State v. Wacasey

2025 Ohio 1257

• Court: Ohio Court of Appeals
• Decided: April 10, 2025
• Docket: 114144
• Status: Published

Opinion

[Cite as State v. Wacasey, 2025-Ohio-1257.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114144 v. :

MONTANA WACASEY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 10, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-686061-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Morgan Austin, Assistant Prosecuting Attorney, for appellee.

Langdon Legal, LLC, and Liza Marie Langdon, for appellant.

SEAN C. GALLAGHER, J.:

Montana Wacasey appeals her conviction for assault committed

against a police officer. The conviction arose from what should have been a routine

traffic stop to issue a traffic citation after a Case Western Reserve University (“CWRU”) police officer witnessed the driver of a Mercedes SUV, Wacasey, fail to

stop when required by a traffic signal. Ultimately, Wacasey was arrested for failure

to identify herself for the purpose of issuing the traffic citation. In the process of

resisting that arrest, Wacasey bit and kicked at the officers, one of whom sought

medical treatment for pain in his groin. For the following reasons, we affirm the

conviction.

Wacasey failed to stop at an intersection controlled by either a stop

sign or stoplight. After the officer activated his emergency lights and attempted to

initiate a traffic stop, the driver continued driving a circuitous route to a nearby

residence, including leading the officer through the parking lot and ATM lane of a

local bank. The officer immediately requested support and notified area units that

the driver was potentially running. It does not appear that the officer could see the

driver, referring to the driver as a male in his discussions with dispatch. The vehicle

was ultimately stopped in the driveway of the residential property where Wacasey’s

aunt lived, with the back of the car sticking out into the street. Wacasey exited the

Mercedes SUV, walked to the doorstep, but turned and approached the officer’s

cruiser on the driver’s side. That was noted to be a dangerous situation for an officer

and a motorist to be in, given the dangers officers face when sitting in their vehicles

as unknown individuals approach them. The officer broadcast what was happening

while exiting his vehicle, and other officers immediately arrived in light of the nature

of the stop and encounter. Wacasey was immediately combative, questioning the officer. In the

midst of that, the officer misspoke and stated that he was trying to issue a citation

because he witnessed Wacasey fail to comply with three stoplights. As the officer

conceded, that was an imprecise phrasing. In actuality, it was some combination of

stop signs and stoplights. In short, she was being stopped for failing to stop when

required by a traffic-control device. Wacasey became fixated on the misstatement

and began questioning the entire interaction by refusing to identify herself or hand

the officer her driver’s license. Her reluctance could also be attributed to the fact

that Wacasey was driving under a suspended license, a fact not known to the officers

until later.

Not long after the initial interaction, the officer’s supervisor, a

sergeant with the CWRU Police Department, arrived. He advised the officer to issue

the citations by running the license plate on the Mercedes SUV and told other

responding officers to depart, believing that the ticket would be issued. It was

discovered, however, that the license plate was registered to a different vehicle, a Kia

titled to a different person. Wacasey confirmed the plate was invalid as the officer

was attempting to write the citations. It is not clear whether Wacasey owned the

Mercedes SUV. She made comments about intending to purchase the vehicle and

was simply driving it around the block.

A lieutenant for the CWRU Police Department arrived and was

briefed by the officers. Wacasey refused every officer’s request to produce her

identification or to simply identify herself for the purpose of issuing the citation. They attempted to obtain the information from Wacasey’s aunt, who also declined

to identify Wacasey. Thirty minutes into the detention, after being told repeatedly

that the failure to identify herself was an arrestable offense given the nature of the

encounter, Wacasey attempted to walk back inside the house. The lieutenant made

the instantaneous decision to arrest Wacasey before she could retreat inside the

home.

