[Cite as State v. Flips , 2018-Ohio-2296.]



                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105825



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                             SHARON D. FIPS

                                                        DEFENDANT-APPELLANT




                                       JUDGMENT:
                           CONVICTION AFFIRMED AS MODIFIED AND
                              REMANDED FOR RESENTENCING



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-16-611329-A

        BEFORE: E.A. Gallagher, A.J., Stewart, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: June 14, 2018
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
BY: Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Katherine Mullin
        Gregory Ochocki
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, A.J.:

       {¶1}     Defendant-appellant Sharon Fips appeals her conviction for assault in the

Cuyahoga County Court of Common Pleas. For the following reasons, we modify and remand.

       I. Facts and Procedural History

       {¶2} In 2016, Fips was charged with one count of assault with the furthermore clause that

the victim was a peace officer. The case proceeded to a bench trial where the following facts

were adduced.

       {¶3} Fips and her son drove to an Ohio State Highway Patrol station in Brook Park, Ohio

in the early morning hours of October 10, 2016. Trooper Patrick Reagan questioned Fips in the

station’s lobby about driving to the station after he detected an odor of alcohol emanating from

her breath. An altercation ensued in the lobby with Fips’ son when Reagan attempted to place

Fips under arrest. Reagan pushed Fips against a wall and asked for the assistance of a fellow

officer, Sergeant Christopher Brock, in handcuffing Fips.

       {¶4} Reagan and Brock testified that Fips was resisting their efforts to restrain her.

Reagan testified that he was standing partially to the side of, but behind, Fips with her shoulder

in his chest when, “she lifted up her right knee and she reached back and hit me in the crotch

with her right knee.” Brock testified that he did not see Fips’ knee come up but did see Reagan

react to contact and heard Reagan say that Fips had “kneed” him.      Reagan did not seek medical

attention and was not restricted in his activities as a result of the incident.   Fips admitted that

she had been drinking alcohol and that she was speaking belligerently during her arrest but

denied striking Reagan.

       {¶5} The trial court found Fips guilty of assault on a peace officer and sentenced her to

one year of community control sanctions.
       II. Law and Analysis

       {¶6} In her sole assignment of error, Fips argues that her conviction for assault was

against the manifest weight of the evidence.

       {¶7} A manifest weight challenge attacks the credibility of the evidence presented and

questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist.

Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Thompkins, 78 Ohio St.3d 380,

387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing court may determine that a

judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the

judgment is against the weight of the evidence.

       {¶8} “When considering an appellant’s claim that a conviction is against the manifest

weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may disagree with the

factfinder’s resolution of conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must examine the

entire record, weigh the evidence and all reasonable inferences, consider the witnesses’

credibility, 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. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172,

485 N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful that the

credibility of witnesses and the weight of the evidence are matters primarily for the trier of fact to

assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of

the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional case in which

the evidence weighs heavily against the conviction.” Thompkins at 387, quoting Martin, supra.
         {¶9} We find Fips’ conviction for assault to be against the manifest weight of the

evidence. In order to convict Fips of assault in this instance, the evidence needed to show that

Fips knowingly caused or attempted to cause physical harm to Reagan. R.C. 2903.13(A).

Pursuant to R.C. 2901.22(B), a person acts knowingly, regardless of her purpose, when she is

aware that her conduct will probably cause a certain result or will probably be of a certain nature.

A person has knowledge of circumstances when she is aware that such circumstances probably

exist.

         {¶10} The evidence in this case established that Fips was intoxicated and belligerent. She

struggled when officers Reagan and Brock attempted to handcuff her and some part of her body

came in contact Reagan. Reagan testified that Fips was facing the wall during the incident and

he was to the side of and behind her with her shoulder in his chest. It is hard to accept that, from

the point of view described, Reagan could have accurately discerned an intentional act on the part

of Fips to strike him with her knee. In conjunction with the testimony of Sergeant Brock, who

did not see Fips knee Reagan during the incident, one can infer that Reagan was inadvertently

struck during Fips’ resistance to being handcuffed. We do not impugn the integrity of Trooper

Reagan but merely find that the weight of the evidence does not support a conviction for assault

based solely on his restricted view of the struggle.

         {¶11} Although the weight of the evidence does not support a conviction for assault, the

record does support a conviction for disorderly conduct in violation of R.C. 2917.11(A)(1),

which has been found to be a lesser, included offense of assault. State v. Young, 8th Dist.

Cuyahoga No. 79779, 2002-Ohio-1274.

         {¶12} When reversing on manifest weight grounds it has been established that this court

has the authority to reduce a conviction to that of a lesser included offense when it is supported
by the record, in lieu of ordering a new trial. State v. Dove, 8th Dist. Cuyahoga No. 101809,

2015-Ohio-2761, ¶ 43-46.

       {¶13} Therefore, Fips’ sole assignment of error is sustained in part, and her conviction is

modified accordingly.

       {¶14} The trial court’s judgment is modified to reduce the conviction for assault on a

peace officer to a conviction for disorderly conduct in violation of R.C. 2917.11(A)(1). Fips’

sentence is vacated and this matter is remanded for the trial court to prepare a journal entry that

reflects the conviction for the modified offense and for sentencing consistent with the conviction,

as modified.

       {¶15} The conviction is affirmed as modified and the case is remanded for resentencing.

       It is ordered that the appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is order that a special mandate issue out of this court directing the common pleas court

to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., CONCURS;
MELODY J. STEWART, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)


MELODY J. STEWART, J., DISSENTING:

       {¶16} At trial, Fips testified that “I wasn’t, like, resisting.   I wasn’t fighting them at all.

 I was talking.” And she firmly denied kneeing the officer — “I never kicked this officer at
all.” On appeal, Fips remains true to her trial position that she did not kick the officer and

argues that her conviction for assault is against the manifest weight of the evidence because the

state “had access to a station full of officers,” none of whom saw Fips kick the trooper.

       {¶17} The majority reverses Fips’s conviction by offering a theory that Fips has never

raised: it finds that the trooper could not have “accurately discerned” that Fips acted intentionally

by kneeing him in the groin as she resisted his attempts to place her under arrest. The Ohio

Supreme Court has admonished us from deciding an appeal on the basis of a new, unbriefed

issue. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21. What is

more, this conclusion requires the majority to find that Fips did not testify credibly in denying

that she kicked or kneed the officer, but instead find that she did but lacked the intent to do so.

If Fips denied ever kneeing the officer, she certainly gave no evidence regarding her intent that

would weigh against the trooper’s testimony.

       {¶18}     The dispositive question on appeal is whether the trial court, not the state

trooper, erred by finding that Fips acted intentionally. To reverse the trial judge’s conclusion,

the majority must necessarily conclude that the court wrongly credited the testimony of the

trooper over that of Fips. The trooper described Fips as intoxicated (one hour after her arrest

she had a blood alcohol content of .173) and “extremely agitated.” When she began to interfere

with her son’s arrest, the trooper tried to handcuff her.          Fips physically resisted being

handcuffed (she was described as “trying to get away”), forcing two troopers to restrain her.

The trooper testified that he and another trooper were “securing her up against the wall” when

Fips “lifted her right knee and she reached back and hit me in the crotch with her right knee.”

After being struck, the trooper told the other trooper that “[s]he just kneed knee [sic] in the

crotch.”
       {¶19} The facts presented to the trial court are such that I cannot conclude that the court

lost its way by finding Fips acted intentionally.      The court could reasonably find that the

trooper’s testimony showed that Fips reared her knee back for the purpose of kneeing the officer,

a conclusion that fits with Fips’s physical resistence to being handcuffed. The trial judge could

also view the trooper’s spontaneous declaration that he had been kneed in the crotch as being

indicative of an intent to strike the trooper as opposed to an unintentional act. And to the extent

that the trooper’s statement might be open to interpretation, the trial judge actually saw the

trooper testify and was in the better position to determine what the officer meant by it.

       {¶20} In addition to wrongly finding that the trial judge lost his way by finding Fips

guilty, I believe the majority commits a second error by modifying her conviction to disorderly

conduct.

       {¶21} The reversal of a conviction as being against the manifest weight of the evidence

results in a new trial.   C.K. v. State, 145 Ohio St.3d 322, 2015-Ohio-3421, 49 N.E.3d 1218, ¶

14. As the majority acknowledges, the Ohio Supreme Court has stated that “[w]hen a court of

appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of

the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

resolution of the conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997), quoting, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652

(1982). The concept of the “thirteenth juror” is that the appellate court becomes an additional

juror with the ability to use its vote to create a deadlock and cause a mistrial. Thompkins made

this clear when it cited State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (8th

Dist.1983), for the proposition that a reversal on the weight of the evidence means that 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.” Id.

       {¶22} The majority relies on State v. Dove, 8th Dist. Cuyahoga No. 101809,

2015-Ohio-2761, as authority for finding a conviction against the manifest weight of the

evidence and modifying it to that of a lesser included offense. Dove is part of a unique set of

cases involving the narrow issue of whether the trial court erred by failing to give the R.C.

2905.01(C)(1) instruction regarding a victim of kidnapping having been released in a safe place,

unharmed. Most of the cases have been decided on the total lack of evidence showing that the

victim had been harmed before being released. See, e.g., State v. Banks, 8th Dist. Cuyahoga

No. 91992, 2009-Ohio-4229, ¶ 23 (“In this case, there is no evidence to suggest anything other

than that the victim was released in a safe place unharmed.              Accordingly, defendant’s

conviction for first degree felony kidnapping is against the manifest weight of the evidence.”).

       {¶23} Dove was not decided on a total lack of evidence, but on the “weight” of the

evidence.   In this sense, it is different from Banks. However, the absence of evidence in that

case is apparent in the lack of equivocation about the evidence — the panel did not weigh the

evidence in the sense that it considered competing testimony; rather, it concluded that the

evidence showed that “[the victim] was free, unrestrained, and unharmed for the remainder of the

night. She was able to sleep, remained safe throughout the rest of her stay, and was then driven

home.” Id. at ¶ 45. Dove is not persuasive authority for the proposition that this court has the

authority to reverse on the weight of the evidence and then modify a conviction. I therefore

dissent.
