State v. Lewis , 2022 Ohio 4421 ( 2022 )

[Cite as State v. Lewis, 2022-Ohio-4421.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1248
Appellee Trial Court No. CR0202102190
v.
Jon Robert Lewis DECISION AND JUDGMENT
Appellant Decided: December 9, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, and Angela M. Zavac, Assistant Prosecuting
Attorneys, for appellee.
Lawrence A. Gold, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Jon Robert Lewis, appeals the November 8, 2021
judgment of the Lucas County Court of Common Pleas, convicting him of felonious
assault and sentencing him to a minimum stated prison term of five years and a maximum
stated prison term of seven and one-half years. For the following reasons, we affirm.
I. Background
{¶ 2} On the afternoon of July 28, 2021, officers were dispatched to Central
Avenue near Murd Road—a two-lane stretch of highway located just west of Sylvania
Township—with reports that a Penske box truck had become disabled and was blocking
the eastbound lane of travel. Deputy Sheriff Craig Barth, of the Lucas County Sheriff’s
Department, arrived at the scene to find that the driver (later identified as Jon Robert
Lewis) was not there. Deputy Barth asked for Sylvania Township police to help locate
Lewis.
{¶ 3} Before Sylvania Township could find him, Lewis returned to the truck.
Barth asked Lewis what was wrong with the truck, asked if he had called a tow truck, and
asked him for his driver’s license. Instead of answering Barth’s questions or presenting
his identification, Lewis told him that he was a “child of God.” He went about collecting
his personal items from the truck, disregarding Deputy Barth’s instructions. Lewis
crossed the highway away from the deputy and started walking toward a nearby church.
{¶ 4} Barth called for Lewis to come over to him, but Lewis walked further way.
Barth jogged over to Lewis and again asked for identification, at which time Lewis
turned toward Barth and started shouting, pounding his chest, and pointing his finger in
Deputy Barth’s face. Lewis yelled that he was a child of God and repeatedly inquired of
Barth and Officer Kurtis Myers, of the Sylvania Township Police Department, whether
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they had taken “conscious” or “subconscious” oaths. Lewis gestured towards Barth and
Barth tried several times to grab his hand.
{¶ 5} Lewis continued to shout and pound his chest, still ignoring requests that he
produce identification. He kept walking away from the officers and threw his elbow and
forearm out as if to warn them against approaching him. At this point, Barth grabbed
around Lewis’s shoulder, spun him towards him, and took him to the ground with the
assistance of Officer Myers and two Toledo Metropark Park Rangers—Genzman and
Freh—who were also on the scene to assist. Despite Lewis’s resistance, the officers
ultimately handcuffed Lewis and retrieved his wallet from his back pocket.
{¶ 6} Genzman, Freh, and Myers all tried to calm Lewis down while Barth ran
his drivers’ license. Barth received word back that Lewis had possible warrants from
Bucyrus and Winchester. He asked dispatch to verify. While waiting for verification on
the warrants, Barth told Lewis that they were going to take him out of the heat and into
the air-conditioned patrol car. The officers put Lewis’s slides back on his feet and helped
him up from the ground.
{¶ 7} For a few moments, it seemed like Lewis had calmed down and was going
to cooperate with Barth’s plan. Barth told Lewis that if he had just cooperated in the first
place, it would not have gotten to the point of Barth placing him under arrest. Once they
got to the side of the patrol car, Lewis said he wanted to sit in the grass. Barth told him
he was going to sit in the car. As Barth tried to place Lewis in the vehicle, a scuffle
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ensued and Lewis bit Barth’s neck, drawing blood. Barth called for medical treatment.
EMS responded, treated him at the scene, then transported him to the Mercy Emergency
Center in Sylvania Township. His wound was treated and bandaged, a tetanus shot was
administered, and he was prescribed an oral antibiotic and ointment. Barth still has a scar
from the bite.
