[Cite as State v. Jones, 2011-Ohio-2920.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95574




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                             SAMUEL JONES

                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-535707

        BEFORE: Jones, J., Blackmon, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                      June 16, 2011
ATTORNEY FOR APPELLANT

Reuben J. Sheperd
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Anne McDonough
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                       ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

        {¶ 1} Defendant-appellant, Samuel Jones, appeals his convictions for assault on a

police officer, resisting arrest, and falsification.   We affirm.

        I.   Procedural History and Facts

        {¶ 2} Jones was indicted on ten counts as follows:          Count 1, aggravated burglary;
Count 2, kidnapping; Count 3, domestic violence; Counts 4 and 5, felonious assault with one-

and three-year firearm specifications; Counts 6 and 7, assault on police officers Michael Keane

and Daniel Jopek, respectively; Count 8, resisting arrest; Count 9, falsification; and Count 10,

having weapons while under disability.       Counts 2 and 10, kidnapping and having weapons

while under disability, respectively, were dismissed by the state prior to trial.

       {¶ 3} The case was tried before a jury.        At the conclusion of the state’s case, the

defense made a Crim.R. 29 motion for acquittal; the motion was denied.              The defense

presented evidence and renewed its Crim.R. 29 motion at the conclusion of its case; the

motion was again denied.

       {¶ 4} The jury found Jones guilty of both counts of assault on a police officer,

resisting arrest, and falsification.   He was found not guilty of the remaining counts and

specifications.   The trial court sentenced him to a six-month prison term.




       A.    The State’s Case

       {¶ 5} Jones and Shannon Graham had a son together, and the son resided with

Graham.     At the time of the incident, Jones and Graham were not dating, but were on

friendly terms.   On the evening in question, Graham was at home with a friend, George

Granville, and her son.

       {¶ 6} Graham testified that she and Granville were asleep in her bedroom when she
was awakened by a noise.      Upon investigating, Graham found Jones in her dining room and

asked him what he was doing.      Jones told Graham that the door to the house was unlocked so

he came in.     According to Graham, however, she had locked the doors before going to bed

that evening.   It was undisputed that Jones did not have keys to Graham’s house.

       {¶ 7} Graham testified that she and Jones exchanged words and then Jones went into

the bedroom where he and Granville exchanged words.            Graham got in between Jones and

Granville, and Jones pushed her out of the way, onto the bed.         Granville got his belongings

and left the house.

       {¶ 8} According to Granville, Jones followed him outside, went to his (Jones’s) car,

and got a gun that looked like an AK-47 assault rifle.       Jones was yelling at Granville that he

better not catch him at Graham’s house again, and Granville was telling Jones that the incident

was over and he was leaving.       Granville testified that Jones struck his head with the gun.

Jones then walked away and returned to Graham’s house. Granville left in his car and called

the police to report that a man with a gun was going to Graham’s house.          Granville went to

the hospital a few hours later and received four stitches.

       {¶ 9} Jones only stayed at Graham’s house for a few minutes and was not there when

the police arrived.   The police took a short statement from Graham, searched for weapons,

and then left in pursuit of Jones.    After the police left, Jones returned to Graham’s house.

He was upset, and Graham was concerned that he was going to hurt himself so she called the
police.    Jones left Graham’s house on foot before the police arrived.

          {¶ 10} The police encountered Jones on Graham’s street and asked to speak with him,

but he kept walking.     He had a cell phone up to his ear.     The police commanded Jones to

stop, to which Jones responded that he had not done anything wrong.          One of the officers

grabbed Jones’s arm and asked him his name; Jones responded “George Williams.”                The

police asked him for identification, but Jones said that he had not done anything wrong and

asked the officers to stop bothering him.

          {¶ 11} For officer safety, the police then attempted to handcuff Jones, at which time

Jones starting “throwing elbows back,” hitting the officers, and being physically resistant.

The police told Jones that he was under arrest, but Jones refused to comply.          One of the

officers took out his taser gun and threatened to use it if Jones did not comply with their

orders; Jones still resisted and asked the officers why they were “beating” him.

          {¶ 12} The police gave Jones three warnings, and after the third warning, Jones

grabbed the taser gun out of the officer’s hand.   The officer was able to get the taser back and

tasered Jones twice.     Jones still resisted and was able to grab the taser a second time.   The

police punched Jones and told him to drop the taser or they would shoot him.             Back-up

officers arrived, and Jones surrendered.      The police recovered Jones’s identification card

during a pat-down search and discovered that he was not George Williams as he had told

them.
       {¶ 13} One of the officers involved in the arrest, Officer Joseph Litton, was later

treated for a contusion under his kneecap and a contusion on the back of his ankle.       Officer

Michael Keane, who was also involved in the arrest, was elbowed by Jones several times.

       {¶ 14} Jones was transported to jail.   At jail, Jones attempted to head-butt the officers,

and in doing so, one of the officers, Daniel Jopek, got his thumb caught under Jones’s chin

and tore his muscles.   Officer Jopek was treated at the hospital for his injury.     The police

had to put Jones in a restraint chair and process him at a later time because he was being

physically combative.

       {¶ 15} Apparently, when the police encountered Jones, he had been placing a call.        A

small portion of the encounter between Jones and the police was recorded on the other

person’s voicemail and played for the jury.     Jones was heard on the recording asking the

police why they were beating him.        The officers were heard giving him commands to

cooperate.   Officer Keane testified that after the officers warned Jones that they would shoot

if he did not comply, he heard someone on the other end of the phone pleading with the police

not to shoot Jones.

       {¶ 16} No weapon was ever recovered.

       B.    The Defense’s Case

       {¶ 17} Jones testified that on the evening in question, as he had often done before, he

went to Graham’s house with the intention of sleeping there that night so that he could take
their son to school the following morning.     When he arrived at the house, he saw a vehicle

parked in the spot where he normally parked.       He left his vehicle running, went up to the

house, found the door unlocked, and let himself in.

       {¶ 18} Upon entering the house, Jones noticed boots and a sweatshirt that he knew did

not belong to Graham, and wondered “what bum is she messing with now.”          Jones proceeded

to the bedroom where he found Graham and Granville in bed. He told Granville to go, and

Granville got up, pushed Jones, and ran past him out of the bedroom.           When Granville

pushed him, Jones fell onto Graham; he got up and told her he was not trying to hurt her.

       {¶ 19} Jones then questioned Graham about the man in her room.        He was baffled that

Graham was with another man because he and Graham had been trying to work on their

relationship and, as recently as a week before the incident, had been to counseling.

       {¶ 20} While Jones was trying to talk to Graham, he heard Granville, who was in the

living room, make a derogatory comment.        Jones went to the living room to find out why

Granville was still there.   The two had a “confrontational” conversation.

       {¶ 21} Jones testified that he realized he had left his car running, so he told Granville

to stay in the house while he went outside to turn off his car.        Granville came outside,

however, and as Jones was turning off his car, Granville grabbed him and attempted to punch

him.   Jones then punched Granville.      The two had words, and then Granville got in his

vehicle and drove away.       Jones went back inside Graham’s house to check on his son.
Jones told Graham that he came into the house because the door was unlocked, and then he

left.    He said he felt “hurt” as he left.

          {¶ 22} Jones wanted to go back to Graham’s house to talk to her about their

relationship.    He called her and learned that the police had been called and given his name.

He went to her house anyway and parked his car in a nearby schoolyard so that if he got

arrested, the car would not be towed.         As he was walking to Graham’s house, the police

drove past him.      He saw the police go to Graham’s door, so he kept walking until they were

gone.      When he went to Graham’s door, she was sitting on a couch in the living room but

would not let him in.      Jones told Graham that he loved her, loved their son, and did not know

what was going to happen to him that night; he then left.

          {¶ 23} As Jones was walking back to his car, he was trying to call someone to let them

know he was probably going to jail when the police drove up to him and told him not to move.

  He asked what he did and kept walking.        Jones then heard the officers running toward him

so he stopped walking and turned around.          According to Jones, he remained still and was

waiting for a command from the officers, but instead, one of the officers hit him in the jaw.

The officer then grabbed Jones by his upper torso and tried to throw him to the ground.

According to Jones, he was then “beat up by the police,” despite his pleas for them to stop.

At one point, they tasered him, and he tried to grab the taser gun, but never gained control of

it.     They handcuffed him and placed him in a police cruiser. Jones claimed he was struck
again in the face by the police while in the cruiser.

