STATE OF OHIO, Plaintiff-Appellee, v. BENJAMIN WEISS, Defendant-Appellant.
Case No: 09CA30
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
9-20-10
2010-Ohio-4509
Kline, J.
DECISION AND JUDGMENT ENTRY
T.E. Eslocker, Athens, Ohio, for Appellant.
Patrick Lang, Athens City Law Director, and Lisa Eliason, Athens City Prosecutor, Ohio, for Appellee.
Kline, J.:
{¶1} Benjamin Weiss appeals his misdemeanor assault conviction in the Athens County Municipal Court. On appeal, he contends both that the State introduced insufficient evidence to sustain his conviction and that his conviction is against the manifest weight of the evidence. However, we find that the State produced two witnesses who testified that they saw Weiss throw water balloons. And this testimony both demonstrates that Weiss’s conviction is supported by sufficient evidence and that his conviction is not against the manifest weight of the evidence. Weiss also contends that the conduct complained of, throwing water balloons, cannot establish a conviction for criminal assault. However, we find that the relevant assault statute may prohibit even this conduct. We, therefore, affirm the judgment of the trial court.
{¶2} The facts of this case concern a party held in Athens on May 30, 2009. The party extended throughout Mill Street, and it was therefore called Millfest. The events relevant for this case took place at a particular apartment building located at 140 Mill Street.
{¶3} This building was several floors in height, and each apartment unit had a balcony. During Millfest, revelers on the balconies of this building threw water balloons. According to the police witnesses, the revelers threw balloons at each other as well as at passersby, including passersby in automobiles and on bicycles.
{¶4} Officers of the Athens Police Department arrested Weiss for throwing water balloons during this party. On June 1, 2009, Lieutenant John Withers of the Athens Police Department filed a complaint that alleged Weiss had violated the city ordinance that prohibited assault. The case was tried to the court on July 21, 2009.
{¶5} At trial, Withers and Lieutenant Richard Russell, an officer with the Ohio University Police Department, both testified for the State. Both Withers and Russell testified that they saw Weiss throwing water balloons, and they also testified that there were only two individuals arrested that evening for throwing water balloons. Both arrestees were wearing bright orange shirts. Notwithstanding the large number of individuals throwing water balloons, these were the only two individuals arrested.
{¶6} Ohio University Police Department Chief Andrew Powers testified that he saw an individual wearing an orange shirt throw a water balloon that hit a woman on the street below. Powers was unable to identify Weiss as the thrower of this water balloon. And both Withers and Russell had testified that they did not see Weiss actually hit
{¶7} After the State rested, Weiss called four witnesses: Janna Schleich, Adam Caven, Scott Dombos, and Joseph Stark. These witnesses generally testified that they did not see Weiss throw any water balloons, and they believed that, had Weiss thrown water balloons, they would have seen it. Each of them admitted on cross-examination that it was possible Weiss could have thrown water balloons without them seeing it. Several of these witnesses noted that Weiss had a cast on his foot at the time of the incident, either for a broken ankle or a broken foot.
{¶8} Weiss took the stand and testified that he did not throw water balloons during Millfest. The trial court nonetheless found the defendant guilty and sentenced him to pay a fine of $100 in costs and to serve 10 days in the Southeastern Ohio Regional Jail, suspended upon the condition that Weiss not break the law for a one year period. Weiss appeals from this sentence and assigns the following errors for our review: I. “THE TRIAL COURT ERRED WHEN IT DETERMINED APPELLANT WAS GUILTY OF ASSAULT BECAUSE THE PROSECUTION’S EVIDENCE WAS INSUFFICIENT TO ESTABLISH APPELLANT’S GUILT BEYOND A REASONABLE DOUBT.” II. “THE TRIAL COURT ERRED WHEN IT DETERMINED APPELLANT WAS GUILTY OF ASSAULT BECAUSE THE PROSECUTION FAILED TO PROVE ALL ELEMENTS OF ASSAULT BEYOND A REASONABLE DOUBT.”
II.
