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State v. Ogle

Court of Appeals of Ohio, Fourth District

July 26, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
MELANIE A. OGLE, Defendant-Appellant.

Dennis P. Evans, Connor, Evans, & Hafenstein, Columbus, Ohio, for Appellant on Case No. 11CA29

Laina Fetheroff, Hocking County Prosecutor, and William Archer, Assistant Hocking County Prosecutor, Logan, Ohio, Case Nos. 11CA29 and 12CA12.

Melanie A. Ogle, Pro Se, Rockbridge, Ohio, for Appellant, as to Case Nos. 11CA32, 12CA2, and 12CA19.

Benjamin E. Fickel, Logan, Ohio, for Appellant on Case Nos. 12CA11 and 12CA12.

Timothy P. Gleeson, Special Prosecuting Attorney, Logan, Ohio, for Appellee, on Case Nos. 11CA32, 12CA2, 12CA11, and 12CA19

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge.

{¶1} In this consolidated appeal, Defendant-Appellant Melanie A. Ogle appeals various judgment entries of the Hocking County Common Pleas Court in criminal case numbers 09CR0125 and 12CR0038. In case number 09CR0125, Appellant was convicted by a jury of assault of a peace officer, a violation of R.C. 2903.13(A)/2903.13(C)(3), and a felony of the fourth degree. [1] As to case number 12CR0038, Appellant entered an Alford plea upon a reduced charge of criminal damaging, a violation of R.C. 2909.06(A)(1), and a misdemeanor of the second degree. Having reviewed the record and the pertinent law, we find as follows:

1) Case No. 11CA29, all assignments of error are overruled and the judgment of the trial court is affirmed;
2) Case No. 11CA32, having affirmed the trial court's judgment in case number 11CA29, we conclude all assignments of error in case number 11CA32 are moot and appeal is dismissed;
3) Case No. 12CA2, the assignment of error is overruled and the judgment of the trial court is affirmed;
4) Case No. 12CA11, the assignment of error is overruled and the judgment of the trial court is affirmed;
5) Case No. 12CA12, the assignments of error are overruled and the judgment of the trial court is affirmed;
6) Case No. 12CA19, both assignments of error are overruled and the judgment of the trial court is affirmed.

FACTS

{¶2} Ogle and Ohio Power Company have been engaged in civil litigation over the last several years. The disputes began with Ohio Power's desire to construct a telecommunications tower and obtain an easement through the Ogles' property. [2]

{¶3} Very generally, the facts relating to Appellant Melanie Ogle's conviction for assault on a peace officer are set forth as follows. On September 9, 2009, after work, Appellant and her husband returned to their residence on Donaldson Road around 5:20 p.m to find Pike Electric and American Electric Power, (hereinafter "AEP") vehicles parked on Donaldson Road. AEP's contractors were constructing an electric line. The access to the Ogles' driveway was blocked by three trucks. Appellant and her husband began honking the horn and yelling at the workers.

{¶4} At the same time and place, Hocking County Sheriffs Deputy Trent Woodgeard (hereinafter, "Woodgeard") was working a special assignment on behalf of AEP to keep peace and order at the job site. Because of the commotion Appellant and her husband were making, Woodgeard decided to initiate contact. When he attempted to do so, Appellant and her husband failed to comply with requests he testified he made. Instead, when able, the Ogles evaded Woodgeard and drove into their driveway. They testified they drove away because the officer was trying to get into their vehicle and they had done nothing wrong. Woodgeard pursued the Ogles and a physical confrontation ensued outside their residence between Woodgeard and Appellant.

{¶5} As a result of the events which transpired on September 9th, 2009, Appellant was indicted by the Hocking County Grand Jury on one count of assault of a peace officer. The case proceeded to jury trial and on August 11, 2011, the jury returned a verdict of guilty. Appellant was sentenced to six months in a county jail, [3] a fine and restitution. Various appeals have followed Appellant's felony conviction. For purposes of brevity, the facts relevant to each case number on appeal will be set forth more fully where applicable below

Appellate case number 11CA 29

ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.
III. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE (Sic).

Supplemental facts

{¶6} At trial, the State of Ohio presented testimony from Jason Stacy, Sheriff Lanny North, Trent Woodgeard, and Sgt. Kevin Groves. Jason Stacy, a supervisor for AEP, testified AEP was slightly behind in their work on September 9, 2009. The workers had just set a pole and were trying to connect the line. Three trucks in fact were blocking the Ogles' driveway. The job site was loud due to the diesel trucks and the drilling that was being done.

{¶7} Stacy testified he was talking with Woodgeard when he heard aggressive and repetitive honking. He could see someone in a black truck acting in a threatening manner and cursing. At this point, he felt uncomfortable in turning his back. He saw Woodgeard go from one side of the truck to the other trying to get the situation calmed down. Specifically, he observed Woodgeard say to the female passenger "Calm down, knock it off." The truck sped away and Woodgeard followed in his vehicle. At this point, Stacy could not see what happened on the Ogles' property. Stacy testified it was the most threatening incident he had seen on the job.

{¶8} Sheriff Lanny North testified Woodgeard was employed by the Hocking County Sheriffs Department on the date of the incident. AEP had previously contacted the sheriffs office in order to obtain an officer to keep the peace at the job site on Donaldson Road. He acknowledged there was no written contract between AEP and the sheriffs department.

{¶9} Woodgeard also testified he was a full-time deputy with the Hocking County Sheriffs Office, working special duty on behalf of AEP when the altercation occurred. Woodgeard was wearing his deputy's uniform and driving a sheriffs cruiser. He had been authorized by the sheriffs department to do so.

{¶ 10} Woodgeard's version of the events leading to his assault began as he watched the Pike Electric and AEP workers on Donaldson Road. When Woodgeard heard honking and yelling, he also noticed the Ogles' truck parked in front of an AEP truck. He saw the passenger in the truck throw up her hands, moving around inside and yelling. He first decided to let her vent. An AEP employee went to move the AEP truck, but Mrs. Ogle continued to scream

{¶11} Woodgeard decided to address the situation with Appellant so he walked to the passenger side of the truck, made direct eye contact with her, and asked her to step outside. [4] She did not comply and continued to yell. Woodgeard placed his hand on the passenger side door and the Ogles drove away at a high rate of speed. Woodgeard radioed for assistance and followed the Ogles into their driveway in his cruiser.

{¶ 12} According to Woodgeard's testimony, once on the Ogle's property, Appellant came charging at Woodgeard, irate and belligerent. She actually made contact with Woodgeard's face with papers[5] in her hand. Woodgeard asked Appellant to "calm down" repeatedly, but Appellant was trying to kick Woodgeard while her husband was trying to hold her back. Woodgeard advised Mr. Ogle to step back, that Appellant was under arrest for disorderly conduct. Woodgeard testified Mr. Ogle stepped back, but again, Appellant would not comply. Woodgeard took Appellant's right arm and attempted to handcuff her. Appellant continued kicking Woodgeard's shins and she kicked his genitals once. Woodgeard then used pepper spray to subdue Appellant.

{¶ 13} At this point, Mr. Ogle came towards Woodgeard and was advised to stay back. When Mr. Ogle refused to comply, Woodgeard deployed pepper spray at him When the spray took effect, Appellant buckled and fell to the ground. Appellant and Woodgeard continued to struggle in the yard. Woodgeard was eventually able to handcuff her and place her in a cruiser.

{¶ 14} Sergeant Kevin Groves also testified Woodgeard was working special detail on September 9th. Sgt. Groves was present in the sheriffs office when Woodgeard radioed for backup. Groves responded to the scene and saw Woodgeard in distress. Groves ordered photographs be taken and he took a recorded statement from Mr. Ogle.

{¶ 15} After Groves' testimony, the State offered its exhibits and rested. The defense made a Crim. R. 29 motion, specifically arguing the State had not presented sufficient evidence Woodgeard was a law enforcement officer acting in an official capacity at the time and further, there was no sufficient evidence as to the remaining elements of the offense. The motion was denied. The defense proceeded with its case and witnesses Jesse Ward, Randall Thompson, Charles Ogle, and Melanie Ogle.

