STATE OF OHIO v. SHARON D. FIPS
No. 105825
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 14, 2018
[Cite as State v. Fips, 2018-Ohio-2296.]
BEFORE: E.A. Gallagher, A.J., Stewart, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611329-A
Mark A. Stanton
Cuyahoga County Public Defender
BY: Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Katherine Mullin
Gregory Ochocki
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Sharon Fips appeals her conviction for assault in the Cuyahoga County Court of Common Pleas. For the following reasons, we modify and remand.
I. Facts and Procedural History
{¶2} In 2016, Fips was charged with one count of assault with the furthermore clause that the victim was a peace officer. The case proceeded to a bench trial where the following facts were adduced.
{¶3} Fips and her son drove to an Ohio State Highway Patrol station in Brook Park, Ohio in the early morning hours of October 10, 2016. Trooper Patrick Reagan questioned Fips in the station’s lobby about driving to the station after he detected an odor of alcohol emanating from her breath. An altercation ensued in the lobby with Fips’ son when Reagan attempted to place Fips under arrest. Reagan pushed Fips against a wall and asked for the assistance of a fellow officer, Sergeant Christopher Brock, in handcuffing Fips.
{¶4} Reagan and Brock testified that Fips was resisting their efforts to restrain her. Reagan testified that he was standing partially to the side of, but behind, Fips with her shoulder in his chest when, “she lifted up her right knee and she reached back and hit me in the crotch with her right knee.” Brock testified that he did not see Fips’ knee come up but did see Reagan react to contact and heard Reagan say that Fips had “kneed” him. Reagan did not seek medical attention and was not restricted in his activities as a result of the incident. Fips admitted that she had been drinking alcohol and that she was speaking belligerently during her arrest but denied striking Reagan.
{¶5} The trial court found Fips guilty of assault on a peace officer and sentenced her to one year of community control sanctions.
{¶6} In her sole assignment of error, Fips argues that her conviction for assault was against the manifest weight of the evidence.
{¶7} A manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997); State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence.
{¶8} “When considering an appellant’s claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may disagree with the factfinder’s resolution of conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, 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. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful that the credibility of witnesses and the weight of the evidence are matters primarily for the trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional case in which the evidence weighs heavily against the conviction.” Thompkins at 387, quoting Martin, supra.
{¶10} The evidence in this case established that Fips was intoxicated and belligerent. She struggled when officers Reagan and Brock attempted to handcuff her and some part of her body came in contact Reagan. Reagan testified that Fips was facing the wall during the incident and he was to the side of and behind her with her shoulder in his chest. It is hard to accept that, from the point of view described, Reagan could have accurately discerned an intentional act on the part of Fips to strike him with her knee. In conjunction with the testimony of Sergeant Brock, who did not see Fips knee Reagan during the incident, one can infer that Reagan was inadvertently struck during Fips’ resistance to being handcuffed. We do not impugn the integrity of Trooper Reagan but merely find that the weight of the evidence does not support a conviction for assault based solely on his restricted view of the struggle.
{¶11} Although the weight of the evidence does not support a conviction for assault, the record does support a conviction for disorderly conduct in violation of
{¶12} When reversing on manifest weight grounds it has been established that this court has the authority to reduce a conviction to that of a lesser included offense when it is supported
{¶13} Therefore, Fips’ sole assignment of error is sustained in part, and her conviction is modified accordingly.
{¶14} The trial court’s judgment is modified to reduce the conviction for assault on a peace officer to a conviction for disorderly conduct in violation of
{¶15} The conviction is affirmed as modified and the case is remanded for resentencing.
It is ordered that the appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is order that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., CONCURS;
MELODY J. STEWART, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MELODY J. STEWART, J., DISSENTING:
{¶16} At trial, Fips testified that “I wasn’t, like, resisting. I wasn’t fighting them at all. I was talking.” And she firmly denied kneeing the officer — “I never kicked this officer at
{¶17} The majority reverses Fips’s conviction by offering a theory that Fips has never raised: it finds that the trooper could not have “accurately discerned” that Fips acted intentionally by kneeing him in the groin as she resisted his attempts to place her under arrest. The Ohio Supreme Court has admonished us from deciding an appeal on the basis of a new, unbriefed issue. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21. What is more, this conclusion requires the majority to find that Fips did not testify credibly in denying that she kicked or kneed the officer, but instead find that she did but lacked the intent to do so. If Fips denied ever kneeing the officer, she certainly gave no evidence regarding her intent that would weigh against the trooper’s testimony.
{¶18} The dispositive question on appeal is whether the trial court, not the state trooper, erred by finding that Fips acted intentionally. To reverse the trial judge’s conclusion, the majority must necessarily conclude that the court wrongly credited the testimony of the trooper over that of Fips. The trooper described Fips as intoxicated (one hour after her arrest she had a blood alcohol content of .173) and “extremely agitated.” When she began to interfere with her son’s arrest, the trooper tried to handcuff her. Fips physically resisted being handcuffed (she was described as “trying to get away”), forcing two troopers to restrain her. The trooper testified that he and another trooper were “securing her up against the wall” when Fips “lifted her right knee and she reached back and hit me in the crotch with her right knee.” After being struck, the trooper told the other trooper that “[s]he just kneed knee [sic] in the crotch.”
{¶20} In addition to wrongly finding that the trial judge lost his way by finding Fips guilty, I believe the majority commits a second error by modifying her conviction to disorderly conduct.
{¶21} The reversal of a conviction as being against the manifest weight of the evidence results in a new trial. C.K. v. State, 145 Ohio St.3d 322, 2015-Ohio-3421, 49 N.E.3d 1218, ¶ 14. As the majority acknowledges, the Ohio Supreme Court has stated that “[w]hen 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 conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The concept of the “thirteenth juror” is that the appellate court becomes an additional juror with the ability to use its vote to create a deadlock and cause a mistrial. Thompkins made this clear when it cited State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (8th Dist.1983), for the proposition that a reversal on the weight of the evidence means that the trier
{¶22} The majority relies on State v. Dove, 8th Dist. Cuyahoga No. 101809, 2015-Ohio-2761, as authority for finding a conviction against the manifest weight of the evidence and modifying it to that of a lesser included offense. Dove is part of a unique set of cases involving the narrow issue of whether the trial court erred by failing to give the
{¶23} Dove was not decided on a total lack of evidence, but on the “weight” of the evidence. In this sense, it is different from Banks. However, the absence of evidence in that case is apparent in the lack of equivocation about the evidence — the panel did not weigh the evidence in the sense that it considered competing testimony; rather, it concluded that the evidence showed that “[the victim] was free, unrestrained, and unharmed for the remainder of the night. She was able to sleep, remained safe throughout the rest of her stay, and was then driven home.” Id. at ¶ 45. Dove is not persuasive authority for the proposition that this court has the authority to reverse on the weight of the evidence and then modify a conviction. I therefore dissent.