State v. Mack

Apr 1, 2021
109514
Versions:

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 1, 2021

Appearances:

Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.

Stephen L. Miles, for appellant.

LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant Saquona M. Mack (“Mack“) appeals her assault conviction that was rendered after a jury trial. For the reasons set forth below, we affirm.

Procedural and Factual History

{¶ 2} Mack was charged with a single count of felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1). The jury returned a verdict of not guilty of felonious assault as charged in the indictment, but found Mack guilty of the lesser-included offense of assault, in violation of R.C. 2903.13(B), a fifth-degree felony. The following facts adduced at trial gave rise to the conviction.

{¶ 3} The incident occurred in October 2018, at which time Mack was being booked into the Solon, Ohio jail. Mack had been stopped on a traffic violation in Bentleyville, Ohio and had an outstanding warrant. The Solon jail serves as a holding facility for individuals arrested in Bentleyville. Officer Joseph Marando (“Officer Marando“) of the Solon Police Department went to the location of the traffic stop to get Mack and transport her to the Solon jail. Officer Marando testified that it is standard procedure that, prior to taking a person into custody on a warrant, it is confirmed that the warrant is a valid warrant; it was confirmed that Mack did indeed have a valid warrant. Thus, the officer handcuffed Mack and placed her in the cruiser.

{¶ 4} On arrival at the Solon jail, Officer Marando had planned to walk Mack into the jail, but she refused to get out of the cruiser. She complained about her handcuffs and requested an ambulance. Officer Marando checked to make sure the handcuffs were gapped properly, which means that two fingers can fit between the cuff and the wrist. The officer found that there was an appropriate gap in the cuffs. Officer Marando described that, at that point, Mack was “aggressive“; she was trying to get her property, which the officer would not allow her to have.

{¶ 5} Colleen Simpson (“Simpson“), the victim in the case, is a Solon Corrections Officer and was working in the booking area of the jail at the time of the incident. As she was working with another inmate, she was informed that Mack would be arriving. Simpson testified that she walked out to the sally port and waited for the officers to bring in Mack. Simpson‘s role was to retrieve any property, such as a purse, and have the arrestee remove excess clothing in preparation for a pat-down search for safety.

{¶ 6} Simpson testified that Mack was “obviously irate“; she was “yelling and just screaming and carrying on” that the warrant was invalid and she was being improperly detained. Simpson suspected that Mack may have been intoxicated. Simpson asked Mack to place her personal belongings and jacket in a bin, but Mack refused.

{¶ 7} According to Simpson, there were four officers from Solon and two officers from Shaker Heights, Ohio in the booking area at this time, and at least one of the officers tried to step in and calm Mack, to no avail. One of the officers was wearing a body camera that captured Mack‘s encounter with the law enforcement officials. At one point, Mack kicked at one of the officers, but was not successful in making contact with him. The officers tried to get Mack to sit for a while so she could calm down. Simpson testified that, for her part, she remained calm in her demeanor so as not to escalate the situation.

{¶ 8} Simpson testified Mack eventually did take her jacket off, as she had been requesting her to do, but Mack threw it at Simpson. Mack also raised her blouse and “offer[ed] for everyone to see her breasts.” The staff believed that, because of her uncooperative behavior, Mack was a threat to her own safety as well as the safety of others, and decided that she needed to be placed in a restraint chair. Simpson described the method of restraint as a “double seat belt” and included arms and legs being strapped to the chair. The chair prevents the restrained individual from moving his or her limbs.

{¶ 9} Simpson described that four people are recommended in restraining an individual so that the inmate‘s limbs are controlled and no one is hurt, including the inmate. Here, two police officers restrained Mack‘s upper body and two other officers restrained her left leg, while Simpson was holding Mack‘s right leg. As Simpson was strapping in Mack‘s right foot, Mack kicked out her right leg and Simpson‘s right arm went up with it. Simpson‘s right hand is her dominant hand.

{¶ 10} Simpson testified that on the impact of Mack‘s kick, she heard a popping sound and felt pain in her right thumb, and she initially thought it was broken or dislocated. But she was able to wiggle it, and although it was painful, she thought that she may have just stubbed it.

{¶ 11} After the incident with Mack, Simpson went on to work with other inmates that included fingerprinting one of them. While trying to do the fingerprinting, Simpson realized that she was unable to because of the injury to her thumb; she had to have another officer do it. Simpson‘s thumb swelled and become more painful for the remainder of her shift that evening. When her shift ended, she filled out an incident report with the Solon Police Department.

{¶ 12} At home, the injury got progressively worse, so Simpson sought medical treatment. She was diagnosed with an injury to the ligament. Dr. John Krebs (“Krebs“), an orthopedic surgeon specializing in the hand, treated Simpson. Dr. Krebs described the injury as a tear to the “ulnar collateral ligament.” He explained that the function of the ulnar collateral ligament is to stabilize the thumb joint in order to pick up things, open things, or grasp things. Dr. Krebs testified that an MRI performed on Simpson showed a complete tear of the ligament. A complete tear requires surgery to heal.

{¶ 13} Dr. Krebs performed surgery to repair Simpson‘s ulnar collateral ligament in December 2018. He testified that the procedure required anchors that were drilled into the bone. The anchors will permanently remain in place. According to Dr. Krebs, the type of injury Simpson sustained is caused by hyperextending the thumb or by it being violently twisted. Although Dr. Krebs could not specify the exact amount of force necessary to tear the ligament, he did testify that it would require a “significant” amount of force to cause that injury.

{¶ 14} Simpson testified that, after the surgery, the pain was worse, and she needed help with bathing and doing her hair. Simpson testified that she was in a splint for approximately two months after her cast was removed. With the splint, she was able to return to light duty at work. She returned to her regular duties in July 2019. However, she testified that there are things she still cannot do without pain. At the time of trial, Simpson still had a “visibly raised” area at the end of her thumb closest to her palm.

{¶ 15} It was on this evidence that the jury found Mack guilty of assault in violation of R.C. 2903.13(B). The trial court sentenced her to 12 months of community control sanctions. Mack now appeals, raising the following two assignments of error for our review:

I. The Appellant‘s conviction was not supported by sufficient evidence.

II. The Appellant‘s conviction was against the manifest weight of the evidence.

Law and Analysis

{¶ 16} In her first assignment of error, Mack contends that her conviction was not supported by sufficient evidence. In her second assignment of error, she contends that the conviction was against the manifest weight of the evidence. Neither assignment of error has merit.

{¶ 17} Sufficiency and manifest weight are different legal concepts. However, manifest weight of the evidence may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency. State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2015-Ohio-1946, ¶ 11. Here, we find that Mack‘s conviction was supported by the manifest weight of the evidence and, therefore, that the evidence was sufficient.

{¶ 18} The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). When presented with a challenge to the manifest weight of the evidence, an appellate court may not merely substitute its view for that of the trier of fact, but 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. Id. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most “‘exceptional case in which the evidence weighs heavily against the conviction.‘” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 19} Mack was convicted of assault under R.C. 2903.13(B), which provides that “[n]o person shall recklessly cause serious physical harm to another or another‘s unborn.” R.C. 2903.13(C)(4)(a) makes assault a felony of the fifth degree when:

The offense occurs in or on the grounds of a local correctional facility, the victim of the offense is an employee of the local correctional facility or a probation department or is on the premises of the facility for business purposes or as a visitor, and the offense is committed by a person who is under custody in the facility subsequent to the person‘s arrest for any crime or delinquent act, subsequent to the person‘s being charged with or convicted of any crime, or subsequent to the person‘s being alleged to be or adjudicated a delinquent child.

{¶ 20} As mentioned, the offense requires that the offender act recklessly. Recklessness is defined in R.C. 2901.22(C), which provides that “[a] person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s conduct is likely to cause a certain result or is likely to be of a certain nature.” Mack contends that the state failed to proof that she acted recklessly. Rather, according to Mack, her leg slowly moved upward and accidentally touched Simpson‘s hand area. We disagree.

{¶ 21} Prior to injuring Simpson, Mack was “aggressive,” “obviously irate,” “yelling and just screaming and carrying on.” It was that very behavior that caused the officers to have to restrain her. When Mack‘s foot made contact with Simpson‘s hand, Simpson heard a popping sound and felt pain in her right thumb, and she initially thought it was broken or dislocated. Her pain continued during her shift, making her unable to use her hand to perform one of her duties, and eventually causing her to seek medical treatment. Simpson‘s surgeon, Dr. Krebs, determined that Simpson had a complete tear of the ligament and she needed surgery to heal. He described the surgery he performed on Simpson: he drilled anchors, which will remain permanently, into her bone. Further, Dr. Krebs testified that the type of injury Simpson sustained is caused by hyperextending the thumb or by it being violently twisted. Although Dr. Krebs could not specify the exact amount of force necessary to tear the ligament, he did testify that it would require a “significant” amount of force to cause that injury.

{¶ 22} The above-mentioned testimony does not support Mack‘s contention that her leg slowly moved toward Simpson‘s hand area and accidentally hit her. Rather, the evidence shows that Mack acted recklessly; that is, with “heedless indifference to the consequences,” disregarding a “substantial and unjustifiable risk” that her conduct was “likely to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).

{¶ 23} On this record, we find that the manifest weight of the evidence supports the conviction and, therefore, that there was sufficient evidence for the conviction. Mack‘s two assignments of error are overruled.

{¶ 24} Judgment affirmed.

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

It is ordered 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.

LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and

EILEEN A. GALLAGHER, J., CONCUR