COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59794 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DAVID KENNEDY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-244856 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. RICHARD MESSERMAN, ESQ. Cuyahoga County Prosecutor 1750 Standard Building RICHARD NEFF, ESQ. Cleveland, Ohio 44113-1747 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: I. Appellant, David Kennedy, was indicted by the Cuyahoga County Grand Jury on October 25, 1989 in a five-count indictment. Appellant was indicted on counts one through three for felonious assault with peace officer specifications, in violation of R.C. 2903.11 and R.C. 2935.01 respectively. Appellant was indicted on count four for robbery, in violation of R.C. 2911.02, and count five for resisting arrest, in violation of R.C. 2921.33. On March 9, 1990, appellant was found guilty by the jury on counts one and two, felonious assault against officers Shoulders and Chismar, without the peace officer specifications. He was found not guilty on counts three and four. Appellant was found guilty on count five. On March 30, 1990, appellant was sentenced to a minimum term of six years and a maximum term of fifteen years in jail on counts one and two. On count five, appellant was sentenced to three months in jail. Appellant's sentence was to run concurrently and he was ordered to pay costs. The trial court suspended appellant's sentence and placed him on four years probation. He was ordered to serve an additional six months in the work release program. Appellant appeals as of right and for the reasons that follow, we affirm. II. Richard Cerny, a patrolman with the Cleveland Police Department, testified that on September 29, 1989, he stopped at a - 2 - Gastown gas station located at West 50th Street and Memphis Avenue in Cleveland, Ohio, on his way to work, at approximately 9:45 p.m. He was unable to exit the gas station after filling up his car because another car was parked in front of his vehicle. When the car failed to move, Officer Cerny blew his horn and attempted to get around the car. The car in front of Officer Cerny's vehicle was driven by a woman later identified as Terry Core. Officer Cerny testified that as he attempted to get around the other car, Anthony Amoroso and another male got out of the car and kicked the side of his vehicle. Officer Cerny exited his vehicle and words were exchanged between him and the two males. Officer Cerny testified that when he identified himself as a police officer, Mr. Amoroso replied that he did not care, and a physical altercation ensued. The altercation between Officer Cerny and Mr. Amoroso was being observed by two undercover police officers, Shoulders and Chismar, who were approximately 170 feet away from the gas station. Officers Chismar and Shoulders were on an undercover surveillance assignment of the gas station due to reports that drugs were sold from the station. Officer Chismar testified that he observed one car stop in the driveway for approximately one to two minutes. At the same time, he saw another car attempting to exit and then saw three or four males kick the second car. Officer Chismar testified that he believed that appellant, David Kennedy, exited the same - 3 - vehicle as Mr. Amoroso. Officers Shoulders and Chismar drove into the gas station in an attempt to break up a fight that ensued between the occupants of the two cars. Both officers testified that they were dressed in jeans and jackets and were not in police uniforms. They did not know at the time that Officer Cerny was a police officer. Officers Shoulders and Chismar testified that they identified themselves as police officers and flashed their badges. Officer Cerny was dressed in blue pants and a light blue tee shirt. Officer Cerny testified that Mr. Kennedy "booted him a few times in the back" while he and Officer Shoulders were wrestling with Mr. Amoroso. Officer Chismar testified that he was thrown to the ground but was unable to identify who was responsible. He stated that while he was on the ground with Mr. Amoroso, he was kicked in the back and shoulder by Mr. Kennedy. Officer Cerny sustained an injury to his wrists. He was not sure whether the injury to his wrist resulted from a fall or someone kicking him. Officer Shoulders also sustained injuries to his right wrist, right thumb and right index finger. He stated that Mr. Kennedy did not hit his finger. Scott Rossol testified that he was on his way to a Taco Bell Restaurant on Memphis Avenue in Cleveland, Ohio, when he noticed two "gentlemen" trying to subdue another person by the Gastown gas station. He saw handcuffs, holster with a gun and a walkie- talkie. He stopped his car, got out of his car and proceeded towards the gas station. Mr. Rossol testified that he heard the - 4 - officer "yelling at the people that they were police officers." He heard other people who were standing around saying "fuck you, you know, you are no cops." "They were screaming police brutality, I can't believe you are cops." Mr. Rossol testified that he observed Mr. Kennedy several times kick and punch the officers. He testified that the officers were unable to respond to Mr. Kennedy because they were "holding onto the other male, trying to get the handcuffs on him". Deborah Mays testified that she works at the Gastown gas station as an attendant. She was an eyewitness to the altercation in question. She testified that there was a lot of confusion and she did not see everything that went on that night. However, she saw Mr. Kennedy shove one of the officers and she heard the officers yell that they were police officers. Patrolman Alex Skoropys testified that he was the first officer to arrive at the scene after a police radio broadcast. He came to the gas station as a result of a call for help from a vice unit. Upon arriving at the scene, Officer Skoropys observed policemen struggling with a male on the ground. As he exited his car, he noticed a male being kicked "in the back and leg area of the rump." Officer Skoropys chased the man who refused to stop after he was ordered to halt. He yelled to the male that he was a police officer. The male stopped, changed directions and continued to run. He got away and came back to the scene. Officer Skoropys chased after him for the second time and finally - 5 - apprehended him after he was tripped by another male who was pumping gas in the station. Anthony Amoroso testified that Mr. Kennedy was never with him on the night in question. He testified that Officer Cerny instigated the argument and threw him down and started kicking him in the head while they were scuffling. Scott Rossol testified that Officer Cerny got out of his car and "pushed Tony around". He further stated that two other "guys" joined in the assault on Mr. Amoroso at which time he and Mr. Kennedy tried to pull the men off Mr. Amoroso. Terry Core testified that she was the driver of the car from which Mr. Amoroso exited. She testified that she had not met Mr. Kennedy prior to the day in question. She stated that it was Officer Cerny who initiated the altercation at the gas station. David Kennedy testified on his own behalf. He stated that he and his friends stopped for gas at the Gastown gas station on their way to dinner. He saw "Amo" being beaten by three men at the gas station. He had seen "Amo" at school. They were not really friends. He only involved himself in the altercation because "Amo" was really getting beat by three guys". He got between them to stop the fight and was beaten in the process. He testified that none of the officers identified themselves as police officers or showed their badges. Joe Haab testified that Mr. Kennedy was with him in the car and had just finished pumping gas and was exiting the gas station - 6 - when the altercation began. He testified that Officer Cerny started the fight. He did not see Mr. Kennedy throw a punch. He saw Kennedy pull out of the crowd with a police radio in his hand. He saw Kennedy hand the radio to someone in the audience. He saw Mr. Kennedy chased by a uniformed officer who tackled him and threw him to the ground. III. Appellant's propositions of law are as follows: "I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY PURSUANT TO OHIO JURY INSTRUCTIONS SECTION 411.31(4) AND (5) ON THE ISSUES OF DEFENSE OF ANOTHER AND HONEST MISTAKE. "II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO GIVE THE DEFENDANT'S REQUESTED JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF ASSAULT. "III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY PURSUANT TO OHIO JURY INSTRUCTIONS SECTION 409.03 ON THE ISSUE OF MISTAKE OF FACT. "IV. APPELLANT'S CONVICTION ON THE CHARGES OF FELONIOUS ASSAULT PURSUANT TO OHIO REVISED CODE SECTION 2903.11(A)(1) WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. "V. APPELLANT'S CONVICTION ON THE CHARGE OF RESISTING ARREST PURSUANT TO OHIO REVISED CODE SECTION 2921.33 WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE." Appellant, in his first proposition of law, argues that the trial court erred by failing to instruct the jury on the issue of defense of others. Appellant contends that his argument is bolstered by the fact that the jury found that he did not know that Officers Chismar and Shoulders were police officers at the - 7 - time of the incident. Appellant further argues that the jury might have found that Officers Chismar and Shoulders were not engaged in a lawful arrest and were in the wrong, had the trial court given the instruction on self-defense. Ohio recognizes a claim of self-defense in a criminal action when affirmatively proved by the accused. State v. Martin (1986), 21 Ohio St. 3d 91; Martin v. Ohio (1987), 480 U.S. 228, affirming State v. Martin, supra; State v. Melchoir (1978), 56 Ohio St. 2d 15. In State v. Robbins (1979), 58 Ohio St. 2d 74, paragraph two of the syllabus, the Ohio Supreme Court held that in order to establish self-defense, the defendant must show that: "(1) The slayer was not at fault in creating the situation giving rise to the affray; "(2) The slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and "(3) The slayer must not have violated any duty to retreat or avoid the danger." We recognize that unlike Robbins, this is not a murder case, however, the burden of proof is the same for any claim of self- defense. The defendant has the burden of proving by the preponderance of the evidence the issue of self-defense. State v. Jackson (1986), 22 Ohio St. 3d 281. Appellant's claim is predicated on his belief that Mr. Amoroso was being beaten by the police and that he had a right to aid him. The Ohio Supreme Court in State v. Wenger (1979), 58 Ohio St. 2d 236, decided for the first time the rule of law in Ohio regarding the subject of defense of third persons who do not - 8 - stand in a special relationship to the intervenor. The court acknowledged the duty of a blood relative or any person who stands in a special relationship to the party being assisted to intervene in a struggle, if the party being arrested is not at fault. Sharp v. State (1850), 19 Ohio St. 379; State v. Sheets (1926), 115 Ohio St. 308. However, the Wenger court declined to grant more right of intervention to a stranger than those accorded blood relatives and concluded hence: "One who intervenes on behalf of a stranger should not stand in better stead than one who intervenes on behalf of a blood relative. The recurring theme is that one who intervenes to help a stranger stands in the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the intervenor is not justified in his use of force and is guilty of an assault." We hold, therefore, that in order for a trial court to instruct the jury on the issue of defense of others, the party seeking the defense must demonstrate by the preponderance of the evidence that the party defended is himself not at fault. Mere assertion that intervention was necessary because of one's belief that another is being attacked is insufficient to warrant a jury instruction on the issue of defense of others, even when the belief is well grounded. In the within case, appellant is entitled to a jury instruction on the issue of self-defense or defense of others if he demonstrates by the preponderance of the evidence that Mr. Amoroso (whom he intervened on his behalf) was not at fault. Appellant has failed to present evidence establishing that Mr. Amoroso had the right to defend himself. Appellant's - 9 - conviction was not based on his defense of Amoroso against officer Cerny but on his assault on Officer Shoulders and Chismar who came to break up a fight and arrest those involved. Therefore, it is irrelevant that Officer Cerny threw the first punch. Appellant must demonstrate that Mr. Amoroso has a defense not against Officer Cerny but against Officers Shoulders and Chismar. See Wenger, supra; see also People v. Young (1962), 183 N.E.2d 319; Purdy v. United States (D.C. App. 1965), 210 A.2d 1. Appellant's claim, that "they were kicking Tony" was insufficient to conclude that Tony had the right of self-defense, in light of testimony of other witnesses and the police officers, who testified that the officers announced themselves and did not use excessive force on Mr. Amoroso. The instruction on self-defense is not predicated on a mistaken belief that one who is being rescued could have been without fault. The party seeking instruction on self-defense must demonstrate that the person he was aiding was himself not at fault. Appellant in the within case was not attempting to stop a fight, he joined the fight. He is, therefore, required to demonstrate that Mr. Amoroso had a defense against the police officers in order to be entitled to an instruction on self-defense or defense of others. One who goes to defend another takes the person he is defending as he sees him and no special recognition is given to an aider whose belief is a mistake. See Wenger, supra. Appellant's first proposition of law is overruled. - 10 - IV. Appellant, in his second proposition of law, argues that the trial court erred by failing to instruct the jury on a lesser included offense of assault. Appellant's argument has no merit. R.C. 2903.11 states as follows: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. "(B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree." R.C. 2901.01(E) defines serious physical harm in pertinent part as follows: "(3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; "(4) Any physical harm which involves some permanent disfigurement or which involves some temporary, serious disfigurement; "(5) Any physical harm which involves acute pain of such duration as to result in substantial suffering or which involves any degree of prolonged or intractable pain." In State v. Daniels (1984), 14 Ohio App. 3d, the court held that: "Where the record contains substantial credible evidence of probative value from which the trial court could reasonably conclude that the trier of fact could not possibly find the defendant not guilty of one of the greater offenses and guilty of the lesser included - 11 - offense, it is not error for the trial court to instruct the jury on the offense of felonious assault and its lesser included offense of aggravated assault, while refusing to give an instruction on the offense of assault." Thus, we look to the record to determine if there was sufficient credible evidence which would preclude appellant's conviction of felonious assault, thereby requiring his conviction for assault. Our review of the record shows that no such evidence exists. Appellant admitted that he grabbed one of the officers, throwing him to the ground. Other witnesses testified that appellant punched the officers. Both officers testified that they missed a combined total of 94 work days as a result of their injuries. Officer Chismar underwent surgery on his thumb. Officer Shoulders testified that he was still seeing a specialist at the time of the trial. There is sufficient evidence in the record to enable the trial court to find that appellant inflicted serious physical harm on the officers. Therefore, the trial court's refusal to instruct the jury on a lesser included offense of assault was proper. Appellant further argues that since there was no evidence to show that it was his direct hit on the officers that caused their injuries, he could not be found guilty of felonious assault. Appellant attempted to bolster his argument by stating that "Shoulders specifically testified that the appellant never hit him in the hand or finger (Tr. 271) and Chismar testified that he could have injured his right wrist, thumb and index finger at any time during the altercation (Tr. 142)." - 12 - Appellant's understanding of the law of assault is faulty. It is not necessary that defendant's direct blow cause the injury in question. Felonious assault attaches where a party substantially contributes to another's injury even when the injury did not result from a direct blow by the defendant. In the within case, even if the injury was caused directly by Mr. Amoroso's blows and not appellant's, he could still be convicted of felonious assault because of his substantial involvement in the altercation that caused the injury. Appellant seems to forget that but for the altercation and his involvement in it, no injury would have resulted. Appellant's second proposition of law is overruled. V. Appellant, in his third proposition of law, argues that the trial court erred by failing to instruct the jury on mistake of fact. As we stated in appellant's first proposition of law, supra, mistake of fact is not an affirmative defense of the crime of felonious assault, knowledge is. R.C. 2901.22(B) states that "a person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will be of a certain nature". By the authority of the Wenger court, supra, as discussed in appellant's first proposition of law, appellant's third proposition of law is overruled. VI. Appellant, in his fourth proposition of law, argues that his conviction for felonious assault was against the manifest weight - 13 - of the evidence. Appellant argues that since the officers could not affirmatively state that their injuries were as a result of a direct hit by him, his conviction should be reversed. A reviewing court will not reverse a conviction where there is substantial evidence upon which the trier of fact could conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. Further, issues of credibility and the weight to be given evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In State v. Martin (1983), 20 Ohio App. 3d 172, the court, in reviewing an error on manifest weight of the evidence, held that: "*** The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. ***" In the within case, the record does not show a manifest miscarriage of justice or that the jury clearly lost its way. Appellant admitted his involvement in the altercation including throwing an officer to the ground. There is no evidence that the officers received the injuries prior to the altercation. Having found that the evidence was sufficient to convict appellant of felonious assault, appellant's fourth proposition of law is overruled. - 14 - VII. Appellant, in his fifth proposition of law, argues that his conviction of resisting arrest was against the manifest weight of the evidence. Appellant proposed two arguments in support of his contention. Firstly, appellant argues that since he was acquitted by the jury of knowingly assaulting police officers, he cannot be held to have interfered with the arrest of Mr. Amoroso. Secondly, appellant argues that since the officer did not put him under arrest, he could not be guilty of resisting arrest. He concluded by arguing that he was entitled to resist his arrest because the officers used excessive and unnecessary force. Appellant's arguments are unpersuasive. Firstly, appellant's acquittal for knowingly assaulting police officers is a separate charge from resisting arrest. R.C. 2921.33 states as follows: "(A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another. "(B) Whoever violates this section is guilty of resisting arrest, a misdemeanor of the second degree." Appellant may not have known at the time he joined the altercation that the officers were actually police officers, however, his continuous interference with the lawful arrest of Mr. Amoroso was sufficient to convict him of resisting arrest pursuant to R.C. 2921.33, as the record indicates that he knew or should have known that they were police officers. Mr. Rosso testified that in an attempt to free Mr. Amoroso, appellant kicked and punched the officers, who "yelled at the people that - 15 - they were police officers". Mr. Rosso further testified that other people standing around were saying "fuck you, you know, you are no cops. They were screaming police brutality, I can't believe you are cops." Mr. Rosso testified that the officers were unable to respond to Mr. Kennedy because they were "holding onto the other male, trying to get the handcuffs on him". Mr. Haab, who testified that he was with Mr. Kennedy in the car, stated that he saw Kennedy pull out of the crowd with a police radio in his hand. From all the facts and circumstances, Mr. Kennedy must either believe that the individuals were police officers or actors. The jury's conclusion that he resisted arrest is supported by the evidence and cannot be disturbed. Secondly, Officer Skoropys testified that he identified himself to appellant as a police officer and ordered him to halt. Appellant admitted running away from the officer and was subsequently tripped by another individual in the gas station. The officer testified that he had difficulty holding appellant on the ground and needed another officer's help to subdue him. The incident with Officer Skoropys, which was independent of the Amoroso incident, was equally sufficient to convict appellant of resisting arrest. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. We will make every reasonable - 16 - presumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Furthermore, the weight to be given the evidence and witness credibility are primarily for the factfinder. Shore Shirley & Co. v. Kelly (1988), 40 Ohio App. 3d 10. There is sufficient evidence in the record to convict appellant of resisting arrest. Accordingly, appellant's fifth proposition of law is also overruled. Judgment affirmed. - 17 - It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. 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. J.F. CORRIGAN, P.J., and BLACKMON, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .