[Cite as State v. Burtscher, 2014-Ohio-3388.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :    Hon. Sheila G. Farmer, J.
                                                :    Hon. John W. Wise, J.
-vs-                                            :
                                                :
DAVID BURTSCHER                                 :    Case No. 14CA6
                                                :
        Defendant-Appellant                     :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2013-CR-659




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 30, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JILL M. COCHRAN                                      WILLIAM C. FITHIAN, III
38 South Park Street                                 111 North Main Street
Mansfield, OH 44902                                  Mansfield, OH 44902
Richland County, Case No. 14CA6                                                        2

Farmer, J.

      {¶1}   On November 7, 2013, the Richland County Grand Jury indicted appellant,

David Burtscher, on one count of assault of a peace officer in violation of R.C. 2903.13

(A) and (C)(5). Said charge arose from an incident wherein appellant scuffled with

Richland County Sherriff's Deputy Reginald Ganzhorn after Deputy Ganzhorn was

investigating an open container violation.

      {¶2}   A jury trial commenced on December 19, 2013. The jury found appellant

guilty. By sentencing entry filed December 26, 2013, the trial court sentenced appellant

to eighteen months in prison.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}   "THE    TRIAL      COURT    IMPROPERLY       LIMITED    EVIDENCE       AND

ARGUMENT. IN RESPONSE TO THE USE OF EXCESSIVE FORCE BY A PEACE

OFFICER, A PERSON MAY USE REASONABLE FORCE TO DEFEND HIMSELF."

                                             II

      {¶5}   "THE TRIAL COURT IMPROPERLY ALLOWED THE PROSECUTOR TO

ASK A HYPOTHETICAL QUESTION AND DID NOT STRIKE THE WITNESS' NON-

RESPONSIVE, MISLEADING ANSWER."

                                             I

      {¶6}   Appellant claims the trial court erred in limiting his evidence and argument

on the issue of excessive force. We disagree.
Richland County, Case No. 14CA6                                                          3


      {¶7}   Appellant was charged and convicted of assault of a peace officer in

violation of R.C. 2903.13(A) and (C)(5) which state the following:



             No person shall knowingly cause or attempt to cause physical harm

      to another or to another's unborn.

             (C)(5) If the victim of the offense is a peace officer or an

      investigator of the bureau of criminal identification and investigation, a

      firefighter, or a person performing emergency medical service, while in the

      performance of their official duties, assault is a felony of the fourth degree.



      {¶8}   Appellant argues the trial court erred in ruling that he could not dispute the

reason for his arrest or argue that he felt the arrest was improper in violation of our

position in State v. Green, 5th Dist. Delaware No. 97CAA11052, 1998 WL 429721 (July

2, 1998). In Green, this court specifically held at *3: "We agree with the trial court that

the lawfulness of appellant's arrest is irrelevant because appellant was only charged

with assaulting a peace officer.    The trial court properly limited the scope of direct

examination by appellant." The defendant in Green raised the defense of self-defense

and the trial court permitted testimony relative to the force used as unnecessary and/or

excessive. In the matter sub judice, the affirmative defense of self-defense was not

raised.

      {¶9}   At the conclusion of all the evidence, the trial court placed on the record

defense counsel's request to challenge the reason for the arrest (T. at 206-207):
Richland County, Case No. 14CA6                                                      4


             MR. POTTS: Your Honor, I was going to make some argument… It

      was more of an argument to the jury that since the arrest… Just along the

      litany you just said. That it wasn't a lawful arrest based upon a minor

      misdemeanor summons; and that based upon that, that the officer then

      would not have been performing his official duties as it is described within

      the indictment. And I was going to argue to the jury that if he was not

      performing his official duties, because it was an unlawful arrest, then he

      can't be guilty of this assaulting the peace officer. That is the argument I

      was going to make.



      {¶10} Appellant's defense was summarized in his trial counsel's opening

statement as follows (T. at 110-111):



             MR. POTTS: And at that point in time, the deputy makes the

      decision to arrest him. He grabs a hold of him. My client, David, was just

      trying to get to his apartment, which he was at one point in. And at the

      time of this contact with law enforcement, he is just outside of.

