Opinion
2021-CA-0024
07-12-2023
STATE OF OHIO Plaintiff-Appellee v. RICHARD ASHCRAFT Defendant-Appellant
For Plaintiff-Appellee DAVID YOST Ohio Attorney General BY: ANDREA K. BOYD Special Prosecuting Attorney For Defendant-Appellant MATTHEW J. MALONE
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No 2020-CR-00734
APPEARANCES:
For Plaintiff-Appellee DAVID YOST Ohio Attorney General BY: ANDREA K. BOYD Special Prosecuting Attorney
For Defendant-Appellant MATTHEW J. MALONE
Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.
OPINION
Gwin, P.J.
{¶1} Defendant-appellant Richard Ashcraft ["Ashcraft"] appeals his conviction and sentence after a jury trial in the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} On December 7, 2020, the Richland County Grand Jury indicted Ashcraft on a two-count indictment for assault on a police officer as a felony of the fourth degree in violation of R.C. 2903.13(C)(5) and aggravated possession of drugs as a felony of the fifth degree in violation of R.C. 2925.11(C)(1)(A) as a result of an incident that occurred while Ashcraft was attending the Volunteers of America ["VOA"] program in Mansfield, Ohio.
{¶3} On October 31, 2020, Mansfield Police Department Officers Eric Schaaf and Charles Hamilton were dispatched to the VOA rehabilitation facility for two potential overdoses.
{¶4} Ashcraft was sitting on the floor in the corner when the officers and firemen first approached him; he appeared to be disoriented, sluggish, and slow to respond. In his hand was a cigarette rolled in Bible paper. 2T. at 400-401. Ashcraft did not want to go to the hospital; he reiterated that he was fine and that he did not need help, but emergency personnel convinced him to get onto the gurney to be transported to the hospital. However, once he was placed on the gurney, Ashcraft began flailing and kicking his arms and legs. Ashcraft was attempting to catch onto the doors to prevent the gurney from passing. Eventually, paramedics used the three seatbelt-like straps to restrain Ashcraft on the gurney. Ashcraft then pulled his knees up toward his chest, removed his feet from the restraints and began kicking out at the personnel. 2T. At 359. Ashcraft was placed in handcuffs by the officers. Due to his continued flailing and kicking, it was difficult for the gurney to pass through the narrow doorways. Officers Schaaf and Hamilton, along with two firemen, picked up Ashcraft and carried him to the parking lot. Due to Ashcraft's combativeness and for safety reasons, officers decided to transport Ashcraft by police cruiser instead of ambulance.
{¶5} Ashcraft did not want to get into the cruiser; he kept trying to push and get away from the officers and was yelling and screaming. While the first responders were attempting to get Ashcraft into the cruiser, he began kicking again, which caused him to fall backward out of the vehicle. Ashcraft's sweat pants fell down a bit during the fall. After picking Ashcraft up off the ground and while attempting to get him back into the cruiser, Ashcraft kicked Officer Hamilton in the groin, causing him to double over in pain and place his hands on his knees. After placing Ashcraft in the cruiser and closing the door, Officer Schaaf walked around the back of the cruiser and saw on the side near the rear passenger door, a baggie. 2T. at 290. The baggie was later tested and found to contain 0.12 grams of methamphetamine. 2T. at 341.
{¶6} The events were captured on the police cruiser's video camera. State's Exhibit 1. 2T. at 283.
{¶7} Ashcraft testified in his own defense. He had a vague and fragmented recollection of the events that transpired. Ashcraft testified that he was trying to sit up in the police cruiser, not to kick Officer Hamilton. According to Ashcraft, he did not intend to kick Officer Hamilton, nor did he intend to cause him any physical harm. Ashcraft also denied having methamphetamine on his person on that date or at any time while at the VOA.
{¶8} Following deliberations, the jury convicted Ashcraft of Assault and Aggravated Possession of Drugs. A sentencing hearing was held on March 26, 2021. On the offense of Assault, the trial court sentenced Ashcraft to eighteen months in prison. On the offense of Aggravated Possession of Drugs, the trial court sentenced Ashcraft to six months in prison. Finally, the trial court imposed 900 days as a post-release control sanction. Those sentences and sanction were ordered to be served consecutively.
{¶9} Ashcraft appealed. On November 2, 2021, finding that no transcript had been filed, this Court affirmed the decision of the trial court. On February 23, 2022, Ashcraft filed a delayed motion to re-open his appeal pursuant to App.R. 26(B). This Court granted Ashcraft's motion by Judgement Entry filed March 24, 2022.
Assignments of Error
{¶10} Ashcraft raises two Assignments of Error, {¶11} "I. APPELLANTS CONVICTION FOR ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶12} "II. APPELLANTS CONVICTION FOR AGGRAVATED POSSESSION OF DRUGS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE."
I.
{¶13} In his First Assignment of Error, Ashcraft admits that the record contains sufficient evidence to support the jury's finding of guilty with respect to Count One of the Indictment; however, Ashcraft argues the greater weight of the evidence at trial was that he inadvertently or accidentally kicked Officer Hamilton, as opposed to knowingly doing so. Therefore, Ashcraft contends that his conviction is against the manifest weight of the evidence.
Standard of Appellate Review - Manifest Weight
{¶14} As to the weight of the evidence, the issue is whether the jury created a manifest miscarriage of justice in resolving conflicting evidence, even though the evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355; State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
{¶15} Weight of the evidence addresses the evidence's effect of inducing belief. State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. 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 fact finder's resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244, ¶25, citing Thompkins.
{¶16} Once the reviewing court finishes its examination, an appellate court may not merely substitute its view for that of the jury, but must find that "'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, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721 (1st Dist. 1983). The Ohio Supreme Court has emphasized: "'[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *.'" Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191-192 (1978).
{¶17} As one Court has explained,
When faced with a manifest weight of the evidence challenge, we must consider whether the state "carried its burden of persuasion" before the trial court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26; see State v. Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the burden of production, which concerns a party's duty to introduce enough evidence on an issue, the burden of persuasion represents a party's duty to convince the factfinder to view the facts in his or her favor. Messenger at ¶ 17. Therefore, in order for us to conclude that the factfinder's adjudication of conflicting evidence ran counter to the manifest weight of the evidence- which we reserve for only the most exceptional circumstances-we must find that the factfinder disregarded or overlooked compelling evidence that weighed against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-388, 678 N.E.2d 541 (1997). We accordingly sit as a "thirteenth juror" in this respect. Id.State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.
{¶18} Further, to reverse a jury verdict as being against the manifest weight of the evidence, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio Constitution. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
{¶19} R.C. 2903.13, Assault, provides, "(A) No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn."
{¶20} R.C. 2901.01 (A)(3) provides, ""Physical harm to persons" means any injury, illness, or other physiological impairment, regardless of its gravity or duration."
{¶21} "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. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." R.C. 2901.22(B).
{¶22} The intent with which an act is committed may be inferred from the act itself and the surrounding circumstances, including acts and statements of a defendant. State v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656 N.E.2d 623, 634(1995); State v. Wallen, 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 722(5th Dist. 1969). Thus, "[t]he test for whether a defendant acted knowingly is a subjective one, but it is decided on objective criteria." State v. McDaniel, 2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d 412 (10th Dist. 1995).
{¶23} Awareness, then, is key. "'If the result is probable, the person acts "knowingly;" if it is not probable, but only possible, the person acts "recklessly" if he chooses to ignore the risk.'" In re Judicial Campaign Complaint Against Emrich, 75 Ohio St.3d 1517, 1519, 665 N. E2d 1133(1996), quoting State v Edwards, 83 Ohio App3d 357, 361, 614 N.E.2d 1123(10th Dist 1992) State v Clay, 120 Ohio St.3d 528, 2008-Ohio-6325, 900 N.E.2d 1000, ¶32 (Lanzinger, J, concurring).
{¶24} In the case at bar, Officer Hamilton testified that Ashcraft was kicking at people. 2T. at 402. Officer Hamilton characterized Ashcroft's actions as "intentional." Id. at 403. Ashcraft testified he did not intend to kick Officer Hamilton; rather he simply did not want to go to the hospital or jail.
{¶25} While there was conflicting testimony presented at trial, a defendant "is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented." State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. See also State v. J.E.C., 10th Dist. No. 12AP-584, 2013-Ohio-1909, ¶ 42. The jury may consider conflicting testimony from a witness in determining credibility and the persuasiveness of the account by either discounting or otherwise resolving the discrepancies. State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio App.3d 288, 2008-Ohio-641, ¶ 28 (10th Dist.). "The finder of fact can accept all, part or none of the testimony offered by a witness, whether it is expert opinion or eyewitness fact, and whether it is merely evidential or tends to prove the ultimate fact.'" State v. Petty, 10th Dist. Franklin No. 15AP-950, 2017-Ohio-1062, ¶ 63, quoting State v. Mullins, 10th Dist. No. 16AP-236, 2016-Ohio-8347, ¶ 39.
{¶26} In other words, "[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe." State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24.
{¶27} We find that this is not an "'exceptional case in which the evidence weighs heavily against the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon the entire record in this matter we find Ashcraft's conviction is not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury heard the witnesses, evaluated the evidence, and was convinced of Ashcraft's guilt.