       {¶ 24} Jones was later placed in an ambulance to be examined and while in there one

of the officers, whom he claimed beat him, came into the ambulance.            Jones “flipped out”

because he did not know what the officer’s intentions were, and he asked him to leave, but the

officer did not.

       {¶ 25} Jones testified that when the police brought him to jail, he was tired from the

beating and just wanted to lie down, but the police “slammed” him into the back portion of the

elevator and started beating him again.    As part of the beating, one of the officers bent one of

his fingers back “as hard as he could.”

       {¶ 26} The beating continued after they got off the elevator, and included the police

slamming Jones on the booking desk, “mashing” his head into the desk, taking his shoes off,

and “stomping” on his toes.       The officers then restrained Jones in a restraint chair with a

“spit” mask, despite the fact that he was not spitting at anyone.

       {¶ 27} Jones denied having a weapon and hitting anyone with a weapon.               He also

denied that he was combative or confrontational.        Jones testified that he was the only witness

in the case who told the truth.

       {¶ 28} Jones assigns two errors for our review, the first challenging the sufficiency of

the evidence and the second challenging the weight of the evidence.

       II.   Law and Analysis
       A.      Sufficiency of the Evidence

       {¶ 29} In his first assignment of error, Jones challenges his convictions for assault on a

police officer and resisting arrest on sufficiency of the evidence grounds.

                 “An appellate court’s function when reviewing the sufficiency of the evidence
                 tosupport a criminal conviction is to examine the evidence admitted at trial to
                 determine whether such evidence, if believed, would convince the average mind
                 of the defendant’s guilt beyond a reasonable doubt. 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 (1991), 61 Ohio St.3d 259,
                 574 N.E.2d 492, paragraph two of the syllabus.

       {¶ 30} A reviewing court is not to assess “whether the state’s evidence is to be

believed, but whether, if believed, the evidence against a defendant would support a

conviction.”     State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541.

       1.   Assault on a Police Officer

       {¶ 31} R.C. 2903.13(A), governing assault, provides in relevant part that “[n]o person

shall knowingly cause or attempt to cause physical harm to another.”            Counts 6 and 7,

relating to Officers Keane and Jopek, respectively, contained furthermore clauses that the

assaults were committed upon peace officers while in performance of their official duties.

       {¶ 32} Jones contends that the state failed to present evidence that Officer Keane

suffered any injuries.     We disagree.      Officer Keane was involved in the initial encounter

between Jones and the police near Graham’s house.        He was the officer who first commanded

Jones to stop.     After Jones repeatedly ignored the officer’s commands, the officer grabbed
Jones by the shoulder; Jones “whipped” the officer’s arm off of him.       The police got hold of

Jones again, and Officer Keane testified as follows about the ensuing events: “So we’re still

trying to hold his arm, and two, three more times [Jones] just fires that right arm back like real

hard * * *.   I had his jacket sleeve, and he’s just throwing that right elbow back real hard,

hits me in the chest, hits me in the shoulder, hits me in the side of the head.   My glasses went

flying sideways.”

       {¶ 33} Physical harm is defined under R.C. 2901.01(A)(3) as “any injury, illness or

other physiological impairment, regardless of its gravity or duration.”     The above testimony

was sufficient evidence that Keane suffered physical harm because of Jones’s actions.

       {¶ 34} Jones further contends that the state failed to prove that he acted knowingly in

regard to either officers.   Rather, Jones contends that it “appears as though it was primarily

[his] intent to break free from the officers who were detaining him.”    We disagree.

       {¶ 35} “A person acts knowingly, regardless of his purpose, when he is aware that the

conduct will probably cause a certain result or will probably be of a certain nature.   A person

has knowledge of circumstances when he is aware that such circumstances probably exist.”

R.C. 2901.22(B).

       {¶ 36} The record here demonstrates that Jones was upset because Graham had been

with another man.     Jones testified that before his encounter with the police, he believed he

would probably be going to jail.      But the state presented testimony that when the police
approached him, he ignored their repeated requests for him to stop and talk to them and

initiated the ensuing physical altercation.   The state also presented evidence that Jones was

highly combative throughout his encounter with the police, including while he was at jail and

the police were trying to book him.      His combativeness in jail resulted in Officer Jopek’s

being treated at the hospital for torn muscles in his hand.

       {¶ 37} On this record, there was sufficient evidence that Jones acted knowingly.

Accordingly, the trial court properly denied Jones’s Crim.R. 29 motion as it related to the

assault on a police officer counts.

       2. Resisting Arrest

       {¶ 38} R.C. 2921.33 governs resisting arrest and provides that “[n]o person, recklessly

or by force, shall resist or interfere with the arrest of the person or another.”   Jones contends

that the evidence was insufficient to support the resisting arrest conviction because when the

police approached him, they “immediately grabbed him without any explanation as to what

they were doing or the purpose for their engagement with him.”        According to Jones, he was

“not told that he was being arrested or detained, and therefore he was not aware that he was

being arrested.”

       {¶ 39} The state presented evidence, however, that when the police encountered Jones

walking on Graham’s street they asked to speak with him, but he kept walking.         The officers

commanded him to stop, but Jones responded that he had done nothing wrong and continued
walking.    Because the police had information that Jones had a weapon, they then attempted to

handcuff him for officer safety.    Jones immediately began to assault them.        The police told

him that he was under arrest, but he remained combative, so much so that the police tasered

him two times.    This evidence, coupled with Jones’s own testimony that (1) he ignored the

police because he had done nothing wrong and (2) prior to his police encounter, he believed he

was going to be arrested, was sufficient evidence that Jones resisted arrest.      Accordingly, the

trial court properly overruled the Crim.R. 29 motion as it related to resisting arrest.

       {¶ 40} In light of the above, the first assignment of error is overruled.

       B.   Weight of the Evidence

       {¶ 41} For his second assigned error, Jones contends that his conviction was against

the manifest weight of the evidence.

       {¶ 42} A challenge to the manifest weight of the evidence attacks the credibility of the

evidence presented. Thompkins at 387.         In determining whether a conviction is against the

manifest weight of the evidence, a reviewing court reviews “the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and determines

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.”

Id., citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.              Reversing a

conviction as being against the manifest weight of the evidence and ordering a new trial is
reserved for only those “exceptional cases in which the evidence weighs heavily against the

conviction.”    Id.

       {¶ 43} Jones contends that this case is exceptional because the voicemail recording, on

which he is heard asking the officers why they were beating him, demonstrated his account of

the events was true, namely, that the police were the aggressors and he was merely trying to

defend himself.       One of the officers testified, however, that Jones’s words were inconsistent

with his actions and he believed Jones was aware he was being recorded and therefore made

the statements to help at a later time with his defense.        Jones contends that the officer’s

explanation is “completely implausible.”

       {¶ 44} Jones further contends that the officer’s testimony that he heard a voice on the

phone plead with the police not to shoot Jones is “impossible” because the incident was being

recorded on voicemail.        Thus, according to Jones, the officer’s testimony was a “clear

fabrication” that calls into question the officer’s and his partner’s testimonies.

       {¶ 45} Upon review, this was not an exceptional case in which the evidence weighs

heavily against the conviction.     All of the state’s witnesses testified that Jones was upset and

combative.     Along with Jones’s query to the police why they were beating him, the recording

also included the police attempts to settle Jones down and get him to obey their commands.

Thus, the recording corroborated all of the state’s witnesses’ descriptions of Jones’s demeanor.

  Further, the officer did not waiver from his testimony that he heard a voice on the phone,
and testified that it was possible that Jones could have made two separate phone calls.

       {¶ 46} Moreover, there were inconsistencies in Jones’s testimony.        For example, he

testified that he went to Graham’s house with the intention of sleeping there that night, but left

his vehicle running upon arriving there.      When he realized his car was running, he told

Granville to stay in the house while he went outside to turn it off, despite the fact that he had

previously ordered Granville out of the house.     Further, Jones testified that when the police

approached him, he told them he did not do anything, despite his testimony that after he

learned that the police had been called and given his name, he believed he would be arrested.

       {¶ 47} Although we consider the credibility of witnesses in a manifest weight exercise,

issues of witness credibility and the weight to attach to specific testimony still remain

primarily within the province of the trier of fact, whose opportunity to make those assessments

is superior to that of the reviewing court. State v. DeHass (1967), 10 Ohio St.2d 230, 231,

227 N.E.2d 212.    On this record, the jury did not “clearly [lose] its way and create[ ] such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

Thompkins at 387, citing Martin at 175.

       {¶ 48} In light of the above, the second assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

PATRICIA A. BLACKMON, P.J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS
IN JUDGMENT ONLY
