[Cite as State v. Erdmann, 2019-Ohio-261.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :          CASE NOS. CA2018-06-043
                                                                       CA2018-06-044
                                                  :
     - vs -                                                          OPINION
                                                  :                   1/28/2019

 JOSHUA D. ERDMANN,                               :

        Appellant.                                :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2017 CR 0806



Vincent D. Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, OH 45102, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, OH 45103, for appellant


        S. POWELL, J.

        {¶ 1} Appellant, Joshua D. Erdmann, appeals from his conviction in the Clermont

County Court of Common Pleas after a jury found him guilty of assault of a peace officer.1

For the reasons outlined below, we affirm.



1. Erdmann was also convicted of harassment with a bodily substance. Erdmann did not appeal from that
conviction.
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                               Facts and Procedural History

       {¶ 2} On December 19, 2017, the Clermont County Grand Jury returned an

indictment charging Erdmann with assault of a peace officer in violation of R.C. 2903.13(A),

a fourth-degree felony in accordance with R.C. 2903.13(C)(5). Pursuant to that statute,

"[n]o person shall knowingly cause or attempt to cause physical harm to another or to

another's unborn." According to the bill of particulars, the charge arose after officers with

the Union Township Police Department were dispatched to Erdmann's home to check on a

report of a suicidal male. The suicidal male was later identified as Erdmann.

       {¶ 3} Once at the scene, the officers observed Erdmann with a severe laceration to

his left forearm. The officers dispatched to the scene included the victim in this case, Officer

Terrence Kresser. Upon seeing Erdmann in need of medical attention, the officers applied

pressure to the wound as they waited for an ambulance to arrive. During this time, the bill

of particulars alleged Erdmann "kicked Officer Kresser in his face and spat on Officer

Kresser while at the scene. Officer Kresser was acting in performance of his official duties

when [Erdmann] kicked and spat on him."           Erdmann pled not guilty and the matter

proceeded to a three-day jury trial.

                                          The Trial

       {¶ 4} At trial, the jury heard testimony from several witnesses with the Union

Township Police Department, including Officer Kresser. Erdmann did not testify in his

defense. The following is a summary of the testimony and evidence presented at trial.

                                       The State's Case

       {¶ 5} At approximately 6:45 p.m. on July 4, 2017, Officer Kresser and Officer Brad

Rhodes were dispatched to Erdmann's home on a report of a possible domestic violence

incident. Upon their arrival, Officers Rhodes and Kresser contacted Erdmann and an


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unknown female, presumably Erdmann's wife.            During this time, the record indicates

Erdmann exhibited at least two clues indicating he was intoxicated; namely, the odor of an

alcoholic beverage on his person and red, glassy eyes. Erdmann was not arrested during

this incident and no charges were filed. The record, however, indicates Erdmann and

Officer Kresser exchanged heated, aggressive words towards one another. This includes

Erdmann referring to Officer Kresser as "ugly," a "bitch," a "dwarf," and that he had "little

man syndrome." Erdmann also told both officers to "get the fuck off his property" and

directed his wife to "tell these pansy dicks to leave."

       {¶ 6} During this exchange, the record indicates Erdmann got into the face of

Officer Kresser. As Officer Rhodes testified:

              [OFFICER RHODES]: Mr. Erdmann walked down from the
              porch while [Officer Kresser] was standing to my right. As he
              walked down the back porch, down the stairs, he walked directly
              towards [Officer Kresser] and was a foot or less from [Officer
              Kresser].

              [THE STATE]: Okay, and when he was that close to [Officer
              Kresser], a foot or less, was he making statements to [Officer
              Kresser]?

              [OFFICER RHODES]: Yes, he was.

              [THE STATE]: And what was he saying?

              [OFFICER RHODES]: That was when he called him a dwarf and
              advised he had little man syndrome and called him a bitch.

              [THE STATE]: Okay, and did you see [Officer Kresser] respond
              in any argumentative or threatening manner towards
              [Erdmann]?

              [OFFICER RHODES]: No.

Although acknowledging that he responded to Erdmann with his own heated and

aggressive words, Officer Kresser's testimony regarding this incident essentially mirrored

that of Officer Rhodes' testimony.

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       {¶ 7} An hour later, at approximately 7:45 p.m., several officers with the Union

Township Police Department were again dispatched to Erdmann's home to check on a

report of a suicidal male. These included both Officers Rhodes and Kresser. As noted

above, the suicidal male was later identified as Erdmann. Officer Rhodes was the first

officer to arrive at the scene. Upon his arrival, Officer Rhodes observed Erdmann in the

front yard being held face-down by another man. Officer Rhodes also observed a severe,

large, and deep laceration to Erdmann's left forearm. It is undisputed that the other man

holding Erdmann down was later identified as Erdmann's father.

       {¶ 8} Shortly before Officer Rhodes' arrival, the record indicates paramedics with

the Union Township Fire Department arrived at the scene and began treating Erdmann for

his injuries. During this time, Officer Rhodes testified Erdmann was "moving around" in the

front yard. Because Erdmann would not remain still, Officer Rhodes testified that he

attempted to keep Erdmann's legs stationary so paramedics could continue treating

Erdmann for his injuries.      Officer Rhodes testified that to secure Erdmann's legs he

positioned himself "[j]ust on his left side, just below his hip."

       {¶ 9} Officer Kresser arrived at the scene near the same time as Officer Rhodes.

Upon his arrival, Officer Kresser knelt to the left of Officer Rhodes near Erdmann's feet.

Once there, Officer Kresser testified he began helping Officer Rhodes secure Erdmann's

legs. Officer Rhodes testified he secured Erdmann's legs by "[a]pplying light pressure to

both legs, just above the knee area." Officer Kresser similarly testified that he attempted to

secure Erdmann's legs "with both [his] hands trying to keep his legs down."

       {¶ 10} While he and Officer Kresser were securing Erdmann's legs, Officer Rhodes

testified Erdmann was acting "disorderly" by "moving around," making it hard for the

paramedics to provide care for him, and "screaming."                Officer Kresser also testified


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Erdmann was "thrashing around" by "kicking his legs, rolling to the left and right." The

record indicates that while the officers were securing Erdmann's legs that Erdmann stated

to Officers Rhodes and Kresser, "no, not you mother fuckers."

       {¶ 11} Continuing to assist paramedics by holding down Erdmann's legs, Officer

Rhodes testified "Mr. Erdman lifted his right leg up and kicked [Officer Kresser] in the left

side of his face." Explaining further, Officer Rhodes testified:

              Mr. Erdman was laying on the ground, had his arms above his
              head, and was being treated by the fire department. I was in
              this area here, near his head. [Officer Kresser] was standing
              over here at [Erdmann's] left ankle. [Erdmann] was lying here.
              [Erdmann's] right leg went up, struck [Officer Kresser] in the left
              side of his face.

Officer Rhodes reiterated this same testimony on cross-examination when asked if

Erdmann's foot "definitely" contacted the left side of Officer Kresser's face. Officer Rhodes

responded that it did.

       {¶ 12} When asked what Erdmann was doing immediately prior to kicking Officer

Kresser in the face, Officer Rhodes testified "[h]e was moving on the ground. Making it

hard for the medics to provide care. Prior to that point, he did not lift his leg up that high."

Officer Rhodes then testified:

              [THE STATE]: Okay, so that was the first time you had seen
              [Erdmann's] leg travel that high?

              [OFFICER RHODES]: Correct.

              [THE STATE]: Had you seen his leg cross his body in the
              manner he did prior to that kick?

              [OFFICER RHODES]: No.

       {¶ 13} Upon being kicked in the left side of his face, Officer Rhodes testified Officer

Kresser fell to his right, placed his arm on the ground, steadied himself, and stood upright.

Officer Rhodes then testified:

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              [THE STATE]: Okay, and the way that everyone was positioned,
              * * * did [Erdmann] have a clear line of sight to where [Officer
              Kresser] was?

              [OFFICER RHODES]: Yes.

       {¶ 14} Officer Kresser's testimony regarding the kick Erdmann gave to the left side

of his face is identical to that of Officer Rhodes. As Officer Kresser testified:

              [THE STATE]: And at some point, did he swing his leg up
              towards your head?

              [OFFICER KRESSER]: Yes, ma'am.

              [THE STATE]: And can you describe that, what happened
              there?

              [OFFICER KRESSER]: I can't remember which leg it was. I
              know I got hit on the left side of my face. It wasn't a hard kick.
              It did make me lose my balance.

Officer Kresser then reiterated that, "[y]es, I felt the kick." According to Officer Kresser's

testimony, the kick caused him to fall to the right and "stagger so to speak." Officer Kresser

also testified Erdmann had a direct line of sight from where he was kneeling next to Officer

Rhodes at the time Erdmann kicked him in the face.

       {¶ 15} After Erdmann kicked Officer Kresser in the face, Officers Rhodes and

Kresser went back to securing Erdmann's legs. Due to his continued disorderly behavior,

Erdmann was strapped to a cot and moved into an awaiting ambulance. But, even during

this time, Officer Rhodes testified "[Erdmann] was preventing us from strapping him to the

cot due to him moving around so much." Officer Kresser also testified that Erdmann "was

continuing to thrash or kick and squirm." Officer Rhodes further testified that Erdmann

"attempted to take off his tourniquet and was yelling, screaming. Did not want myself or

[Officer Kresser] to assist the fire department in escorting him to the life squad."

       {¶ 16} Once Erdmann was placed into the ambulance, Officer Rhodes testified


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Erdmann spat a "loogie" on Officer Kresser. Officer Kresser also testified that Erdmann

spat a "loogie" at him that hit him in the chest. This testimony was confirmed by a third

officer, Officer Alex Smith, who testified he saw Erdmann turn and look at Officer Kresser

"and then spit on him." Two photographs admitted into evidence depict a glob of saliva on

the front of Officer Kresser's police uniform where Erdmann's spit ultimately landed. A "spit

hood" was then placed on Erdmann to prevent him from spitting or biting any of the officers

as he was transported via ambulance to the hospital.

                                    Erdmann's Defense

       {¶ 17} In his defense, a paramedic with the Union Township Fire Department

testified that he did not see Erdmann kick anyone, including Officer Kresser.              The

paramedic, however, testified that this may have been because he was "obviously really

too busy trying to do patient care * * * and get him stabilized, I did not see that." Explaining

further, the paramedic testified on cross-examination:

              [THE STATE]: Okay. Is it fair to say that you were distracted by
              attending to the wound and not paying attention to maybe what
              was going on with the rest of [Erdmann's] body?

              [PARAMEDIC]: Yes, ma'am.

              [THE STATE]: Okay. So is it possible that a kick could have
              happened or an officer could have been kicked and you wouldn't
              have noticed it?

              [PARAMEDIC]: Could have.

The paramedic also testified that he did not personally observe Erdmann spit on Officer

Kresser although he admitted that it certainly could have happened.

       {¶ 18} Next, Erdmann's father testified that he called 9-1-1 after he witnessed

Erdmann come out of his house with a knife and slit his wrist. Once the paramedics arrived,

Erdmann's father testified he moved back so paramedics could treat Erdmann's wound.


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According to Erdmann's father, several police officers were also at the scene assisting

paramedics tend to his son. However, when asked if Erdmann ever kicked Officer Kresser

during this time, Erdmann's father testified that he did not. Specifically, Erdmann's father

testified:

                [ERDMANN'S TRIAL COUNSEL]: Okay. Did you see your son
                land a kick to the side of [Officer Kresser's] head?

                [ERDMANN'S FATHER]: No, sir.

                [ERDMANN'S TRIAL COUNSEL]: So, you, just to be clear, you
                didn't see your son's foot come into contact with any officer?

                [ERDMANN'S FATHER]: No, his foot got about that close. I
                could see daylight.

Thereafter, on cross-examination, Erdmann's father testified:

                [THE STATE]: Now, is it possible that with everything that was
                going on, that kick could have made contact and you just didn't
                see it based on the angle and the chaos?

                [ERDMANN'S FATHER]: No, I was – it – face – my eyes, the
                daylight from between the house and the backyard, I – I'm just
                – I can only remember kind of in slow motion of just poof. So
                no, there was no doubt in my mind.

Concluding, Erdmann's father testified that "there is not a shred of doubt that there was no

kick landed."

        {¶ 19} Erdmann's wife similarly testified that she "never saw [Erdmann's] foot hit a

police officer." However, on cross-examination, Erdmann's wife testified:

                [THE STATE]: Okay. And how – your testimony is that that kick
                did not land on [Officer Kresser]. Is that right?

                [ERDMANN'S WIFE]: I never saw it hit the officer.

                [THE STATE]: You never saw it hit, or it didn't hit?

                ***

                [ERDMANN'S WIFE]: Correct. To me it – from my vantage

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              point, it didn't look like it did. I saw an officer moving forward
              and jump on his legs. I never saw an officer get hit or fall over
              or anything.

