[Cite as State v. Taylor, 2010-Ohio-4810.]




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



STATE OF OHIO,                                            CASE NO. 9-10-14

   PLAINTIFF-APPELLEE,

  v.

JAMES C. TAYLOR,                                            OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Marion County Common Pleas Court
                             Trial Court No. 09-CR-242

                                      Judgment Affirmed

                             Date of Decision: October 4, 2010




APPEARANCES:

        Kevin P. Collins, for Appellant

        Denise Martin, for Appellee
Case No. 9-10-14



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant James C. Taylor (“Taylor”) brings this appeal

from the judgment of the Court of Common Pleas of Marion County finding him

guilty of assaulting a police officer. For the reasons set forth below, the judgment

is affirmed.

       {¶2} On May 16, 2009, a distress call was made to 911 by Taylor. Taylor

was confused and frantic during the call and indicated that he was performing

CPR on the injured party. Officer Kenneth Persinger (“Persinger”) and Officer

Matt Collins (“Collins”), both employed by the Marion City Police, responded to

the call along with other officers, paramedics, and the fire department. When they

arrived, they found a man on the floor, severely injured and barely breathing.

Taylor was performing chest compressions and mouth-to-mouth breathing. The

officers directed Taylor to step back to allow the EMT’s to take over the care of

the victim and Taylor refused. Taylor was clearly intoxicated and agitated. When

the officers attempted to move Taylor away from the victim he took a swing at

Persinger. After a short struggle, the officers were able to subdue Taylor and

handcuff him.

       {¶3} On May 28, 2009, the Marion County Grand Jury indicted Taylor on

two counts of assaulting a police officer in violation of R.C. 2903.13(A), (B), both

felonies of the fourth degree. Taylor entered a plea of not guilty to both counts on



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June 1, 2009. A jury trial was held on October 26 and 27, 2009. The jury returned

a verdict of guilty for the assault on Persinger, and not guilty on the second count

of the indictment. On January 7, 2010, a sentencing hearing was held. The trial

court sentenced Taylor to three years of community control. Taylor now appeals

from the conviction and raises the following assignment of error.

       [Taylor’s] conviction for assaulting a peace officer is contrary to
       the manifest weight of the evidence.

       {¶4} The sole assignment of error alleges that the verdict is against the

manifest weight of the evidence.

       Under a manifest-weight standard, an appellate court sits as a
       “thirteenth juror” and may disagree with the fact finder’s
       resolution of the conflicting testimony. * * * The appellate court,
       “‘reviewing the entire record, weighs the evidence and all
       reasonable inferences, considers the credibility of witnesses and
       determines whether in resolving conflicts in the evidence, the
       jury clearly lost its way and created such a manifest miscarriage
       of justice that the conviction must be reversed and a new trial
       ordered. The discretionary power to grant a new trial should be
       exercised only in the exceptional case in which the evidence
       weighs heavily against conviction.’”

State v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, ¶14, 863 N.E.2d 223.

Although the appellate court may act as a thirteenth juror, it should still give due

deference to the findings made by the fact-finder.

       The fact-finder * * * occupies a superior position in determining
       credibility. The fact-finder can hear and see as well as observe
       the body language, evaluate voice inflections, observe hand
       gestures, perceive the interplay between the witness and the
       examiner, and watch the witness’s reaction to exhibits and the
       like. Determining credibility from a sterile transcript is a


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       Herculean endeavor. A reviewing court must, therefore, accord
       due deference to the credibility determinations made by the
       fact-finder.

State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456.

      {¶5} Taylor was convicted of one count of assault on a police officer, a

violation of R.C. 2903.13(A). In order to prove this charge, the State had to prove

that Taylor 1) knowingly, 2) caused or attempted to cause, 3) physical harm to

Persinger, a peace officer. R.C. 2903.13(A)(D). Persinger testified that he was a

peace officer and as follows:

       [Persinger]: I said “look, the squad guys are here, let them take
       care of his, step back.” He said “no, I’m gonna help my buddy.”
       I said “no, the squadmen are here, get back.” He said no again.

       ***

       Q. How many times do you think you repeated this to get out of
          the way?

       A. I asked him to get out of the way at least three times.

       Q. Okay. And the number of times that you asked, or the time
          it took for you to tell him, not ask him, but to tell him to get
          out of the way, did he have time to respond?

       A. Yes.

       Q. Okay. What happens after that?

       A. After he refuses to move – remove himself from this person,
          I put my left hand, and I moved my flashlight to my right
          hand so I could use my left hand, and I put it underneath of
          his shoulder, it would be here, and asked him to move again,
          and he said no. So I scooted him backwards and he stood



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          up, and when he did stand up he lunged forward towards me
          and swung his fist at me with his right hand.

      Q. Was it a closed fist?

      A. Yes, it was.

      Q. You’ve heard different testimony that, you know, some
         people didn’t see punches, et cetera? Are you sure this – the
         Defendant swung on you?

      A. Yes.

      ***

      Q. And what did you do?

      A. In reaction to that I put my left hand up, and then I struck
         the subject in the face with my right hand.

      Q. Why’d you put your – what hand, left hand up?

      A. Yes.

      Q. Why’d you put your left hand up?

      A. Because the punch came from the left side.

      Q. Okay. So was there – do you believe that the Defendant was
         attempting to make contact with you?

      A. Yes, I did.

      ***

      A. Yes, he was trying to hit me.

      Q. Okay. Any doubt?

      A. No.



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       Q. Alright. Had he been able to square off with you where
          would you have been hit?

       ***

       A. The punch was coming towards my head.

       ***

       Q. Have you ever had to hit anyone in the face?

       A. No.

       Q. Alright. What made you do it on this night?

       A. It was reactive in the fact he had directly thrown a punch at
          me.

Tr. 286-91. This testimony was supported by that of Collins, who testified as

follows.

      Q. When EMTs arrive, what do you do?

      A. Well, like I said, they’re even telling him to get back so they
         can get in and treat the subject. About that same time
         Patrolman Persinger puts his hands on Mr. Taylor on his left
         shoulder and is like “you need to get back.” And that’s when
         –

      Q. How would you describe Patrolman Persinger’s mannerisms?

      A. At that point he’s being very stern with him, “you need to get
         back,” because we pretty much exhausted all verbal
         commands at that point.

      Q. Okay. What happened?

      A. As he put his hands on him and told him he needs to get back
         so the EMTs could get in there, Mr. Taylor then gets up
         quickly and lunges at Patrolman Persinger swinging his right


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             fist at patrolman Persinger. I couldn’t see if Patrolman
             Persinger was struck, I could not see that. It didn’t appear
             that he was, but from my angle I couldn’t see. However, I did
             see Patrolman Persinger’s reaction was to, you know, lunge –
             or kind of jerk back and give him a quick strike with his
             right hand. And I believe that Patrolman Persinger did land
             that punch.

Tr. 186-87. Taylor did not present any evidence that these events did not occur.

Given this testimony, this court does not find that the jury clearly lost its way and

created a manifest miscarriage of justice.      Thus, the assignment of error is

overruled.

       {¶6} Having found no error prejudicial to the defendant, the judgment of

the Court of Common Pleas of Marion County is affirmed.

                                                                Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jnc




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