Criminal Appeal from the Cleveland Municipal Court Case Nos. 2012 CRB 005400 and 2012 CRB 005402
ATTORNEYS FOR APPELLANT Robert L. Tobik Chief Public Defender Erika B. Cunliffe Assistant Public Defender.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Stephanie L. Jerlstrom Assistant County Prosecutor Victor R. Perez Chief City Prosecutor.
BEFORE: Kilbane, J., Rocco, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION
MARY EILEEN KILBANE, JUDGE
(¶1} Defendant-appellant, Eric Freeman, appeals from his convictions for assault and engaging in unlicensed security services. For the reasons set forth below, we affirm the conviction for assault, and reverse and vacate the conviction for engaging in unlicensed security services.
(¶2} On February 24, 2012, following an altercation with a patron at Touch Supper Club on February 19, 2012, the defendant was charged with carrying a concealed weapon, engaging in unlicensed security services, aggravated menacing, and assault. All charges are misdemeanors of the first degree. The defendant pled not guilty and the matter proceeded to a jury trial on September 10, 2012.
(¶3} The city of Cleveland ("the City") presented the testimony of the complaining witness, Alden Tinnin ("Tinnin"), and witnesses Anthony Trzaska ("Trzaska"), Mark Thompson ("Thompson"), Kate Dawson ("Dawson"), and Cleveland Police Officer James Hummel ("Officer Hummel") and Sergeant Edward Lentz ("Sergeant Lentz").
(¶4} Tinnin testified that he is a securities compliance officer at a bank. On the night of Saturday, February 18, 2012, he, Trzaska, and Thompson went to the Brite Winter Festival, an organized event featuring entertainment in all the surrounding restaurants and bars in Ohio City. Tinnin testified that by 10:30 p.m., he had consumed two beers, and his group went to the Touch Supper Club on Lorain Road in Ohio City. As Tinnin entered the restaurant, the defendant was speaking with someone and Tinnin did not realize that the defendant was checking identification. According to Tinnin, the defendant became upset that Tinnin's group had walked past him without showing their identification, and he began to curse at them. Tinnin and his friends left; however, a few minutes later, they decided to go back inside and explain that they had gotten off to a bad start and wanted to reenter the restaurant. The defendant refused to allow them inside, so Tinnin told the defendant that he looked stupid and then turned to leave. As Tinnin reached the door, he heard the defendant coming after him, so he closed the door behind him as he left. The defendant pushed open the door, grabbed Tinnin, and put him into a headlock. Tinnin broke free and the defendant then grabbed him again. During the struggle, the window broke. Once outside, the defendant pushed Tinnin to the ground and sat on him until the police arrived. Tinnin's friends videotaped the altercation and called police.
(¶5} Tinnin next testified that, after the police arrived, they handcuffed him and placed him in the squad car. He and his friends explained what had happened, and the police released him. Tinnin was transported to the hospital by ambulance and treated for cuts and bruises. He filed a police report about the incident ten days later.
(¶6} Trzaska and Thompson testified that the group intended to listen to music in the basement of Touch Supper Club. As they entered, they told Tinnin to proceed to a stairwell to the right of the door. According to Trzaska, in the past, no one checked identification at the door, and therefore, they did not expect to be stopped. The defendant abruptly stopped Tinnin, but he did not ask for identification and simply told him to leave. The group complied, but then decided to reenter and try to explain that there had been a misunderstanding. Tinnin reentered, but a moment later, the defendant forced him out, and he came crashing through the door. Tinnin's shirt was torn off, and the defendant put Tinnin in a "pretzel hold" and slammed his head into an iron gate. Tinnin struggled, and the window was shattered. The defendant then got Tinnin to the ground and got on top of him. Trzaska and Thompson became concerned that the defendant was hurting Tinnin. They videotaped some of the incident, and the video was played for the jury.
(¶7} Dawson testified that she was coordinating entertainment for the Brite Winter Festival. At around midnight, as she checked on the entertainment at Touch Supper Club, she observed the defendant pushing through a door and then throwing a man through a window. Dawson did not observe the man fighting back. The defendant got the man onto the ground and held him down, as his friends shouted for the defendant to stop. Dawson further testified that following the incident, the defendant left her a phone message, accusing her of bringing drunk people to the restaurant and falsely claiming that he was waving a gun.
(¶8} Officer Hummel testified that he responded to a call that a bouncer and a patron were fighting outside of a bar. He observed Tinnin on the ground and the restaurant owner, Robert Ivanov ("Ivanov"), on top of him. According to this witness, Tinnin was intoxicated. He later learned that a gun was recovered from the scene. He testified that the defendant did not immediately mention that he had a gun, but the officer admitted on cross-examination that the defendant showed him his permit for carrying a concealed weapon.
(¶9} Sergeant Lentz testified that the defendant continued to threaten Tinnin at the scene. He interviewed both the defendant and Tinnin at the scene, as well as Trzaska, Thompson, Dawson, and Ivanov. When Sergeant Lentz interviewed the defendant, he stated that he was "working the door" and checking identification, and that Tinnin walked past him into the establishment and was belligerent, so he kicked him out and then held him down. The defendant denied assaulting Tinnin. He then asked the officer if he wanted his concealed weapon permit, and the officer asked if the defendant was armed. The defendant replied that he was armed. The officer then disarmed the defendant and ...