COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69109 and 69110 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAKARTA THOMAS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 18, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Nos. CR-317682 and CR-317574. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Robert T. Glickman, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert R. Clarico, Esq. Assistant Public Defender 100 Lakeside Pace 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Jakarta Thomas, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for the offenses of drug trafficking in violation of R.C. 2925.03 and for three counts of assault against a peace officer in violation of R.C. 2903.13. Defendant-appellant raises two assignments of error for review. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS Jakarta Thomas, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in case no. 317547 and case no. 317682. In case no. 317547, defendant-appellant was charged with two (2) counts of drug trafficking in violation of R.C. 2925.03. Count one alleged defendant-appellant knowingly possessed phencyclidine (PCP) in an amount equal to or over the bulk amount but less than three (3) times the bulk amount. Count two alleged defendant-appellant knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed PCP. Each count carried a violence specification as defendant-appellant had previously been convicted of attempted robbery. In case no. 317682, appellant was charged with three counts of assault in violation of R.C. 2903.13. Each count included three specifications: 1) that the alleged victims were peace officers, 2) that during the commission of a felony, defendant-appellant caused physical harm, and 3) that defendant-appellant had previously been convicted of attempted robbery. -3- Defendant-appellant pled not guilty to all counts at his arraignment. The two cases were consolidated and on April 24, 1995, a jury trial began. The state of Ohio produced six witnesses; four of which were officers of the Cleveland Police department and two who were scientific examiners of the Cleveland Police Department Forensic Laboratory. The officers' testimony established in the early morning hours of October 26, 1994, Sergeant Thomas Acklin witnessed defendant- appellant standing near the Lonnie Burton Recreation Center on 46th Street, Cleveland, Ohio with a small group of males smoking what appeared to be marijuana. The sergeant, who was in full uniform, called for assistance and approached the group of males. The sergeant told defendant-appellant "let me have the joint." Defendant-appellant punched the sergeant in the left side of his face and ran away. Officer Sharp, an officer for the Cuyahoga Metropolitan Housing Authority (CMHA), witnessed the chase and assisted Sergeant Acklin. Officer Sharp eventually tackled defendant-appellant. At approximately the same time, Officers Rossol, Rudin, Qualey and Graziolli of the Cleveland Police Department arrived at the scene. Defendant-appellant was fighting with the officers by kicking and swinging his fists. During the struggle, defendant- appellant kicked Officer Rossol in the shin. Moreover, Officer Qualey suffered a bruised/swollen right hand from being kicked by defendant-appellant. Even though Officer Rudin sprayed defendant- appellant in the face with pepper spray, defendant-appellant -4- continued to struggle. After approximately two and one-half minutes, Officer Graziolli struck defendant-appellant in the legs with his baton. Defendant-appellant fell to the ground and the officers were able to handcuff him. The officers then transported defendant-appellant to Saint Vincent Charity Hospital since: 1) the officers had sprayed defendant-appellant in the face with pepper spray and 2) the officers believed defendant-appellant's "out of control" condition was due to PCP they believed they had smelled on his person. At the hospital, defendant-appellant had to be put in restraints due to his continued violent behavior. It was at this point that a vial containing what was later determined to be PCP was found in defendant-appellant's coat pocket along with a pager and $74.00 in cash. Defendant-appellant did not argue these facts. Rather defendant-appellant argued the evidence establishes defendant- appellant was out of control due to taking PCP and did not "knowingly" cause harm to the officers. Defendant-appellant also argued there was no evidence supporting the fact that defendant- appellant prepared for shipment, shipped, transported, or distributed any controlled substances. Finally, defendant- appellant argued the state failed to meet its burden as it related to the drug possession charge since its witnesses testified the vial contained three different amounts of PCP. Defendant-appellant motioned for acquittal both at the close of the state's case and at the end of the trial. Both motions were -5- denied. On May 4, 1995, the jury returned a verdict of guilty of assaulting the three peace officers (with specifications) and of knowingly possessing PCP in an amount equal to or over the bulk amount but less than three (3) times the bulk amount (with specifications). Defendant-appellant was found not guilty of drug trafficking as charged in count two of the indictment. Jakarta Thomas, defendant-appellant, timely appealed. This court dismissed the appeal for failure to properly file a record. After we granted defendant-appellant's motion to reconsider, the appeal is now properly before this court. II. FIRST ASSIGNMENT OF ERROR Jakarta Thomas, defendant-appellant, states as his first assignment of error: I. MR. THOMAS' DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. A. ISSUE RAISED: WHETHER THE VERDICT WAS SUPPORTED BY SUFFICIENT EVIDENCE. Defendant-appellant argues the trial court erred in denying his motion for acquittal. Specifically, defendant-appellant argues the evidence, even when taken in a light most favorable to the prosecution, establishes defendant-appellant could not control his actions due to the effects of PCP. Therefore, defendant-appellant was not capable of forming the necessary mental state required to support a conviction of assault, i.e., -6- knowingly. For these reasons, defendant-appellant argues the trial court erred in denying his motion for acquittal as it relates to the charges of assault. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL. Under Crim.R. 29, a trial court "shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such -7- evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION FOR ACQUITTAL. Voluntary intoxication is generally not a valid defense to any crime. Long v. State (1923), 109 Ohio St. 77. However, where specific intent is a necessary element of a crime, voluntary intoxication may be considered in determining whether or not the accused was capable of forming the specific intent essential to the charged crime. See State v. Fox (1981), 68 Ohio St.2d 53; State v. Wolons (1989), 44 Ohio St.3d 64. Defendant-appellant was found guilty of three counts of assault in violation of R.C. 2903.13 which reads in pertinent part: (A) No person shall knowingly cause or attempt to cause physical harm to another. * * * R.C. 2901.22(B) defines the culpable mental state of "knowingly" as follows: A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. This court has consistently held that a crime which requires the culpable mental state of "knowingly" is not a specific intent -8- crime and as such, does not lend itself to the defense of voluntary intoxication. Nationwide Mut. Ins. Co. v. Machniak (1991), 74 Ohio App.3d 638; State v. Wilson (May 5, 1994), Cuyahoga App. No. 65442, unreported; State v. Ficker (September 2, 1993), Cuyahoga App. No. 63493, unreported; State v. Crawford, Jr. (March 10, 1983), Cuyahoga App. No. 45180, unreported. Accordingly, defendant-appellant cannot assert voluntary intoxication, or in this case his voluntary submission to the affects of PCP, as a defense to the charges of assault. With regards to the sufficiency of the evidence, the state presented the testimony of Officers Rossol, Acklin and Qualey which established defendant-appellant punched Sergeant Acklin on the left side of his face, kicked Officer Qualey in the hand causing swelling and bruising, and kicked Officer Rossol in the shin. After a review of the unrebutted testimony of these officers, we find there exists sufficient evidence which could convince reasonable minds that defendant-appellant knowingly caused physical harm to these officers. For these reasons, the trial court did not err in denying defendant-appellant's motions for acquittal. D. CONCLUSION. Since voluntary intoxication is not a defense to the crime of assault and since there exists sufficient evidence from which reasonable minds could be convinced of defendant-appellant's -9- guilt beyond a reasonable doubt, defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Jakarta Thomas, defendant-appellant, states as his second assignment of error: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. A. ISSUE RAISED: WHETHER THE GUILTY VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues the guilty verdicts are against the manifest weight of the evidence. Specifically, defendant- appellant argues the two witnesses regarding the amount of PCP contained in the vial contradicted each other. Although Ms. Witt, a scientific examiner for the Cleveland Police Department's Forensic Laboratory, indicated the PCP weighed .71 grams in her written report, she testified that it weighed 20.98 grams. Furthermore, the other scientific examiner, Mr. Sikora, testified the PCP weighed 16.78 grams. Defendant-appellant argues that due to this conflicting evidence it is "far from certain that [defendant-appellant] possessed PCP in an amount greater than bulk" as required by R.C. 2925.03. Moreover, defendant-appellant argues the testimony of the officers established that Officers Rossol and Qualey were injured -10- during a violent scuffle with defendant-appellant and four other police officers. Due to the confusion surrounding this melee, defendant-appellant argues it is unclear whether the injuries suffered by those officers were caused by defendant-appellant or the other officers. Furthermore, defendant-appellant argues the testimony of Officer Rossol that he "maybe" received a minor bruise is insufficient to support a conviction of assault. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT. In Tibbs v. Florida (1982), 457 U.S. 31, the United States Supreme Court recognized the distinction in standards between claims of "insufficiency of evidence" and "manifest weight of the evidence." Unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. See, also, State v. Schaim (1992), 65 Ohio St.3d 51; State v. Wilson (June 9, 1994), Cuyahoga App. No. 64442, 64443, unreported. Upon application of the standards established in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was -11- against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. Moreover, it is important to note the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence, we must accord due deference to those determinations made by the trier of fact. C. DEFENDANT-APPELLANT'S CONVICTION OF POSSESSION OF DRUGS OVER BULK AMOUNT AND OF ASSAULT WERE NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Upon review of the record, we find substantial credible evidence was presented supporting defendant-appellant's conviction of both possession of drugs over bulk amount and assault. Defendant-appellant was convicted of knowingly possessing drugs in an amount over the bulk amount (five grams), but less than three times bulk amount (fifteen grams) in violation of R.C. 2925.03. Ms. Eugenia Witt, who has been employed at the Cleveland Police Department's Forensic Laboratory for approximately ten years, testified the PCP in the vial taken out of defendant- appellant's coat pocket weighed 20.98 grams. The weight was then recorded by Ms. Witt on the identification/evidence bag which the state introduced as an exhibit. Defendant-appellant argues the -12- corresponding laboratory report card, also introduced as an exhibit, reflects that the weight of the PCP weighed .71 grams. However, Ms. Witt testified this was merely a clerical error by whoever was filling out the report card. Ms. Witt then reiterated that the amount of PCP in the vial at issue weighed 20.98 grams. Mr. Charles Sikora, another forensic examiner, was called as a witness. Mr. Sikora testified that on the day of his testimony, he weighed the PCP in the vial and determined that it weighed 16.78 grams. The discrepancy, he testified, was due to evaporation caused by the nature of the solvents added to the PCP. Mr. Sikora testified that the difference between Ms. Witt's conclusions and his were nothing out of the ordinary. Based on the unrebutted testimony of Ms. Witt and Mr. Sikora, we find there existed sufficient credible evidence from which the jury could conclude defendant-appellant knowingly possessed PCP in violation of R.C. 2925.03. Turning to defendant-appellant's conviction of assault against Officers Qualey and Rossol, we find from a review of the record there exists sufficient credible evidence supporting defendant- appellant's conviction of assault as defined in R.C. 2903.13. Officer Qualey testified: Q. Were you able to tell [what he was doing] when you got closer? A. No. I went for the feet. I was trying to control his feet. Q. Were you able to do that? -13- A. No. Q. Why was that? A. At the time he was kicking wildly. I got down on my hands and knees and tried to grab his legs. One of his feet came down and stomped on my hand right in the heel area. Q. Did you suffer any injury? A. Yes. I had a deep bruise which later I had x-rayed. It was a deep bruise. It swelled up, turned blue. Furthermore, Officer Rossol testified that during the scuffle, defendant-appellant kicked him in the shin area, that he might have received a minor bruise and that it hurt at first. Keeping in mind that "physical harm," as used in the R.C. 2903.13, is defined as any injury regardless of its gravity or duration, we find this evidence is sufficient to support defendant-appellant's conviction of assault against both Officers Qualey and Rossol. See R.C. 2901.01(C). D. CONCLUSION. Since there exists sufficient credible evidence supporting both possession of drugs over bulk amount and for assault against Officers Qualey and Rossol, defendant-appellant's convictions were not against the manifest weight of the evidence. Defendant- appellant's second assignment of error is not well take. Judgment affirmed. -14- -15- 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. HARPER, P.J. and PORTER, J., CONCUR. DAVID T. MATIA 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 .