[Cite as State v. Lillie, 2018-Ohio-2714.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2017AP100028 HAROLD W. LILLIE, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the New Philadelphia Municipal Court, Case No. CRB1700607A-B
JUDGMENT: Judgment Reversed, Final Judgment of Acquittal Entered
DATE OF JUDGMENT ENTRY: July 10, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LACEE K. FELIX DAVID C. HIPP Assistant Prosecutor, 300 East High Avenue, PO Box 90 City of New Philadelphia New Philadelphia, OH 44663 150 East High Avenue, Ste. 113 New Philadelphia, OH 44663 Tuscarawas County, Case No. 2017AP100028 2
Hoffman, P.J.
{¶1} Appellant Harold W. Lillie, Jr. appeals the judgment entered by the New
Philadelphia Municipal Court convicting him of assault in violation of R.C. 2903.13(A).
Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 17, 2017, Appellant went to the Tuscarawas County Humane
Society searching for his dog. Appellant’s friends let the dog out of the fenced area on
the humane society property, and Appellant tried to catch the dog to put it in his car.
Ashlie Yoder, an employee of the humane society, ran out of the building to try to catch
the dog. She confronted Appellant, asking, “Who the hell are you?” Appellant responded
the dog belonged to him and he was there to pick it up.
{¶3} As Yoder was attempting to grab the dog, Appellant pushed her in the
shoulder area. She did not fall or sustain injury from the push. Appellant was able to
catch the dog and left the area.
{¶4} A deputy with the Tuscarawas County Sheriff’s Department arrived on the
scene. Appellant told the deputy he was agitated because the humane society had taken
his dog. He described his contact with Yoder as a “light push.” Appellant surrendered
the dog to the humane society.
{¶5} Appellant was charged with disorderly conduct and assault. The case
proceeded to a bench trial in the New Philadelphia Municipal Court.
{¶6} At trial, Appellant’s fiancé testified Yoder made a motion toward Appellant
before Appellant pushed her. The deputy testified according to the video from the Tuscarawas County, Case No. 2017AP100028 3
humane society’s security camera, Yoder made a movement with her hand before she
was pushed, which may have been her reaching for the dog.
{¶7} After the presentation of evidence, the court found Appellant guilty of
attempted assault and dismissed the disorderly conduct charge as an allied offense of
similar import. The trial court stated from the bench:
I think he’s guilty of attempted assault and that’s what he’s charged
with. I think that disorderly conduct is a, you know, we’re going to dismiss
that as being an allied offense of similar import but I mean it’s pretty clear
to me that she was after the dog, who are you and he blocked her so that
he could accomplish his purpose which was so that the dog could get away
so he could get it. You know, was it an egregious assault? Did he throw a
punch at her head? No. You know, he didn’t do any of that but I think that
when you shove a person out of the way that you meet these elements of
this offense so I’m going to find him guilty and it’s probably a good one to
appeal, Mr. Urban, and I wouldn’t be surprised if you do but that’s my finding
today.
Tr. 51.
{¶8} Appellant was sentenced to ninety days incarceration which was
suspended for twelve months of probation, five days on the inmate litter crew, one Tuscarawas County, Case No. 2017AP100028 4
hundred hours of community service, and a fine of $250.00. It is from the October 3, 2017
judgment of conviction and sentence Appellant prosecutes this appeal, assigning as error:
“THE TRIAL COURT ERRED IN FINDING THE DEFENDANT
GUILTY OF ASSAULT WHERE THERE WAS INSUFFICIENT EVIDENCE
TO SUPPORT A FINDING THAT THE DEFENDANT CAUSED PHYSICAL
HARM TO ANOTHER AND THAT HE KNOWINGLY CAUSED PHYSICAL
HARM.”
{¶9} We note at the outset the State of Ohio has failed to file a brief in the instant
appeal. Pursuant to App. R. 18(C), where the appellee has failed to file a brief, “in
determining the appeal, the court may accept the appellant’s statement of the facts and
issues as correct and reverse the judgment if appellant’s brief reasonably appears to
sustain this action.”
{¶10} 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, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶11} Appellant was convicted of assault in violation of R.C. 2903.13(A), which
states, “No person shall knowingly cause or attempt to cause physical harm to another or
to another's unborn.” Tuscarawas County, Case No. 2017AP100028 5
{¶12} When accompanied “by the requisite intent, a ‘ * * * shove, push or grab * *
* ’ may satisfy the ‘physical harm’ element of assault.” State v. Williams, 10th Dist. Franklin
No. 01AP–254, at 5, 2001–Ohio–8876.
{¶13} In State v. Kemper, 12th Dist. Butler No. CA2012-04-079, 983 N.E. 2d 951,
2012-Ohio-951, the appellant pushed the victim out of his way in order to gain access to
property he believed belonged to him. In finding his assault conviction was not supported
by sufficient evidence, the Court of Appeals for the Twelfth District held:
A description of the events reveals Kemper attempting to retrieve his
possessions with Winters attempting to prevent Kemper from doing so.
While it is clear that Kemper intended to gain possession of items he
believed to be his and that the moment was heated between himself and
Winters, evidence is lacking to establish beyond a reasonable doubt that
Kemper had the requisite mens rea to harm Winters. Stated a different way,
there is insufficient evidence to establish that Kemper was aware that
placing his hands on Winters' shoulder to move her aside would probably
cause a certain result, mainly physical harm.
{¶14} Id. at ¶17. Contrast State v. Thomas, 8th Dist. Cuyahoga No. 104174,
2017-Ohio-957, ¶ 25 (defendant put his hands on victim and pushed her out the door,
followed her to her vehicle, and continuously threatened her); State v. Stover, 8th Dist.
Cuyahoga No. 104388, 2017-Ohio-291, ¶ 30 (defendant grabbed two steak knives and Tuscarawas County, Case No. 2017AP100028 6
waved them in victim’s face, claiming “somebody [is] going to die,” then pushed her so
hard she fell to the ground).
{¶15} Accepting Appellant’s statement of the facts as correct pursuant to App. R.
18(C), we find such facts reasonably sustain reversal of his conviction. The facts as set
forth in Appellant’s brief demonstrate Yoder was not injured by what she described as a
“light shove.” She did not fall or sustain injury. The facts as set forth in Appellant’s brief
demonstrate Appellant’s intent was not to injure Yoder, but to gain possession of his dog.
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[Cite as State v. Lillie, 2018-Ohio-2714.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2017AP100028 HAROLD W. LILLIE, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the New Philadelphia Municipal Court, Case No. CRB1700607A-B
JUDGMENT: Judgment Reversed, Final Judgment of Acquittal Entered
DATE OF JUDGMENT ENTRY: July 10, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LACEE K. FELIX DAVID C. HIPP Assistant Prosecutor, 300 East High Avenue, PO Box 90 City of New Philadelphia New Philadelphia, OH 44663 150 East High Avenue, Ste. 113 New Philadelphia, OH 44663 Tuscarawas County, Case No. 2017AP100028 2
Hoffman, P.J.
{¶1} Appellant Harold W. Lillie, Jr. appeals the judgment entered by the New
Philadelphia Municipal Court convicting him of assault in violation of R.C. 2903.13(A).
Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 17, 2017, Appellant went to the Tuscarawas County Humane
Society searching for his dog. Appellant’s friends let the dog out of the fenced area on
the humane society property, and Appellant tried to catch the dog to put it in his car.
Ashlie Yoder, an employee of the humane society, ran out of the building to try to catch
the dog. She confronted Appellant, asking, “Who the hell are you?” Appellant responded
the dog belonged to him and he was there to pick it up.
{¶3} As Yoder was attempting to grab the dog, Appellant pushed her in the
shoulder area. She did not fall or sustain injury from the push. Appellant was able to
catch the dog and left the area.
{¶4} A deputy with the Tuscarawas County Sheriff’s Department arrived on the
scene. Appellant told the deputy he was agitated because the humane society had taken
his dog. He described his contact with Yoder as a “light push.” Appellant surrendered
the dog to the humane society.
{¶5} Appellant was charged with disorderly conduct and assault. The case
proceeded to a bench trial in the New Philadelphia Municipal Court.
{¶6} At trial, Appellant’s fiancé testified Yoder made a motion toward Appellant
before Appellant pushed her. The deputy testified according to the video from the Tuscarawas County, Case No. 2017AP100028 3
humane society’s security camera, Yoder made a movement with her hand before she
was pushed, which may have been her reaching for the dog.
{¶7} After the presentation of evidence, the court found Appellant guilty of
attempted assault and dismissed the disorderly conduct charge as an allied offense of
similar import. The trial court stated from the bench:
I think he’s guilty of attempted assault and that’s what he’s charged
with. I think that disorderly conduct is a, you know, we’re going to dismiss
that as being an allied offense of similar import but I mean it’s pretty clear
to me that she was after the dog, who are you and he blocked her so that
he could accomplish his purpose which was so that the dog could get away
so he could get it. You know, was it an egregious assault? Did he throw a
punch at her head? No. You know, he didn’t do any of that but I think that
when you shove a person out of the way that you meet these elements of
this offense so I’m going to find him guilty and it’s probably a good one to
appeal, Mr. Urban, and I wouldn’t be surprised if you do but that’s my finding
today.
Tr. 51.
{¶8} Appellant was sentenced to ninety days incarceration which was
suspended for twelve months of probation, five days on the inmate litter crew, one Tuscarawas County, Case No. 2017AP100028 4
hundred hours of community service, and a fine of $250.00. It is from the October 3, 2017
judgment of conviction and sentence Appellant prosecutes this appeal, assigning as error:
“THE TRIAL COURT ERRED IN FINDING THE DEFENDANT
GUILTY OF ASSAULT WHERE THERE WAS INSUFFICIENT EVIDENCE
TO SUPPORT A FINDING THAT THE DEFENDANT CAUSED PHYSICAL
HARM TO ANOTHER AND THAT HE KNOWINGLY CAUSED PHYSICAL
HARM.”
{¶9} We note at the outset the State of Ohio has failed to file a brief in the instant
appeal. Pursuant to App. R. 18(C), where the appellee has failed to file a brief, “in
determining the appeal, the court may accept the appellant’s statement of the facts and
issues as correct and reverse the judgment if appellant’s brief reasonably appears to
sustain this action.”
{¶10} 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, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶11} Appellant was convicted of assault in violation of R.C. 2903.13(A), which
states, “No person shall knowingly cause or attempt to cause physical harm to another or
to another's unborn.” Tuscarawas County, Case No. 2017AP100028 5
{¶12} When accompanied “by the requisite intent, a ‘ * * * shove, push or grab * *
* ’ may satisfy the ‘physical harm’ element of assault.” State v. Williams, 10th Dist. Franklin
No. 01AP–254, at 5, 2001–Ohio–8876.
{¶13} In State v. Kemper, 12th Dist. Butler No. CA2012-04-079, 983 N.E. 2d 951,
2012-Ohio-951, the appellant pushed the victim out of his way in order to gain access to
property he believed belonged to him. In finding his assault conviction was not supported
by sufficient evidence, the Court of Appeals for the Twelfth District held:
A description of the events reveals Kemper attempting to retrieve his
possessions with Winters attempting to prevent Kemper from doing so.
While it is clear that Kemper intended to gain possession of items he
believed to be his and that the moment was heated between himself and
Winters, evidence is lacking to establish beyond a reasonable doubt that
Kemper had the requisite mens rea to harm Winters. Stated a different way,
there is insufficient evidence to establish that Kemper was aware that
placing his hands on Winters' shoulder to move her aside would probably
cause a certain result, mainly physical harm.
{¶14} Id. at ¶17. Contrast State v. Thomas, 8th Dist. Cuyahoga No. 104174,
2017-Ohio-957, ¶ 25 (defendant put his hands on victim and pushed her out the door,
followed her to her vehicle, and continuously threatened her); State v. Stover, 8th Dist.
Cuyahoga No. 104388, 2017-Ohio-291, ¶ 30 (defendant grabbed two steak knives and Tuscarawas County, Case No. 2017AP100028 6
waved them in victim’s face, claiming “somebody [is] going to die,” then pushed her so
hard she fell to the ground).
{¶15} Accepting Appellant’s statement of the facts as correct pursuant to App. R.
18(C), we find such facts reasonably sustain reversal of his conviction. The facts as set
forth in Appellant’s brief demonstrate Yoder was not injured by what she described as a
“light shove.” She did not fall or sustain injury. The facts as set forth in Appellant’s brief
demonstrate Appellant’s intent was not to injure Yoder, but to gain possession of his dog.
{¶16} Further, we have reviewed the video from the humane society’s security
camera which was admitted into evidence. The video supports the finding Appellant’s
contact with Yoder was an attempt to block her from catching the dog rather than to cause
her physical harm. Likewise, the trial court’s statement on the record, quoted above,
demonstrates the court determined Appellant’s intent was to block Yoder “so that he could
accomplish his purpose which was so that the dog could get away so he could get it.” Tr.
51. We find neither the video nor the trial court’s findings support the conclusion Appellant
knowingly caused or attempted to cause physical harm to Yoder.1
1 Although we find the evidence insufficient to support the conviction of assault, we find it would be sufficient to support a conviction of disorderly conduct. However, the trial judge dismissed the disorderly conduct charge, and we are therefore without jurisdiction to review the charge. We believe the trial court misconstrued the law concerning allied offenses, which would have allowed Appellant to be convicted of both charges, but only sentenced on one. See State v. Whitfield, 124 Ohio St. 3d 319, 922 N.E.2d 182, 2010- Ohio-2, ¶18. Tuscarawas County, Case No. 2017AP100028 7
{¶17} The assignment of error is sustained. The judgment of the New
Philadelphia Municipal Court is reversed. Pursuant to App. R. 12(B), we hereby enter
final judgment acquitting Appellant of the offense of assault.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur