[Cite as State v. Lillie, 2018-Ohio-2714.]


                                         COURT OF APPEALS
                                    TUSCARAWAS COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2017AP100028
HAROLD W. LILLIE, JR.

         Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                        Appeal from the New Philadelphia
                                                Municipal Court, Case No.
                                                CRB1700607A-B


JUDGMENT:                                       Judgment Reversed, Final Judgment
                                                of Acquittal Entered


DATE OF JUDGMENT ENTRY:                         July 10, 2018


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


LACEE K. FELIX                                  DAVID C. HIPP
Assistant Prosecutor,                           300 East High Avenue, PO Box 90
City of New Philadelphia                        New Philadelphia, OH 44663
150 East High Avenue, Ste. 113
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2017AP100028                                               2

Hoffman, P.J.


       {¶1}   Appellant Harold W. Lillie, Jr. appeals the judgment entered by the New

Philadelphia Municipal Court convicting him of assault in violation of R.C. 2903.13(A).

Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 17, 2017, Appellant went to the Tuscarawas County Humane

Society searching for his dog. Appellant’s friends let the dog out of the fenced area on

the humane society property, and Appellant tried to catch the dog to put it in his car.

Ashlie Yoder, an employee of the humane society, ran out of the building to try to catch

the dog. She confronted Appellant, asking, “Who the hell are you?” Appellant responded

the dog belonged to him and he was there to pick it up.

       {¶3}   As Yoder was attempting to grab the dog, Appellant pushed her in the

shoulder area. She did not fall or sustain injury from the push. Appellant was able to

catch the dog and left the area.

       {¶4}   A deputy with the Tuscarawas County Sheriff’s Department arrived on the

scene. Appellant told the deputy he was agitated because the humane society had taken

his dog. He described his contact with Yoder as a “light push.” Appellant surrendered

the dog to the humane society.

       {¶5}   Appellant was charged with disorderly conduct and assault. The case

proceeded to a bench trial in the New Philadelphia Municipal Court.

       {¶6}   At trial, Appellant’s fiancé testified Yoder made a motion toward Appellant

before Appellant pushed her. The deputy testified according to the video from the
Tuscarawas County, Case No. 2017AP100028                                                 3


humane society’s security camera, Yoder made a movement with her hand before she

was pushed, which may have been her reaching for the dog.

       {¶7}      After the presentation of evidence, the court found Appellant guilty of

attempted assault and dismissed the disorderly conduct charge as an allied offense of

similar import. The trial court stated from the bench:




                 I think he’s guilty of attempted assault and that’s what he’s charged

       with. I think that disorderly conduct is a, you know, we’re going to dismiss

       that as being an allied offense of similar import but I mean it’s pretty clear

       to me that she was after the dog, who are you and he blocked her so that

       he could accomplish his purpose which was so that the dog could get away

       so he could get it. You know, was it an egregious assault? Did he throw a

       punch at her head? No. You know, he didn’t do any of that but I think that

       when you shove a person out of the way that you meet these elements of

       this offense so I’m going to find him guilty and it’s probably a good one to

       appeal, Mr. Urban, and I wouldn’t be surprised if you do but that’s my finding

       today.

       Tr. 51.




       {¶8}      Appellant was sentenced to ninety days incarceration which was

suspended for twelve months of probation, five days on the inmate litter crew, one
Tuscarawas County, Case No. 2017AP100028                                                     4


hundred hours of community service, and a fine of $250.00. It is from the October 3, 2017

judgment of conviction and sentence Appellant prosecutes this appeal, assigning as error:




              “THE TRIAL COURT ERRED IN FINDING THE DEFENDANT

       GUILTY OF ASSAULT WHERE THERE WAS INSUFFICIENT EVIDENCE

       TO SUPPORT A FINDING THAT THE DEFENDANT CAUSED PHYSICAL

       HARM TO ANOTHER AND THAT HE KNOWINGLY CAUSED PHYSICAL

       HARM.”




