[Cite as State v. Matthews, 2013-Ohio-2183.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 12-CA-35
STEVEN L. MATTHEWS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Common
                                               Pleas Court, Case No. 12-CR-68


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        May 16, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


GREGG MARX                                     THOMAS R. ELWING
Prosecuting Attorney                           60 West Columbus Street
                                               Pickerington, Ohio 43147
By: JOCELYN S. KELLY
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 12-CA-35                                                     2

Hoffman, J.


       {¶1}    Defendant-appellant Steven L. Matthews appeals his conviction and

sentence entered by the Fairfield County Court of Common Pleas, on two counts of

retaliation, in violation of R.C. 2921.05(A); and two counts of assault on a corrections

officer, in violation of R.C. 2903.13(A) and (C)(2)(a), following a jury trial. Plaintiff-

appellee is the state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}    On February 10, 2012, the Fairfield County Grand Jury indicted Appellant

on the aforementioned charges. The matter proceeded to jury trial on May 15, 2012.

       {¶3}    The following evidence was adduced at trial. Corrections Officer John

Bluhm was conducting security rounds at the Southeastern Correctional Institution at

approximately 11 p.m. on November 19, 2011, when he observed Appellant, an inmate,

with a pick in his hair. C.O. Bluhm ordered Appellant to remove the pick as SCI policy

prohibited inmates from having potential weapons in their hair. In response, Appellant

swore at C.O. Bluhm, and asked, “Who’s it bothering?” Appellant did not comply with

the order to remove the pick. C.O. Bluhm again informed Appellant of SCI’s policy and

again ordered Appellant to remove the pick. Because Appellant failed to comply, C.O.

Bluhm instructed him to gather his property and take it to another area. Appellant

refused to do so. C.O. Bluhm then ordered Appellant to get his I.D. Appellant swore at

the officer, and replied, “If you want it, you find it.”

       {¶4}    C.O. Bluhm reached up and removed the pick from Appellant’s hair.

Appellant turned around and struck the officer in the face and chest. C.O. Bluhm fell

back and struck his head on a bunk bed. The officer stood, intending to spray Appellant
Fairfield County, Case No. 12-CA-35                                                     3


with OC, a type of pepper spray. A physical altercation ensued during which Appellant

sprayed C.O. Bluhm with pepper spray.

         {¶5}   C.O. Josh Jarrell arrived to assist C.O. Bluhm. Appellant, raising the can

of pepper spray, ran toward the officer and grabbed him. Appellant squeezed and

choked C.O. Jarrell and then slammed his head into a glass wall. A third corrections

officer arrived and was able to restrain Appellant. The entire altercation was recorded

on video.

         {¶6}   After hearing all the evidence and deliberations, the jury found Appellant

guilty on all four counts. The parties agreed the counts of assault and retaliation as to

C.O. Bluhm were allied offenses of similar import, and the counts of assault and

retaliation as to C.O. Jarrell were also allied offenses of similar import.     The state

elected to proceed with sentencing on the retaliation charges. The trial court sentenced

Appellant to a term of 24 months on each count, and order the terms be served

consecutively. The trial court memorialized Appellant’s conviction and sentence in a

Judgment Entry of Sentence filed June 22, 2012.

         {¶7}   It is from his conviction and sentence Appellant appeals, asserting as

error:

         {¶8}   “I. THE TRIAL COURT ERRED IN FINDING THAT SUFFICIENT

EVIDENCE WAS PRESENTED TO CONVICT STEVEN L. MATTHEWS OF TWO

COUNTS OF RETALIATION UNDER 2921.05(A) FOR ALLEGED ACTS OF

RETALIATION COMMITTED PRIOR TO THE COMMENCEMENT OF ANY CIVIL OR

CRIMINAL ACTION OR PROCEEDING IN A COURT OF JUSTICE.”
Fairfield County, Case No. 12-CA-35                                                          4


                                                  I

       {¶9}   Appellant was convicted of two counts of retaliation, in violation of R.C.

2921.05(A). The statute reads, in pertinent part:

              No person, purposely and by force or by unlawful threat of harm to

       any person or property, shall retaliate against a public servant, a party

       official, or an attorney or witness who was involved in a civil or criminal

       action or proceeding because the public servant, party official, attorney, or

       witness discharged the duties of the public servant, party official, attorney,

       or witness.

       {¶10} Appellant argues the phrase “involved in a civil or criminal action or

proceeding” is a critical element of the offense, requiring a current court proceeding to

support a conviction under R.C. 2921.05(A). Brief of Appellant at 7. Appellant explains

although C.O. Bluhm and C.O. Jarrell qualify as “public servants” as defined in R.C.

2921.05(B), neither corrections officer was involved in a civil or criminal action for which

he could be the victim of retaliation. Appellee counters the phrase “involved in a civil or

criminal action or proceeding” is applicable only to an attorney or witness, not to a public

servant or party official. We agree with Appellee.

       {¶11} We find the legislature intended R.C. 2921.05(A) to prohibit retaliation

against three categories of individuals: (1) the public servant, (2) the party official, or (3)

the attorney or witness who was involved in a civil or criminal action or proceeding. The

placement of the comma before “or an attorney or witness” in the context of this

sentence clearly establishes the third category of potential victims of retaliation

encompasses attorneys or witnesses who were involved in civil or criminal actions or
Fairfield County, Case No. 12-CA-35                                                   5


proceedings. The use of “or” before the word “attorney” would be superfluous if the

phrase “who was involved in a civil or criminal action or proceeding” was meant to

modify each category.

       {¶12} As used in R.C. 2921.05(A), “who was involved in a civil or criminal action

or proceeding” is an essential relative clause modifying only an attorney or witness.

This interpretation is also supported by the Ohio Jury Instructions, which read, in

relevant part:

                 The defendant is charged with retaliation. Before you can find the

       defendant guilty, you must find beyond a reasonable doubt that on or

       about the day of, and in County, Ohio, the defendant, purposely and by

       (force) (unlawful threat of harm to any person or property) retaliated

       against

                 (Use appropriate alternative)

                 (A)

                 a (public servant) (party official) ([attorney] [witness] who was

       involved in a [civil] [criminal] action or proceeding) because the (public

       servant) (party official) (attorney) (witness) discharged his/her duties. 2

       OJI-CR 521.05(1).

       {¶13} Based upon this interpretation of the retaliation statute, we now determine

whether there was sufficient evidence to support Appellant’s conviction.

       {¶14} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). “The relevant inquiry is whether, after viewing the
Fairfield County, Case No. 12-CA-35                                                       6


evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172 (1983), 175. See also, State v.

Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new trial “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Martin at 175.

       {¶15} The testimony at trial established John Bluhm and Josh Jarrell were

corrections officers at Southeastern Correctional Institution, working on November 19,

2011. C.O. Bluhm was making security rounds at approximately 11p.m. when he

encountered Appellant. C.O. Bluhm was attempting to make Appellant comply with

institution rules when Appellant retaliated against him.      Likewise, C.O. Jarrell was

discharging his duties as a corrections officer when he attempted to assist C.O. Bluhm

with Appellant. We find there was sufficient evidence to support Appellant’s convictions.

       {¶16} Appellant’s sole assignment of error is overruled.
Fairfield County, Case No. 12-CA-35                                                   7


      {¶17} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
Fairfield County, Case No. 12-CA-35                                              8


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
STEVEN L. MATTHEWS                         :
                                           :
       Defendant-Appellant                 :         Case No. 12-CA-35


       For the reasons stated in our accompanying Opinion, the judgment of the

Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin_____________________
                                           HON. W. SCOTT GWIN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