{¶9} Weiss first contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt. When reviewing a case to determine whether the record
{¶10} This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶11} The trial court convicted Weiss of violating
{¶12} Here, after viewing the evidence in a light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of the crime of assault proven beyond a reasonable doubt. Both Withers and Russell testified that they personally observed Weiss throwing water balloons. Trial Transcript at 11-12, 27. When we review a conviction to determine whether the evidence is sufficient, we do not weigh the evidence or reconsider the credibility of the witnesses. Thomas at 79-80. As such, the definite testimony of two witnesses that they observed Weiss throwing water balloons is sufficient for any reasonable trier of fact to conclude that Weiss was in fact throwing water balloons. In addition, Russell testified that every water balloon Weiss threw was directed at a person.
{¶13} We do not agree with Weiss that the testimony of the officers in the present case is hopelessly inconsistent, and even if we did find the officer’s testimony inconsistent on some issues, nonetheless the trier of fact is free to “believe all, part, or none of the testimony presented by any * * * witnesses.” State v. Sebastian, Highland App. No. 08CA19, 2009-Ohio-3117, at ¶43, citing State v. Parish, Washington App. Nos. 05CA14 & 05CA15, 2005-Ohio-7109, at ¶15 (other citations omitted).
{¶14} Accordingly, we overrule Weiss’s insufficient evidence argument.
III.
{¶15} In his brief, Weiss also mentions a manifest weight of the evidence argument. Weiss’s Brief at 4. Weiss failed to include this argument in his assignment of error, and
{¶16} When determining whether a criminal conviction is against the manifest weight of the evidence, we “will not reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of the syllabus. See, also, State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the 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 granted.” Smith at ¶41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-71; State v. Martin (1983), 20 Ohio App.3d 172, 175. “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Martin at 175 (citations omitted).
{¶17} “Even in our role as thirteenth juror we are constrained by the rule that the weight to be given evidence and the credibility to be afforded testimony are normally issues to be determined by the trier of fact. * * * The fact finder ‘is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ * * * Thus, we will only interfere if the fact finder clearly lost its way and created a manifest miscarriage of
{¶18} Here we cannot say that the lower court clearly lost its way in crediting the direct testimony of two law enforcement officers who testified that they saw Weiss throw water balloons and with Russell adding that every water balloon Weiss threw was directed at a person. Weiss offered some reasons to prefer his account over the officers’ accounts, but this falls short of demonstrating this is an exceptional case in which the evidence weighs heavily against conviction. We therefore find that the State introduced substantial evidence to support the conclusion that Weiss threw water balloons directed at a person and reject any manifest weight of the evidence argument.
{¶19} Accordingly, we overrule Weiss’s first assignment of error.
IV.
{¶20} For his second assignment of error, Weiss contends that throwing water balloons is insufficient to sustain a conviction for assault under
{¶21} Weiss raises an issue that involves the interpretation of “physical harm” as it relates to
{¶22} The crux of the matter is the requirement of physical harm. Weiss contends that throwing water balloons could not reasonably result in physical harm.
{¶23}
{¶24}
{¶25} “A battery is more than an attempt to do a corporal hurt to another; but any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery in the eye of the law. For the law cannot draw the line between different degrees of violence, and, therefore, totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it in any the slightest manner.” 1 Russell, A Treatise of Crimes and Misdemeanors (1857 8 Ed.) 751 (emphasis in original, footnotes omitted).
{¶27} Ohio courts have generally followed this rule, and the cases broadly construe physical harm. See State v. Conliff (1978), 61 Ohio App.2d 185, 196 (Whiteside, J., Concurring) (“[T]he temporary discomfort necessarily inherent as the result of being struck on the head and shoulder by a pie is sufficient to constitute the physical harm element of
{¶28} Therefore, we find that a person struck with a water balloon may satisfy the physical harm requirement of
V.
{¶30} Having overruled both of Weiss’s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
{¶31} I respectfully dissent. The relevant portions of Athens City Code and the Ohio Revised Code in defining an assault or attempted assault requires the actor to ”knowingly cause or attempt to cause physical harm to another.” See
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the 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 Athens County Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J.: Concurs in Judgment and Opinion.
McFarland, P.J.: Dissents with Dissenting Opinion.
For the Court
BY: __________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.