[Cite as State v. Farmer, 2015-Ohio-4676.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102552



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                             BRUCE FARMER

                                                        DEFENDANT-APPELLANT




                                         JUDGMENT:
                                      AFFIRMED IN PART,
                                 REVERSED IN PART, REMANDED




                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-579424-A

        BEFORE: S. Gallagher, J., Jones, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: November 12, 2015
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Erin Stone
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

            {¶1} Appellant Bruce Farmer appeals his convictions and sentence. Upon review, we

affirm in part, reverse in part, and remand.

            {¶2} Appellant was charged under a multicount indictment with the following offenses:

Count 1, aggravated robbery of a law enforcement officer;1 Count 2, assault; Count 3, breaking

and entering; Count 4, disrupting public services; and Count 5, resisting arrest. He entered a

plea of not guilty, and the case proceeded to a jury trial.

            {¶3} The offenses arose from an incident that occurred on October 21, 2013. James

Kirk, an officer with the Norfolk Southern Railroad Police Department, testified that he was

patrolling in his unmarked police vehicle along a stretch of railroad track in Cleveland when he

saw three individuals, one of whom was appellant, trespassing. He activated his lights, stopped

the individuals, and informed them they were trespassing. Officer Kirk was wearing a police

uniform, including his badge, and was carrying mace and a firearm.

            {¶4} When Officer Kirk questioned appellant as to the spelling of the name he provided,

appellant became nervous, turned, and ran.             Officer Kirk chased appellant, caught him,

handcuffed him, and brought him back to the police vehicle.

            {¶5} According to the testimony of Officer Kirk, as he attempted to use his cell phone to

call for assistance, appellant pulled one of his hands loose from the handcuffs and swung at the

officer. Officer Kirk was able to handcuff appellant again, but the struggle continued. During

the struggle, appellant hit the officer, attempted to grab the officer’s gun, sprayed the officer with

mace, and broke the officer’s cell phone during the officer’s attempt to call for backup.


            1
                Count 1 included one- and three-year firearm specifications that were withdrawn prior
to trial.
           {¶6} Officer Kirk began yelling for someone to call 911. A neighbor from the area made

the call. The neighbor testified that she saw the officer trying to hold the suspect on the ground

and that the suspect kept fighting. She stated the officer was asking for help and asking the

suspect to stop. Other bystanders arrived at the scene, and the two individuals who were with

appellant on the tracks also returned. One of those individuals took an aggressive stance toward

the officer, at which point the bystanders intervened. Eventually, the Cleveland police arrived.

           {¶7} Officer Kirk testified that he is “a certified police officer under the State of Ohio,

and * * * commissioned through the State of Ohio with the Norfolk Southern Railroad Police

Department.” He further testified to his training, qualifications, and duties as a law enforcement

officer.

           {¶8} Appellant testified that after being stopped by the officer for walking on the tracks,

he ran and was caught. According to appellant, after he was taken back to the police vehicle, the

officer pushed appellant to the ground, pinned appellant in a choke hold, and maced appellant

and himself.        Appellant denied reaching for the officer’s weapon.          Appellant’s former

girlfriend, who was one of the individuals with him on the tracks, testified that she observed the

officer place appellant in a choke hold and that when the officer went to spray appellant with

mace, he essentially sprayed himself.

           {¶9} During trial, the trial court denied appellant’s Crim.R. 29 motion for acquittal. The

jury returned a verdict of guilty on all counts. The trial court imposed maximum consecutive

sentences for the first four counts and a concurrent six-month sentence for resisting arrest, for a

total prison term of 15 years. The court also revoked postrelease control imposed in Cuyahoga

C.P. No. CR-468217 and sentenced appellant to an additional and consecutive two years for the

violation.
          {¶10} Appellant timely filed this appeal. He raises three assignments of error for our

review.

          {¶11} We shall address the first two assignments of error together. Under his first

assignment of error, appellant challenges the trial court’s denial of his Crim.R. 29 motion on

Counts 1, 4, and 5 because he claims “there was no evidence that the alleged victim * * * was a

‘law enforcement officer’ as alleged in the indictment and as the term is defined in the [Ohio]

Revised Code.” Under his second assignment of error, appellant makes a similar argument that

challenges the sufficiency of the evidence to establish that the officer was a “law enforcement

officer” for his convictions on Counts 1, 4, and 5.

          {¶12} An appellate court uses the same standard to review a denial of a Crim.R. 29

motion for acquittal as it does to review a sufficiency of the evidence claim. State v. Turner, 8th

Dist. Cuyahoga No. 88373, 2007-Ohio-2776, ¶ 9-10; see also State v. Carter, 72 Ohio St.3d 545,

553, 1995-Ohio-104, 651 N.E.2d 965. “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.

          {¶13} R.C. 2901.01(A)(11) defines a “law enforcement officer” in relevant part as

follows:

          (b) An officer, agent, or employee of the state or any of its agencies,
          instrumentalities, or political subdivisions, upon whom, by statute, a duty to
          conserve the peace or to enforce all or certain laws is imposed and the authority to
          arrest violators is conferred, within the limits of that statutory duty and authority.

The testimony in this case established that Officer Kirk is “a certified police officer under the

State of Ohio, and * * * commissioned through the State of Ohio with the Norfolk Southern
Railroad Police Department.” Pursuant to R.C. 4973.17(B), railroad police officers may be

commissioned by the secretary of state “to act as police officers for and on the premise of the

railroad company, its affiliates or subsidiaries, or elsewhere, when directly in the discharge of

their duties.” These officers must successfully complete a training program approved by the

Ohio peace officer training commission and be certified by the commission. Railroad police

officers commissioned under R.C. 4973.17(B) “shall severally possess and exercise the powers

of, and be subject to the liabilities of, municipal policemen while discharging the duties for

which they are appointed.” R.C. 4973.18. Additionally, these officers have a statutory duty to

“enforce and compel obedience” of lawful regulations promulgated by their employer.

R.C. 4973.19.

       {¶14} When determining whether officers commissioned under prior versions of the R.C.

4973.17 are law enforcement officers, the Ohio Supreme Court has found that “duly

commissioned law enforcement officers who are hired and directed in their specific duties by a

private [entity] are public officers deriving their authority from the sovereign[.]” Ayers v.

Woodard, 166 Ohio St. 138, 143, 140 N.E.2d 401 (1957). Their acts are presumed to have been

performed in their official capacity absent evidence to the contrary. Id.; see also New York, C. &

St. L. R. Co. v. Fieback, 87 Ohio St. 254, 265, 266, 100 N.E. 889 (1912) (recognizing a duly

commissioned railroad police officer is presumed to act in conformity with his official duties).

       {¶15} In State v. Hughes, 1st Dist. Hamilton No. C-070755, 2008-Ohio-3966, syllabus,

the court found that “[a] police officer working for a conglomerate of hospitals on hospital

grounds was a state actor when he was commissioned under R.C. 4973.17 and endowed with

plenary police powers, including the power to arrest.” The court also found that the officer was
acting as a “de facto police officer” when he arrested the defendant for criminal trespassing. Id.

at ¶ 19.

           {¶16} In State v. Bryant, 9th Dist. Summit No. 17618, 1996 Ohio App. LEXIS 5819

(Dec. 26, 1996), the court found that a bank fraud investigator commissioned under R.C. 4973.17

was a “law enforcement officer” within the meaning of Crim.R. 41. The court recognized that

“R.C. 4973.18 confers all the powers of a municipal police officer upon [the investigator] so long

as these powers are exercised while she is discharging her duties as a bank fraud investigator.”

Id.

           {¶17} Similar to the officers in Hughes and Bryant, Officer Kirk is a commissioned

police officer pursuant to R.C. 4973.17 and was acting in his official capacity when he

apprehended appellant in this case. We hold that he is a law enforcement officer within the

meaning of R.C. 2901.01(A)(11).

           {¶18} After viewing the evidence in a light most favorable to the prosecution, we find any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. Appellant’s first and second assignments of error are overruled.

           {¶19} Under his third assignment of error, appellant claims “the jury verdict finding him

guilty as charged in [Count 2] of the indictment should be vacated because the evidence did not

show that James Kirk was a peace officer as the term was defined for them.”

           {¶20} Count 2 of the indictment charged appellant with assault in violation of R.C.

2903.13(A) and included a furthermore specification that the victim was a peace officer.

           {¶21} R.C. 2903.13(A) defines assault and states, “[n]o person shall knowingly cause or

attempt to cause physical harm to another * * *.” Assault is normally a misdemeanor of the first
degree; however, if the victim of the offense is a peace officer, the offense is elevated to a felony

of the fourth degree. R.C. 2903.13(C)(1) and (5).

       {¶22} The court’s instruction to the jury on the meaning of the term “peace officer” was

consistent with the definition set forth under R.C. 2935.01(B). However, a “railroad police

officer” is not included within the definition.      Further, although the legislature included a

cross-reference to the other definition of a “peace officer” that appears in R.C. 109.71, it only did

so with regard to “a state fire marshal law enforcement officer” that appears in R.C.

109.71(A)(23). The legislature could have, but omitted, any cross-reference to railroad police

officers specified under R.C. 109.71(A)(2).

       {¶23} The state concedes this assignment of error, but argues only that the further finding

should be vacated. We agree. Accordingly, we vacate the further finding contained in Count 2

along with the sentence on that count. The case shall be remanded for resentencing only as to

Count 2.

       {¶24} Under his fourth assignment of error, appellant claims “[t]he trial court erred when

it imposed an additional and consecutive two-year sentence for violation of post-release control

in case No. 468217.”

       {¶25} The state concedes this assignment of error because postrelease control was

improperly imposed in State v. Farmer, Cuyahoga C.P. No. CR-05-468217-A. The sentencing

entry in that case failed to state anything relating to the consequences of violating postrelease

control. Therefore, appellant is not subject to postrelease control for that case. See State v.

Rodriguez, 8th Dist. Cuyahoga No. 101832, 2015-Ohio-1835; State v. Elliott, 8th Dist. Cuyahoga

No. 100404, 2014-Ohio-2062.
       {¶26} Because postrelease control was never properly imposed, appellant cannot be

subject to having violated postrelease control. Therefore, the two-year sentence imposed for the

violation of postrelease control is vacated.

                                           CONCLUSION

       {¶27} We vacate the further finding contained in Count 2 along with the sentence on that

count. Case remanded for resentencing on Count 2 only. The two-year sentence imposed for

violating postrelease control in Cuyahoga C.P. No. CR-468217 is vacated. Conviction and

sentence on all counts are otherwise affirmed.

       {¶28} Judgment affirmed in part, reversed in part, and case remanded to the lower court

for further proceedings consistent with this opinion.

       It is ordered that appellant and appellee share costs herein taxed.   The court finds there

were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
ANITA LASTER MAYS, J., CONCUR
