State v. Sepulveda
2016 Ohio 7177
| Ohio Ct. App. | 2016Background
- On Jan 6, 2016 police arrested Fernando Sepulveda after two women said he performed oral sex on a sleeping woman; he was charged with Sexual Imposition, Resisting Arrest, Menacing, and Assault (for spitting at an officer).
- At bench trial officers wore body cameras; audio captured a "hawking"/spit noise but video was dark and did not show clear contact.
- Officers testified they heard the spitting sound; Bartlett (the officer allegedly spat at) said Sepulveda spat in his direction near his face but believes he was missed and felt no physical contact or injury.
- No evidence was presented that Sepulveda had any communicable disease, that the spit was tainted, or that any physical harm resulted; key portions of the transcript contained inaudible segments.
- The trial court convicted Sepulveda of all counts and imposed consecutive maximum misdemeanor terms; on appeal Sepulveda challenged only the Assault conviction as unsupported by sufficient evidence of physical harm or attempt to cause it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was sufficient to sustain Assault conviction for spitting at an officer under R.C. 2903.13(A) (knowingly cause or attempt to cause physical harm) | State: spitting at an officer near his face can be an attempt to cause physical harm; officers heard hawking/spit noise and reasonably feared exposure | Sepulveda: no evidence of actual or potential physical harm (no contact, no tainted spit, no testimony about disease or likely physiological impairment); insufficiency requires reversal | Court reversed Assault conviction for insufficient evidence: no proof spit caused or could cause physical harm and no testimony of intent or potential harm; discharged on assault count |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for reviewing sufficiency and manifest injustice principles)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (Jenkins/Jenks standard for sufficiency — evidence viewed in light most favorable to prosecution)
- State v. Leonard, 104 Ohio St.3d 54 (Ohio 2004) (application of sufficiency review and related standards)
- State v. Bailey, 83 Ohio App.3d 544 (Ohio Ct. App.) (reversal of assault convictions where spitting produced no injury and no evidence spit could cause physiological harm)
- Correa v. Simone, 528 Fed.Appx. 531 (6th Cir.) (observing that spitting alone generally does not constitute assault in Ohio without additional evidence of harm)