State v. Taylor , 2010 Ohio 4810 ( 2010 )

[Cite as State v. Taylor, 2010-Ohio-4810.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO, CASE NO. 9-10-14
PLAINTIFF-APPELLEE,
v.
JAMES C. TAYLOR, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 09-CR-242
Judgment Affirmed
Date of Decision: October 4, 2010
APPEARANCES:
Kevin P. Collins, for Appellant
Denise Martin, for Appellee
Case No. 9-10-14
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant James C. Taylor (“Taylor”) brings this appeal
from the judgment of the Court of Common Pleas of Marion County finding him
guilty of assaulting a police officer. For the reasons set forth below, the judgment
is affirmed.
{¶2} On May 16, 2009, a distress call was made to 911 by Taylor. Taylor
was confused and frantic during the call and indicated that he was performing
CPR on the injured party. Officer Kenneth Persinger (“Persinger”) and Officer
Matt Collins (“Collins”), both employed by the Marion City Police, responded to
the call along with other officers, paramedics, and the fire department. When they
arrived, they found a man on the floor, severely injured and barely breathing.
Taylor was performing chest compressions and mouth-to-mouth breathing. The
officers directed Taylor to step back to allow the EMT’s to take over the care of
the victim and Taylor refused. Taylor was clearly intoxicated and agitated. When
the officers attempted to move Taylor away from the victim he took a swing at
Persinger. After a short struggle, the officers were able to subdue Taylor and
handcuff him.
{¶3} On May 28, 2009, the Marion County Grand Jury indicted Taylor on
two counts of assaulting a police officer in violation of R.C. 2903.13(A), (B), both
felonies of the fourth degree. Taylor entered a plea of not guilty to both counts on
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June 1, 2009. A jury trial was held on October 26 and 27, 2009. The jury returned
a verdict of guilty for the assault on Persinger, and not guilty on the second count
of the indictment. On January 7, 2010, a sentencing hearing was held. The trial
court sentenced Taylor to three years of community control. Taylor now appeals
from the conviction and raises the following assignment of error.
[Taylor’s] conviction for assaulting a peace officer is contrary to
the manifest weight of the evidence.
{¶4} The sole assignment of error alleges that the verdict is against the
manifest weight of the evidence.
Under a manifest-weight standard, an appellate court sits as a
“thirteenth juror” and may disagree with the fact finder’s
resolution of the conflicting testimony. * * * The appellate court,
“‘reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence
weighs heavily against conviction.’”
State v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, ¶14, 863 N.E.2d 223.
Although the appellate court may act as a thirteenth juror, it should still give due
deference to the findings made by the fact-finder.
The fact-finder * * * occupies a superior position in determining
credibility. The fact-finder can hear and see as well as observe
the body language, evaluate voice inflections, observe hand
gestures, perceive the interplay between the witness and the
examiner, and watch the witness’s reaction to exhibits and the
like. Determining credibility from a sterile transcript is a
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Herculean endeavor. A reviewing court must, therefore, accord
due deference to the credibility determinations made by the
fact-finder.
State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456.
{¶5} Taylor was convicted of one count of assault on a police officer, a
violation of R.C. 2903.13(A). In order to prove this charge, the State had to prove
that Taylor 1) knowingly, 2) caused or attempted to cause, 3) physical harm to
Persinger, a peace officer. R.C. 2903.13(A)(D). Persinger testified that he was a
peace officer and as follows:
[Persinger]: I said “look, the squad guys are here, let them take
care of his, step back.” He said “no, I’m gonna help my buddy.”
I said “no, the squadmen are here, get back.” He said no again.
***
Q. How many times do you think you repeated this to get out of
the way?
A. I asked him to get out of the way at least three times.
Q. Okay. And the number of times that you asked, or the time
it took for you to tell him, not ask him, but to tell him to get
out of the way, did he have time to respond?
A. Yes.
Q. Okay. What happens after that?
A. After he refuses to move – remove himself from this person,
I put my left hand, and I moved my flashlight to my right
hand so I could use my left hand, and I put it underneath of
his shoulder, it would be here, and asked him to move again,
and he said no. So I scooted him backwards and he stood
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up, and when he did stand up he lunged forward towards me
and swung his fist at me with his right hand.
Q. Was it a closed fist?
A. Yes, it was.
Q. You’ve heard different testimony that, you know, some
people didn’t see punches, et cetera? Are you sure this – the
Defendant swung on you?
A. Yes.
***
Q. And what did you do?
A. In reaction to that I put my left hand up, and then I struck
the subject in the face with my right hand.
Q. Why’d you put your – what hand, left hand up?
A. Yes.
Q. Why’d you put your left hand up?
A. Because the punch came from the left side.
Q. Okay. So was there – do you believe that the Defendant was
attempting to make contact with you?
A. Yes, I did.
***
A. Yes, he was trying to hit me.
Q. Okay. Any doubt?
A. No.
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Q. Alright. Had he been able to square off with you where
would you have been hit?
***
A. The punch was coming towards my head.
***
Q. Have you ever had to hit anyone in the face?
A. No.
Q. Alright. What made you do it on this night?
A. It was reactive in the fact he had directly thrown a punch at
me.
Tr. 286-91. This testimony was supported by that of Collins, who testified as
follows.
Q. When EMTs arrive, what do you do?
A. Well, like I said, they’re even telling him to get back so they
can get in and treat the subject. About that same time
Patrolman Persinger puts his hands on Mr. Taylor on his left
shoulder and is like “you need to get back.” And that’s when
–
Q. How would you describe Patrolman Persinger’s mannerisms?
A. At that point he’s being very stern with him, “you need to get
back,” because we pretty much exhausted all verbal
commands at that point.
Q. Okay. What happened?
A. As he put his hands on him and told him he needs to get back
so the EMTs could get in there, Mr. Taylor then gets up
quickly and lunges at Patrolman Persinger swinging his right
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fist at patrolman Persinger. I couldn’t see if Patrolman
Persinger was struck, I could not see that. It didn’t appear
that he was, but from my angle I couldn’t see. However, I did
see Patrolman Persinger’s reaction was to, you know, lunge –
or kind of jerk back and give him a quick strike with his
right hand. And I believe that Patrolman Persinger did land
that punch.
Tr. 186-87. Taylor did not present any evidence that these events did not occur.
Given this testimony, this court does not find that the jury clearly lost its way and
created a manifest miscarriage of justice. Thus, the assignment of error is
overruled.
{¶6} Having found no error prejudicial to the defendant, the judgment of
the Court of Common Pleas of Marion County is affirmed.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jnc
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