[Cite as Cleveland v. Freeman, 2013-Ohio-4030.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99131



                               CITY OF CLEVELAND
                                                  PLAINTIFF-APPELLEE

                                                   vs.


                                      ERIC FREEMAN
                                                  DEFENDANT-APPELLANT




                                JUDGMENT:
                             AFFIRMED IN PART;
                       REVERSED IN PART AND VACATED


                                  Criminal Appeal from the
                                  Cleveland Municipal Court
                      Case Nos. 2012 CRB 005400 and 2012 CRB 005402

        BEFORE: Kilbane, J., Rocco, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                        September 19, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender
Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Stephanie L. Jerlstrom
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

Victor R. Perez
Chief City Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Eric Freeman, appeals from his convictions for assault

and engaging in unlicensed security services. For the reasons set forth below, we affirm

the conviction for assault, and reverse and vacate the conviction for engaging in

unlicensed security services.

      {¶2}    On February 24, 2012, following an altercation with a patron at Touch

Supper Club on February 19, 2012, the defendant was charged with carrying a concealed

weapon, engaging in unlicensed security services, aggravated menacing, and assault. All

charges are misdemeanors of the first degree. The defendant pled not guilty and the matter

proceeded to a jury trial on September 10, 2012.

      {¶3}    The city of Cleveland (“the City”) presented the testimony of the

complaining witness, Alden Tinnin (“Tinnin”), and witnesses Anthony Trzaska

(“Trzaska”), Mark Thompson (“Thompson”), Kate Dawson (“Dawson”), and Cleveland

Police Officer James Hummel (“Officer Hummel”) and Sergeant Edward Lentz (“Sergeant

Lentz”).

       {¶4} Tinnin testified that he is a securities compliance officer at a bank. On the

night of Saturday, February 18, 2012, he, Trzaska, and Thompson went to the Brite Winter

Festival, an organized event featuring entertainment in all the surrounding restaurants and

bars in Ohio City. Tinnin testified that by 10:30 p.m., he had consumed two beers, and

his group went to the Touch Supper Club on Lorain Road in Ohio City. As Tinnin

entered the restaurant, the defendant was speaking with someone and Tinnin did not
realize that the defendant was checking identification.          According to Tinnin, the

defendant became upset that Tinnin’s group had walked past him without showing their

identification, and he began to curse at them. Tinnin and his friends left; however, a few

minutes later, they decided to go back inside and explain that they had gotten off to a bad

start and wanted to reenter the restaurant. The defendant refused to allow them inside, so

Tinnin told the defendant that he looked stupid and then turned to leave. As Tinnin

reached the door, he heard the defendant coming after him, so he closed the door behind

him as he left. The defendant pushed open the door, grabbed Tinnin, and put him into a

headlock. Tinnin broke free and the defendant then grabbed him again. During the

struggle, the window broke. Once outside, the defendant pushed Tinnin to the ground and

sat on him until the police arrived. Tinnin’s friends videotaped the altercation and called

police.

          {¶5} Tinnin next testified that, after the police arrived, they handcuffed him and

placed him in the squad car. He and his friends explained what had happened, and the

police released him. Tinnin was transported to the hospital by ambulance and treated for

cuts and bruises. He filed a police report about the incident ten days later.

          {¶6} Trzaska and Thompson testified that the group intended to listen to music in

the basement of Touch Supper Club. As they entered, they told Tinnin to proceed to a

stairwell to the right of the door. According to Trzaska, in the past, no one checked

identification at the door, and therefore, they did not expect to be stopped. The defendant

abruptly stopped Tinnin, but he did not ask for identification and simply told him to leave.
The group complied, but then decided to reenter and try to explain that there had been a

misunderstanding. Tinnin reentered, but a moment later, the defendant forced him out,

and he came crashing through the door. Tinnin’s shirt was torn off, and the defendant put

Tinnin in a “pretzel hold” and slammed his head into an iron gate. Tinnin struggled, and

the window was shattered. The defendant then got Tinnin to the ground and got on top of

him. Trzaska and Thompson became concerned that the defendant was hurting Tinnin.

They videotaped some of the incident, and the video was played for the jury.

      {¶7} Dawson testified that she was coordinating entertainment for the Brite

Winter Festival. At around midnight, as she checked on the entertainment at Touch

Supper Club, she observed the defendant pushing through a door and then throwing a man

through a window. Dawson did not observe the man fighting back. The defendant got

the man onto the ground and held him down, as his friends shouted for the defendant to

stop. Dawson further testified that following the incident, the defendant left her a phone

message, accusing her of bringing drunk people to the restaurant and falsely claiming that

he was waving a gun.

      {¶8} Officer Hummel testified that he responded to a call that a bouncer and a

patron were fighting outside of a bar.     He observed Tinnin on the ground and the

restaurant owner, Robert Ivanov (“Ivanov”), on top of him. According to this witness,

Tinnin was intoxicated. He later learned that a gun was recovered from the scene. He

testified that the defendant did not immediately mention that he had a gun, but the officer
admitted on cross-examination that the defendant showed him his permit for carrying a

concealed weapon.

       {¶9}    Sergeant Lentz testified that the defendant continued to threaten Tinnin at

the scene. He interviewed both the defendant and Tinnin at the scene, as well as Trzaska,

Thompson, Dawson, and Ivanov. When Sergeant Lentz interviewed the defendant, he

stated that he was “working the door” and checking identification, and that Tinnin walked

past him into the establishment and was belligerent, so he kicked him out and then held

him down. The defendant denied assaulting Tinnin. He then asked the officer if he

wanted his concealed weapon permit, and the officer asked if the defendant was armed.

The defendant replied that he was armed. The officer then disarmed the defendant and

arrested him for failing to promptly notify him that he had a concealed weapon and that the

permit is for personal safety only and does not authorize security for others.

       {¶10} The trial court denied a motion for acquittal, and the defendant elected to

present evidence. Allison Popovich (“Popovich”), a bartender at Touch Supper Club,

testified that the defendant is part of the managerial staff and is authorized to control

billing, procedures, the security system for the establishment, and the training of new

employees. On the night of the incident, all of the tables of the restaurant were occupied,

and the bar was extremely crowded because it was near the last stop of the Brite Winter

Festival parade. The defendant was overseeing business operations, “walking around,

making sure everything was going according to plan.” There were many issues involving

intoxicated patrons attempting to get drink discounts, and the defendant was responding to
employee questions and issuing instructions. Popovich further testified that she has never

seen the defendant threaten anyone with a gun. She heard glass breaking, but she did not

see what transpired between the defendant and Tinnin.

      {¶11} Attorney Christopher Thomarios (“Thomarios”) testified that he provided

representation for the defendant following his arrest in this matter. Thomarios met with

the defendant at the county jail and observed injuries to his fingers and elbow, which

Thomarios photographed.

      {¶12} Todd Urmson (“Urmson”), a real estate property manager, testified that he

arrived at Touch Supper Club and observed broken glass all over the sidewalk and the

defendant restraining Tinnin. According to Urmson, Tinnin was struggling and Ivanov

and the defendant were telling him to relax and that police would be there soon.

      {¶13} The defendant next testified that he is the assistant manager at Touch Supper

Club. He obtained his concealed weapon permit about one year prior to the incident and

always carries it with him. As to the altercation with Tinnin, the defendant testified that

Tinnin pushed past other patrons to get inside, and the defendant stopped him because he

did not want intoxicated persons to enter. According to defendant, Tinnin was walking

sideways, slurring his words, and appeared to be “drugged out of his mind.”            The

defendant said, “Hey,” as Tinnin pushed into the restaurant, and Tinnin said, “ F– you,

who are you?” Tinnin left, but a few moments later he returned and apologized. The

defendant refused to let him inside and said “come back when you are sober.” At that

point, Tinnin spit on him and fled.         The defendant followed him, and Tinnin
“hockey-checked” the window, causing it to shatter and injuring the defendant’s finger.

The defendant further testified that Tinnin started “freaking out” and kicking at his feet, so

he and the owner held him until the police arrived.

       {¶14} The defendant further testified that he kept his weapon in its shoulder holster

but Tinnin must have felt it as they struggled. The defendant further testified that he

showed his driver’s license and his concealed carry permit to the officers immediately

after they arrived on scene. He was informed that he was being arrested for having a

weapon in a liquor establishment and not for assault. As to his contact with Dawson, the

defendant stated that it was Dawson’s responsibility to pay the DJ who was performing in

the basement of the restaurant.

       {¶15} Timothy Johnson (“Johnson”) testified that he was at Touch Supper Club at

the time of the incident. He observed the defendant standing at the hostess stand near the

door. Tinnin entered and the defendant then quickly moved toward the door and asked

Tinnin to leave. They began to shout at one another, and the defendant attempted to

restrain Tinnin to keep from being punched. Johnson next observed the man push the

defendant through the front window of the restaurant.           Johnson called the police.

Tinnin’s friends told the police that the defendant pushed Tinnin through the window, but

Johnson testified that Tinnin was the aggressor and pushed the defendant through the

window.
       {¶16} The jury subsequently acquitted the defendant of the charge of carrying a

concealed weapon and aggravated menacing, but convicted him of engaging in unlicensed

security services and assault.

       {¶17} On October 3, 2012, on the unlicensed security conviction, the trial court

sentenced the defendant to 180 days of incarceration, which the court suspended, and a

$1,000 fine, with $800 suspended; on the assault conviction, the trial court sentenced the

defendant to 180 days of incarceration, with 150 days suspended, and a $1,000 fine, with

$800 suspended on the assault conviction. The defendant now appeals and assigns two

errors for our review.

                                  Assignment of Error One

       Eric Freeman was deprived of his liberty without due process of law where

       the jury found him guilty of engaging in a security services business without

       a license to do so even though the evidence supporting that case was

       insufficient as a matter of law.

       {¶18} A challenge to the sufficiency of the evidence supporting a conviction

requires a court to determine whether the prosecution has met its burden of production at

trial. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. On review

for sufficiency, courts are to assess not whether the prosecution’s evidence is to be

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

conviction. Id. 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, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶19} In this matter, the defendant was convicted of violating R.C. 4749.13, which

provides in pertinent part:

       No person shall engage in the business of private investigation, the business
       of security services, or both businesses in this state unless he is licensed
       pursuant to this chapter.

       {¶20} As an initial matter, we note that R.C. 4749.01(D)(1) defines “business of

security services” as “furnishing, for hire, watchmen, guards, private patrolmen, or other

persons whose primary duties are to protect persons or property.” R.C. 4749.03 requires

all private security guard providers and private investigators, whether individuals or

corporations, to be licensed according to the statute. State v. Smith, 7th Dist. Mahoning

No. 02 CA 227, 2004-Ohio-4285, ¶ 60.

       {¶21} Pursuant to R.C. 4749.01(H), however,

       “Private investigator,” “business of private investigation,” “security guard
       provider,” and “business of security services” do not include:

       ***

       (6) An employee in the regular course of the employee’s employment,
       engaged in investigating matters pertinent to the business of the employee’s
       employer or protecting property in the possession of the employee’s
       employer, provided the employer is deducting all applicable state and federal
       employment taxes on behalf of the employee and neither the employer nor
       the employee is employed by, associated with, or acting for or on behalf of
       any private investigator or security guard provider[.]” (Emphasis added.)

       {¶22} Here, the City was required to prove that the defendant engaged in the

business of security services, and that the defendant was not licensed to perform security
services. There was no evidence that he is employed by, associated with, or acting for or

on behalf of any private investigator or security guard provider. See State v. Rutland, 152

Ohio App.3d 59, 2003-Ohio-1425, 786 N.E.2d 530, ¶ 23.

       {¶23} The City’s evidence demonstrated that the defendant became upset that

Tinnin’s group had walked past him without showing their identification, asked them to

leave, and refused to allow them to reenter the restaurant later. From the video, it is clear

that he was not wearing a security uniform. The City did not present evidence that the

defendant was engaged in the “business of security services,” or that he was hired by the

restaurant to serve as a watchman, guard, or private patrolman. The City’s evidence

likewise failed to establish that the defendant’s primary duties were to protect persons or

property. Compare State v. Rutland, 152 Ohio App.3d 59, 2003-Ohio-1425, 786 N.E.2d

530, ¶ 23 (defendant in uniform, driving a vehicle with a siren, engaged in providing a

security service while he was escorting the funeral procession).

       {¶24} Viewing the evidence in a light most favorable to the prosecution, a rational

trier of fact had no evidence from which to conclude that the defendant’s primary duties at

the restaurant were to protect persons or property, and that he was in the business of

security services. To the contrary, the overwhelming evidence of record indicates that the

defendant is part of the managerial staff at the restaurant, that there were numerous patrons

in the restaurant, many of whom were intoxicated, that he was overseeing business

operations and responding to issues involving patrons attempting to get drink discounts,

answering employee questions, and issuing instructions. With regard to the incident at
issue, the overwhelming evidence of record indicated that the defendant was near the door

when Tinnin entered, and that the defendant was speaking with someone else in the

restaurant. After Tinnin entered without presenting identification, the defendant spoke

with him and investigated Tinnin’s entry into the restaurant as part of the regular course of

his employment as a manager.        The evidence did not indicate that the defendant is

employed by, associated with, or acting for or on behalf of any private investigator or

security guard provider.

       {¶25} The first assignment of error is well taken, and the judgment convicting the

defendant of engaging in unlicensed security services in violation of R.C. 4749.13 is

reversed and the conviction vacated.

                                 Assignment of Error Two

       Eric Freeman was deprived of his liberty without due process of law where
       his conviction for assault is contrary to the manifest weight of the evidence.

       {¶26} When reviewing a claim challenging the manifest weight of the evidence,

the court, after reviewing 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. State

v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. In addition, this

court must remain mindful that the weight to be given the evidence and the credibility of

the witnesses are matters left primarily to the jury. State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967).
       {¶27} The defendant was convicted of assault, in violation of Cleveland Codified

Ordinances 621.03, which provides in relevant part that no “person shall knowingly cause

or attempt to cause physical harm to another * * * [or n]o person shall recklessly cause

serious physical harm to another.”

       {¶28} After reviewing the entire record, we conclude that the defendant’s

conviction for assault is not against the manifest weight of the evidence. The evidence

presented by the City demonstrated that Tinnin reached the door, and the defendant came

after him, grabbed him, and put him into a headlock.          After Tinnin broke free, the

defendant then grabbed him again. A struggle ensued, and the window was shattered.

The defendant put Tinnin in a “pretzel hold,” then pushed him to the ground, got on top of

him, and held him until the police arrived. The jury did not lose its way or create a

manifest miscarriage of justice in convicting the defendant of the offense of assault.

       {¶29} The second assignment of error is without merit.

       {¶30} Accordingly, we affirm the conviction for assault, and reverse and vacate the

conviction for engaging in unlicensed security services.

       It is ordered that appellant recover from appellee 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 Cleveland

Municipal Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
