State v. Calvin L. Wilson
| Decision Date | 18 November 1998 |
| Docket Number | 98-LW-5108,18788 |
| Parties | STATE OF OHIO, Appellee v. CALVIN L. WILSON, Appellant C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE NO. CR 97 07 1434
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant Calvin Wilson appeals from his conviction in the Summit County Court of Common Pleas. We affirm.
On July 7, 1997, at approximately 9:45 a.m., Wilson was picked up by a taxi cab near his residence on Broad Street in Akron Ohio. Wilson directed the cab driver to drive to a check-cashing business on South Arlington Street in Akron. When the cab arrived, Wilson directed the driver to turn off the cab's meter. The driver refused and told Wilson that he would have to pay "waiting time" while he was cashing a check. Wilson said, "I'm not going to pay." The driver responded, "You got to pay it." Wilson then entered the check-cashing business while the driver waited.
When Wilson exited the check-cashing business, the fare was approximately ten dollars. Wilson approached the cab, gave the driver $6.35, and said, The driver exited his vehicle and attempted to convince Wilson to pay the waiting time. When Wilson refused, the driver called the dispatch office and requested that the police be summoned.
Approximately ten minutes later, Officer James Palmer of the Akron Police Department arrived in his police cruiser. The cab driver approached Officer Palmer, told him of the situation, and pointed to Wilson, who was waiting at a bus stop. Officer Palmer approached Wilson and asked him about the cab fare. Wilson indicated that he would not pay the waiting time. Officer Palmer and Wilson debated the matter for a few minutes without resolution. The cab driver then said that he would sign charges to have Wilson arrested. Wilson emphatically stated that Officer Palmer would not arrest him and started to walk away.
Officer Palmer continued to follow him. Wilson turned around and shoved Officer Palmer in the chest. Officer Palmer then said, "Now you are under arrest," and grabbed Wilson's wrist. Wilson swung at Officer Palmer with his free hand and struck a glancing blow. A scuffle ensued as Officer Palmer attempted to handcuff Wilson. The cab driver then entered the fray, knocking both combatants to the ground. As he continued to struggle with Wilson, Officer Palmer asked a bystander to hand him his can of mace, which had rolled away from him in the tussle. The bystander complied, and Officer Palmer sprayed Wilson with mace, subduing him.
Wilson was indicted on two counts of assault (one on the cab driver, one on Officer Palmer), one count of petty theft, and one count of resisting arrest. The case was tried to a jury on September 15, 1997. Officer Palmer and the cab driver were the only witnesses. The jury returned a verdict of guilty on the petty theft and resisting arrest counts and on the count of assault against Officer Palmer, and a not guilty verdict on the other count of assault. The trial court sentenced Wilson to eighteen months of community control. Wilson now appeals to this court.
Wilson asserts four assignments of error. We address each in turn.
The judgment rendered by the trial court was against the manifest weight and sufficiency of the evidence.
Wilson's first assignment of error addresses two issues. First, he argues that the trial court improperly denied his motion for acquittal under Crim.R. 29 on the charges of petty theft, assault, and resisting arrest. Second, he argues that the jury's verdict is against the manifest weight of the evidence. We will address each contention separately.
Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal *** if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216. In making this determination, all evidence must be construed in a light most favorable to the prosecution. Id.
R.C. 2903.13(A) provides: "No person shall knowingly cause or attempt to cause physical harm to another[.]" In addition, R.C. 2903.13(C)(3) states that if the victim of the assault is a peace officer who is assaulted during the performance of his official duties, the offense is a fourth degree felony. Construing the evidence in a light most favorable to the prosecution, Wilson knowingly attempted to cause physical harm to Officer Palmer by shoving him in the chest. The evidence also showed that Officer Palmer was a peace officer, as defined in the Revised Code, who was performing his official duties as a peace officer when he was assaulted by Wilson. Reasonable minds could conclude that the evidence showed beyond a reasonable doubt that Wilson committed an assault on Officer Palmer and that the offense was properly a fourth degree felony.
R.C. 2921.33(A) states: "No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another." "[F]or the arrest to be a 'lawful arrest' *** there must be probable cause by the evidence of reasonable grounds for the arrest." State v. Maynard (1996), 110 Ohio App.3d 6, 10. We conclude that the evidence showed that Wilson resisted the lawful arrest of himself by force. Officer Palmer sought to arrest Wilson for the crime of assault. Wilson initially took a swing at Officer Palmer and then physically grappled with Officer Palmer to prevent his arrest. Furthermore, the arrest was lawful; we find it axiomatic that a police officer has probable cause to arrest for a crime committed against himself. A reasonable trier of fact could find that all of the elements of the resisting arrest charge were met.
Theft by deception is defined in R.C. 2913.02(A)(3): "No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services *** by deception[.]" "Deception" is defined as
knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.
R.C. 2913.01(A). Construing the evidence in favor of the prosecution, a reasonable jury could conclude that Wilson gained control over the cab driver's services by deceiving the driver as to his intent to pay for the waiting time. A reasonable jury could also conclude that Wilson acted with the requisite intent.
In sum, viewing the evidence in a light most favorable to the prosecution, we conclude that reasonable minds could differ as to whether each of the essential elements of the three offenses was proven beyond a reasonable doubt. Therefore, the trial court properly overruled Wilson's motion for acquittal.
Wilson also contends that the verdict is against the manifest weight of the evidence.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court 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.
State v. Otten (1986), 33 Ohio App.3d 339, 340. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
We find that the jury's verdicts are not against the manifest weight of the evidence. The only witnesses at trial were the cab driver and Officer Palmer. Their testimony clearly supported a finding of guilty on all three charges. We cannot say that the jury lost its way in finding Wilson guilty.
Wilson's first assignment of error is overruled.
The trial court erred and abused its discretion by failing to properly consider and grant Defendant-Appellant's [sic] Motion to remove his mask during the trial thereby prejudicing the substantial rights of Appellant.
In his second assignment of error, Wilson argues that he should not have been forced to wear a protective mask during his trial. Apparently, while incarcerated in the county jail, Wilson refused to take a routine test for tuberculosis. As a result, he was forced to wear a mask at trial. Wilson moved to have the mask removed at trial, arguing that his appearance would be prejudicial. The trial court denied the motion. Wilson now contends that the trial court erred in its decision.
This case presents an issue of first impression in the state of Ohio. Wilson argues that requiring him to wear the mask violated his right to a fair trial under the Sixth Amendment. Wilson argues that such action is akin to restraining him in shackles or forcing him to wear identifiable prison clothing. See Estelle v. Williams (1976), 425 U.S. 501, 48 L.Ed.2d 126 (); Illinois v. Allen (1970), 397 U.S. 337, 25 L.Ed.2d 353 (...
To continue reading
Request your trial