State v. Sisson , 2023 Ohio 1273 ( 2023 )

[Cite as State v. Sisson, 2023-Ohio-1273.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2022 CA 0024
JOHN SISSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2021 CR 0513
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 19, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP DARIN AVERY
Prosecuting Attorney 105 Sturges Avenue
Richland County, Ohio Mansfield, Ohio 44903
CHASE E. BAKER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2022 CA 0024 2
Hoffman, J.
{¶1} Defendant-appellant John R. Sisson appeals the judgment entered by the
Richland County Common Pleas Court convicting him following jury trial of aggravated
robbery (R.C. 2911.01(B)(1)(C)), assault (R.C. 2903.13(A)(C)(5)), harassment with a
bodily substance (R.C. 2921.38(B)(D)), receiving stolen property (R.C. 2913.51(A)(C)),
two counts of obstructing official business (R.C. 2921.31(A)(B)) and resisting arrest (R.C.
2921.33(B)(D)), and sentencing him to an aggregate term of incarceration of nine-and-
one-half to thirteen-and-one-half years. Plaintiff appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 9, 2021, the Mansfield Police Department received a report of a
suspicious vehicle near a local business, Moritz Trailer. Security footage viewed by police
showed a red van at the rear gate of the business, which is not a normal occurrence. A
man, later identified as Appellant, excited the vehicle, but when an employee came out
of the business, Appellant jumped in the vehicle and fled the scene. Officer Kory Kaufman
ran the license plate number of the van, and discovered from LEADS it had been reported
stolen in Knox County several days earlier.
{¶3} Officers began searching for the van. The van was spotted parked at a
Marathon gas station. Because cases involving car thefts are often dangerous, a group
of officers responded to the scene. They could not see inside the van because the
windows were tinted. Officers surrounded the van with their weapons drawn. An officer
opened the door to the van, and discovered Appellant laying on the floor between the
front seats, with his feet toward the dash.
{¶4} Officers yelled at Appellant to show his hands. Appellant immediately
began screaming and trying to crawl toward the back of the van, refusing to comply with
Richland County, Case No. 2022 CA 0024 3
the order to show his hands. Because the van was used by its owner in a business, a
number of tools were within Appellant’s reach in the back of the van, including utility
knives, screwdrivers, and box cutters. Appellant began kicking Officer Trey Hecht, at one
point lodging his foot underneath Officer Hecht’s vest. Appellant was TASED multiple
times, but the TASER appeared to have no effect on him, as he continued his combative
behavior.
{¶5} Finally, an officer outside the van was able to open the side door of the van,
and officers and Appellant tumbled to the ground outside. Multiple officers attempted to
get Appellant in handcuffs, while he continued to scream and struggle with officers.
During the struggle, Appellant spit in the face of Sgt. Michael Haines, getting spit and
blood from Appellant’s mouth in Sgt. Haines’s left eye. While Officer Scott Kotterman
was on top of Appellant trying to handcuff him, Appellant was able to grab the butt of
Officer Kotterman’s gun, which was holstered on his hip. Several kicks from another
officer were required to get Appellant’s hand to release his grip on the gun.
{¶6} Officers eventually got Appellant handcuffed. Appellant remained on the
ground, screaming. EMS was called, while officers told Appellant repeatedly to calm
down. Appellant eventually went limp and was transported to the hospital for treatment.
{¶7} Appellant was indicted by the Richland County Grand Jury on aggravated
robbery, two counts of assault (one count related to Officer Hecht, one count related to
Officer Kotterman), harassment with a bodily substance, receiving stolen property, two
counts of obstructing official business, and resisting arrest.
{¶8} Appellant filed a motion to suppress, arguing police did not have probable
cause to arrest him. The trial court held an evidentiary hearing, at which the dash camera
Richland County, Case No. 2022 CA 0024 4
video from Officer Kotterman’s cruiser was admitted into evidence. The trial court
overruled Appellant’s motion, finding police had a right to investigate the vehicle which
had been reported stolen and to determine if anyone was inside. The trial court found
Appellant thereafter attempted to conceal himself from police and refused to show his
hands, causing officers to have to restrain him for officer safety. The trial court found
probable cause to arrest Appellant.
{¶9} The case proceeded to jury trial in the Richland County Common Pleas
Court. Following trial, Appellant was found not guilty of one count of assault related to
Officer Kotterman, and guilty of all remaining charges. The trial court entered judgment
in accordance with the jury’s verdict, and sentenced Appellant to an aggregate term of
incarceration of nine-and-one-half to thirteen-and-one-half years. It is from the March 4,
2022 judgment of the trial court Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRED IN FINDING THAT THE ARREST OF
SISSON WAS LAWFUL.
II. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE
FRUITS OF THE ILLEGAL ARREST OF THE DEFENDANT.
III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S
RULE 29 MOTION TO DISMISS.
IV. THE TRIAL COURT ERRED BY NOT SUA SPONTE
DECLARING A MISTRIAL IN LIGHT OF MISCONDUCT BY THE
OFFICERS AND PROSECUTOR.
Richland County, Case No. 2022 CA 0024 5
V. THE JURY’S FINDING WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
I., II.
{¶10} In his first assignment of error, Appellant argues the trial court erred in
finding the officers had probable cause to arrest him because they had not received
confirmation from Knox County the LEADS report concerning the stolen vehicle was valid.
He argues in his second assignment of error because his arrest was not supported by
probable cause, the trial court should have suppressed evidence as fruits of the illegal
arrest. We address both assignments of error together.
{¶11} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
Richland County, Case No. 2022 CA 0024 6
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review. Ornelas, supra.Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶12} A LEADS report specifying a vehicle is stolen provides officers with a
reasonable suspicion of criminal activity which justifies further investigation. See State v.
Campbell, 8th Dist. Cuyahoga No. 83787, 2004-Ohio-6858, ¶11. The officers in the
instant case were unable to see inside the van through the windows, which were tinted.
Therefore, they did not know if the vehicle was occupied or if it was safe to approach the
vehicle, and approached the vehicle with guns drawn before opening the door.
{¶13} The testimony of Officer Kotterman and of Sgt. Webb at the suppression
hearing established Sgt. Webb opened the passenger door of the van and yelled for
Appellant to show his hands. The officers testified Appellant refused to comply, and
began screaming and trying to crawl to the back of the van. Although the video from
Officer Kotterman’s dash camera did not show what was happening inside the van,
officers could be heard repeatedly telling Appellant to show his hands. Officers testified
tools which could be used as weapons were visible on the floor near Appellant.
{¶14} Appellant was charged and convicted of two counts of obstructing official
business, felonies of the fifth degree, in violation of R.C. 2921.31, which provides, “No
person, without privilege to do so and with purpose to prevent, obstruct, or delay the
performance by a public official of any authorized act within the public official's official
Richland County, Case No. 2022 CA 0024 7
capacity, shall do any act that hampers or impedes a public official in the performance of
the public official's lawful duties.”
{¶15} Immediately upon being ordered to “show his hands,” Appellant refused to
comply with the order and began trying to crawl toward the back of the van where various
tools which could be used as weapons were near him. At this point, police had probable
cause to place him under arrest for obstructing official business, as Appellant’s actions
delayed and obstructed the officers in their investigation of the LEADS report the van was
stolen. Further, there was testimony during the early seconds of the encounter with
police, while Appellant was refusing to comply with the order to show his hands, Appellant
kicked Officer Hecht. At this point, police had probable cause to place Appellant under
arrest for assault, an offense of which he was ultimately charged and convicted.
{¶16} We find the trial court did not err in finding the police had probable cause to
arrest Appellant, and therefore the trial court did not err in overruling Appellant’s motion
to suppress fruits of the arrest. The first and second assignments of error are overruled.
III.
{¶17} In his third assignment of error, Appellant argues the judgment of conviction
was not supported by sufficient evidence, and therefore the trial court erred in overruling
his Crim. R. 29 motion to dismiss.
{¶18} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence
presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351, citing
State v. Williams, 74 Ohio St.3d 569, 576, 1996–Ohio–91, 660 N.E.2d 724; State v. Miley,
114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist. 1996). Crim. R. 29(A) allows a trial
court to enter a judgment of acquittal when the State's evidence is insufficient to sustain
Richland County, Case No. 2022 CA 0024 8
a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,
after viewing the evidence in a light most favorable to the State, the court finds no rational
finder of fact could find the essential elements of the charge proven beyond a reasonable
doubt. State v. Franklin, 5th Dist. Stark No. 2007–CA–00022, 2007–Ohio–4649 at ¶ 12,
citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d 1096.
{¶19} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing 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, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
Aggravated Robbery
{¶20} Appellant was convicted of one count of aggravated robbery in violation of
R.C. 2911.01(B)(1):
(B) No person, without privilege to do so, shall knowingly remove or
attempt to remove a deadly weapon from the person of a law enforcement
officer, or shall knowingly deprive or attempt to deprive a law enforcement
officer of a deadly weapon, when both of the following apply:
(1) The law enforcement officer, at the time of the removal, attempted
removal, deprivation, or attempted deprivation, is acting within the course
and scope of the officer's duties;
(2) The offender knows or has reasonable cause to know that the
law enforcement officer is a law enforcement officer.
Richland County, Case No. 2022 CA 0024 9
{¶21} Appellant first argues Officer Kotterman was not acting within the course
and scope of his duties because he was conducting an illegal arrest. Because we have
found in our discussion of assignment of error one the arrest was supported by probable
cause and was therefore not illegal, we find the State presented sufficient evidence
Officer Kotterman was acting within the course and scope of his official duties.
{¶22} Appellant next argues he did not act “knowingly” because he was face
down, surrounded by officers, and handcuffed at the time he touched Officer Kotterman’s
weapon.
{¶23} R.C. 2901.22 defines the mental state of “knowingly” as follows:
(B) A person acts knowingly, regardless of purpose, when the person
is aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶24} Officer Trey Hecht testified he saw Appellant’s hand squeezing Officer
Kotterman’s gun, and Officer Hecht kicked Appellant’s hand multiple times until Appellant
released the gun. Officer Hecht testified, “He [Appellant] had a hold of all of the gun.” Tr.
259. Sgt. Michael Haines also testified Appellant gripped Officer Kotterman’s gun tightly.
Richland County, Case No. 2022 CA 0024 10
Patrolman Kody Leitz testified Appellant grabbed Officer Kotterman’s gun by the butt of
the gun, and would not let go. Officer Kotterman testified he started to stand up after
handcuffing Appellant, and felt a tug. He realized Appellant had a grip on his firearm.
Officer Kotterman testified Appellant had his full hand on the gun. From this testimony,
we find the jury could conclude Appellant knowingly grabbed Officer Kotterman’s gun,
and the judgment convicting Appellant of aggravated robbery is supported by sufficient
evidence.
Assault
{¶25} Appellant was convicted of assault for kicking Officer Hecht, in violation of
R.C. 2903.13(A), which provides, “No person shall knowingly cause or attempt to cause
physical harm to another or to another's unborn.”
{¶26} Appellant argues he kicked the officer after he had been TASED, and was
not attempting to cause harm, but merely struggling to survive and become oriented.
{¶27} The State presented testimony the TASER appeared to have no effect on
Appellant, and Appellant displayed extreme strength throughout the encounter. Officer
Hecht testified Appellant kicked him multiple times, with Appellant’s foot getting stuck
under Officer Hecht’s vest. At the time he kicked Officer Hecht, Appellant was refusing
to comply with the order to show his hands, attempting instead to crawl away from the
officers toward the back of the van. Further, in the video of the encounter, an officer can
be heard ordering Appellant to stop kicking him. We find the State presented sufficient
evidence from which the jury could conclude Appellant knowingly attempted to cause
physical harm to Officer Hecht by kicking him.
Richland County, Case No. 2022 CA 0024 11
Harassment With a Bodily Substance
{¶28} Appellant was convicted of harassment with a bodily substance in violation
of R.C. 2921.31:
(B) No person, with intent to harass, annoy, threaten, or alarm a law
enforcement officer, shall cause or attempt to cause the law enforcement
officer to come into contact with blood, semen, urine, feces, or another
bodily substance by throwing the bodily substance at the law enforcement
officer, by expelling the bodily substance upon the law enforcement officer,
or in any other manner.
{¶29} Appellant argues there was no evidence he intended to harass, annoy,
threaten, or alarm Sgt. Haines because he was struggling for his life at the time he spit
blood at Sgt. Haines.
{¶30} Sgt. Haines testified during the struggle to arrest Appellant, Appellant spit
at him, getting blood and spit on his face and left eye. We find the jury could conclude
from this testimony, and from the testimony and video of the entire encounter, Appellant
spit at Sgt. Haines not because he was struggling for his life as he now contends, but
because he intended to harass, annoy, threaten or alarm the officer, who was part of a
group attempting to handcuff Appellant.
Receiving Stolen Property
{¶31} Appellant was convicted of receiving stolen property in violation of R.C.
2913.51(A), which provides, “No person shall receive, retain, or dispose of property of
Richland County, Case No. 2022 CA 0024 12
another knowing or having reasonable cause to believe that the property has been
obtained through commission of a theft offense.”
{¶32} Appellant argues there was no evidence from which the jury could find he
knew or had reasonable cause to believe the van had been obtained through commission
of a theft offense. He argues merely being present inside the van which had been stolen
is insufficient, standing alone, to prove he had reasonable cause to believe the van had
been obtained through commission of a theft offense.
{¶33} Officer Kory Kaufman testified at the suppression hearing he watched the
security video footage from Moritz Trailers and identified Appellant as the man who
jumped into the van and fled the scene; however, Officer Kaufman did not testify at trial.
However, Officer Kotterman testified at trial the van in question had earlier been seen at
Moritz Trailers, and was later found at the Marathon station. Officer Hecht testified the
van’s ignition turned over without a key, as if it had been “punched,” not hot-wired. Tr.
380-81.
{¶34} Based on the testimony about the lack of a key and the manner in which the
van could be started, we find the State presented sufficient evidence Appellant had
reasonable cause to believe the van in which he was the sole occupant had been obtained
through commission of a theft offense.
Obstructing Official Business
{¶35} Appellant was convicted of two counts of obstructing official business in
violation of R.C. 2921.31(A), which provides, “No person, without privilege to do so and
with purpose to prevent, obstruct, or delay the performance by a public official of any
Richland County, Case No. 2022 CA 0024 13
authorized act within the public official's official capacity, shall do any act that hampers or
impedes a public official in the performance of the public official's lawful duties.”
{¶36} Appellant argues again the officers were not performing an authorized act
or their lawful duties because the arrest was illegal. For the reasons stated earlier in this
opinion, we find Appellant’s argument is without merit, and the State presented sufficient
evidence to support Appellant’s convictions of obstructing official business.
{¶37} The third assignment of error is overruled.
IV.
{¶38} In his fourth assignment of error, Appellant argues the trial court should
have sua sponte declared a mistrial because the State attempted to admit irrelevant and
prejudicial evidence he later fled from the hospital, and further because the officers’
testimony throughout the suppression hearing and trial was contradictory and not
credible.
{¶39} “A trial court may grant a mistrial sua sponte when there is manifest
necessity for the mistrial or when ‘the ends of public justice would otherwise be defeated.’”
Cleveland v. Walters, 98 Ohio App.3d 165, 168, 648 N.E.2d 37 (1994). If no motion for a
mistrial is requested at trial, the failure to grant a mistrial sua sponte is judged under a
plain error standard. State v. Jones, 115 Ohio App.3d 204, 207, 684 N.E.2d 1304 (1996).
{¶40} Under the plain error standard of review, the defendant bears the burden of
“showing that but for a plain or obvious error, the outcome of the proceeding would have
been otherwise, and reversal must be necessary to correct a manifest miscarriage of
justice.” State v. West, 168 Ohio St.3d 605, 2022-Ohio-1556, 200 N.E.3d 1048, ¶22. An
appellate court has discretion to notice plain error and is not required to correct it. Id.Richland County, Case No. 2022 CA 0024 14
{¶41} Appellant argues the trial court erred in failing to sua sponte declare a
mistrial when Officer Kotterman testified he saw Appellant a few days after the arrest,
when Appellant fled the hospital in a gown. Appellant objected, and the trial court
sustained the objection. We find Appellant has not demonstrated plain error. The
reference to Appellant fleeing the hospital was brief, and the trial court immediately
sustained Appellant’s objection.
{¶42} Appellant also argues the trial court should have sua sponte declared a
mistrial because of the contradictory testimony of the officers. It is the province of the jury
to determine where the truth lies from conflicting testimony. State v. Craig, 10th Dist.
Franklin No. 99AP-739, 2000 WL 297252, *3, citing State v. Lakes, 120 Ohio App. 213,
217, 201 N.E.2d 809 (1964). We find the trial court did not err in failing to sua sponte
declare a mistrial because of inconsistent testimony, as the determination of the credibility
of witnesses is within the province of the jury.
{¶43} The fourth assignment of error is overruled.
V.
{¶44} In his final assignment of error, Appellant argues the judgment is against
the manifest weight of the evidence based on the contradictory and inconsistent testimony
of the officers.
{¶45} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
Richland County, Case No. 2022 CA 0024 15
a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶46} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). While the jury may
take note of inconsistencies and resolve or discount them accordingly, such
inconsistencies alone do not render a conviction against the manifest weight or sufficiency
of the evidence. State v. Wolters, 5th Dist. No. 21CA000008, 2022-Ohio-538, 185 N.E.3d
601, ¶ 20, appeal not allowed, 167 Ohio St.3d 1407, 2022-Ohio-2047, 188 N.E.3d 1098.
{¶47} We find the jury did not lose its way in believing the testimony of the officers.
While the details of the encounter varied between the witnesses, the incident itself was
somewhat chaotic with the officers involved having different vantage points, as
demonstrated by the video which was admitted into evidence. From a review of the
transcript, we find the officers’ testimony did not vary in material ways about the conduct
of Appellant which gave rise to the charges. We find the judgments of conviction are not
against the manifest weight of the evidence.
Richland County, Case No. 2022 CA 0024 16
{¶48} The fifth assignment of error is overruled.
{¶49} The judgment of the Richland County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur