. 2901.22(A)
defines “purpose” as follows: “A person acts purposely when it is the person’s specific
intention to cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender’s specific intention to engage in conduct of that
nature.” Therefore, “knowingly” includes “purposeful” and “intentional” conduct.
{¶21} “[A] person is presumed to intend the natural, reasonable and probable
consequences of his voluntary acts.” State v. Johnson, 56 Ohio St.2d 35, 39 (1978)
(citations omitted). Furthermore, “[i]t is not necessary that the accused be in a position
to foresee the precise consequence of his conduct; only that the consequence be
foreseeable in the sense that what actually transpired was natural and logical in that it
was within the scope of the risk created by his conduct.” State v. Losey, 23 Ohio
App.3d 93, 96 (10th Dist.1985). Intent can be determined from the surrounding facts
6
and circumstances. State v. Robinson, 161 Ohio St. 213 (1954), paragraph five of the
syllabus.
{¶22} Appellant maintains the state failed to present evidence that he intended
to cause injury to the officers, contending the weather conditions were icy and slippery.
Appellant denies “leg sweeping the officers” and claims the officers fell because he
slipped while he was “trying to push himself back into the home while the officers were
pushing him forward.” Appellant states that “while he was resisting arrest, he was by
law permitted to as the arrest was unlawful.” He testified he continued to “resist his
arrest” “as the officers dragged him out of the house.”
{¶23} This court has addressed and rejected a similar argument in State v.
Newsome, 11th Dist. Ashtabula No. 2003-A-0076, 2005-Ohio-3775. In Newsome, we
rejected the appellant’s contention “that he would have been privileged to forcibly resist
the officers provided his arrest [was] unlawful.” Id. at ¶11. “‘In the absence of
excessive or unnecessary force by an arresting officer, a private citizen may not use
force to resist arrest by one he knows, or has good reason to believe, is an authorized
police officer engaged in the performance of his duties, whether or not the arrest is
illegal under the circumstances.’” Id., citing Columbus v. Fraley, 41 Ohio St.2d 173
(1975), paragraph three of the syllabus (emphasis sic). In Newsome, we clarified this
court’s holding in State v. Hendren, 110 Ohio App.3d 496 (1996), noting that “a citizen
may not be convicted of resisting arrest, even by force, if the arrest is unlawful. A lawful
arrest is not an element of assault on a peace officer.” Id. at ¶12 (emphasis sic)
(citation omitted). Consequently, if the arrest was unlawful and a citizen forcibly
7
resisted arrest, the citizen may not be subject to prosecution for resisting arrest, but
would be subject to prosecution for assault on a peace officer. Id.
{¶24} Reviewing the evidence admitted in this case, we cannot conclude the
trier of fact lost its way in finding that appellant committed the offense of assault on a
peace officer. The officers testified that despite their warnings, appellant continually
engaged in actions such as throwing his body to the ground, scratching, kicking, and
contorting his body to make it extremely difficult for the officers. The trier of fact also
heard evidence regarding the injuries the officers sustained as a result of appellant’s
behavior. While appellant claims the officers slipped on the icy sidewalk and not as a
result of a “leg sweep,” resolution of “‘conflicting testimony rests solely with the finder of
fact and an appellate court may not substitute its own judgment for that of the finder of
fact.’” State v. Grayson, 11th Dist. Lake No. 2006-L-153, 2007-Ohio-1772, ¶31, quoting
State v. Awan, 22 Ohio St.3d 120, 123 (1986). “‘Indeed, the factfinder is free to believe
all, part, or none of the testimony of each witness appearing before it.’” Id., quoting
Warren v. Simpson, 11th Dist. Trumbull No. 98-T-0183, 2000 Ohio App. LEXIS 1073, *8
(Mar. 17, 2000). “If the evidence is susceptible to more than one interpretation, a
reviewing court must interpret it in a manner consistent with the verdict.” Id. (citation
omitted).
{¶25} The state submitted substantial evidence in support of appellant’s
convictions, and a review of that evidence reveals that the state clearly met its burden of
persuasion. This court cannot say that the trial court clearly lost its way in coming to its
final conclusion regarding appellant’s guilt.
8
{¶26} Under this assigned error, appellant also argues the evidence was against
the manifest weight of the evidence to support his conviction of resisting arrest.
Because appellant’s count of resisting arrest merged into one of the assault counts, no
sentence was imposed on that charge; therefore there is no conviction on that charge.
Any error with regard to the resisting arrest charge in this case is not relevant. See In re
J.C., 11th Dist. Lake No. 2012-L-083, 2013-Ohio-1292, ¶22.
{¶27} Appellant’s assignment of error is without merit.
{¶28} The judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
9