Court of Appeals of Ohio, Fifth District, Licking
from the Licking County Court of Common Pleas, Case No.
Plaintiff-Appellee BILL HAYES Prosecuting Attorney By:
CLIFFORD J. MURPHY Assistant Prosecuting Attorney.
Defendant-Appellant JAMES A. ANZELMO
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Appellant Benjamin Davis appeals from the May 17, 2017 and
June 30, 2017 Judgment Entries of the Licking County Court of
Common Pleas. Appellant was found guilty of one count of
Assault on a Peace Officer, R.C. 2903.13(A), (C)(5) and
sentenced to a term of 14 months for that offense and a 156
day term for a post release control violation, running
consecutively. Appellee is the state of Ohio.
OF THE FACTS AND CASE
Appellant, Drew Doherty and Fallon Doherty were at the Kroger
Grocery Store in Newark, Licking County, Ohio on January 24,
2017 at approximately 9:30 p.m. when they were noticed by
Newark Police Officer Christy Litzinger. The Officer
recognized Appellant and saw Mr. Doherty conceal merchandise
in his clothing while Appellant acted as a lookout. She
contacted Kroger Loss Prevention Officer, John Shaneyfelt,
and reported her observations. A second loss prevention
officer at Kroger was processing another shoplifter, so Mr.
Shaneyfelt would have no assistance in any encounter with the
Appellant and the Dohertys. Upon learning this, Officer
Litzinger agreed to assist Mr. Shaneyfelt by stationing
herself at the exit to provide assistance if needed.
The trio came to the self-check-out center, scanned and
purchased several items, but did not scan the item Mr.
Doherty had concealed in his clothing. Mr. Shaneyfelt stopped
Mr. Doherty and Fallon Doherty stopped with him. Appellant
proceeded to the exit and encountered Officer Litzinger.
Officer Litzinger identified herself as a Newark Police
Officer three times and asked Appellant for identification.
Appellant responded with an expletive and struck Officer
Litzinger in the throat and the chest, then left the store.
On February 1, 2017 Appellant was indicted for assault on a
peace officer while in the performance of her official
duties, (R.C. 2903.13(A), (C)(5)), a fourth degree felony. He
presented his defense to a jury on May 17, 2017. The jury
found that Officer Litzinger was a peace officer performing
her official duties during the assault and that Appellant was
guilty of assault on a peace officer. The Appellant was
sentenced to fourteen months incarceration to run
consecutively with a 156 day post release control prison
Appellant filed a timely appeal and submitted three
assignments of error:
"I. DAVIS' CONVICTION FOR ASSAULT ON A PEACE OFFICER
IS BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I
OF THE OHIO CONSTITUTION."
"II. DAVIS' CONVICTION FOR ASSAULT ON A PEACE
OFFICER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTIONS 1 & 16, ARTICLE I OF THE OHIO
"III. DAVIS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
In his first two assignments of error, Appellant argues that
the conviction of assault on a peace officer is against the