[Cite as State v. Orr, 2016-Ohio-8463.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.        16CA010909

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DAVID R. ORR                                           COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   14CR090066

                                  DECISION AND JOURNAL ENTRY

Dated: December 29, 2016



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, David Orr, appeals his convictions from the Lorain County

Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     The facts underlying this appeal involve an altercation between an inmate and

several corrections officers. For reasons not relevant to this appeal, David Orr was incarcerated

at the Lorain Correctional Institution. One morning, as inmates were being escorted to breakfast,

Orr stood silently in his cell, refusing to get dressed. A corrections officer instructed Orr to get

dressed, but he continued to stand silently in his cell. That corrections officer testified that Orr

had a “you’re not going to tell me what to do” look on his face. Orr testified on his own behalf

and indicated that he “wasn’t feeling [like] [him]self” that morning and “didn’t want to leave

[his] cell[,] * * * didn’t want to go to chow[,] * * * [and] didn’t want to eat[.]”
                                                2


       {¶3}    After Orr failed to follow the corrections officer’s instructions, she called for

assistance. Two additional corrections officers and a sergeant responded. The officers told Orr

that he would be taken to the mental health department for an examination, sat him in a chair,

and began the process of getting him dressed. As they were putting his shirt on, Orr jumped up

from the chair and became combative with the officers. The officers executed a “takedown”

maneuver, which one officer described as a technique used to bring an inmate safely to the

ground so that the officers can regain control.       During the takedown maneuver, officers

instructed Orr to stop resisting and placed him in handcuffs. As they stood Orr up, he went

“dead weight” and the officers – one on each side – began escorting him to the medical

department. As they traversed a doorway, Orr began resisting and kicked an officer twice in the

leg. Officers again performed a takedown maneuver and got Orr under control. After Orr was

medically evaluated, the officers began escorting him to segregation.          Orr again started

struggling with the officers and, for a third time, the officers performed a takedown maneuver.

While officers executed the takedown maneuver, Orr raised his elbow and stuck an officer in the

lip, causing it to bleed. Another officer obtained a set of leg irons and placed them on Orr, who

was then put on a medical cart and transported to segregation without further incident.

       {¶4}    A grand jury indicted Orr on two counts of assault under Revised Code Section

2903.13(A) and one count of obstructing official business under Section 2921.31(A), all felonies

of the fifth degree. Orr pleaded not guilty and the case proceeded to a jury trial. The jury

returned a verdict of guilty on all counts and, after merging the obstructing-official-business

count with the two assault counts, the trial court sentenced Orr to two consecutive seven-month

terms of incarceration, which were to run consecutively to a sentence he was serving for an

unrelated crime. Orr now appeals, raising two assignments of error for our review.
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                                                II.

                                  ASSIGNMENT OF ERROR I

       THE VERDICTS FOR ASSAULT AND OBSTRUCTION OF OFFICIAL
       BUSINESS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND
       WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶5}    In his first assignment of error, Orr argues that his convictions for assault were

not supported by sufficient evidence because the evidence did not establish that he acted

knowingly when he struck the corrections officers. He argues that his convictions were against

the manifest weight of the evidence for the same reason. With respect to his conviction for

obstructing official business, Orr argues that the evidence did not establish that he engaged in

some affirmative or overt act to impede or hamper the duties of the corrections officers. Rather,

he asserts that he merely refused to cooperate with their demands. He, therefore, argues that his

conviction for obstructing official business was not supported by sufficient evidence and was

also against the manifest weight of the evidence.

       {¶6}    As this Court has explained, “sufficiency and manifest weight of the evidence are

legally distinct issues. * * * Sufficiency tests whether the prosecution has met its burden of

production at trial, whereas a manifest-weight challenge questions whether the prosecution has

met its burden of persuasion.” (Internal citations omitted.) State v. Lee, 158 Ohio App.3d 129,

2004-Ohio-3946, ¶ 17 (9th Dist.). We will begin our review with an analysis of whether the

State presented sufficient evidence to support the convictions for assault and obstructing official

business.

       {¶7}    “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
                                                 4


quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of

adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be

viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”                 Id.

“Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Thompkins

at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court, therefore, reviews

questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721, ¶ 4

(9th Dist.).

        {¶8}   Regarding assault, Section 2903.13(A) prohibits persons from “knowingly

caus[ing] or attempt[ing] to cause physical harm to another * * *.” “A person acts knowingly,

regardless of purpose, when the person is aware that the person’s conduct will probably cause a

certain result or will probably be of a certain nature.” R.C. 2901.22(B).

        {¶9}   The State presented evidence that, if believed, indicated that Orr kicked a

corrections officer twice in the leg, and elbowed another officer in the mouth, causing his lip to

bleed. Specifically, one officer testified that Orr started “kicking and thrashing” and “forcefully

drew his foot forward in [his] thigh[,]” which caused the officer to experience soreness in that

area. When Orr’s defense counsel asked him on direct examination whether he intended to kick

the officer, Orr responded: “[n]ot that I’m aware of[,]” and later claimed that his leg “[j]ust went

in the air[.]” Another officer testified that Orr “raised his elbow and struck [him] in the lip.” Orr

denied knowing that he struck the officer in the lip, but admitted that he “got into * * * a little

altercation * * * with the officers.” Orr admitted being frustrated and angry and, when asked
                                                 5


whether he “just didn’t want to do what [the corrections officers] were asking [him] to do[,]” he

responded, “[c]orrect.”

       {¶10} To the extent that Orr argues that he did not knowingly cause these injuries, this

Court has stated that a defendant acts knowingly for purposes of assault when the defendant

initiates a course of conduct that increases the likelihood of violence and injury. State v. Bailey,

9th Dist. Lorain No. 05CA008848, 2006-Ohio-5286, ¶ 19. Further, we note that “[a] defendant’s

state of mind may be inferred from the totality of the surrounding circumstances.” State v.

Harper, 9th Dist. Summit No. 19632, 2000 WL 327231, *2 (Mar. 29, 2000). Viewing the

evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact

could have found the essential elements of assault proven beyond a reasonable doubt. Jenks, 61

Ohio St.3d 259 (1991), at paragraph two of the syllabus.

       {¶11} We now turn our attention to Orr’s argument that the State failed to present

sufficient evidence to support his conviction for obstructing official business.            Section

2921.31(A) provides that “[n]o person, without privilege to do so and with purpose to prevent,

obstruct, or delay the performance by a public official of any authorized act within the public

official’s official capacity, shall do any act that hampers or impedes a public official in the

performance of the public official’s lawful duties.”        Orr argues that the State failed to

demonstrate that he engaged in some affirmative or overt act to impede or hamper the

corrections officers’ duties. Rather, he argues that he merely refused to cooperate with their

demands.

       {¶12} The testimony adduced at trial, if believed, indicated that Orr did more than

merely refuse to cooperate with the corrections officers. Indeed, it indicated that Orr was

combative on at least three occasions, which prompted the officers to execute takedown
                                                 6


maneuvers in order to regain control over his person. Orr’s actions, including his refusal to get

dressed and subsequent behavior while being escorted through the facility, resulted in a delay in

escorting the other inmates to breakfast and necessitated the assistance of several additional

corrections officers. Officers testified that they were taken away from their regular duties, which

included supervising other inmates. As a result, some inmates went unsupervised for a period of

time, while about 100 others were only being supervised by one officer.

       {¶13} Viewing the evidence in a light most favorable to the prosecution, we conclude

that a rational trier of fact could have found the essential elements of obstructing official

business proven beyond a reasonable doubt. Having determined that all of Orr’s convictions

were supported by sufficient evidence, we now turn to his argument that his convictions were

against the manifest weight of the evidence.

       {¶14} If a defendant asserts that a conviction is against the manifest weight of the

evidence,

       an appellate court must review 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 trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶15} Orr argues that his convictions for assault are against the manifest weight of the

evidence for the same reason that they were not supported by sufficient evidence, that is, because
                                                 7


he did not act knowingly when he struck the corrections officers. Similarly, he argues that his

conviction for obstructing official business is against the manifest weight of the evidence

because he did not engage in some affirmative or overt act to impede or hamper the duties of the

corrections officers.

       {¶16} Having reviewed the record, we cannot say that this is an exceptional case where

the evidence weighs heavily against conviction.          Otten, 33 Ohio App.3d 339, 340 (9th

Dist.1986). The jury heard testimony from several corrections officers regarding the events that

took place and the effect they had on the performance of their job duties that morning. The jury

also heard Orr’s own version of the events, including his testimony that he did not knowingly

strike the officers or intend to obstruct official business. As this Court has stated, “[w]e will not

overturn the verdict on a manifest weight challenge simply because the jury chose to believe the

evidence offered by the prosecution.” State v. Morgan, 9th Dist. Summit No. 22848, 2006-Ohio-

3921, ¶ 35.

       {¶17} In light of the foregoing, Orr’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT DENIED [MR.] ORR DUE PROCESS, IN VIOLATION
       OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, BY RETALIATING AGAINST [MR.] ORR FOR
       EXERCISING HIS RIGHTS TO NOT PLEAD GUILTY AND HAVE HIS
       CASE TRIED BEFORE A JURY.

       {¶18} In his second assignment of error, Orr argues that the trial court violated his due

process rights by punishing him for declining the plea offer and exercising his right to a jury

trial. We disagree.

       {¶19} “A criminal defendant is guaranteed the right to a trial by jury and cannot be

punished for exercising that right by refusing a plea offer.” State v. Tucker, 9th Dist. Lorain No.
                                                 8


13CA010339, 2016-Ohio-1353, ¶ 29, citing State v. O’Dell, 45 Ohio St.3d 140 (1989),

paragraph two of the syllabus. “Any increase in sentencing that is attributable to the defendant’s

decision to take the case to trial is improper.” Tucker at ¶ 29, citing State v. Morris, 159 Ohio

App.3d 775, 2005-Ohio-962, ¶ 12 (4th Dist.). “Consequently, a trial court must avoid the

appearance that a sentence has been enhanced because the defendant chose to take the case to

trial.” Tucker at ¶ 29, citing State v. Chapman, 190 Ohio App.3d 528, 2010-Ohio-5924, ¶ 30

(9th Dist.), quoting Morris at ¶ 13. “If a court makes statements from which it can be inferred

that the sentence was increased due to a defendant’s decision to proceed to trial, then that

sentence must be vacated unless the record contains unequivocal evidence that the decision to

proceed to trial was not considered when sentencing the defendant.” State v. Turner, 9th Dist.

Summit No. 27210, 2014-Ohio-4460, ¶ 22.

       {¶20} Orr primarily relies upon this Court’s prior decision in State v. Tucker in support

of his position that the trial court imposed a trial tax.1 9th Dist. Lorain No. 14CA010704, 2016-

Ohio-1354. In Tucker, the trial court offered its own plea deal to the defendant and informed

him that the potential length of his sentence depended, in part, on the strength of his defense. Id.

at ¶ 28. In doing so, the trial court informed the defendant that he was facing more than 50 years

in prison, but that he could receive a nine-year prison term if he accepted the court’s plea offer.

Id. At sentencing, the trial court stated that “generally speaking, if you have a strong defense,

this Court will never punish you for compelling the Court to proceed with a jury trial.” Id. at ¶

29.   It further stated that the defendant “had an opportunity to significantly reduce the


       1
         This case is not to be confused with this Court’s decision in State v. Tucker, 9th Dist.
Lorain No. 13CA010339, 2016-Ohio-1353, which was issued on the same day, involved the
same defendant, and addressed a similar trial-tax issue. We note that Orr cited Case No.
14CA010704 in his merit brief. In responding to Orr’s argument, the State mistakenly referred
to Case No. 13CA010339.
                                                 9


consequences of his actions[,]” but chose not to do so. Id. The trial court then sentenced the

defendant to an aggregate prison term of 25 years. Id. at ¶ 5.

       {¶21} On appeal, this Court held that the trial court’s comments created an inference

that the defendant received a harsher sentence, at least in part, because he chose to take his case

to trial. Id. at ¶ 30. We further determined that the record did not contain unequivocal evidence

demonstrating that the defendant’s decision to proceed to trial was not considered during

sentencing. Id. Accordingly, we vacated the defendant’s sentence and remanded the matter for a

new sentencing. Id.

       {¶22} Orr argues that this case is similar to Tucker because it involves a trial court that

offered its own plea deal, a defendant that rejected it, and a sentence that was more than what

was offered in the plea deal. The crux of Orr’s argument is that, because the State presented no

new or impactful information at trial, the trial court must have retaliated against him based upon

his decision to maintain his innocence and proceed to trial. We find his argument unpersuasive.

       {¶23} As an initial matter, we note that a review of the record reveals that the State, not

the trial court, offered Orr a plea deal. In this regard, the State offered Orr a six-month prison

sentence to run consecutively to the sentence he was currently serving. The trial court indicated

that it was willing to impose that sentence if Orr accepted it. Unlike the facts in Tucker, Orr has

not pointed us to any statements by the trial court that created an inference that it increased his

sentence based upon his decision to proceed to trial. Despite Orr’s argument, we cannot say that,

without more, the fact that the trial court imposed a longer sentence after trial than what was

offered during plea negotiations indicates that the trial court punished Orr for refusing the State’s

plea offer. Accordingly, Orr’s second assignment of error is overruled.
                                                10


                                                III.

       {¶24} David Orr’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       BETH WHITMORE
                                                       FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.
                                         11


APPEARANCES:

PATRICK HAKOS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting
Attorney, for Appellee.
