[Cite as State v. Buckley, 2019-Ohio-3991.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


 STATE OF OHIO,                                    :      OPINION

                  Plaintiff-Appellee,              :
                                                          CASE NO. 2018-L-118
         - vs -                                    :

 JAMES M. BUCKLEY, JR.,                            :

                  Defendant-Appellant.             :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR
 000127.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
 Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
 44077 (For Plaintiff-Appellee).

 Vanessa R. Clapp, Lake County Public Defender, and Melissa Ann Blake, Assistant
 Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
 Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, James Buckley (“Mr. Buckley”), appeals from the Lake County

Court of Common Pleas’ judgment entry, which sentenced him to a 27-month term of

imprisonment for two counts of assault and imposed a total fine of $100 for one count of

possession of marijuana and one count of illegal use or possession of marijuana drug

paraphernalia.
       {¶2}   Mr. Buckley raises five assignments of error, contending: (1) he was denied

effective assistance of counsel because his trial counsel stipulated the alleged victims,

the peace officers, were “in the performance of their official duties,” an element essential

to enhancing the offense of assault from a first degree misdemeanor to a fourth degree

felony, and further, his counsel failed to request a self-defense jury instruction; (2) the trial

court committed plain error in not reading a self-defense instruction to the jury; (3) the trial

court erred in denying his Crim.R. 29(A) motion for acquittal because the evidence was

insufficient to support the elements of assault; (4) his conviction was against the manifest

weight of the evidence; and lastly, (5) his 27-month term of imprisonment is contrary to

law.

       {¶3}   We disagree and affirm the judgment of the Lake County Court of Common

Pleas. Mr. Buckley failed to introduce any evidence to support a theory of self-defense,

thus neither his counsel nor the court erred in failing to request or give a self-defense jury

instruction. Secondly, the record presents sufficient, undisputed evidence that the peace

officers were in the performance of their official duties at the time of the assault. Thus,

the fact that defense counsel stipulated to this element of the offense has no

determinative bearing on the verdict. The state presented sufficient evidence on the

elements of assault, and the manifest weight of the evidence more than supports the

jury’s verdict. Lastly, Mr. Buckley’s sentence is not contrary to law since the trial court

expressly found this crime to be more serious and recidivism less likely pursuant to R.C.

2929.12.

                               Substantive and Procedural History

       {¶4}   On March 16, 2018, Mr. Buckley was indicted on eight counts: two counts

of assault to a peace officer, fourth degree felonies in violation of R.C. 2903.13(A);


                                               2
obstructing official business, a fifth degree felony in violation of R.C. 2921.31; two counts

of resisting arrest, a first degree misdemeanor in violation of R.C. 2921.33(B); possession

of marijuana, a minor misdemeanor in violation of R.C. 2925.11; and illegal use or

possession of marijuana drug paraphernalia, a minor misdemeanor in violation of R.C.

2925.141(C), both with forfeiture specifications pursuant to R.C. 2941.1417 and 2981.04

for possessing contraband (marijuana and a smoking pipe) that was used in the

commission or facilitation of the offense; and lastly, one count of open container, a minor

misdemeanor in violation of R.C. 4301.62(B)(4).

       {¶5}   The state dismissed the charges of resisting arrest, obstructing official

business, and open container prior to trial. Mr. Buckley elected to bifurcate the trial,

choosing to try the counts of assault against a peace officer to a jury and the last two

counts of possession of marijuana and illegal use or possession of marijuana drug

paraphernalia to the court. The court found him guilty on those last two counts.

       {¶6}   The two counts of assault, which are the subject of this appeal, were tried

before the jury in a two-day trial. The state presented the testimony of several peace

officers, including the victims, Patrolman Ryan Heramb (“Officer Heramb”) and Patrolman

Paul Balongie (“Officer Balongie”); dispatchers Nina Lombardo-Mylott and Brad James;

as well as Patrolman John Stirewalt, who assisted Officer Balongie with the investigation

following Mr. Buckley’s arrest. The state also introduced into evidence radio dispatch

recordings, surveillance videos, and a dashcam video.

       {¶7}   Mr. Buckley presented the testimony of Joseph Coe (“Mr. Coe”), his cousin

and owner of Vehicles Unlimited, an automotive service repair center located in Mentor,

Ohio. Vehicles Unlimited is where Mr. Buckley works and where the incident occurred.




                                             3
       {¶8}     The evidence and testimony reflects that at approximately 5:30 a.m. on

Sunday, January 21, 2018, Officer Heramb was on patrol, assigned to “after 3 activity,”

which requires him to “engage in proactive patrol or business checks” between the hours

of 3 a.m. and 6 a.m. He was driving by the front of a business when he noticed an

occupied vehicle with the driver’s side door open in the parking lot of Vehicles Unlimited,

parked directly next to the side entrance door. Officer Heramb was aware there had been

a rash of break-ins at local auto body shops and car dealership where vehicles were

stolen and then used in later crimes, so he decided to investigate further.

       {¶9}     Officer Heramb saw someone in the vehicle. As he was pulling down the

driveway, the officer also observed a male getting out of the vehicle, closing the door, and

then walking toward the side entrance of the building. He radioed dispatch to advise of

the activity.

       {¶10} When Officer Heramb approached the vehicle, the male occupant had

already entered the building. He noticed a strong odor of burnt marijuana and observed

two open beer cans and a bag of marijuana in the center console and a smoking pipe on

the floor board of the front of the driver’s seat.

       {¶11} Officer Heramb walked to the side door and asked the male who was

standing just inside the glass door to step outside. The male refused to comply, shouting

obscenities. Officer Heramb then asked the male if he had permission to be on the

property. The man showed him the keys to the business and informed the officer he

worked there. Officer Heramb did not ask Mr. Buckley for identification. While waiting for

backup and for dispatch to contact Vehicles Unlimited’s owner, Mr. Coe, Officer Heramb

walked back to the vehicle and ran the plates, identifying the male as Mr. Buckley.




                                               4
       {¶12} Officer Balongie arrived on the scene to assist Officer Heramb. As Officer

Balongie walked toward Officer Heramb by the door, Mr. Buckley walked out of view of

the door into an interior office. Concerned that Mr. Buckley might be going out the front

door, Officer Balongie was sent to the front corner of the building. Officer Heramb was

also concerned about the possible availability of firearms or tools that could be used as

weapons inside this business, and he did not know if there were others inside the building.

He checked the door to see if it was locked, and it was not. He checked Mr. Buckley’s

truck door, and it was locked.

       {¶13} Officer Heramb returned to the glass door, and Mr. Buckley came out of an

office and approached the door. Officer Balongie returned from the front corner, and

Officer Heramb advised him that he had criminal charges for Mr. Buckley. The plan was

for Officer Heramb to open the door and Officer Balongie was to “reach in and escort him

if [Mr. Buckley] refused to come out.” Officer Heramb testified he decided to arrest Mr.

Buckley rather than issue a citation because Mr. Buckley was “intoxicated and had a

failure to appear for court in the past.”

       {¶14} Neither officer activated the in-car video and audio recording equipment

before acting on their plan.

       {¶15} While opening the door and stepping “about a foot or two” inside the

building, Officer Heramb told Mr. Buckley he was “under arrest” and ordered him “to step

out of the building.” Officer Balongie was reaching inside toward Mr. Buckley when Mr.

Buckley “sucker punched” him on the left side of his face. Mr. Buckley continued punching

with both fists.

       {¶16} Vehicles Unlimited’s surveillance video showed the officers pulled Mr.

Buckley outside, threw him to the ground, and forcibly placed Mr. Buckley’s arms behind


                                            5
his back. Officer Balongie then forcefully punched Mr. Buckley in the face to make him

compliant.

        {¶17} Officer Heramb was punched in the face, his microphone to his dispatch

radio was torn off his uniform shirt, and he had a right forearm contusion and abrasion.

Officer Balongie had swelling on the left side of his face and broke his right hand punching

Mr. Buckley in the face.

        {¶18} Mr. Coe testified that Mr. Buckley had been employed part-time for Vehicles

Unlimited for approximately two years, and he had permission to work at any time and/or

day and to sleep on the futon in the office. Mr. Buckley had both a key and an alarm

code.      For roughly two weeks before Mr. Buckley’s arrest, Mr. Coe’s office had been

receiving calls from the Mentor police to verify if Mr. Buckley was allowed to be on the

premises.      Mr. Coe and his office manager assured the police Mr. Buckley had

permission.

        {¶19} Before the defense presented its case, the state and defense counsel

agreed to stipulate that the peace officers were “in the performance of their official

business,” an essential element to enhancing the offense of assault from a first degree

misdemeanor to a fourth degree felony.

        {¶20} The jury returned a verdict of guilty on both counts of assault on a peace

officer.

        {¶21} At the sentencing hearing, the court considered the record, oral statements,

the victim impact statement, the pre-sentence report and/or drug and alcohol evaluation,

as well as the principles and purposes of sentencing in R.C. 2929.11 and the

seriousness/recidivism factors in R.C. 2929.12. The court sentenced Mr. Buckley to

serve a 27-month consecutive prison term (15 months on Count 1 and 12 months on


                                             6
Count 2) and to pay a fine of $100 ($50 for the possession of marijuana and $50 for the

illegal use/possession of marijuana drug paraphernalia).

         {¶22} Mr. Buckley now timely appeals, raising the following five assignments of

error:

         {¶23} “[1.] The defendant-appellant’s constitutional rights to due process and fair

trial under the Fifth, Sixth and Fourtee[n]th Amendments to the United States Constitution

and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced by the

ineffective assistance of trial counsel.

         {¶24} “[2.] The trial court committed plain error when in [sic] failed to read a self-

defense instruction to the jury.

         {¶25} “[3.] The trial court erred to the prejudice of the defendant-appellant when

it denied his motion for acquittal made pursuant to Crim. R. 29(A).

         {¶26} “[4.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.

         {¶27} “[5.] The trial court erred by sentencing the defendant-appellant to prison

sentences totaling 27 months.”

         {¶28} For the sake of cohesion, we address Mr. Buckley’s ineffective assistance

of counsel claim last because he raises the same issues in his second and third

assignments of error.

                                 Jury Instruction on Self Defense

         {¶29} In his second assignment of error, Mr. Buckley contends the trial court

committed plain error by failing to instruct the jury on self-defense.

         {¶30} “Pursuant to Crim.R. 30(A), the failure to object to a jury instruction in a

timely manner generally constitutes a waiver of any claimed error relative to the


                                               7
instructions.” (Citations omitted.) State v. Reeds, 11th Dist. Lake No. 2007-L-120, 2008-

Ohio-1781, ¶35. “Under Crim.R. 52(B), however, this court has the power to recognize

plain error or defects involving substantial rights even if they are not brought to the

attention of the trial court.” (Citations omitted.) Id.

       {¶31} “In the context of a criminal case, a court of review should invoke the plain

error doctrine with the utmost caution, under exceptional circumstances, and only to

prevent a miscarriage of justice.” (Citations omitted.) Id. at ¶36; State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus. “Thus, plain error does not exist unless,

but for the error, the outcome of the proceedings would have been different.” (Citations

omitted.) Id.; Long at paragraph two of the syllabus.

       {¶32} “After arguments are completed, a trial court must fully and completely give

the jury all instructions which are relevant and necessary for the jury to weigh the evidence

and discharge its duty as the fact finder.” (Citations omitted.) Id. at ¶37.

       {¶33} “In determining whether a self-defense jury instruction is warranted, we look

to ‘whether the defendant has introduced sufficient evidence, which, if believed, would

raise a question in the minds of reasonable men concerning the existence of such issue.’”

State v. Imondi, 11th Dist. Lake No. 2014-L-019, 2015-Ohio-2605, ¶17, quoting State v.

Melchior, 56 Ohio St.2d 15 (1978), paragraph one of the syllabus.

       {¶34} Self defense is an affirmative defense,1 and a defendant attempting to

invoke it must prove (1) he was not at fault for creating the situation, (2) he had a bona

fide belief he was in imminent danger, (3) he did not violate a duty to retreat, and (4) the

force used was necessary. (Citation omitted.) Id. at ¶18.



1. Am.Sub.H.B. No. 228 of the 132nd General Assembly, effective March 28, 2019, amended R.C.
2901.05 and inter alia, shifts the burden of proof for self-defense claims to the prosecutor.


                                               8
       {¶35} Our review of the record indicates there was insufficient evidence presented

at trial to warrant an instruction on self-defense. Although Mr. Buckley contends he was

not at fault for creating the situation that gave rise to the altercation, the evidence

presented demonstrated otherwise.

       {¶36} Watching from the side door of Vehicles Unlimited, Mr. Buckley observed

Officer Heramb investigate his vehicle. When Officer Heramb approached Mr. Buckley

and asked him to step outside, Mr. Buckley swore at the officer and told the officer he

was on private property. He refused to leave the building and to speak with the officer.

When Officer Balongie arrived to assist Officer Heramb, the officers again approached

Mr. Buckley and decided to pull him outside of the building. Instead of obeying the

officers’ instructions to step outside and speak with them, Mr. Buckley threw a punch to

evade arrest.

       {¶37} Mr. Buckley failed to present any evidence that (1) he was not at fault in

creating the situation, (2) he had a bona fide belief that he was in imminent danger, (3)

he did not violate a duty to retreat, and (4) the force used was necessary. Mr. Buckley

cannot now claim a self defense instruction was warranted when he failed to present any

evidence to support such a defense.

       {¶38} Mr. Buckley’s second assignment of error is without merit.

                                The Sufficiency of the Evidence

       {¶39} In his third assignment of error, Mr. Buckley challenges the sufficiency of

the evidence as to the elements of assault and whether the peace officers were “in the

performance of their official duties.”

       {¶40} “[T]he standard of review for a sufficiency of the evidence claim is ‘whether

after viewing the probative evidence and the inference[s] drawn therefrom in the light most


                                            9
favorable to the prosecution, any rational trier of fact could have found all the elements of

the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence.’ * * * ‘In essence, sufficiency is a test of adequacy[;]

[w]hether the evidence is legally sufficient to sustain a verdict * * *.’” (Citations omitted.)

State v. Rice, 11th Dist. Lake Nos. 2018-L-065 & 2018-L-066, 2019-Ohio-1415, ¶65.

“Sufficiency of the evidence tests the burden of production.” Id.; see also State v.

Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J. concurring).

       {¶41} Mr. Buckley was charged with two counts of assault of a peace officer under

R.C. 2903.13(A) which provides: “[n]o person shall knowingly cause or attempt to cause

physical harm to another[.]” Generally, assault is a misdemeanor of the first degree. R.C.

2903.13(C)(1). Pursuant to R.C. 2903.13(C)(5), where the victim of the offense is a peace

officer engaged in the performance of his official duties, the crime is elevated to a felony

of the fourth degree. Furthermore, 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).

       {¶42} Accordingly, the state was required to introduce sufficient evidence that Mr.

Buckley (1) knowingly caused or attempted to cause (2) physical harm (3) to another. A

review of the evidence and testimony presented at trial confirms the state more than met

its burden of production on these elements.

       {¶43} The evidence demonstrated that prior to the incident, Mr. Buckley was

attempting to evade arrest. The surveillance video shows Officer Heramb investigating

the inside of Mr. Buckley’s vehicle with a flashlight, which Mr. Buckley knew contained

two open containers of beer and a bag of marijuana in the center console in plain view of


                                              10
anyone walking past the vehicle. Officer Heramb testified that after he observed the

alcohol and marijuana in Mr. Buckley’s vehicle, he approached the side door of Vehicles

Unlimited, saw Mr. Buckley watching him and asked him to step outside to talk to him.

Mr. Buckley replied, “Fuck you. You’re on private property. You can get the fuck out of

here now.”

       {¶44} Mr. Buckley refused to talk to the officer and walked further into the building,

out of view. Officer Heramb testified he was concerned for his safety since he did not

know if Mr. Buckley had a gun or could access tools inside the building that could be used

as a weapon. When Officer Balongie arrived to assist Officer Heramb, Officer Heramb

informed him he had decided to arrest Mr. Buckley and the plan was to open the unlocked

door to the building and escort Mr. Buckley outside of the building. When Officer Balongie

opened the door to the business and Officer Heramb told Mr. Buckley he was being

arrested, Mr. Buckley punched Officer Balongie and then Officer Heramb.

       {¶45} More specifically, both Officer Heramb and Officer Balongie testified they

were punched in the face and suffered from visible swelling. Mr. Buckley punched Officer

Balongie on the left side of his face with a closed right fist. When Officer Heramb

attempted to assist, Mr. Buckley punched him in the face and tore off the officer’s

microphone that was attached to his uniform.

       {¶46} In addition to the officers’ testimonies, the state introduced photographs of

the victims’ injuries taken after Mr. Buckley’s arrest and the police incident reports.

       {¶47} It is inarguable that when someone punches another person he or she

“knowingly” attempts to cause a certain result, i.e., physical harm to that person. “To act

knowingly, a defendant merely has to be aware that the result may occur, and it is not

necessary to demonstrate that the defendant intended to cause physical injuries.”


                                             11
(Citations omitted.) State v. Ford, 12th Dist. Butler No. CA2009-01-039, 2009-Ohio-6046,

¶49. In this case, there was more than sufficient evidence that Mr. Buckley intended to

punch the officers in an attempt to avoid arrest and speaking with the officers.

       {¶48} Mr. Buckley also argues there was insufficient evidence that the peace

officers were “in the performance of [their] official duties.” We addressed this argument

in State v. Duvall, 11th Dist. Portage No. 95-P-0140, 1997 WL 360695 (June 6, 1997),

where we found a peace officer was “in the performance of [his] official duties” when the

officer was “off duty” serving as a security guard for a high school football game. Id. at

*5. We explained that to determine what comprises a peace officer’s official duties, the

court must examine the activities the officer was engaging in when he was assaulted. Id.

“If the peace officer was engaging in a duty imposed upon him by statute, rule, regulation,

ordinance or usage, regardless of his duty status, that officer is ‘in the performance of

[his] official duties’ for purposes of R.C. 2903.13(C)(1).” Id.

       {¶49} There is no question both officers were “on duty” and actively on patrol,

working their assigned shifts for the Mentor police department.           Both officers were

attempting to arrest Mr. Buckley in their capacities as peace officers after Officer Heramb

observed Mr. Buckley get out of a vehicle and then observe violations of law, i.e., there

were open containers of alcohol and illegal drugs in plain view inside Mr. Buckley’s

vehicle. “* * * [G]enerally, if a peace officer is in the act of arresting an individual in his

jurisdiction, he would be in the performance of his official duties, as a peace officer is

empowered and instructed to arrest individuals who are found violating the laws of this

state.” Id.

       {¶50} We note that in Mr. Buckley’s ineffective assistance of counsel assignment

of error, he raises as an issue the stipulation by defense counsel that the peace officers


                                              12
were in the performance of their official duties. Even if defense counsel had not stipulated

to this fact, there is more than sufficient evidence to prove that Officer Heramb and Officer

Balongie were in the performance of their official duties, i.e., they were in the act of

arresting Mr. Buckley, an individual in their jurisdiction while on active patrol. “The State

is not required to demonstrate that the accused knew or was aware of the fact that the

victim was a peace officer, in order to elevate the offense of assault from a misdemeanor

to a fourth-degree felony under R.C. 2903.13(C). * * * The General Assembly has

articulated the elements of R.C. 2903.13 with sufficient clarity to indicate that the victim’s

status as a police officer shall elevate the criminal offense of assault from a misdemeanor

of the first degree to a felony of the fourth degree regardless of whether or not the accused

specifically knows of the victim’s status as a peace officer.” (Citations omitted.) State v.

Kovacic, 11th Dist. Lake No. 2010-L-018, 2010-Ohio-5663, ¶48.

       {¶51} Buckley also argues that the peace officers were not in the “performance of

[their] official duties” because they were unlawfully arresting him for a minor misdemeanor

offense. The facts of this case are troubling inasmuch as one would expect the officer to

issue a citation rather than entering a building without a warrant to undertake an arrest of

an individual who displayed a set of keys when asked if he had permission to be in the

building.   Mr. Buckley had no outstanding warrants. The officers did not ask for

identification and did not wait to learn from dispatch whether the building owner had been

contacted to confirm the vehicle and the person in it had permission to be there.

       {¶52}   R.C. 2935.26(A) statutorily allows arrests for minor misdemeanor offenses

under certain circumstances, i.e., if the offender requires medical care or is unable to

provide for his own safety, cannot or will not offer satisfactory evidence of his identity,

refuses to sign the citation, or was previously issued a citation for the commission of that


                                             13
misdemeanor and failed to appear or sign a plea of guilty/waiver of trial and pay the fine

and costs. Id. at (1)-(4). Officer Heramb testified he decided to make an arrest because

of Mr. Buckley’s intoxication (presumably inferred intoxication from observing open

containers of alcohol in the truck because he did not notice the odor of alcohol until after

the altercation) and learning of a prior failure to appear for a court appearance via a

LEADS check by dispatch. Reliance on inferred intoxication and/or the prior failure to

appear is a slim reed at best.

       {¶53} Initially, we note that Mr. Buckley did not directly challenge the manner in

which the arrest was carried out. But first and foremost, we note that even if the officers

were in the midst of unlawfully arresting Mr. Buckley, they would still be acting in their

official capacity as peace officers in the performance of their official duties. “[A]n arrested

person is not immune from prosecution merely because of the fact that his arrest was

‘unlawful’ or ‘unauthorized.’ * * * Rather, the issue is whether any of the evidence used

to convict a defendant subjected to an unlawful or unauthorized arrest was inadmissible.”

Kettering v. Hollen, 64 Ohio St.2d 232, 236 (1980), citing State v. Holbert, 38 Ohio St.2d

113 (1974). The marijuana-related convictions relied on evidence that was in plain view;

thus, there was no exclusionary rule issue in this case.

       {¶54} Moreover, and critical to the outcome in this case, an illegal arrest or one

undertaken upon a mistake of law does not give one license to assault a police officer.

“An illegal arrest, without more, has never been viewed as a bar to subsequent

prosecution, nor as a defense to a valid conviction.” State v. Coppock, 103 Ohio App.3d

405, 413 (2d. Dist.1995), citing United States v. Crews, 445 U.S. 463, 474 (1980); State

v. Reymann, 55 Ohio App.3d 222 (9th Dist.1989).




                                              14
       {¶55} Again, Mr. Buckley did not directly challenge the admissibility of the

evidence of the assault, but had he, persuasive case law informs us that even when police

officers unlawfully arrest someone who responds to the arrest by physically attacking the

officers, the assault is a new and independent crime and evidence of this crime is

admissible. State v. Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300, ¶22.

       {¶56} While the resisting arrest charge against Mr. Buckley was dismissed, the

case law addressing conduct in resisting arrest charges is cogent to our analysis. Unlike

the common law rule, the Supreme Court of Ohio, beginning with Columbus v. Fraley, 41

Ohio St.2d 173 (1975), has essentially abrogated the privilege to forcefully or violently

resist an unlawful arrest. Fraley involved a violation of city ordinances prohibiting the use

of obscene language on a public street and assaulting a police officer. The defendant

argued that if her arrest for the alleged use of obscene language was illegal, she was

privileged to use force in resisting it. The Supreme Court of Ohio disagreed. The court

held “in the absence of excessive or unnecessary force by an arresting officer, a private

citizen may not use force to resist arrest by one he knows, or has good reason to believe,

is an authorized police officer engaged in the performance of his duties, whether or not

the arrest is illegal under the circumstances.” Id. at 180.

       {¶57} The court extended this concept to warrantless entry onto a business

premises in State v. Pembaur, 9 Ohio St.3d 136 (1984), and the Eighth District extended

the concept to a private residence, holding that “violence against an officer after he has

gained entrance into a residence, albeit unlawfully, with a purpose to cause physical injury

rather than to resist entry, is not privileged conduct.” Middleburg Hts. v. Theiss, 28 Ohio

App.3d 1,5 (8th Dist.1985).




                                             15
       {¶58} As the Eighth District reasoned in Theiss, Mr. Buckley’s assault charge does

not relate to the entry of the business. Rather, the charge stems from an assault on the

police officers with the intent to cause injury after access had been gained.

       {¶59} Mr. Buckley’s third assignment of error is without merit.

                             The Manifest Weight of the Evidence

       {¶60} In Mr. Buckley’s fourth assignment of error, he argues the manifest weight

of the evidence does not support the jury’s guilty verdict.