As he attempted to place handcuffs on Wacasey, she went “limp,” or

slumped to the ground. During this time, Wacasey actively prevented the officers

from placing her in handcuffs. As the struggle ensued, she was kicking at and

attempting to bite at least one of the officers according to their testimony. Body

camera footage depicts the officers telling her to stop kicking and biting, but the view

of the arrest is unclear because some of the cameras fell to the ground during the

struggle to cuff Wacasey. Eventually, she was in custody, but after being placed in

the back of the police car, Wacasey’s aunt opened the door and Wacasey attempted

to exit the vehicle. The lieutenant went to secure her once again but later testified

that it was difficult because Wacasey was kicking at him.

When returning to the station, the first officer started to feel pain in

his groin causing him enough distress to warrant an emergency room visit. Upon

discharge, he was advised to stay home for a couple of days before returning to work.

The officer testified that in addition to Wacasey’s attempt to bite him, she was

actually biting his protective vest, and that Wacasey had kicked him in the groin. Before trial, Wacasey rejected the State’s offer to plead guilty to a

misdemeanor assault charge. Nevertheless, upon that evidence, the trial court

sitting as the trier of fact found Wacasey guilty of assault under R.C. 2903.13(A), a

fourth-degree felony offense when committed against a police officer.

R.C. 2903.13(C)(5)(a). According to the trial court, “[t]he long and short of it . . . is

that [Wacasey] did act knowingly when [she] kicked [the officer] and bit him, as

well. Those are knowing acts, and therefore the State has met their burden in this

case.” (Tr. 157:22-158:2.) She was sentenced to one and a half years of community-

control sanctions, and this timely appeal followed.

Wacasey advances three assignments of error, two of which are

related. In the first assignment of error, Wacasey claims her conviction for assault

is based on insufficient evidence of her knowingly causing physical harm. According

to Wacasey, although she was “actively” resisting arrest, she did not intend to kick

or injure any of the officers. Although she couches her second assignment of error

in terms of challenging the denied motion for acquittal under Crim.R. 29, the

analysis is the same. State v. Tenace, 2006-Ohio-2417, ¶ 37.

When determining whether a verdict is supported by sufficient

evidence, “‘[t]he 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.’” State v. Wilks,

2018-Ohio-1562, ¶ 156, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. When evaluating the sufficiency of the evidence, a reviewing court considers “whether the evidence, ‘if believed, would convince the average mind

of the defendant’s guilt beyond a reasonable doubt.’” State v. Pountney, 2018-Ohio-

22, ¶ 19, quoting Jenks at paragraph two of the syllabus.

There are two overriding considerations that must be addressed with

Wacasey’s trial and appellate strategy. Throughout this case, Wacasey has never

contested the lawfulness of the initial stop and detention or the legitimacy of the

arrest for failing to identify herself during a lawful traffic stop. Instead, Wacasey’s

defense was focused on whether she intentionally or purposefully kicked or bit the

police officer based on her subjective intent and whether there was any actual

physical harm suffered by the officers. Both arguments generally overlook the plain

language of R.C. 2903.13(A), which provides that “[n]o person shall knowingly

cause or attempt to cause physical harm to another.” (Emphasis added.)

The State did not need to prove that the officers were actually harmed,

only that Wacasey attempted to cause physical harm. See In re G.K., 2022-Ohio-

2124, ¶ 19 (5th Dist.). Wacasey, however, does not present any arguments

challenging whether her conduct constituted an attempt to cause physical harm. See

State v. Quarterman, 2014-Ohio-4034, ¶ 19, citing State v. Bodyke, 2010-Ohio-

2424, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part); App.R.

16(A)(7). Because actual harm is but one part of the harm element of R.C.

2903.13(A), we need not focus on whether any officer was actually harmed, only

whether Wacasey’s actions constituted an attempt to cause physical harm, which is

a broadly defined term. Further, “knowingly” is not defined as an intentional or purposeful action. “[A] person acts knowingly, regardless of purpose” and therefore

regardless of intent, “when the person is aware that [their] 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.”

(Emphasis added.) R.C. 2901.22(B).

As a result of that plain and unambiguous language of the statute, it

has been concluded that “assault does not require that a defendant intend to cause

physical harm, but ‘only requires that the defendant acted with awareness that the

conduct probably will cause such harm.’” State v. Pierce, 2023-Ohio-528, ¶ 24 (8th

Dist.), quoting State v. Lucas, 2021-Ohio-2721, ¶ 21 (11th Dist.), State v. Skjold,

2004-Ohio-5311, ¶ 24 (11th Dist.), and State v. Lloyd, 2021-Ohio-1808, ¶ 51 (8th

Dist.). From that starting point, it has long been held that potential or actual harm

caused to officers by a defendant “‘flailing’ to evade arrest is sufficient to support a

conviction for knowingly causing harm or attempting to cause harm.” Id. at ¶ 26,

citing State v. Jones, 2003-Ohio-3004, ¶ 57 (8th Dist.) (“[B]y refusing to comply

with police orders and submit to their authority when he was placed in the cruiser,

the appellant possessed the requisite knowledge that his conduct, as demonstrated

by his resistance, kicking, head butting, shoulder butting and flailing about, would

probably cause a certain result.”); see also In re M.H., 2021-Ohio-1041, ¶ 45 (1st

Dist.); State v. Munoz, 2013-Ohio-4987, ¶ 12 (10th Dist.) (“[w]hen flailing one’s

arms while in close proximity to another, it is probable that one will strike the other”

and cause injury), citing State v. Trikilis, 2005-Ohio-4266 (9th Dist.); State v. Standifer, 2012-Ohio-3132 (12th Dist.) (concluding that the State only had to

“establish that appellant was aware that ‘flailing’ and kicking her foot backwards

would probably cause” the officer harm, it did not need to prove an intentional act).

The act of intentionally “flailing” one’s limbs in close proximity to

officers attempting to effectuate a lawful arrest is a knowing act. Standifer at ¶ 25,

citing State v. Nutekpor, 2006-Ohio-4641, ¶ 15 (6th Dist.), citing State v. Edwards,

83 Ohio App.3d 357, 361 (10th Dist. 1992). Common sense dictates that

intentionally swinging arms or kicking feet when others are in or near the path of

the flailing limb probably will result in physical harm to the other person. It is no

different than intentionally discharging a firearm with no intent to actually harm

anyone. Regardless of the shooter’s subjective intent, under the letter of the law, the

shooter committed the act knowingly. See State v. Wilson, 2024-Ohio-776, ¶ 24

(string citing cases establishing that “[i]ntentionally shooting toward or in the

vicinity of another person when there is a risk of injury satisfies the ‘knowingly’

element of felonious assault”).

Wacasey argues that although she was intentionally resisting arrest,

her “physical transgressions” against the officers were not knowingly committed.

She claims that her intentional “flailing about” was “part and parcel” of that

resistance and nothing more, citing State v. Santiago-Dennis, 2014-Ohio-4204,

¶ 27 (8th Dist.), and State v. Curlee-Jones, 2013-Ohio-1175 (8th Dist.). Wacasey,

however, makes no attempt to distinguish Jones, 2003-Ohio-3004, or Pierce, 2023-

Ohio-528. There is no dispute that she intentionally kicked or flailed her legs when the officers were in close proximity to effectuate the arrest or intentionally bit one of

the officers during the arrest. That is dispositive for the purposes of the sufficiency

analysis. But nevertheless, both Santiago-Dennis and Curlee-Jones are

distinguishable based on the disconnect between those panels’ stated rationales and

the statutory language codified in R.C. 2903.13(A).

Santiago-Dennis relies on the improper mens rea in reversing a

conviction for assault committed against a police officer under R.C. 2903.13(A). In

that case, the defendant was acting erratically at a bus stop, kicking and punching a

street sign, yelling “fight club” with several other riders present. Id. at ¶ 4. An officer

approached the defendant and obtained his identification. Id. at ¶ 5. When

returning the license, the defendant made a gesture consistent with potentially

drawing a weapon from his pocket. Id. at ¶ 6. Two officers went to secure the

defendant who began “flailing” about with “closed fists” and striking the officers

several times. Id. at ¶ 7. One of the officers had his finger dislocated in the struggle.

Id. at ¶ 8.

In vacating the conviction for assault committed against a police

officer, the panel concluded that there was no testimony that the defendant’s action

“was deliberate or purposeful” or that the defendant’s “flailing of the hands was a

purposeful attempt to strike” the officers, and therefore, the injuries caused to the

officers were “merely incidental to his attempt to resist being arrested.” Id. at ¶ 25.

Thus, and despite citing R.C. 2903.13(A) and the “knowingly caused or attempted to

cause” language, the panel substituted the mens rea of knowingly with a purposeful or deliberate standard in reversing the conviction. Id. at ¶ 23. We cannot rely on

that panel’s conclusion without ignoring the elements of assault under R.C.

2903.13(A). That case must be construed as providing limited precedential value in

light of the conflict with the statutory language.

Curlee-Jones follows a similar path. There, the defendant actively

resisted an arrest by intentionally flailing or kicking at the arresting officers after she

was arrested for dragging a police officer with her car after he attempted to lean into

the car to secure something from a passenger. Id. at ¶ 6. In concluding that there

was insufficient evidence sustaining the assault conviction under R.C. 2903.13(A),

the panel concluded that there was “no proof of actual physical harm sufficient to

establish an assault.” (Emphasis added.) Id. at ¶ 13. This conclusion also

disregarded the language of R.C. 2903.13(A) that criminalizes the act of causing or

attempting to cause any physical harm. It is hard to imagine that dragging a person

hanging outside a car would not suffice. Regardless, actual harm is not a

prerequisite as Curlee-Jones indicated. The panel’s alternative conclusion — that

“there was no proof that Curlee-Jones acted knowingly to cause physical harm to the

officers” because the “contact she made with the officers was part and parcel of that

resistance” — conflicted with established precedent.

Before Curlee-Jones, a panel from this district reached the opposite

conclusion. See Jones, 2003-Ohio-3004. In Jones, the conviction for assault

committed against a police officer under R.C. 2903.13(A) stemmed from the

defendant “kicking and pushing at” the police officer during a lawful arrest and causing the door of the police car to slam on one of the officer’s hands, all part of the

defendant’s active resistance to the arrest. Id. at ¶ 10. The defendant argued that

the State “did not prove that he possessed the mens rea of ‘knowingly’ to commit

this crime of assault.” He argued that the crime of assault requires proof of an intent

or purposeful act with the knowledge that the officer would be injured. Id. at ¶ 56.

The panel rejected that argument, expressly concluding that by refusing to comply

with police orders and submit to their lawful authority, the State demonstrated the

defendant’s knowledge that his conduct, kicking, head butting, shoulder butting,

and flailing about, could probably cause injuries to the arresting officers sufficient

for the purposes of R.C. 2903.13(A). Id. at ¶ 57.

We cannot rely on either of the conclusions reached by the panel in

Curlee-Jones. One conflicts with the unambiguous language of R.C. 2903.13(A) in

failing to address the “attempt” aspect of the statute, and the other cannot be

reconciled with Jones. See also Pierce, 2023-Ohio-528, at ¶ 24.

In this case, the State presented evidence that Wacasey intentionally

kicked at and bit at least one of the officers in her attempt to resist the otherwise

lawful arrest. The act of biting the officer is sufficient to demonstrate a knowing

attempt to cause physical harm. That no harm was actually caused because of the

officer’s protective vest is immaterial. And importantly, R.C. 2901.01(A)(3) defines

the phrase “[p]hysical harm to persons” as “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” An attempt to bite an arresting

officer alone satisfies the elements of assault, demonstrating an attempt to cause physical harm. See State v. Workman, 2009-Ohio-2995, ¶ 11 (9th Dist.) (testimony

demonstrating that the defendant bit the arresting officers sufficient to sustain the

conviction for assault under R.C. 2903.13(A)).

