COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72026 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION GEORGE SMILEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-344926 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LYNN LORITTS Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT M. INGERSOLL Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1513 O'DONNELL, J.: George Smiley appeals from a judgment of the Common Pleas Court entered pursuant to a jury verdict finding him guilty of -2- assault on a police officer. Smiley contests the conviction arguing the state failed to prove his guilt beyond a reasonable doubt. Following our thorough review of the record in this case, we conclude this assignment of error is without merit and affirm the judgment of the trial court. The incident which gives rise to these proceedings occurred early in the morning on October 20, 1996, when two Cleveland Police Officers, Alan Almeida and Reggie Smith, observed George Smiley make an illegal left turn at the intersection of East 105th Street and St. Clair, in Cleveland. The officers activated their emergency flashers and siren and using a loud speaker, ordered Smiley to stop. Smiley failed to stop, and police pursued the vehicle down a dead-end street, where Smiley stopped the car. The record contains two different versions of what occurred next, as Smiley exited his vehicle. Smiley testified that he attempted to flee because he knew police had an outstanding warrant for his arrest, and that he tripped and fell while exiting the car, and when he stood up, the officers hit him and threw him against his car, breaking a window. He claims that he never hit Officer Almeida. Almeida testified that the police vehicle pulled aside Smiley's car which forced Smiley to exit from the passenger side. Officer Smith went toward the front of Smiley's car, while Almeida went around the rear of the vehicle. As Smiley ran from the car, Almeida attempted to block his path and while running, Smiley struck Almeida with a closed fist. Smiley's counsel suggested in -3- his brief filed with our court that the contact may have been inadvertent. Almeida then testified that he pushed Smiley to the ground, Officer Smith came to assist, and the three struggled, falling against the car, and breaking the window. Almeida then subdued Smiley with pepper spray and arrested him. Based on the incident of October 20, 1996, the grand jury returned a single count indictment against Smiley for assault upon a police officer. At trial, the state presented the testimony of Almeida and rested; Smiley moved for acquittal pursuant to Crim.R. 29, which the court denied, and then Smiley testified as the sole witness in the defense case-in-chief. Following charge and deliberation, the jury returned a guilty verdict. Smiley then renewed his motion for acquittal. The court denied the motion and imposed sentence. Smiley now appeals from that conviction. Appellant's assignment of error states as follows: GEORGE SMILEY WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR ASSAULT, WHICH WAS NOT SUPPORTED BY EVIDENCE SUFFICIENT TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Smiley contends the court erred in denying his motion for acquittal because the state failed to prove that he knowingly hit Almeida, a necessary element of the offense of assault, because the state presented only circumstantial evidence on that element. The state asserts it presented evidence sufficient to establish all elements of the crime of assault, and the court acted properly in denying Smiley's motion for acquittal. The issue then -4- presented for our review concerns whether the state proved Smiley acted knowingly at the time he struck Almeida. Crim.R. 29(A) provides in relevant part * * * The court upon motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense * * *. The standard of review for cases involving the sufficiency of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.* * * It raises a question of law, the resolution of which does not allow the court to weigh the evidence. The test is most recently recognized in State v. Taylor (1997), 78 Ohio St.3d 15, where the court stated at 18: * * * the relevant inqiry 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. Thus, the test for sufficiency raises a question of law for the court to decide regarding whether the state has put forth evidence necessary to prove each of the essential elements of an offense beyond a reasonable doubt, before the jury may consider the case. It requires a reviewing court to view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution to determine whether from the evidence presented -5- at that point in the trial, a factfinder could find all the essential elements of the charged offense. As the test itself states, the court may not weigh evidence to resolve the question of sufficiency. We begin our analysis by reviewing the state's burden of proof in this case. R.C. 2903.13 defines assault and states, in part: (A) No person shall knowingly cause or attempt to cause physical harm to another. Here Smiley contests the evidence establishing his culpable mental state at the time of the incident. R.C. 2901.22 provides the definition of knowingly: (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result * * * . In this case, the state presented testimony from officer Almeida, a two-year police veteran, establishing Smiley's attempt to escape from pursuing police officers by exiting from the passenger side of the vehicle. Further, Smiley admitted he tried to escape, which corroborates testimony put forth by the state. Although the defense argued in its closing statement the possibility that Smiley inadvertently hit Almeida while running away, during his case in chief, Smiley testified he never hit the officer. Almeida, however, presented contrary evidence suggesting that as he moved to block Smiley's retreating path, Smiley struck him with a closed fist; hence, the record here contains conflicting evidence regarding whether Smiley struck Almeida. Viewing this evidence in a light most favorable to the state, a rational trier of fact could have believed Almeida and disbelieved Smiley and -6- therefore found Smiley knew his actions in fleeing from the police and raising a clenched fist toward Officer Almeida who attempted to block his escape would probably cause harm to Almeida. Accordingly, this assignment of error is overruled, and Smiley's conviction is affirmed. -7- 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 SPELLACY, 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 .