             There won't be evidence that he was stumbling, that he was

      walking in any roadways, anything like that.

             David doesn't understand why he is being arrested. He doesn't

      want to be arrested. And at that point he is forcefully slammed to the

      ground. There will be testimony and evidence that he has had an injury to

      his head, he had a knot on his head.           And at that point in time, he
Richland County, Case No. 14CA6                                                             5


      struggles with the officer.     He doesn't understand why he has been

      grabbed and thrown to the ground. The officer is on top of him. The

      evidence will not show that at any point in time that David was on top of

      Deputy Ganzhorn and beating on him. This all happened while the deputy

      was on top of him. David suffered the initial injuries in this altercation.



      {¶11} During closing argument, defense counsel argued appellant was merely

reacting to being taken to the ground and therefore the three punches to the deputy

"was not a knowing act." T. at 226.

      {¶12} We find the trial court's ruling was consistent with our decision in Green.

      {¶13} The facts of this case establish that while on routine patrol, Deputy

Ganzhorn observed two persons with an open container, one of which was appellant.

T. at 137. He instructed both individuals to put their containers down.             T. at 138.

Appellant did not comply and instead turned away from the deputy, failed to give his

social security number, and attempted to enter his apartment. T. at 138-141. Deputy

Ganzhorn observed red, bloodshot, glassy eyes, slurred speech, and an odor of alcohol

coming from appellant's person. T. at 139.

      {¶14} Due to all of these observations, Deputy Ganzhorn made the decision to

place appellant under arrest. T. at 141. Appellant stiffened and Deputy Ganzhorn was

unable to cuff him. T. at 141-142. As a result, Deputy Ganzhorn took appellant to the

ground to effectuate the arrest. T. at 142. While on the ground, appellant punched

Deputy Ganzhorn three times on the left side of his face in the temporal area. T. at 144.
Richland County, Case No. 14CA6                                                          6


Deputy Ganzhorn testified he used "the proper amount of force to end the situation." T.

at 146.

      {¶15} Appellant argues he was prohibited from introducing evidence of

excessive force.   However, throughout Deputy Ganzhorn's testimony on direct and

cross-examination, there is extensive testimony as to the take-down procedure used,

the relative positions of the deputy and appellant, and the deputy's use of pepper spray.

      {¶16} We find the trial court's decision relative to the evidence on the issue of

excessive force to be correct. The issue presented and argued to the trial court was the

unlawfulness of the arrest for a minor misdemeanor i.e., public intoxication and/or open

container. T. at 206-207.

      {¶17} Upon review, we find the trial court did not err in limiting the evidence and

argument as complained of by appellant.

      {¶18} Assignment of Error I is denied.

                                            II

      {¶19} Appellant claims the trial court erred in denying his trial counsel's objection

to a hypothetical question posed to Deputy Ganzhorn.         In addition, he argues the

answer should have been stricken as non-responsive. We disagree.

      {¶20} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).
Richland County, Case No. 14CA6                                                        7


       {¶21} Evid. R. 701 governs opinion testimony by lay witnesses and states: "If the

witness is not testifying as an expert, the witness' testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (1) rationally based on

the perception of the witness and (2) helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue."

       {¶22} The complained of exchange is as follows (T. at 160):



              MR. BENOIT: Deputy Ganzhorn, had the defendant complied with

       your request and provided you information, what would have occurred?

              MR. POTTS: Objection. Calls for speculation.

              THE COURT: Overruled.

              A. The initial response was the defendant was carrying an open

       container of alcohol. If the defendant would have complied and been in a

       state where he was not a threat to himself by being so highly intoxicated,

       he would have been issued a summons for an open container. My duty at

       that time was to identify the subject, to determine exactly who he is, if he

       has any outstanding warrants and then proceed in my investigation.



       {¶23} The state argues this was not a hypothetical question and we agree. The

question did not call for an opinion by the deputy, but merely posed a "what if" question

on normal police procedure involving an open container investigation.

       {¶24} We fail to find any undue prejudice to appellant or that the complained of

exchange constituted error.
Richland County, Case No. 14CA6                                                8


      {¶25} Assignment of Error II is denied.

      {¶26} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




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