Beyond that, her actions in kicking at the officers were demonstrated

to be knowingly done. Wacasey admits she intentionally flailed about, or kicked her

legs, to actively resist the lawful arrest. In addition, several times throughout the

encounter Wacasey was told by officers to stop kicking them. That demonstrates

knowledge on her part that her conduct could cause injury to the officers who were

in close proximity to her legs and arms in the attempt to secure the handcuffs.

Whether one believes that the officer was actually injured by the kick to the groin, at

the least, it is reasonable to conclude that Wacasey knowingly attempted to cause

physical harm by attempting to bite and kick at the officers. See, e.g., State v.

Williams, 2023-Ohio-3246, ¶ 51 (8th Dist.) (evidence demonstrating that defendant

actively resisted an arrest and then bit the officer sufficient to sustain assault

conviction as committed against a police officer). The first two assignments of error

are overruled.

In the final assignment of error, Wacasey claims her conviction is

against the weight of the evidence based on some inconsistencies between the

officers’ trial testimony and the unclear body-camera footage.

When evaluating a claim that a verdict is against the manifest weight

of the evidence, “we review 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 [trier of fact] clearly lost its way and created such a

manifest miscarriage of justice that we must reverse the conviction and order a new

trial.” State v. Wilks, 2018-Ohio-1562, ¶ 168, citing State v. Thompkins, 78 Ohio

St.3d 380, 387 (1997). Reversing a conviction based upon the weight of the evidence

should occur “‘only in the exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist. 1983).

Although Wacasey challenges the credibility of the officers’ testimony

and the evidence that was provided, this is not the exceptional case in which the

evidence weighs heavily against the conviction. Wacasey’s focus is on the evidence

(a) pertaining to when the officer first felt pain in his groin from being kicked; (b)

that the officers differently described how she fell to the ground during the arrest

(went limp, fell, or tensed up); or (c) that the body-camera recordings were missing

information because the cameras fell off the officers during their struggle to place

Wacasey in handcuffs. None of those discrepancies rise to the level of demonstrating

a manifest miscarriage of justice.

Because the evidence demonstrates that Wacasey bit and kicked at

the officers, there is credible evidence that she, at the least, attempted to cause

physical harm to the officers who were effectuating a lawful arrest. Wacasey has not

generally contested the gravamen of the underlying facts. Her main focus is on her

subjective intent and minor differences in how the events were described. The final assignment of error is overruled. This is not the exceptional case warranting

appellate intervention.

Wacasey’s conviction for assault is affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. Case remanded to the

trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____________________ SEAN C. GALLAGHER, JUDGE

MICHAEL JOHN RYAN, P.J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION), KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY

MICHAEL JOHN RYAN, P.J., CONCURRING IN JUDGMENT ONLY:

Respectfully, I concur in judgment only. I believe that the evidence is

sufficient to sustain the assault on a police officer conviction only as it relates to

Wacasey’s attempt to bite one of the officers; I agree with the majority that Wacasey

acted knowingly with that conduct. I would not find that Wacasey acted knowingly

by kicking while the police were attempting to handcuff her; rather, I believe that

conduct was part and parcel of Wacasey’s resisting arrest. Therefore, I would follow this court’s decisions in State v. Santiago-Dennis, 2014-Ohio-4204 (8th Dist.), and

State v. Curlee-Jones, 2013-Ohio-1175 (8th Dist.).

I do agree with the majority that, because of Wacasey’s trial and

appellate strategy, the lawfulness of the initial stop, the detention, and the arrest for

Wacasey’s failure to identify herself are not at issue in this appeal.

For the reason stated herein, I respectfully concur in judgment only.