But, when asked if it was possible that Erdmann did in fact land a kick on Officer Kresser,

Erdmann's wife testified, "I suppose it is."

                                               Appeal

       {¶ 20} Erdmann now appeals his conviction, raising two assignments of error for

review. In his two assignments of error, Erdmann argues the trial court erred by denying

his Crim.R. 29 motion for acquittal.      In support, Erdmann argues the state provided

insufficient evidence to support his conviction for assault of a peace officer. Erdmann also

argues his conviction was against the manifest weight of the evidence. We find no merit to

Erdmann's claims.

                                     Standard of Review

       {¶ 21} "A Crim.R. 29 motion is asserted to test the sufficiency of the evidence." State

v. McMurray, 12th Dist. Preble No. CA2014-08-008, 2015-Ohio-2827, ¶ 37. Whether the

evidence presented is legally sufficient to sustain a verdict is a question of law. State v.

Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence to determine whether such evidence, if believed, would convince the average

mind of the defendant's guilt beyond a reasonable doubt. State v. Intihar, 12th Dist. Warren

CA2015-05-046, 2015-Ohio-5507, ¶ 9. The relevant inquiry is "whether, after viewing the

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." State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. In other words, "the test

for sufficiency requires a determination as to whether the state has met its burden of


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production at trial." State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202,

¶ 34, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 33.

When evaluating the sufficiency of the evidence, this court must view all evidence in the

light most favorable to the state and "defer to the trier of fact on questions of credibility and

the weight assigned to the evidence." State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-

1966, ¶ 132.

       {¶ 22} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence and

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

in resolving the 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. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147,

2014-Ohio-2472, ¶ 34.

       {¶ 23} Questions regarding witness credibility and weight of the evidence "are

primarily matters for the trier of fact to decide since the trier of fact is in the best position to

judge the credibility of the witnesses and the weight to be given the evidence." State v.

Walker, 12th Dist. Butler App. No. CA2006-04-085, 2007-Ohio-911, ¶ 26. As a result, "the

question upon review is 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." Grinstead, 2011-Ohio-3018 at ¶ 11. Therefore, an appellate court will overturn

a conviction due to the manifest weight of the evidence only in extraordinary circumstances


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when the evidence presented at trial weighs heavily in favor of acquittal. State v. Blair, 12th

Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 43.

       {¶ 24} "The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380

(1997), paragraph two of the syllabus.       Nevertheless, although the two concepts are

different, a finding that a conviction is supported by the manifest weight of the evidence is

also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-

03-049, 2013-Ohio-150, ¶ 19. Therefore, "[b]ecause sufficiency is required to take a case

to the jury, a finding that a conviction is supported by the weight of the evidence must

necessarily include a finding of sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-

03-008, 2012-Ohio-1896, ¶ 43.

                                          Analysis

       {¶ 25} Erdmann was convicted of assault of a peace officer in violation of R.C.

2903.13(A) and (C)(5).     Those statutory provisions make it a fourth-degree felony to

"knowingly cause or attempt to cause physical harm to" a peace officer while in the

performance of their official duties. Erdmann does not dispute that the victim in this case,

Officer Kresser, was a peace officer in the performance of his official duties at the time

Erdmann is alleged to have kicked Kresser in the face. Erdmann instead argues the state

provided insufficient evidence to prove beyond a reasonable doubt that he knowingly kicked

Officer Kresser. Erdmann also claims the jury's finding he acted knowingly when kicking

Officer Kresser goes against the manifest weight of the evidence. As stated previously, we

find no merit to Erdmann's claims.

       {¶ 26} Pursuant to R.C. 2901.22(B), "[a] person acts knowingly, regardless of

purpose, when the person is aware that the person's conduct will probably cause a certain


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result or will probably be of a certain nature." Explaining further, the statute provides that

"[a] person has knowledge of circumstances when the person is aware that such

circumstances probably exist." The statute concludes by stating that "[w]hen knowledge of

the existence of a particular fact is an element of an offense, such knowledge is established

if a person subjectively believes that there is a high probability of its existence and fails to

make inquiry or acts with a conscious purpose to avoid learning the fact."

       {¶ 27} Prior to addressing Erdmann's arguments, we note that, at trial, Erdmann's

defense strategy was to deny he ever kicked Officer Kresser. This is vastly different than

the defense strategy Erdmann now advances on appeal; namely, that he did not knowingly

kick Officer Kresser. "It is well-established that a party cannot raise new issues or legal

theories for the first time on appeal." State v. Mehta, 12th Dist. Butler Nos. CA2000-11-232

and CA2000-12-256, 2001 Ohio App. LEXIS 3896, * 8 (Sept. 4, 2001), citing Stores Realty

Co. v. Cleveland, 41 Ohio St.2d 41, 43; see also State v. Williams, 51 Ohio St.2d 112 (1977),

paragraph one of the syllabus ("[a]n appellate court need not consider an error which a

party complaining of the trial court's judgment could have called, but did not call, to the trial

court's attention at a time when such error could have been avoided or corrected by the trial

court"). But, when considering the facts of this case, and taking into account the interests

of justice and judicial economy, we nevertheless find it appropriate to review Erdmann's

claims challenging his conviction raised herein.

       {¶ 28} As noted above, Erdmann argues his conviction must be reversed because

reasonable minds could not conclude he knowingly kicked Officer Kresser in the face. In

support, Erdmann claims the jury's finding he acted knowingly was improper when

considering he had "been kicking, flailing and screaming prior to Officer Kresser crouching

down near his feet." Erdmann also claims the jury's finding that he acted knowingly was


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improper since the state provided "no evidence that [he] knew there was a police officer at

his feet." Therefore, according to Erdmann, rather than acting knowingly, his act of kicking

Officer Kresser in the face was unintended and amounts to nothing more than an accident.

        {¶ 29} The record does not support Erdmann's claim.         "By definition, the term

'knowingly' means that the defendant's conduct was not an accident." State v. Chambers,

4th Dist. Adams No. 10CA902, 2011-Ohio-4352, ¶ 48. However, after a full and thorough

review of the record, we find reasonable minds could easily conclude Erdmann acted

knowingly when he kicked Officer Kresser in the face. This is confirmed by the testimony

of both Officers Rhodes and Kresser.

        {¶ 30} As both officers testified, Erdmann, with a clear line of sight between himself

and Officer Kresser, kicked Officer Kresser in the left side of the face as Officer Kresser

attempted to secure Erdmann's legs so paramedics to could tend to his injuries. Both

officers also testified that Erdmann had not made any similar kicking motions prior to kicking

Officer Kresser in the face. Albeit circumstantial, this evidence, if believed, indicates

Erdmann acted knowingly – not accidentally – when he kicked Officer Kresser in the face.

A conviction based on circumstantial evidence is no less sound than one based on direct

evidence. State v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 18.

        {¶ 31} In so holding, we note that both Erdmann's father and wife testified that they

did not see Erdmann kick Officer Kresser. Erdmann's father even went so far as to testify

there was "not a shred of doubt that there was no kick landed." However, while both denied

ever seeing Erdmann kick Officer Kresser, the jury clearly found this testimony lacked

credibility. The same is true regarding Erdmann's claim now on appeal it was "very unlikely"

Erdmann had a clear line of sight to Officer Kresser when he kicked Officer Kresser in the

face.


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      {¶ 32} Contrary to Erdmann's claim otherwise, it is well-established that a conviction

is not against the manifest weight of the evidence simply because the trier of fact believed

the testimony of the state's witnesses. State v. Crossty, 12th Dist. Clermont Nos. CA2017-

01-003 thru CA2017-01-005, 2017-Ohio-8267, ¶ 68. Nothing about Officers Rhodes', or

Kresser's testimony was "self-serving drivel" and "simply preposterous" as Erdmann

suggests. Therefore, because we find Erdmann's conviction for assault of a peace officer

was supported by sufficient evidence and was not against the manifest weight of the

evidence, both Erdmann's first and second assignments of error lack merit.

                                       Conclusion

      {¶ 33} Erdmann's conviction for fourth-degree felony assault of a peace officer in

violation of R.C. 2903.13(A) and (C)(5) was supported by sufficient evidence and was not

against the manifest weight of the evidence. Simply stated, the record in this case proves

false Erdmann's claim that he did not act knowingly when he kicked Officer Kresser in the

face. Therefore, because the record fully supports Erdmann's conviction for assault of a

peace officer, the trial court did not err by denying Erdmann's Crim.R. 29 motion for

acquittal. Erdmann's conviction was also not against the manifest weight of the evidence.

Accordingly, finding no merit to any of the arguments raised herein, Erdmann's two

assignments of error lack merit and are overruled.

      {¶ 34} Judgment affirmed.


      HENDRICKSON, P.J., and RINGLAND, J., concur.




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