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State v. Hudson

Court of Appeals of Ohio, First District, Hamilton

August 30, 2019

STATE OF OHIO, Plaintiff-Appellee,
ALVIE L. HUDSON, Defendant-Appellant.

          Hamilton County Court of Common Pleas Trial No. B-1605315

         Judgment Appealed From Is: Affirmed

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          William F. Oswall, for Defendant-Appellant.


          CROUSE, JUDGE.

         {¶1} Defendant-appellant, Alvie L. Hudson appeals from the jury verdicts finding him guilty of two felony counts of assault in the fourth degree against a police officer and the trial court's judgment sentencing him to 13 days in jail with credit for 13 days.

         {¶2} In two assignments of error, Hudson argues that his convictions were contrary to the manifest weight of the evidence and based on insufficient evidence. For the following reasons, we overrule Hudson's assignments of error and affirm the judgment of the trial court.

         Factual Background

         {¶3} On September 14, 2016, at approximately 5:30 a.m., Cincinnati Police Officers Vogelpohl and Bode were working a detail for the Cincinnati Metropolitan Housing Authority ("CMHA"). The officers were not wearing full police uniforms, but each officer wore a police-issued ballistics vest displaying a "Cincinnati Police" patch on the front and "POLICE" across the back. Their badges were out in plain view.

         {¶4} While patrolling a CMHA property on McMicken Avenue, the officers encountered a woman walking on McMicken and noticed what appeared to be crack cocaine at her feet. Based on information provided to them by the woman, the officers approached Hudson's food truck, which was parked on the street. Vogelpohl testified that it was dark outside, and they shined their flashlights into the windows of the truck. Hudson testified that he was sleeping in the back of the truck when he heard the officers. After Hudson exited, Vogelpohl explained that they had received a complaint of drug sales from the truck and asked Hudson to put his hands on the front of the truck so he could do a pat-down for weapons. During the pat-down, Vogelpohl felt a lump "in between probably his underwear and his shorts." Believing it to be contraband, Vogelpohl ordered Hudson to put his hands behind his back. At that point Hudson became agitated and began wrestling with the officers. Vogelpohl testified that Hudson swung at him and hit him in the chest with his right elbow. Vogelpohl further testified, "I'm still holding onto him. I think he actually throws a couple elbow shots. The second one didn't hit me. He turns to punch me at which point I disengage and we both go back towards the sidewalk." Vogelpohl confirmed that Hudson only hit him one time in the chest with his elbow. He further testified, "He had swung a fist at me and missed. At the same time he pushed Bode and took a swing." Hudson did not make contact with Bode. Hudson then ran from the officers. The officers eventually caught up to him, tased him, and placed him under arrest. Neither officer was injured, nor did the police ever search Hudson's truck. Only Vogelpohl testified at trial. Bode did not testify.

         {¶5} Hudson testified in his own defense that when he got up against the truck for the pat-down, he knew they were law enforcement, and that he never swung at them. Rather, he stated, "I dropped to my knees because he's choking me and I did flip him over my shoulder. I admit I flipped him over my shoulder. The other one standing at the truck. I stuck my arm right there. Like a football grab. I arm bar him. And I pushed the other one out of the way because I ran." Hudson further testified that he feared the officers would harm him, he could not breathe, he was getting lightheaded, and he felt his life was in danger. He explained that he got the officers off of him and ran because they were choking him.

         {¶6} The jury also heard a couple of jail calls Hudson made prior to trial, which painted a different picture. In one call, Hudson stated,

* * * So, he grabbed me by the back of the shirt. And said get up against the car. I said, man, get the fuck off me. Then he grabbed me by my belt and tried to push me up against the car. You already know that ain't going to work with don't no cops do that. You all talk I give my ID. We talk like that. They don't put their hands on me. So I pushed this motherfucking but you got to think, I'm back at full strength. I didn't realize it went that far, 'cause the shape of them * * * So, I knew I pushed him, but pushed him off with my right arm and then the other one, I pushed him with my left arm. And they tried to grab me and I flipped them over my shoulder. And I missed, so what.

Manifest Weight

         {¶7} Hudson's first assignment of error is that his convictions for assault in the fourth degree are contrary to the manifest weight of the evidence. To reverse a conviction on the manifest weight of the evidence, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "thirteenth juror" and disagrees with the factfinder's resolution of the conflicting testimony. Id. at 387.

         {¶8} Hudson argues that the jury verdicts were against the manifest weight of the evidence for the following reasons: 1) there were no actual injuries; 2) there was no evidence that Hudson intended to cause Vogelpohl and Bode physical harm; rather, the evidence showed he was acting in self-defense; and 3) the peace-officer enhancement pursuant to R.C. 2903.13 ...

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