       {¶61} “When reviewing a claim that a judgment was against the manifest weight

of the evidence, an appellate court must review the entire record, weigh both the evidence

and all reasonable inferences, consider the credibility of the witnesses, and determine

whether in resolving conflicts, the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that a new trial must be ordered.” (Citations omitted.) Rice

at ¶81. See also Thompkins at 387.

       {¶62} “The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against a conviction. * * * The

role of the appellate court is to engage in a limited weighing of the evidence introduced

at trial in order to determine whether the state appropriately carried its burden of

persuasion. * * * The reviewing court must defer to the factual findings of the trier of fact

as to the weight to be given to the evidence and credibility of witnesses.” (Citations

omitted.) Id. at ¶82.

       {¶63} As addressed above, there is more than sufficient evidence from which the

jury could conclude Mr. Buckley assaulted the peace officers when they tried to arrest

him. Further, the manifest weight of that evidence is heavily in support of the jury’s

verdict.


                                             16
       {¶64} Mr. Buckley attacks the credibility of the officers’ testimony as compared to

the surveillance video, which does not show Mr. Buckley punching the officers. The video

only shows the officers forcing Mr. Buckley to the ground, handcuffing him, and punching

him in the head. He also contends it is highly suspect that both officers did not activate

the in-car recording devices before engaging Mr. Buckley as policy requires. Thus, he

argues the testimony of the patrolman “lacked reliability and credibility, was self-serving

and was conflicting.” While we agree the admitted failure to use available recording

devices per departmental policy is troubling, the credibility of witnesses is for the jury to

determine so long as the evidence supports the verdict.

       {¶65} “It is well settled that when assessing the credibility of witnesses, ‘[t]he

choice between the credibility of witnesses and their conflicting testimony rests solely with

the finder of fact and an appellate court may not substitute its own judgment for that of

the finder of fact.’ * * * Furthermore, if the evidence is susceptible to more than one

interpretation, a reviewing court must interpret it in a manner consistent with the verdict.”

(Citations omitted.) Id. at ¶84.

       {¶66} Mr. Buckley’s fourth assignment of error is without merit.

                                   Sentence as Contrary to Law

       {¶67} In his fifth assignment of error, Mr. Buckley contends his sentence is

contrary to law because the trial court failed to consider the seriousness and recidivism

factors pursuant to R.C. 2929.12.

       {¶68} “The Supreme Court of Ohio in State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, held that appellate courts must apply the standard of review set forth in R.C.

2953.08(G)(2) when reviewing felony sentences.” State v. O’Keefe, 11th Dist. Lake No.

2018-L-088, 2019-Ohio-841, ¶15, citing State v. Talley, 11th Lake Nos. 2017-L-143 &


                                             17
2017-L-144, 2018-Ohio-5065, ¶45, quoting Marcum at ¶1. “Thus, applying the plain

language of that statute, the Supreme Court held that ‘an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing evidence

that the record does not support the trial court’s findings under relevant statutes or that

the sentence is otherwise contrary to law.’” Id. “The clear and convincing standard in

R.C. 2953.08(G)(2) is highly deferential.” Id., quoting State v. Venes, 8th Dist. Cuyahoga

No. 98682, 2013-Ohio-1891, ¶21.

       {¶69} Moreover, the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, held that R.C. 2929.11 and R.C. 2929.12 do not “mandate judicial fact-

finding; rather in exercising its discretion, a court is merely required to ‘consider’ the

purposes of sentencing in R.C. 2929.11 and the statutory guidelines and factors set forth

in R.C. 2929.12.” Id. at ¶16, quoting State v. Lloyd, 11th Dist. Lake No. 2006-L-185,

2007-Ohio-3013, ¶44, citing Foster at ¶36-42.

       {¶70} Further, “sentencing consistency is not derived from the trial court’s

comparison of the current case to prior sentences for similar offenders and similar

offenses.” Id. at ¶17, citing Lloyd at ¶51, citing State v. Spellman, 160 Ohio App.3d 718,

2005-Ohio-2065, ¶12 (11th Dist.). “Instead, ‘it is the trial court’s proper application of the

statutory sentencing guidelines that ensures consistency.’” (Citation omitted.) Id. “Thus,

in order to show a sentence is inconsistent, a defendant must show the trial court failed

to properly consider the statutory guidelines and factors.” Id.

       {¶71} A review of the sentencing hearing transcript and the trial court’s judgment

entry demonstrates the trial court expressly considered the seriousness and recidivism

factors contained in R.C. 2929.12. In terms of factors that make a crime more serious,

the court emphasized that there “were serious physical injuries caused to the victim.


                                             18
Specifically, the broken right hand with respect to Officer Balongie. Also, right forearm

contusion and abrasions based upon the record with respect to Officer Heramb, both

being police officers.” The court found no factors making the crimes less serious than

normal.

       {¶72}    As for recidivism, the court considered Mr. Buckley’s prior criminal

convictions, which included two separate drug abuse felonies, a resisting arrest

conviction, a drug paraphernalia violation, two separate possession of drugs convictions,

and five OVI convictions, as well as a prior prison history. Mr. Buckley did not respond

favorably to previous sanctions, and his record reflected three separate probation

violations. In addition, Mr. Buckley violated the terms of his bond in this case by using

illegal substances, specifically marijuana, having tested positive as a result of a sample

given on the day the verdict was announced in court. Mr. Buckley had been given the

opportunity to complete numerous treatment programs, yet he was negatively discharged

from four of those. The court found no factors indicating recidivism less likely since Mr.

Buckley did not take responsibility for his actions and showed no remorse for his actions.

       {¶73} The trial court satisfies its obligation to consider the seriousness and

recidivism factors by stating it considered them. O’Keefe at ¶20, citing Lloyd at ¶44.

“‘[T]he trial court is not obligated * * * to give any particular weight or consideration to any

* * * sentencing factor.’” (Citations omitted.) Id.

       {¶74} In the present case, the trial court more than satisfied its obligations by

particularly reviewing each factor, specifically detailing its considerations.        There is

nothing in the record to indicate Mr. Buckley’s sentence is contrary to law.

       {¶75} Mr. Buckley’s fifth assignment of error is without merit.




                                              19
                               Ineffective Assistance of Counsel

       {¶76} In Mr. Buckley’s first assignment of error, he contends his counsel was

ineffective in two respects: (1) by stipulating that the victims were peace officers “in the

performance of [their] official duties, thereby enhancing the offense of assault from a first

degree misdemeanor to a fourth-degree felony, and (2) failing to request a self-defense

jury instruction.

       {¶77} “In determining whether counsel’s performance constitutes ineffective

assistance, an appellate court must find that counsel’s actions fell below an objective

standard of reasonableness and that appellant was prejudiced as a result.” (Citations

omitted.) State v. Stoutamire, 11th Dist. Trumbull No. 2008-T-0108, 2009-Ohio-6228,

¶50; see also Strickland v. Washington, 466 U.S. 668, 687-694 (1984). “In performing its

review, an appellate court is not required to examine counsel’s performance under the

first prong of the Strickland test if an appellant fails to prove the second prong of

prejudicial effect.” (Citations omitted.) Id. at ¶50.     “In demonstrating prejudice, an

appellant must show that there is a reasonable probability that, but for counsel’s errors,

the result of the trial would have been different.” (Citations omitted.) Id. Further, “[a]

strong presumption exists that a licensed attorney is competent and that the challenged

action is the product of sound trial strategy and falls within the wide range of professional

assistance.” (Citations omitted.) Id.

       {¶78} Because we have separately addressed the underlying grounds for these

two issues in Mr. Buckley’s second and third assignments of error and found them to be

without merit, Mr. Buckley’s claims of ineffective assistance of counsel based upon the

same grounds are likewise without merit. See State v. Henderson, 39 Ohio St.3d 24, 33

(1988) (“The grounds which underlie each of these instances have already been


                                             20
separately addressed and found to be without merit. Accordingly, we need not address

the counsel-performance component of these grounds.”); State v. Hobbs, 8th Dist.

Cuyahoga No. 81533, 2003-Ohio-4338, ¶26.

      {¶79} Mr. Buckley’s first assignment of error is without merit.

      {¶80} The judgment of the Lake County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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