State v. Allsup , 2011 Ohio 404 ( 2011 )

[Cite as State v. Allsup, 2011-Ohio-404.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO, CASE NO. 6-10-09
PLAINTIFF-APPELLEE,
v.
JOSEPH HENRY ALLSUP, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20092079 CRI
Judgment Affirmed
Date of Decision: January 31, 2011
APPEARANCES:
Marc S. Triplett, for Appellant
Maria Santo, for Appellee
Case No. 6-10-09
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Joseph Henry Allsup, Jr., brings this appeal from
the judgment of the Court of Common Pleas of Hardin County finding him guilty
of failure to comply with an order or signal of a police officer, felonious assault on
a peace officer with a deadly weapon, vandalism, and operating a vehicle while
under the influence. For the reasons set forth below, the judgment is affirmed.
{¶2} On April 3, 2009, just past midnight, Officer Deckling of the Kenton
Police Department stopped at Jumpin’ Jim’s carry-out in Kenton to make a
personal purchase while on duty. Officer Deckling was dressed in the standard-
issued police uniform and was driving a marked police cruiser. While Officer
Deckling was making his purchase, he recognized another customer as Wayne
Allsup (“Wayne”) in the carry-out buying beer. Officer Deckling recalled that
there may be an active warrant out for Wayne’s arrest. Officer Deckling returned
to his police cruiser and radioed a request for dispatch to confirm whether there
was indeed an active warrant for Wayne’s arrest.
{¶3} From his cruiser, Officer Deckling observed that Wayne had entered
into the passenger side of an older model pick-up truck parked in the parking lot of
the carry-out. The driver of the truck was Wayne’s brother, Joseph Allsup, Jr.
(“Allsup”). The truck remained parked while Wayne conversed with another man
through the passenger side widow.
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{¶4} Upon dispatch’s confirmation that there was an active warrant for
Wayne’s arrest, Officer Deckling approached the parked truck on the passenger
side and informed Wayne that there was a warrant for his arrest and that he needed
to exit the truck. Wayne then looked at Allsup and said, “Let’s go, dude.” Allsup
put the truck in reverse and left the parking lot. Officer Deckling returned to his
vehicle and began to follow the pick-up truck with the overhead lights and siren on
the cruiser activated.
{¶5} After pursuing the pick-up truck a mile south of town, Officer
Deckling noticed that the truck had stopped in the middle of the road. Officer
Deckling stopped his vehicle approximately fifteen to twenty feet behind the truck.
Allsup then put his truck into reverse and rammed Officer Deckling’s police
cruiser. The impact of the two vehicles crumpled the hood on driver’s side of the
police cruiser and disabled the driver’s side headlight. Officer Deckling suffered
an injury to his leg as a result of the collision. However, Officer Deckling was
able to continue the pursuit of Allsup’s truck because impact of the collision failed
to totally disable his vehicle. Officer Deckling radioed dispatch for assistance.
Additional vehicles from both the Kenton Police Department and the Hardin
County Sheriff’s Office joined the pursuit.
{¶6} While Officer Deckling followed the truck, Wayne began throwing
various items, which included beer bottles, metal objects and a rake, out of the
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passenger side window in the direction of Officer Deckling’s cruiser. Officer
Deckling had to swerve the cruiser to avoid hitting the projectiles. Further down
the road, Sergeant Lee of the Hardin County Sheriff’s Office had positioned
himself ahead of Allsup’s pick-up truck. As the truck approached Sergeant Lee’s
location, Sergeant Lee threw out a set of stop sticks to deflate the tires on Allsup’s
truck. Once the truck ran over the stop sticks, the passenger side front tire
deflated. However, the truck continued down the road at a high-rate of speed,
leaving gouges in the road from the wheel. Allsup then turned the truck into a
residence belonging to one of his cousins and parked the truck. Law enforcement
surrounded the truck and forcibly pulled Allsup and Wayne from the pick-up
truck. Officer Deckling immediately noticed a strong odor of alcohol on Allsup’s
person and further observed that Allsup had defecated in his pants during the
incident.
{¶7} Allsup and Wayne were placed under arrest and taken into custody.
On May 5, 2009, a Hardin County Grand Jury indicted Allsup on following
charges: failure to comply with an order or signal of a police officer in violation of
R.C. 2921.331(B),(C)(5)(a)(ii), a felony of the third degree; felonious assault with
a deadly weapon with an additional specification that the victim was a peace
officer in violation of R.C. 2903.11(A)(2),(D)(1), a felony of the first degree;
complicity to vehicular vandalism in violation of R.C. 2923.03(A)(2) and R.C.
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2909.09(B)(1), a felony of the fourth degree; vandalism in violation of R.C.
2909.05(B)(2), a felony of the fifth degree; driving under suspension or in
violation of license restriction, in violation of R.C. 4510.11(A), a misdemeanor of
the first degree and; operating a vehicle while under the influence of alcohol, a
drug of abuse, or a combination of them with the second offense being committed
within six years, in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first
degree.
{¶8} On May 18, 2009, Allsup entered a plea of not guilty by reason of
insanity, (“NGRI”), to all the charges listed in the indictment. Allsup also
requested a competency evaluation. The trial court accepted Allsup’s plea and
arranged for a competency evaluation to take place. At a subsequent hearing,
Allsup was declared competent to stand trial. Allsup filed a motion for an
independent evaluation of his sanity and competency, which was granted by the
trial court. The independent examiner also found Allsup competent to stand trial.
At the September 15, 2009 competency hearing, Allsup requested a second
independent evaluation. The trial court denied Allsup’s motion for a second
independent examiner and found him competent to stand trial.
{¶9} On October 20, 2009, the prosecution moved to dismiss the charge of
complicity to vehicular vandalism which was granted by the trial court.
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{¶10} On February 17, 2010, Allsup filed a motion for the appointment of a
neuropsychologist to perform further evaluations regarding his NGRI plea. In his
motion, Allsup argued that his NGRI defense was based upon a mental defect or
injury resulting from a head injury he suffered when a tree limb fell on him weeks
prior to the incident resulting in charges listed in the indictment. Specifically,
Allsup claimed that he suffered from black-outs as a result of this injury, and that a
neuropsychologist could testify that he suffered from one of these black-outs when
the alleged offenses were committed. The prosecution filed a motion opposing
Allsup’s request for a neuropsychologist. The trial court granted Allsup’s motion,
in part, allowing his attorney leave to have ex-parte communications with a
physician to determine if further evaluations of Allsup were necessary.
{¶11} On March 3, 2010, the prosecution filed proposed jury instructions
seeking to include instructions on consciousness of guilt, voluntary intoxication,
and that a motor vehicle may be considered a deadly weapon. The prosecution
also moved to dismiss the charge of driving under suspension in violation of
license restriction, and to strike the language from the OVI charge which specified
that the offense was the second within six years. The trial court subsequently
granted the prosecution’s motions.
{¶12} On March 16, 2010, the prosecution filed a motion in limine seeking
to exclude testimony and medical records concerning Allsup’s head injury. On
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March 17, 2010, Allsup filed a motion in limine to exclude the specific facts
surrounding Wayne’s jury conviction a month earlier on the related offenses.
{¶13} On March 18, 2010, a pretrial hearing was held and the trial court
ruled on the pending motions. The same day, the case proceeded to a jury trial and
the jury returned a guilty verdict on each charge. On May 13, 2010, the trial court
sentenced Allsup to serve ten years and six months in prison. Specifically, the
trial court imposed a three-year prison term for the failure to comply with the
order or signal of a police officer, and a seven-year prison term for the felonious
assault on a peace officer. The trial court ordered each prison term to be served
consecutively. The trial court also imposed six-month prison terms for the
vandalism and OVI offenses with the terms to run concurrently to each other, but
consecutively to the ten year term imposed on the prior counts.
{¶14} It is from this conviction and sentence that Allsup now appeals,
raising the following assignments of error for our review.
First Assignment of Error
The trial court erred when it excluded the testimony in toto of
Kathleen Tharp, Steven Rumer, and Tim Shoffer, and a portion
of the testimony of Appellant.
Second Assignment of Error
The trial court erred when it overruled Appellant’s objection to
the jury instruction with respect to the defense of intoxication.
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Third Assignment of Error
The trial court erred when it denied Appellant’s motion for
acquittal.
Fourth Assignment of Error
The trial court erred when it denied Mr. Allsup’s motion to
exclude Juror Grappy for cause.
Fifth Assignment of Error
The trial court erred when it imposed a sentence of ten years of
imprisonment.
First Assignment of Error
{¶15} In his first assignment of error, Allsup argues that the trial court erred
in partially excluding his testimony and the testimony of three other non-expert
witnesses, Kathleen Tharp, Steven Rumer and Tim Shoffer. Allsup maintains that
the excluded testimony was essential in establishing his defense that he suffered
from a black-out at the time of the incident and had no memory of committing the
offenses.
{¶16} The trial court’s decision concerning the admission or exclusion of
evidence will not be reversed absent an abuse of that discretion. State v. Sage
(1987), 31 Ohio St.3d 173, 182, 510 N.E.2d 34. An abuse of discretion “connotes
more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable.” State v. Adams (1980), 62 Ohio St.2d
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151, 157, 404 N.E.2d 144. When applying the abuse of discretion standard, an
appellate court may not substitute its judgment for that of the trial court. Pons v.
Ohio St. Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748.
{¶17} At trial, Allsup testified that, weeks prior to the incident resulting in
the charges, he was hit in the head with a tree limb which caused him to suffer
from severe lapses in his memory. Allsup maintained that he suffered from
memory loss at the time of the incident on April 3, 2009, and had no recollection
of the police chase and surrounding events. At a pretrial hearing, the trial court
ruled to exclude evidence of Allsup’s head injury on the basis that it improperly
attempted to establish a diminished capacity defense, and simply served to mislead
the jury. During the trial, the court excused the jury and allowed Allsup to proffer
the excluded testimony concerning his memory loss.
{¶18} Allsup proffered his own testimony indicating that sometime in late
January or early February of 2009, some eight weeks prior to the incident in
question, he suffered a head injury when a tree limb fell on his head. Allsup stated
that he sought medical attention at Lima Memorial Hospital where a CAT scan
and MRI were performed on his head and neck. Allsup recalled that he was seen
twice by Nurse Practitioner, Kathleen Tharp, regarding this injury. Allsup stated
that several times after the injury he would forget having a telephone conversation
or have no memory of specific events. Allsup then stated that he believed he was
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either suffering from a black-out or in shock during the police chase on April 3,
2009.
{¶19} The defense then proffered the testimony of Kathleen Tharp. Tharp
testified that she had seen Allsup on February 16, 2009, in the Emergency Room
of Lima Memorial Hospital. Tharp testified that Allsup stated that he had been hit
on the head and neck with a fallen tree limb approximately two weeks earlier.
However, Tharp recalled that Allsup complained of mostly neck pain and did not
mention any occurrences of black-outs or loss of consciousness. Tharp saw
Allsup again for a second time to go over the results of the MRI with him. Tharp
stated that the results of the MRI revealed that Allsup had suffered a neck injury,
but there was no indication of neurological trauma. Tharp further testified that
nothing in the medical records indicated that Allsup suffered from loss of
consciousness as a result of this injury.
{¶20} The defense also proffered the testimony of Steven Rumer. Rumer
testified that he had bought a dump truck from Allsup in the winter of 2009.
Rumer recalled that Allsup explained he had suffered from an injury which
required him to give up his tree-trimming business. However, Rumer stated that
Allsup never told him that he specifically suffered from a head or neck injury.
Rumer also admitted that he had no personal knowledge concerning the nature of
Allsup’s injury.
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{¶21} The final proffered testimony presented by the defense was that of
Tim Shoffer. However, Shoffer failed to appear in court to proffer his testimony
despite being subpoenaed. Instead, defense counsel summarized the testimony
that he sought to elicit from Shoffer which, in essence, recounted a specific
instance when Allsup had a telephone conversation with Shoffer where Allsup
spoke harshly to Shoffer and used profanity. Defense counsel explained that
Shoffer would testify that when he spoke to Allsup at a later time, Allsup had no
recollection of the telephone conversation or the negative manner in which he
spoke to Shoffer. Defense counsel also sought to admit Shoffer’s testimony to
corroborate Allsup’s statements that he left the tree-trimming business as a result
of a tree limb falling on his head.
{¶22} Allsup argues that the excluded evidence was essential in
establishing that he suffered from a black-out at the time of the offense and
therefore, had no memory of the events that occurred. The Eleventh District Court
of Appeals aptly noted the following regarding the application of the so-called
“blackout defense”:
The blackout defense is not available in every instance where the
defendant cannot remember what occurred. Blackout or
unconsciousness is a defense only where such condition is
involuntary and such involuntary condition prevented the
defendant from taking action that he or she is legally required to
take under the circumstances or, possibly, in situations where
the unconsciousness or blackout prevents a defendant from
forming a specific intent. In the latter circumstance, the
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evidence must establish that the defendant was unconscious and
acted involuntarily. A defendant’s mere failure to remember
what happened does not constitute such evidence.
State v. Cutlip (June 15, 2001), 11 Dist. No. 99-L-149, *7.
{¶23} Here, the proffered testimony failed to demonstrate that Allsup was
unconscious and acted involuntarily when he was involved in the police chase on
the morning of April 3, 2009. Therefore, Allsup’s testimony that he could not
remember the incident, standing alone, was insufficient to demonstrate that he
lacked the ability to form a specific intent to adequately establish a “blackout
defense.” See State v. Gutierrez (Sept. 21, 1995), 3rd Dist. No. 5-95-10, *4
(stating the trial court correctly held that a blackout instruction was not warranted
because there was no evidence that the defendant was unconscious; rather the
defendant testified that he could not remember anything).
{¶24} Moreover, the proffered testimony from the other three non-expert
witnesses also failed to support Allsup’s contention that he suffered from a
blackout at the time he committed the offenses listed in the indictment. Therefore,
the proffered testimony failed to achieve Allsup’s intended purpose to establish
that he suffered from a black-out during the police chase and could not have
formed the specific intent required to prove the charges against him. Accordingly,
because the proffered testimony served no other purpose, we find no error in the
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trial court’s decision to exclude the proffered evidence on the basis that the
testimony was both irrelevant and could potentially be misleading to the jury.
{¶25} Allsup’s first assignment of error is overruled.
Second Assignment of Error
{¶26} In his second assignment of error, Allsup maintains that the trial
court erred when it instructed the jury on voluntary intoxication. Allsup argues
that because he never asserted intoxication as a defense, the instruction was
superfluous and only served to detract from his credibility. Specifically, Allsup
contends that the trial court’s instruction on intoxication compromised his asserted
defense that he suffered from a black-out during the incident by causing the jury to
believe that his black-out was attributable to alcohol rather than to a head injury.
{¶27} A trial court’s decision to give a jury instruction is within its
discretion, and we will not reverse such a decision absent an abuse of that
discretion. State v. Lightner, 3d Dist. No. 6-09-02, 2009-Ohio-4443, ¶ 11, citing
State v. Guster (1981), 66 Ohio St.2d 266, 271. An abuse of discretion connotes
more than an error of law or judgment and implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. State v. Nagle (2000), 11th Dist. No.
99-L-089, 2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219. When applying an abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. Id.-13-
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{¶28} The instruction in question was included as a part of the introductory
instructions to the jury, and appeared prior to giving the instructions on each
count. The contended instruction stated as follows:
Voluntary intoxication may not be taken into consideration in
determining the existence of a mental state that is an element of
a criminal offense. Voluntary intoxication does not relieve a
person of a duty to act if failure to act constitutes a criminal
offense.
Intoxication includes, but is not limited to, intoxication resulting
from the ingestion of alcohol, a drug, or alcohol and a drug.
(Jury Instructions, p. 2).
{¶29} Upon reviewing this specific charge on voluntary intoxication within
the context of the entire jury instructions, it is evident that the purpose of this
instruction was not to charge the jury on the defense of intoxication, as Allsup
contends, but rather to instruct the jury on culpability for criminal liability
pursuant to R.C. 2901.21. The language of the instruction on voluntary
intoxication tracks verbatim a significant portion of statutory language contained
in R.C. 2901.21(C), (D)(4).
{¶30} In the present case, the prosecution had to prove that Allsup acted
purposely as an element of the failure to comply with the order or signal of a
police officer offense, and that Allsup acted knowingly as elements of the
felonious assault of a peace officer and vandalism offenses. Accordingly, the
instruction was given by the trial court to correctly inform the jury that they were
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precluded from considering whether Allsup was intoxicated when determining if
he had formed the requisite intent and acted purposely and knowingly when the
offenses were committed.
{¶31} Moreover, we cannot conclude, as Allsup asserts, that the trial
court’s instruction on voluntary intoxication compromised his defense that he
suffered from a black-out due to a prior head injury during the incident which
resulted in charges listed in the indictment. In light of our determination in the
first assignment of error that Allsup failed to present any evidence to adequately
establish a “black-out defense,” we find his contention that the instruction on
voluntary intoxication prejudiced his defense is without merit.
{¶32} At most, the instruction may have insinuated to the jury that Allsup
was intoxicated at the time of the incident. Arguably, under this rationale, the
instruction could have influenced the jury’s determination on the OVI charge,
specifically concerning the issue of whether Allsup was operating the truck while
under the influence. Notably, this contention is not raised by Allsup on appeal.
Nevertheless, when reviewing the jury instruction as a whole, we find this
assertion to be merely speculative. The instruction on voluntary intoxication
appeared on page two of the seventeen-paged jury instruction. The instruction on
the charge of OVI appeared on page twelve and defined what constituted being
“under the influence,” which differs substantively from “intoxication.”
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{¶33} Moreover, the OVI charge was followed by this instruction. “If,
during the course of trial, the court said or did anything that you consider an
indication of the Court’s views on the facts, you are instructed to disregard it.”
(Jury Instructions, pp.14-15). Therefore, we find the correlation between the trial
court’s instruction on voluntary intoxication and the potential insinuation by the
trial court that Allsup was intoxicated at the time of the incident is highly
attenuated.
{¶34} Accordingly, when reviewing the contended instruction in the
context of the entire jury instructions, we do not find that the trial court’s decision
to include the instruction on voluntary intoxication constituted an abuse of
discretion. Allsup’s second assignment of error is overruled.
Third Assignment of Error
{¶35} In his third assignment of error, Allsup argues that the trial court
erred when it denied his motion for acquittal. Allsup maintains that the
prosecution did not present sufficient evidence to establish his guilt beyond a
reasonable doubt on the charge of felonious assault of a peace officer under R.C.
2903.11(A)(2). Specifically, Allsup contends that the prosecution failed to
demonstrate that he used the pick-up truck in such a manner to constitute a deadly
weapon as defined in R.C. 2923.11(A).
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{¶36} When an appellate court reviews a record for sufficiency, the
relevant inquiry is 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. Monroe, 105 Ohio St.3d
384, 2005-Ohio-2282, ¶ 47, citing State v. Jenks (1981), 61 Ohio St.3d 259,
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,
State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of
whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson
(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other
grounds as stated in Smith, supra.
{¶37} On appeal, Allsup only contends that his conviction for felonious
assault on a police officer was not supported by sufficient evidence. Specifically,
Allsup challenges the adequacy of the prosecution’s evidence with regard to the
element of the offense requiring the use of a deadly weapon. Allsup was charged
under R.C. 2903.11(A)(2), (D)(1) which provides, in pertinent part:
(A) No person shall knowingly do * * * the following:
(2) Cause or attempt to cause physical harm to another * * *by
means of a deadly weapon* * *.
(D)(1)(a) Whoever violates this section is guilty of felonious
assault. * * * If the victim of a violation of division (A) of this
section is a peace officer or an investigator of the bureau of
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criminal identification and investigation, felonious assault is a
felony of the first degree.
(Emphasis added).
{¶38} One “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.” R.C. 2901.22(B). Physical harm to persons is
statutorily defined as “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.” R.C. 2901.01(A)(3) (Emphasis added). We
further note that the offense does not require the offender to inflict serious
physical harm in order to be found guilty of the offense. In addition, a deadly
weapon includes “any instrument, device, or thing capable of inflicting death, and
designed or specially adapted for use as a weapon, or possessed, carried, or used
as a weapon.” R.C. 2923.11(A) (Emphasis added).
{¶39} It is well established that an automobile may be used as a deadly
weapon for the purposes of R.C. 2923.11(A). See State v. Gibson, 9th Dist. No.
23881, 2008-Ohio-410, ¶14 citing Gaydesh v. Gaydesh, 168 Ohio App.3d 418,
860 N.E.2d 789, 2006-Ohio-4080, ¶16. “In determining whether an automobile is
a deadly weapon, a court should not only consider the intent and the mind of the
user, but also the nature of the weapon, the manner of its use, the actions of the
user, and the capability of the instrument to inflict death or serious bodily harm.”
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State v. Upham (May 12, 1997), 12th Dist. No. CA96-08-157, *2. The
determination of whether an automobile is used as a deadly weapon is a question
of fact for the trier of fact. Id.{¶40} At trial, Officer Deckling testified that he was pursuing Allsup’s
truck southbound on Route 31 when the pick-up truck came to a stop in the middle
of the road, straddling the yellow line. Officer Deckling stopped his cruiser
approximately fifteen to twenty feet behind Allsup’s truck. Officer Deckling
testified that he was concerned about Allsup and Wayne attempting to jump out of
the truck and run. The next thing Officer Deckling observed was the reverse lights
illuminate on Allsup’s truck. At that point, Allsup reversed his truck and rammed
it into the front driver’s side of Officer Deckling’s cruiser. Officer Deckling
recalled that the impact of the two vehicles crumpled the hood on the driver’s side
and disabled the driver’s side headlight. Officer Deckling suffered injury when
the force of the collision caused the dash of the cruiser to slam into his right shin.
Officer Deckling remembered that he immediately reported the ramming of his
vehicle by Allsup’s truck over the police radio.
{¶41} The ramming incident was not captured by the dash camera in
Officer Deckling’s cruiser because the video card was full, and had not been
cleared prior to his shift. However, the testimony of other law enforcement
personnel at trial corroborated Officer Deckling’s account of the ramming because
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they overhead Officer Deckling report the ramming over the police radio. The
prosecution submitted photographs of the damage done to Officer Deckling’s
cruiser and pieces of the front bumper that were picked up off the road where the
ramming had occurred. It is clear from the pictures that the majority of the
damage to the front of the cruiser occurred where the driver, Officer Deckling,
was situated. In total, the damage to the cruiser cost $3,166.16 to repair.
{¶42} Allsup argues that this evidence was insufficient to demonstrate that
he used the truck as a deadly weapon. Rather, Allsup maintains on appeal that he
merely used his vehicle to disable the police cruiser and not to inflict injury on
Officer Deckling. Notably, with regard to this assertion, Allsup testified at trial
that he could not recall the events of that night due to his “lapses in memory,” and
did not provide any testimony to support his contention on appeal. Nevertheless,
Allsup contends on appeal that the manner in which he used his vehicle failed to
rise to the level of use as a deadly weapon because his truck hit Officer’s
Deckling’s cruiser at a low-rate of speed. Allsup maintains that if he meant to
injure Officer Deckling, he would have hit the police cruiser with a greater rate of
speed.
{¶43} In making this argument, Allsup misconstrues the statutory definition
of what constitutes a deadly weapon. Allsup acknowledges that an automobile is a
thing that is capable of inflicting death satisfying the first requirement of R.C.
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2923.11(A). However, to satisfy the second requirement of R.C. 2923.11(A) the
automobile merely needs to be “used as a weapon,” not as Allsup appears to
contend that it must be used as a deadly weapon. (Emphasis added). Moreover,
other courts have found that there was sufficient evidence to establish the
commission of felonious assault with a deadly weapon under R.C. 2923.11(A)(2)
when the defendant used a car to ram the victim’s vehicle while the victim was
positioned inside. See State v. Gibson, 9th Dist No. 23881, 2008-Ohio-410, * 5;
State v. Tortarella, 11th Dist No. 2002-L-147, 2004-Ohio-1175, ¶ 65; In re B.B.,
8th Dist No. 81948, 2003-Ohio-5920, ¶ 17.
{¶44} Accordingly, we conclude that after viewing this evidence, in a light
most favorable to the prosecution, a rational jury could have found beyond a
reasonable doubt that Allsup knowingly attempted to cause, and did cause,
physical harm to Officer Deckling by means of his truck, a thing capable of
inflicting death and used, in this instance, as a weapon. Moreover, there has been
no dispute that Officer Deckling was a uniformed member of the City of Kenton
Police Department on active duty on the morning of April 3, 2009 providing
sufficient evidence to support the peace officer element of the charge. Based on
the foregoing, we conclude that the prosecution presented sufficient evidence to
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establish Allsup committed felonious assault against Officer Deckling in this
case.1
{¶45} Allsup’s third assignment of error is, therefore, overruled.
Fourth Assignment of Error
{¶46} In his fourth assignment of error, Allsup contends that the trial court
erred when it denied his request to remove juror Grappy for cause, which required
Allsup to use a preemptory challenge to remove Mr. Grappy from the jury pool.
Allsup argues that Mr. Grappy should have been removed for cause because he
routinely worked with law enforcement as a State of Ohio employee in the fraud
department of the Bureau of Worker’s Compensation. Mr. Grappy explained that
he analyzed computers seized by law enforcement through search warrants or in
the general course of criminal investigations related to worker’s compensation
fraud. Specifically, Mr. Grappy’s job consisted of retrieving files from computers
involved in the fraud investigations. Allsup maintains that due to the nature of Mr.
Grappy’s employment, the trial court’s failure to excuse Mr. Grappy as a
prospective juror constituted reversible error.
{¶47} A prospective juror may be challenged for cause if there is a
demonstration of bias toward the defendant. Crim.R. 24(C)(9); R.C. 2945.25(B).
1
We note that even though we find that the evidence was sufficient to support the count of felonious
assault on a peace officer as charged in the indictment, the question of whether Allsup’s guilty verdict on
this charge was supported by the manifest weight of the evidence is not before us and, therefore, we make
no conclusions as to that inquiry under this assignment of error.
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“[T]he determination of whether a prospective juror should be disqualified for
cause is a discretionary function of the trial court. Such determination will not be
reversed on appeal absent an abuse of discretion.” Berk v. Matthews (1990), 53
Ohio St.3d 161, 169, 559 N.E.2d 1301. This is so because a trial court is in the
best position to assess the potential juror’s credibility. Accordingly, the trial
court’s determination will be affirmed absent a showing that the court’s attitude is
arbitrary, unreasonable, or unconscionable. Id.{¶48} Initially, we note that there is nothing in R.C. 2945.25 or Crim.R. 24
to suggest that a person, by virtue of his employment with the State of Ohio, is
automatically precluded from serving on a jury in a criminal case. Rather, it has
been held that “[w]here actual bias is lacking * * * a state employee is not
disqualified from serving on a jury in a criminal case.” State v. Pottersnak, 7th
Dist. No. 00-JE-19, 2001-Ohio-3311, *4, quoting State v. Sims (1969), 20 Ohio
App.2d 329, 332. See, also, State v. Stockton (May 5, 1997), 3rd Dist. No. 17-96-
15 (finding that, absent a showing of actual bias, the trial court did not err in
denying defendant’s challenge for cause to a juror who was a county probation
officer).
{¶49} The proper test to determine a juror’s bias is “whether the nature and
strength of the opinion formed are such as in law necessarily to raise the
presumption of partiality * * * .” State v. Warner (1990), 55 Ohio St.3d 31, 47
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564 N.E.2d 18. Moreover, “[t]he affirmative of the issue is upon the challenger.
Unless he shows the actual existence of such an opinion in the mind of the juror as
will raise the presumption of partiality, the juror need not necessarily be set aside
* * *.” Id. at 47.
{¶50} During voir dire, Mr. Grappy stated that he routinely worked with
law enforcement in his capacity as a computer analyst in Worker’s Compensation
fraud investigations. However, the majority of the law enforcement members who
Mr. Grappy worked with were either located in Lima or Columbus. Mr. Grappy
also stated that he had not worked with any of the law enforcement personnel
involved in Allsup’s case. Mr. Grappy affirmed that his employment with the
State of Ohio would not affect his ability to be a fair and impartial juror. Defense
counsel then ceased to inquire any further about Mr. Grappy’s qualifications as a
prospective juror on the record. In raising his objection to the trial court’s
decision not to excuse Mr. Grappy for cause, defense counsel indicated that Mr.
Grappy’s employment with the State of Ohio presented a conflict.
{¶51} After reviewing the record before us, we believe that Allsup failed to
establish that Mr. Grappy had an opinion which raised a presumption of partiality.
The simple fact that Mr. Grappy is an employee of the State of Ohio, without
more, does not demonstrate that he harbored bias against Allsup and that he could
not be a fair and impartial juror in this case. Accordingly, we find that the trial
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court did not abuse its discretion when it denied Allsup’s request to remove Mr.
Grappy for cause.
{¶52} Allsup’s fourth assignment of error is overruled.
Fifth Assignment of Error
{¶53} In his fifth assignment of error, Allsup argues that the trial court
erred when it imposed upon him the same term of imprisonment that it had
imposed upon his brother, Wayne, for similar offenses. Specifically, Allsup
contends that the trial court treated him and Wayne as “similar offenders” under
R.C. 2929.11(B). Allsup maintains that his sentence should have been less than
Wayne’s, because Wayne had prior felony convictions and this was only Allsup’s
first felony conviction and therefore they are not “similar offenders.”
{¶54} Because Allsup challenges his sentence arguing that the trial court
failed to properly apply the sentencing factors under R.C. 2929.11, we review his
sentence to ascertain whether the trial court abused its discretion. See State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. An abuse of
discretion is more than a mere error; it implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶55} Section 2929.11(A) of the Revised Code provides that the trial court
must be guided by the “overriding purposes of felony sentencing,” which are “to
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protect the public from future crime by the offender and others and to punish the
offender.” R.C. 2929.11(A). Furthermore, R.C. 2929.11(B) states that a felony
sentence “shall be reasonably calculated to achieve the two overriding purposes of
felony sentencing set forth in [R.C. 2929.11(A)], commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes committed by
similar offenders.”
{¶56} At the outset, we note that “there is no grid under Ohio law under
which identical sentences must be imposed for various classifications of
offenders.” State v. Dawson, 8th Dist. No. 86417, 2006-Ohio-1083, ¶ 31. An
appellate court must examine the record not to decide whether the trial court
“imposed a sentence that is in lockstep with others, but whether the sentence is so
unusual as to be outside the mainstream of local judicial practice. Although the
offense[s] may be similar, distinguishing factors may justify dissimilar treatment.”
Id.{¶57} After reviewing the record in the instant case, it is apparent that
Allsup’s contention that he should have received a lesser sentence than Wayne due
to their disparate criminal histories lacks merit. While it may be true that Wayne
had a more extensive criminal record than Allsup, Allsup played a different role in
the commission of the offenses than Wayne. Allsup was the driver of the pick-up
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truck and in total control of the situation. The evidence supports that it was Allsup
who failed to stop his vehicle when Officer Deckling and other law enforcement
personnel signaled and ordered him to so. Allsup was the driver of the pick-up
truck that rammed Officer Deckling’s cruiser. At any point during the incident,
Allsup could have put an end to the high-speed pursuit, but instead chose to
continue a course of action which put lives in jeopardy and demonstrated a
complete disregard for risk he presented to the safety of others including himself
and his brother. Moreover, each of the prison terms imposed by the court was
within the statutory sentencing ranges for the offenses.
{¶58} Accordingly, we conclude that Allsup failed to establish that the trial
court abused its discretion. Therefore, Allsup’s fifth assignment of error is
overruled.
{¶59} Having found no error prejudicial to Allsup, the judgment of the
Court of Common Pleas of Hardin County is affirmed.
Judgment Affirmed
ROGERS, P.J., and PRESTON, J., concur.
/jnc
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