[Cite as State v. Allsup, 2011-Ohio-404.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY



STATE OF OHIO,                                             CASE NO. 6-10-09

   PLAINTIFF-APPELLEE,

  v.

JOSEPH HENRY ALLSUP, JR.,                                    OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. 20092079 CRI

                                       Judgment Affirmed

                            Date of Decision: January 31, 2011




APPEARANCES:

        Marc S. Triplett, for Appellant

        Maria Santo, for Appellee
Case No. 6-10-09




WILLAMOWSKI, J.

       {¶1} Defendant-appellant, Joseph Henry Allsup, Jr., brings this appeal from

the judgment of the Court of Common Pleas of Hardin County finding him guilty

of failure to comply with an order or signal of a police officer, felonious assault on

a peace officer with a deadly weapon, vandalism, and operating a vehicle while

under the influence. For the reasons set forth below, the judgment is affirmed.

       {¶2} On April 3, 2009, just past midnight, Officer Deckling of the Kenton

Police Department stopped at Jumpin’ Jim’s carry-out in Kenton to make a

personal purchase while on duty. Officer Deckling was dressed in the standard-

issued police uniform and was driving a marked police cruiser. While Officer

Deckling was making his purchase, he recognized another customer as Wayne

Allsup (“Wayne”) in the carry-out buying beer. Officer Deckling recalled that

there may be an active warrant out for Wayne’s arrest. Officer Deckling returned

to his police cruiser and radioed a request for dispatch to confirm whether there

was indeed an active warrant for Wayne’s arrest.

       {¶3} From his cruiser, Officer Deckling observed that Wayne had entered

into the passenger side of an older model pick-up truck parked in the parking lot of

the carry-out. The driver of the truck was Wayne’s brother, Joseph Allsup, Jr.

(“Allsup”). The truck remained parked while Wayne conversed with another man

through the passenger side widow.

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       {¶4} Upon dispatch’s confirmation that there was an active warrant for

Wayne’s arrest, Officer Deckling approached the parked truck on the passenger

side and informed Wayne that there was a warrant for his arrest and that he needed

to exit the truck. Wayne then looked at Allsup and said, “Let’s go, dude.” Allsup

put the truck in reverse and left the parking lot. Officer Deckling returned to his

vehicle and began to follow the pick-up truck with the overhead lights and siren on

the cruiser activated.

       {¶5} After pursuing the pick-up truck a mile south of town, Officer

Deckling noticed that the truck had stopped in the middle of the road. Officer

Deckling stopped his vehicle approximately fifteen to twenty feet behind the truck.

Allsup then put his truck into reverse and rammed Officer Deckling’s police

cruiser. The impact of the two vehicles crumpled the hood on driver’s side of the

police cruiser and disabled the driver’s side headlight. Officer Deckling suffered

an injury to his leg as a result of the collision. However, Officer Deckling was

able to continue the pursuit of Allsup’s truck because impact of the collision failed

to totally disable his vehicle. Officer Deckling radioed dispatch for assistance.

Additional vehicles from both the Kenton Police Department and the Hardin

County Sheriff’s Office joined the pursuit.

       {¶6} While Officer Deckling followed the truck, Wayne began throwing

various items, which included beer bottles, metal objects and a rake, out of the


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passenger side window in the direction of Officer Deckling’s cruiser. Officer

Deckling had to swerve the cruiser to avoid hitting the projectiles. Further down

the road, Sergeant Lee of the Hardin County Sheriff’s Office had positioned

himself ahead of Allsup’s pick-up truck. As the truck approached Sergeant Lee’s

location, Sergeant Lee threw out a set of stop sticks to deflate the tires on Allsup’s

truck.    Once the truck ran over the stop sticks, the passenger side front tire

deflated. However, the truck continued down the road at a high-rate of speed,

leaving gouges in the road from the wheel. Allsup then turned the truck into a

residence belonging to one of his cousins and parked the truck. Law enforcement

surrounded the truck and forcibly pulled Allsup and Wayne from the pick-up

truck. Officer Deckling immediately noticed a strong odor of alcohol on Allsup’s

person and further observed that Allsup had defecated in his pants during the

incident.

         {¶7} Allsup and Wayne were placed under arrest and taken into custody.

On May 5, 2009, a Hardin County Grand Jury indicted Allsup on following

charges: failure to comply with an order or signal of a police officer in violation of

R.C. 2921.331(B),(C)(5)(a)(ii), a felony of the third degree; felonious assault with

a deadly weapon with an additional specification that the victim was a peace

officer in violation of R.C. 2903.11(A)(2),(D)(1), a felony of the first degree;

complicity to vehicular vandalism in violation of R.C. 2923.03(A)(2) and R.C.


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2909.09(B)(1), a felony of the fourth degree; vandalism in violation of R.C.

2909.05(B)(2), a felony of the fifth degree; driving under suspension or in

violation of license restriction, in violation of R.C. 4510.11(A), a misdemeanor of

the first degree and; operating a vehicle while under the influence of alcohol, a

drug of abuse, or a combination of them with the second offense being committed

within six years, in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first

degree.

      {¶8} On May 18, 2009, Allsup entered a plea of not guilty by reason of

insanity, (“NGRI”), to all the charges listed in the indictment.      Allsup also

requested a competency evaluation. The trial court accepted Allsup’s plea and

arranged for a competency evaluation to take place. At a subsequent hearing,

Allsup was declared competent to stand trial.      Allsup filed a motion for an

independent evaluation of his sanity and competency, which was granted by the

trial court. The independent examiner also found Allsup competent to stand trial.

At the September 15, 2009 competency hearing, Allsup requested a second

independent evaluation.   The trial court denied Allsup’s motion for a second

independent examiner and found him competent to stand trial.

      {¶9} On October 20, 2009, the prosecution moved to dismiss the charge of

complicity to vehicular vandalism which was granted by the trial court.




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       {¶10} On February 17, 2010, Allsup filed a motion for the appointment of a

neuropsychologist to perform further evaluations regarding his NGRI plea. In his

motion, Allsup argued that his NGRI defense was based upon a mental defect or

injury resulting from a head injury he suffered when a tree limb fell on him weeks

prior to the incident resulting in charges listed in the indictment. Specifically,

Allsup claimed that he suffered from black-outs as a result of this injury, and that a

neuropsychologist could testify that he suffered from one of these black-outs when

the alleged offenses were committed. The prosecution filed a motion opposing

Allsup’s request for a neuropsychologist. The trial court granted Allsup’s motion,

in part, allowing his attorney leave to have ex-parte communications with a

physician to determine if further evaluations of Allsup were necessary.

       {¶11} On March 3, 2010, the prosecution filed proposed jury instructions

seeking to include instructions on consciousness of guilt, voluntary intoxication,

and that a motor vehicle may be considered a deadly weapon. The prosecution

also moved to dismiss the charge of driving under suspension in violation of

license restriction, and to strike the language from the OVI charge which specified

that the offense was the second within six years. The trial court subsequently

granted the prosecution’s motions.

       {¶12} On March 16, 2010, the prosecution filed a motion in limine seeking

to exclude testimony and medical records concerning Allsup’s head injury. On


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March 17, 2010, Allsup filed a motion in limine to exclude the specific facts

surrounding Wayne’s jury conviction a month earlier on the related offenses.

      {¶13} On March 18, 2010, a pretrial hearing was held and the trial court

ruled on the pending motions. The same day, the case proceeded to a jury trial and

the jury returned a guilty verdict on each charge. On May 13, 2010, the trial court

sentenced Allsup to serve ten years and six months in prison. Specifically, the

trial court imposed a three-year prison term for the failure to comply with the

order or signal of a police officer, and a seven-year prison term for the felonious

assault on a peace officer. The trial court ordered each prison term to be served

consecutively.   The trial court also imposed six-month prison terms for the

vandalism and OVI offenses with the terms to run concurrently to each other, but

consecutively to the ten year term imposed on the prior counts.

      {¶14} It is from this conviction and sentence that Allsup now appeals,

raising the following assignments of error for our review.

                           First Assignment of Error

      The trial court erred when it excluded the testimony in toto of
      Kathleen Tharp, Steven Rumer, and Tim Shoffer, and a portion
      of the testimony of Appellant.

                          Second Assignment of Error

      The trial court erred when it overruled Appellant’s objection to
      the jury instruction with respect to the defense of intoxication.



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                           Third Assignment of Error

      The trial court erred when it denied Appellant’s motion for
      acquittal.

                          Fourth Assignment of Error

      The trial court erred when it denied Mr. Allsup’s motion to
      exclude Juror Grappy for cause.

                           Fifth Assignment of Error

      The trial court erred when it imposed a sentence of ten years of
      imprisonment.

                            First Assignment of Error

      {¶15} In his first assignment of error, Allsup argues that the trial court erred

in partially excluding his testimony and the testimony of three other non-expert

witnesses, Kathleen Tharp, Steven Rumer and Tim Shoffer. Allsup maintains that

the excluded testimony was essential in establishing his defense that he suffered

from a black-out at the time of the incident and had no memory of committing the

offenses.

      {¶16} The trial court’s decision concerning the admission or exclusion of

evidence will not be reversed absent an abuse of that discretion. State v. Sage

(1987), 31 Ohio St.3d 173, 182, 510 N.E.2d 34. An abuse of discretion “connotes

more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” State v. Adams (1980), 62 Ohio St.2d


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151, 157, 404 N.E.2d 144. When applying the abuse of discretion standard, an

appellate court may not substitute its judgment for that of the trial court. Pons v.

Ohio St. Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748.

       {¶17} At trial, Allsup testified that, weeks prior to the incident resulting in

the charges, he was hit in the head with a tree limb which caused him to suffer

from severe lapses in his memory.        Allsup maintained that he suffered from

memory loss at the time of the incident on April 3, 2009, and had no recollection

of the police chase and surrounding events. At a pretrial hearing, the trial court

ruled to exclude evidence of Allsup’s head injury on the basis that it improperly

attempted to establish a diminished capacity defense, and simply served to mislead

the jury. During the trial, the court excused the jury and allowed Allsup to proffer

the excluded testimony concerning his memory loss.

       {¶18} Allsup proffered his own testimony indicating that sometime in late

January or early February of 2009, some eight weeks prior to the incident in

question, he suffered a head injury when a tree limb fell on his head. Allsup stated

that he sought medical attention at Lima Memorial Hospital where a CAT scan

and MRI were performed on his head and neck. Allsup recalled that he was seen

twice by Nurse Practitioner, Kathleen Tharp, regarding this injury. Allsup stated

that several times after the injury he would forget having a telephone conversation

or have no memory of specific events. Allsup then stated that he believed he was


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either suffering from a black-out or in shock during the police chase on April 3,

2009.

        {¶19} The defense then proffered the testimony of Kathleen Tharp. Tharp

testified that she had seen Allsup on February 16, 2009, in the Emergency Room

of Lima Memorial Hospital. Tharp testified that Allsup stated that he had been hit

on the head and neck with a fallen tree limb approximately two weeks earlier.

However, Tharp recalled that Allsup complained of mostly neck pain and did not

mention any occurrences of black-outs or loss of consciousness.        Tharp saw

Allsup again for a second time to go over the results of the MRI with him. Tharp

stated that the results of the MRI revealed that Allsup had suffered a neck injury,

but there was no indication of neurological trauma. Tharp further testified that

nothing in the medical records indicated that Allsup suffered from loss of

consciousness as a result of this injury.

        {¶20} The defense also proffered the testimony of Steven Rumer. Rumer

testified that he had bought a dump truck from Allsup in the winter of 2009.

Rumer recalled that Allsup explained he had suffered from an injury which

required him to give up his tree-trimming business. However, Rumer stated that

Allsup never told him that he specifically suffered from a head or neck injury.

Rumer also admitted that he had no personal knowledge concerning the nature of

Allsup’s injury.


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       {¶21} The final proffered testimony presented by the defense was that of

Tim Shoffer. However, Shoffer failed to appear in court to proffer his testimony

despite being subpoenaed. Instead, defense counsel summarized the testimony

that he sought to elicit from Shoffer which, in essence, recounted a specific

instance when Allsup had a telephone conversation with Shoffer where Allsup

spoke harshly to Shoffer and used profanity. Defense counsel explained that

Shoffer would testify that when he spoke to Allsup at a later time, Allsup had no

recollection of the telephone conversation or the negative manner in which he

spoke to Shoffer. Defense counsel also sought to admit Shoffer’s testimony to

corroborate Allsup’s statements that he left the tree-trimming business as a result

of a tree limb falling on his head.

       {¶22} Allsup argues that the excluded evidence was essential in

establishing that he suffered from a black-out at the time of the offense and

therefore, had no memory of the events that occurred. The Eleventh District Court

of Appeals aptly noted the following regarding the application of the so-called

“blackout defense”:

       The blackout defense is not available in every instance where the
       defendant cannot remember what occurred. Blackout or
       unconsciousness is a defense only where such condition is
       involuntary and such involuntary condition prevented the
       defendant from taking action that he or she is legally required to
       take under the circumstances or, possibly, in situations where
       the unconsciousness or blackout prevents a defendant from
       forming a specific intent. In the latter circumstance, the

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       evidence must establish that the defendant was unconscious and
       acted involuntarily. A defendant’s mere failure to remember
       what happened does not constitute such evidence.

State v. Cutlip (June 15, 2001), 11 Dist. No. 99-L-149, *7.

       {¶23} Here, the proffered testimony failed to demonstrate that Allsup was

unconscious and acted involuntarily when he was involved in the police chase on

the morning of April 3, 2009. Therefore, Allsup’s testimony that he could not

remember the incident, standing alone, was insufficient to demonstrate that he

lacked the ability to form a specific intent to adequately establish a “blackout

defense.” See State v. Gutierrez (Sept. 21, 1995), 3rd Dist. No. 5-95-10, *4

(stating the trial court correctly held that a blackout instruction was not warranted

because there was no evidence that the defendant was unconscious; rather the

defendant testified that he could not remember anything).

       {¶24} Moreover, the proffered testimony from the other three non-expert

witnesses also failed to support Allsup’s contention that he suffered from a

blackout at the time he committed the offenses listed in the indictment. Therefore,

the proffered testimony failed to achieve Allsup’s intended purpose to establish

that he suffered from a black-out during the police chase and could not have

formed the specific intent required to prove the charges against him. Accordingly,

because the proffered testimony served no other purpose, we find no error in the




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trial court’s decision to exclude the proffered evidence on the basis that the

testimony was both irrelevant and could potentially be misleading to the jury.

       {¶25} Allsup’s first assignment of error is overruled.

                             Second Assignment of Error

       {¶26} In his second assignment of error, Allsup maintains that the trial

court erred when it instructed the jury on voluntary intoxication. Allsup argues

that because he never asserted intoxication as a defense, the instruction was

superfluous and only served to detract from his credibility. Specifically, Allsup

contends that the trial court’s instruction on intoxication compromised his asserted

defense that he suffered from a black-out during the incident by causing the jury to

believe that his black-out was attributable to alcohol rather than to a head injury.

       {¶27} A trial court’s decision to give a jury instruction is within its

discretion, and we will not reverse such a decision absent an abuse of that

discretion. State v. Lightner, 3d Dist. No. 6-09-02, 2009-Ohio-4443, ¶ 11, citing

State v. Guster (1981), 66 Ohio St.2d 266, 271. An abuse of discretion connotes

more than an error of law or judgment and implies that the trial court acted

unreasonably, arbitrarily, or unconscionably. State v. Nagle (2000), 11th Dist. No.

99-L-089, 2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219. When applying an abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court. Id.


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       {¶28} The instruction in question was included as a part of the introductory

instructions to the jury, and appeared prior to giving the instructions on each

count. The contended instruction stated as follows:

       Voluntary intoxication may not be taken into consideration in
       determining the existence of a mental state that is an element of
       a criminal offense. Voluntary intoxication does not relieve a
       person of a duty to act if failure to act constitutes a criminal
       offense.

       Intoxication includes, but is not limited to, intoxication resulting
       from the ingestion of alcohol, a drug, or alcohol and a drug.

(Jury Instructions, p. 2).

       {¶29} Upon reviewing this specific charge on voluntary intoxication within

the context of the entire jury instructions, it is evident that the purpose of this

instruction was not to charge the jury on the defense of intoxication, as Allsup

contends, but rather to instruct the jury on culpability for criminal liability

pursuant to R.C. 2901.21.       The language of the instruction on voluntary

intoxication tracks verbatim a significant portion of statutory language contained

in R.C. 2901.21(C), (D)(4).

       {¶30} In the present case, the prosecution had to prove that Allsup acted

purposely as an element of the failure to comply with the order or signal of a

police officer offense, and that Allsup acted knowingly as elements of the

felonious assault of a peace officer and vandalism offenses. Accordingly, the

instruction was given by the trial court to correctly inform the jury that they were

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precluded from considering whether Allsup was intoxicated when determining if

he had formed the requisite intent and acted purposely and knowingly when the

offenses were committed.

       {¶31} Moreover, we cannot conclude, as Allsup asserts, that the trial

court’s instruction on voluntary intoxication compromised his defense that he

suffered from a black-out due to a prior head injury during the incident which

resulted in charges listed in the indictment. In light of our determination in the

first assignment of error that Allsup failed to present any evidence to adequately

establish a “black-out defense,” we find his contention that the instruction on

voluntary intoxication prejudiced his defense is without merit.

       {¶32} At most, the instruction may have insinuated to the jury that Allsup

was intoxicated at the time of the incident. Arguably, under this rationale, the

instruction could have influenced the jury’s determination on the OVI charge,

specifically concerning the issue of whether Allsup was operating the truck while

under the influence. Notably, this contention is not raised by Allsup on appeal.

Nevertheless, when reviewing the jury instruction as a whole, we find this

assertion to be merely speculative.    The instruction on voluntary intoxication

appeared on page two of the seventeen-paged jury instruction. The instruction on

the charge of OVI appeared on page twelve and defined what constituted being

“under the influence,” which differs substantively from “intoxication.”


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       {¶33} Moreover, the OVI charge was followed by this instruction. “If,

during the course of trial, the court said or did anything that you consider an

indication of the Court’s views on the facts, you are instructed to disregard it.”

(Jury Instructions, pp.14-15). Therefore, we find the correlation between the trial

court’s instruction on voluntary intoxication and the potential insinuation by the

trial court that Allsup was intoxicated at the time of the incident is highly

attenuated.

       {¶34} Accordingly, when reviewing the contended instruction in the

context of the entire jury instructions, we do not find that the trial court’s decision

to include the instruction on voluntary intoxication constituted an abuse of

discretion. Allsup’s second assignment of error is overruled.

                             Third Assignment of Error

       {¶35} In his third assignment of error, Allsup argues that the trial court

erred when it denied his motion for acquittal.           Allsup maintains that the

prosecution did not present sufficient evidence to establish his guilt beyond a

reasonable doubt on the charge of felonious assault of a peace officer under R.C.

2903.11(A)(2).     Specifically, Allsup contends that the prosecution failed to

demonstrate that he used the pick-up truck in such a manner to constitute a deadly

weapon as defined in R.C. 2923.11(A).




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       {¶36} When an appellate court reviews a record for sufficiency, 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. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, ¶ 47, citing State v. Jenks (1981), 61 Ohio St.3d 259,

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of

whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson

(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other

grounds as stated in Smith, supra.

       {¶37} On appeal, Allsup only contends that his conviction for felonious

assault on a police officer was not supported by sufficient evidence. Specifically,

Allsup challenges the adequacy of the prosecution’s evidence with regard to the

element of the offense requiring the use of a deadly weapon. Allsup was charged

under R.C. 2903.11(A)(2), (D)(1) which provides, in pertinent part:

       (A)    No person shall knowingly do * * * the following:

       (2) Cause or attempt to cause physical harm to another * * *by
       means of a deadly weapon* * *.

       (D)(1)(a) Whoever violates this section is guilty of felonious
       assault. * * * If the victim of a violation of division (A) of this
       section is a peace officer or an investigator of the bureau of

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       criminal identification and investigation, felonious assault is a
       felony of the first degree.

(Emphasis added).

