State v. Jasso , 2023 Ohio 209 ( 2023 )

[Cite as State v. Jasso, 2023-Ohio-209.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-22-001
Appellee Trial Court No. 21CR93
v.
Jarred A. Jasso DECISION AND JUDGMENT
Appellant Decided: January 25, 2023
*****
T. Luke Jones, Fulton County Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
OSOWIK, J.
{¶ 1} Defendant-appellant, Jarred Jasso, appeals the December 28, 2021 judgment
of the Fulton County Court of Common Pleas which, following a jury trial convicting him
of assault on a peace officer, sentenced him to three years of community control. Because
we find that sufficient evidence and the weight of the evidence support the verdict, we
affirm.
I. Procedural and Factual History
{¶ 2} Appellant was indicted on August 16, 2021, on one count of assault on a peace
officer, R.C. 2903.13(A) and (C)(5), a fourth-degree felony. The charge stemmed from an
incident on July 21, 2021, where a scuffle ensued, including appellant being tased, during
police officers’ attempts to place appellant under arrest pursuant to a warrant.
{¶ 3} The trial in this matter commenced on November 17, 2021, and the
following evidence was presented. Wauseon Police Sergeant Kaleb Torbet testified that
on July 21, 2021, he was dispatched to a house in Wauseon, Fulton County, Ohio on a
call of an unwanted individual at a private residence. Appellant was identified as the
individual. Torbet stated that he had recently run a LEADS check and discovered that
appellant had a “possible warrant for his arrest” for failure to appear.
{¶ 4} Upon arrival, Torbet exited his marked patrol vehicle and proceeded across
the lawn where he encountered appellant. When asked, appellant stated that he was
leaving and that someone in the house had hit him in the arm with a board. Sergeant
Torbet observed that appellant was slurring his speech, had bloodshot eyes, and had an
odor of alcohol. Torbet then advised appellant of the possible warrant and requested that
he turn around with his hands behind his back. At that point, Officer Huner arrived at the
scene.
{¶ 5} Torbet stated that as he attempted to get appellant’s right arm behind his
back, Huner grabbed at his left arm, appellant threw the water bottle he was holding and
crouched down in what Torbet interpreted as a fighting stance. At that point, the officers
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took him to the ground and rolled him over, attempting to get him stomach down to gain
control. Torbet said that appellant ended up crouched with his legs underneath him.
{¶ 6} Torbet testified that appellant was able to “wrap up” Huner’s leg; Huner
disengaged and proceeded to activate his taser on appellant’s upper and lower right side.
Torbet stated that appellant rolled over, looked at him, and punched him “relatively hard”
in the center of his forehead. As the officers were rolling him back on his stomach,
Torbet got tangled in the wire and “caught some of the tasing.” After appellant was
secured, Torbet stated that medical personnel were called to remove the probes from
appellant’s body. He was then placed under arrest.
{¶ 7} Sergeant Torbet stated that following the incident and after the adrenaline
wore off, his head was hurting and he had a red mark and a large bump on his head which
remained approximately one week. Torbet stated that his headache lasted a day.
{¶ 8} Torbet testified that during the incident his body camera was on and
recording; the video was played for the jury. Officer Huner also activated his bodycam; a
portion of the video was also played for the jury. Torbet testified to the events as they
unfolded in the video. It is undisputed that the bodycam videos do not clearly depict
appellant punching Sergeant Torbet. Witnesses to the incident were given statement
forms to fill out; they were never returned.
{¶ 9} During cross-examination, Torbet acknowledged that appellant’s warrant for
failure to appear was a “non-violent” warrant but stated that this is no indication as to
whether an individual will be violent when an arrest is attempted. Sergeant Torbet also
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acknowledged that when he arrived on the scene appellant was preparing to leave the
premises. He agreed that he did not immediately tell appellant why he asked him to turn
around and put his hands behind his back.
{¶ 10} Torbet was questioned about the effects of being correctly tased. He stated
that your body “locks up” and becomes rigid. In other words, your body cannot move.
Torbet stated that a taser deployment is good for five seconds. He was then replayed a
portion of Officer Huner’s bodycam video. Appellant was tased at 2:18; Torbet had
previously testified that he was punched at 2:20/2:21. Acknowledging that it was less
than five seconds, Torbet stated that appellant’s tasing experience differed from what he
had seen previously though he agreed that his arched back and straight arms were typical.
Torbet again stated that appellant hit him with a closed fist and relatively hard even
though he admitted that he did not remember being hit. He also agreed that appellant’s
hand appeared to be open as he was bringing it back down from the point on the video
when Torbet said he was punched.
{¶ 11} Upon further questioning by the court, Sergeant Torbet explained that the
first taser deployment hit appellant’s hip which, due to the close proximity of the probes,
did not result in widespread immobilization. The second deployment, hitting up higher
on the body, had a better spread of the probes and was more effective.
{¶ 12} The second responding Wauseon Police Officer, Patrolman Mitchell
Huner, testified extensively about the operation of the police taser and its effect on the
body. Huner indicated that he had prior instances where he deployed his taser but the
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connection was not effective. Huner stated that in another case involving close proximity
to the suspect, the probes did not spread far enough apart to impact the whole body.
{¶ 13} As to the events involving appellant, Officer Huner testified that he walked
up to Sergeant Torbet as appellant was informed that he may have an arrest warrant and
Torbet instructed him to put his hands behind his back. Huner stated that appellant
repeatedly refused and flexed his arms up in front of his chest. Huner stated that at that
point he grabbed on to appellant, placed his leg between his legs, and brought him down
to the ground on his back.
{¶ 14} Officer Huner stated that once rolled over appellant got in a crouched
position, grabbed a hold of his leg, and applied pressure to Huner’s knee with his
shoulder. Huner stated that he punched appellant which caused him to loosen his grip
and he was able to untangle his leg.
{¶ 15} After being warned by Sergeant Torbet that he would be tased, Officer
Huner deployed the taser at close range. Huner stated that the probes would have had
about a one-to-two-inch spread. He immediately moved to appellant’s back shoulder
area and deployed a second set of probes with the hope that the combination would act to
immobilize appellant. Appellant rolled over and, according to Huner, connectively was
lost as to one set of probes. This was evidenced by appellant’s attempt to grab the taser.
Huner then applied a dry, or direct, tase to appellant’s chest area. Appellant continued to
resist so Huner applied the taser directly to appellant’s right arm. Officer Huner stated
that he did not see appellant strike Sergeant Torbet but did see red marks on his forehead
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and around his eye area that he had not previously observed. Officer Huner narrated the
playing of his bodycam video.
{¶ 16} During cross-examination, Huner agreed that appellant was resisting arrest
and that taser use was authorized per department policy. He acknowledged that he did
not observe appellant punching anyone. He further acknowledged that, in theory, the
taser should have been working properly to immobilize appellant. The state then rested.
The court alluded to a Crim.R. 29 motion being raised but it was not evidenced in the
record.
{¶ 17} Appellant presented the testimony of Damian West, a guest at the residence
who witnessed the events at issue. He similarly recounted that appellant did not comply
when the officers told appellant that he had a warrant and to put his hands behind his
back. West also stated that the trio began wrestling once the first officer grabbed
appellant’s hand and put it behind his back and the second officer put his leg behind him
and “kicked” him down to the ground.
{¶ 18} After continued wrestling, the officers threatened to taser and did taser
appellant “probably about three times.” West stated that it was continuous for
approximately a minute based on the clicking noise he heard. West testified that while
they were tasing him and he was down on his hands and knees; he was still not
complying so one of the officers swung at him twice and missed.
{¶ 19} West denied that that appellant ever swung at (or clenched his fist) or
kicked either of the officers. He stated that appellant was being tased for so long that his
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arms, with open hands, were “flaring” or had seized up and that he was grunting and
calling for help. West denied hearing any statements by the officers about being hit and
did not see any injuries.
{¶ 20} On cross-examination, West admitted that appellant is a relative by
marriage and family friend. West stated that it was apparent that appellant had been
drinking that night because he was slurring his words. He acknowledged that appellant
and the homeowner had been arguing and that when the officers arrived appellant was
preparing to leave. West stated that appellant had been upset, but that he did not feel that
it was cause for concern.
{¶ 21} The evidence then concluded and the jury began deliberations; they were
able to review the bodycam videos and photographic evidence. Appellant was found
guilty of the charge and, following sentencing, commenced the instant appeal.
II. Assignment of Error
{¶ 22} The finding of guilty of assault was against both the sufficiency of the
evidence and the manifest weight of the evidence.
III. Discussion
{¶ 23} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We examine the evidence in a light
most favorable to the state and decide whether any rational trier of fact could have found
that the state proved, beyond a reasonable doubt, all of the essential elements of the
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crime. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,
684 N.E.2d 668 (1997); State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767
N.E.2d 216, ¶ 78.
{¶ 24} Whether the evidence is legally sufficient to sustain a verdict is a question
of law. Thompkins at 386. In determining whether a conviction is based on sufficient
evidence, an appellate court does not assess whether the evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction. See
Jenks at paragraph two of the syllabus; Yarbrough at ¶ 79.1
{¶ 25} In contrast, “‘[w]hen 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 fact finder’s resolution of the conflicting
testimony.’” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶
25, quoting Thompkins at 387. In determining whether a conviction is against the
manifest weight of the evidence, the appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of the witnesses and
determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way
1
We do acknowledge that appellant failed to make a Crim.R. 29 motion for
acquittal at the conclusion of the trial. However, this court had held that whether a
sufficiency of the evidence claim is reviewed under prejudicial or plain error is
“academic” because a conviction resting on legally insufficient evidence is a denial of
due process. State v. Hermann, 6th Dist. Erie No. E-01-039, 2002-Ohio-7307, ¶ 24,
quoting Thompkins at 386-387.
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and thereby created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial must be ordered. Thompkins at 387, citing State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed
on manifest weight grounds only in the most “‘exceptional case in which the evidence
weighs heavily against the conviction.’” Id., quoting Martin at 175.
{¶ 26} Appellant was convicted of assault on a peace officer, R.C.
2903.13(A)(C)(5), which provides:
(A) No person shall knowingly cause or attempt to cause physical
harm to another or to another’s unborn.
* * *.
(C)(1) Whoever violates this section is guilty of assault, and the
court shall sentence the offender as provided in this division and divisions
(C)(1), (2), (3), (4), (5), (6), (7), (8), (9), and (10) of this section. Except as
otherwise provided in division (C)(2), (3), (4), (5), (6), (7), (8), or (9) of
this section, assault is a misdemeanor of the first degree.
***
(5) If the victim of the offense is a peace officer or an investigator of
the bureau of criminal identification and investigation, a firefighter, or a
person performing emergency medical service, while in the performance of
their official duties, assault is a felony of the fourth degree.
{¶ 27} Knowingly is statutorily defined as when
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the person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature. A person has
knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if
a person subjectively believes that there is a high probability of its
existence and fails to make inquiry or acts with a conscious purpose to
avoid learning the fact.
R.C. 2901.22(B). Absent an admission, whether a person acts knowingly may be
determined solely 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., 9th Dist. Summit No. 25421, 2011-Ohio-3193, ¶ 18. It is a subjective
determination, but it is decided on objective criteria. Id.{¶ 28} Physical harm is defined as “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). Physical harm is
“requires some manifestation of harm to the officer, whether it be in the form of a visible
or objective injury, or in the form of pain.” State v. Brown, 6th Dist. Lucas No. L-18-
1140, 2020-Ohio-1650, ¶ 20
{¶ 29} Reviewing the evidence in a light most favorable to the prosecution, we
find that appellant’s assault conviction is supported by sufficient evidence. Sergeant
Torbet testified that appellant looked directly at him and then hit him in the head with a
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closed fist. The bodycam video does evidence a point where appellant’s hand goes in the
direction of Torbet’s head. Following the incident Torbet, on his bodycam video, states:
“My head hurts.” Further, when speaking with witnesses he says: “Sorry, I got hit in the
head, so * * *.” Further, the photographs admitted into evidence clearly show an injury,
redness and swelling, to Torbet’s forehead consistent with his trial testimony.
{¶ 30} Turning to appellant’s manifest weight claim, we find that although there
were some inconsistencies in the testimony, the jury could have reasonably concluded
that appellant rolled over on his back and knowingly hit Sergeant Torbet in the face and
that he suffered physical harm. While the bodycam videos do not clearly depict the
punch, Sergeant Torbet was able to pinpoint when the punch occurred. The difficulty in
capturing the assault on camera can be attributed to the fact that the officers were in close
proximity to appellant, with the video intermittently blacked out due to it being covered
by one of the parties, as the scuffle took place. Accordingly, we cannot find a manifest
injustice warrants reversal.
{¶ 31} Based on the foregoing, we find that appellant’s conviction was supported
by sufficient evidence and was not against the weight of the evidence. Appellant’s first
and second assignments of error are not well-taken.
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IV. Conclusion
{¶ 32} For the reasons set forth above, the judgment of the Fulton County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.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/.
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