{¶ 16} Jesse Ward testified he was working for Pike Electric on the incident date. He saw a black pickup arrive on Donaldson Road as he worked nearby. Mr. Ward heard screaming, but denied hearing curse words or feeling threatened.

{¶ 17} Randall Thompson also testified he worked for Pike Electric and was present that day. He acknowledged the job site was loud and it was "difficult to hear." He testified the voices that were yelling did not interrupt his work.

{¶ 18} The Ogles' collective version of the events unfolding on Donaldson Road and on their property differs somewhat from that presented by the State's witnesses. Charles Ogle testified when he and his wife reached home and found their driveway blocked, they stopped the truck and waited for "close to a minute" before he began honking and the couple began screaming. He testified Appellant yelled "you bastards have no right to be blocking the road!" His own words were "move your fucking trucks."

{¶ 19} After the commotion began, the workers dispersed and the deputy came at the Ogle's truck quickly and aggressively. The officer said something Mr. Ogle could not hear. The officer tried the doors. As soon as the road was clear, Ogle turned into his driveway towards his house. He and his wife began to unload groceries and other items from their truck when they heard and saw a vehicle proceeding up their driveway. Soon Woodgeard was walking towards them with handcuffs, while Appellant was walking towards Woodgeard, waving papers in his face. The officer told Appellant to "put her hands out." The Ogles began backing away from the officer. Woodgeard attempted to handcuff Appellant. When the Ogles reached their sidewalk, Woodgeard pepper- sprayed Appellant, then her husband. Appellant and Woodgeard struggled. Appellant was slammed to the ground. Mr. Ogle was pepper-sprayed a second time. Woodgeard was walking towards Appellant, and she kicked out. Mr. Ogle testified "I believe she made contact."

{¶ 20} On cross-examination, Appellee played Mr. Ogle's recorded statement to Sergeant Groves for the jury. This was allowed after the trial court listened to the CD and determined there were several significant inconsistencies between the statement and Ogle's testimony. On the CD, Mr. Ogle states Woodgeard told Appellant to get out of the vehicle, which contradicts his testimony that he could not hear what the officer said. On the CD, the jury also heard Mr. Ogle say: "Okay. She didn't want to be handcuffed because she didn't do anything wrong. Okay. And so, you know, he grabs hold of her and she kicks at him a couple of times and then, you know, this happens." Mr. Ogle informed there were a lot of things left out of the oral statement. He admitted the audio tape was correct as a whole. On redirect, Mr. Ogle clarified Woodgeard "pepper-sprayed my wife before there was ever any kick."

{¶21} Appellant's testimony mirrored her husband's. She testified the officer was trying to get in their truck, so when able, they drove up their driveway. Outside their home and truck, Appellant began walking towards Woodgeard, intending to show him the papers. She was wearing a shoulder bag which contained her lunch pails and Kroger bags. In her words, the "next thing she knew, Woodgeard swung her around and maced" her. Appellant denied kicking Woodgeard before he maced her. After she was maced, she ran into the yard, in pain and screaming, trying to get her bearings and get into the house. She testified she made a "conscious decision" to drop her shoulder bag, so she could get away from Woodgeard. She was bent over looking at the ground, saw tan pants, and thought Woodgeard was coming at her again. Appellant testified she believed "he was going to tase [her]and [she] would die." Appellant testified she kicked in Woodgeard's direction and ran. She didn't know if she made contact with him She testified she kicked out as reflex action, to protect herself

{¶22} On cross-examination, Appellant testified she never heard Woodgeard give directions or make commands. She believed Woodgeard wanted to arrest her and her life was in danger. He assaulted her.

A. STANDARD OF REVIEW

{¶ 23} An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Dennison, 4th Dist. No. 06CA48, 2007-Ohio-4623, 2007 WL 2570736, ¶ 9. See, e.g. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).

{¶ 24} A sufficiency of the evidence challenge tests whether the state's case is legally adequate to satisfy the requirement that it contain prima facie evidence of all elements of the charged offense. See State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983), and Carter v. Estell (CA 5, 1982), 691 F.2d 777, 778. It is a test of legal adequacy, rather than a test of rational persuasiveness. Dennison, supra at ¶ 10.

{¶ 25} The standard of review for a Crim.R. 29(A) motion is generally the same as a challenge to the sufficiency of the evidence. State v. Hollis, 4th Dist. No. 09CA9, 2002-Ohio-3945, 2010 WL 3294327, ¶ 19; State v. Hairston, 4th Dist. No. 06CA3081, 2007-Ohio-3880, 2007 WL 2181535, at ¶ 16; State v. Brooker, 170 Ohio App.3d 570, 2007-Ohio-588, 868 N.E.2d 683, at ¶ 8. Appellate courts must determine whether the evidence adduced at trial, if believed, supports a finding of guilt beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541(1997); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). In other words, when reviewing a case to determine if the record contains sufficient evidence to support a criminal conviction, we must "examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. " Hollis, ¶ 20, citing State v. Smith, 4th Dist. No. 06CA7, 2007-Ohio-502, 2007 WL 3557274, at ¶ 33, quoting State v. Jenks at paragraph two of the syllabus. See, also, Jackson v. Virginia, 443 U.S. 307, 319 99 S.Ct. 2781 (1979).

{¶ 26} The sufficiency of the evidence test "raises a question of law and does not allow us to weigh the evidence, " Hollis, at ¶ 21; Smith, at ¶ 34, citing State v. Martin, 20 Ohio App.3d 172, 175, 484 N.E.2d 717 (1983). Instead, the sufficiency of the evidence test "gives full play to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Smith, at ¶ 34, citing State v. Thomas, 70 Ohio St. 2d 79, 79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

{¶ 27} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. Dennison, supra at ¶ 11; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, supra, at 175. A reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Johnson, 58 Ohio St.3d 40, 41, 567, N.E.2d 266 (1991); State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two of the syllabus. We realize that the evidence may pass a sufficiency analysis and yet fail under a manifest weight of the evidence test. Dennison, supra at ¶ 15. See, State v. Brooker, 170 Ohio App.3d 570, 868 N.E.2d 683, 2007-Ohio-588, 16, citing Thompkins, supra.

B. LEGAL ANALYSIS

{¶ 28} Appellant was convicted of assault on a peace officer, a violation of R.C. 2903.13(A)(C)(3) [6]which stated:

(A) No person shall knowingly cause or attempt to cause physical harm to another…
(C) Whoever violates this section is guilty of assault, and the court shall sentence the offender as provided in this division and divisions (C)(1), (2), (3), (4), (5), and (6) of this section. Except as otherwise provided in division (C)(1), (2), (3), (4), or (5) of this section, assault is a misdemeanor of the first degree…
(3) If the victim of the offense is a peace officer or an investigator of the bureau of criminal identification and investigation, a firefighter, or a person performing emergency medical service, while in the performance of their official duties, assault is a felony of the fourth degree.

{¶29} Appellant's contention that there was insufficient evidence to convict her of assaulting a peace officer is two-fold: she argues (1) there was no evidence that she "knowingly" attempted to cause physical harm to Woodgeard; and (2) Woodgeard did not meet the definition of "peace officer" as required by the statute. Upon examination of the evidence admitted at trial, we disagree with Appellant and find that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Was there sufficient evidence that Woodgeard acted as a "peace officer in performance of official duties" at the time of the alleged assault?

{¶ 30} We address Appellant's second argument under this assignment of error first, that Woodgeard did not meet the definition of "peace officer in performance of official duties" as required by statute. A "peace officer" includes a deputy sheriff R.C. 2935.01(B). In State v. Ford, 12th Dist. No. CA2009-01-039, 2009-Ohio-6046, 2009 WL 3808374, ¶ 53, the appellate court noted that "Ohio courts have held that peace officers have a continuing obligation to observe and enforce the laws of this state, even when they are off-duty and employed as private security detail. See, e.g., State v. Glover, 52 Ohio App.2d 35, 367 N.E.2d 1202 (10th Dist.1976); State v. Underwood, 132 Ohio Misc.2d 1, 830 N.E.2d 1266, 2005-Ohio-2996; State v. Hurley, 4th Dist. No. 1292, 1986 WL 12397 (Oct. 29, 1986). Appellant cites State v. Duvall, 11th Dist. No. 95-P-0140, 1997 WL 360695, for the proposition that the absence of a written contract between AEP and the Hocking County Sheriffs Department distinguishes this case.

{¶ 31} In Duvall, the appellant was indicted for one count of felonious assault and one count of assault of a peace officer after allegedly assaulting police officers at a high school football game. The case indicated the officers contracted with the Brimfield School System to provide security. The officers were paid by the school system. Duvall's sole assignment of error was that the trial court erred in finding the officers were performing "official duties" as mandated by R.C. 2903.13(C)(3). The trial court previously held a peace officer was in performance of official duties when he is was performing duties of security or other law enforcement within his jurisdiction "regardless of who pays [him]." The appellant in Duvall urged the statute regarding assault on a peace officer applied only when the peace officer was "on duty" or "on the clock." The appellate court in Duvall held to determine what comprises a peace officer's "official duties" the court must look to the activities the peace officer was engaged in at the time he was assaulted. If the peace officer was engaged in a duty imposed upon him by statute, rule, regulation, ordinance or usage, regardless of his duty status, that officer is "in the performance of [his]official duties for purposes of R.C. 2903.13(C)(3)." The appellate court noted the sergeant involved was off-duty, being compensated for his monitoring services by the school system. The court also noted the officer was in uniform, in his territorial jurisdiction, and performing a "peace-keeping" function as required of him by R. C. 737.11. [7]

{¶ 32} Although the Duvall court used the term "contracted, " in its description of the relationship between the officer assaulted and the school system, we do not find the case's outcome hinged on this fact. In the case sub judice, Woodgeard and Sheriff North both testified Woodgeard was employed full-time by the Hocking County Sheriffs Department and he was working on Donaldson Road on the incident date at AEP's request to help keep the peace. Woodgeard and others testified Woodgeard was wearing an official uniform and using a sheriffs cruiser. We do not find the parties failure to have a written contract in place to be outcome determinative. We find from the testimony presented at trial any rational trier of fact could have found the State presented sufficient evidence Woodgeard met the definition of peace officer.

{¶ 33} We must next consider whether there was sufficient evidence to find beyond a reasonable doubt whether or not Woodgeard was in the performance of official duties. At trial, the court instructed the jurors as to the definition of what comprise a peace officer's official duties. The court also instructed deputy sheriffs are permitted under state law to work special duties and make arrests for crimes they believe to have occurred in their presence. We must consider the events which transpired on Donaldson Road, and then the ones which evolved on the Ogles' property.

{¶ 34} The Ogles' version of what happened on Donaldson Road is that they were honking, yelling, even cursing, but breaking no laws. They drove off because they felt Woodgeard was improperly trying to get into their vehicle. They denied hearing any commands or directives from Woodgeard. Woodgeard had no reason to follow them onto private property.

{¶ 35} Woodgeard's version of the scene at Donaldson Road is because of the Ogles' noisy display, he decided to investigate the situation. He directed Appellant to calm down and she refused. He requested she step out of the vehicle and she did not comply. At that point, Woodgeard placed his hand on the truck door and the Ogles drove off at a high rate of speed. Jason Stacy corroborated this testimony, adding that Woodgeard repeatedly tried to calm Appellant and Stacy felt it was a threatening situation.

{¶ 36} On the Ogles' property, Appellant continued to be belligerent and charged at Woodgeard. Woodgeard testified just before Appellant kicked him, making contact, he informed her she was going to be arrested for disorderly conduct. R.C. 2917.11(A) disorderly conduct reads as follows, in pertinent part:

(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
(1) engage in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;
(2) Making unreasonable noise or an offensively coarse utterance, gesture or display or communicating unwarranted and grossly abusive language to any person;
(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;
(5) Creating a condition that is physically offensive to person or that presents a risk of physical harm to person or property, by any act that serves no lawful and reasonable purpose of the offender."

{¶ 37} The 2nd District Court of Appeals considered whether an officer had a reasonable basis to believe that a defendant had committed the offense of disorderly conduct in State v. Ellis, 2nd Dist. No. 24003, 2011- Ohio-2967, 2011 WL 2436939. There two defendants were arrested and tried together on charges of obstruction of official business, resisting arrest, and disorderly conduct. The confrontation between Ellis, another defendant Robinson-Williams, and Dayton police officers stemmed from Ellis's son's stop for a traffic violation and the officers' intent to tow the vehicle. Ellis and Robinson-Williams arrived at the scene to prevent the car from being towed. Robinson-Williams began yelling, screaming, and cussing so an officer asked her to calm down. She began flailing her harms, continuing to yell and scream. The officer's testimony was corroborated by a second officer. The appellate court noted at ¶ 47:

"[A] 'lawful arrest' for disorderly conduct occurs regardless of whether the alleged offender is ultimately convicted if the officer had reasonable grounds to believe that the accused was recklessly causing inconvenience, annoyance or alarm to him by abusive language, and that the individual's language and conduct was likely to provoke a violent response.[T]he test is object and [the officer] need not in fact be inconvenienced, annoyed, or alarmed, or personally provoked to a violent response." State v. Sansalone, 71 Ohio App.3d 284, 286, 593 N.E.2d 39, 1st Dist.1991); R.C. 2917.11 (disorderly conduct statute.) 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." Sansalone, at 286(Citation omitted.).
In deciding Ellis, the court held at ¶ 49:
"[t]he jury reasonably could have believed the officers' testimony and found they had a reasonable basis to believe that Robinson-Williams was committing the offense of disorderly conduct. The jury could have found that a reasonable officer woud find that the noise she was making and her offensive and coarse language were annoying, at the very least. Moreover, given Robins-Willians' vocal opposition to the car being towed, the jury could have found that a reasonable officer would have been alarmed about what action she might take to stop it."

{¶38} The "reasonable basis" language was also utilized in State v. Glenn, 2004-Ohio-1489, 2004 WL 595644, at 26, wherein the First District Court of Appeals considered whether the evidence was sufficient to support defendant's conviction for assault on a peace officer, and ultimately concluded that it did. In Glenn, an altercation occurred between Glenn and a Hamilton County deputy sheriff at the Hamilton County Courthouse. Glenn was present in order to testify as a witness in his brother's trial. Glen and a woman, another witness in the trial, clashed. A police officer intervened and sent Glenn and the woman separate ways. Shortly thereafter, the sheriffs deputy responded to another disturbance. The woman told the deputy that Glenn had verbally and physically assaulted her. The deputy approached Glenn to speak to him about the problem and Glenn became agitated and loudly complained about the woman. The deputy determined to let Glenn vent. Then the deputy told Glenn to avoid contact with the woman. Glenn told the deputy, "My taxpayer money paid for this courthouse. I can do and say whatever I want." The deputy testified Glenn was loud and angry. The deputy then decided to ask Glenn's name. Glenn complied but the deputy next asked for a social security number or an identification card. Glen refused and would not cooperate. The deputy then asked Glenn why he was at the courthouse. From that point on, Glenn became further verbally abusive and ultimately threw his coat and hat on the floor, stepped close to the deputy and said "[Y]ou need to go ahead and arrest me, punk." The deputy began to arrest and handcuff Glenn. A scuffle ensued wherein Glenn kicked the deputy twice in the groin and bit his hand.

{¶39} We conclude a jury could reasonably find Woodgeard was in the performance of official duties when he approached the Ogles' truck and tried to calm the situation. At least one witness testified to feeling, essentially, the Ogles' had created a threatening situation. After having been allowed to vent, Appellant refused to calm down. She refused to step out of the truck so Woodgeard could address the matter. After refusing to obey Woodgeard's command, the truck took off at a high rate of speed. These actions were observed by Woodgeard and others on Donaldson Road. Although Appellee and Appellant presented contrasting versions of the facts, it was the jury's determination as to which of the witnesses were more credible. Furthermore, the jury heard the CD evidence that Mr. Ogle admit Woodgeard directed Appellant to step out of the truck, although both Mr. and Mrs. Ogle denied hearing any orders and claimed Woodgeard was trying to get into their truck for no reason.

{¶40} We are mindful the weight of evidence and credibility of witnesses are issues to be decided by the trier of fact. State v. Dye, 82 Ohio St.3d 323, 329, 695 N.E.2d 763 (1998); State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995); State v. Williams, 73 Ohio St.3d 153, 165, 652 N.E.2d 721 (1995); State v. Vance, 4th Dist. No. 03CA27, 2004-Ohio-5370, 2004 WL 2260498, 9. As such, the trier of fact is free to believe all, part or none of the testimony of each witness who appears before it. See State v. Long, 127 Ohio app.3d 328, 335, 713 N.E.2d 1 (4th Dist. 1998); State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist. 1993); State v. Harriston, 63 Ohio app.3d 58, 63 577 N.E.2d 1144 (8th Dist. 1989); Vance, ¶ 9. We also acknowledge that the trier of fact is in a much better position than an appellate court to view witnesses and observe their demeanor, gestures, and voice inflections, and to use those observations to weigh the credibility of the testimony. See Myers v. Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal. Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); Vance, ¶ 9. Here, the trial court properly instructed the jurors as to direct and circumstantial evidence, credibility of the witnesses, and reasonable doubt.

{¶41} We conclude a jury reasonably could have found Woodgeard had observed criminal activity on Donaldson road and therefore, was in the performance of his official duties when he followed the Ogles onto their property to continue attempting to calm the situation. As in the cited cases, given Appellant's refusal to calm down and obey the officer's direct command, it was reasonable for Woodgeard to believe Appellant might be rushing away to commence further threatening or violent action. As such, we believe sufficient evidence was presented at trial from which a reasonable jury could determine that Woodgeard was acting as a peace officer in performance of official duties at the time of his assault.

Was there sufficient evidence that Appellant acted "knowingly" when she allegedly assaulted Woodgeard?

{¶ 42} We next address Appellant's argument that there was not sufficient evidence to convict her of "knowingly" committing an assault upon a peace officer. Appellant submits the State's case rested entire upon a claim by Woodgeard, a "rookie" officer on probationary status. Appellant points out that of the three people present during the altercation, only Woodgeard's version of the events differed. The Ogles put forth testimony at trial that, for no reason, Woodgeard followed them onto their property and pepper-sprayed first Appellant, as she was trying to go in her house and then her husband, as he tried to aid her. Mr. Ogle recalled that Appellant did "brush" Woodgeard's face with the papers. The Ogles' denied Appellant kicked at Woodgeard until after he pepper-sprayed them. However, the CD evidence indicated the kick happened before the pepper-spraying and ensuing physical struggle. According to Woodgeard, he deployed the pepper spray only after she refused to calm down and kicked him in the genital area.

{¶ 43} It is apparent the jury believed Woodgeard's version of the events. We find the record contained sufficient evidence beyond a reasonable doubt the jury could have found Appellant acted "knowingly."

{¶ 44} The trial court instructed the jury as to the definition of "knowingly." "Knowingly" is defined in R.C. 2901.22 (B) as: "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." The trial court also instructed that knowledge is determined from all the facts and circumstances in evidence.

{¶ 45} At trial, Appellant testified that after Woodgeard's unwarranted deploying of the pepper spray a first time, she stumbled around her yard, trying to get to the house. She testified she made a "conscious decision" to drop her purse, so that she could move away from him faster. She further testified she stumbled, and while she was looking down, saw Woodgeard's tan pants, knew it was him coming at her, and kicked out in order to protect herself. Appellant characterized the kick as a "reflex" action. Furthermore, Appellant testified she believed Woodgeard was going to tase her or "kill her."

