[Cite as State v. Henry, 2018-Ohio-1128.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,              :               No. 16AP-846
                                                              (C.P.C. No. 16CR-1572)
v.                                                :
                                                         (REGULAR CALENDAR)
William Henry,                                    :

                 Defendant-Appellant.             :


                                            D E C I S I O N

                                     Rendered on March 27, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Barbara A. Farnbacher, for appellee. Argued: Barbara A.
                 Farnbacher.

                 On brief: Yeura R. Venters, Public Defender, and John W.
                 Keeling, for appellant. Argued: John W. Keeling.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, P.J.
        {¶ 1} This is an appeal by defendant-appellant, William Henry, from a judgment
of conviction and sentence entered by the Franklin County Court of Common Pleas
following a jury trial in which he was found guilty of assault and obstructing official
business.
        {¶ 2} On March 21, 2016, appellant was indicted on one count of assault, in
violation of R.C. 2903.13, and one count of obstructing official business, in violation of
R.C. 2921.31. The matter came for trial before a jury beginning October 4, 2016.
        {¶ 3} The first witness for plaintiff-appellee, State of Ohio, was Marla Broadwater,
a clerk at a Bureau of Motor Vehicles ("BMV") office, the Grove Licensing Agency, located
at 1583 Alum Creek Drive. On February 12, 2016, appellant entered the BMV office on
Alum Creek Drive and requested a replacement driver's license. Broadwater assisted
No. 16AP-846                                                                                 2

appellant that day, and appellant became "agitated" filling out a form because of an
address discrepancy. (Tr. Vol. I at 38.) Appellant eventually "corrected" the information
and Broadwater was able to process the form. (Tr. Vol. I at 40.)
       {¶ 4} Broadwater then instructed appellant to proceed "to the photo booth" for an
identification photograph. (Tr. Vol. I at 40.) Appellant was wearing a knit hat, and
Broadwater said to him: "[S]ir, you're not going to be able to wear your head covering or
your hat." (Tr. Vol. I at 41.) Broadwater testified that "once we got down there, he was
saying that he wasn't going to remove * * * what he had on." (Tr. Vol. I at 44.)
       {¶ 5} Other BMV managers were present, and they informed appellant head
coverings were not allowed in photographs unless "for a religious purpose." (Tr. Vol. I at
44.) Appellant responded "it was for a religious purpose." (Tr. Vol. I at 44.) Broadwater
inquired about the religious purpose, and appellant responded: "Orthodox Taekwondo."
(Tr. Vol. I at 44.) Broadwater stated she had not "heard of that particular religion," and
informed appellant he would not be able to have his picture taken. (Tr. Vol. I at 45.)
       {¶ 6} BMV managers began researching whether this was "an acceptable type of
headgear for that particular religion." (Tr. Vol. I at 45.) Broadwater returned to her work
station while other supervisors discussed the matter with appellant. While waiting on
another customer, Broadwater heard a "commotion going down, * * * chairs moving."
(Tr. Vol. I at 46.) Broadwater walked toward the noise and observed appellant and an
officer "down there on the floor." (Tr. Vol. I at 46.) She then observed another individual
who "came out from the testing center and was assisting with what was going on down
there." (Tr. Vol. I at 47.) The officer was eventually able to restrain appellant.
       {¶ 7} Lisa Littler is a field representative with the Ohio Department of Public
Safety; her duties include monitoring paperwork of deputy registrars at BMV locations.
On February 12, 2016, Littler was performing duties at a work station at the Alum Creek
BMV facility when Tara Grove, a BMV manager, asked her to come to the front office area
and assist with a customer who was wearing a head covering.
       {¶ 8} According to Littler, the state has a policy prohibiting individuals from
being photographed with a head covering unless required for religious purposes; the
policy is designed to deter "identity theft." (Tr. Vol. I at 70.) Littler explained that "if we
can't find that religion or we don't recognize it, we * * * ask you to get a letter from your
No. 16AP-846                                                                                 3

church, your clergy, and bring that to us so that we can have that on file so that you can
wear that hat or scarf." (Tr. Vol. I at 69.)
        {¶ 9} On the date of the events at issue, BMV employees inquired about
appellant's religion, and appellant "kept saying it was Raffian Condo or something." (Tr.
Vol. I at 88.) Appellant "couldn't spell it," and a Google search did not indicate "a religion
that Ohio recognized." (Tr. Vol. I at 68.) After further research, BMV personnel "told him
that all we saw was the Rastafarian hat * * * and it wasn't recognized in the State of Ohio
as a religion here and that he couldn't wear it." (Tr. Vol. I at 77.) Littler explained to
appellant he could obtain a "letter and come back, or we could issue [the license] today
without the hat on, and then if he got the letter, he could also come back to have it
corrected." (Tr. Vol. I at 70.) Appellant "was yelling," and told Littler "he was not leaving
without it." (Tr. Vol. I at 70.) Appellant had his arm extended and was pointing his finger
"about six to eight inches" from Littler's face. (Tr. Vol. I at 82.)
        {¶ 10} Glenn Rondo, a BMV investigator, came to the front area and assisted
Littler in explaining the policy to appellant. An officer also approached and stood near
Littler behind the counter. Littler testified that appellant "told them that he wasn't talking
to anybody but me, and he continued to point at me to say that he was talking to me." (Tr.
Vol. I at 71.)
        {¶ 11} Appellant "was getting so loud that the officer kept saying, 'Sir, calm down,
please * * * you're scaring the other customers.' And [appellant] wouldn't acknowledge
him." (Tr. Vol. I at 71.) Littler testified that appellant "just kept talking to me about how I
was going to issue the I.D." (Tr. Vol. I at 71.) The officer "kept saying, 'Sir,' probably
three, four times, maybe five times." (Tr. Vol. I at 71.)
        {¶ 12} The officer finally laid his hand "very lightly" on appellant's shoulder "to
say, 'Sir,' * * * and when he did that, [appellant] jerked away and said, 'Step back and give
me three feet of space. Get out of my space.' " (Tr. Vol. I at 71.) The officer said " 'I'm not
in your space. I just need you to calm down. You're scaring our other customers. * * * I'm
going to have to ask you to leave.' " (Tr. Vol. I at 72.) Appellant "continued to yell and
told the officer that he was talking to me [Littler], not him. And the officer then said, 'Sir,
I'm going have to place you under arrest.' " (Tr. Vol. I at 72.) The officer "reached for the
handcuffs," and as he attempted to place the handcuffs on appellant's wrist, the two men
"were on the floor." (Tr. Vol. I at 83-84.)
No. 16AP-846                                                                                4

       {¶ 13} At that point, BMV "employees up front were all pushing the panic buttons
* * * for assistance." (Tr. Vol. I at 72.) Another individual in the building "helped pull
[appellant] off * * * the trooper, and then once they got [appellant] to his feet and got the
handcuffs on him, the officer proceeded to take him out the doors." (Tr. Vol. I at 84.)
Littler testified that "they no more than got through the first set of doors, and [appellant]
threw [himself] backwards on to the officer, and they landed up against the wall in the
little walkway of the two doors." (Tr. Vol. I at 84.)
       {¶ 14} On February 12, 2016, Rondo, who has an office at the Alum Creek Drive
facility, was asked to assist at the front desk with a customer who had a disagreement with
a clerk regarding a head covering. Rondo testified that he "came out to try to help the
clerk explain to the customer what we were doing and what was going on." (Tr. Vol. I at
101.) Rondo described appellant as "agitated." (Tr. Vol. I at 102.) Appellant's "voice was
starting to rise. You could tell he was getting upset as time went on." (Tr. Vol. I at 102.)
According to Rondo, "we were trying to explain to the customer that unless you have some
sort of a religious exception, we cannot allow you to take a photograph with any kind of
head covering. So we're just trying to find out what religion he was involved in and if it
was an approved religion." (Tr. Vol. I at 100.)
       {¶ 15} Rondo further testified: "[T]he deputy came out, and * * * the customer was
getting really agitated and starting to get really, really loud. At some point, the deputy
came around the counter and explained to the customer that he had to leave." (Tr. Vol. I
at 102.) The officer placed his hand on appellant's shoulder, and appellant "knocked it off
* * * and then they just started wrestling." (Tr. Vol. I at 103.) The two individuals "started
tussling and they ended up on the floor." (Tr. Vol. I at 104.)
       {¶ 16} Randy Clucas has been a police officer with the Ohio State Highway Patrol
("OSP") "for just over five years." (Tr. Vol. I at 117.) Officer Clucas, who attended the
police academy for training, described his general duties with the OSP as "[b]uilding
security for the most part of my shift. We do routine traffic patrols as well. We enforce the
Ohio Revised Code. Individuals with warrants, we also take care of them as well." (Tr.
Vol. I at 118.)
       {¶ 17} On February 12, 2016, Officer Clucas was on duty as a uniformed police
officer at 1583 Alum Creek Drive. On that date, BMV employee Grove informed Officer
Clucas that a customer was "upset towards them," and asked Clucas to "hang around * * *
No. 16AP-846                                                                                 5

just to see what's going on with this individual." (Tr. Vol. I at 121, 122.) Officer Clucas
described the individual as "a male black, had a Rastafarian-style hat on, * * * a knitted
hat, a salt and pepper beard." (Tr. Vol. I at 123.) At trial, Officer Clucas identified
appellant as the customer at the BMV office that day.
       {¶ 18} Officer Clucas observed appellant "getting * * * more loud and aggressive in
his body language," and "leaning over towards the counter in an aggressive way." (Tr. Vol.
I at 122.) Appellant's shoulders were "slanted forward," and he was pointing his hands at
the clerk. (Tr. Vol. I at 122.) Appellant "was yelling about his hat," stating that it was a
"religious hat, and that he should be allowed to wear it in his picture. Then he began
saying * * * if I was white, * * * I wouldn't be having this problem right now." (Tr. Vol. I at
124-25.)
       {¶ 19} The officer stepped up to the counter and stood beside the BMV clerk,
attempting to draw appellant's attention. Officer Clucas, who testified there were "a lot of
people in the BMV at the time," told appellant that he could not "be yelling like this in
front [of] all these people. You're going to get people out here in the crowd upset." (Tr.
Vol. I at 126.) Appellant looked over at Officer Clucas but did not respond to him; rather,
appellant "just kept on directing his attention toward the BMV investigators." (Tr. Vol. I
at 126.) Officer Clucas then "tried to get his attention again * * * saying, 'Hey, if you have
a problem, just come talk to me in the back, and we'll just discuss it without any issues
whatsoever.' " (Tr. Vol. I at 126.)
       {¶ 20} Officer Clucas then stepped out from behind the counter. The officer "didn't
want to embarrass" appellant if he "could have avoided it even though [appellant] was
pretty upset with the BMV staff." (Tr. Vol. I at 127.) Officer Clucas attempted to "calm
down" appellant by talking with him. (Tr. Vol. I at 127.) When this proved unsuccessful,
the officer told appellant: "Either you're going to quit this, or I'm going to have to criminal
trespass you." (Tr. Vol. I at 128.) Appellant "began saying, 'This is just like Ferguson.
This is just like Ferguson.' " (Tr. Vol. I at 128.) Some of the customers "were saying, 'This
is not like Ferguson at all.' So the people were starting to get upset." (Tr. Vol. I at 128.)
Officer Clucas "stepped closer to [appellant] and advised him that * * * '[w]e're not going
to play this race game. That's not what this is about. You're upset about this. I would like
to go talk to you.' " (Tr. Vol. I at 128.)
No. 16AP-846                                                                               6

       {¶ 21} Officer Clucas placed his hand on appellant's elbow and shoulder in an
attempt to escort him out the door. At that point, appellant pushed Officer Clucas on the
chest and told the officer he was "invading my private space or personal space." (Tr. Vol. I
at 130.) The officer then reached for his handcuffs "and said, '[w]ell, you're done. Place
your hands behind your back. You're under arrest.' " (Tr. Vol. I at 128.)
       {¶ 22} As Officer Clucas attempted to place the handcuffs on appellant's wrist,
appellant "lunged" at the officer "with his arm." (Tr. Vol. I at 130.) At that point, Officer
Clucas "tried to grab [appellant's] arm to try to wrap him," but the officer's "back ended
up hitting the customer service counter behind [him]," and Officer Clucas "ended up
falling on [his] back." (Tr. Vol. I at 130.) The officer further testified: "The suspect then
got on top of me in a mount position. I was on my back. He was on me * * * kneeling
down over top of me up to my chest and started to gouge my left eye with his right
thumb." (Tr. Vol. I at 130.) Officer Clucas related that appellant "was pressing his thumb
into my eye, my eyeball socket. And then also at the same time he kept on repeating, 'You
can't take me. You can't take me. You don't have what it takes,' * * * basically telling me
that I'm not going to be able to get out of this." (Tr. Vol. I at 131-32.) At that point, the
officer reached out with his left arm and "grabbed some of [appellant's] hair," and Officer
Clucas then "began using facial strikes" with his right hand. (Tr. Vol. I at 130.)
       {¶ 23} Eventually, "[s]omebody from the crowd" pushed appellant away from the
officer, and Officer Clucas and appellant both stood up. (Tr. Vol. I at 132.) Officer Clucas
testified that appellant "then tried to lunge at me in a tackling spear position, and I put
him into a * * * standing headlock." (Tr. Vol. I at 132.) As Clucas held appellant in that
position, a BMV maintenance worker assisted the officer in handcuffing appellant. Officer
Clucas then "escorted him outside the property." (Tr. Vol. I at 132.) During this time,
appellant "kept talking about the Ferguson thing. Then he kept on calling me a tyrant.
He was resisting me all the way * * * to the office where we keep our detainees." (Tr. Vol. I
at 133.)
       {¶ 24} Officer Clucas testified that, as a result of the altercation, he had a "black
eye," his "nose was busted," and his back, wrist, and left shoulder were in pain. (Tr. Vol. I
at 135.) Officer Clucas went to an emergency room for treatment after his shift ended.
Upon returning to work, Clucas was placed on light duty assignment because of shoulder
No. 16AP-846                                                                                     7

pain, and he subsequently had shoulder surgery. At trial, the officer identified
photographs taken of his eye, neck, and hands following the incident.
       {¶ 25} Grove is the assistant manager at the Grove Licensing Agency.                     On
February 12, 2016, appellant came into the office and spoke with one of the clerks,
Broadwater. There was a "discrepancy in his address," and Broadwater requested that
Grove speak to appellant. (Tr. Vol. II at 159.) Grove explained to appellant the office
system was "linked to the United States Postal Service, * * * so that's the correct address.
We have to go with that." (Tr. Vol. II at 159.) Grove went back to her desk, and appellant
was directed to the photo booth where he was asked to remove his head covering.
Appellant "would not do it," stating "it was for religious purposes." (Tr. Vol. II at 159.)
       {¶ 26} Grove asked Littler, a field representative, to go to the front and assist with
the customer. (Tr. Vol. II at 159.) Appellant "began getting irate, began raising his voice."
(Tr. Vol. II at 160.) At that point, Grove informed Officer Clucas, "the officer, * * * that
[appellant] was starting to get irate and starting to raise his voice." (Tr. Vol. II at 160.)
       {¶ 27} Grove "did not see the initial altercation." (Tr. Vol. II at 164.) She "heard
the yelling of * * * people, customers, some of our employees. People were yelling, and I
came out and saw [appellant and Officer Clucas] on the ground wrestling." (Tr. Vol. II at
164.) Grove stated that Officer Clucas and appellant "were on the floor * * * tangled up,
* * * not letting go. * * * Officer Clucas was trying to regain control and couldn't because
he was being fought." (Tr. Vol. II at 164.) Grove began "pressing the panic buttons * * *
that alert the highway patrol's call center." (Tr. Vol. II at 164.)
       {¶ 28} Following the altercation, Grove "looked at the surveillance footage." (Tr.
Vol. II at 165.) Grove turned the agency's surveillance video over to OSP, and the testing
center also turned over a surveillance video.
       {¶ 29} On February 12, 2016, Michael Paul Lester, an intern with the Department
of Public Safety, was performing maintenance duties at the Alum Creek Drive facility;
while checking on a front entrance door, Lester noticed that customers seated inside had
"jumped out of their chairs." (Tr. Vol. II at 175.) Lester then observed "the police
officer[,] [appellant,] and another gentleman on the floor wrestling." (Tr. Vol. II at 175.)
Lester stated that appellant "was on the opposite side of the police officer with another
gentleman straddling both of them but laying more on top of [appellant]." (Tr. Vol. II at
176.) Appellant "was reaching and had ahold of the police officer's face, his upper face.
No. 16AP-846                                                                                8

And the police officer had reached around and actually had grabbed some of [appellant's]
hair and was yanking back on him, and then [appellant] had let go of the officer's face."
(Tr. Vol. II at 179.)
       {¶ 30} Lester "noticed that the officer's handcuffs were on the ground a couple feet
from him." (Tr. Vol. II at 178.) Lester picked up the handcuffs and placed them in the
officer's hand. The officer and appellant continued to struggle, and the officer dropped
the handcuffs; appellant's "foot kicked the cuffs even farther away." (Tr. Vol. II at 178.)
Lester retrieved the handcuffs again and held them in his hand. Appellant and the officer
eventually stood up, and Lester grabbed appellant's arm in order to assist the officer "in
restraining him." (Tr. Vol. II at 179.) Lester helped the officer place the handcuffs on
appellant.
       {¶ 31} On February 12, 2016, OSP Sergeant Hugh Fredendall was notified of an
incident at the Alum Creek Drive BMV facility. He went to the facility to speak with
Officer Clucas and to take photographs of the officer's injuries. Sergeant Fredendall
instructed Officer Clucas to obtain witness statements as to the incident, and to obtain a
copy of the surveillance video from the BMV manager.            The sergeant subsequently
received surveillance video.
       {¶ 32} Sergeant Fredendall testified as follows regarding OSP procedure for
handling of surveillance video: "The officer will write up the case report. I will go in * * *
or a supervisor will go in and put in any type of documentation in that report as to the
findings. Then from there, it just goes up through our chain of command. It goes to my
supervisor, then to his, and ultimately it goes to the RTR committee." (Tr. Vol. II at 196.)
Sergeant Fredendall stated that "[s]omewhere * * * going through that chain the video
came up missing." (Tr. Vol. II at 196.) He was later informed that the video "had been
rewritten over." (Tr. Vol. II at 197.) He denied that OSP purposely destroyed the video.
       {¶ 33} Following deliberations, the jury returned verdicts finding appellant guilty
of assault and obstructing official business. By judgment entry filed November 22, 2016,
the trial court sentenced appellant to two years of community control.
       {¶ 34} On appeal, appellant sets forth the following six assignments of error for
this court's review:
No. 16AP-846                                                 9

           ASSIGNMENT OF ERROR NUMBER ONE

           THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH
           THAT THE ALLEGED VICTIM OF THE ASSAULT WAS A
           PEACE OFFICER AS DEFINED IN R.C. 2935.01 SINCE
           "SPECIAL POLICE OFFICERS" OF THE HIGHWAY PATROL
           ARE NOT TROOPERS AND ARE NOT DEFINED AS PEACE
           OFFICERS BY THE STATUTE.

           ASSIGNMENT OF ERROR NUMBER TWO

           THE TRIAL COURT ERRED WHEN IT ENTERED
           JUDGMENT AGAINST THE DEFENDANT ON THE
           ASSAULT AND OBSTRUCTING OFFICIAL BUSINESS
           CONVICTIONS   WHEN    THE   EVIDENCE  WAS
           INSUFFICIENT TO SUSTAIN A FINDING OF GUILT
           BEYOND A REASONABLE DOUBT.

           ASSIGNMENT OF ERROR NUMBER THREE

           THE TRIAL COURT ERRED WHEN IT ENTERED
           JUDGMENT AGAINST THE DEFENDANT ON THE
           ASSAULT AND OBSTRUCTING OFFICIAL BUSINESS
           CONVICTIONS WHEN GUILT WAS NOT ESTABLISHED BY
           THE MANIFEST WEIGHT OF THE EVIDENCE BEYOND A
           REASONABLE DOUBT.

           ASSIGNMENT OF ERROR NUMBER FOUR

           THE DEFEINDANT DID NOT RECEIVE THE EFFECTIVE
           ASSISTANCE OF COUNSEL AS MANDATED BY THE
           FEDERAL AND STATE CONSTITUTIONS WHEN COUNSEL
           FAILED TO FILE A MOTION TO DISMISS BASED UPON
           THE DESTRUCTION OF THE VIDEO RECORDING OF THE
           INCIDENT BY AGENTS OF THE STATE.

           ASSIGNMENT OF ERROR NUMBER FIVE

           THE TRIAL COURT ERRED WHEN IT FAILED TO
           INSTURCT THE JURY, PURSUANT TO R.C. 2945.11, ON
           ALL MATTERS OF LAW NECESSARY TO RENDER A
           VERDICT AND THE DEFENDANT WAS ALSO DEPRIVED
           OF THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO
           THE FAILURE OF COUNSEL TO REQUEST ESSENTIAL
           JURY INSTRUCTIONS RELEVANT TO HIS DEFENSE.
No. 16AP-846                                                                                10

              ASSIGNMENT OF ERROR NUMBER SIX

              THE TRIAL COURT ERRED WHEN IT SENTENCED                      THE
              DEFENDANT    ON   BOTH    THE  ASSAULT                       AND
              OBSTRUCTING OFFICIAL BUSINESS WHEN THEY                      ARE
              ALLIED OFFENSES OF SIMILAR IMPORT AND HE                     CAN
              ONLY BE SENTENCED ON ONE.

       {¶ 35} Appellant's first, second, and third assignments of error are interrelated and
will be addressed together. Under these assignments of error, appellant challenges both
the sufficiency and the weight of the evidence underlying his convictions for assault and
obstructing official business.
       {¶ 36} Under Ohio law, " '[t]he legal concepts of sufficiency of the evidence and
weight of the evidence are both quantitatively and qualitatively different.' " State v.
Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, ¶ 94 (10th Dist.), quoting State v.
Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the syllabus. In addressing a
sufficiency of the evidence claim, an appellate court "must determine whether the
evidence presented at trial, viewed in a light most favorable to the prosecution, would
allow a rational trier of fact to find the essential elements of the crime proven beyond a
reasonable doubt." Id.
       {¶ 37} By contrast, in considering whether a conviction is against the manifest
weight of the evidence, an appellate court "reviews the record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether, in
resolving 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." Id. at ¶ 111, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 38} We begin with appellant's assertion, raised under the first assignment of
error, that the state presented insufficient evidence to establish that the alleged victim of
the assault offense was a "peace officer" as defined under R.C. 2935.01. According to
appellant, the only OSP employees defined as peace officers under R.C. 2903.13(D)(1) and
2935.01(B) are troopers and the superintendent of OSP.
       {¶ 39} R.C. 2903.13(A) defines the offense of assault, and states in part: "No
person shall knowingly cause or attempt to cause physical harm to another." Further,
R.C. 2903.13(C)(5) states in part: "If the victim of the offense is a peace officer * * * while
No. 16AP-846                                                                                 11

in the performance of their official duties, assault is a felony of the fourth degree."
Pursuant to R.C. 2903.13(D)(1), the term " '[p]eace officer' has the same meaning as in
section 2935.01 of the Revised Code."
       {¶ 40} As observed by one court, R.C. 2935.01(B) "sets forth a lengthy definition of
'peace officer' [which] includes any kind of police officer, law enforcement officer,
enforcement agent, etc." State v. McKinley, 5th Dist. No. 2006CA00176, 2007-Ohio-
3512, ¶ 11. R.C. 2935.01(B) states in part: " 'Peace officer' includes, * * * for the purpose of
arrests within those areas, for the purposes of Chapter 5503. of the Revised Code, and the
filing of and service of process relating to those offenses witnessed or investigated by
them, the superintendent and troopers of the state highway patrol."
       {¶ 41} Appellant argues that Officer Clucas testified at trial he was a "police
officer" with OSP (i.e., not a trooper). Appellant contends that Officer Clucas is actually a
"special police officer" under R.C. 5503.09, and further argues that special police officers
are distinguishable from troopers. According to appellant, because a police officer of OSP
is not specifically listed as a "peace officer" under R.C. 2935.01, there was insufficient
evidence to convict him of assault of a peace officer for purposes of the sentencing
enhancement under R.C. 2903.13(C)(5).
       {¶ 42} In response, the state acknowledges a distinction between OSP troopers and
OSP police officers, but asserts there was sufficient evidence establishing that Officer
Clucas was a "peace officer" within the meaning of R.C. 2935.01(B). In support, the state
maintains that the list contained in R.C. 2935.01(B) is not exclusive or exhaustive, and the
evidence indicated Officer Clucas was properly performing statutory law enforcement
duties under R.C. 5503.09 as a "peace officer" at the time of the events at issue. Upon
review, we agree.
       {¶ 43} In interpreting the language of R.C. 2935.01, the Supreme Court of Ohio has
held that "[t]he use of the word 'includes' in the definition of 'peace officer' evidences an
intent that the General Assembly did not mean to exclude other constituted officers who
may be granted enforcement powers by the General Assembly." State v. Colvin, 19 Ohio
St.2d 86, 92 (1969). Rather, in order to determine if an individual is a "peace officer" for
purposes of R.C. 2935.01, "it is necessary to ascertain the extent of his [or her]
enforcement powers." Id.
No. 16AP-846                                                                               12

       {¶ 44} In Colvin, the Supreme Court applied the statutory definition under R.C.
2935.01(B) to hold that investigators for the State Dental Board, "charged with the
responsibility of enforcing the statutes regulating the practice of dentistry and ferreting
out violators thereof * * * are 'peace officers,' within the meaning of those words as used in
Section 2935.09, Revised Code." Id. at 93. In State v. Glenn, 28 Ohio St.3d 451 (1986),
the Supreme Court held that a volunteer reserve deputy sheriff who was transporting a
prisoner from the prison to a hospital was acting as a "peace officer" for purposes of R.C.
2929.04(A)(6) and 2935.01(B). In so holding, the court in Glenn found that the victim
"was in the process of activities performed pursuant to his duties to enforce Ohio's laws"
at the time he was shot and killed. Id. at 454.
       {¶ 45} Ohio appellate courts have also determined that certain officers, albeit not
specifically listed under R.C. 2935.01, are "peace officers" within the meaning of that
term. See, e.g., State v. Moore, 2d Dist. No. 18337 (Jan. 12, 2001) (hospital security
officer, who completed Ohio State Peace Officer training program and was designated a
"Special Policeman," and who wore a uniform and carried "same equipment that police
officers traditionally carry," was "acting 'in the performance of his official duties' " as a
peace officer when he acted to restrain defendant at hospital); Cleveland Police
Patrolmen's Assn. v. Cleveland, 118 Ohio App.3d 584, 588 (8th Dist.1997) (institutional
guards whose primary duties included transporting prisoners, and who received
additional training and were authorized to carry firearms, were peace officers with law
enforcement duties for purposes of R.C. 2935.01); State v. Cammon, 8th Dist. No. 91574,
2009-Ohio-4706, ¶ 19 (state presented sufficient evidence demonstrating that housing
authority officer was a "peace officer" acting in his official capacity at time of assault;
officer presented testimony that he was employed by housing authority police
department, that he was a duly commissioned officer with the state, and that he was
dressed in full uniform and on duty at time of incident).
       {¶ 46} As noted, appellant contends the state presented insufficient evidence that
Officer Clucas was a peace officer based on the fact that his duties, pursuant to R.C.
5503.09, are those of a special police officer. We disagree.
       {¶ 47} R.C. 5503.09 states in part that "[t]he superintendent of the state highway
patrol * * * may designate one or more persons to be special police officers to preserve the
peace and enforce the laws of this state with respect to persons and property under their
No. 16AP-846                                                                                 13