       {¶9}   We note at the outset the State of Ohio has failed to file a brief in the instant

appeal. Pursuant to App. R. 18(C), where the appellee has failed to file a brief, “in

determining the appeal, the court may accept the appellant’s statement of the facts and

issues as correct and reverse the judgment if appellant’s brief reasonably appears to

sustain this action.”

       {¶10} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶11} Appellant was convicted of assault in violation of R.C. 2903.13(A), which

states, “No person shall knowingly cause or attempt to cause physical harm to another or

to another's unborn.”
Tuscarawas County, Case No. 2017AP100028                                                     5


       {¶12} When accompanied “by the requisite intent, a ‘ * * * shove, push or grab * *

* ’ may satisfy the ‘physical harm’ element of assault.” State v. Williams, 10th Dist. Franklin

No. 01AP–254, at 5, 2001–Ohio–8876.

       {¶13} In State v. Kemper, 12th Dist. Butler No. CA2012-04-079, 983 N.E. 2d 951,

2012-Ohio-951, the appellant pushed the victim out of his way in order to gain access to

property he believed belonged to him. In finding his assault conviction was not supported

by sufficient evidence, the Court of Appeals for the Twelfth District held:




              A description of the events reveals Kemper attempting to retrieve his

       possessions with Winters attempting to prevent Kemper from doing so.

       While it is clear that Kemper intended to gain possession of items he

       believed to be his and that the moment was heated between himself and

       Winters, evidence is lacking to establish beyond a reasonable doubt that

       Kemper had the requisite mens rea to harm Winters. Stated a different way,

       there is insufficient evidence to establish that Kemper was aware that

       placing his hands on Winters' shoulder to move her aside would probably

       cause a certain result, mainly physical harm.




       {¶14} Id. at ¶17. Contrast State v. Thomas, 8th Dist. Cuyahoga No. 104174,

2017-Ohio-957, ¶ 25 (defendant put his hands on victim and pushed her out the door,

followed her to her vehicle, and continuously threatened her); State v. Stover, 8th Dist.

Cuyahoga No. 104388, 2017-Ohio-291, ¶ 30 (defendant grabbed two steak knives and
Tuscarawas County, Case No. 2017AP100028                                                    6


waved them in victim’s face, claiming “somebody [is] going to die,” then pushed her so

hard she fell to the ground).

       {¶15} Accepting Appellant’s statement of the facts as correct pursuant to App. R.

18(C), we find such facts reasonably sustain reversal of his conviction. The facts as set

forth in Appellant’s brief demonstrate Yoder was not injured by what she described as a

“light shove.” She did not fall or sustain injury. The facts as set forth in Appellant’s brief

demonstrate Appellant’s intent was not to injure Yoder, but to gain possession of his dog.

       {¶16} Further, we have reviewed the video from the humane society’s security

camera which was admitted into evidence. The video supports the finding Appellant’s

contact with Yoder was an attempt to block her from catching the dog rather than to cause

her physical harm. Likewise, the trial court’s statement on the record, quoted above,

demonstrates the court determined Appellant’s intent was to block Yoder “so that he could

accomplish his purpose which was so that the dog could get away so he could get it.” Tr.

51. We find neither the video nor the trial court’s findings support the conclusion Appellant

knowingly caused or attempted to cause physical harm to Yoder.1




1 Although we find the evidence insufficient to support the conviction of assault, we find it
would be sufficient to support a conviction of disorderly conduct. However, the trial judge
dismissed the disorderly conduct charge, and we are therefore without jurisdiction to
review the charge. We believe the trial court misconstrued the law concerning allied
offenses, which would have allowed Appellant to be convicted of both charges, but only
sentenced on one. See State v. Whitfield, 124 Ohio St. 3d 319, 922 N.E.2d 182, 2010-
Ohio-2, ¶18.
Tuscarawas County, Case No. 2017AP100028                                          7


       {¶17} The assignment of error is sustained.           The judgment of the New

Philadelphia Municipal Court is reversed. Pursuant to App. R. 12(B), we hereby enter

final judgment acquitting Appellant of the offense of assault.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
