State v. Littlejohn , 2011 Ohio 2035 ( 2011 )

[Cite as State v. Littlejohn, 2011-Ohio-2035.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95380
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARIO A. LITTLEJOHN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-523358
BEFORE: Kilbane, A.J., Cooney, J., and Keough, J.
RELEASED AND JOURNALIZED: April 28, 2011
ATTORNEY FOR APPELLANT
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Erica Barnhill
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Mario Littlejohn (Littlejohn), appeals his
convictions and sentences. Finding no merit to the appeal, we affirm.
{¶ 2} In April 2009, Littlejohn was charged in a five-count indictment.
Counts 1 and 2 charged him with felonious assault on a peace officer, Count 3
charged him with drug possession, Count 4 charged him with drug trafficking
with a juvenile specification, and Count 5 charged him with possessing
criminal tools. The matter proceeded to a jury trial, at which the following
evidence was adduced.
{¶ 3} On March 19, 2009, Cleveland police officers responded to a call
of shots fired at the Garden Valley Apartments in Cleveland, Ohio. Officers
Katrina Ruma (Ruma), Nicholas Sefick (Sefick), Thomas Tohati (Tohati), and
Daniel Hourihan (Hourihan) responded to the scene. Ruma observed a white
Lexus, with two occupants, parked in the parking lot. She spoke with
Salvatore Curiale (Curiale), the security officer on duty at the time. Curiale
advised that the Lexus had been parked there for about an hour.
{¶ 4} Ruma approached the Lexus to determine if the occupants
observed any activity relating to the shooting. She testified that there was a
female in the driver’s seat, a male in the front passenger seat, and a child in
the back seat. Ruma asked Taniesha Howard (Howard), the female in the
driver’s seat, to lower her window. When Howard lowered her window,
Ruma smelled marijuana and observed smoke coming out of the window. At
this point, Ruma ordered both Howard and Littlejohn, the male passenger, to
exit the Lexus. Sefick, Tohati, and Hourihan were at the scene to assist
Ruma. Tohati asked Littlejohn if he had any weapons or drugs on him.
Littlejohn responded that he had marijuana. Tohati patted down Littlejohn
and found marijuana and crack cocaine in Littlejohn’s pockets.
{¶ 5} As Tohati was handcuffing Littlejohn, Littlejohn began to run
away. Tohati held onto Littlejohn by his waist. Littlejohn dragged Tohati
on the ground for several feet until Hourihan caught up with them and
tackled Littlejohn to the ground. Littlejohn punched and kicked Tohati and
Hourihan as they attempted to subdue him. Tohati testified that once
Littlejohn went to the ground, Littlejohn began to kick him in the face, head,
and chest area very aggressively, causing him to be disoriented. The next
thing Tohati remembered was the other officers around him yelling at
Littlejohn to stop resisting. Hourihan testified that Littlejohn struck him
several times with his fists and elbows.
{¶ 6} Littlejohn was eventually secured and placed in the back of a
police cruiser. Tohati and Hourihan were transported by ambulance to the
hospital, where they were treated for their injuries. Tohati testified that he
was disoriented and experienced blurred vision in his right eye. He
sustained a bruise to his temple that persisted for three to four weeks. He
testified that the bruise was the size of his palm. Hourihan testified that as
a result of this incident, he sustained a bruised left hand and a laceration to
the scalp. At the hospital, he received a tetanus shot and x-rays. He missed
two weeks of work and then was put on light duty for three weeks because his
knuckle and wrist were bruised and he could not fully flex his hand.
{¶ 7} Littlejohn testified in his own defense. He admitted to
possessing the drugs and attempting to run away from the officers. He
testified that the officers tackled him to the ground, handcuffed him, and beat
him. Howard also testified, stating that Littlejohn was beaten by the
officers.
{¶ 8} At the conclusion of trial, the jury found Littlejohn guilty of two
counts of assault of a peace officer (the lesser included offense in Counts 1
and 2), drug possession (Count 3), and drug trafficking with the juvenile
specification (Count 4). The jury found him not guilty of possessing criminal
tools (Count 5). The trial court sentenced him to eighteen months in prison
on each of Counts 1 and 2, to be served consecutively to each other, eighteen
months on Count 3, to be served concurrently to Count 4, and five years on
Count 4, to be served consecutively to Counts 1 and 2, for an aggregate of
eight years in prison.
{¶ 9} Littlejohn now appeals, raising three assignments of error for
review, which shall be discussed together where appropriate.
ASSIGNMENT OF ERROR ONE
“The lower court erred and denied [Littlejohn] due
process of law when it imposed consecutive sentences
without making findings required by R.C. 2929.14(E) and
[Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172
L.Ed.2d 517.]”
{¶ 10} The Ohio Supreme Court has set forth the applicable standard of
appellate review for felony sentences in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, declaring that in applying “[State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470], to the existing statutes,
appellate courts must apply a two-step approach.” Id. at ¶4. 1 Appellate
courts must first “examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether
the sentence is clearly and convincingly contrary to law. If this first prong is
satisfied, the trial court’s decision shall be reviewed under an
abuse-of-discretion standard.” Id.
{¶ 11} Littlejohn relies on Ice, arguing that his sentence violates due
process because the trial court imposed consecutive sentences without
1 We recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
making the requisite findings required by R.C. 2929.14(E)(4) and 2929.41(A).2
However, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768, the Ohio Supreme Court recently addressed this argument and held that
Ice “does not revive Ohio’s former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held
unconstitutional in [Foster]. Trial court judges are not obligated to engage in
judicial fact-finding prior to imposing consecutive sentences unless the
General Assembly enacts new legislation requiring that findings be made.”
Id. at paragraphs two and three of the syllabus. As the Kalish court stated,
post-Foster, “‘trial courts have full discretion to impose a prison sentence
within the statutory range and are no longer required to make findings and
give reasons for imposing maximum, consecutive, or more than the minimum
sentences.’” (Emphasis added in Kalish.) Id. at ¶11, quoting Foster at ¶100.
{¶ 12} Therefore, the trial court in the instant case was not obligated to
make findings prior to imposing a consecutive sentence. Furthermore,
Littlejohn’s eight-year sentence is within the permissible statutory range for
his convictions. In the sentencing journal entry, the trial court
2In Ice, the U.S. Supreme Court upheld a statute that required judicial fact finding when
imposing consecutive sentences, and concluded that the Sixth Amendment to the United States
Constitution is not violated when sentencing judges, rather than juries, make the findings of facts
necessary for the imposition of consecutive, rather than concurrent, sentences for multiple offenses.
Id. at 716-720.
acknowledged that it had considered all factors of law and found that prison
was consistent with the purposes of R.C. 2929.11. As a result, we cannot
conclude that his sentence is contrary to law, and we now consider whether it
constituted an abuse of discretion. An abuse of discretion “‘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, quoting State v.
Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144.
{¶ 13} A review of the record reveals that the trial court considered the
facts of this case and Littlejohn’s prior convictions. The trial court also
considered letters from Littlejohn’s family members and a presentence
investigation report from Littlejohn’s prior criminal case. The court stated
that it did not think that he knowingly intended to assault the police officers.
Rather, the court thought he was reckless, and the jury’s verdict reflected
that accurately. Based on the foregoing, there is nothing in the record to
suggest the trial court abused its discretion by imposing consecutive
sentences.
{¶ 14} Therefore, the first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
“The verdicts finding [Littlejohn] guilty of assault of a
police officer were against the manifest weight of the
evidence[.]”
ASSIGNMENT OF ERROR THREE
“The evidence below was legally insufficient to sustain
verdicts of guilty of the offenses of assault as charged in
Counts 1 and 2 of the indictment[.]”
{¶ 15} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶113,
the Ohio Supreme Court explained the standard for sufficiency of the evidence:
“Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
such a challenge, ‘[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph
two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560.”
{¶ 16} With regard to a manifest weight challenge, the “reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s? * * * ‘When a court of appeals
reverses a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s
resolution of the conflicting testimony.’ [Thompkins at 387], citing Tibbs v. Florida (1982),
457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶25.
{¶ 17} Moreover, an appellate court may not merely substitute its view for that of the
jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 485
N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional
case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin.
{¶ 18} In the instant case, Littlejohn was convicted of assault under
R.C. 2903.13(B), which provides in pertinent part: “[n]o person shall
recklessly cause serious physical harm to another[.]” Furthermore, “[i]f the
victim of the offense is a peace officer * * * and if the victim suffered serious
physical harm as a result of the commission of the offense, assault is a felony
of the fourth degree[.]” Id. at (C)(4).
{¶ 19} R.C. 2901.01(A)(5) defines serious physical harm in relevant part
as: “(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity [or] * * * (e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves any degree of
prolonged or intractable pain.”
{¶ 20} Littlejohn argues that there was insufficient evidence of “serious
physical harm” because neither Tohati nor Hourihan required stitches and
both officers were treated and released at the hospital. As a result, he
contends the “jury lost its way” when it found him guilty of two counts of
assault. We disagree.
{¶ 21} This court has held that “[w]here injuries to the victim are
serious enough to cause him or her to seek medical treatment, a jury may
reasonably infer that the force exerted on the victim caused serious physical
harm as defined by R.C. 2901.01(A)(5).” State v. Wilson (Sept. 21, 2000),
Cuyahoga App. No. 77115, citing State v. Walker (June 18, 1987), Cuyahoga
App. No. 52391; State v. Grider (Dec. 20, 1995), Cuyahoga App. No. 68594;
State v. Huckabee (Oct. 26, 1995), Cuyahoga App. No. 67588; State v. Rushing
(Sept. 30, 1993), Cuyahoga App. No. 62688; and State v. Williams (Nov. 10,
1983), Cuyahoga App. No. 46599. See, also, State v. Davis, Cuyahoga App.
No. 81170, 2002-Ohio-7068, ¶20.
{¶ 22} Here, Tohati and Hourihan were transported by ambulance to the
hospital, where they were treated for their injuries. Therefore, the jury
could reasonably infer that the force exerted on the officers caused serious
physical harm. Wilson. Moreover, even without inferring that Tohati and
Hourihan suffered serious physical harm from the fact that they sought
medical treatment, their testimony was sufficient to convince a rational trier
of fact that they suffered serious physical harm as defined in R.C.
2901.01(A)(5)(c) and (e).
{¶ 23} Tohati testified that he was disoriented and experienced blurred
vision in his right eye. He sustained a bruise to his temple that persisted for
three to four weeks. Tohati was off from work for approximately one month
because of his injuries. Tohati further testified that he still suffers from
headaches. Hourihan testified that he sustained a bruised left hand and a
laceration to the scalp. At the hospital, he received a tetanus shot and
x-rays. He missed two weeks of work and then was put on light duty for
three weeks because his knuckles and wrist were bruised and he could not
fully flex his hand. Hourihan further testified that his hand is still a
problem and he has been in physical therapy since the injury. This evidence
demonstrates “some temporary, substantial incapacity” to satisfy the serious
physical harm element.
{¶ 24} Based on this evidence, we find sufficient evidence in the record
that Littlejohn recklessly caused serious physical harm to Tohati and
Hourihan. We further find that this is not the extraordinary case where the
“jury lost its way” and created a manifest miscarriage of justice.
{¶ 25} Accordingly, the second and third assignments of error are
overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and
KATHLEEN A. KEOUGH, J., CONCUR