       {¶38} One “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.” R.C. 2901.22(B). Physical harm to persons is

statutorily defined as “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. 2901.01(A)(3) (Emphasis added). We

further note that the offense does not require the offender to inflict serious

physical harm in order to be found guilty of the offense. In addition, a deadly

weapon includes “any instrument, device, or thing capable of inflicting death, and

designed or specially adapted for use as a weapon, or possessed, carried, or used

as a weapon.” R.C. 2923.11(A) (Emphasis added).

       {¶39} It is well established that an automobile may be used as a deadly

weapon for the purposes of R.C. 2923.11(A). See State v. Gibson, 9th Dist. No.

23881, 2008-Ohio-410, ¶14 citing Gaydesh v. Gaydesh, 168 Ohio App.3d 418,

860 N.E.2d 789, 2006-Ohio-4080, ¶16. “In determining whether an automobile is

a deadly weapon, a court should not only consider the intent and the mind of the

user, but also the nature of the weapon, the manner of its use, the actions of the

user, and the capability of the instrument to inflict death or serious bodily harm.”

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State v. Upham (May 12, 1997), 12th Dist. No. CA96-08-157, *2.                   The

determination of whether an automobile is used as a deadly weapon is a question

of fact for the trier of fact. Id.

       {¶40} At trial, Officer Deckling testified that he was pursuing Allsup’s

truck southbound on Route 31 when the pick-up truck came to a stop in the middle

of the road, straddling the yellow line. Officer Deckling stopped his cruiser

approximately fifteen to twenty feet behind Allsup’s truck. Officer Deckling

testified that he was concerned about Allsup and Wayne attempting to jump out of

the truck and run. The next thing Officer Deckling observed was the reverse lights

illuminate on Allsup’s truck. At that point, Allsup reversed his truck and rammed

it into the front driver’s side of Officer Deckling’s cruiser. Officer Deckling

recalled that the impact of the two vehicles crumpled the hood on the driver’s side

and disabled the driver’s side headlight. Officer Deckling suffered injury when

the force of the collision caused the dash of the cruiser to slam into his right shin.

Officer Deckling remembered that he immediately reported the ramming of his

vehicle by Allsup’s truck over the police radio.

       {¶41} The ramming incident was not captured by the dash camera in

Officer Deckling’s cruiser because the video card was full, and had not been

cleared prior to his shift.      However, the testimony of other law enforcement

personnel at trial corroborated Officer Deckling’s account of the ramming because


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they overhead Officer Deckling report the ramming over the police radio. The

prosecution submitted photographs of the damage done to Officer Deckling’s

cruiser and pieces of the front bumper that were picked up off the road where the

ramming had occurred. It is clear from the pictures that the majority of the

damage to the front of the cruiser occurred where the driver, Officer Deckling,

was situated. In total, the damage to the cruiser cost $3,166.16 to repair.

         {¶42} Allsup argues that this evidence was insufficient to demonstrate that

he used the truck as a deadly weapon. Rather, Allsup maintains on appeal that he

merely used his vehicle to disable the police cruiser and not to inflict injury on

Officer Deckling. Notably, with regard to this assertion, Allsup testified at trial

that he could not recall the events of that night due to his “lapses in memory,” and

did not provide any testimony to support his contention on appeal. Nevertheless,

Allsup contends on appeal that the manner in which he used his vehicle failed to

rise to the level of use as a deadly weapon because his truck hit Officer’s

Deckling’s cruiser at a low-rate of speed. Allsup maintains that if he meant to

injure Officer Deckling, he would have hit the police cruiser with a greater rate of

speed.

         {¶43} In making this argument, Allsup misconstrues the statutory definition

of what constitutes a deadly weapon. Allsup acknowledges that an automobile is a

thing that is capable of inflicting death satisfying the first requirement of R.C.


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2923.11(A). However, to satisfy the second requirement of R.C. 2923.11(A) the

automobile merely needs to be “used as a weapon,” not as Allsup appears to

contend that it must be used as a deadly weapon. (Emphasis added). Moreover,

other courts have found that there was sufficient evidence to establish the

commission of felonious assault with a deadly weapon under R.C. 2923.11(A)(2)

when the defendant used a car to ram the victim’s vehicle while the victim was

positioned inside. See State v. Gibson, 9th Dist No. 23881, 2008-Ohio-410, * 5;

State v. Tortarella, 11th Dist No. 2002-L-147, 2004-Ohio-1175, ¶ 65; In re B.B.,

8th Dist No. 81948, 2003-Ohio-5920, ¶ 17.

      {¶44} Accordingly, we conclude that after viewing this evidence, in a light

most favorable to the prosecution, a rational jury could have found beyond a

reasonable doubt that Allsup knowingly attempted to cause, and did cause,

physical harm to Officer Deckling by means of his truck, a thing capable of

inflicting death and used, in this instance, as a weapon. Moreover, there has been

no dispute that Officer Deckling was a uniformed member of the City of Kenton

Police Department on active duty on the morning of April 3, 2009 providing

sufficient evidence to support the peace officer element of the charge. Based on

the foregoing, we conclude that the prosecution presented sufficient evidence to




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establish Allsup committed felonious assault against Officer Deckling in this

case.1

         {¶45} Allsup’s third assignment of error is, therefore, overruled.

                                   Fourth Assignment of Error

         {¶46} In his fourth assignment of error, Allsup contends that the trial court

erred when it denied his request to remove juror Grappy for cause, which required

Allsup to use a preemptory challenge to remove Mr. Grappy from the jury pool.

Allsup argues that Mr. Grappy should have been removed for cause because he

routinely worked with law enforcement as a State of Ohio employee in the fraud

department of the Bureau of Worker’s Compensation. Mr. Grappy explained that

he analyzed computers seized by law enforcement through search warrants or in

the general course of criminal investigations related to worker’s compensation

fraud. Specifically, Mr. Grappy’s job consisted of retrieving files from computers

involved in the fraud investigations. Allsup maintains that due to the nature of Mr.

Grappy’s employment, the trial court’s failure to excuse Mr. Grappy as a

prospective juror constituted reversible error.

         {¶47} A prospective juror may be challenged for cause if there is a

demonstration of bias toward the defendant. Crim.R. 24(C)(9); R.C. 2945.25(B).


1
  We note that even though we find that the evidence was sufficient to support the count of felonious
assault on a peace officer as charged in the indictment, the question of whether Allsup’s guilty verdict on
this charge was supported by the manifest weight of the evidence is not before us and, therefore, we make
no conclusions as to that inquiry under this assignment of error.

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“[T]he determination of whether a prospective juror should be disqualified for

cause is a discretionary function of the trial court. Such determination will not be

reversed on appeal absent an abuse of discretion.” Berk v. Matthews (1990), 53

Ohio St.3d 161, 169, 559 N.E.2d 1301. This is so because a trial court is in the

best position to assess the potential juror’s credibility. Accordingly, the trial

court’s determination will be affirmed absent a showing that the court’s attitude is

arbitrary, unreasonable, or unconscionable. Id.

       {¶48} Initially, we note that there is nothing in R.C. 2945.25 or Crim.R. 24

to suggest that a person, by virtue of his employment with the State of Ohio, is

automatically precluded from serving on a jury in a criminal case. Rather, it has

been held that “[w]here actual bias is lacking * * * a state employee is not

disqualified from serving on a jury in a criminal case.” State v. Pottersnak, 7th

Dist. No. 00-JE-19, 2001-Ohio-3311, *4, quoting State v. Sims (1969), 20 Ohio

App.2d 329, 332. See, also, State v. Stockton (May 5, 1997), 3rd Dist. No. 17-96-

15 (finding that, absent a showing of actual bias, the trial court did not err in

denying defendant’s challenge for cause to a juror who was a county probation

officer).

       {¶49} The proper test to determine a juror’s bias is “whether the nature and

strength of the opinion formed are such as in law necessarily to raise the

presumption of partiality * * * .” State v. Warner (1990), 55 Ohio St.3d 31, 47


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564 N.E.2d 18. Moreover, “[t]he affirmative of the issue is upon the challenger.

Unless he shows the actual existence of such an opinion in the mind of the juror as

will raise the presumption of partiality, the juror need not necessarily be set aside

* * *.” Id. at 47.

       {¶50} During voir dire, Mr. Grappy stated that he routinely worked with

law enforcement in his capacity as a computer analyst in Worker’s Compensation

fraud investigations. However, the majority of the law enforcement members who

Mr. Grappy worked with were either located in Lima or Columbus. Mr. Grappy

also stated that he had not worked with any of the law enforcement personnel

involved in Allsup’s case. Mr. Grappy affirmed that his employment with the

State of Ohio would not affect his ability to be a fair and impartial juror. Defense

counsel then ceased to inquire any further about Mr. Grappy’s qualifications as a

prospective juror on the record.     In raising his objection to the trial court’s

decision not to excuse Mr. Grappy for cause, defense counsel indicated that Mr.

Grappy’s employment with the State of Ohio presented a conflict.

       {¶51} After reviewing the record before us, we believe that Allsup failed to

establish that Mr. Grappy had an opinion which raised a presumption of partiality.

The simple fact that Mr. Grappy is an employee of the State of Ohio, without

more, does not demonstrate that he harbored bias against Allsup and that he could

not be a fair and impartial juror in this case. Accordingly, we find that the trial


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court did not abuse its discretion when it denied Allsup’s request to remove Mr.

Grappy for cause.

       {¶52} Allsup’s fourth assignment of error is overruled.

                             Fifth Assignment of Error

       {¶53} In his fifth assignment of error, Allsup argues that the trial court

erred when it imposed upon him the same term of imprisonment that it had

imposed upon his brother, Wayne, for similar offenses.           Specifically, Allsup

contends that the trial court treated him and Wayne as “similar offenders” under

R.C. 2929.11(B). Allsup maintains that his sentence should have been less than

Wayne’s, because Wayne had prior felony convictions and this was only Allsup’s

first felony conviction and therefore they are not “similar offenders.”

       {¶54} Because Allsup challenges his sentence arguing that the trial court

failed to properly apply the sentencing factors under R.C. 2929.11, we review his

sentence to ascertain whether the trial court abused its discretion. See State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.                An abuse of

discretion is more than a mere error; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶55} Section 2929.11(A) of the Revised Code provides that the trial court

must be guided by the “overriding purposes of felony sentencing,” which are “to


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Case No. 6-10-09



protect the public from future crime by the offender and others and to punish the

offender.” R.C. 2929.11(A). Furthermore, R.C. 2929.11(B) states that a felony

sentence “shall be reasonably calculated to achieve the two overriding purposes of

felony sentencing set forth in [R.C. 2929.11(A)], commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the

victim, and consistent with sentences imposed for similar crimes committed by

similar offenders.”

       {¶56} At the outset, we note that “there is no grid under Ohio law under

which identical sentences must be imposed for various classifications of

offenders.” State v. Dawson, 8th Dist. No. 86417, 2006-Ohio-1083, ¶ 31. An

appellate court must examine the record not to decide whether the trial court

“imposed a sentence that is in lockstep with others, but whether the sentence is so

unusual as to be outside the mainstream of local judicial practice. Although the

offense[s] may be similar, distinguishing factors may justify dissimilar treatment.”

Id.

       {¶57} After reviewing the record in the instant case, it is apparent that

Allsup’s contention that he should have received a lesser sentence than Wayne due

to their disparate criminal histories lacks merit. While it may be true that Wayne

had a more extensive criminal record than Allsup, Allsup played a different role in

the commission of the offenses than Wayne. Allsup was the driver of the pick-up


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Case No. 6-10-09



truck and in total control of the situation. The evidence supports that it was Allsup

who failed to stop his vehicle when Officer Deckling and other law enforcement

personnel signaled and ordered him to so. Allsup was the driver of the pick-up

truck that rammed Officer Deckling’s cruiser. At any point during the incident,

Allsup could have put an end to the high-speed pursuit, but instead chose to

continue a course of action which put lives in jeopardy and demonstrated a

complete disregard for risk he presented to the safety of others including himself

and his brother. Moreover, each of the prison terms imposed by the court was

within the statutory sentencing ranges for the offenses.

       {¶58} Accordingly, we conclude that Allsup failed to establish that the trial

court abused its discretion.    Therefore, Allsup’s fifth assignment of error is

overruled.

       {¶59} Having found no error prejudicial to Allsup, the judgment of the

Court of Common Pleas of Hardin County is affirmed.

                                                                Judgment Affirmed

ROGERS, P.J., and PRESTON, J., concur.

/jnc




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