[Cite as State v. Littlejohn, 2011-Ohio-2035.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 95380 

STATE OF OHIO

 

PLAINTIFF-APPELLEE

vs.

MARIO A. LITTLEJOHN

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-523358 

BEFORE: Kilbane, A.J., Cooney, J., and Keough, J. 
RELEASED AND JOURNALIZED: April 28, 2011 

ATTORNEY FOR APPELLANT

Robert A. Dixon 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Erica Barnhill 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, A.J.: 

{¶ 1} Defendant-appellant, Mario Littlejohn (Littlejohn), appeals his 

convictions and sentences. Finding no merit to the appeal, we affirm. 

{¶ 2} In April 2009, Littlejohn was charged in a five-count indictment. 

Counts 1 and 2 charged him with felonious assault on a peace officer, Count 3 

charged him with drug possession, Count 4 charged him with drug trafficking 

with a juvenile specification, and Count 5 charged him with possessing 

criminal tools. The matter proceeded to a jury trial, at which the following 

evidence was adduced. 

{¶ 3} On March 19, 2009, Cleveland police officers responded to a call 

of shots fired at the Garden Valley Apartments in Cleveland, Ohio. Officers 

Katrina Ruma (Ruma), Nicholas Sefick (Sefick), Thomas Tohati (Tohati), and 

Daniel Hourihan (Hourihan) responded to the scene. Ruma observed a white 

Lexus, with two occupants, parked in the parking lot. She spoke with 

Salvatore Curiale (Curiale), the security officer on duty at the time. Curiale 

advised that the Lexus had been parked there for about an hour. 

{¶ 4} Ruma approached the Lexus to determine if the occupants 

observed any activity relating to the shooting. She testified that there was a 

female in the driver’s seat, a male in the front passenger seat, and a child in 
the back seat. Ruma asked Taniesha Howard (Howard), the female in the 

driver’s seat, to lower her window. When Howard lowered her window, 

Ruma smelled marijuana and observed smoke coming out of the window. At 

this point, Ruma ordered both Howard and Littlejohn, the male passenger, to 

exit the Lexus. Sefick, Tohati, and Hourihan were at the scene to assist 

Ruma. Tohati asked Littlejohn if he had any weapons or drugs on him. 

Littlejohn responded that he had marijuana. Tohati patted down Littlejohn 

and found marijuana and crack cocaine in Littlejohn’s pockets. 

{¶ 5} As Tohati was handcuffing Littlejohn, Littlejohn began to run 

away. Tohati held onto Littlejohn by his waist. Littlejohn dragged Tohati 

on the ground for several feet until Hourihan caught up with them and 

tackled Littlejohn to the ground. Littlejohn punched and kicked Tohati and 

Hourihan as they attempted to subdue him. Tohati testified that once 

Littlejohn went to the ground, Littlejohn began to kick him in the face, head, 

and chest area very aggressively, causing him to be disoriented. The next 

thing Tohati remembered was the other officers around him yelling at 

Littlejohn to stop resisting. Hourihan testified that Littlejohn struck him 

several times with his fists and elbows. 

{¶ 6} Littlejohn was eventually secured and placed in the back of a 

police cruiser. Tohati and Hourihan were transported by ambulance to the 

hospital, where they were treated for their injuries. Tohati testified that he 
was disoriented and experienced blurred vision in his right eye. He 

sustained a bruise to his temple that persisted for three to four weeks. He 

testified that the bruise was the size of his palm. Hourihan testified that as 

a result of this incident, he sustained a bruised left hand and a laceration to 

the scalp. At the hospital, he received a tetanus shot and x-rays. He missed 

two weeks of work and then was put on light duty for three weeks because his 

knuckle and wrist were bruised and he could not fully flex his hand. 

{¶ 7} Littlejohn testified in his own defense. He admitted to 

possessing the drugs and attempting to run away from the officers. He 

testified that the officers tackled him to the ground, handcuffed him, and beat 

him. Howard also testified, stating that Littlejohn was beaten by the 

officers. 

{¶ 8} At the conclusion of trial, the jury found Littlejohn guilty of two 

counts of assault of a peace officer (the lesser included offense in Counts 1 

and 2), drug possession (Count 3), and drug trafficking with the juvenile 

specification (Count 4). The jury found him not guilty of possessing criminal 

tools (Count 5). The trial court sentenced him to eighteen months in prison 

on each of Counts 1 and 2, to be served consecutively to each other, eighteen 

months on Count 3, to be served concurrently to Count 4, and five years on 

Count 4, to be served consecutively to Counts 1 and 2, for an aggregate of 

eight years in prison. 
{¶ 9} Littlejohn now appeals, raising three assignments of error for 

review, which shall be discussed together where appropriate. 

ASSIGNMENT OF ERROR ONE 

“The lower court erred and denied [Littlejohn] due 

process of law when it imposed consecutive sentences 

without making findings required by R.C. 2929.14(E) and 

[Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 

L.Ed.2d 517.]”

{¶ 10} The Ohio Supreme Court has set forth the applicable standard of 

appellate review for felony sentences in State v. Kalish, 120 Ohio St.3d 23, 

2008-Ohio-4912, 896 N.E.2d 124, declaring that in applying “[State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470], to the existing statutes, 

appellate courts must apply a two-step approach.” Id. at ¶4.1 Appellate 

courts must first “examine the sentencing court’s compliance with all 

applicable rules and statutes in imposing the sentence to determine whether 

the sentence is clearly and convincingly contrary to law. If this first prong is 

satisfied, the trial court’s decision shall be reviewed under an 

abuse-of-discretion standard.” Id.

{¶ 11} Littlejohn relies on Ice, arguing that his sentence violates due 

process because the trial court imposed consecutive sentences without 

 1We recognize Kalish is merely persuasive and not necessarily controlling 

because it has no majority. The Supreme Court split over whether we review 

sentences under an abuse-of-discretion standard in some instances. 
making the requisite findings required by R.C. 2929.14(E)(4) and 2929.41(A).2

 However, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 

768, the Ohio Supreme Court recently addressed this argument and held that

Ice “does not revive Ohio’s former consecutive-sentencing statutory 

provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held 

unconstitutional in [Foster]. Trial court judges are not obligated to engage in 

judicial fact-finding prior to imposing consecutive sentences unless the 

General Assembly enacts new legislation requiring that findings be made.” 

Id. at paragraphs two and three of the syllabus. As the Kalish court stated, 

post-Foster, “‘trial courts have full discretion to impose a prison sentence 

within the statutory range and are no longer required to make findings and 

give reasons for imposing maximum, consecutive, or more than the minimum 

sentences.’” (Emphasis added in Kalish.) Id. at ¶11, quoting Foster at ¶100. 

{¶ 12} Therefore, the trial court in the instant case was not obligated to 

make findings prior to imposing a consecutive sentence. Furthermore, 

Littlejohn’s eight-year sentence is within the permissible statutory range for 

his convictions. In the sentencing journal entry, the trial court 

 2In Ice, the U.S. Supreme Court upheld a statute that required judicial fact finding when 

imposing consecutive sentences, and concluded that the Sixth Amendment to the United States 

Constitution is not violated when sentencing judges, rather than juries, make the findings of facts 

necessary for the imposition of consecutive, rather than concurrent, sentences for multiple offenses. 

Id. at 716-720.
acknowledged that it had considered all factors of law and found that prison 

was consistent with the purposes of R.C. 2929.11. As a result, we cannot 

conclude that his sentence is contrary to law, and we now consider whether it 

constituted an abuse of discretion. An abuse of discretion “‘implies that the 

court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. 

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. 

Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144. 

{¶ 13} A review of the record reveals that the trial court considered the 

facts of this case and Littlejohn’s prior convictions. The trial court also 

considered letters from Littlejohn’s family members and a presentence 

investigation report from Littlejohn’s prior criminal case. The court stated 

that it did not think that he knowingly intended to assault the police officers. 

 Rather, the court thought he was reckless, and the jury’s verdict reflected 

that accurately. Based on the foregoing, there is nothing in the record to 

suggest the trial court abused its discretion by imposing consecutive 

sentences. 

{¶ 14} Therefore, the first assignment of error is overruled. 

ASSIGNMENT OF ERROR TWO 

“The verdicts finding [Littlejohn] guilty of assault of a 

police officer were against the manifest weight of the 

evidence[.]” 
ASSIGNMENT OF ERROR THREE 

“The evidence below was legally insufficient to sustain 

verdicts of guilty of the offenses of assault as charged in 

Counts 1 and 2 of the indictment[.]”

{¶ 15} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶113, 

the Ohio Supreme Court explained the standard for sufficiency of the evidence: 

“Raising the question of whether the evidence is legally sufficient to support 

the jury verdict as a matter of law invokes a due process concern. State v. 

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing 

such a challenge, ‘[t]he relevant inquiry is whether, after viewing the evidence 

in a light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime proven beyond a reasonable 

doubt.’ State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph 

two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 

S.Ct. 2781, 61 L.Ed.2d 560.”

{¶ 16} With regard to a manifest weight challenge, the “reviewing court asks whose 

evidence is more persuasive — the state’s or the defendant’s? * * * ‘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 factfinder’s 

resolution of the conflicting testimony.’ [Thompkins at 387], citing Tibbs v. Florida (1982), 

457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382, 

2007-Ohio-2202, 865 N.E.2d 1264, ¶25. 

{¶ 17} Moreover, an appellate court may not merely substitute its view for that of the 

jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its way and 
created such a manifest miscarriage of justice that the conviction must be reversed and a new 

trial ordered.’” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 485 

N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional 

case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin. 

{¶ 18} In the instant case, Littlejohn was convicted of assault under 

R.C. 2903.13(B), which provides in pertinent part: “[n]o person shall 

recklessly cause serious physical harm to another[.]” Furthermore, “[i]f the 

victim of the offense is a peace officer * * * and if the victim suffered serious 

physical harm as a result of the commission of the offense, assault is a felony 

of the fourth degree[.]” Id. at (C)(4). 

{¶ 19} R.C. 2901.01(A)(5) defines serious physical harm in relevant part 

as: “(c) Any physical harm that involves some permanent incapacity, 

whether partial or total, or that involves some temporary, substantial 

incapacity [or] * * * (e) Any physical harm that involves acute pain of such 

duration as to result in substantial suffering or that involves any degree of 

prolonged or intractable pain.” 

{¶ 20} Littlejohn argues that there was insufficient evidence of “serious 

physical harm” because neither Tohati nor Hourihan required stitches and 

both officers were treated and released at the hospital. As a result, he 

contends the “jury lost its way” when it found him guilty of two counts of 

assault. We disagree. 
{¶ 21} This court has held that “[w]here injuries to the victim are 

serious enough to cause him or her to seek medical treatment, a jury may 

reasonably infer that the force exerted on the victim caused serious physical 

harm as defined by R.C. 2901.01(A)(5).” State v. Wilson (Sept. 21, 2000), 

Cuyahoga App. No. 77115, citing State v. Walker (June 18, 1987), Cuyahoga 

App. No. 52391; State v. Grider (Dec. 20, 1995), Cuyahoga App. No. 68594; 

State v. Huckabee (Oct. 26, 1995), Cuyahoga App. No. 67588; State v. Rushing

(Sept. 30, 1993), Cuyahoga App. No. 62688; and State v. Williams (Nov. 10, 

1983), Cuyahoga App. No. 46599. See, also, State v. Davis, Cuyahoga App. 

No. 81170, 2002-Ohio-7068, ¶20. 

{¶ 22} Here, Tohati and Hourihan were transported by ambulance to the 

hospital, where they were treated for their injuries. Therefore, the jury 

could reasonably infer that the force exerted on the officers caused serious 

physical harm. Wilson. Moreover, even without inferring that Tohati and 

Hourihan suffered serious physical harm from the fact that they sought 

medical treatment, their testimony was sufficient to convince a rational trier 

of fact that they suffered serious physical harm as defined in R.C. 

2901.01(A)(5)(c) and (e). 

{¶ 23} Tohati testified that he was disoriented and experienced blurred 

vision in his right eye. He sustained a bruise to his temple that persisted for 

three to four weeks. Tohati was off from work for approximately one month 
because of his injuries. Tohati further testified that he still suffers from 

headaches. Hourihan testified that he sustained a bruised left hand and a 

laceration to the scalp. At the hospital, he received a tetanus shot and 

x-rays. He missed two weeks of work and then was put on light duty for 

three weeks because his knuckles and wrist were bruised and he could not 

fully flex his hand. Hourihan further testified that his hand is still a 

problem and he has been in physical therapy since the injury. This evidence 

demonstrates “some temporary, substantial incapacity” to satisfy the serious 

physical harm element. 

{¶ 24} Based on this evidence, we find sufficient evidence in the record 

that Littlejohn recklessly caused serious physical harm to Tohati and 

Hourihan. We further find that this is not the extraordinary case where the 

“jury lost its way” and created a manifest miscarriage of justice. 

{¶ 25} Accordingly, the second and third assignments of error are 

overruled. 

Judgment is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. 

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

Rule 27 of the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE 

COLLEEN CONWAY COONEY, J., and 

KATHLEEN A. KEOUGH, J., CONCUR