{¶ 46} Again, the credibility of the witnesses is a determination for the jury. The jury may have found it self-serving to believe that Appellant made a conscious decision to drop her purse, but somehow the decision to kick at a uniformed police officer was not a conscious one. The jury may have found it incredible that Appellant could seriously believe she was risking imminent death. The jury apparently did not find Appellant's testimony persuasive. We find that a rational trier of fact could have found Appellant acted "knowingly" beyond a reasonable doubt. As such, we overrule assignment of error number one and affirm the judgment of the trial court.

{¶ 47} Additionally, because we review a denial of a motion for acquittal under Criminal Rule 29 under a "sufficiency of the evidence standard, we find the trial court did not err in overruling the motion made in this case. Appellant acknowledges she relies on the same arguments set forth in her first assignment of error in claiming the trial court erred in denying her motion made at the conclusion of the State's case. Having considered the evidence under the "sufficiency" standard and finding no merit to Appellant's first assignment of error, we further find the trial court did not err with regard to its denial of her Crim Rule 29 motion. As such, the second assignment of error is overruled and the judgment of the trial court is hereby affirmed.

{¶ 48} Finally, Appellant relies on the same contentions regarding Woodgeard's status as a peace officer, the alleged absence of criminal activity, and the characterization of her acts as self-defense in arguing her third assignment of error that the conviction is against the manifest weight of the evidence. Despite her assertions, we find Appellant's assignment of error as to "manifest weight" also fails. In making this finding, we have had to consider the same evidence previously discussed in resolution of Appellant's first and second assignments of error. Admittedly, the trial testimony boiled down to a "he said/she said" consideration. Appellant's testimony indicated she kicked at Woodgeard in self defense after he followed her onto her property for no reason, chased her around the yard, and pepper-sprayed her for no reason. Woodgeard's testimony indicated Appellant was pepper-sprayed only after she refused to calm down, obey his orders, and kicked his genital area. It is obvious the jury did not find Appellant's version of the facts credible and instead relied on the evidence presented by the State's witnesses. For the jury to have done so is well within its province as trier of fact. And in doing so, we cannot find a manifest miscarriage of justice has occurred or the jury clearly lost its way. As such, we overrule Appellant's third assignment of error under this appellate case number and affirm the judgment of the trial court.

Appellate case number 11CA32

Supplemental Facts

{¶ 49} Ogle appeals a November 22, 2011 order which stated her recognizance bond with electronic monitoring was to be revoked as of November 28, 2011. As a backdrop to the trial court's decision, Appellant had been released on a $5, 000.00 recognizance bond prior to her August 2011assault trial. At the conclusion of trial, the court continued her bond with an added condition that Appellant have no contact with jurors or witnesses in her trial as she awaited sentencing. Prior to sentencing, the State filed a motion to revoke her recognizance bond based upon the allegation Appellant made contact with a juror. The trial court conducted a hearing on the motion, continued the bond, but added a condition that Appellant be placed on electronically monitored house arrest.

{¶ 50} On September 27, 2011 at Appellant's sentencing, the court denied appellant's motion to reinstate the original recognizance bond. She was sentenced to a six-month jail term, with execution stayed until October 27, 2011. On September 30, 2011, Appellant filed notice of appeal of her conviction. This was assigned appellate case number 11CA29. On October 5, 2011, the trial court granted Appellant's request to stay execution of her sentence pending appeal. The conditions of her bond, including electronically monitored house arrest, were continued.

{¶ 51} Appellant subsequently file written notice to the trial court announcing as of November 27, 2011, she would no longer pay for the electronically monitored house arrest. A hearing on her notice was held on November 22, 2011. The trial court ordered as of November 28, 2011, the recognizance bond with electronic monitoring would be revoked. It was ordered that Appellant be taken into custody and held pending appeal. Appellant immediately filed notice of appeal of the trial court's order revoking her recognizance bond. This was assigned appellate case number 11CA32, the instant appeal. On November 25, 2011, Appellant filed a motion to stay execution of judgment and sentencing ex parte temporary stay and expedited request for review. On November 28, 2011, this court denied Appellant's motion for stay and expedited review.

{¶ 52} On November 29, 2011, this Court further denied Appellant's request to reinstate the original recognizance bond. On December 16, 2011, this Court also issued an entry denying ...


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