[Cite as Cleveland v. Sowders, 2018-Ohio-1632.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 105946




                                       CITY OF CLEVELAND

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                           RYAN SOWDERS

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2016 CRB 009154

        BEFORE: Stewart, J., E.A. Gallagher, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 26, 2018
ATTORNEYS FOR APPELLANT

Walter H. Edwards, Jr.
Henry J. Hilow
McGinty, Hilow & Spellacy Co., L.P.A.
614 West Superior Ave., Suite 1300
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law

Bryan Fritz
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} The court, sitting without a jury, found defendant-appellant Ryan Sowders, a police

officer, guilty of misdemeanor assault and interfering with civil rights for using a “closed-hand

strike” on a victim who had been handcuffed and pinned to the ground. Sowders argues on

appeal that the court’s verdict is against the manifest weight of the evidence because he was

legally justified to use reasonable force in the course and scope of his duties as a police officer

and that he applied the closed-hand strike consistent with police department policy regarding

noncompliant arrestees.

       {¶2} We evaluate the weight of the evidence supporting a conviction by reviewing the

entire record, the evidence and reasonable inferences derived from the evidence, and the

credibility of the witnesses to decide whether the trier of fact clearly lost its way such that the

conviction results in a manifest miscarriage of justice. State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. This is a highly deferential standard of review that

recognizes that the trier of fact is in the best position to view the witnesses and evidence and has

the authority to “believe or disbelieve any witness or accept part of what a witness says and reject

the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶3} The evidence showed that the police received an emergency call reporting gunshots

fired. The police responded, discovered the victim hiding in overgrown weeds, and pursued him

on a foot-chase that crossed a busy interstate highway. The victim eventually ran into the

backyard of a house, disrupting a child’s birthday party.         One of the partygoers tried to

physically remove the victim from the yard. The victim’s efforts to break free detained him long

enough that the police were able to arrive on the scene and capture him. Body camera video

from one of the police officers showed that in order to handcuff the victim, Sowders squatted on
the victim’s back and used his knee to pin the victim’s face to the ground while a second officer

held the victim’s feet. The video then showed that Sowders reared his arm back and struck the

handcuffed victim in the side of his head.          Sowders admitted striking the victim with a

“closed-hand strike” consistent with his training to ensure a suspect’s compliance and control.

       {¶4} The great deference we must show to factual determinations made by the trier of fact

so limits our review of the evidence in this case that we cannot find that the court lost its way by

finding Sowders guilty of assault. We acknowledge Sowders’s assertion that “a police officer is

justified at common law to use reasonable force in the course and scope of his law enforcement

duties.” See State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 17. That

point of law is not open to dispute. The issue before us is whether the court lost its way by

finding that the evidence showed that Sowders’s “closed-hand strike” was an unreasonable use of

force to arrest the victim under the circumstances of this case. See Graham v. Connor, 490 U.S.

386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that assessing the reasonableness of

force used during an arrest “requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue”).

       {¶5} Police officers testified to the seriousness of a call for “shots fired.”   The police

officers also testified that they had been trained to assume that a suspect whom they believed had

discharged a firearm might have more than one weapon that could be reached regardless of

whether the suspect had been handcuffed. While these were compelling concerns in favor of the

reasonableness of Sowders’s conduct, the court’s guilty verdict implicitly found those concerns

were no longer present under the circumstances. The video showed that the victim had been

handcuffed and was pinned to the ground by two officers before Sowders struck him. The court
could view the video as showing that the victim was no longer struggling to resist arrest and had

been physically subdued before Sowders struck the victim.

         {¶6} Sowders also argues that he believed the victim was armed, thus justifying his use of

force.

         {¶7} While the evidence showed that the victim had no weapon on him when arrested (he

apparently tossed it during the foot chase), the officers were operating under training that told

them to assume that a suspect might carry more than one weapon. Nevertheless, the court’s

guilty verdict could be viewed as concluding that the victim, having been handcuffed behind his

back and pinned face-down to the ground by two officers, posed no threat of reaching for a

hidden weapon. The video played to the court did not show the victim making any movements

indicating that he was reaching for a weapon. It was within the court’s province as trier of fact

to view the video as proof that it was unreasonable under the circumstances for Sowders to

believe that the victim was reaching for a weapon such that the strike to the head was necessary

pursuant to Sowders’s training as a police office. An appellate court cannot substitute its

judgment for the trial court, nor can we find here that the trier of fact clearly lost its way such that

the conviction results in a manifest miscarriage of justice. The assigned error is overruled.

         {¶8} Judgment affirmed.

         It is ordered that appellee recover of appellant 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 Cleveland

Municipal 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.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, A.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY
