[Cite as State v. Whetstone, 2016-Ohio-6989.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2015-L-114
        - vs -                                   :

JOHN W. WHETSTONE,                               :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 15 CR 000032.

Judgment: Affirmed.


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

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



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, John W. Whetstone, appeals the judgment of the Lake County

Court of Common Pleas finding him guilty, following a bench trial, of two counts of

assault and one count of resisting arrest. Based on the following, we affirm.

        {¶2}     Officers Josh Williams and Brent Bramley of the City of Mentor-on-the-

Lake Police Department responded to an altercation at Lakeway Lounge, a bar, where
they observed appellant being held on the ground by a man that appellant allegedly

assaulted. Appellant was intoxicated. Appellant was cited for disorderly conduct based

upon his intoxication and conduct and eventually taken to his home by Officer Williams.

      {¶3}   At his home, appellant’s fiancée, Joanna Paul, signed a responsibility

form; appellant was given his citation; and he was released. After he was released,

appellant became increasingly agitated. Despite Officer Williams’ attempts to diffuse

the situation, appellant became more agitated and began to become aggressive.

According to Officer Williams, despite repeated warnings to calm down, appellant took a

step toward him with a closed fist that made the officer feel threatened. At this point,

Officer Williams attempted to place appellant under arrest for fourth-degree

misdemeanor persistent disorderly conduct.       While trying to place appellant under

arrest, a struggle ensued. Officer Williams was able to call for back-up, and Officer

Bramley arrived at appellant’s residence.       Upon arrival, Officer Williams was still

struggling to place appellant under arrest. During this struggle, appellant yelled for his

fiancé to videotape the incident; she complied.        Eventually, the officers secured

appellant; however, when making their way to the police cruiser, appellant continued to

tussle with the officers. Appellant performed a “leg sweep” on Officer Bramley causing

him to fall to the ground. Appellant continued this behavior of performing “leg sweeps”

on both officers causing both officers to fall to the ground. Appellant also scratched the

hand of Officer Williams. Eventually, the officers had to call for more back-up. It took

four officers to get appellant into the police cruiser. While inside the cruiser, appellant

continued to struggle and kicked Officer Williams several times in the chest.




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       {¶4}     Officers Williams and Bramley testified they sustained injuries as a result

of appellant’s conduct.       Specifically, Officer Williams testified he sought medical

treatment for approximately one month after the incident due to swelling in his back and

scratches on his hand.

       {¶5}     Appellant and Ms. Paul also testified. Appellant testified that he purposely

resisted arrest.    He made it difficult for the officers to remove him from his home

because he did not understand why he was being placed under arrest. He testified that

when they went outside he was still trying to push back while the officers were trying to

push him forward and that he purposely dropped his body to the ground to make it

difficult for the officers.   Appellant, however, cited to the slippery condition of the

walkway as cause for why the officers fell. Moreover, appellant testified that while the

officers were holding him down, he tried pulling and twisting his hands, but they were

restrained in handcuffs.

       {¶6}     Ms. Paul testified that although appellant was being uncooperative, she

did not observe him trip any of the officers. She did testify, however, that while she was

recording the incident, she heard the officers tell appellant to stop scratching, biting, and

punching.

       {¶7}     The trial court, as the trier of fact, also viewed the recording of the events

that evening.

       {¶8}     Appellant was indicted on two counts of assault, fourth-degree felonies, in

violation of R.C. 2903.13(A)(5) and one count of resisting arrest, a first-degree

misdemeanor, in violation of R.C. 2921.33(B). After a bench trial, the trial court found




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appellant guilty on all three counts. Appellant was sentenced to consecutive 13-month

prison terms on each felony, for a total imprisonment term of 36 months.

       {¶9}   Appellant filed a timely notice of appeal.

       {¶10} Upon review of the record, this court found the record did not contain any

disposition for Count 3, Resisting Arrest. The entry did not impose any sentence for

Count 3 nor did it merge that count with either of the other counts. Accordingly, this

court ordered, sua sponte, that the case be remanded to the trial court for the purpose

of including a disposition for Count 3.

       {¶11} On July 21, 2016, the Lake County Court of Common Pleas held a hearing

wherein it granted appellant’s motion for judicial release. In the same judgment entry

that granted judicial release, the court indicated that appellant’s sentence was amended

to include a merger of Count 3 into Count 2. We now have jurisdiction to consider

appellant’s appeal.

       {¶12} On appeal, appellant alleges:

       {¶13} “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 in violation of his

due process rights, as guaranteed by the Fourteenth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution.”

       {¶14} Under his sole assignment of error, appellant maintains the trial court’s

finding of guilt as to the two counts of aggravated assault was against the manifest

weight of the evidence.

       {¶15} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the




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credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio

St.3d 380, 387 (1997).

      {¶16} “The trier of fact is in the best position to evaluate inconsistencies in

testimony by observing the witness’s manner and demeanor on the witness stand—

attributes impossible to glean through a printed record.” State v. Williams, 11th Dist.

Lake No. 2012-L-078, 2013-Ohio-2040, ¶21. Therefore, we must defer to the weight

and credibility the trier of fact gave to the evidence in this case. State v. Barnes, 11th

Dist. Portage No. 2012-P-0133, 2013-Ohio-2836, ¶49; see also State v. DeHass, 10

Ohio St.2d 230 (1967), paragraph one of the syllabus. .

      {¶17} A judgment of the trial court should be reversed as being against the

manifest weight of the evidence “only in the exceptional case in which the evidence

weighs heavily against the conviction.” Thompkins, supra, at 387.

      {¶18} Appellant was found guilty of two counts of assault, in violation of R.C.

2903.13(A), which states: “No person shall knowingly cause or attempt to cause

physical harm to another * * *[.]” (emphasis added). Appellant was also found guilty of

resisting arrest, in violation of R.C. 2921.33(B), which states: “No person, recklessly or

by force, shall resist or interfere with a lawful arrest of the person or another person

and, during the course of or as a result of the resistance or interference, cause physical

harm to a law enforcement officer.” As noted, this count was merged with one count of

assault.




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      {¶19} Appellant argues he did not act “knowingly.” “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. A person has knowledge

of circumstances when the person is aware that such circumstances probably exist.”

R.C. 2901.22(B).      “The legal concept of ‘knowingly’ incorporates the scienter

requirement that one ought to know one’s actions will ‘probably cause certain results.’

The concept of reasonable probability literally embraces the concept of foreseeability.”

State v. Barker, 11th Dist. Portage No. 2010-P-0044, 2012-Ohio-522, ¶114.

      {¶20} The concept of “knowingly” also incorporates “purpose” and “intent.” R.C.

2901.22(E) specifically states: “When knowledge suffices to establish an element of an

offense, then purpose is also sufficient culpability for such element.” R.C. 2901.22(A)

defines “purpose” as follows: “A person acts purposely when it is the person’s specific

intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is the offender’s specific intention to engage in conduct of that

nature.” Therefore, “knowingly” includes “purposeful” and “intentional” conduct.

      {¶21} “[A] person is presumed to intend the natural, reasonable and probable

consequences of his voluntary acts.” State v. Johnson, 56 Ohio St.2d 35, 39 (1978)

(citations omitted). Furthermore, “[i]t is not necessary that the accused be in a position

to foresee the precise consequence of his conduct; only that the consequence be

foreseeable in the sense that what actually transpired was natural and logical in that it

was within the scope of the risk created by his conduct.” State v. Losey, 23 Ohio

App.3d 93, 96 (10th Dist.1985). Intent can be determined from the surrounding facts




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and circumstances. State v. Robinson, 161 Ohio St. 213 (1954), paragraph five of the

syllabus.

       {¶22} Appellant maintains the state failed to present evidence that he intended

to cause injury to the officers, contending the weather conditions were icy and slippery.

Appellant denies “leg sweeping the officers” and claims the officers fell because he

slipped while he was “trying to push himself back into the home while the officers were

pushing him forward.” Appellant states that “while he was resisting arrest, he was by

law permitted to as the arrest was unlawful.” He testified he continued to “resist his

arrest” “as the officers dragged him out of the house.”

       {¶23} This court has addressed and rejected a similar argument in State v.

Newsome, 11th Dist. Ashtabula No. 2003-A-0076, 2005-Ohio-3775. In Newsome, we

rejected the appellant’s contention “that he would have been privileged to forcibly resist

the officers provided his arrest [was] unlawful.”      Id. at ¶11.    “‘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., citing Columbus v. Fraley, 41 Ohio St.2d 173

(1975), paragraph three of the syllabus (emphasis sic). In Newsome, we clarified this

court’s holding in State v. Hendren, 110 Ohio App.3d 496 (1996), noting that “a citizen

may not be convicted of resisting arrest, even by force, if the arrest is unlawful. A lawful

arrest is not an element of assault on a peace officer.”        Id. at ¶12 (emphasis sic)

(citation omitted).   Consequently, if the arrest was unlawful and a citizen forcibly




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resisted arrest, the citizen may not be subject to prosecution for resisting arrest, but

would be subject to prosecution for assault on a peace officer. Id.

       {¶24} Reviewing the evidence admitted in this case, we cannot conclude the

trier of fact lost its way in finding that appellant committed the offense of assault on a

peace officer. The officers testified that despite their warnings, appellant continually

engaged in actions such as throwing his body to the ground, scratching, kicking, and

contorting his body to make it extremely difficult for the officers. The trier of fact also

heard evidence regarding the injuries the officers sustained as a result of appellant’s

behavior. While appellant claims the officers slipped on the icy sidewalk and not as a

result of a “leg sweep,” resolution of “‘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.’” State v. Grayson, 11th Dist. Lake No. 2006-L-153, 2007-Ohio-1772, ¶31, quoting

State v. Awan, 22 Ohio St.3d 120, 123 (1986). “‘Indeed, the factfinder is free to believe

all, part, or none of the testimony of each witness appearing before it.’” Id., quoting

Warren v. Simpson, 11th Dist. Trumbull No. 98-T-0183, 2000 Ohio App. LEXIS 1073, *8

(Mar. 17, 2000).    “If the evidence is susceptible to more than one interpretation, a

reviewing court must interpret it in a manner consistent with the verdict.” Id. (citation

omitted).

       {¶25} The state submitted substantial evidence in support of appellant’s

convictions, and a review of that evidence reveals that the state clearly met its burden of

persuasion. This court cannot say that the trial court clearly lost its way in coming to its

final conclusion regarding appellant’s guilt.




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       {¶26} Under this assigned error, appellant also argues the evidence was against

the manifest weight of the evidence to support his conviction of resisting arrest.

Because appellant’s count of resisting arrest merged into one of the assault counts, no

sentence was imposed on that charge; therefore there is no conviction on that charge.

Any error with regard to the resisting arrest charge in this case is not relevant. See In re

J.C., 11th Dist. Lake No. 2012-L-083, 2013-Ohio-1292, ¶22.

       {¶27} Appellant’s assignment of error is without merit.

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




DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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