[Cite as State v. Fry, 2022-Ohio-2546.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Earle E. Wise, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 21-CA-00013 RONNIE FRY, JR. : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County Court of Common Pleas, Case No. 20-CR- 212
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 25, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVE YOST PETER GALYARDT Attorney General Assistant Public Defender BY: ANDREA K. BOYD 250 East Broad Street, Stuite 1400 Special Prosecutor Columbus, OH 43215 30 East Broad Street, 23rd Floor Columbus, OH 43215 [Cite as State v. Fry, 2022-Ohio-2546.]
Gwin, J.
{¶1} Defendant-appellant Ronnie Fry, Jr. [“Fry”] appeals his conviction and
sentence after a jury trial in the Guernsey County Court of Common Pleas.
Facts and Procedural History
{¶2} On September 4, 2020, Officer Daulton Dolan of the Byesville Police
Department was dispatched in response to a possible overdose. Officer Dolan’s
bodycam captured the events in real time. (State’s Exhibit A).
{¶3} Upon his arrival at the scene, Officer Dolan saw Fry giving rescue breaths
to his girlfriend, Amber Booker, in a shed. Officer Dolan administered two doses of
Narcan while Fry continued doing chest compressions and giving rescue breaths. The
fire department arrived and took over Ms. Booker's medical treatment. While the EMS
squad readied Ms. Booker for transport to the hospital, Officer Dolan comforted
Fry and credited his chest compressions for his girlfriend's survival.
{¶4} Officer Dolan retrieved a trash bag from his vehicle to dispose of the boxes
and wrappers from the Narcan that remained in the shed. Officer Dolan was concerned
that drugs might still be present in the shed, so he began looking for them. Another
resident of the home, Fry's mother, Barbara Gadd, came into the shed and tried to help
Officer Dolan locate the drugs. Officer Dolan did not intend to charge Ms. Booker; he
simply did not want her to have access to the drugs when she got out of the hospital, or
for anyone else to locate them and possibly overdose. Officer Dolan and Mrs. Gadd
located Ms. Booker's purse containing her ID. Officer Dolan gave it to EMS to be
transported with Ms. Booker to the hospital. Guernsey County, Case No. 21-CA-00013 3
{¶5} When Officer Dolan returned to the shed to try to locate the drugs, he heard
Fry yell "no, no, no." Fry then charged Officer Dolan. Fry testified during trial,
I kind of put my arm up to kind of like block him and take the purse
away...I kind of - - I remember feeling the purse in my hand, and we kind of
scuffled around...
T. at 210-211. Officer Dolan testified,
While I was looking in the bag I heard someone screaming no
multiple times, and as I went to turn to see who it was or what they were
yelling about, that is when Mr. Fry entered the shed and shoved me back
into the shed.
T. at 157. When asked how it felt, Officer Dolan replied, “It didn’t feel good.” Id. When
asked by the prosecutor if it “hurt a little bit,” Officer Dolan testified “A little bit, yes.” T. at
158. Officer Dolan testified the he did not have any kind of bruising or marks as a result
of the incident with Fry. T. at 172.
{¶6} Once in handcuffs, Fry was apologetic. Fry testified,
Just my emotions was kind of wrapped up, and honestly everything
happened so quick, I - - I wasn’t sure if I had maybe hit him, but I didn’t feel
that I did, but I wasn’t 100 percent sure either.
T. at 212. Fry’s reason for trying to take the purse was he believed Officer Dolan was
conducting an illegal search. T. at 212-213. After consulting his superior, Officer Dolan
arrested Fry for the contact in the shed. Id. at 170-171. Guernsey County, Case No. 21-CA-00013 4
{¶7} Fry was found guilty by a jury of assault, a felony of the fourth degree
because Officer Dolan suffered the assault while performing his official duties. The trial
court sentenced Fry to fourteen months in prison.
Assignments of Error
{¶8} Fry raises two Assignments of Error,
{¶9} “I. RONNIE FRY'S ASSAULT-OF-A-PEACE-OFFICER CONVICTION IS
NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND THE TRIAL COURT ERRED
WHEN IT DENIED HIS CRIM.R. 29 MOTION. FIFTH AND FOURTEENTH
AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND
16, OHIO CONSTITUTION.
{¶10} “II. RONNIE FRY'S ASSAULT-OF-A-PEACE-OFFICER CONVICTION IS
NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE. FIFTH AND
FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I,
SECTIONS 10 AND 16, OHIO CONSTITUTION.”
I & II
{¶11} In his First Assignment of Error, Fry argues that that there is insufficient
evidence to support his conviction. In his Second Assignment of Error, Fry contends his
conviction is against the manifest weight of the evidence.
Standard of Appellate Review– Sufficiency of the Evidence.
{¶12} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 Guernsey County, Case No. 21-CA-00013 5
U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,
136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the
elements of the charged offense and a review of the state's evidence.” State v.
Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶13} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,
after viewing the evidence in the 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. State v. Poutney, 153 Ohio St.3d 474,
2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do
not second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, Guernsey County, Case No. 21-CA-00013 6
430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average
mind that Fry was guilty beyond a reasonable doubt of Assault in violation of R.C.
2903.13(A) and R.C. 2903.13(C)(5)
{¶14} R.C. 2903.13, Assault, provides, “(A) No person shall knowingly cause or
attempt to cause physical harm to another or to another’s unborn.”
{¶15} R.C. 2901.01(A)(3) provides, ““Physical harm to persons” means any injury,
illness, or other physiological impairment, regardless of its gravity or duration.”
{¶16} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist. When knowledge of the existence of a particular fact
is an element of an offense, such knowledge is established if a person subjectively
believes that there is a high probability of its existence and fails to make inquiry or acts
with a conscious purpose to avoid learning the fact.” R.C. 2901.22(B).
{¶17} The intent with which an act is committed may be inferred from the act itself
and the surrounding circumstances, including acts and statements of a defendant. State
v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656 N.E.2d 623, 634(1995); State v.
Wallen, 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 722(5th Dist. 1969). Thus, “[t]he test for
whether a defendant acted knowingly is a subjective one, but it is decided on objective Guernsey County, Case No. 21-CA-00013 7
criteria.” State v. McDaniel, 2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1,
1998), citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d 412 (10th Dist. 1995).
{¶18} Fry argues that the evidence is insufficient to prove beyond a reasonable
doubt that he “knowingly” caused “physical harm” to Officer Dolan. [Appellant’s brief at
7]. Essentially, Fry argues that “a little pain” does not satisfy the definition of “physical
harm.” Id. Further, Fry contends that his intent was not to injure Officer Dolan but rather
to stop what he perceived to be an illegal search. Id.
{¶19} There is no justification for Fry’s actions in this case. Ohio law encourages
the “resol[ution of] questions concerning the legality of police conduct in the courts
through peaceful means rather than on the street in potentially violent confrontation.”
State v. Pembaur, 9 Ohio St.3d 136, 138, 459 N.E.2d 217(1984). In Pembaur, the Court
held, “Nevertheless, absent bad faith on the part of a law enforcement officer, an occupant
of business premises cannot obstruct the officer in the discharge of his duty, whether or
not the officer’s actions are lawful under the circumstances.” Id.
{¶20} In In re A.T., the court observed,
“‘[W]hen there is no tangible, physical injury such as a bruise or cut,
it becomes the province of the [trier of fact] to determine whether, under the
circumstances, the victim was physically injured, after reviewing all of the
evidence surrounding the event.’” State v. Barnes, 8th Dist. Cuyahoga No.
87153, 2006-Ohio-5239, ¶ 17, quoting State v. Perkins, 11th Dist. Portage
No. 96-P-0221, 1998 WL 157000, 3, 1998 Ohio App. LEXIS 1213, 7 (Mar.
27, 1998).
8th Dist. Cuyahoga No. 110123, 2021-Ohio-2934, ¶67. Courts have further held, Guernsey County, Case No. 21-CA-00013 8
The slightest injury is sufficient proof of physical harm. See State v.
Hustead, 83 Ohio App.3d 809, 615 N.E.2d 1081 (4th Dist. 1992) (slap to the
face, which causes no redness, bruising or head movement, is sufficient
proof of physical harm); State v. Neff, 10th Dist. Franklin No. 92 AP 655,
1992 WL 250253, *2 (Sept. 30, 1992) (the act of grabbing and jerking a
victim’s arm and causing pain constitutes physical harm); State v. Johnson,
2d Dist. Greene No. 88–CA–83, 1989 WL 43040, *4 (Apr. 27, 1989) (the
infliction of pain by grabbing the male genitalia is physical harm).
State v. Daniels, 1st Dist. Hamilton No. C-170145, 2018-Ohio-1701, 111 N.E.3d 708, ¶35.
Accord, State v. Karns, 2nd Dist. Greene No. 2020-CA-35, 2021-Ohio-1836, ¶38. A
physical manifestation of injury is not necessary for a finding that the offender caused
“physical harm,”
The Second District Court of Appeals held in Dayton v. Hadley (June
2, 1986), Montgomery App. No. 9509, unreported, 1986 WL 6330, at * 2,
that there is “no indication that pain must be evidenced by an outward
physical manifestation in order to constitute ‘physical harm.’” Moreover, the
Legislative Service Note to R.C. 2901.01 states that “precedent trauma” is
not a necessary predicate to a finding of physical harm.
State v. Perkins, 11th Dist. Portage No. 96-P-0221, 1998 WL 15700 (Mar 27, 1998) at *3.
{¶21} In a case similar to the case at bar, the Court noted,
Lack contends that there was insufficient evidence to show that he
knowingly caused Ott harm. Lack appears to concede that he “put his
hands” on Ott. But he contends that he could not have known that he would Guernsey County, Case No. 21-CA-00013 9
cause Ott harm under R.C. 2919.25(A) because “[p]utting your hands on
someone is not an act that will probably result in harm.”
The evidence was sufficient to support all of the necessary elements
of R.C 2919.25(A): Lack knowingly squeezed Ott’s wrist and hit the back of
her arm. He is presumed to understand the reasonable and probable
consequences of his actions. It is reasonable and probable to assume that
when someone hits another person, the aggressor knows that the victim will
suffer some harm.
State v. Lack, 1st Dist. Hamilton No. C-200334, 2021-Ohio-2956, ¶21-22.
{¶22} In the case at bar, Fry should be aware that his deliberate act of charging
Officer Dolan, grabbing the purse in Officer Dolan’s hands, and attempting to wrestle it
away from him would result in some harm to Officer Dolan. Officer Dolan testified that at
the time of Fry’s actions, Officer Dolan was wearing his duty vest with all the gear on it.
The vest weighed approximately 30 pounds. T. at 158. Officer Dolan testified that Fry
shoved him causing some pain. T. at 157-158; 176; 185. Officer Dolan testified that Fry’s
actions were not accidental. Id. at 177. Fry admitted that he might have hit Officer Dolan.
T. at 212. At the very least, Fry testified that the two scuffled over the purse. T. at 210-
211.
{¶23} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that Fry
knowingly caused or attempted to cause physical harm to a peace officer. Guernsey County, Case No. 21-CA-00013 10
{¶24} We hold, therefore, that the state met its burden of production regarding the
elements of assault of a peace officer; accordingly, there was sufficient evidence to
support Fry’s conviction for assault involving Officer Dolan.
Standard of Appellate Review – Manifest Weight.
{¶25} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶26} The reviewing court must bear in mind; however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d Guernsey County, Case No. 21-CA-00013 11
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[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. Mahoning No. 99 CA 149, 2002–
Ohio–1152, ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶27} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘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, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice, that the conviction must be reversed and a new
trial ordered. Guernsey County, Case No. 21-CA-00013 12
{¶28} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶29} In the case at bar, the jury heard Officer Dolan and Fry subjected to cross-
examination, and saw Officer Dolan’s body camera videos. The jury heard Fry’s
arguments and explanations about the evidence and his actions.
{¶30} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Fry’s conviction is not against Guernsey County, Case No. 21-CA-00013 13
the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears
to have fairly and impartially decided the matters before them. The jury heard the
witnesses, evaluated the evidence, and was convinced of Fry’s guilt. The jury neither lost
their way nor created a miscarriage of justice in convicting Fry of the offense.
{¶31} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime for which Fry was convicted.
{¶32} Fry’s First and Second Assignment of Errors are overruled.
{¶33} The judgment of the Guernsey County Court of Common Pleas is affirmed.
By Gwin, J.,
Wise, Earle, P.J., and
Delaney, J, concur