[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-Ohio3512, ¶ 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. C060202, 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-Ohio2953, ¶ 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-Ohio2337, ¶ 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-Ohio4183, ¶ 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. 

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