State v. Pitts

[Cite as State v. Pitts, 2022-Ohio-4172.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220080
TRIAL NO. C-22CRB-230A
Plaintiff-Appellee, :
vs. :
O P I N I O N.
GREGORY PITTS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 23, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffman,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Gregory Pitts appeals the trial court’s judgment
finding him guilty of resisting arrest, arguing that it was based on insufficient evidence
and against the manifest weight of the evidence. We affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} Pitts was charged with domestic violence, in violation of R.C. 2919.25,
and resisting arrest, in violation of R.C. 2921.33(B). The domestic-violence charge was
dismissed for want of prosecution. The court held a bench trial on the resisting-arrest
charge.
{¶3} Officer Nick Michael, with the Mount Healthy Police Department,
provided the only testimony. He testified that he was one of the officers who responded
to the home. Pitts’s mother, C.P., was outside of the home and told the officers that
Pitts had “poked her in the head several times,” yelled at her, and pushed her.
{¶4} Michael testified that the officers asked Pitts to come out of the home,
but Pitts refused. The state played the police officers’ body-worn-camera video
(“BWC”).
BWC showed the officers’ intent to arrest Pitts and Pitts’s resistance
{¶5} The footage showed the officers first encountering a visibly upset C.P.
She sobbed as she explained what had happened. The officers entered the house and
asked Pitts to come and speak with them. Pitts stood at the top of the steps in the bi-
level home and responded, “No, last time y’all took me to jail and I didn’t do nothing,
I’m not doing that again.” He stated repeatedly that he “didn’t do nothing,” followed
by, “For what? What did I do? Y’all [are going to] try to take me to jail.” He then went
into the kitchen.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Once the officers entered the home, Pitts ran into the dining room,
yelling repeatedly that he did not do anything. The officers caught up with Pitts before
he could exit out the back door and struggled with him as they attempted to handcuff
him, but Pitts went under the table and held onto it to avoid being subdued.
{¶7} While the officers made repeated commands for Pitts to let go of the
table, turn around, put his hands behind his back, and stop resisting, Pitts stated that
he did not want to go to jail. The officers told Pitts that they would tase him unless he
allowed them to handcuff him. Pitts did not allow them to handcuff him, so three
officers deployed their tasers. The first two deployments missed. The BWC showed the
prongs lying on the floor near Pitts. The third deployment struck Pitts, but it had no
effect.
{¶8} The officers had to flip the table over and wrestle further with Pitts
before they were able to subdue and handcuff him, which required the assistance of
five officers. Michael kneeled onto the floor to assist with the handcuffing. Once Pitts
was subdued, the BWC showed a prong sticking out of Michael’s knee.
{¶9} Pitts was taken to the hospital for examination. He told the Mt. Healthy
police misconduct sergeant, Greg Nolte, that the officers intended to take him to jail
and there was no physical evidence that he had harmed his mother.
II. Law and Analysis
{¶10} In his sole assignment of error, Pitts argues that his conviction was
based on insufficient evidence and, in the alternative, that he is entitled to a new trial
as the conviction was against the manifest weight of the evidence.
A. The trial court’s judgment was based on sufficient evidence
{¶11} The test for determining the sufficiency of the evidence is whether “after
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OHIO FIRST DISTRICT COURT OF APPEALS
viewing the probative evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt.” State v. MacDonald, 1st
Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Sufficiency is a question of law for the
court to determine and this court should not weigh the evidence. Id. at ¶ 12.
{¶12} Pitts was convicted of resisting arrest under R.C. 2921.33(B), which
provides, “No person, recklessly or by force, shall resist or interfere with a lawful arrest
of the person or another person and, during the course of or as a result of the resistance
or interference, cause physical harm to a law enforcement officer.”
Pitts’s arrest was lawful
{¶13} A “lawful arrest” is an element of resisting arrest, and the prosecution
must prove beyond a reasonable doubt that the arrest was lawful. In re M.H., 2021-
Ohio-1041, 169 N.E.3d 971, ¶ 25 (1st Dist.). “To be a lawful arrest, the arresting officer
must have probable cause or a reasonable basis to believe that the offense for which
the defendant has been arrested did, in fact, occur.” Id., quoting State v. Glenn, 1st
Dist. Hamilton No. C-030356, 2004-Ohio-1489, ¶ 23.
{¶14} Pitts argues for the first time in his reply brief that the officers had no
probable cause or reasonable basis to arrest him. Pitts may not raise an argument for
the first time in his reply and we need not consider this argument. State v. Svoboda,
2021-Ohio-4197, 180 N.E.3d 1277, ¶ 88 (1st Dist.).
{¶15} Pitts argues that he did not know that he was under arrest because when
he began to resist, the officers had not indicated that he was under arrest. This
argument is without merit. Pitts stated on the BWC that he was concerned that he was
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OHIO FIRST DISTRICT COURT OF APPEALS
going to be arrested and he did not want to go to jail. And even if that were not enough,
Pitts told Sergeant Nolte that he knew that the officers intended to arrest him.
{¶16} Even if Pitts initially was unaware that the officers intended to arrest
him, it quickly became obvious that the officers intended to detain and arrest Pitts.
They (1) chased Pitts through the house, (2) threatened to—and did—tase Pitts, and
(3) repeatedly told Pitts to put his hands behind his back and to stop resisting. Pitts
concedes that he struggled with officers while they commanded him to stop resisting
and tried to handcuff him. Nevertheless, Pitts continued to vigorously resist to the
point of destroying items in the dining room as the officers tried to subdue him.
{¶17} Officers were engaged in a lawful arrest when Pitts resisted.
Pitts’s resistance caused Officer Michael’s injury
{¶18} Pitts argues that his resistance did not cause Officer Michael’s injury. In
his appellate brief, Pitts argues that his resistance was neither the proximate cause nor
the cause-in-fact of Michael’s injury. But in his reply brief he concedes that his
resistance was the cause-in-fact of Michael’s injury, but not the proximate cause.
{¶19} “[I]t is well established that Ohio law generally defines ‘cause’ in
criminal cases identically to the definition of ‘proximate cause’ in civil cases.” State v.
Carpenter, 2019-Ohio-58, 128 N.E.3d 857, ¶ 51 (3d Dist.). To establish that a
defendant’s conduct caused a certain result, this court must determine if the conduct
was both the actual and legal cause of the result. State v. Lovelace, 137 Ohio App.3d
206, 216, 738 N.E.2d 418 (1st Dist.1999). Actual causation may be shown even if the
defendant’s conduct was not the sole cause of the result. Carpenter at ¶ 52. The
conduct can be part of a chain of events causing an injury. Id. The legal—or
“proximate” cause—involves the foreseeability of the result. Id. at ¶ 53.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Pitts concedes that his behavior was the actual cause of Michael’s
injuries. And Pitts’s actions were also the proximate cause of Michael’s injuries. His
conduct, as seen on the BCW, involved flailing his body and struggling. A reasonable
person in the same or similar circumstances should have known that the officers may
have missed when they deployed their tasers because Pitts was a moving target. Pitts’s
continued resistance required Michael and the other officers to kneel on the floor, in
the vicinity of the prongs that missed Pitts, to assist with handcuffing Pitts. The footage
shows Michael’s discovery that he had kneeled on one of the prongs as it was sticking
out of his knee and still attached to the wire.
{¶21} Sufficient evidence supports Pitts’s conviction.
B. The conviction was not against the manifest weight of the evidence
{¶22} In reviewing a weight-of-the-evidence claim, 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 conflicts in the
evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v. Bailey,
1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v. Thompkins,
78 Ohio St.3d 380, 678 N.E.2d 541 (1997). Evidence that is susceptible to more than
one construction should be construed consistently with the judgment. In re J.C., 1st
Dist. Hamilton No. C-180493, 2019-Ohio-4027, ¶ 20.
{¶23} The weight of the evidence and witness credibility are primarily for the
trier of fact. Bailey at ¶ 63. In reviewing a challenge to the weight of the evidence, this
court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-180493,
2020-Ohio-1230, ¶ 17, quoting Thompkins. But this court will not substitute its
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment for that of the trier of fact on the issue of witness credibility unless it is
patently apparent that the trier of fact lost its way in arriving at its verdict. Bailey at ¶
63.
{¶24} This court should reverse a conviction and grant a new trial only in
“exceptional cases in which the evidence weighs heavily against the conviction.” Id.“The trier of fact is in the best position to judge the credibility of the witnesses and the
weight to be given to the evidence presented.” State v. Carson, 1st Dist. Hamilton No.
C-180336, 2019-Ohio-4550, ¶ 16.
{¶25} The video showed that Pitts knew he was being arrested and he
strenuously resisted—running, hiding under the table, and flailing his body. There is
no dispute that Michael was injured when he knelt on a taser prong while attempting
to handcuff Pitts. The trial court did not lose its way.
{¶26} We overrule Pitts’s assignment of error.
III. Conclusion
{¶27} Pitts’s conviction was based on sufficient evidence and the trial court
did not lose its way or create a manifest injustice. Pitt’s sole assignment of error is
overruled. The trial court’s judgment is affirmed.
Judgment affirmed.
CROUSE, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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