State v. Antill
| Decision Date | 30 May 2013 |
| Docket Number | CASE NO. 12 BE 3 |
| Citation | 2013 Ohio 2265 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOSEPH M. ANTILL, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
{¶1} Defendant-appellant, Joseph Antill, appeals from a Belmont County Common Pleas Court judgment convicting him of assault of a peace officer and aggravated robbery following a jury trial.
{¶2} On October 15, 2009, appellant went to a bar located in the Riverside Restaurant where Phyllis Holt was bartending. According to Holt, she was tending bar that evening when appellant began yelling at another patron in the bar. When appellant did not listen to her instruction to lower his voice, Holt asked him to leave, which he did. However, appellant was in and out of the bar after that. Holt called 911 but was told there was no officer on duty at the time.
{¶3} Eventually Powhatan Police Officer Keven Yates arrived at Riverside. He found appellant outside and spoke with him. Officer Yates also spoke with those inside the bar. Office Yates suggested to appellant that he go home and "sleep it off." Appellant, who lived nearby, went home.
{¶4} A few hours later, appellant called Riverside. According to Patricia Geilinger, the employee who answered the phone, appellant stated it was not right that he was barred from the bar and stated "You tell them in the back I'll get them." Geilinger interpreted appellant's statement as a threat. She hung up and called the Powhatan Police Department to report the threatening call.
{¶5} Sometime after midnight, Officer Yates, who was now accompanied by Shadyside Police Officer Joshua Haught, responded to the call by going to appellant's house. Appellant's father answered the door and let the officers inside. According to the officers, Officer Yates told appellant to stop calling Riverside and threatening them. Appellant became upset and began cursing at the officers. Twice more Officer Yates asked appellant to stop calling Riverside and appellant, who appeared to be intoxicated, continued to yell at the officers. According to the officers, appellant then got off of the couch he had been sitting on and went toward Officer Yates aggressively and enraged. Appellant shouted at Officer Yates and pushed him. Officer Haught then stepped in to help Officer Yates.
{¶6} The two officers struggled back and forth with appellant trying tohandcuff him. Apparently, appellant is a much larger man than the officers. When they were not able to gain control of appellant, Officer Yates used his Taser to try to subdue appellant. Officer Yates stated that he "tased" appellant twice but this only further enraged appellant.
{¶7} According to the officers, they managed to get appellant on his knees with his upper body on the couch. But the lower half of Officer Haught's body was under appellant's chest and Officer Yates was on top of appellant's back. While they were in this position, Officer Yates saw appellant grab for Officer Haught's loaded gun. Officer Yates yelled to Officer Haught, The officers then managed to subdue appellant and place him in handcuffs.
{¶8} A Belmont County Grand Jury indicted appellant on one count of assault on a peace officer, a fourth-degree felony in violation of R.C. 2903.13(A)(C)(3). Several months later it also indicted him on one count of aggravated robbery, a first-degree felony in violation of R.C. 2911.01(B), for trying to take Officer's Haught's gun.
{¶9} The matter proceeded to a jury trial where the jury found appellant guilty of both charges. The trial court subsequently sentenced appellant to one year in prison on the assault count and three years in prison on the aggravated robbery count, to be served consecutively for a total of four years.
{¶10} On appellant's motion, this court granted him leave to file a delayed appeal. He filed his notice of appeal on January 17, 2012.
{¶11} Appellant raises six assignments of error, the first of which states:
MR. ANTILL'S CONVICTION FOR AGGRAVATED ROBBERY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶12} Appellant argues that his aggravated robbery conviction was against the manifest weight of the evidence. In support, appellant points to Officer Haught's testimony that he never felt or thought appellant was pulling on his gun and to his own testimony that he never reached for Officer Haught's gun.
{¶13} In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jury 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, 78 Ohio St.3d 380, 387, 678 N.E.2d 668 (1997). "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" Id. (Emphasis sic.) In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. at 390.
{¶14} Yet granting a new trial is only appropriate in extraordinary cases where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts who sits in the best position to judge the weight of the evidence and the witnesses' credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, "[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe." State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶15} Appellant only takes issue with his aggravated robbery conviction here. He does not assert that his assault conviction was against the weight of the evidence.
{¶16} The jury convicted appellant of aggravated robbery in violation of R.C. 2911.01(B), which provides:
{¶17} We must examine the evidence offered at trial in order to determine if it supports the jury's verdict. The testimony as to the aggravated robbery count was as follows.
{¶18} Officer Yates testified that at appellant's house after he told appellant to stop calling and threatening Riverside, appellant became enraged, came toward him, and shoved him. (Tr. 207-210). Because of the shove, Officer Yates attempted to place appellant under arrest for assaulting a police officer. (Tr. 211). Appellant resisted and pushed the officers away. (Tr. 212). After a struggle that involved tasing appellant to no avail, the officers managed to get appellant into a position where his knees were on the floor and his upper body was on the couch. (Tr. 220). In this position, the lower half of Officer Haught's body was under appellant's chest. (Tr. 220). Officer Yates was on top of appellant's back. (Tr. 221). As Officer Yates was directing appellant's father to get back, he saw appellant grab for Officer Haught's gun. (Tr. 222). Officer Yates testified that appellant's left hand was on Officer Haught's loaded gun and appellant was "yanking" on the butt of the gun. (Tr. 223). Officer Yates yelled to Officer Haught, (Tr. 223). Officer Yates put appellant in a choke hold. (Tr. 224). The officers were then able to subdue appellant. (Tr. 224-225). Officer Yates also testified that he and Officer Haught were both dressed in uniform and acting as police officers during this encounter. (Tr. 317).
{¶19} Officer Haught testified that after struggling with appellant, appellantthrew him off balance and he landed on the couch. (Tr. 342). Appellant ended up on Officer Haught's midsection and Officer Yates was on top of appellant. (Tr. 342). Officer Haught stated that his loaded service weapon was on the right side of his belt. (Tr. 342-343). Officer Haught stated that he grabbed appellant's right arm "at which point there was a slight tugging" and he heard Officer Yates yell that appellant was going for his gun. (Tr. 343). Officer Haught testified that until Officer Yates yelled out to him, he did not know there was a problem with his gun. (Tr. 343-344). Officer Haught let go of appellant's right arm, re-secured his gun in his holster, and re-secured the thumb brake. (Tr. 344). On cross-examination, Officer Haught stated that he did not know appellant's hand was on his gun at the time. (Tr. 378).
{¶20} Lawrence Antill, appellant's father...
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