[Cite as State v. Orr , 2016-Ohio-8463.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. DAVID R. ORR Appellant C.A. No. 16CA010909

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR090066

DECISION AND JOURNAL ENTRY Dated: December 29, 2016

WHITMORE, Presiding Judge. {¶1} Defendant-Appellant, David Orr, appeals his convictions from the Lorain County

Court of Common Pleas. This Court affirms.

I. {¶2} The facts underlying this appeal involve an altercation betw een an inmate and

several corrections officers. For reasons not rele vant to this appeal, David Orr was incarcerated at the Lorain Correctional Institution. One morning, as inmates were being escorted to breakfast, Orr stood silently in his cell, refusing to get dre ssed. A corrections officer instructed Orr to get dressed, but he conti nued to stand silently in his cell. That corrections officer testified that Orr had a “you’re not going to tell me what to do” look on his face. Orr testified on his own behalf and indicated that he “wasn’t feeling [like] [him]self” that morning and “didn’t want to leave [his] cell[,] * * * didn’t want to go to chow[,] * * * [and] didn’t want to eat[.]”2

{¶3} After Orr failed to follow the corrections officer’s instructions, she called for

assistance. Two additional corrections officers and a sergeant responded. The officers told Orr

that he would be taken to the mental health de partment for an examination, sat him in a chair, and began the process of getting him dressed. As they were putting his shirt on, Orr jumped up

from the chair and became combative with the o fficers. The officers executed a “takedown” maneuver, which one officer described as a techni que used to bring an inmate safely to the ground so that the officers can regain control. During the takedown maneuver, officers instructed Orr to stop resisting and placed him in handcuffs. As they stood Orr up, he went “dead weight” and the officers – one on each side – began escorting him to the medical department. As they traversed a doorway, Orr bega n resisting and kicked an officer twice in the leg. Officers again performed a takedown mane uver and got Orr under control. After Orr was medically evaluated, the officers began escorting him to segregation. Orr again started struggling with the officers and, for a third time , the officers performed a takedown maneuver. While officers executed the takedown maneuver, Orr raised his elbow and stuck an officer in the lip, causing it to bleed. Another officer obtained a set of leg irons and placed them on Orr, who was then put on a medical cart and transported to segregation without further incident. {¶4} A grand jury indicted Orr on two counts of assault under Revi sed Code Section 2903.13(A) and one count of obstructing official business under Section 2 921.31(A), all felonies of the fifth degree. Orr pleaded not guilty and the case proceeded to a jury trial. The jury returned a verdict of guilty on all counts and, after merging the obstructing-official-business

count with the two assault count s, the trial court sentenced O rr to two consecutive seven-month terms of incarceration, which were to run consecutively to a sentence he was serving for an unrelated crime. Orr now appeals, raising two assignments of error for our review.3

II.

ASSIGNMENT OF ERROR I

THE VERDICTS FOR ASSAULT AND OBSTRUCTION OF OFFICIAL BUSINESS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶5} In his first assignment of error, Orr argu es that his convictions for assault were not supported by sufficient evidence because the evidence did not establish that he acted knowingly when he struck the corrections officers. He argues that his convictions were against the manifest weight of the evidence for the sa me reason. With respect to his conviction for obstructing official business, Orr argues that the evidence did not establish that he engaged in some affirmative or overt act to impede or hamper the duties of the corrections officers. Rather, he asserts that he merely refuse d to cooperate with their demands. He, therefore, argues that his conviction for obstructing official business wa s not supported by sufficient evidence and was also against the manifest weight of the evidence. {¶6} As this Court has explained, “sufficiency and manifest weight of the evidence are legally distinct issues. * * * Sufficiency test s whether the prosecution has met its burden of production at trial, whereas a manifest-weight challenge questions whet her the prosecution has met its burden of pe rsuasion.” (Interna l citations omitted.) State v. Lee , 158 Ohio App.3d 129, 2004-Ohio-3946, ¶ 17 (9th Dist.). We will begin our review with an analysis of whether the State presented sufficient evidence to support the convictions for assault and obstructing official

business. {¶7} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins , 78 Ohio St.3d 380, 386 (1997),4

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be viewed in a light most favorable to the prosecution. State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. The pertinent ques tion is whether “any rational trier of fact could

have found the essential elements of th e crime proven beyond a reasonable doubt.” Id

. “Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Thompkins at 386, citing State v. Robinson , 162 Ohio St. 486 (1955). This Court, therefore, reviews questions of sufficiency de novo. State v. Salupo , 177 Ohio App.3d 354, 2008-Ohio-3721, ¶ 4 (9th Dist.). {¶8} Regarding assault, Se ction 2903.13(A) prohibits persons from “knowingly caus[ing] or attempt[ing] to cause physical ha rm to another * * *.” “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.” R.C. 2901.22(B). {¶9} The State presented evidence that, if believed, indicated that Orr kicked a corrections officer twice in the leg, and elbowed another officer in the mouth, causing his lip to bleed. Specifically, one officer te stified that Orr started “kicking and thrashing” and “forcefully drew his foot forward in [his] thigh[,]” which caused the officer to experience soreness in that

area. When Orr’s defense counsel asked him on di rect examination whethe r he intended to kick the officer, Orr responded: “[n]ot that I’m aware of [,]” and later claimed th at his leg “[j]ust went in the air[.]” Another officer testified that Orr “raised his elbow and struck [him] in the lip.” Orr denied knowing that he struck the officer in the lip, but admitted that he “got into * * * a little

altercation * * * with the officers.” Orr ad mitted being frustrated and angry and, when asked5

whether he “just didn’t want to do what [the correc tions officers] were asking [him] to do[,]” he responded, “[c]orrect.” {¶10} To the extent that Orr argues that he did not knowingly cause these injuries, this Court has stated that a defendant acts knowingl y for purposes of assault when the defendant

initiates a course of conduct that increases the likelihood of violence and injury. State v. Bailey , 9th Dist. Lorain No. 05CA008848, 2006-Ohio-5286, ¶ 19. Further, we note that “[a] defendant’s state of mind may be inferred from the to tality of the surrounding circumstances.” State v. Harper , 9th Dist. Summit No. 19632, 2000 WL 327231, *2 (Mar. 29, 2000). Viewing the evidence in a light most favorable to the prosec ution, we conclude that a rational trier of fact

could have found the essential elements of assault proven beyond a reasonable doubt. Jenks , 61 Ohio St.3d 259 (1991), at paragraph two of the syllabus. {¶11} We now turn our attention to Orr’s argument that the State failed to present sufficient evidence to support his conviction for obstructing official business. Section 2921.31(A) provides that “[n]o person, without privile ge 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.” Orr argues that the State failed to demonstrate that he engaged in some affirma tive or overt act to impede or hamper the corrections officers’ duties. Rather, he argues that he merely refused to cooperate with their

demands. {¶12} The testimony adduced at trial, if belie ved, indicated that Orr did more than merely refuse to cooperate with the corrections officers. Indeed, it indicated that Orr was combative on at least three occasions, which prompted the officers to execute takedown6

maneuvers in order to regain control over his pe rson. Orr’s actions, including his refusal to get dressed and subsequent behavior while being escorted through the facility, resulted in a delay in escorting the other inmates to breakfast and necessitated the assistance of several additional corrections officers. Officers testified that they were taken away from their regular duties, which included supervising other inmates. As a result, some inmates went unsupervised for a period of time, while about 100 others were only being supervised by one officer. {¶13} Viewing the evidence in a light most fa vorable to the prosecution, we conclude

that a rational trier of fact could have found the essential el ements of obstructing official business proven beyond a reasonable doubt. Having determined that all of Orr’s convictions were supported by sufficient evidence, we now turn to his argument that his convictions were against the manifest weight of the evidence. {¶14} If a defendant asserts that a conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the greater amount of credible evidence produced in a trial to support one side over the other side. Thompkins , 78 Ohio St.3d at 387. An appellate court s hould only exercise its power to reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson , 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340. {¶15} Orr argues that his convictions for assau lt are against the manifest weight of the evidence for the same reason that they were not supported by sufficient evidence, that is, because7

he did not act knowingly when he struck the correc tions officers. Similarly, he argues that his conviction for obstructing official business is ag ainst the manifest weight of the evidence because he did not engage in some affirmative or overt act to impede or hamper the duties of the

corrections officers. {¶16} Having reviewed the record, we cannot sa y that this is an exceptional case where the evidence weighs heavily against conviction. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). The jury heard testimony from several corrections officers rega rding the events that took place and the effect they had on the performance of their job duties that morning. The jury also heard Orr’s own version of the events, in cluding his testimony that he did not knowingly strike the officers or intend to obstruct official business. As this Court has stated, “[w]e will not overturn the verdict on a manifest weight challenge simply because the jury chose to believe the evidence offered by the prosecution.” State v. Morgan , 9th Dist. Summit No. 22848, 2006-Ohio3921, ¶ 35. {¶17} In light of the foregoing, Orr’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II THE TRIAL COURT DENIED [MR.] ORR DUE PROCESS, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, BY RETALIATING AGAINST [MR.] ORR FOR EXERCISING HIS RIGHTS TO NOT PLEAD GUILTY AND HAVE HIS CASE TRIED BEFORE A JURY. {¶18} In his second assignment of error, Orr argu es that the trial court violated his due process rights by punishing him for declining the plea offer and exercising his right to a jury trial. We disagree. {¶19} “A criminal defendant is guaranteed the right to a trial by jury and cannot be punished for exercising that righ t by refusing a plea offer.” State v. Tucker , 9th Dist. Lorain No.8

13CA010339, 2016-Ohio-1353, ¶ 29, citing State v. O’Dell, 45 Ohio St.3d 140 (1989), paragraph two of the syllabus. “Any increase in se ntencing that is attributable to the defendant’s decision to take the case to trial is improper.” Tucker at ¶ 29, citing State v. Morris , 159 Ohio App.3d 775, 2005-Ohio-962, ¶ 12 (4th Dist.). “Cons equently, a trial court must avoid the appearance that a sentence has been enhanced b ecause the defendant chose to take the case to

trial.” Tucker at ¶ 29, citing State v. Chapman , 190 Ohio App.3d 528, 2010-Ohio-5924, ¶ 30 (9th Dist.), quoting Morris at ¶ 13. “If a court makes statements from which it can be inferred that the sentence was increased due to a defendant’s decision to proceed to trial, then that sentence must be vacated unless the record contains unequivocal evidence that the decision to proceed to trial was not considered when sentencing the defendant.” State v. Turner , 9th Dist. Summit No. 27210, 2014-Ohio-4460, ¶ 22. {¶20} Orr primarily relies upon this Court’s prior decision in State v. Tucker in support of his position that the trial court imposed a trial tax. 1 9th Dist. Lorain No. 14CA010704, 2016-

Ohio-1354. In Tucker , the trial court offered its own plea deal to the defendant and informed him that the potential length of his sentence depe nded, in part, on the strength of his defense. Id. at ¶ 28. In doing so, the trial court informed the defendant that he was facing more than 50 years in prison, but that he could receive a nine-year pris on term if he accepted the court’s plea offer.

Id. At sentencing, the trial court stated that “generally speaking, if you have a strong defense, this Court will never punish you for compelling the Court to proceed with a jury trial.” Id. at ¶ 29. It further stated that the defendant “h ad an opportunity to significantly reduce the

1 This case is not to be confused with this Court’s decision in State v. Tucker , 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353, which was issued on the same day, involved the same defendant, and addressed a similar trial-tax issue. We note that Orr cited Case No. 14CA010704 in his merit brief. In responding to Orr’s argument, the State mistakenly referred to Case No. 13CA010339.9

consequences of his actions[,]” but chose not to do so. Id. The trial court then sentenced the defendant to an aggregate prison term of 25 years. Id. at ¶ 5. {¶21} On appeal, this Court held that the trial court’s comments created an inference that the defendant received a harsher sentence, at least in part, because he chose to take his case

to trial. Id. at ¶ 30. We further determined that th e record did not cont ain unequivocal evidence demonstrating that the defendant’s decision to proceed to trial was not considered during sentencing. Id. Accordingly, we vacated the defendant’s sentence and remanded the matter for a new sentencing. Id. {¶22} Orr argues that this case is similar to Tucker because it involves a trial court that offered its own plea deal, a defendant that reject ed it, and a sentence that was more than what was offered in the plea deal. The crux of Orr’s argument is that, because the State presented no new or impactful information at trial, the trial court must have retalia ted against him based upon his decision to maintain his innocence and proceed to trial. We find his argument unpersuasive. {¶23} As an initial matter, we note that a review of the record reveals that the State, not the trial court, offered Orr a plea deal. In this regard, the State offered Orr a six-month prison sentence to run consecutively to the sentence he was currently serving. The trial court indicated that it was willing to impose that sentence if Orr accepted it. Unlike the facts in Tucker , Orr has not pointed us to any statements by the trial court that created an inference that it increased his sentence based upon his decision to proceed to trial. Despite Orr’s argument, we cannot say that, without more, the fact that the trial court imposed a longer sentence after trial than what was offered during plea negotiations i ndicates that the trial court punish ed Orr for refusing the State’s plea offer. Accordingly, Orr’s second assignment of error is overruled.10

III. {¶24} David Orr’s assignments of error are ove rruled. The judgment of the Lorain County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

HENSAL, J. SCHAFER, J. CONCUR.11

APPEARANCES: PATRICK HAKOS, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.