[Cite as State v. Lucas , 2021-Ohio-2721.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - DALE C. LUCAS, Defendant-Appellant. CASE NO. 2020-L-118

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2020 CR 000181

O P I N I O N

Decided: Au g ust 9, 2021 Jud g ment: Affirmed

Charles E. Coulson , Lake County Prosecutor, and Kristi L. Winner , Assistant Prosecutor, Lake County Administration Building, 105 Main Stree t, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. A llison S. Breneman , P.O. Box 829, Willou g hb y , OH 44096 ( For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, Dale C. Lucas, appeals his conviction for assault following a jury trial in the Lake County Court of Common Pleas . For the following reasons, the assault conviction is affirmed. {¶2} On July 10, 2020, the Lake County Grand Jury returned an Indict ment against Lucas charging him with assault (Count 1), a felony of the fifth degree in violation of R.C. 2903.13(A) and (C)(4)(a), and obstructing official busi ness (Count 2), a felony of the fifth degree in violation of R.C. 2921.31.2

Case No. 2020-L-118 {¶3} The matter proceeded to a jury trial on October 13 and 14, 2020 . The jury returned a verdict of “guilty” as to assault and “not guilty” a s to obstructing official business. The following testimony was presented at trial relat ive to the assault count: {¶4} Brian Serra, a corrections officer at the Lake County Adult Det ention Facility, testified that, at about 11:15 on the evening of Janu ary 28, 2020, he was directed to the second floor of the facility where there was water in th e hallway. Serra observed Lucas, in an isolation cell, approximately four by six feet, sc ooping water out of the toilet and throwing it on the floor. The supervising officer, Lieuten ant Simpson, ordered Lucas to be handcuffed and placed in a restraint chair. Serra, Simps on, and another corrections officer, Officer Karac, entered the cell and Lucas was ordered to place his hands on the wall. Lucas did not comply. Officer Karac approached Lucas an d he began to struggle.

The officers took Lucas down on the bunk. {¶5} Officer Serra testified: “That was when Officer Karac and me we re struggling to restrain his arms. I was trying to restrain his legs, and that’s when he kicked Lieutenant Simpson, who was directly on my left hip. * * * He was struggling, didn’t want to be restrained. * * * I was attempting to restrain his legs and that’s when his legs slipped out of my hand.” Serra was uncertain if the kick was intention al. {¶6} Keith Parsons, a corrections officer at the Lake County Adult D etention Facility, was present in the se cond-floor isolation unit on the evening in question. He remained outside Lucas’ cell during the struggle to subdue him. He noted that Lieutenant Simpson was “limping badly” when he emerged from the cell. {¶7} Davor Karac, a corrections officer at the Lake County Adult Det ention Facility, testified that on the evening in question he was dire cted to the second-floor3

Case No. 2020-L-118 isolation unit and observed Lucas repeatedly flushing the toile t and scooping the water out onto the floor. Lucas’ demeanor was angry, and he was yell ing threats through the door at the officers. Lieutenant Simpson ordered Karac into th e cell and Lucas adopted a combative stance “with his right foot in front, hands raised in a fighting manner.” The officers “gained compliance of inmate Lucas,” forcing him face down on his bunk. {¶8} Officer Karac described the situat ion thus: “He was still strug gling and would not give up his arms. * * * At that point Lieutenant Simpson pepper sprayed Lucas. * * * At that point I heard Lieutenant Simpson scream, ‘my leg.’” {¶9} Robert Niemi, a corrections officer at the Lake County Adult De tention Facility, was present in Lucas’ cell on the evening in question . He described the struggle to restrain Lucas as follows: “Officers Karac and Serra grabbed ahold of the defendant and placed him against the wall in order for him to be handcuff ed. At that point the defendant pushed off of the wall toward the officers who had co me into the room. At that point we grabbed ahold of him and took him down on his bunk jus t to prevent any officer injury. * * * [After] maybe a minute of struggling with him o n his bunk, Lieutenant Simpson pepper sprayed him and from that point he gave up and let us ha ve his hands, let us have his feet, and he was handcuffed and shackled.” Niemi was not a ware of any injury suffered by Lieutenant Simpson during the struggle. {¶10} Scott Simpson, an executive lieutenant at the Lake County Adult Detention Facility, was the officer in charge of the facility on the even ing in question. He was called to the second floor on account of Lucas having flooded his cell . He ordered Lucas restrained and followed Officers Serra, Karac, and Niemi into t he cell which he described as about four by eight feet.4

Case No. 2020-L-118 {¶11} Lieutenant Simpson testified: “The officers went in. [Lucas] s tarted resisting the officers with the handcuffing. The officers took him down onto the bunk * * * [and] were trying to handcuff him. * * * My job as a supervisor is to make sure * * * they are not abusing the inmate while we’re doing it. * * * I have peo ple on his legs, people up top trying to get him. He kicked off of the bunk into my knee, folded my knee. * * * I think he caught me off guard. * * * My position was I should have s tayed back a little more, but it’s a small area. * * * I think he just had that one har d kick come off the side. It wasn’t like his legs were flailing in the air.” {¶12} Lieutenant Simpson was questioned about the sequence of events. It was noted that, in the Response to Aggression Report completed by S impson, he described deploying the pepper foam spray “while being kicked in the righ t knee.” Simpson explained that he was kicked first and then, as a result of the injury, deployed the pepper spray: “No, I was kicked first and then after being kicked I re alized that the situation became -- because I realized I was injured, that I needed to en d it right there, that’s why the pepper spray was used. * * * The pepper spray wasn’t used right when he kicked me. * * * I realized now I’m already injured, I don’t want hi m getting injured, I don’t want the officers injured, then I deployed the pepper spray.” {¶13} On November 23, 2020, the trial court issued its Judgment Entry of Sentence. The court ordered Lucas to serve a stated prison ter m of twelve months for assault, consecutive to another twelve-month sentence imposed f or violating post-release

control. {¶14} On November 30, 2020, Lucas filed a Notice of Appeal. On appea l, he raises the following assignments of error:5

Case No. 2020-L-118 {¶15} “[1.] The Jury found, against the manifest weight of the eviden ce, that the Appellant committed the acts alleged in the indictment.” {¶16} “[2.] The evidence was not legally sufficient to sustain a guil ty verdict.” {¶17} The evidentiary basis for a cri minal conviction may be challeng ed on appeal on the grounds of the sufficiency and the weight of the evidenc e. “The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.” State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), paragraph two of the syllabus. With respect to sufficiency of t he evidence, “‘sufficiency’ is a term of art meaning that legal standard which is applied to det ermine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of l aw.” Black’s Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29 (A) (motion for judgment of acquittal can be granted by the trial c ourt if the evidence is insufficient to sustain a conviction). In esse nce, sufficiency is a test of adequacy. Whether the evidence is leg ally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addi tion, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

Id. at 386-387. An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s gu ilt beyond a reasonable doubt. The relevant inquiry is whether, af ter viewing the evidence in a light most favorable to the prosecuti on, 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 th e syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).6

Case No. 2020-L-118 Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court m ay nevertheless conclude that the judgment is against the weight o f the evidence. Robinson , supra , 162 Ohio St. at 487, 55 O.O. at 388- 389, 124 N.E.2d at 149. Weight of the evidence concerns “the inclination of the greater amount of credible evidence , offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Wei ght is not a question of mathematics, but depends on its effect in inducing belief .” (Emphasis added.) Black’s, supra , at 1594. Thompkins at 387. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evid ence, the appellate court sits as a “‘thirteenth juror’” and disagrees wi th the factfinder’s resolution of the conflicting testimony. Tibbs , 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 71 7, 720-721 (“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibili ty of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani fest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial sho uld be exercised only in the exceptional case in which the evidence we ighs heavily against the conviction.”).

Id. ; State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 (“a reviewing court asks whose evidence is more persuasive—the stat e’s or the defendant’s?”). {¶18} Although distinct legal concepts, this court and others have re cognized that, “[s]ince there must be sufficient evidence to take a case to th e jury, it follows that ‘a finding that a conviction is supported by the weight of the evidence necessarily must include a finding of sufficiency.’” (Citation omitted.) State v. Owens , 2018-Ohio-1334, 109 N.E.3d 588, ¶ 26 (11th Dist.); State v. Gibson , 11th Dist. Lake No. 2020-L-073, 2021-Ohio-1255,7

Case No. 2020-L-118 ¶ 12 (“[u]pon a conclusion that the trial court’s decision is n ot against the manifest weight of the evidence, an appeals court need not do a separate analys is as to sufficiency because a conclusion that a decision is not against the manifes t weight necessarily means it was supported by sufficient evidence”); Thompkins at 388, quoting Tibbs v.

Florida , 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (“[a] reversal based on the weight of the evidence * * * can occur only after the State both has presented sufficient

evidence to support conviction and has persuaded the jury to convict”). {¶19} In order to convict Lucas of assault, the State was required to prove beyond a reasonable doubt that he did “knowingly cause or attempt to c ause physical harm to another.” R.C. 2903.13(A). “A person acts knowingly, regardle ss of purpose, when the person is aware that the pers on’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of cir cumstances when the person is aware that such circumstances probably exist.” R.C. 2901.22(B). Accordingly, assault does not require that a defendant intend to cause physi cal harm, but “only requires that the defendant acted with awareness that the conduct probab ly will cause such harm.” State v. Skjold , 11th Dist. Geauga No. 2003-G-2544, 2004-Ohio-5311, ¶ 24 1 ; State v. Lloyd , 8th Dist. Cuyahoga No. 109128, 2021-Ohio-1808, ¶ 51 (“[t]o be actionable it is only necessary that the result is within the natural and logical sco pe of risk created by the conduct”) (citation omitted). {¶20} With respect to sufficiency, Lucas argues that there was no evi dence that he acted knowingly when he kicked Lieutenant Simpson. He claim s the uncontradicted

1. The Skjold case, like many of the other cases which follow, involved felo nious assault rather than assault. The only difference between felonious assault and assault is th at the former requires serious physical harm. R.C. 2903.11(A). With respect to the mens rea or culpability e lement, both crimes require the offender to act “knowingly.” As to this element, then, felonious assault c ases are equally applicable to assault cases.8

Case No. 2020-L-118 evidence is that, at the time of the alleged assault, correctio ns officers were trying to restrain him and hold him down on the bunk. “At this point, Mr . Lucas was not fully in control of his own body” and could not “have had any knowledge where his foot would have landed[;] [i]t was just as likely that his foot would have kicked an object in the room, or the air.” Appellant’s brief at 9. {¶21} Before considering Lucas’ argument, the following statement of the law is worth quoting: “Incidental and accidental conduct cannot support a conviction for knowingly causing or attempting to cause physical harm.” In re S.C.W. , 9th Dist. Summit No. 25421, 2011-Ohio-3193, ¶ 23. However, several Ohio courts have found that ‘flailing’ to evad e arrest is sufficient to support a conviction for knowingly caus ing harm or attempting to cause harm. See , e.g. , State v. Munoz , 10th Dist. Franklin No. 12AP-299, 2013-Ohio-4987, ¶ 12 (“When flailing one ’s arms while in close proximity to another, it is probable that o ne will strike the other.”); State v. Standifer , 12th Dist. Warren No. CA2011- 07-071, 2012-Ohio-3132 (evidence that officer was kicked by defendant’s flailing foot during arrest was sufficient to suppo rt assault conviction); State v. Noble , 9th Dist. Lorain No. 94CA005862, 1995 WL 366069 (June 21, 1995) (evidence that officer was struck by defendant’s flailing arms and legs during arrest was sufficient to support assault conviction).

In re M.H. , 2021-Ohio-1041, 169 N.E.3d 971, ¶ 44 (1st Dist.); State v. Fort, 2016-Ohio1242, 61 N.E.3d 864, ¶ 27 (10th Dist.); State v. Jones , 8th Dist. Cuyahoga No. 81112, 2003-Ohio-3004, ¶ 57. {¶22} We find that the evidence is sufficient to support a conviction for assault:

Lucas delivered a hard kick while four corrections officers att empted to subdue him in a confined area. A photograph of Lucas’ cell depicts the bunk fl ush against the cell wall. The officers could have only been positioned on one side of the bunk and the kick could only have been directed toward the officers. It was entirely p robable that the kick would9

Case No. 2020-L-118 have impacted one of the officers and cause some physical injur y. Regardless of whether Lucas was “fully in control of his own body,” he at least had e nough control of his legs to kick. Moreover, there is evidence that the kick was not even a blind kick. If Lieutenant Simpson was in a position to pepper spray Lucas’ face, Lucas wa s in a position that he could see Lieutenant Simpson. {¶23} Lucas’ argument rests on the supposition that he had been peppe r sprayed before delivering the kick thus rendering it an involuntary rea ction. The evidence for this is not uncontradicted and, therefore, this argument goes to the weight rather than the sufficiency of the evidence. {¶24} Lucas notes that Officer Karac te stified that Lieutenant Simpso n pepper sprayed him and then cried out, “my leg,” and that, according t o Simpson’s written report, he pepper sprayed Lucas “while being kicked in the right knee.” Although this evidence supports an inference that the kick was an involuntary action, it does not conclusively establish the fact. Contrary to this evidence is the express t estimony of Simpson that he was kicked first and that this prompted him to deploy the peppe r spray. Simpson explained the use of the word “while” in the written report as referring to the “whole

moment” in which the events occurred. In addition to this dire ct evidence that Lucas kicked before being pepper spray ed, Officer Niemi testified tha t Lucas ceased resisting after being pepper sprayed which indirectly supports Simpson’s testimony. Similarly, Officer Serra testified that Simpson was kicked while he was at tempting to restrain him, i.e., before the pepper spray was deployed. Considering this c onflicting testimony, we find no manifest injustice in the jury’s decision to convict. {¶25} The fact that Officer Serra could not say whether the kick was intentional10

Case No. 2020-L-118 and that the other officers were silent about Lucas’ intentions is of minimal import. In this case and as is common in such cases, there was no direct eviden ce regarding the defendant’s intentions. “Absent an admission, whether a defend ant acted ‘knowingly’ must be determined ‘from all the surrounding facts and circumst ances, including the doing of the act itself.’” ( Citation omitted.) Lloyd , 2021-Ohio-1808, at ¶ 51. {¶26} Finally, even assuming that Lucas was pepper sprayed before kic king, the possibility of an intentional kick is not precluded. Under thi s assumption, it would be possible to infer that the action was involuntary, but it would be equally possible to infer that Lucas intentionally kicked blindly in retaliation or as an act of further resistance. Lieutenant Simpson described “one hard kick” rather than Lucas’ legs “flailing in the air.” As noted above, given the circumstances in the cell, even a bli nd kick would be likely to cause harm. If so, th e conviction would still be sustained. {¶27} The assignments of error are without merit. {¶28} For the foregoing reasons, Lucas’ conviction for assault is aff irmed. Costs to be taxed against the appellant.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.