[Cite as State v. Littlejohn, 2011-Ohio-2035.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                          No. 95380




                                         STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                                    vs.


                                  MARIO A. LITTLEJOHN

                                                   DEFENDANT-APPELLANT




                                                 JUDGMENT:
                                                  AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-523358

        BEFORE: Kilbane, A.J., Cooney, J., and Keough, J.
       RELEASED AND JOURNALIZED: April 28, 2011

ATTORNEY FOR APPELLANT

Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Erica Barnhill
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:

      {¶ 1} Defendant-appellant, Mario Littlejohn (Littlejohn), appeals his

convictions and sentences. Finding no merit to the appeal, we affirm.

      {¶ 2} In April 2009, Littlejohn was charged in a five-count indictment.

Counts 1 and 2 charged him with felonious assault on a peace officer, Count 3

charged him with drug possession, Count 4 charged him with drug trafficking

with a juvenile specification, and Count 5 charged him with possessing

criminal tools. The matter proceeded to a jury trial, at which the following

evidence was adduced.

      {¶ 3} On March 19, 2009, Cleveland police officers responded to a call

of shots fired at the Garden Valley Apartments in Cleveland, Ohio. Officers

Katrina Ruma (Ruma), Nicholas Sefick (Sefick), Thomas Tohati (Tohati), and

Daniel Hourihan (Hourihan) responded to the scene. Ruma observed a white

Lexus, with two occupants, parked in the parking lot.         She spoke with

Salvatore Curiale (Curiale), the security officer on duty at the time. Curiale

advised that the Lexus had been parked there for about an hour.

      {¶ 4} Ruma approached the Lexus to determine if the occupants

observed any activity relating to the shooting. She testified that there was a

female in the driver’s seat, a male in the front passenger seat, and a child in
the back seat. Ruma asked Taniesha Howard (Howard), the female in the

driver’s seat, to lower her window.        When Howard lowered her window,

Ruma smelled marijuana and observed smoke coming out of the window. At

this point, Ruma ordered both Howard and Littlejohn, the male passenger, to

exit the Lexus.   Sefick, Tohati, and Hourihan were at the scene to assist

Ruma.    Tohati asked Littlejohn if he had any weapons or drugs on him.

Littlejohn responded that he had marijuana. Tohati patted down Littlejohn

and found marijuana and crack cocaine in Littlejohn’s pockets.

      {¶ 5} As Tohati was handcuffing Littlejohn, Littlejohn began to run

away. Tohati held onto Littlejohn by his waist. Littlejohn dragged Tohati

on the ground for several feet until Hourihan caught up with them and

tackled Littlejohn to the ground. Littlejohn punched and kicked Tohati and

Hourihan as they attempted to subdue him.          Tohati testified that once

Littlejohn went to the ground, Littlejohn began to kick him in the face, head,

and chest area very aggressively, causing him to be disoriented. The next

thing Tohati remembered was the other officers around him yelling at

Littlejohn to stop resisting. Hourihan testified that Littlejohn struck him

several times with his fists and elbows.

      {¶ 6} Littlejohn was eventually secured and placed in the back of a

police cruiser. Tohati and Hourihan were transported by ambulance to the

hospital, where they were treated for their injuries. Tohati testified that he
was disoriented and experienced blurred vision in his right eye.             He

sustained a bruise to his temple that persisted for three to four weeks. He

testified that the bruise was the size of his palm. Hourihan testified that as

a result of this incident, he sustained a bruised left hand and a laceration to

the scalp. At the hospital, he received a tetanus shot and x-rays. He missed

two weeks of work and then was put on light duty for three weeks because his

knuckle and wrist were bruised and he could not fully flex his hand.

       {¶ 7} Littlejohn testified in his own defense.         He admitted to

possessing the drugs and attempting to run away from the officers.           He

testified that the officers tackled him to the ground, handcuffed him, and beat

him.    Howard also testified, stating that Littlejohn was beaten by the

officers.

       {¶ 8} At the conclusion of trial, the jury found Littlejohn guilty of two

counts of assault of a peace officer (the lesser included offense in Counts 1

and 2), drug possession (Count 3), and drug trafficking with the juvenile

specification (Count 4). The jury found him not guilty of possessing criminal

tools (Count 5). The trial court sentenced him to eighteen months in prison

on each of Counts 1 and 2, to be served consecutively to each other, eighteen

months on Count 3, to be served concurrently to Count 4, and five years on

Count 4, to be served consecutively to Counts 1 and 2, for an aggregate of

eight years in prison.
      {¶ 9} Littlejohn now appeals, raising three assignments of error for

review, which shall be discussed together where appropriate.

      ASSIGNMENT OF ERROR ONE

      “The lower court erred and denied [Littlejohn] due
      process of law when it imposed consecutive sentences
      without making findings required by R.C. 2929.14(E) and
      [Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172
      L.Ed.2d 517.]”

      {¶ 10} The Ohio Supreme Court has set forth the applicable standard of

appellate review for felony sentences in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, declaring that in applying “[State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470], to the existing statutes,

appellate courts must apply a two-step approach.”            Id. at ¶4. 1    Appellate

courts must first “examine the sentencing court’s compliance with all

applicable rules and statutes in imposing the sentence to determine whether

the sentence is clearly and convincingly contrary to law. If this first prong is

satisfied,   the   trial   court’s   decision   shall   be   reviewed       under   an

abuse-of-discretion standard.” Id.

      {¶ 11} Littlejohn relies on Ice, arguing that his sentence violates due

process because the trial court imposed consecutive sentences without



      1 We recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
making the requisite findings required by R.C. 2929.14(E)(4) and 2929.41(A).2

 However, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

768, the Ohio Supreme Court recently addressed this argument and held that

Ice   “does     not    revive    Ohio’s     former      consecutive-sentencing          statutory

provisions,      R.C. 2929.14(E)(4)          and      2929.41(A),        which       were      held

unconstitutional in [Foster]. Trial court judges are not obligated to engage in

judicial fact-finding prior to imposing consecutive sentences unless the

General Assembly enacts new legislation requiring that findings be made.”

Id. at paragraphs two and three of the syllabus. As the Kalish court stated,

post-Foster, “‘trial courts have full discretion to impose a prison sentence

within the statutory range and are no longer required to make findings and

give reasons for imposing maximum, consecutive, or more than the minimum

sentences.’” (Emphasis added in Kalish.) Id. at ¶11, quoting Foster at ¶100.

       {¶ 12} Therefore, the trial court in the instant case was not obligated to

make findings prior to imposing a consecutive sentence.                            Furthermore,

Littlejohn’s eight-year sentence is within the permissible statutory range for

his convictions.           In the sentencing journal entry, the trial court



       2In  Ice, the U.S. Supreme Court upheld a statute that required judicial fact finding when
imposing consecutive sentences, and concluded that the Sixth Amendment to the United States
Constitution is not violated when sentencing judges, rather than juries, make the findings of facts
necessary for the imposition of consecutive, rather than concurrent, sentences for multiple offenses.
Id. at 716-720.
acknowledged that it had considered all factors of law and found that prison

was consistent with the purposes of R.C. 2929.11. As a result, we cannot

conclude that his sentence is contrary to law, and we now consider whether it

constituted an abuse of discretion. An abuse of discretion “‘implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.

Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144.

      {¶ 13} A review of the record reveals that the trial court considered the

facts of this case and Littlejohn’s prior convictions.     The trial court also

considered letters from Littlejohn’s family members and a presentence

investigation report from Littlejohn’s prior criminal case. The court stated

that it did not think that he knowingly intended to assault the police officers.

 Rather, the court thought he was reckless, and the jury’s verdict reflected

that accurately. Based on the foregoing, there is nothing in the record to

suggest the trial court abused its discretion by imposing consecutive

sentences.

      {¶ 14} Therefore, the first assignment of error is overruled.

      ASSIGNMENT OF ERROR TWO

      “The verdicts finding [Littlejohn] guilty of assault of a
      police officer were against the manifest weight of the
      evidence[.]”
       ASSIGNMENT OF ERROR THREE

       “The evidence below was legally insufficient to sustain
       verdicts of guilty of the offenses of assault as charged in
       Counts 1 and 2 of the indictment[.]”

       {¶ 15} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶113,

the Ohio Supreme Court explained the standard for sufficiency of the evidence:

       “Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
       such a challenge, ‘[t]he 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, following Jackson v. Virginia (1979), 443 U.S. 307, 99
       S.Ct. 2781, 61 L.Ed.2d 560.”

       {¶ 16} With regard to a manifest weight challenge, the “reviewing court asks whose

evidence is more persuasive — the state’s or the defendant’s?      * * * ‘When 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.’   [Thompkins at 387], citing Tibbs v. Florida (1982),

457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶25.

       {¶ 17} Moreover, an appellate court may not merely substitute its view for that of the

jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 485

N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional

case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin.

       {¶ 18} In the instant case, Littlejohn was convicted of assault under

R.C. 2903.13(B), which provides in pertinent part:                     “[n]o person shall

recklessly cause serious physical harm to another[.]” Furthermore, “[i]f the

victim of the offense is a peace officer * * * and if the victim suffered serious

physical harm as a result of the commission of the offense, assault is a felony

of the fourth degree[.]” Id. at (C)(4).

       {¶ 19} R.C. 2901.01(A)(5) defines serious physical harm in relevant part

as:    “(c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial

incapacity [or] * * * (e) Any physical harm that involves acute pain of such

duration as to result in substantial suffering or that involves any degree of

prolonged or intractable pain.”

       {¶ 20} Littlejohn argues that there was insufficient evidence of “serious

physical harm” because neither Tohati nor Hourihan required stitches and

both officers were treated and released at the hospital.                   As a result, he

contends the “jury lost its way” when it found him guilty of two counts of

assault. We disagree.
      {¶ 21} This court has held that “[w]here injuries to the victim are

serious enough to cause him or her to seek medical treatment, a jury may

reasonably infer that the force exerted on the victim caused serious physical

harm as defined by R.C. 2901.01(A)(5).”     State v. Wilson (Sept. 21, 2000),

Cuyahoga App. No. 77115, citing State v. Walker (June 18, 1987), Cuyahoga

App. No. 52391; State v. Grider (Dec. 20, 1995), Cuyahoga App. No. 68594;

State v. Huckabee (Oct. 26, 1995), Cuyahoga App. No. 67588; State v. Rushing

(Sept. 30, 1993), Cuyahoga App. No. 62688; and State v. Williams (Nov. 10,

1983), Cuyahoga App. No. 46599. See, also, State v. Davis, Cuyahoga App.

No. 81170, 2002-Ohio-7068, ¶20.

      {¶ 22} Here, Tohati and Hourihan were transported by ambulance to the

hospital, where they were treated for their injuries.     Therefore, the jury

could reasonably infer that the force exerted on the officers caused serious

physical harm. Wilson. Moreover, even without inferring that Tohati and

Hourihan suffered serious physical harm from the fact that they sought

medical treatment, their testimony was sufficient to convince a rational trier

of fact that they suffered serious physical harm as defined in R.C.

2901.01(A)(5)(c) and (e).

      {¶ 23} Tohati testified that he was disoriented and experienced blurred

vision in his right eye. He sustained a bruise to his temple that persisted for

three to four weeks. Tohati was off from work for approximately one month
because of his injuries.   Tohati further testified that he still suffers from

headaches. Hourihan testified that he sustained a bruised left hand and a

laceration to the scalp.    At the hospital, he received a tetanus shot and

x-rays. He missed two weeks of work and then was put on light duty for

three weeks because his knuckles and wrist were bruised and he could not

fully flex his hand.     Hourihan further testified that his hand is still a

problem and he has been in physical therapy since the injury. This evidence

demonstrates “some temporary, substantial incapacity” to satisfy the serious

physical harm element.

      {¶ 24} Based on this evidence, we find sufficient evidence in the record

that Littlejohn recklessly caused serious physical harm to Tohati and

Hourihan. We further find that this is not the extraordinary case where the

“jury lost its way” and created a manifest miscarriage of justice.

      {¶ 25} Accordingly, the second and third assignments of error are

overruled.

      Judgment is affirmed.



      It is ordered that appellee recover from appellant 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.

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

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and
KATHLEEN A. KEOUGH, J., CONCUR