{¶ 8} Lewis was indicted on one count of felonious assault of a peace officer, a
violation of R.C. 2903.11(A)(1) and (D), a first-degree felony. The matter was tried to a
jury, at which time the preceding evidence was presented. Lewis insisted on representing
himself in the trial court, however, he did accept assistance from stand-by counsel. He
repeatedly declined to wear civilian clothes and appeared for trial in his prison garb.
Lewis cross-examined witnesses and testified in his own defense. He requested and was
permitted a jury instruction on self-defense.
{¶ 9} The jury found Lewis guilty. The trial court sentenced him to a minimum
stated prison term of five years to a maximum term of seven and one-half years. Lewis
appealed. He assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED
IN DENYING APPELLANT’S CRIM.R. 29 MOTION.
SECOND ASSIGNMENT OF ERROR: THE JURY’S VERDICT
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
PRESENTED AT TRIAL.
4.
II. Law and Analysis
{¶ 10} Lewis’s first assignment of error challenges the sufficiency of the evidence,
while his second assignment challenges its weight. We address each of these
assignments in turn.
A. Crim.R. 29
{¶ 11} Lewis argues that he did not act “knowingly” when he assaulted Deputy
Barth; rather, he claims, he “acted upon his self-defense instincts.” He maintains that
Deputy Barth did not advise him that he was being placed under arrest, and, in fact, at the
time Barth purported to arrest him, he had not committed an arrestable offense. Lewis
insists that he was only trying to defend himself against excessive force used against him
in the course of an unlawful arrest. He emphasizes that he committed the assault while
handcuffed and accuses Barth of “clotheslining” him.
{¶ 12} The state responds that Lewis was agitated from the moment of his first
encounter with officers, and he walked away despite repeated requests and commands
that he return to the scene and provide identification. It denies that Lewis’s arrest was
unlawful, but it asserts that even if it was, a private citizen may not use force to resist
arrest unless the arresting officer uses excessive and unnecessary force against him; here,
the state claims, excessive and unnecessary force was not used against Lewis. The state
insists that Deputy Barth used just enough force to spin Lewis around and to the ground.
5.
It emphasizes that self-defense is an intentional act, therefore, it is inconsistent for Lewis
to claim both that he acted in self-defense and that he acted unknowingly.
{¶ 13} A motion for acquittal under Crim.R. 29(A) challenges the sufficiency of
the evidence. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶
39. The denial of a motion for acquittal under Crim.R. 29(A) “is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶ 14} Whether there is sufficient evidence to support a conviction is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a
challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.”
(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668(1997). In making that determination, the appellate court will not weigh the evidence or
assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378
N.E.2d 1049 (1978). “Rather, we decide whether, if believed, the evidence can sustain
the verdict as a matter of law.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-
8448, 84 N.E.3d 993, ¶ 13. Naturally, this requires “a review of the elements of the
charged offense and a review of the state’s evidence.” Id.
6.
{¶ 15} Importantly, Lewis was not charged with obstruction or with resisting
arrest. He was charged only with felonious assault. “[A] lawful arrest is not an element
of felonious assault on a peace officer.” State v. Christian, 7th Dist. Mahoning No. 02
CA 170, 2005-Ohio-1440, ¶ 26. R.C. 2903.11(A)(1) provides simply that “[n]o person
shall knowingly * * * [c]ause serious physical harm to another * * *.” Under R.C.
2903.11(D)(1)(b), “[i]f the victim of the offense is a peace officer * * * and if the victim
suffered serious physical harm as a result of the commission of the offense, felonious
assault is a felony of the first degree * * *.” The state was, therefore, required to prove
that Lewis (1) knowingly, (2) caused serious physical harm, (3) to a peace officer.
{¶ 16} Lewis does not argue that he did not cause serious physical harm to Deputy
Barth or that Deputy Barth is not “a peace officer” for purposes of R.C.
2903.11(D)(1)(b). He argues only that he did not act “knowingly.” He claims that biting
Barth was a “self-defense instinct.”
{¶ 17} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature * * *.” R.C. 2901.22(B). Courts have recognized that absent
an admission, whether a person acts knowingly can be determined only from the
surrounding facts and circumstances, including the doing of the act itself. State v.
Hendricks, 6th Dist. Lucas No. L-19-1183, 2020-Ohio-5218, ¶ 19, citing In re S.C.W.,
7.
9th Dist. Summit No. 25421, 2011-Ohio-3193, ¶ 18. It is a subjective determination, but
it is decided on objective criteria. Id.{¶ 18} Here, the state presented testimony that when Barth attempted to place
Lewis in the back seat of the patrol car, Lewis “latched onto [his] neck with his mouth”
and did not let go until the other officers pulled him off of Barth. This did not occur
while Barth forced Lewis onto the ground to handcuff him; it happened while Barth was
being placed in the patrol car. Given the nature of the conduct itself and the location of
the bite, it cannot reasonably be claimed that this conduct was inadvertent or
unintentional. See State v. Nadock, 11th Dist. Lake No. 2009-L-042, 2010-Ohio-1161, ¶
65 (“Under these (or perhaps any set of facts), it is difficult to imagine how a person
could inadvertently or negligently bite another person.”). When viewed in a light most
favorable to the state, the evidence was sufficient to prove that Lewis knowingly caused
serious physical harm to Deputy Barth, a peace officer. See id. (finding that regardless of
appellant’s purpose, evidence that he “seized [the victim’s] flesh with his teeth” was
sufficient to prove that appellant knowingly caused or attempted to cause physical harm
to victim). Whether this conduct constituted self-defense goes to the weight of the
evidence, not its sufficiency. See State v. Messenger, 2021-Ohio-2044, 174 N.E.3d 425,
¶ 43-45 (10th Dist.), appeal allowed, 164 Ohio St.3d 1460, 2021-Ohio-3594; State v.
Harvey, 4th Dist. Washington No. 21CA3, 2022-Ohio-2319, f.n.3; State v. Woods, 5th
Dist. Stark No. 2021 CA 00132, 2022-Ohio-3339, f.n.2.
8.
{¶ 19} We find Lewis’s first assignment of error not well-taken.
B. Manifest Weight
{¶ 20} In his second assignment of error, Lewis argues that the state failed to meet
its burden of proving that he committed felonious assault and that he did not act in self-
defense. He claims that he was in handcuffs and was entitled to use self-defense to
protect himself “from Dep. Barth’s unlawful arrest and his overly aggressive and
excessive behavior in clotheslining Appellant to the ground.” Lewis states that he did not
feel safe in the deputy’s car and wanted to sit on the grass where he would be out in the
open and visible to the public. Finally, he maintains that the bodycam video that was
admitted into evidence did not fully show the aggression and excessive force used to
unlawfully arrest him, there was no indication in the video that he was under arrest, and
he could not lawfully be placed under arrest for refusing to answer Deputy Barth’s
questions or to produce his identification.
{¶ 21} The state responds that the bodycam footage demonstrates that Lewis was
in an agitated state from the very beginning of the encounter—yelling, shouting, and
pointing his finger in officers’ faces—and he acted knowingly when he bit Deputy Barth.
It maintains that Lewis tried to flee the scene while officers attempted to get basic
information needed to remove the truck from disrupting traffic, likely because he was
aware that he had warrants pending. The state contends that Lewis was the initial
aggressor and the officers did not use excessive force against him, thus self-defense is not
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available to him. It denies that Deputy Barth “clotheslined” Lewis; rather, he grabbed
Lewis’s shoulder and spun him to the ground.
{¶ 22} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light
most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the
factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas
No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 23} Although under a manifest-weight standard we consider the credibility of
witnesses, we must nonetheless extend special deference to the jury’s credibility
determinations given that it is the jury who has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
10.
{¶ 24} As an initial matter, the bodycam footage, which was admitted into
evidence, makes several things clear. First, Lewis repeatedly failed to heed Deputy
Barth’s commands. He ignored requests that he produce his identification, refused to tell
officers whether he had called for a tow truck, and walked away from the officers, all
while his large truck sat in the road impeding traffic. Second, Lewis became agitated
almost immediately. He began shouting, pointing, gesturing, and pounding his chest in
response to the deputy’s request for basic information. What should have been a simple
conversation quickly—and unnecessarily—devolved into Lewis interrogating the officers
about whether they had taken “conscious” or “subconscious” oaths. Third, Lewis did not
bite Barth during the course of being arrested—he bit him after he had been arrested and
while Barth was trying to guide him into the backseat of the vehicle, about 15 minutes
after the scuffle that occurred when Barth tried to handcuff Lewis. The only force that
was being applied against Lewis at the time he assaulted Barth was the force required to
overcome Lewis’s resistance to being placed into the patrol car. Fourth, Lewis was not
“clotheslined.” To “clothesline” someone means “to knock down (someone, such as a
football player) by catching by the neck with an outstretched arm.”
https://www.merriam-webster.com/dictionary/clotheslined (last accessed Nov. 28, 2022).
Here, Barth was positioned slightly behind Lewis, reached around Lewis’s shoulder and
spun Lewis toward him and to the ground. He did not “clothesline” Lewis.
11.
{¶ 25} Lewis argues that his arrest was unlawful. But whether it was or was not is
immaterial to the felonious assault charge. This is because, as the jury was instructed,
unless an arresting officer uses excessive or unnecessary force, a private citizen may not
use force to resist arrest by an authorized police officer, regardless of whether the arrest is
illegal. State v. Whetstone, 11th Dist. Lake No. 2015-L-114, 2016-Ohio-6989, ¶ 23,
citing Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 (1975), paragraph three of
the syllabus. “Consequently, if the arrest was unlawful and a citizen forcibly resisted
arrest, the citizen may not be subject to prosecution for resisting arrest, but would be
subject to prosecution for assault on a peace officer.” Id. Here, the jury apparently
concluded that the deputy did not use excessive or unnecessary force warranting Lewis’s
use of force. We find that the jury did not lose its way in reaching this conclusion.
{¶ 26} Finally, Lewis argues that the state failed to prove that he did not act in
self-defense when he bit Barth’s neck. “The elements of a valid claim of self-defense are
as follows: (1) the defendant was not at fault in creating the situation giving rise to the
affray; (2) the defendant had a bona fide belief that he or she was in imminent danger of
death or great bodily harm and that his or her only means of escape from such danger was
in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid
the danger.” State v. Sepeda, 6th Dist. Lucas No. L-21-1123, 2022-Ohio-1889, ¶ 47,
quoting State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 41 (11th Dist.).
12.
{¶ 27} Here, the bodycam videos show that Barth was simply escorting Lewis into
the patrol car at the time Lewis bit his neck. Accordingly, it was reasonable for the jury
to conclude that Lewis did not have a bona fide belief that he was in imminent danger of
death or great bodily harm and that his or her only means of escape from such danger was
to use of such force. It did not lose its way in rejecting Lewis’s claim of self-defense.
{¶ 28} Accordingly, we find Lewis’s second assignment of error not well-taken.
III. Conclusion
{¶ 29} We conclude that Lewis’s conviction of felonious assault of a peace officer
was not against the weight or sufficiency of the evidence. When viewed in a light most
favorable to the state, the evidence was sufficient to prove that Lewis knowingly caused
serious physical harm to Deputy Barth when he bit him in the neck while Barth was
placing him in the back of his patrol vehicle. The jury did not lose its way when it
rejected Lewis’s claim of self-defense or in declining to find that Barth used excessive or
unnecessary force against Lewis that would have justified Lewis biting the deputy. We
find Lewis’s assignments of error not well-taken and affirm the November 8, 2021
judgment of the Lucas County Court of Common Pleas. Lewis is ordered to pay the costs
of this appeal under App.R. 24.
Judgment affirmed.
13.
State of Ohio
v. Jon Robert Lewis
L-21-1248
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
14.