State v. Wallace

2024 Ohio 5084

Opinion

[Cite as State v. Wallace, 2024-Ohio-5084.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. Nos. 30655 30656 Appellee

v. APPEAL FROM JUDGMENT JOSEPH WALLACE ENTERED IN THE STOW MUNICIPAL COURT Appellant COUNTY OF SUMMIT, OHIO CASE Nos. 2022CRB02075 2022TRD07083

DECISION AND JOURNAL ENTRY

Dated: October 23, 2024

STEVENSON, Presiding Judge.

{¶1} Defendant-Appellant Joseph Wallace appeals the judgments of the Stow Municipal

Court that found him guilty of aggravated menacing, resisting arrest, and failing to stop for a school

bus signal, claiming the convictions are against the weight of the evidence. This Court affirms.

I.

{¶2} Mr. Wallace was charged with one count of aggravated menacing in violation of

R.C. 2903.21(A), a first-degree misdemeanor; one count of resisting arrest in violation of R.C.

2921.33(A), a second-degree misdemeanor; and failing to stop for a school bus signal in violation

of R.C. 4511.75(A), an unclassified misdemeanor. The matter proceeded to a bench trial. The State

presented the testimony of two City of Cuyahoga Falls police officers as well as body camera

footage from one of the officers. Mr. Wallace presented the testimony of one witness. The court

found Mr. Wallace guilty on all three counts and sentenced him. 2

{¶3} Mr. Wallace timely filed two separate appeals that were consolidated by this Court.

He asserts one assignment of error for our review.

II.

ASSIGNMENT OF ERROR I

THE [TRIAL COURT’S] VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶4} When considering a challenge to the manifest weight of the evidence, this Court is

required to consider 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 the conviction

must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.

1986). “A reversal on this basis is reserved for the exceptional case in which the evidence weighs

heavily against the conviction.” State v. Croghan, 2019-Ohio-3970, ¶ 26 (9th Dist.).

{¶5} It is well-established that “a trier of fact enjoys the best position to assess the

credibility of witnesses.” State v. Tyus, 2020-Ohio-4455, ¶ 57 (9th Dist.). See also Prince v.

Jordan, 2004-Ohio-7184, ¶ 35 (9th Dist.) (“the jury is free to believe all, part, or none of the

testimony of each witness.”). This Court “‘will not overturn a conviction as being against the

manifest weight of the evidence simply because the trier of fact chose to believe the State's version

of events over another version.’” State v. Tolliver, 2017-Ohio-4214, ¶ 15 (9th Dist.), quoting State

v. Barger, 2016-Ohio-443, ¶ 29 (9th Dist.).

{¶6} The event giving rise to this appeal was a traffic stop of Mr. Wallace’s vehicle on

August 26, 2022. The testimony of the two officers the State presented set forth the following

facts. Officer Trevon Burgins (“Burgins”) of the Cuyahoga Falls Police Department was on duty

as a uniformed police officer operating a marked patrol car. Burgins was driving westbound on 3

West Portage Trail behind a school bus. The bus came to a stop and activated its flashing lights

and stop sign. Burgins observed a black sedan travelling eastbound in a section of the road where

there are only two lanes drive past the school bus while it was stopped. Burgins turned into the

eastbound lane and initiated a traffic stop of the sedan.

{¶7} When Burgins approached the sedan, he recognized Mr. Wallace and his passenger

due to previous interactions with them in his duties as a police officer. Mr. Wallace volunteered

that he had a suspended driver’s license. When Burgins returned to his cruiser to run Mr. Wallace’s

license through his computer, he discovered that Mr. Wallace had a warrant from Stow Municipal

Court for failure to appear on a disorderly conduct charge. Before informing Mr. Wallace that he

would be taken into custody on the warrant, Burgins called for back-up because his previous

interactions with Mr. Wallace had been “explosive, and turbulent, and involving weapons[.]”

{¶8} Officer Daniel Zacharias (“Zacharias”) arrived on the scene. Burgins informed Mr.

Wallace of the warrant and bond amount and permitted him to use his cell phone to make

arrangements to post bond. While Mr. Wallace was using his phone, he became increasingly

angry, argumentative, and began yelling and using expletives to refer to the officers.

{¶9} Soon thereafter, Officer Joel Moledor (“Moledor”) arrived on the scene, which

caused Mr. Wallace to become even more agitated. Mr. Wallace recognized Moledor, stating “oh,

here’s this f *** boy.” Based on Mr. Wallace’s heightened agitation, Burgins told Mr. Wallace to

put his phone down and his hands behind his back as he was now under arrest and that the bond

would have to be figured out at the police station. Mr. Wallace refused, insisting that he could not

arrange for bond if he did not have access to his phone. Mr. Wallace then continued to utter strings

of expletives and racial epithets towards the officers, yelling at them that they could not touch him 4

because he had a concussion. Mr. Wallace refused to put his hands behind his back and continued

yelling expletives in an aggressive manner.

{¶10} Burgins pulled out his Taser in an effort to de-escalate Mr. Wallace. Mr. Wallace

moved his hands in front of his body but continued to berate Burgins with expletives and racial

slurs, gesturing with his hands and flexing his arms. Based on his training and experience, Burgins

believed that this behavior signaled that Mr. Wallace was about to attack him. When Zacharias

and Moledor attempted to place Mr. Wallace’s arms behind his back to handcuff him, he insisted

on being handcuffed with his hands in front. The policy of the Cuyahoga Falls Police is to handcuff

behind the back barring injury or pregnancy.

{¶11} Mr. Wallace continued to yank and attempt to pull his arms away from Zacharias

and Moledor. Burgins deployed his Taser two times before Mr. Wallace was finally subdued,

placed on the ground, and eventually handcuffed. While Mr. Wallace was handcuffed, he

continued to scream profanities at the officers, telling them he would beat them up and that he

knew members of the Mafia. While being escorted to a police cruiser, Mr. Wallace told Moledor,

“I’m beating your f *** ass when I see you in the streets, bitch.” After being medically cleared by

the Cuyahoga Falls Fire Department, Mr. Wallace was taken to the police station and charged.

{¶12} Mr. Wallace was convicted of aggravated menacing in violation of R.C. 2903.21(A)

which provides as follows:

No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person[.] . . .

{¶13} Mr. Wallace argues that his statement to Moledor that he would “beat[] his f ***

ass. . .” was nothing more than angry words, and there was no real possibility that he was in any

position to cause anyone serious physical harm because he was handcuffed and on the ground.

However, Mr. Wallace’s own belief that his statements were false and did not pose a credible threat 5

is not a factor for aggravated menacing under R.C. 2903.21(A). The terms “knowingly cause

another to believe that the offender will cause serious physical harm” in R.C. 2903.21(A) mean

that the “‘subjective belief of the victim is necessary to establish the crime of aggravated

menacing.’” (Emphasis added.) State v. Knoble, 2008-Ohio-5004, ¶ 21 (9th Dist.), quoting In re

Fugate, 2002-Ohio-2771, ¶ 10 (10th Dist.). “[A] person can be convicted of aggravated menacing

even though the person has not made any movement toward carrying out the threat.” State v.

Klempa, 2003-Ohio-3482, ¶ 24 (7th Dist.). Thus, the relevant question is whether Moledor

believed the seriousness of the threats.

{¶14} Moledor testified that he had three previous encounters with Mr. Wallace. One of

those encounters involved Mr. Wallace wielding a knife during a verbal dispute with another

person. The other two incidents involved Mr. Wallace’s altercations with neighbors. Moledor

testified that based on Mr. Wallace’s behavior during those previous incidents, he believed that

the encounter in this matter would also become confrontational.

{¶15} Based on Mr. Wallace’s statement to Moledor, “oh, here’s this f*** boy[,]”

Moledor believed Mr. Wallace would recognize him outside of work. Moledor further testified

that he interpreted Mr. Wallace’s statement “that he knows mafia people” to mean “[Mr. Wallace

is] trying to look at ending my life if he ever caught me . . . .” Because Mr. Wallace knew Moledor

and threatened to assault him when he saw him out in the streets, Mr. Wallace’s statement to

Moledor that “I’m beating your f *** ass when I see you in the streets, bitch” adds further

credibility to Moledor’s subjective belief as to the seriousness of Mr. Wallace’s threat. Burgins

testified that he considered Mr. Wallace’s threat to be credible because he knew Mr. Wallace had

accosted another officer who was off duty at a local Walmart. Moledor testified that he was aware 6

of that incident. Based on the sum total of these interactions with Mr. Wallace, Moledor believed

Mr. Wallace would follow through on his threat if given the opportunity.

{¶16} Based on the foregoing evidence presented to the court that Moledor had a

subjective belief that Mr. Wallace would carry out his threats, we cannot say this is an exceptional

case where the evidence weighs heavily against the conviction for aggravated menacing.

{¶17} Next, Mr. Wallace was convicted of resisting arrest in violation of R.C. 2921.33(A)

which provides that “[n]o person, recklessly or by force, shall resist or interfere with a lawful arrest

of the person or another.” Mr. Wallace argues that he voluntarily offered his hands in front of his

body in preparation to be handcuffed. He maintains that the officers’ subsequent act of forcing his

hands behind his back was the cause of his attempts to break free, not his failure to comply with

the arrest. He further points out that he did not attempt to flee. We disagree with Mr. Wallace.

{¶18} When Mr. Wallace was given permission to use his phone to arrange for bond

money, he immediately began muttering expletives and shouting loudly at the officers. After

several minutes went by, Mr. Wallace was informed that he was under arrest and would be taken

to the police station. The officers present testified that Mr. Wallace had his arms in front of his

body, but at the same time was tensing them, balling his hands into a fist, and rocking back and

forth. Burgins identified these actions as “pre-attack indicators[,]” not as a display of compliance

with being handcuffed. Not until Burgins pointed the Taser at him did Mr. Wallace “place[] one

arm over the other in front of his body as if he was going to comply.” Mr. Wallace admitted that

when Zacharias and Moledor tried to move his arms behind his back, he refused to unlink his hands

and put them behind his back despite the officers’ repeated requests that he do so. Instead, Mr.

Wallace continued to pull and yank his arms away until he was again tased and taken to the ground.

This evidence reflects that Mr. Wallace refused to comply with the officers’ attempts to handcuff 7

him and was using force to “interfere with [his] lawful arrest” in violation of R.C. 2921.33(A).

Therefore, Mr. Wallace’s conviction for resisting arrest is not against the weight of the evidence.

{¶19} This Court has previously held that similar conduct supported a conviction for

resisting arrest. In State v. Mills, 2002-Ohio-7323 (9th Dist.), the defendant approached the officer

with hands balled and clenched at his side and was not responding to the officer’s requests to

cooperate. Id. at ¶ 26. After the officer cuffed the defendant’s left hand, the defendant pulled

away and refused to cooperate. Id. This Court held that the defendant’s conviction for resisting

arrest was not against the manifest weight of the evidence. Id. at ¶ 32. See also State v. Love,

2004-Ohio-1422, ¶ 21 (9th Dist.) (jury could reasonably conclude that “[a]ppellant’s refusal to

place his hands behind his back, ‘aggressive’ stance, and ‘[use of] force to keep [the officers] from

placing his hands behind his back’ satisfied R.C. 2921.33(A).”)

{¶20} Finally, Mr. Wallace was convicted of failure to stop for a stopped school bus in

violation of R.C. 4511.75(A), which provides as follows:

The driver of a vehicle . . . upon meeting or overtaking from either direction any school bus stopped for the purpose of receiving or discharging any school child . . . shall stop at least ten feet from the front or rear of the school bus and shall not proceed until such school bus resumes motion, or until signaled by the school bus driver to proceed.

{¶21} Mr. Wallace argues that the State’s only evidence on this matter was Burgins’

testimony, and there was no video evidence to establish the veracity of his testimony. Although

Burgins testified that there was a dashcam in his vehicle, the video from the dashcam was not

played in court. Mr. Wallace contends that this video evidence would be dispositive regarding his

alleged failure to stop for the school bus, and the State’s failure to produce it renders Burgins’

testimony not credible. We disagree. 8

{¶22} First, Mr. Wallace has not provided any law which places a burden on the State to

corroborate a police officer’s testimony with video footage and we will not judicially craft such a

requirement. In addition, Mr. Wallace’s own witness, the passenger, testified that “[Mr. Wallace]

rolled past the stop sign[,]” which corroborates Burgins’ testimony. Moreover, Burgins’ body

camera footage reflects that when he initially approached the vehicle and apprised Mr. Wallace of

the reason for the traffic stop, Mr. Wallace said, “yeah . . . that’s my bad,” which the court could

infer was an admission by Mr. Wallace that he acted as Burgins alleged and did not stop for the

school bus. Therefore, Mr. Wallace’s own statement and evidence showed that he failed to stop

for the school bus, and he did not offer any opposing evidence on that point. As the evidence

against Mr. Wallace was uncontroverted, there were no evidentiary conflicts for the trial court to

resolve. The weight of the evidence tilted solely in favor of the State and showed without

opposition that Mr. Wallace did not stop for the school bus. Therefore, Mr. Wallace’s conviction

for failure to stop for a school bus in violation of R.C. 4511.75(A) was not against the manifest

weight of the evidence.

{¶23} In summary, the trial court heard the testimony and watched the body camera

footage. Upon our thorough review of the record, we conclude that this is not an exceptional case

in which the evidence weighed heavily against the convictions. See Croghan, 2019-Ohio-3970, at

¶ 26 (9th Dist.). The court, in resolving any conflicts in the evidence, did not clearly lose its way

and create a manifest miscarriage of justice requiring a reversal of Mr. Wallace’s convictions. See

Otten, 33 Ohio App. 3d at 340. Mr. Wallace’s assignment of error is overruled.

III.

{¶24} Accordingly, based on the foregoing, Mr. Wallace’s single assignment of error is

overruled. The judgments of the Stow Municipal Court are affirmed. 9

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Stow Municipal Court,

County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this

journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

SCOT STEVENSON FOR THE COURT

CARR, J. SUTTON, J. CONCUR.

APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

CONNOR P. MCHUGH, Assistant Law Director, for Appellee.