jurisdiction and control." The statue provides that special police officers "are vested with
the same powers of arrest as police officers under section 2935.03 of the Revised Code
when exercising their responsibilities," and such officers are "required to complete peace
officer basic training for the position to which they have been appointed as required by
the Ohio peace officer training commission as authorized in section 109.73 of the Revised
Code." These officers "also shall take an oath of office, wear the badge of office, and
provide bond to the state * * * for the proper performance of their duties." R.C. 5503.09.
       {¶ 48} In the present case, Officer Clucas testified he attended the police academy,
his duties included building security, routine traffic patrols, enforcing the Ohio Revised
Code, and dealing with individuals with outstanding warrants.             On the date of the
incident, Officer Clucas was in uniform and performing his assigned duties at the Alum
Creek Drive facility. As set forth above, R.C. 5503.09 authorizes the superintendent to
designate special police officers "to preserve the peace and enforce the laws of this state
with respect to persons and property under their jurisdiction and control," and special
police officers are "vested with the same powers of arrest as police officers under" R.C.
2935.03. (Emphasis added.) As also noted, the Supreme Court has interpreted the word
"includes" in the definition of "peace officer" as expansive, not limiting. Colvin at 92.
Upon review of the record and applicable statutes, including a consideration of the extent
of the enforcement powers at issue, we find the state presented sufficient evidence that
Officer Clucas was acting as a "peace officer" under R.C. 2935.01 and 2903.13.
       {¶ 49} In light of that determination, we next consider whether the state presented
sufficient evidence upon which the trier of fact could have found all the essential elements
of assault and obstructing official business beyond a reasonable doubt.              We have
previously set forth the elements of assault under R.C. 2903.13.               The offense of
obstructing official business is defined under R.C. 2921.31(A), which states: "No person,
without privilege to do so and with purpose to prevent, obstruct, or delay the performance
by a public official of any authorized act within the public official's official capacity, shall
do any act that hampers or impedes a public official in the performance of the public
official's lawful duties." R.C. 2921.31(B) states in part: "If a violation of this section
creates a risk of physical harm to any person, obstructing official business is a felony of
the fifth degree."
No. 16AP-846                                                                               14

         {¶ 50} As to the assault conviction, appellant argues he was only attempting to
exercise his right to free speech and that he did not knowingly cause or attempt to cause
physical harm to the officer. According to appellant, the officer was the first to use force
by grabbing him.
         {¶ 51} R.C. 2901.22(B) states in part: "A person acts knowingly, regardless of
purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist." In general, whether an
individual acts knowingly "must be determined from all the surrounding facts and
circumstances," and "[t]herefore, 'the test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.' " State v. Bettis, 1st Dist. No. C-
060202, 2007-Ohio-1724, ¶ 9, quoting State v. McDaniel, 2d Dist. No. 16221 (May 1,
1998).
         {¶ 52} In the present case, the state presented evidence appellant became agitated
and began yelling at BMV personnel in regard to their request that he remove his head
covering for a driver's license photograph. Officer Clucas testified that he attempted to
calm appellant down, and warned him that he could not be "yelling like this in front [of]
all these people." Littler testified that Officer Clucas attempted to calm appellant down,
telling appellant he was "scaring our other customers," and that he was "going to have to
ask [him] to leave." (Tr. Vol. I at 72.) Rondo similarly testified that appellant "was getting
really agitated and starting to get really, really loud" and that "the deputy came around the
counter and explained to [appellant] that he had to leave." (Tr. Vol. I at 102.)
         {¶ 53} When appellant refused to comply, the officer approached appellant and
placed his hand on appellant's elbow and shoulder, at which point appellant pushed the
officer in the chest and told the officer he was "invading" his "space." Officer Clucas then
reached for his handcuffs, but appellant lunged at the officer, causing the officer's back to
hit the nearby counter; the officer fell to floor, landing on his back. Appellant then got on
top of the officer and "started to gouge" the officer's left eye with his right thumb. Michael
Lester, who witnessed the altercation, stated that appellant "was reaching and had ahold
of the police officer's face." Grove testified that the officer was attempting to regain
control but "couldn't because he was being fought." Officer Clucas testified as to injuries
No. 16AP-846                                                                              15

