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State v. Davis

Court of Appeals of Ohio, Fifth District, Licking

December 20, 2017

STATE OF OHIO Plaintiff - Appellee
v.
BENJAMIN A. DAVIS Defendant-Appellant

          Appeal from the Licking County Court of Common Pleas, Case No. 17-CR-00051

          For Plaintiff-Appellee BILL HAYES Prosecuting Attorney By: CLIFFORD J. MURPHY Assistant Prosecuting Attorney.

          For Defendant-Appellant JAMES A. ANZELMO

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} 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.

         STATEMENT OF THE FACTS AND CASE

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 term.

         {¶5} Appellant filed a timely appeal and submitted three assignments of error:

         {¶6} "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."

         {¶7} "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 CONSTITUTION."

         {¶8} "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 CONSTITUTION."

         {¶9} In his first two assignments of error, Appellant argues that the conviction of assault on a peace officer is against the ...


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