State v. Bernhart

Ohio Court of Appeals

State v. Bernhart

2011 Ohio 2139

Ohio Court of Appeals·Decided May 4, 2011·No. 10CA64·Published

Opinion

[Cite as State v. Bernhart, 2011-Ohio-2139.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 10CA64 RONALD BERNHART

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 09CR233

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 4, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. RYAN M. HOOVLER PROSECUTING ATTORNEY 13 Park Avenue West, Suite #300 RICHLAND COUNTY, OHIO Mansfield, Ohio 44902

BY: KIRSTEN L. PSCHOLKA-GARTNER Assistant Richland County Prosecutor 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 10CA64 2

Hoffman, P.J.

{¶1} Defendant-appellant Ronald Bernhart appeals his conviction on two

counts of assault on a peace officer in violation of R.C. 2901.13. Plaintiff-appellee is the

State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On December 11, 2008, Appellant sought medical attention for a bloody

nose at the Richland Correctional Institution infirmary while incarcerated as an inmate.

After the nosebleed subsided, corrections officers entered Appellant’s cell telling him to

“cuff up” to be escorted to segregation. Appellant refused to stand up or to respond to

the officers. The officers then attempted to lift Appellant using his elbows. Appellant

was uncooperative, and purposely made himself deadweight.

{¶3} Officer Vaughn Coburn left the cell to notify a supervisor regarding the

situation. At the same time, Officer Burton Hairston attempted to guide Appellant into a

standing position with his hand on the Appellant’s elbow. Appellant pulled away

violently. Officer Hairston then sprayed Appellant with pepper spray. Appellant rushed

Officer Hairston, punching him several times in the chest with a closed fist.

{¶4} Officer Coburn witnessed the altercation, and attempted to assist Officer

Hairston. During the ensuing struggle, Officer Coburn tripped over the bed in the cell

and wound up with his legs across Appellant’s chest area. Appellant continued to resist

by punching Officer Coburn in the leg and kicking his legs.

{¶5} As a result of the incident, Appellant was indicted on two counts of

assaulting a peace officer, in violation of R.C. 2903.13. A jury trial commenced on

December 3, 2009. The jury returned a finding of guilty on both counts. The trial court Richland County, Case No. 10CA64 3

sentenced Appellant to ten months on each count, to run consecutive to each other and

consecutive to the prison sentence he was serving.

{¶6} Appellant now appeals, assigning as error:

{¶7} “I. THE JURY VERDICT IN COUNT I AND II, ASSAULT, WAS AGAINST

THE SUFFICIENCY OF THE EVIDENCE.

{¶8} “II. THE JURY VERDICT IN COUNT I AND II, ASSAULT, WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.”

I & II.

{¶9} Appellant’s assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

{¶10} Appellant maintains his convictions on two counts of assault on a peace

officer, in violation of R.C. 2903.13, are against the manifest weight and sufficiency of

the evidence.

{¶11} R.C. 2903.13(A):

{¶12} “(A) No person shall knowingly cause or attempt to cause physical harm to

another or to another's unborn.”

{¶13} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, ‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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 Richland County, Case No. 10CA64 4

N.E.2d 541, 1997–Ohio–52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

{¶14} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

{¶15} At trial, Officer Coburn testified:

{¶16} “A. I continued to just basically try to talk to him, ask him what is going on,

tell him what is going to be required of him, that he would have to go to segregation. I

would tell him, you know, I can only ask you or tell you so many times, listen to me, but

he was nonresponsive, meaning, as I recall, he would just sit there and basically just

stared at us.

{¶17} “Q. Did Officer Hairston make any attempts - -

{¶18} “A. He did. He made a suggestion that perhaps we might try to help him

stand and see if we could maybe - -

{¶19} “Q. Encourage him - -

{¶20} “A. - - you know, come on, there is no problem type of thing. We very

carefully and without any force really at all on either side of Mr. Bernhart, we got under

his elbows and arms and we just tried to see if he would stand off the bed for us. There

was no cooperation at all. He kind of just - - to me I would explain it like he was like

dead weight, just purposely, and, again, just staring at us.

{¶21} “Q. Again, at this point is he saying anything to you? Richland County, Case No. 10CA64 5

{¶22} “A. No, no.

{¶23} “Q. Now, what did you do at this point once you sat him back down?

{¶24} “A. At this point I walked out of the cell with the intention of telling

supervision or notifying somebody what is going on over there with Mr. Bernhart at that

time.

{¶25} “Q. Did you make it out of the cell?

{¶26} “A. Yes, I did. actually I made it over to my desk area where my phone is,

and I really don’t remember if it was a noise or I just happened to look back that way or

whatever, but when I did the next thing that I see is Mr. Bernhart being combative with

the yard officer, Mr. Hairston in this case.

{¶27} “Q. When you say combative, describe for us what that means?

{¶28} “A. Well, basically I saw Mr. Hairston trying to use his pepper spray, and I

saw Inmate Bernhart standing up, kind of into his chest area at this point.

{¶29} “Q. Into whose chest area?

{¶30} “A. Yes.

{¶31} “Q. No, into whose chest area?

{¶32} “A. Mr. Hairston’s.

{¶33} “Q. Would you describe that as a threatening-type posture?

{¶34} “A. Yes.

{¶35} “***

{¶36} “Q. Do they remain upright?

{¶37} “A. No. As I went into the cell Officer Hairston was trying to take - - he

was trying to take the inmate to the floor in a way that we are trained to do at this point. Richland County, Case No. 10CA64 6

In the process of doing that, and me trying to assist, I actually about half tripped around

the corner of this bed trying to get to the inmate. I wound up on the floor in a sitting

position across the inmate’s chest actually is how I wound up at that point. And, yes, he

was striking at that point.

{¶38} “Q.

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