to his eye, back, wrist, and shoulder as a result of the incident, and photographs of the
officer were admitted into evidence.
       {¶ 54} Here, construing the evidence most strongly in favor of the state, as we are
required to do in considering a sufficiency challenge, the state presented sufficient
evidence to support the elements of assault beyond a reasonable doubt. Further, there
was sufficient evidence that Officer Clucas was engaged in the performance of his official
duties at the time of the assault for purposes of R.C. 2903.13.
       {¶ 55} The offense of obstruction of official business, pursuant to R.C. 2921.31(A),
has the following elements: "(1) an act by the defendant; (2) done with the purpose to
prevent, obstruct, or delay a public official; (3) that actually hampers or impedes a public
official; (4) while the official is acting in the performance of a lawful duty; and (5) the
defendant does so act without a privilege to do so." State v. Dice, 3d Dist. No. 9-04-41,
2005-Ohio-2505, ¶ 19. Thus, under Ohio law, "[a] conviction under R.C. 2921.31(A)
requires proof of an affirmative act that hampered or impeded the performance of the
lawful duties of a public official." State v. Overholt, 9th Dist. No. 2905-M (Aug. 18, 1999).
Further, "[t]he proper focus in a prosecution for obstructing official business is on the
defendant's conduct, verbal or physical, and its effect on the public official's ability to
perform the official's lawful duties." State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-
2953, ¶ 12 (1st Dist.).
       {¶ 56} Verbal acts alone can constitute a "proscribed act" under the statute. State
v. Jeter, 1st Dist. No. C-040572, 2005-Ohio-1872, ¶ 12, citing State v. Lazzaro, 76 Ohio
St.3d 261 (1996). In this respect, Ohio courts have upheld convictions for obstructing
official business in instances in which an individual prevented law enforcement officers
from gaining control of a situation based upon "belligerent and argumentative" behavior.
Wellman at ¶ 13. See also State v. Florence, 12th Dist. No. CA2013-08-148, 2014-Ohio-
2337, ¶ 13 (conviction for obstructing official business upheld where defendant's
"purposeful loud, boisterous, and uncooperative conduct made the performance of [the
officers'] duties more difficult").
       {¶ 57} Courts have also held that a defendant's refusal to leave the scene when
requested, as well as verbal altercation with officers and interference with their attempt to
effectuate an arrest, constituted sufficient acts upon which the jury could conclude the
defendant purposefully hampered the officers' official duties. Overholt. See also State v.
No. 16AP-846                                                                                 16

Gau, 11th Dist. No. 94-A-0031 (Mar. 17, 1995) (oral statements by defendant and act of
pushing officer sufficient to support conviction for obstructing official business).
       {¶ 58} In the present case, the state presented evidence appellant became
argumentative, yelled at BMV agency employees, pointed his finger in the face of an
employee, refused the officer's requests to calm down and to leave the building, pushed
the officer and resisted the officer's attempt to remove him from the agency. Upon
review, there was sufficient evidence upon which a trier of fact could have found that
appellant acted purposely in impeding the officer from performing his duties, and that in
doing so created a risk of physical harm.         Accordingly, we reject appellant's claim
insufficient evidence existed to support his conviction for obstructing official business.
       {¶ 59} Turning to appellant's manifest weight challenge, we find the jury did not
lose its way and create a manifest injustice in rendering guilty verdicts for assault and
obstructing official business. A conviction is not against the manifest weight of the
evidence because the trier of fact chose to credit the state's version of events. State v.
Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 18. Here, there was competent, credible
testimony by the state's witnesses regarding appellant's conduct on the date of the events.
       {¶ 60} Appellant's claim that the officer was the aggressor and he used excessive
force is not supported by the record. There was evidence presented which, if believed,
indicated appellant, while engaged in a verbal dispute with BMV employees, ignored the
officer's admonition to calm down. When appellant refused to comply, Officer Clucas laid
his hand "very lightly" on appellant's shoulder, at which time appellant shoved the officer
and then lunged at him, causing the officer's back to hit the desk counter; as noted above,
the evidence further indicated that the officer fell to the ground, at which time appellant
began gouging the officer's eye with his thumb. Lester, who witnessed the altercation,
testified appellant "had ahold of the police officer's face, his upper face." As also noted,
the evidence before the jury included photographs depicting the officer's face following
the incident.
       {¶ 61} Appellant also contends the state's failure to preserve the surveillance video
casts doubt on its version of events. Appellant suggests that the video evidence was
deliberately destroyed, and that it would have incriminated the officer. The record,
however, does not support these assertions. At trial, Sergeant Fredendall testified he
directed Officer Clucas to obtain any surveillance video from the licensing agency. The
No. 16AP-846                                                                                 17

evidence indicated that video was obtained and turned over to OSP, but that Sergeant
Fredendall was subsequently informed it "had been rewritten over." Sergeant Fredendall
denied OSP purposely destroyed any videos. Here, the jury was not required to infer that
OSP acted in bad faith or willfully destroyed surveillance video, nor was there any
evidence suggesting the state was aware of exculpatory materials on any videos.
       {¶ 62} Based on the foregoing, appellant's first, second, and third assignments of
error are not well-taken and are overruled.
       {¶ 63} Under the fourth assignment of error, appellant argues his trial counsel
rendered ineffective assistance of counsel.      Specifically, appellant contends counsel's
performance was deficient in failing to file a motion to dismiss based on the misplaced
surveillance videos.
       {¶ 64} In order to establish an allegation of ineffective assistance of counsel, a
defendant must show "(1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that but for counsel's errors, the proceeding's result would have
been different."   State v. Jones, 8th Dist. No. 102260, 2016-Ohio-688, ¶ 15, citing
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraphs two and three of the syllabus.
       {¶ 65} The failure of counsel to file a motion, "in and of itself, is not per se
ineffective assistance of counsel." State v. Schlosser, 3d Dist. No. 14-10-30, 2011-Ohio-
4183, ¶ 34, citing In re Smith, 3d Dist. No. 5-01-34, 2002-Ohio-695, citing State v. Vires,
25 Ohio App.2d 70 (2d Dist.1970); State v. Madrigal, 87 Ohio St.3d 378, 389 (2000);
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Rather, "[w]ithout proving that trial
counsel was deficient for failing to make certain motions and that those motions had a
reasonable probability of success, the ineffective assistance of counsel claim fails." Id.
       {¶ 66} Appellant contends the failure to file a motion to dismiss was prejudicial,
asserting it is "fairly clear" that agents took it upon themselves to suppress the videos
because they were favorable to him and not supportive as to the claims of the agents.
According to appellant, had defense counsel filed a motion to dismiss based on the
disappearance of the video recordings, the trial court would have likely dismissed the
charges.
No. 16AP-846                                                                                 18

         {¶ 67} We find appellant's arguments unpersuasive.         As previously discussed,
Sergeant Fredendall denied OSP purposely destroyed surveillance video and, despite
appellant's suggestion that the videos must have contained evidence favorable to him,
there is nothing in the record to indicate the videos would have been exculpatory. Here,
appellant cannot demonstrate that counsel's performance was deficient or that a motion
to dismiss would have been successful.
         {¶ 68} Appellant's fourth assignment of error is not well-taken and is overruled.
         {¶ 69} Under the fifth assignment of error, appellant argues the trial court erred in
failing to instruct the jury with respect to an individual's right to protect him or herself
from excessive or unnecessary force. Appellant argues that such an instruction would
have been consistent with his defense that he was only attempting to defend himself and
not trying to harm the officer. Appellant relies in part on R.C. 2945.11, which states in
part: "In charging the jury, the court must state to it all matters of law necessary for the
information of the jury in giving its verdict."
         {¶ 70} In general, when determining whether a proposed jury instruction shall be
given to a jury, "the trial court must decide if sufficient evidence was presented to warrant
such an instruction." State v. Holaday, 4th Dist. No. 1210 (Aug. 11, 1987). In the instant
case, appellant did not request an instruction on excessive force and, therefore, "this
court's review is under the plain error standard." State v. Bridgewater, 10th Dist. No.
07AP-535, 2008-Ohio-466, ¶ 24. Under this standard, "[p]lain error is error that involves
an 'obvious defect in the trial proceedings,' and such error 'must have affected the
outcome of the trial.' " Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
         {¶ 71} In response to appellant's argument, the state asserts the trial court did not
err because there was insufficient evidence to support an instruction that Officer Clucas
used excessive or unnecessary force. We agree. In addressing appellant's manifest weight
challenge, we previously determined that the evidence did not support appellant's claim
that Officer Clucas was the aggressor and/or that he used excessive force. Accordingly,
the trial court did not commit plain error in failing to provide an instruction on excessive
force.
         {¶ 72} Appellant's fifth assignment of error is not well-taken and is overruled.
         {¶ 73} Under the sixth assignment of error, appellant asserts the trial court erred
in sentencing him on both assault and obstructing official business. Appellant contends
No. 16AP-846                                                                                  19

the offenses are allied offenses of similar import that the court should have merged for
purposes of sentencing.
       {¶ 74} R.C. 2941.25 states as follows:

              (A) Where the same conduct by defendant can be construed to
              constitute two or more allied offenses of similar import, the
              indictment or information may contain counts for all such
              offenses, but the defendant may be convicted of only one.

              (B) Where the defendant's conduct constitutes two or more
              offenses of dissimilar import, or where his conduct results in
              two or more offenses of the same or similar kind committed
              separately or with a separate animus as to each, the
              indictment or information may contain counts for all such
              offenses, and the defendant may be convicted of all of them.

       {¶ 75} The Supreme Court, in construing the above statutory provisions, has held:
"In determining whether offenses are allied offenses of similar import within the meaning
of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus,
and the import." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the
syllabus. A defendant may be convicted and sentenced for multiple offenses when: "(1) the
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, and (3) the
offenses were committed with separate animus or motivation." Id. at ¶ 25.
       {¶ 76} As noted by the state, appellant did not raise the issue of merger during the
sentencing hearing. Under Ohio law, "[a]n accused's failure to raise the issue of allied
offenses of similar import in the trial court forfeits all but plain error, and a forfeited error
is not reversible error unless it affected the outcome of the proceeding and reversal is
necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St.3d
385, 2015-Ohio-2459, ¶ 3.
       {¶ 77} Ohio courts have "concluded that assault and obstructing official business
convictions will not merge for sentencing when committed by separate conduct." State v.
Ulinski, 6th Dist. No. L-16-1074, 2016-Ohio-8386, ¶ 11. See, e.g., State v. Standifer, 12th
Dist. No. CA2011-07-071, 2012-Ohio-3132, ¶ 68 (offenses of assault and obstructing
official business committed by separate conduct where defendant's act of kicking officer
was separate from defendant's conduct in screaming, jerking, and pulling away from
No. 16AP-846                                                                           20

officer while in custody); State v. Hendricks, 8th Dist. No. 101864, 2015-Ohio-2268, ¶ 23
(defendant's assault convictions, stemming from physical confrontation with deputies,
constituted separate conduct from his conviction for obstructing official business when he
initially interrupted proceedings and failed to comply with deputy's order).
       {¶ 78} In the present case, appellant cannot demonstrate plain error as the record
sets forth facts indicating the offenses were committed separately. Here, the offense of
obstructing official business was initially committed when appellant became belligerent
and disruptive, yelling at BMV employees, disregarding the officer's admonition to calm
down, and refusing the officer's instruction to leave the premises. The assault occurred
subsequently when the officer attempted to effectuate an arrest and appellant pushed the
officer, lunged at him, and began gouging the officer's eye.
       {¶ 79} Having failed to demonstrate plain error, appellant's sixth assignment of
error is overruled.
       {¶ 80} Based on the foregoing, appellant's six assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                       Judgment affirmed.

                      DORRIAN and LUPER SCHUSTER, JJ., concur.

                            ________________________
