[Cite as State v. Munoz, 2013-Ohio-4987.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                  :

                Plaintiff-Appellee,             :
                                                              No. 12AP-299
v.                                              :         (C.P.C. No. 10CR-06-3223)

Lucio M. Munoz,                                 :       (REGULAR CALENDAR)

                Defendant-Appellant.            :



                                        D E C I S I O N

                                  Rendered on November 12, 2013


                Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                for appellee.

                Todd W. Barstow & Associates, and Todd W. Barstow, for
                appellant.


                 APPEAL from the Franklin County Court of Common Pleas.

T. BRYANT, J.
        {¶1}    Defendant-appellant, Lucio M. Munoz, filed an appeal from a judgment of
conviction and sentence where the Franklin County Court of Common Pleas found him
guilty of assault, in violation of R.C. 2903.13. For the following reasons, we affirm the
judgment of the trial court.
        {¶2}    Appellant was indicted on one count of assault, a felony of the fourth
degree, in violation of R.C. 2903.13. A jury trial was conducted, and appellant was
found guilty. During the trial, three witnesses testified for the prosecution.
        {¶3}    The first witness to testify at the trial was David Salsgiver, a Columbus
Police Officer. Officer Salsgiver testified that, on May 16, 2010, he responded to a call
regarding a gun being fired into the air or at a house. The 911 caller gave a description
No. 12AP-299                                                                              2


of the car, which was located by another officer, Debra Paxton.           Officer Salsgiver
proceeded to the location and arrived to find Officer Paxton was already present and
had an individual in her cruiser. Officer Paxton was standing on the sidewalk talking to
a male and female.      Officer Benjamin Hetzer was also present and was talking to
appellant. Officer Salsgiver approached Officer Hetzer because appellant had his hands
in the front of his pants, and, while Officer Salsgiver approached, Officer Hetzer
performed a pat down. Officer Hetzer began asking appellant questions, but appellant
refused to give his social security number or last name. Appellant again put his hands
into his pants, and Officer Hetzer asked him not to do so. Officer Salsgiver then asked
appellant to remove his hands, and, at that time, appellant began "blading his body."
(Tr. 194.) Officer Salsgiver explained that appellant turned his body so Officer Salsgiver
could not see the front of his body, only the side, and that usually indicates the person is
trying to hide something or possibly may be getting ready to do something offensive.
(Tr. 194-95.)    Officer Salsgiver explained he believed appellant was "going for an
offensive manner" so he grabbed appellant's left arm to remove it from his pants. (Tr.
196.) Then appellant shifted his weight backwards as if he was going to strike or shove
Officer Salsgiver. Appellant pulled away with his left arm and came around with his
right arm, and his elbow struck Officer Salsgiver in the head.          (Tr. 196.)   Officer
Salsgiver's impression was that appellant deliberately struck him, not that it was a
mistake or that appellant was tripping and falling. (Tr. 197.) Officer Salsgiver explained
that he thought it was a deliberate action because the action was not an attempt to flee.
(Tr. 197.) After appellant struck him, Officer Salsgiver pushed into appellant, and they
fell on the ground struggling. Officer Salsgiver struck appellant on the left side of his
face. Then Officer Paxton deployed her taser. (Tr. 198.)
       {¶4}     Officer Hetzer testified that he was "dispatched on a gun run" and
responded to the area where Officer Paxton found the car. (Tr. 236.) Officer Hetzer
testified that, after patting appellant down, he spoke to appellant and attempted to
identify him, but appellant did not respond with his social security number and kept
saying his name so fast that Officer Hetzer could not understand him. Officer Hetzer
testified that appellant was "[r]ude, disrespectful, just didn’t want to have any part with
us." (Tr. 241.) Appellant kept putting his hands in his pockets or inside his pants.
No. 12AP-299                                                                               3


Officer Salsgiver was standing between Officer Hetzer and appellant so Officer Hetzer
could not clearly see appellant. Officer Salsgiver kept telling appellant to keep his hands
out of his pants. Officer Salsgiver approached appellant and grabbed one of appellant's
hands. Officer Hetzer saw appellant elbow Officer Salsgiver in the face. It looked to
Officer Hetzer as a deliberate act because, if he was falling backwards, his elbow would
not have come up. (Tr. 242-43.) The two went to the ground and struggled until Officer
Paxton used her taser.
         {¶5}   Finally, Officer Paxton testified. She stated that she found the vehicle that
the police were looking for and four individuals standing near the vehicle. She secured
one of the men in her cruiser. When the other officers arrived, she asked them to obtain
information from the other individuals. As the other two officers were questioning
appellant, she began to search the vehicle. She heard elevated voices during their
conversation and thought cooperation was an issue. Then a scuffle ensued between
appellant and the officers. Ten to fifteen other people began to arrive, and she was
worried about the officers' safety. She decided to use her taser on appellant, and the
officers were able to handcuff him.
         {¶6}   After this testimony, the jury found appellant guilty of assault as charged
in Count 1 of the indictment and further found that Officer Salsgiver was a peace officer
in the performance of his official duties at the time of the assault. The trial court
sentenced appellant to three years of community control.
         {¶7}   Appellant filed a motion for leave to file a delayed appeal, which was
granted. Appellant then filed a notice of appeal and raised the following assignment of
error:
                THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
                OF DUE PROCESS OF LAW AS GUARANTEED BY THE
                FOURTEENTH AMENDMENT TO THE UNITED STATES
                CONSTITUTION AND ARTICLE ONE SECTION TEN OF
                THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF
                ASSAULT ON A PEACE OFFICER AS THAT VERDICT WAS
                NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS
                ALSO AGAINST THE MANIFEST WEIGHT OF THE
                EVIDENCE.

         {¶8}   By his assignment of error, appellant contends that his conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence.
No. 12AP-299                                                                                4


There are different standards of review used for sufficiency and manifest weight of the
evidence. The standard of review for sufficiency of the evidence is if, while 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 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d
89 (1997). "In essence, sufficiency is a test of adequacy. Whether the evidence is legally
sufficient to sustain a verdict is a question of law." State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). "A verdict will not be disturbed unless, after viewing the evidence in a
light most favorable to the prosecution, it is apparent that reasonable minds could not
reach the conclusion reached by the trier of fact." State v. Ingram, 10th Dist. No. 11AP-
1124, 2012-Ohio-4075, ¶ 18, citing State v. Treesh, 90 Ohio St.3d 460, 484 (2001). The
test for determining whether a conviction is against the manifest weight of the evidence
differs somewhat from the test as to whether there is sufficient evidence to support the
conviction.   With respect to manifest weight, the evidence is not construed most
strongly in favor of the prosecution, but the court engages in a limited weighing of the
evidence to determine whether there is sufficient competent, credible evidence which
could convince a reasonable trier of fact of the appellant's guilt beyond a reasonable
doubt. See State v. Conley, 10th Dist. No. 93AP-387 (Dec. 16, 1993).
       {¶9}   We first consider appellant's claim that his conviction for assault was not
supported by sufficient evidence. Appellant argues that he did not knowingly strike
Officer Salsgiver but, instead, committed an instinctive, accidental flailing motion that
made contact with Officer Salsgiver's head.
       {¶10} Former R.C. 2903.13 states, in part: "(A) No person shall knowingly cause
or attempt to cause physical harm to another. * * * (C)(3) If the victim of the offense is a
peace officer, * * * while in the performance of their official duties, assault is a felony of
the fourth degree." R.C. 2901.22(B) defines "knowingly," as: "A person acts knowingly,
regardless of his purpose, when he is aware that his conduct will probably cause a
certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist." " 'Knowingly'
does not require the offender to have the specific intent to cause a certain result. That is
No. 12AP-299                                                                             5


the definition of 'purposely.' " State v. Dixon, 8th Dist. No. 82951, 2004-Ohio-2406,
¶ 16, quoting State v. Huff, 145 Ohio App.3d 555 (1st Dist.2001). "[W]hether a person
acts knowingly can only be determined, absent a defendant's admission, from all the
surrounding facts and circumstances, including the doing of the act itself." State v.
Sorrells-Johnson, 10th Dist. No. 07AP-1029, 2008-Ohio-3469, ¶ 18, citing Dixon.
       {¶11} In this case, Officer Hetzer testified that appellant was not cooperative
when asked for identifying information and was rude and disrespectful. Appellant kept
putting his hands in his pockets or inside his pants. Officers Hetzer and Salsgiver both
testified that appellant was asked several times to remove his hands from his pants, but
would not comply. Officer Salsgiver testified that appellant began "blading his body"
and turned his body so Officer Salsgiver could only see the side of him. (Tr. 194.)
Officer Salsgiver believed appellant was "going for an offensive manner," so he grabbed
appellant's left arm to remove it from his pants and then appellant shifted his weight
backwards, pulled away with his left arm, came around with his right arm, and his elbow
struck Officer Salsgiver in the head. (Tr. 196.) Both Officers Hetzer and Salsgiver
testified that appellant's strike to Officer Salsgiver was a deliberate action. Appellant's
act of flailing his arms with Officer Salsgiver within close proximity was likely to result
in contact with Officer Salsgiver.    Thus, his act of striking Officer Salsgiver was a
reasonable and probable consequence of his own action.
       {¶12} In State v. Trikilis, 9th Dist. No. 04CA0096-M, 2005-Ohio-4266, the
court found there was sufficient evidence supporting assault on a peace officer where the
defendant flailed his arms striking the police officer in the face while officers were
attempting to restrain him. The officer testified that "he felt pain immediately after
being face-to-face with Appellant and observing him flailing his arms." Id. at ¶ 23.
Appellant's argument that he was accidentally flailing his arms after Officer Salsgiver
grabbed his left arm is not sufficient to overcome that appellant knowingly struck
Officer Salsgiver. As stated, a person acts knowingly, regardless of his purpose, when he
is aware that his conduct will probably cause a certain result or will probably be of a
certain nature. When flailing one's arms while in close proximity to another, it is
probable that one will strike the other.
No. 12AP-299                                                                         6


      {¶13} Given this evidence, viewed 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.       Appellant's conviction was supported by sufficient
evidence.
      {¶14} With respect to manifest weight, the evidence is not construed most
strongly in favor of the prosecution, but we find that there is sufficient competent,
credible evidence which could convince a reasonable trier of fact of appellant's guilt
beyond a reasonable doubt. Appellant's conviction is not against the manifest weight of
the evidence. Appellant's assignment of error is overruled.
      {¶15} For the foregoing reasons, appellant's assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                   Judgment affirmed.

                        KLATT, P.J., and DORRIAN, J., concur.

             T. BRYANT, J., retired, formerly of the Third Appellate
             District, assigned to active duty under authority of the Ohio
             Constitution, Article IV, Section 6(C).

                       _____________________________
