State v. Hanson

[Cite as State v. Hanson, 2019-Ohio-3688.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28057
:
v. : Trial Court Case No. 2017-CRB-1925
:
JOHN HANSON, III : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 13th day of September, 2019.
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CHRISTINE L. BURK, Atty. Reg. No. 0050559, 10 N. First Street, Miamisburg, Ohio
45342
Attorney for Plaintiff-Appellee
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
HALL, J.,
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{¶ 1} Defendant-appellant, John Hanson, III, appeals from his conviction in the
Miamisburg Municipal Court after he pled no contest to two counts of making a false
allegation of peace officer misconduct in violation of R.C. 2921.15(B). In support of his
appeal, Hanson contends that there was insufficient evidence to support his conviction
and that R.C. 2921.15 is unconstitutional. For the reasons outlined below, we conclude
that the evidence was sufficient to establish that appellant filed a false “complaint” against
a peace officer by making false verbal accusations and a written witness statement to a
police supervisor alleging the arresting officers raped him. We further conclude the
evidence was sufficient to establish that Hanson’s accusation was made “knowingly.”
Finally, Hanson waived his challenge to the constitutionality of R.C. 2921.15 by failing to
raise the issue in the trial court. Consequently, we affirm the convictions.
Facts and Course of Proceedings
{¶ 2} On October 27, 2017, Officers Nick Bell and Brandon Mundy of the
Miamisburg Police Department arrested Hanson on misdemeanor charges of failure to
comply with the order or signal of a police officer and disorderly conduct. Following
Hanson’s arrest, the officers transported Hanson to the Montgomery County Jail.
Hanson was released from jail the next day and was thereafter charged in the Miamisburg
Municipal Court with the above-named offenses. The charges were filed under Case
Nos. 2017-CRB-1888(A) and (B).
{¶ 3} Upon being released from jail, Hanson called the Miamisburg Police
Department and reported that Officers Bell and Mundy had beat him and shoved
something up his rectum during the course of his arrest. Sergeant Josiah Keefer
responded to Hanson’s call and briefly spoke to Hanson about his accusations against
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the officers. During the call, Keefer asked Hanson to meet with him at the police station
to discuss the matter further and to get a written statement. Hanson agreed and
thereafter went to the police station to speak with Sergeant Keefer.
{¶ 4} When Hanson arrived at the police station, Keefer obtained Hanson’s
identification information and questioned him about the alleged assault by Officers Bell
and Mundy. Keefer audio-recorded his conversation with Hanson and had Hanson
complete a written “Witness Statement” form. On the form, Hanson wrote that the
arresting officers had “tackled [him] from behind” and assaulted him by “hitting” him,
“smashing [his] face into the ground [,] sticking something in [his] rectum causing [him] to
bleed for the last two days.” State’s Exhibit No. 20.
{¶ 5} During their meeting, Sergeant Keefer also had Hanson sign a document
explaining the offense of making a false allegation of peace officer misconduct. Keefer
explained that he wanted Hanson to sign the document in order to confirm that Hanson
“understood that it was a crime to file false reports on police officers.” State’s Exhibit
Nos. 22 and 29. During the recorded conversation, Hanson told Keefer that he did not
know whether the officer’s actions were malicious but nevertheless maintained that one
of the officers shoved something up his rectum. Toward the end of their conversation,
Keefer told Hanson that he was going to “open an investigation, do a report, get his
medical records and take photos.” State’s Exhibit Nos. 22 and 29. After Keefer took
photographs of Hanson, Hanson left the police station, and Keefer forwarded his report
to Sergeant Jeffrey Muncy for further investigation.
{¶ 6} In investigating the matter further, Sergeant Muncy reviewed the cruiser
camera video footage of Hanson’s arrest, Hanson’s jail records, the video of Hanson’s jail
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booking, a Dayton medic call log, and medical records obtained from NaphCare. Based
on his review, Muncy found that Hanson’s accusations against Officers Bell and Mundy
were unfounded. Upon learning that Hanson’s allegations were false, Sergeant Muncy
presented the matter to the prosecutor, who approved charging Hanson with two counts
of making a false allegation of peace officer misconduct in violation of R.C. 2921.15(B).
In the complaint charging Hanson, it was specifically alleged that Hanson violated R.C.
2921.15(B) by “report[ing] to Sgt. Keefer that Officer Nick Bell [and Officer Brandon
Mundy] had physically and/or sexually assaulted him on the night of his arrest on
10/27/17, knowing this did not occur.” Complaint (Nov. 1, 2017), Miamisburg M.C. No.
2017-CRB-1925(A)/(B), Docket No. 2.
{¶ 7} In the course of his investigation, Muncy also contacted Hanson by telephone
on November 1, 2017. During this call, which was audio-recorded, Muncy advised
Hanson that he was calling to follow up on Hanson’s complaints. In response, Hanson
told Muncy that he had already given his written statement to Sergeant Keefer and that
he did not know what else to say. Hanson also told Muncy that he “would just like to
forget about the whole thing” and that “he did not know if [the officers] purposely did it to
him.” State’s Exhibit Nos. 22 and 28. Hanson, however, still maintained that the officers
beat him and shoved something up his rectum.
{¶ 8} Following this discussion, Muncy told Hanson that in order to close the case,
Hanson needed to either sign a statement of non-prosecution or meet with him at the
police station to further discuss the allegations. Although Hanson agreed to meet with
Muncy, Hanson never appeared at the police station. After Hanson failed to appear,
Muncy called Hanson again. During this second call, Hanson advised Muncy that he did
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not appear because he had learned from the Miamisburg Municipal Court website that
there was a warrant for his arrest. To this, Muncy responded that “the warrant was for
making false allegations against a police officer, for this incident.” State’s Exhibit No. 22.
There is no dispute that Hanson never met with Muncy, but instead turned himself in to
the Miamisburg Municipal Court the next day, on November 2, 2017.
{¶ 9} After turning himself in, Hanson appeared before the trial court and pled not
guilty to the two charges of making a false allegation of peace officer misconduct. The
matter was thereafter set for a jury trial. However, on the day of trial, Hanson decided to
accept a negotiated plea agreement with the State. As part of the plea agreement,
Hanson agreed to plead no contest to both of the false allegation charges in exchange
for the State dismissing the charges for failure to comply and disorderly conduct in Case
Nos. 2017-CRB-1888(A) and (B).
{¶ 10} Following the trial court’s acceptance of Hanson’s no contest plea, the State
submitted 31 exhibits in support of the charges alleging that Hanson had made false
allegations of peace officer misconduct. The State’s exhibits included the video footage
of Hanson’s October 27, 2017 arrest and jail booking, photographs of Hanson’s alleged
injuries, Hanson’s handwritten “Witness Statement,” the recorded telephone
conversations that Hanson had with Sergeants Keefer and Muncy, the police reports
generated by Sergeants Keefer and Muncy, the two complaints filed against Hanson in
this case, and Miami Valley Hospital records indicating that there was no “acute trauma”
to Hanson’s rectum. After the trial court noted on the record that it had “extensively”
reviewed the 31 exhibits presented by the State, the trial court found there was “more
than sufficient evidence to find [Hanson] guilty” of the two charges. Trans. (June 22,
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2018), p. 15 and 18.
{¶ 11} After finding Hanson guilty, the trial court proceeded to sentencing. In
sentencing Hanson, the trial court imposed 180 days in jail for each offense, to be served
concurrently, with 175 days suspended and two days of jail-time credit. In lieu of serving
three days in jail, the trial court ordered Hanson to attend and complete a 72-hour alcohol
intervention program at the Ohio Intervention Center (“OIC”). The trial court also ordered
Hanson to complete a drug and alcohol assessment with Dr. Mary Melton at the OIC and
to complete any recommended counseling or treatment. In addition, the trial court
imposed two years of reporting probation and ordered Hanson to pay a $230 fine and
court costs.
{¶ 12} Hanson now appeals from his conviction, raising three assignments of error
for review.
First Assignment of Error
{¶ 13} Under his first assignment of error, Hanson contends that there was
insufficient evidence for the trial court to find him guilty of violating R.C. 2921.15(B).
Specifically, Hanson contends that the evidence did not establish that he filed a
“complaint” against Officers Bell and Mundy as required for a violation of R.C. 2921.15(B).
{¶ 14} “On a plea of no contest to a misdemeanor offense, R.C. 2937.07 provides
that a court may find the defendant guilty or not guilty based on ‘the explanation of the
circumstances of the offense.’ ” (Footnote omitted.) State v. Wieckowski, 2d Dist. Clark
No. 2010-CA-111, 2011-Ohio-5567, ¶ 4. “Although R.C. 2937.07 does not define the
phrase ‘explanation of circumstances,’ it requires evidence sufficient to demonstrate the
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accused’s criminal liability for the offense charged.” (Citation omitted.) State v.
Osterfeld, 2d Dist. Montgomery No. 20677, 2005-Ohio-3180, ¶ 6. Therefore, the
explanation of circumstances “necessarily involves, at a minimum, some positive
recitation of facts which, if the court finds them to be true, would permit the court to enter
a guilty verdict and a judgment of conviction on the charge to which the accused has
offered a plea of no contest.” Id. “Documentary evidence may suffice as an explanation
of the circumstances supporting the charge, provided the record demonstrates that the
trial court actually considered that evidence in determining Defendant’s guilt or
innocence.” (Citations omitted.) State v. Mazzone, 2d Dist. Montgomery No. 18780,
2001 WL 1141822, *2 (Sept. 28, 2001).
{¶ 15} Appellate courts “review the explanation of circumstances to determine if
there is sufficient evidence in the record to establish all of the elements of the offense.”
State v. O’Brien, 5th Dist. Licking No. 17-CA-14, 2017-Ohio-7219, ¶ 35, citing Cuyahoga
Falls v. Bowers, 9 Ohio St. 3d 148, 150, 459 N.E.2d 532 (1984). In doing so, appellate
courts utilize a de novo standard of review. Id. A “[d]e novo review requires an
‘independent review of the trial court’s decision without any deference to the trial court’s
determination.’ ” State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5,
quoting Jackson v. Internatl. Fiber, 169 Ohio App. 3d 395, 2006-Ohio-5799, 863 N.E.2d
189, ¶ 17 (2d Dist.).
{¶ 16} In this case, after Hanson entered a no contest plea, the trial court found
him guilty of making a false allegation of peace officer misconduct in violation of R.C.
2921.15(B). Pursuant to that statute: “No person shall knowingly file a complaint against
a peace officer that alleges that the peace officer engaged in misconduct in the
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performance of the officer’s duties if the person knows that the allegation is false.” R.C.
2921.15(B). Although the record indicates that the trial court found sufficient evidence
of Hanson’s guilt after considering the 31 exhibits offered by the State, Hanson claims
that the exhibits fail to establish that he filed a “complaint” within the meaning of R.C.
2921.15(B).
{¶ 17} While the title of R.C. 2921.15 includes the word “allegation,” i.e., “Making
False Allegation of Peace Officer Misconduct,” it is well established that “Title, Chapter,
and section headings * * * do not constitute any part of the law as contained in the
‘Revised Code.’ ” R.C. 1.01. Accordingly, in adhering to the plain terms of R.C.
2921.15(B), a violation of that statute only occurs when an individual knowingly files a
complaint.
{¶ 18} The term “complaint,” as it is used in R.C. 2921.15(B), is not defined by the
Revised Code. However, when construing the language of a statute, R.C. 1.42 provides:
“Words and phrases shall be read in context and construed according to the rules of
grammar and common usage.” R.C. 1.42 further provides: “Words and phrases that
have acquired a technical or particular meaning, whether by legislative definition or
otherwise, shall be construed accordingly.” We are also mindful that “sections of the
Revised Code defining offenses or penalties shall be strictly construed against the state,
and liberally construed in favor of the accused.” R.C. 2901.04(A).
{¶ 19} The discrete issue raised in the first assignment of error is whether the
phrase “file a complaint,” as it is used in R.C. 2921.15(B), requires an offender to file in
court a false criminal “complaint,” as that term is defined in Crim.R. 3, before coming
within the purview of the statute making it a misdemeanor to “knowingly file a complaint
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against a peace officer that alleges that the peace officer engaged in misconduct in the
performance of the officer’s duties if the person knows that the allegation is false.” R.C.
2921.15(B). In our opinion, for multiple reasons that follow, the terminology “file a
complaint” was not intended to be limited only to the filing of a criminal complaint in a
court.
{¶ 20} First, there is no statutory authority for a private citizen to file a criminal
“complaint” in court. At best, “[a] private citizen having knowledge of the facts who seeks
to cause an arrest or prosecution under this section may file an affidavit charging the
offense committed with a reviewing official for the purpose of review to determine if a
complaint should be filed by the prosecuting attorney or attorney charged by law with the
prosecution of offenses in the court or before the magistrate.” (Emphasis added.) R.C.
2935.09(D). Specifically related to Hanson’s case, he submitted a written statement to
the police department where he falsely accused two police officers of “tackling” him and
“sticking something in [his] rectum.” If true, his accusation would constitute the felonies of
rape or felonious assault or both. Even if Hanson had submitted his allegations to a court
under R.C. 2935.09(D), his submission would be by “affidavit,” and the question of
whether or not a criminal “complaint” would ensue would be determined by the “reviewing
official,” “a judge, * * * the prosecuting attorney, * * * or a magistrate” (the defined
“reviewing official[s]” under R.C. 2935.09(A)). Because a private citizen, victim or not, is
not authorized to file a Crim.R. 3 “complaint,” a violation of R.C. 2921.15(B) would never
occur if “file a complaint” only means that the individual must file a Crim.R. 3 complaint in
court. The Ohio Supreme Court has stated that “ ‘[t]he plain language of [R.C. 2935.09(D)]
does not permit the filing of a complaint by a private citizen,’ although it does recognize
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the filing of an affidavit by the private citizen.” State ex rel. Dominguez v. State, 129 Ohio
St.3d 203, 2011-Ohio-3091, 951 N.E.2d 77, ¶ 2, quoting State ex rel. Muff v. Wollenberg,
5th Dist. Perry No. 08-CA-11, 2008-Ohio-4699, ¶ 12. If Hanson is not permitted to “file a
[Crim.R. 3] complaint” in court, then “file a complaint” in R.C. 2921.15(B) cannot mean
that the false accuser must file a Crim.R. 3 complaint in court.
{¶ 21} Technically, even a police officer does not file a Crim.R. 3 “complaint.” In
order to commence a prosecution, a peace officer may file an affidavit charging an offense
directly with the clerk of a court. See R.C. 2935.09(C) (providing that “[a] peace officer
who seeks to cause an arrest or prosecution under this section may file with a reviewing
official or the clerk of a court of record an affidavit charging the offense committed.”)
(Emphasis added). 1 We recognize the common practice that some clerks accept
affidavits from police officers charging offenses that are captioned as a “criminal
complaint.” And many jurisdictions have private citizens endorse what is captioned a
“criminal complaint” at the clerk’s office to initiate misdemeanor prosecutions. The bulk of
those private-citizen-initiated cases are for domestic violence, violation of a protection
order, menacing by stalking, or trespass where, statutorily, a written statement from a
1 Although a peace officer is permitted to initiate a prosecution by filing a charging affidavit
with a clerk of court, conversely a private citizen charging affidavit, if filed with the clerk,
is required to be submitted to a “reviewing official”: a judge, prosecuting attorney or
magistrate for further proceedings. R.C. 2935.09(D). Therefore, a clerk is not authorized
to initiate criminal proceedings from a private citizen affidavit. A clerk is authorized to
issue a warrant for a felony, or a warrant or summons for a misdemeanor for a charging
affidavit over which it has authority to process. R.C. 2935.10. But since a private citizen
charging affidavit must be acted upon only by a reviewing official, whether a warrant would
issue, or whether the matter is referred to the prosecutor for the filing of a complaint or
for further investigation, can only be determined by a judge, prosecuting attorney, or
magistrate.
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victim “constitutes reasonable ground” to believe the person named committed the
offense. R.C. 2935.03 (B)(2)(a) and (B)(3)(a)(i).2 One might argue that a private citizen
charging affidavit that contains the facts constituting the offense and the numerical
designation of the statute or ordinance violated ipso facto constitutes a Crim.R. 3
“complaint.” Even then, unless a private citizen is legally trained, he or she could not file
such a document alone. The private citizen would not independently recognize the legal
requirements of such a document. And even if in practice many, or most, misdemeanor
prosecutions begin with the submission of a charging affidavit by a police officer directly
to the clerk’s office, captioned as a “criminal complaint,” there is no statute that permits a
private citizen to file a criminal complaint.
{¶ 22} When there is an arrest without a warrant, meaning no court action has
been initiated (no filed “complaint”), an arresting official “shall, without unnecessary delay,
take the person arrested before a court or magistrate having jurisdiction of the offense,
and shall file or cause to be filed an affidavit describing the offense for which the person
was arrested. Such affidavit shall be filed either with the court or magistrate, or with the
prosecuting attorney * * * and if filed with such attorney he [the prosecutor] shall forthwith
file with such court or magistrate a complaint, based on such affidavit.” R.C. 2935.05.
Consequently, even a peace officer who has made an arrest is not the person who would
“file a complaint” as contemplated by Crim.R. 3. Despite routine practices to the contrary,
where officers or detectives initiate criminal processes by endorsing what is titled a
2 It also may be that the practice of having a complaining witness endorse a “criminal
complaint” at the clerk’s office is a protective mechanism to screen out those who report
potential criminal activity to the police but who are unwilling to take the steps necessary
to proceed with prosecution.
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“criminal complaint,” their initiating document more precisely should be called “an affidavit
describing the offense,” which, if it contains the elements of Crim.R. 3, would by rule
constitute a criminal complaint to start the criminal process.3
{¶ 23} Invariably, in felony prosecutions where there is not an immediate arrest,
criminal process is initiated with a grand jury indictment and there is no criminal
“complaint” at all. That would apply to Hanson’s felony “complaint.” In all likelihood, upon
investigation, if his false allegations had been supported by evidence, the matter would
have been presented to a grand jury to see if an indictment could be obtained. Neither
the victim, Hanson, nor anyone else would ever file a criminal “complaint” as that term is
used in Crim.R. 3. The false nature of his accusation can be just as harmful, whether or
not a criminal “complaint” is filed. In any event, whether or not a Crim.R. 3 “complaint” is
filed by the falsifying offender is not up to the offender and cannot be done by the offender.
Therefore, limiting the terminology “file a complaint” to a Crim.R. 3 criminal complaint not
only makes little sense, it also could not be what the legislature intended by that wording
of the statute.
{¶ 24} Second, the vast majority of complaints against police officers are for
excessive use of force or denial of civil or constitutional rights. But not all accusations of
police misconduct are criminal and, even if substantiated, most are resolved by internal
disciplinary action, and they never result in the filing of a criminal “complaint.” It is likely
the majority of accusations, “complaints,” are made to internal affairs divisions of large
3 Similarly, in a citizen’s arrest under R.C. 2935.04, the private person shall forthwith take
the person before a judge, clerk, magistrate, or officer. And, if the officer does not, the
private person shall file “an affidavit stating the offense.” R.C. 2935.06. A “complaint” per
se is not authorized.
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departments, or to supervisors in smaller ones. But that is not the only way a knowingly
false “complaint” can be filed. The United States Department of Justice investigates both
individual and departmental police misconduct. Its website “explains how you can file a
complaint with DOJ if you believe that your rights have been violated.” 4 (Emphasis
added). Moreover criminal accusations, “complaints,” are investigated by the FBI, the Civil
Rights Division handles constitutional or civil rights violations, or “[y]ou may also file a
complaint online at www.ada.gov/filing_complaint.htm” (emphasis added) under the
Americans with Disabilities Act. Under the very narrow definition that “file a complaint”
means only a Crim.R. 3 “complaint,” demonstrably false complaints filed with any of these
agencies would escape prosecution under R.C. 2921.15(B). In our opinion, the legislature
did not intend to exclude false federal or false non-criminal misconduct accusations from
R.C. 2921.15(B) prosecution.
{¶ 25} Third, practically speaking, when an accusation is made against a police
officer, reasonable authorities conduct a thorough investigation. When that investigation
reveals the accusation is demonstrably false, there would never be a criminal “complaint”
against the officer, as defined by Crim.R. 3, because the accusation was shown to be
false. No one would allow criminal prosecution, initiated by the filing of a criminal
“complaint,” when the accusation is provably false. Therefore, limiting prosecution for a
false “complaint” against a police officer only to where a Crim.R. 3 criminal “complaint”
has been filed would rarely occur and would fail to address the damage caused by a false
complaint especially when the accusation can be proven false beyond a reasonable
4 https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-
justice, accessed August 3, 2019.
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doubt, which is what eventually would be required for a conviction under R.C. 2921.15(B).
{¶ 26} We recognize the decisions of several courts that have interpreted the
terminology “file a complaint” in R.C. 2921.15(B) to mean file a criminal complaint as that
term is defined in Crim.R. 3. See, e.g., State v. McCaleb, 12th Dist. Madison No. CA2009-
01-002, 2009-Ohio-6554, ¶ 17-23 (holding that an unsigned, faxed State Patrol
misconduct accusation form, disputing a trooper’s trial testimony, was not a “complaint”);
Akron v. Davenport, 9th Dist. Summit No. 21552, 2004-Ohio-435, ¶ 15-18 (giving a tape
recorded statement to a supervisor accusing an arresting officer of punching the offender
three times, with no further action, did not constitute filing a complaint,); Cleveland v.
Lester, 143 Ohio Misc.2d 39, 2007-Ohio-5375, 876 N.E.2d 1318, ¶ 7 (completion of a
citizen complaint form at the Cleveland Police Office of Professional Standards did not
constitute filing a complaint, adopting the Crim.R. 3 definition); State v. English, 120 Ohio
Misc.2d 16, 2002-Ohio-5440, 776 N.E.2d 1179, ¶ 11-13 (filling out an Elyria Police
Department “Citizen Complaint Report” did not constitute filing a complaint, adopting the
Crim.R. 3 definition).
{¶ 27} One could distinguish Davenport because that accusation was only by a
tape recorded statement to a detective, not a written and signed accusation. McCaleb too
involved an unsigned, faxed accusation form disputing a trooper’s trial testimony, and
there was no follow-up by the defendant. And Lester and English, municipal court cases,
have less precedential influence. But we do not dwell on distinctions with these cases
because we conclude they are all fundamentally wrong. These cases each suggest or
determine that a defendant must file a Crim.R. 3 type of complaint in court to be
prosecuted for a false accusation of police misconduct. They each fail to recognize that
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a private citizen has no authority and cannot file a criminal complaint in court. They each
fail to recognize that an accusation found to be demonstrably false upon thorough
investigation will never result in a Crim.R. 3 complaint against the officer because the
accusation is known to be false. Yet those cases incorrectly use what we believe to be a
wholly inapplicable and narrow definition for interpreting R.C. 2921.15(B). Each of the
cases also fails to address the intentional harm the legislature desired to prohibit that is
caused by knowingly making a false accusation, “a false complaint,” whether criminal,
civil, or administrative, against a peace officer.
{¶ 28} Hanson’s written submission was a form titled as a “Witness Statement”
mostly containing his own handwriting describing the assaults. Although not notarized,
the bottom of the form stated: “By signing my name below, I swear or affirm that this
statement is true to the best of my knowledge and belief.” It was signed by Hanson and
a “witnessing officer.” Given the facts we have detailed and this document, we conclude
the evidence was sufficient to find that Hanson filed a complaint for purposes of R.C.
2921.15(B).
{¶ 29} Hanson’s first assignment of error is overruled.
Second Assignment of Error
{¶ 30} Under his second assignment of error, Hanson contends that there was
insufficient evidence for the trial court to find that he “knowingly” filed a complaint within
the meaning of R.C. 2921.15(B). “When a defendant challenges the sufficiency of the
evidence, [he] is arguing that the State presented inadequate evidence on an element of
the offense to sustain the verdict as a matter of law.” State v. Matthews, 2d Dist.
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Montgomery No. 27718, 2018-Ohio-2424, ¶ 7, citing State v. Hawn, 138 Ohio App. 3d
449, 471, 741 N.E.2d 594 (2d Dist.2000). “An appellate court's function when reviewing
the sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. The 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.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶ 31} A person acts “knowingly” when he is aware that his conduct probably will
cause a certain result or will probably be of a certain nature. R.C. 2901.22(B). Here the
comprehensive documentation submitted to the court reveals Hanson was arrested at
about 3:00 a.m. on October 27, 2017. He was released from jail on October 28, 2017 at
9:41 a.m. He appeared at the Miamisburg police department to make his complaint at
about 5:00 p.m. that day. Sgt. Keefer met with him and, among other things, had him sign
a printout of R.C. 2921.15 describing the offense of making a false allegation against a
peace officer. The printed date and time on that form is “10/28/2017, 5:27PM.” Hanson
completed his witness statement. The police reports and medical records assembled
provide absolutely no support for Hanson’s allegations. The trial court commented based
on the documentation that there was “more than sufficient evidence to find [Hanson]
guilty.” Construing the circumstances and documentation in favor of the State, we agree.
{¶ 32} The second assignment of error is overruled.
Third Assignment of Error
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{¶ 33} Under his third assignment of error, Hanson contends that R.C. 2921.15 is
unconstitutional because it criminalizes free speech. Upon review, we find that Hanson
waived his challenge to the constitutionality of R.C. 2921.15 by failing to raise the issue
at the trial court level. State v. Awan, 22 Ohio St. 3d 120, 489 N.E.2d 277 (1986),
syllabus. While reviewing courts have discretion to consider a waived constitutional
challenge to a statute, State v. Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 16, in exercising our discretion, we decline to consider the constitutionality
of R.C. 2921.15 for the first time on appeal. Accordingly, Hanson’s third assignment of
error is overruled.
Conclusion
{¶ 34} Having overruled each of Hanson’s assignments of error, we affirm the
judgment of the trial court.
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WELBAUM, P.J., concurs.
DONOVAN, J., concurs in judgment only.
Copies sent to:
Christine L. Burk
Hilary Lerman
Hon. Robert W. Rettich, III