2007 Ohio 6262 | Ohio Ct. App. | 2007
{¶ 2} In the late afternoon hours of August 27, 2004, in response to a 9-1-1 call, Officers Dine and Mollohan of the Dayton Police Department went to Durham's residence at 4521 Apple Tree Court. The information that the officers had was that Durham intended to commit suicide by hanging himself in his back bedroom. When they arrived, Durham answered the door and it was apparent that he was in a highly agitated state. Durham conceded that he intended to commit suicide, and the officers asked if they could take him to get some help.
{¶ 3} At that time, Officer Smith, a crisis intervention officer of the police department arrived. While Dine and Mollohan were briefing Smith, Durham's mother called the residence. Durham answered the phone and gave it to Officer Dine. Durham's mother indicated that she was a retired officer of the Dayton Police Department; that she had made the 9-1-1 call, and she asked the officers to give her son the phone number to the suicide prevention line. Dine told Durham's mother that they intended to do better than that; that they would take him to a medical facility for treatment. The conversation ended when Durham's level of agitation escalated.
{¶ 4} At this point, Durham re-entered his residence, and the officers followed him in. Durham continued to insist that he wanted to commit suicide and that he did not want any medical help. He then told the officers he wanted them to leave and he became aggressive toward the officers. Durham threatened the officers physically if they attempted to put their hands on him. After he again demanded that they leave his residence, Officer Smith decided to secure Durham and *3 remove him to a medical facility.
{¶ 5} When Officers Smith and Dine attempted to restrain Durham, Durham became violent both verbally and physically toward the officers. Officer Mollohan tased Durham, but the taser had no effect on him. During the ensuing altercation, Officer Smith hit the panic button on his radio to send a signal out that an officer needs emergency assistance.
{¶ 6} In response to Smith's radio signal, two additional officers, Bucci and Bell, showed up at the scene. The altercation continued to escalate and Durham got Officer Bucci in a chokehold that the other officers could not get him to release. Officer Mollohan finally stunned Durham who then released Bucci. He was then handcuffed and escorted from his home. At about that time, Durham's mother and another police officer, Letlow arrived at the scene, and when the officers would not release Durham to talk to his mother, he kicked Officer Letlow in the groin. Durham was then placed in the EMS vehicle and transported to the hospital.
{¶ 7} Durham was subsequently indicted for two counts of assault of a police officer, in violation of R.C.
{¶ 9} Durham asserts in his first assignment of error that the trial court erred in not entering a judgment of acquittal at the close of the state's evidence on the basis that he claims his fourth *4 amendment rights were violated by the officer's uninvited and warrantless entry into his home.
{¶ 10} Durham argues that because the police officers unlawfully entered his home that they were unlawfully arresting him and that he therefore had the right to resist this unlawful arrest.
{¶ 11} Even if we assume that the officer's entry into Durham's home is unlawful, Durham's argument must still fail. While a person may lawfully refuse to consent to a warrantless entry, this right to refuse entry is limited. State v. Howard (1991),
{¶ 12} Additionally, unlike the situation where a defendant is charged with resisting arrest, a lawful arrest is not an element of assault on a peace officer, which prohibits one from knowingly causing or attempting to cause physical harm to a peace officer. R.C. §
{¶ 13} Therefore, the first assignment of error is overruled.
{¶ 15} In this assignment, Durham argues, without any supporting evidence, that the trial *5 court failed to carry out its statutory duties to consider these code sections and the PSI report.
{¶ 16} A trial court has broad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the trial court abused its discretion. State v. Lytle (July 31, 1998), Montgomery App. No. 97 CA 100, citing State v. Yontz (1986),
{¶ 17} In exercising its discretion, however, the trial court must consider the factors set forth in R.C.
{¶ 18} Moreover, the defendant bears the burden to show that the sentencing court failed to consider appropriate criteria. In State v.Cyrus (1992), 63 Ohio St.3d 164,166,
{¶ 19} "Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to *6 rebut the presumption that the trial court considered the sentencing criteria." In the instant case, we presume that the trial court considered the appropriate statutory factors. Durham has failed to provide this reviewing court with a transcript of the sentencing hearing, and therefore he has failed to demonstrate any error in this regard.
{¶ 20} Based on the foregoing, we find no indication of an abuse of discretion on the part of the trial court in imposing the consecutive sentences herein. Durham has failed to demonstrate that the trial court did not consider the appropriate sentencing factors.
{¶ 21} Durham's second assignment of error is overruled.
{¶ 23} Durham finally asserts, in his third assignment of error that his convictions were against the manifest weight of the evidence.
{¶ 24} When an appellate court analyzes a conviction under the manifest weight standard it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the fact finder 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. Thompkins,
{¶ 25} Durham was charged in each count of the indictment with committing assault on a *7
police officer, under R.C.
{¶ 26} Durham argues that the testimony of Officer Smith was incredible; that there was insufficient evidence of Durham's intent to harm any officer; that there was a difference between the testimony of Officers Smith and Bucci as to which arm Durham was using to choke Bucci with; and that Durham's mother testified that she did not see her son kick Officer Letlow.
{¶ 27} In reviewing the evidence as to count one, the assault on Officer Bucci, even ignoring the testimony of Officer Smith, it is apparent that every other person on the scene at the time in question, Officers Bucci, Bell, Dine, and Mollohan testified as to the assault perpetrated by Durham on Bucci. No other witnesses besides Durham were present during this assault.
{¶ 28} Likewise, in reviewing the evidence as to the second count, the assault on Officer Letlow, every officer on the scene testified as to the fact that Durham mile-kicked Letlow in the groin. Additionally, Officer Dine testified that in the paddy wagon, Durham admitted to kicking Letlow, claiming it was because Letlow was pulling on his handcuffs. While Durham's mother and aunt were present during this assault, neither testified unequivocally that it did not occur. Each testified that they did not see the assault. And, Durham's mother testified that she did see his face contort and that he moved backwards at the time of the alleged assault of Letlow.
{¶ 29} After having reviewed the entire record and having considered all of the *8 conflicting evidence, we cannot say that the jury clearly lost its way in finding that Durham knowingly assaulted both Officers Bucci and Letlow.
{¶ 30} Accordingly, Durham's third assignment of error is overruled.
{¶ 31} For the foregoing reasons, the judgment of the Montgomery County Common Pleas Court is hereby affirmed.
BROGAN, J. and GRADY, J., concur.
(Hon. Sumner E. Walters retired from the Third District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio). *1