[Cite as State v. Fisher, 2013-Ohio-1045.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12 CAA 07 0041 ARLIN FISHER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 12-CR-I-04-0134
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN DAVID H. BIRCH BRIAN J. WALTER 2 West Winter Assistant Prosecuting Attorney Delaware, Ohio 43015 Delaware County Prosecutor's Office 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 12 CAA 07 0041 2
Hoffman, J.
{¶1} Defendant-appellant Arlin Fisher appeals his conviction entered by the
Delaware County Court of Common Pleas, on one count of assault of a corrections
officer, following a jury trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was incarcerated in the Delaware County Jail at all times
relevant to this appeal. At approximately 1:00 a.m. on April 1, 2012, Corrections Officer
Robert Quinn received a telephone call from the booking station, advising him Appellant
was to be moved to another cell. At the time, Appellant was housed in an isolated cell
in the segregated area of the jail. The plan was to move Appellant to another cell in the
same area, but in which Appellant could be monitored via camera. C.O. Quinn
contacted Appellant using the facility intercom system and advised him he would be
moving shortly and to pack his belongings. Appellant responded over the intercom he
was not going to move.
{¶3} C.O. Quinn walked to Appellant's cell and spoke with him briefly.
Appellant, who was lying down on his cot, reiterated his intention not to move that
evening. C.O. Quinn contacted his supervisor, Officer in Charge Stacie Beck. OIC
Beck, First Shift Sargent Etta Jo Sivier, and C.O. Vanness Provitt joined C.O. Quinn at
Appellant's cell to assist. Sgt. Sivier contacted central control to open the door to
Appellant's cell. The officers spoke with Appellant and attempted to persuade him to
voluntarily move. Appellant refused to comply.
{¶4} The officers entered the cell and began to collect Appellant's personal
belongings. The officers continued to calmly speak with Appellant, advising him he Delaware County, Case No. 12 CAA 07 0041 3
needed to get up. Appellant repeated he was tired of moving and would not do so.
C.O. Quinn and C.O. Provitt walked toward Appellant. As they approached, Appellant
raised his arm from underneath the blanket and motioned to the officers he did not
intent to move to a different cell that evening. C.O. Quinn grabbed Appellant's wrist and
nudged him to get off of the bed. Appellant moved up from his reclined position and
attempted to bite C.O. Quinn. As the officers attempted to subdue Appellant, Appellant
continued to try to bite C.O. Quinn. Appellant also worked his fingernails into C.O.
Quinn's forearm, resulting in multiple scratches. Another corrections officer subdued
Appellant with a taser gun.
{¶5} At trial, C.O. Quinn testified Appellant made multiple attempts to bite him
prior to the other officer deploying the taser gun. Appellant refused to comply with the
officer's orders to stop the struggle. At one point, while both C.O. Quinn and C.O.
Provitt were on top of Appellant, OIC Beck was able to place handcuffs on one of
Appellant's wrist. A fifth officer arrived and was able to secure both of Appellant's
wrists. C.O. Provitt, Sgt. Sivier, and OIC Beck corroborated C.O. Quinn's testimony.
Sgt. Sivier added Appellant put up such a struggle, she was required to dry stun him
with the taser three times before he complied. Appellant did not require medical
attention as a result of the incident.
{¶6} On April 6, 2012, the Delaware County Grand Jury indicted Appellant on
one count of assault of a corrections officer, in violation of R.C. 2903.13(A), a felony of
the fifth degree. The matter proceeded to jury trial on June 14, 2012. After hearing all
the evidence and deliberations, the jury found Appellant guilty. The trial court
sentenced Appellant to ten months in prison. Delaware County, Case No. 12 CAA 07 0041 4
{¶7} It is from this conviction Appellant appeals, raising the following
assignments of error:
{¶8} “I. THE TRIAL COURT ERRED AND THEREBY DENIED THE
APPELLANT DUE PROCESS OF LAW BY OFFERING THE JURY WRONG AND OR
MISLEADING INSTRUCTIONS OF THE LAW.
{¶9} “II. THE CONVICTION FOR ASSUALT [SIC] WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I
{¶10} In his first assignment of error, Appellant asserts the trial court erred by
offering the jury wrong and/or misleading instructions of law which resulted in a violation
of his right to due process.
{¶11} Appellant refers to two instances in support of his position. The first
alleged error occurred during voir dire when the trial court instructed the jury the crime
of assault as charged required a conviction of a crime at the time of the incident. The
second alleged error occurred during Appellant's direct examination when the trial court
interrupted questioning to offer a partial instruction of the mens rea "knowingly" without
providing a proper definition of the term.
{¶12} Appellant concedes he failed to object on both occasions; therefore, has
waived all but plain error. State v. Policaro, 10th Dist. No. 06AP–913, 2007–Ohio–1469,
¶ 6. Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an
appellate court even though they were not brought to the attention of the trial court. To
constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2)
that is plain or obvious, and (3) that affected substantial rights, i.e., affected the Delaware County, Case No. 12 CAA 07 0041 5
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002–Ohio–68. Even if an
error satisfies these prongs, appellate courts are not required to correct the error.
Appellate courts retain discretion to correct plain errors. Id; State v. Litreal, 170 Ohio
App.3d 670, 2006–Ohio–5416, ¶ 12. Courts are to notice plain error under Crim.R.
52(B) “with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Barnes, supra (Citation omitted).
{¶13} We shall review each instance separately.
{¶14} During voir dire, the trial court informed the prospective jurors Appellant
was charged with the crime of assault. The trial court continued, "[s]pecifically, that he
knowingly caused or knowingly attempted to cause physical harm to Robert Quinn, and
that the offense occurred in or on the grounds of a local correctional facility, the victim of
the offense is an employee of the local correctional facility, and [Appellant] was
convicted of a crime at the time of the incident". Transcript of June 14, 2012 Jury Trial,
Vol. I at 10. Appellant contends the trial court’s statement was incorrect as R.C.
2903.13 “does not even speak to the prior status of the alleged offender.” Appellant’s
Brief at 8. Appellant concludes the trial court’s statement creates in the minds of the
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[Cite as State v. Fisher, 2013-Ohio-1045.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12 CAA 07 0041 ARLIN FISHER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 12-CR-I-04-0134
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN DAVID H. BIRCH BRIAN J. WALTER 2 West Winter Assistant Prosecuting Attorney Delaware, Ohio 43015 Delaware County Prosecutor's Office 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 12 CAA 07 0041 2
Hoffman, J.
{¶1} Defendant-appellant Arlin Fisher appeals his conviction entered by the
Delaware County Court of Common Pleas, on one count of assault of a corrections
officer, following a jury trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was incarcerated in the Delaware County Jail at all times
relevant to this appeal. At approximately 1:00 a.m. on April 1, 2012, Corrections Officer
Robert Quinn received a telephone call from the booking station, advising him Appellant
was to be moved to another cell. At the time, Appellant was housed in an isolated cell
in the segregated area of the jail. The plan was to move Appellant to another cell in the
same area, but in which Appellant could be monitored via camera. C.O. Quinn
contacted Appellant using the facility intercom system and advised him he would be
moving shortly and to pack his belongings. Appellant responded over the intercom he
was not going to move.
{¶3} C.O. Quinn walked to Appellant's cell and spoke with him briefly.
Appellant, who was lying down on his cot, reiterated his intention not to move that
evening. C.O. Quinn contacted his supervisor, Officer in Charge Stacie Beck. OIC
Beck, First Shift Sargent Etta Jo Sivier, and C.O. Vanness Provitt joined C.O. Quinn at
Appellant's cell to assist. Sgt. Sivier contacted central control to open the door to
Appellant's cell. The officers spoke with Appellant and attempted to persuade him to
voluntarily move. Appellant refused to comply.
{¶4} The officers entered the cell and began to collect Appellant's personal
belongings. The officers continued to calmly speak with Appellant, advising him he Delaware County, Case No. 12 CAA 07 0041 3
needed to get up. Appellant repeated he was tired of moving and would not do so.
C.O. Quinn and C.O. Provitt walked toward Appellant. As they approached, Appellant
raised his arm from underneath the blanket and motioned to the officers he did not
intent to move to a different cell that evening. C.O. Quinn grabbed Appellant's wrist and
nudged him to get off of the bed. Appellant moved up from his reclined position and
attempted to bite C.O. Quinn. As the officers attempted to subdue Appellant, Appellant
continued to try to bite C.O. Quinn. Appellant also worked his fingernails into C.O.
Quinn's forearm, resulting in multiple scratches. Another corrections officer subdued
Appellant with a taser gun.
{¶5} At trial, C.O. Quinn testified Appellant made multiple attempts to bite him
prior to the other officer deploying the taser gun. Appellant refused to comply with the
officer's orders to stop the struggle. At one point, while both C.O. Quinn and C.O.
Provitt were on top of Appellant, OIC Beck was able to place handcuffs on one of
Appellant's wrist. A fifth officer arrived and was able to secure both of Appellant's
wrists. C.O. Provitt, Sgt. Sivier, and OIC Beck corroborated C.O. Quinn's testimony.
Sgt. Sivier added Appellant put up such a struggle, she was required to dry stun him
with the taser three times before he complied. Appellant did not require medical
attention as a result of the incident.
{¶6} On April 6, 2012, the Delaware County Grand Jury indicted Appellant on
one count of assault of a corrections officer, in violation of R.C. 2903.13(A), a felony of
the fifth degree. The matter proceeded to jury trial on June 14, 2012. After hearing all
the evidence and deliberations, the jury found Appellant guilty. The trial court
sentenced Appellant to ten months in prison. Delaware County, Case No. 12 CAA 07 0041 4
{¶7} It is from this conviction Appellant appeals, raising the following
assignments of error:
{¶8} “I. THE TRIAL COURT ERRED AND THEREBY DENIED THE
APPELLANT DUE PROCESS OF LAW BY OFFERING THE JURY WRONG AND OR
MISLEADING INSTRUCTIONS OF THE LAW.
{¶9} “II. THE CONVICTION FOR ASSUALT [SIC] WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I
{¶10} In his first assignment of error, Appellant asserts the trial court erred by
offering the jury wrong and/or misleading instructions of law which resulted in a violation
of his right to due process.
{¶11} Appellant refers to two instances in support of his position. The first
alleged error occurred during voir dire when the trial court instructed the jury the crime
of assault as charged required a conviction of a crime at the time of the incident. The
second alleged error occurred during Appellant's direct examination when the trial court
interrupted questioning to offer a partial instruction of the mens rea "knowingly" without
providing a proper definition of the term.
{¶12} Appellant concedes he failed to object on both occasions; therefore, has
waived all but plain error. State v. Policaro, 10th Dist. No. 06AP–913, 2007–Ohio–1469,
¶ 6. Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an
appellate court even though they were not brought to the attention of the trial court. To
constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2)
that is plain or obvious, and (3) that affected substantial rights, i.e., affected the Delaware County, Case No. 12 CAA 07 0041 5
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002–Ohio–68. Even if an
error satisfies these prongs, appellate courts are not required to correct the error.
Appellate courts retain discretion to correct plain errors. Id; State v. Litreal, 170 Ohio
App.3d 670, 2006–Ohio–5416, ¶ 12. Courts are to notice plain error under Crim.R.
52(B) “with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Barnes, supra (Citation omitted).
{¶13} We shall review each instance separately.
{¶14} During voir dire, the trial court informed the prospective jurors Appellant
was charged with the crime of assault. The trial court continued, "[s]pecifically, that he
knowingly caused or knowingly attempted to cause physical harm to Robert Quinn, and
that the offense occurred in or on the grounds of a local correctional facility, the victim of
the offense is an employee of the local correctional facility, and [Appellant] was
convicted of a crime at the time of the incident". Transcript of June 14, 2012 Jury Trial,
Vol. I at 10. Appellant contends the trial court’s statement was incorrect as R.C.
2903.13 “does not even speak to the prior status of the alleged offender.” Appellant’s
Brief at 8. Appellant concludes the trial court’s statement creates in the minds of the
jurors “they are dealing with a convicted criminal” from the onset of trial. Id.
{¶15} Appellant was convicted of R.C. 2903.13(A), which provides: "No person
shall knowingly cause or attempt to case physical harm to another." The conviction was
a felony of the fifth degree because the offense occurred "in or on the grounds of a local
correctional facility, the victim of the offense [was] an employee of the local correctional
facility, and the offense [was] committed by a person who is under custody in the facility Delaware County, Case No. 12 CAA 07 0041 6
subsequent to the person's arrest for any crime, subsequent to the person's being
charged with or convicted of any crime." R.C. 2903.13(C)(2)(b).
{¶16} We conclude that no outcome-determinative plain error occurred. The trial
court made the statement at the very beginning of trial, before a panel had been seated
and before any evidence had been presented. The evidence was subsequently
presented to the jury, after which the trial court provided a complete instruction. The
judge's shorthand references to legal concepts during voir dire cannot be equated to
final instructions given shortly before the jury's deliberations. Additionally, prior to the
prospective jury panel entering the courtroom, the trial court questioned defense
counsel regarding Appellant’s status at the time of the offense. The trial court asked,
“So I can take out the other language and say the conviction of a crime?”, to which
defense counsel responded, “Yes, Your Honor.” Tp. Vol. I at 4. Accordingly, any claim
of error is meritless under the invited error doctrine.
{¶17} Appellant also challenges a statement made by the trial court while
defense counsel was conducting his direct examination. Defense counsel asked
Appellant, "Did you deliberately try to injure Corrections Officer Quinn?" The trial court
interjected, "I'm going to interrupt. That isn't the issue before the jury. The issue is
knowingly cause or attempt to cause, not intentionally."
{¶18} Whether or not the trial court's interjection was appropriate is a question
which need not be answered at this time. The trial court's instruction was correct.
Additionally, following the presentation of evidence, the trial court again properly and
completely instructed the jury. We find no plain error resulted from the trial court’s
interjection. Delaware County, Case No. 12 CAA 07 0041 7
{¶19} Appellant's first assignment of error is overruled.
II
{¶20} In his second assignment of error, Appellant challenges his conviction as
against the sufficiency and manifest weight of the evidence.
{¶21} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. “The relevant inquiry is 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.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia
(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. On review for manifest weight, a
reviewing court is to examine 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 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, 1997–Ohio–52. The granting of a new
trial “should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Martin at 175, 485 N.E.2d 717. We note “circumstantial
evidence may be more certain, satisfying and persuasive than direct evidence.” State v.
Richey, 64 Ohio St.3d 353, 595 N.E.2d 915, 1992–Ohio–44. It is to be given the same
weight and deference as direct evidence. Jenks, supra. Delaware County, Case No. 12 CAA 07 0041 8
{¶22} Specifically, Appellant asserts his conviction for assault, in violation of
R.C. 2903.13(C)(2)(b), is against the manifest weight of the evidence as the State failed
to established the requisite mens rea of "knowingly". Appellant submits the evidence
was unclear as to how the corrections officer received his scratches, and whether those
scratches were the result of voluntary or involuntary acts of Appellant.
{¶23} Based upon our review of the record, and as set forth in the Statement of
the Facts and Case, supra, we find Appellant's conviction was not against the manifest
weight of the evidence or based upon insufficient evidence.
{¶24} C.O. Quinn testified as to the events leading up to his physical altercation
with Appellant. Despite repeated requests, Appellant would not get out of bed and
move to a different cell. When C.O. Quinn tried to nudge Appellant off his bed,
Appellant tried to bite the officer. Appellant continued his attempts to bite the officer
until he was tased by other jail officials. C.O. Quinn also suffered scratches on his
forearm caused by Appellant.
{¶25} Appellant’s second assignment of error is overruled.
{¶26} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Delaware County, Case No. 12 CAA 07 0041 9
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ARLIN FISHER : : Defendant-Appellant : Case No. 12 CAA 07 0041
For the reasons stated in our accompanying Opinion, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER