[Cite as State v. Matthews, 2013-Ohio-2183.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-35 STEVEN L. MATTHEWS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Case No. 12-CR-68
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 16, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX THOMAS R. ELWING Prosecuting Attorney 60 West Columbus Street Pickerington, Ohio 43147 By: JOCELYN S. KELLY Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 12-CA-35 2
Hoffman, J.
{¶1} Defendant-appellant Steven L. Matthews appeals his conviction and
sentence entered by the Fairfield County Court of Common Pleas, on two counts of
retaliation, in violation of R.C. 2921.05(A); and two counts of assault on a corrections
officer, in violation of R.C. 2903.13(A) and (C)(2)(a), following a jury trial. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 10, 2012, the Fairfield County Grand Jury indicted Appellant
on the aforementioned charges. The matter proceeded to jury trial on May 15, 2012.
{¶3} The following evidence was adduced at trial. Corrections Officer John
Bluhm was conducting security rounds at the Southeastern Correctional Institution at
approximately 11 p.m. on November 19, 2011, when he observed Appellant, an inmate,
with a pick in his hair. C.O. Bluhm ordered Appellant to remove the pick as SCI policy
prohibited inmates from having potential weapons in their hair. In response, Appellant
swore at C.O. Bluhm, and asked, “Who’s it bothering?” Appellant did not comply with
the order to remove the pick. C.O. Bluhm again informed Appellant of SCI’s policy and
again ordered Appellant to remove the pick. Because Appellant failed to comply, C.O.
Bluhm instructed him to gather his property and take it to another area. Appellant
refused to do so. C.O. Bluhm then ordered Appellant to get his I.D. Appellant swore at
the officer, and replied, “If you want it, you find it.”
{¶4} C.O. Bluhm reached up and removed the pick from Appellant’s hair.
Appellant turned around and struck the officer in the face and chest. C.O. Bluhm fell
back and struck his head on a bunk bed. The officer stood, intending to spray Appellant Fairfield County, Case No. 12-CA-35 3
with OC, a type of pepper spray. A physical altercation ensued during which Appellant
sprayed C.O. Bluhm with pepper spray.
{¶5} C.O. Josh Jarrell arrived to assist C.O. Bluhm. Appellant, raising the can
of pepper spray, ran toward the officer and grabbed him. Appellant squeezed and
choked C.O. Jarrell and then slammed his head into a glass wall. A third corrections
officer arrived and was able to restrain Appellant. The entire altercation was recorded
on video.
{¶6} After hearing all the evidence and deliberations, the jury found Appellant
guilty on all four counts. The parties agreed the counts of assault and retaliation as to
C.O. Bluhm were allied offenses of similar import, and the counts of assault and
retaliation as to C.O. Jarrell were also allied offenses of similar import. The state
elected to proceed with sentencing on the retaliation charges. The trial court sentenced
Appellant to a term of 24 months on each count, and order the terms be served
consecutively. The trial court memorialized Appellant’s conviction and sentence in a
Judgment Entry of Sentence filed June 22, 2012.
{¶7} It is from his conviction and sentence Appellant appeals, asserting as
error:
{¶8} “I. THE TRIAL COURT ERRED IN FINDING THAT SUFFICIENT
EVIDENCE WAS PRESENTED TO CONVICT STEVEN L. MATTHEWS OF TWO
COUNTS OF RETALIATION UNDER 2921.05(A) FOR ALLEGED ACTS OF
RETALIATION COMMITTED PRIOR TO THE COMMENCEMENT OF ANY CIVIL OR
CRIMINAL ACTION OR PROCEEDING IN A COURT OF JUSTICE.” Fairfield County, Case No. 12-CA-35 4
I
{¶9} Appellant was convicted of two counts of retaliation, in violation of R.C.
2921.05(A). The statute reads, in pertinent part:
No person, purposely and by force or by unlawful threat of harm to
any person or property, shall retaliate against a public servant, a party
official, or an attorney or witness who was involved in a civil or criminal
action or proceeding because the public servant, party official, attorney, or
witness discharged the duties of the public servant, party official, attorney,
or witness.
{¶10} Appellant argues the phrase “involved in a civil or criminal action or
proceeding” is a critical element of the offense, requiring a current court proceeding to
support a conviction under R.C. 2921.05(A). Brief of Appellant at 7. Appellant explains
although C.O. Bluhm and C.O. Jarrell qualify as “public servants” as defined in R.C.
2921.05(B), neither corrections officer was involved in a civil or criminal action for which
he could be the victim of retaliation. Appellee counters the phrase “involved in a civil or
criminal action or proceeding” is applicable only to an attorney or witness, not to a public
servant or party official. We agree with Appellee.
{¶11} We find the legislature intended R.C. 2921.05(A) to prohibit retaliation
against three categories of individuals: (1) the public servant, (2) the party official, or (3)
the attorney or witness who was involved in a civil or criminal action or proceeding. The
placement of the comma before “or an attorney or witness” in the context of this
sentence clearly establishes the third category of potential victims of retaliation
encompasses attorneys or witnesses who were involved in civil or criminal actions or Fairfield County, Case No. 12-CA-35 5
proceedings. The use of “or” before the word “attorney” would be superfluous if the
phrase “who was involved in a civil or criminal action or proceeding” was meant to
modify each category.
{¶12} As used in R.C. 2921.05(A), “who was involved in a civil or criminal action
or proceeding” is an essential relative clause modifying only an attorney or witness.
This interpretation is also supported by the Ohio Jury Instructions, which read, in
relevant part:
The defendant is charged with retaliation. Before you can find the
defendant guilty, you must find beyond a reasonable doubt that on or
about the day of, and in County, Ohio, the defendant, purposely and by
(force) (unlawful threat of harm to any person or property) retaliated
against
(Use appropriate alternative)
(A)
a (public servant) (party official) ([attorney] [witness] who was
involved in a [civil] [criminal] action or proceeding) because the (public
servant) (party official) (attorney) (witness) discharged his/her duties. 2
OJI-CR 521.05(1).
{¶13} Based upon this interpretation of the retaliation statute, we now determine
whether there was sufficient evidence to support Appellant’s conviction.
{¶14} 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, 61 Ohio St.3d 259 (1991). “The relevant inquiry is whether, after viewing the Fairfield County, Case No. 12-CA-35 6
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[Cite as State v. Matthews, 2013-Ohio-2183.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-35 STEVEN L. MATTHEWS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Case No. 12-CR-68
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 16, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX THOMAS R. ELWING Prosecuting Attorney 60 West Columbus Street Pickerington, Ohio 43147 By: JOCELYN S. KELLY Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 12-CA-35 2
Hoffman, J.
{¶1} Defendant-appellant Steven L. Matthews appeals his conviction and
sentence entered by the Fairfield County Court of Common Pleas, on two counts of
retaliation, in violation of R.C. 2921.05(A); and two counts of assault on a corrections
officer, in violation of R.C. 2903.13(A) and (C)(2)(a), following a jury trial. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 10, 2012, the Fairfield County Grand Jury indicted Appellant
on the aforementioned charges. The matter proceeded to jury trial on May 15, 2012.
{¶3} The following evidence was adduced at trial. Corrections Officer John
Bluhm was conducting security rounds at the Southeastern Correctional Institution at
approximately 11 p.m. on November 19, 2011, when he observed Appellant, an inmate,
with a pick in his hair. C.O. Bluhm ordered Appellant to remove the pick as SCI policy
prohibited inmates from having potential weapons in their hair. In response, Appellant
swore at C.O. Bluhm, and asked, “Who’s it bothering?” Appellant did not comply with
the order to remove the pick. C.O. Bluhm again informed Appellant of SCI’s policy and
again ordered Appellant to remove the pick. Because Appellant failed to comply, C.O.
Bluhm instructed him to gather his property and take it to another area. Appellant
refused to do so. C.O. Bluhm then ordered Appellant to get his I.D. Appellant swore at
the officer, and replied, “If you want it, you find it.”
{¶4} C.O. Bluhm reached up and removed the pick from Appellant’s hair.
Appellant turned around and struck the officer in the face and chest. C.O. Bluhm fell
back and struck his head on a bunk bed. The officer stood, intending to spray Appellant Fairfield County, Case No. 12-CA-35 3
with OC, a type of pepper spray. A physical altercation ensued during which Appellant
sprayed C.O. Bluhm with pepper spray.
{¶5} C.O. Josh Jarrell arrived to assist C.O. Bluhm. Appellant, raising the can
of pepper spray, ran toward the officer and grabbed him. Appellant squeezed and
choked C.O. Jarrell and then slammed his head into a glass wall. A third corrections
officer arrived and was able to restrain Appellant. The entire altercation was recorded
on video.
{¶6} After hearing all the evidence and deliberations, the jury found Appellant
guilty on all four counts. The parties agreed the counts of assault and retaliation as to
C.O. Bluhm were allied offenses of similar import, and the counts of assault and
retaliation as to C.O. Jarrell were also allied offenses of similar import. The state
elected to proceed with sentencing on the retaliation charges. The trial court sentenced
Appellant to a term of 24 months on each count, and order the terms be served
consecutively. The trial court memorialized Appellant’s conviction and sentence in a
Judgment Entry of Sentence filed June 22, 2012.
{¶7} It is from his conviction and sentence Appellant appeals, asserting as
error:
{¶8} “I. THE TRIAL COURT ERRED IN FINDING THAT SUFFICIENT
EVIDENCE WAS PRESENTED TO CONVICT STEVEN L. MATTHEWS OF TWO
COUNTS OF RETALIATION UNDER 2921.05(A) FOR ALLEGED ACTS OF
RETALIATION COMMITTED PRIOR TO THE COMMENCEMENT OF ANY CIVIL OR
CRIMINAL ACTION OR PROCEEDING IN A COURT OF JUSTICE.” Fairfield County, Case No. 12-CA-35 4
I
{¶9} Appellant was convicted of two counts of retaliation, in violation of R.C.
2921.05(A). The statute reads, in pertinent part:
No person, purposely and by force or by unlawful threat of harm to
any person or property, shall retaliate against a public servant, a party
official, or an attorney or witness who was involved in a civil or criminal
action or proceeding because the public servant, party official, attorney, or
witness discharged the duties of the public servant, party official, attorney,
or witness.
{¶10} Appellant argues the phrase “involved in a civil or criminal action or
proceeding” is a critical element of the offense, requiring a current court proceeding to
support a conviction under R.C. 2921.05(A). Brief of Appellant at 7. Appellant explains
although C.O. Bluhm and C.O. Jarrell qualify as “public servants” as defined in R.C.
2921.05(B), neither corrections officer was involved in a civil or criminal action for which
he could be the victim of retaliation. Appellee counters the phrase “involved in a civil or
criminal action or proceeding” is applicable only to an attorney or witness, not to a public
servant or party official. We agree with Appellee.
{¶11} We find the legislature intended R.C. 2921.05(A) to prohibit retaliation
against three categories of individuals: (1) the public servant, (2) the party official, or (3)
the attorney or witness who was involved in a civil or criminal action or proceeding. The
placement of the comma before “or an attorney or witness” in the context of this
sentence clearly establishes the third category of potential victims of retaliation
encompasses attorneys or witnesses who were involved in civil or criminal actions or Fairfield County, Case No. 12-CA-35 5
proceedings. The use of “or” before the word “attorney” would be superfluous if the
phrase “who was involved in a civil or criminal action or proceeding” was meant to
modify each category.
{¶12} As used in R.C. 2921.05(A), “who was involved in a civil or criminal action
or proceeding” is an essential relative clause modifying only an attorney or witness.
This interpretation is also supported by the Ohio Jury Instructions, which read, in
relevant part:
The defendant is charged with retaliation. Before you can find the
defendant guilty, you must find beyond a reasonable doubt that on or
about the day of, and in County, Ohio, the defendant, purposely and by
(force) (unlawful threat of harm to any person or property) retaliated
against
(Use appropriate alternative)
(A)
a (public servant) (party official) ([attorney] [witness] who was
involved in a [civil] [criminal] action or proceeding) because the (public
servant) (party official) (attorney) (witness) discharged his/her duties. 2
OJI-CR 521.05(1).
{¶13} Based upon this interpretation of the retaliation statute, we now determine
whether there was sufficient evidence to support Appellant’s conviction.
{¶14} 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, 61 Ohio St.3d 259 (1991). “The relevant inquiry is whether, after viewing the Fairfield County, Case No. 12-CA-35 6
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, 443 U.S. 307 (1979). 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, 20 Ohio App.3d 172 (1983), 175. See also, State v.
Thompkins, 78 Ohio St.3d 380, 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.
{¶15} The testimony at trial established John Bluhm and Josh Jarrell were
corrections officers at Southeastern Correctional Institution, working on November 19,
2011. C.O. Bluhm was making security rounds at approximately 11p.m. when he
encountered Appellant. C.O. Bluhm was attempting to make Appellant comply with
institution rules when Appellant retaliated against him. Likewise, C.O. Jarrell was
discharging his duties as a corrections officer when he attempted to assist C.O. Bluhm
with Appellant. We find there was sufficient evidence to support Appellant’s convictions.
{¶16} Appellant’s sole assignment of error is overruled. Fairfield County, Case No. 12-CA-35 7
{¶17} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Fairfield County, Case No. 12-CA-35 8
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : STEVEN L. MATTHEWS : : Defendant-Appellant : Case No. 12-CA-35
For the reasons stated in our accompanying Opinion, the judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER