[Cite as State v. Fisher, 2013-Ohio-1045.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.
-vs-
                                                   Case No. 12 CAA 07 0041
ARLIN FISHER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 12-CR-I-04-0134


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         March 19, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         DAVID H. BIRCH
BRIAN J. WALTER                                2 West Winter
Assistant Prosecuting Attorney                 Delaware, Ohio 43015
Delaware County Prosecutor's Office
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 12 CAA 07 0041                                                2

Hoffman, J.


       {¶1}    Defendant-appellant Arlin Fisher appeals his conviction entered by the

Delaware County Court of Common Pleas, on one count of assault of a corrections

officer, following a jury trial. Plaintiff-appellee is the state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}    Appellant was incarcerated in the Delaware County Jail at all times

relevant to this appeal. At approximately 1:00 a.m. on April 1, 2012, Corrections Officer

Robert Quinn received a telephone call from the booking station, advising him Appellant

was to be moved to another cell. At the time, Appellant was housed in an isolated cell

in the segregated area of the jail. The plan was to move Appellant to another cell in the

same area, but in which Appellant could be monitored via camera.              C.O. Quinn

contacted Appellant using the facility intercom system and advised him he would be

moving shortly and to pack his belongings.        Appellant responded over the intercom he

was not going to move.

       {¶3}    C.O. Quinn walked to Appellant's cell and spoke with him briefly.

Appellant, who was lying down on his cot, reiterated his intention not to move that

evening. C.O. Quinn contacted his supervisor, Officer in Charge Stacie Beck. OIC

Beck, First Shift Sargent Etta Jo Sivier, and C.O. Vanness Provitt joined C.O. Quinn at

Appellant's cell to assist. Sgt. Sivier contacted central control to open the door to

Appellant's cell. The officers spoke with Appellant and attempted to persuade him to

voluntarily move. Appellant refused to comply.

       {¶4}    The officers entered the cell and began to collect Appellant's personal

belongings. The officers continued to calmly speak with Appellant, advising him he
Delaware County, Case No. 12 CAA 07 0041                                                 3


needed to get up. Appellant repeated he was tired of moving and would not do so.

C.O. Quinn and C.O. Provitt walked toward Appellant. As they approached, Appellant

raised his arm from underneath the blanket and motioned to the officers he did not

intent to move to a different cell that evening. C.O. Quinn grabbed Appellant's wrist and

nudged him to get off of the bed. Appellant moved up from his reclined position and

attempted to bite C.O. Quinn. As the officers attempted to subdue Appellant, Appellant

continued to try to bite C.O. Quinn. Appellant also worked his fingernails into C.O.

Quinn's forearm, resulting in multiple scratches. Another corrections officer subdued

Appellant with a taser gun.

       {¶5}   At trial, C.O. Quinn testified Appellant made multiple attempts to bite him

prior to the other officer deploying the taser gun. Appellant refused to comply with the

officer's orders to stop the struggle. At one point, while both C.O. Quinn and C.O.

Provitt were on top of Appellant, OIC Beck was able to place handcuffs on one of

Appellant's wrist.   A fifth officer arrived and was able to secure both of Appellant's

wrists. C.O. Provitt, Sgt. Sivier, and OIC Beck corroborated C.O. Quinn's testimony.

Sgt. Sivier added Appellant put up such a struggle, she was required to dry stun him

with the taser three times before he complied.        Appellant did not require medical

attention as a result of the incident.

       {¶6}   On April 6, 2012, the Delaware County Grand Jury indicted Appellant on

one count of assault of a corrections officer, in violation of R.C. 2903.13(A), a felony of

the fifth degree. The matter proceeded to jury trial on June 14, 2012. After hearing all

the evidence and deliberations, the jury found Appellant guilty.          The trial court

sentenced Appellant to ten months in prison.
Delaware County, Case No. 12 CAA 07 0041                                                   4


       {¶7}   It is from this conviction Appellant appeals, raising the following

assignments of error:

       {¶8}   “I. THE TRIAL COURT ERRED AND THEREBY DENIED THE

APPELLANT DUE PROCESS OF LAW BY OFFERING THE JURY WRONG AND OR

MISLEADING INSTRUCTIONS OF THE LAW.

       {¶9}   “II. THE CONVICTION FOR ASSUALT [SIC] WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                                 I

       {¶10} In his first assignment of error, Appellant asserts the trial court erred by

offering the jury wrong and/or misleading instructions of law which resulted in a violation

of his right to due process.

       {¶11} Appellant refers to two instances in support of his position.         The first

alleged error occurred during voir dire when the trial court instructed the jury the crime

of assault as charged required a conviction of a crime at the time of the incident. The

second alleged error occurred during Appellant's direct examination when the trial court

interrupted questioning to offer a partial instruction of the mens rea "knowingly" without

providing a proper definition of the term.

       {¶12} Appellant concedes he failed to object on both occasions; therefore, has

waived all but plain error. State v. Policaro, 10th Dist. No. 06AP–913, 2007–Ohio–1469,

¶ 6. Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an

appellate court even though they were not brought to the attention of the trial court. To

constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2)

that is plain or obvious, and (3) that affected substantial rights, i.e., affected the
Delaware County, Case No. 12 CAA 07 0041                                                    5

outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002–Ohio–68. Even if an

error satisfies these prongs, appellate courts are not required to correct the error.

Appellate courts retain discretion to correct plain errors. Id; State v. Litreal, 170 Ohio

App.3d 670, 2006–Ohio–5416, ¶ 12. Courts are to notice plain error under Crim.R.

52(B) “with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” Barnes, supra (Citation omitted).

       {¶13} We shall review each instance separately.

       {¶14} During voir dire, the trial court informed the prospective jurors Appellant

was charged with the crime of assault. The trial court continued, "[s]pecifically, that he

knowingly caused or knowingly attempted to cause physical harm to Robert Quinn, and

that the offense occurred in or on the grounds of a local correctional facility, the victim of

the offense is an employee of the local correctional facility, and [Appellant] was

convicted of a crime at the time of the incident". Transcript of June 14, 2012 Jury Trial,

Vol. I at 10.   Appellant contends the trial court’s statement was incorrect as R.C.

2903.13 “does not even speak to the prior status of the alleged offender.” Appellant’s

Brief at 8. Appellant concludes the trial court’s statement creates in the minds of the

jurors “they are dealing with a convicted criminal” from the onset of trial. Id.

       {¶15} Appellant was convicted of R.C. 2903.13(A), which provides: "No person

shall knowingly cause or attempt to case physical harm to another." The conviction was

a felony of the fifth degree because the offense occurred "in or on the grounds of a local

correctional facility, the victim of the offense [was] an employee of the local correctional

facility, and the offense [was] committed by a person who is under custody in the facility
Delaware County, Case No. 12 CAA 07 0041                                                  6


subsequent to the person's arrest for any crime, subsequent to the person's being

charged with or convicted of any crime." R.C. 2903.13(C)(2)(b).

       {¶16} We conclude that no outcome-determinative plain error occurred. The trial

court made the statement at the very beginning of trial, before a panel had been seated

and before any evidence had been presented.               The evidence was subsequently

presented to the jury, after which the trial court provided a complete instruction. The

judge's shorthand references to legal concepts during voir dire cannot be equated to

final instructions given shortly before the jury's deliberations. Additionally, prior to the

prospective jury panel entering the courtroom, the trial court questioned defense

counsel regarding Appellant’s status at the time of the offense. The trial court asked,

“So I can take out the other language and say the conviction of a crime?”, to which

defense counsel responded, “Yes, Your Honor.” Tp. Vol. I at 4. Accordingly, any claim

of error is meritless under the invited error doctrine.

       {¶17} Appellant also challenges a statement made by the trial court while

defense counsel was conducting his direct examination.           Defense counsel asked

Appellant, "Did you deliberately try to injure Corrections Officer Quinn?" The trial court

interjected, "I'm going to interrupt. That isn't the issue before the jury. The issue is

knowingly cause or attempt to cause, not intentionally."

       {¶18} Whether or not the trial court's interjection was appropriate is a question

which need not be answered at this time. The trial court's instruction was correct.

Additionally, following the presentation of evidence, the trial court again properly and

completely instructed the jury. We find no plain error resulted from the trial court’s

interjection.
Delaware County, Case No. 12 CAA 07 0041                                                 7


      {¶19} Appellant's first assignment of error is overruled.

                                                II

      {¶20} In his second assignment of error, Appellant challenges his conviction as

against the sufficiency and manifest weight of the evidence.

      {¶21} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. “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.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia

(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. On review for manifest weight, a

reviewing court is to examine the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses and determine “whether in resolving

conflicts in the evidence, the jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, 1997–Ohio–52. The granting of a new

trial “should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” Martin at 175, 485 N.E.2d 717. We note “circumstantial

evidence may be more certain, satisfying and persuasive than direct evidence.” State v.

Richey, 64 Ohio St.3d 353, 595 N.E.2d 915, 1992–Ohio–44. It is to be given the same

weight and deference as direct evidence. Jenks, supra.
Delaware County, Case No. 12 CAA 07 0041                                               8


       {¶22} Specifically, Appellant asserts his conviction for assault, in violation of

R.C. 2903.13(C)(2)(b), is against the manifest weight of the evidence as the State failed

to established the requisite mens rea of "knowingly". Appellant submits the evidence

was unclear as to how the corrections officer received his scratches, and whether those

scratches were the result of voluntary or involuntary acts of Appellant.

       {¶23} Based upon our review of the record, and as set forth in the Statement of

the Facts and Case, supra, we find Appellant's conviction was not against the manifest

weight of the evidence or based upon insufficient evidence.

       {¶24} C.O. Quinn testified as to the events leading up to his physical altercation

with Appellant. Despite repeated requests, Appellant would not get out of bed and

move to a different cell.    When C.O. Quinn tried to nudge Appellant off his bed,

Appellant tried to bite the officer. Appellant continued his attempts to bite the officer

until he was tased by other jail officials. C.O. Quinn also suffered scratches on his

forearm caused by Appellant.

       {¶25} Appellant’s second assignment of error is overruled.

       {¶26} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur                            s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN

                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY

                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER
Delaware County, Case No. 12 CAA 07 0041                                        9


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ARLIN FISHER                             :
                                         :
       Defendant-Appellant               :         Case No. 12 CAA 07 0041


       For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY


                                         s/ Sheila G. Farmer __________________
                                         HON. SHEILA G. FARMER
