COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71387 STATE OF OHIO: OPINION : : Plaintiff-Appellee : : vs. : CHARLES BOYD JULY 31, 1997 Defendant-Appellant Criminal appeal from Common Pleas Court Case No. CR-337591 DATE OF ANNOUNCEMENT OF DECISION: AFFIRMED. CHARACTER OF PROCEEDING: JUDGMENT: STEPHANIE TUBBS JONES DATE OF JOURNALIZATION: Cuyahoga County Prosecutor DIANE SMILANICK APPEARANCES: Assistant Prosecuting Attorney The Justice Center For Plaintiff-Appellee: 1200 Ontario Street Cleveland, Ohio 44113 JAMES A. DRAPER Cuyahoga County Public Defender SCOTT ROGER HURLEY Assistant Public Defender 1200 West Third Street, N.W. For Defendant-Appellant: 100 Lakeside Place Cleveland, Ohio 4113-1569 : : JOURNAL ENTRY : : AND : 2 O'DONNELL, J.: Charles Boyd appeals from judgment of the common pleas court entered pursuant to a jury verdict finding him guilty on two counts of assault, each with violence and peace officer specifications. The record reflects that around 7:00 p.m., on Saturday, March 2, 1996, Detectives Terry Preston and Jamal Ansari of the Cleveland Police Department, working as part-time security officers for Tower City, responded to a radio call from the Wall Street Deli concerning a customer service problem. When they arrived on the scene, Officer Dutton had detained Charles Boyd near an escalator and inquired whether he had paid for food from the deli. To determine whether Boyd had paid for the two sandwiches in his possession, the three officers attempted to escort Boyd back to the deli; Boyd then became irate, abusive, and caused a disturbance in the mall. Finally, because Boyd failed to heed the warnings of the officers to calm down and instead caused a greater disturbance, Preston and Ansari arrested him for disorderly conduct, handcuffed him, and then escorted him to the security office at Tower City. Once there, Detective Ansari patted him down, and after determining he had no weapons or contraband and because Boyd seemed calm, he removed the handcuffs. As Ansari began to turn away, Boyd punched him in the face, and a struggle ensued. Preston attempted to restrain Boyd, but Boyd began to kick at him. Ansari sprayed Boyd with pepper mace which ultimately subdued him. Thereafter, on April 16, 1996, the grand jury indicted Boyd on two counts of assault pursuant to R.C. 2903.13, with violence and 3 peace officer specifications. Boyd plead not guilty at his arraignment and the court conducted a trial on July 17, 1996. The jury found him guilty on both counts and the court sentenced him to two consecutive terms of two to five years. It is from that judgment that Boyd now appeals, and assigns one error for our review: I. THE EVIDENCE IS INSUFFICIENT, AS A MATTER OF LAW, TO SUSTAIN A VERDICT OF GUILTY TO BOTH CHARGES OF ASSAULT UPON A PEACE OFFICER WITH SPECIFICATIONS, R.C. 2903.13, SINCE NEITHER ALLEGED VICTIM WAS IN THE PERFORMANCE OF HIS OFFICIAL DUTIES AT THE TIME OF THE ALLEGED OFFENSE. Boyd asserts that, as a matter of law, the evidence presented at trial, when viewed in a light most favorable to the prosecution, was insufficient to sustain a conviction for assault upon peace officers because the state failed to prove that both Preston and Ansari were assaulted in the performance of their official duties, but were rather acting in their capacity as private security guards. The state submits that since both detectives were Cleveland Police Officers who properly identified themselves when they detained, questioned, and arrested Boyd, the state provided sufficient evidence to prove the elements of assault with a peace officer specification. The issue for our determination is whether the state presented sufficient evidence to prove the charges in the indictment against Boyd. The Ohio Supreme Court recently determined in State v. Taylor (1997), 78 Ohio St.3d 15, at 18: 4 In reviewing a record for sufficiency, [t]he relevant inquiry is whether, after reviewing 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. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus (in part), following Jackson v. Virginia (1979), 443 U.S. 307. R.C. 2903.13 defines the crime of assault, in pertinent part, as follows: (A) No person shall knowingly cause or attempt to cause physical harm to another. *** (C)(3) If the victim of the offense is a peace officer,***while in the performance of their official duties, assault is a felony in the fourth degree. (4) As used in this section: (a) Peace officer has the same meaning as in section 2935.01 of the Revised Code. R.C. 2935.01(B) states: Peace officer includes a sheriff, deputy sheriff, marshal, deputy marshal, member of the organized police department of any municipal corporation in an adjoining state serving in Ohio under contract pursuant to section 737.04 of the Revised Code, member of a police force employed by a metropolitan housing authority under division (D) of section 3735.31 of the Revised Code, state university law enforcement officer appointed under section 3345.04 of the Revised Code, liquor control investigator or food stamp trafficking agent of the department of public safety, Ohio veterans' home policeman appointed under section 5907.02 of the Revised Code, police constable of any township, and police officer of a township or joint township police district, and, for the purposes of Chapter 5503. of the Revised Code, and the filing of and service of process relating to those offenses witnesses or investigated by them, includes the superintendent and troopers of the state highway patrol. Here, Boyd concedes the state proved the first two elements of this crime and does not dispute the fact that Detective Preston and 5 Detective Ansari are peace officers; Boyd challenges whether they were performing their official duties at the time of the assault. The record in this case reveals that Preston testified in court that Tower City generally prefers to hire police officers for security purposes because the police ***have misdemeanor arrest powers, which other people don't have. (Tr. 141). In addition, both he and Detective Ansari testified they arrested Boyd for disorderly conduct and then escorted him to Tower City's security room where Boyd punched Ansari and kicked Preston. Therefore, after the detectives placed Boyd under arrest for disorderly conduct, they were acting in their official capacity as peace officers and since the assault occurred subsequent to the arrest, Boyd assaulted two peace officers while they were performing their official duties. Accordingly, we conclude that after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of assault on peace officers and therefore, overrule this assignment of error and affirm the judgment of the trial court. Judgment affirmed. 6 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. PORTER, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .