State v. Artemus, Unpublished Decision (3-2-2007)
State v. Artemus, Unpublished Decision (3-2-2007)
Opinion of the Court
{¶ 3} In the meantime, Artemus picked up a loaf of bread and walked to the cashier. Pursuant to the instructions of the store's owners, Rabee had previously told Artemus not to return to the store. On this occasion, Rabee approached Artemus, told him that he was not allowed to be in the store, and asked him to leave. Artemus insisted that the previous problems had been resolved and that he just wanted a loaf of bread. When Rabee again demanded that Artemus leave the store, Artemus threw some money down and started to walk out of the store with the bread. As Rabee reached for the bread, Artemus grabbed Rabee by the neck and pushed him into some soda coolers, causing pain in his neck that manifested later in the day.
{¶ 4} When O'Neal saw Artemus shove Rabee, O'Neal grabbed Artemus and threw him to the ground, attempting to handcuff him. Artemus continued to struggle with O'Neal, who felt it necessary to discharge pepper spray in Artemus's face.
{¶ 5} Artemus testified on his own behalf, denying that he had previously been told not to return to the store, although admitting to two previous disagreements with store personnel. Despite the fact that Rabee was insisting that Artemus leave the store, Artemus *Page 3 claimed that Rabee was blocking his way to the door. Artemus stated that Rabee grabbed him and that, as the two tussled, O'Neal threw him to the ground and pepper-sprayed him.
{¶ 6} As a result of the altercation, Artemus was indicted on one count of Assault. The case was tried without a jury, and Artemus was found guilty as charged. The trial court ordered a ninety-day suspended sentence and two years of unsupervised probation. From his conviction, Artemus appeals.
{¶ 8} "THE TRIAL COURT ERRED WHEN IT FOUND DEFENDANT GUILTY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WITH INSUFFICIENT EVIDENCE."
{¶ 9} Artemus contends that his conviction for Assault is not supported by sufficient evidence and is against the manifest weight of the evidence. Specifically, Artemus insists that he was assaulted by Rabee and O'Neal, and that his physical limitations support his testimony because those limitations would make it difficult for him to commit assault. In response, the State first contends that Artemus waived this issue by failing to renew his Crim.R. 29 motion for judgment of acquittal at the close of all evidence. Alternatively, the State maintains that Artemus's conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. Although we do not agree that Artemus waived his contention as a result of having failed to renew his motion for judgment of acquittal, we do agree that the State presented sufficient evidence to support a conviction, and that the factfinder did not lose its way in finding Artemus guilty of Assault, beyond a *Page 4 reasonable doubt.
{¶ 10} A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins,
{¶ 11} In contrast, when reviewing a judgment under a manifest weight standard of review "[t]he court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which evidence weighs heavily against the conviction." Thompkins, supra, quoting State v. Martin
(1983),
{¶ 12} We first address the State's claim that Artemus waived his right to review of this issue when he failed to renew his Crim.R. 29 motion for acquittal at the close of all evidence. As we have previously recognized, `"[t]he purpose of a motion for judgment of *Page 5
acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, however, the defendant's plea of not guilty serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the close of all the evidence.'" State v.Chatman, Montgomery App. No. 20595,
{¶ 13} Of course, even if Artemus could be said to have waived the issue of sufficiency of the evidence, it would be hard to find a more clear-cut case of plain error: if the trial court had not committed the error of convicting a defendant on insufficient evidence, a different judgment would necessarily, not just likely, have resulted.
{¶ 14} Artemus was convicted of Assault under R.C. §
{¶ 15} Both of the State's witnesses testified that Artemus grabbed Rabee by the neck and pushed him into the coolers. There is some contention that Rabee's neck did not *Page 6 hurt for a couple of hours, and so the pain could not have been caused by Artemus. Even if this were true, however, the trier of fact could easily conclude from Artemus's actions that he intended to cause physical harm to Rabee. Thus, the State offered sufficient evidence of each element of the offense of Assault to warrant submitting the case to a trier of fact. The evidence also refutes Artemus's claim that the trier of fact lost its way in finding that he knowingly caused or attempted to cause physical harm to Rabee. The testimony of the State's witnesses is not inherently implausible, and we can see no basis, in this record, for concluding that the finder of fact lost its way in deciding to credit that testimony. This is not one of those exceptional cases warranting reversal.
{¶ 16} Artemus's sole assignment of error is overruled.
*Page 1WOLFF, P.J., and DONOVAN, J., concur.
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