State v. Prescott

943 N.E.2d 1092, 190 Ohio App. 3d 702
CourtOhio Court of Appeals
DecidedDecember 10, 2010
DocketNo. WD-09-085
StatusPublished
Cited by44 cases

This text of 943 N.E.2d 1092 (State v. Prescott) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Prescott, 943 N.E.2d 1092, 190 Ohio App. 3d 702 (Ohio Ct. App. 2010).

Opinion

Pietrykowski, Judge.

{¶ 1} David Prescott II, appellant, appeals his conviction for the offense of assault on a police officer, a violation of R.C. 2903.13(A) and 2903.13(C)(3) and a fourth-degree felony. Prescott was convicted of the offense in a jury trial conducted in the Wood County Court of Common Pleas in September 2009. In a November 18, 2009 judgment, the trial court sentenced appellant to serve three years’ community control with conditions for the offense.

{¶ 2} Appellant asserts three assignments of error on appeal.

Assignments of Error

{¶ 3} “I. The trial court erred in instructing the jury that a private citizen may not resist arrest by a law enforcement officer through the use of force.

{¶ 4} “II. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Constitution of the State of Ohio.

{¶ 5} “HI. Appellant’s conviction was against the sufficiency and/or manifest weight of the evidence presented at trial.”

{¶ 6} On February 21, 2009, Prescott was engaged in a fistfight in front of the Clazel, a bar in downtown Bowling Green, Ohio. Officers Terry Davis and Jeff Lowery, police officers of the Bowling Green Police Department, were on patrol nearby.

{¶ 7} Officer Davis testified that he was across the street from the bar issuing a citation at approximately 2:30 a.m., heard a commotion, and turned to see a fight in progress on the sidewalk across the street, 30 feet away. Davis testified: “I saw two people engaged in a fight, a fist fight. I moved to that location, pulled the people apart.” Davis testified that the two men fighting were Prescott and another man named Avila.

{¶ 8} Davis testified that he announced more than once that he was a police officer and told the men to stop fighting. He separated them, at first holding Avila, but he lost his grip. Prescott continued to fight and punched Davis in the head. Davis testified that he tripped and fell to the ground with Prescott on top of him, face to face. Davis testified that Prescott continued to punch him while face to face. By this time, Officer Lowery arrived.

{¶ 9} Lowery testified that he was approximately ten seconds behind Davis in arriving at the location of the fight. As he arrived, Lowery yelled, more than once, “Police,” and for the men to stop fighting. Lowery pulled Avila away. He testified that he saw appellant punching Officer Davis with his fist. Lowery [705]*705recalled that he was no more than five feet away when he saw appellant face to face with Davis and punching him.

{¶ 10} Lowery testified that Officer Garman and he pulled Prescott from Davis, instructed Prescott several times to stop fighting, and ultimately forced Prescott to the ground to restrain him. Lowery testified that the incident all happened “within a couple minutes.”

{¶ 11} Katherine Brown1 testified that before police arrived, a group of five men attacked Prescott and that when police did arrive, a crowd was yelling and no one knew what was going on. She saw a man wearing a black coat run into the fight and place a choke hold around Prescott. Brown identified Officer Davis as the man and testified that Davis was wearing a plain black jacket.

{¶ 12} Katherine Brown testified that at some point she was knocked to the ground and while on the ground saw a badge and realized that Prescott was on top of a police officer and struggling with him. She testified that Prescott rolled off the officer and stopped struggling once she told him: “David, it is okay, you are safe, you don’t have to, like it is okay, you are safe, it is a police officer, you don’t have to do that.”

{¶ 13} Alexandra Brown testified that five or more men attacked Prescott. One punched him on the back of the head, and the group forced him to the ground. While he was on the ground, others kicked him in the ribs and his head. Prescott got back up and was knocked to the ground again. Afterwards, police arrived.

{¶ 14} Alexandra Brown testified that when Officer Davis arrived, she did not know he was a police officer. She testified that he was wearing a dark knit hat and dark jacket and she saw no emblems or patches on his jacket. She realized he was a police officer when Davis and Prescott fell to the ground. It was then that she saw a badge on the sleeve of his jacket. She testified that Prescott stopped when her sister screamed: “David, it is a cop. Stop.”

{¶ 15} Under assignment of error No. I, Prescott argues that the trial court erred in instructing the jury “that a private citizen may not resist arrest by a law enforcement officer through the use of force.” However, the trial court gave no such instruction. The trial court instructed:

{¶ 16} “When the situation involves the use of force against a law enforcement officer, a private citizen may not, in the absence of excessive or unnecessary force by an arresting officer, use force to resist arrest by one he knows, or has good [706]*706reason to believe, is an authorized police officer engaged in his duties, whether or not the arrest is legal under the circumstances.”

{¶ 17} The instruction is an almost identical word-for-word restatement of the law announced by the Ohio Supreme Court in Columbus v. Fraley (1975), 41 Ohio St.2d 173, 70 O.O.2d 335, 324 N.E.2d 735, paragraph three of the syllabus. In the decision, the court strictly limited circumstances in which a citizen may use force against a police officer:

{¶ 18} “We agree with those courts and legislatures which have chosen to abandon the rule allowing forcible resistance to arrest. We believe it [is] essential that potentially violent conflicts be resolved, not in the streets, but in the courts. Thus, we hold that in the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.” Id. at 180, 70 O.O.2d 335, 324 N.E.2d 735.

{¶ 19} The Fraley rule has been applied in instances involving investigatory stops and searches in addition to arrests. State v. Haines (Feb. 24, 1995), 6th Dist. No. L-94-023, 1995 WL 75297. Because the instruction accurately sets forth the law announced by the Ohio Supreme Court in Fraley, we find that appellant’s first assignment of error is not well taken.

{¶ 20} Under assignment of error No. II, appellant argues that he was denied effective assistance of counsel at trial due to trial counsel’s unfamiliarity with trial procedure. Appellant argues that trial counsel was deficient because she “was unaware of the procedural requirements of the Ohio Rule of Criminal Procedure 16(B)(1)(g) as it pertains to impeachment of a witness by a prior written or recorded statement.” At the time of trial,2 Crim.R. 16(B)(1)(g) provided:

{¶ 21} “Crim.R. 16 Discovery and inspection

{¶ 22} “ * * *

{¶ 23} “(B) Disclosure of evidence by the prosecuting attorney

{¶ 24} “(1) Information subject to disclosure.

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Cite This Page — Counsel Stack

Bluebook (online)
943 N.E.2d 1092, 190 Ohio App. 3d 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-prescott-ohioctapp-2010.