{¶28} Upon review of the entire record, weighing the evidence and all reasonable inferences as a thirteenth juror, including considering the credibility of witnesses, we cannot reach the conclusion that the trier of facts lost its way and created a manifest miscarriage of justice. We do not find the jury erred when it found Ashcraft guilty. Taken as a whole, the testimony and record contain ample evidence of Ashcraft's responsibility for the assault. The fact that the jury chose to believe the testimony of the state's witnesses does not, in and of itself, render his convictions against the manifest weight of the evidence. While Ashcraft is certainly free to argue that he did not intend to kick Officer Hamilton, on a full review of the record we cannot say that the jury clearly lost its way or created a manifest injustice by choosing to believe the testimony of the state's witnesses. The jury was able to observe the witnesses, including Ashcraft, testify subject to cross-examination, as well as observe the events as the occurred in real time on the cruiser dash camera video.
{¶29} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crime of assault of a police officer for which Ashcraft was convicted. We do not find that the jury disregarded or overlooked compelling evidence that weighed against conviction.
{¶30} Ashcraft's First Assignment of Error is overruled.
II.
{¶31} In his Second Assignment of Error, Ashcraft contends that his conviction for Aggravated Possession of Methamphetamine is against the sufficiency of the evidence.
Standard of Appellate Review- Sufficiency of the Evidence.
{¶32} The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶33} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. "The relevant inquiry is whether, after viewing the evidence in the 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." Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, "on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; rather, we ask whether, 'if believed, [the evidence] would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will not "disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.'" State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review:
Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind that Ashcraft was guilty beyond a reasonable doubt of Aggravated Possession of Methamphetamine
{¶34} Possession of drugs under R.C. 2925.11(A) provides, "No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog."
{¶35} R.C. 2925.01 (K) defines possession as follows: "'Possess' or 'possession' means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." R.C. 2901.21 provides the requirements for criminal liability and provides that possession is a "voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor's control of the thing possessed for sufficient time to have ended possession." R.C. 2901.21(D)(1).
{¶36} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98(1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362(1982), syllabus. To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93(8th Dist. 2000). Circumstantial evidence that the defendant was located in very close proximity to the contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86 Ohio App.3d 227, 235, 620 N.E.2d 242, 247-248(8th Dist. 1993); State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 50; State v. Moses, 5th Dist. Stark No. 2003CA00384, 2004-Ohio-4943, ¶9. Ownership of the contraband need not be established in order to find constructive possession. State v. Smith, 9th Dist. Summit No. 20885, 2002-Ohio-3034, ¶ 13, citing State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585(8th Dist. 1993).
{¶37} Officer Schaff testified that Ashcraft's sweatpants came down a little as he fell while struggling to be put into the police cruiser. 2T. at 296. He further testified he could see something fall to the ground on the cruiser dash camera video. Id. at 297. The baggie of methamphetamine was found in the area where Ashcraft fell. Id. Firefighter/Paramedic Austin Young testified he saw something on the ground in the area where Ashcraft stood up after he fell. 2T. at 391. Officer Hamilton testified he heard Officer Schaff say, "We got a bag here." 2T. at 407. The baggie was laying on the ground just outside of the cruiser where the officers were struggling to get Ashcraft in to the cruiser. Id.
{¶38} Viewing the evidence in the case at bar in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Ashcraft had committed the crime of Aggravated Possession of Drugs. We hold, therefore, that the state met its burden of production regarding each element of the crime of Aggravated Possession of Drugs and, accordingly, there was sufficient evidence to submit the charge to the jury and to support Ashcraft's conviction.
{¶39} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the trier of fact may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we note that circumstantial evidence has the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n. 4, 684 N.E.2d 668 (1997).
{¶40} In the case at bar, the jury heard the witnesses, viewed the evidence, and saw the events unfold in real time via the dash camera video. Thus, a rational basis exists in the record for the jury's decision.
{¶41} Further, we find that this is not an "'exceptional case in which the evidence weighs heavily against the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Upon review of the entire record, weighing the evidence and all reasonable inferences as a thirteenth juror, including considering the credibility of witnesses, we cannot reach the conclusion that the trier of facts lost its way and created a manifest miscarriage of justice. We do not find the jury erred when it found Ashcraft guilty. Taken as a whole, the testimony and record contains ample evidence of Ashcraft's responsibility for the crime. The fact that the jury chose to believe the testimony of the state's witnesses does not, in and of itself, render his conviction against the manifest weight of the evidence. While Ashcraft is certainly free to argue that he did not possess methamphetamine, on a full review of the record we cannot say that the jury clearly lost its way or created a manifest injustice. The state presented testimony and evidence from which the jury could have found all the essential elements of the offense proven beyond a reasonable doubt. We do not find that the jury disregarded or overlooked compelling evidence that weighed against conviction.
{¶42} Ashcraft's Second Assignment of Error is overruled.
{¶43} The judgment of the Richland County Court of Common Pleas is affirmed.
Gwin, P.J., Wise, J., and Delaney, J., concur