The opinion
[Cite as Cleveland v. Graham, 2024-Ohio-336.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 112103
v. :
CHRISTOPHER GRAHAM, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 1, 2024
Criminal Appeal from the Cleveland Municipal Court
Case No. 2017CRB021726
Appearances:
Mark D. Griffin, Cleveland Director of Law, Aqueelah
Jordan, Chief Prosecutor, and Susan M. Oates, Assistant
Director of Law, for appellee.
Friedman Nemecek & Long, L.L.C., Eric C. Nemecek, and
Mary K. Walsh, for appellant.
LISA B. FORBES, J.:
Christopher Graham (“Graham”) appeals his conviction for
misdemeanor assault. After reviewing the facts of the case and pertinent law, we
affirm the trial court’s decision.
I. Facts and Procedural History
On September 12, 2017, Graham, who was a Cleveland police officer
at the time, was dispatched to the scene of a fight with a report of a firearm at a gas
station. Three people were arrested that evening, including Angelina Martinez
(“Martinez”). On October 5, 2017, a criminal complaint was filed against Graham in
the Cleveland Municipal Court alleging assault in violation of Cleveland Codified
Ordinances (“C.C.O.”) 621.03(a) and unlawful restraint in violation of C.C.O.
621.08(a) in relation to his arrest of Martinez.
On March 23, 2022, a jury acquitted Graham of unlawful restraint but
failed to reach a verdict on the assault charge. The court held a second trial on the
assault, and on September 29, 2022, a jury found Graham guilty of this charge. The
court sentenced Graham to three years of community-control sanctions and seven
days in jail. Graham now appeals raising four assignments of error for our review:
I. Graham’s second trial violated his Fifth Amendment protections
from double jeopardy and his conviction must be reversed.
II. The city failed to introduce sufficient evidence to sustain the
convictions in violation of Graham’s right to due process of law as
guaranteed by Article I, Section 10 of the Ohio Constitution as well as
the Fourteenth Amendment to the United States Constitution.
III. The trial court erred in denying Graham’s motions to dismiss on
qualified immunity.
IV. Graham’s assault conviction is against the manifest weight of the
evidence.
For ease of analysis, we address Graham’s assignments of error out of
order.
II. Trial Evidence and Testimony
At Graham’s September 27, 2022 trial, which was the second trial on
the assault charge, the following evidence and testimony was presented.
A. Cleveland Police Officer James Bellomy
James Bellomy (“Off. Bellomy”) testified that he is a police officer for
the city of Cleveland and he was working on the night of September 12, 2017. Off.
Bellomy and his partner responded to a call concerning a fight at a gas station and
“there was a gun — there was a firearm mentioned.” Off. Bellomy and Graham, who
was also present at the scene, detained one of the male suspects, and Off. Bellomy’s
partner detained a second male. Both males “fit the description” of the person
suspected of having a firearm. The male suspects were handcuffed and placed in the
back of separate “zone cars.” As officers were placing the second male in the back of
a police car, “something [was] going on behind” Off. Bellomy near the zone car in
which the first suspect was detained.
According to Off. Bellomy, “there was a female that was * * * standing
at the rear window, * * * talking to whoever the male was in the back seat of that
zone car.” This female was Martinez. Off. Bellomy did not approach Martinez
because he was assisting putting the second male suspect in the back of the zone car.
Off. Bellomy did, however, advise Martinez to “step back from that zone car.”
According to Off. Bellomy, “[s]he was real close” and he told her to step back for
“officers’ safety.” Martinez responded by saying, “F*** you.” Off. Bellomy testified
that “there were other officers there” while this incident occurred. Asked how many,
Off. Bellomy answered, “I believe it was five.”
On cross-examination, Off. Bellomy testified that Martinez was
“acting up” at the gas station during the time in question. Martinez “was using foul
language and kind of irate, * * * yelling and screaming.” Off. Bellomy testified that
when he told Martinez to step back from the vehicle, she “cussed” and “gave me the
finger” before moving back “maybe a foot, foot or two. I mean, she was still near the
vehicle.” Off. Bellomy testified that, in determining whether to detain a suspect, that
individual’s conduct is “allowed to be considered by an officer on-scene * * *.”
According to Off. Bellomy, officers do not want individuals approaching detainees
in the back of zone cars. “[I]t could be anything from trying to get the person out, to
help them get out the back of the car, to provide the person in the back with either
contraband or a weapon.” Off. Bellomy further testified that it was “common” for
individuals to attempt to hide or dispose of firearms before law enforcement found
any weapons.
Off. Bellomy testified that he and his partner arrived at the same time
that Graham arrived at the scene, and they were responding to a “priority 1” call,
which is the “most serious. Those are the shootings and * * * shots fired.” According
to Off. Bellomy, the police “approach priority 1’s” differently than less serious calls
because they “are more stressful. [T]here’s usually a weapon or some sort of violence
that’s * * * been committed * * *.” Officer Bellomy further testified that the officer
who detains a suspect, including handcuffing them and putting them in the back of
a zone car, is responsible for that suspect’s safety and well-being.
Off. Bellomy further testified that at the time Martinez was detained
by Graham, the firearm that was reported in the call had not been located. Asked if
he was “still looking for a firearm and you have an individual that’s approaching the
[zone car]” and this individual is “dismissive and resistant from law enforcement’s
commands, does that cause you concern,” Off. Bellomy responded, “It does.”
B. Cleveland Police Officer Darin Gessino
Darin Gessino (“Off. Gessino”) testified that he is a police officer for
the city of Cleveland. He and his partner, Officer Dejesus, responded to a “code 1
priority” call on September 12, 2017, at a gas station “for a fight in progress and a
possible gun involved as well.” Off. Gessino testified that he and his partner were
the third zone car to arrive at the scene, which, according to Off. Gessino, was
“somewhat chaotic.”
Off. Gessino testified that he was the second police officer to tell
Martinez to “[g]et away from the car.” Martinez responded by saying, “Hell no” and
“What the f***.” Off. Gessino was shown his body-camera video from the incident
in question, and he testified that Graham told Martinez to “[s]top and relax” and
Martinez responded by “continuing to say, ‘What the — * * *.’”
Asked if “it would be inappropriate for a male officer to put his hand
near [a female suspect’s] breast area,” Off. Gessino answered as follows: “It would
be inappropriate to do that, uh, unless there was some sort of struggle that, you
know, if someone’s moving around a lot, you might not be thinking where your
hands are.” Off. Gessino testified that Graham initially put Martinez in the “escort”
position, meaning that she was placed against, and facing toward, Graham’s zone
car. According to Off. Gessino, “[W]e can hold someone so that if they were to try to
fight or run, then we would be able to react quickly in that situation.” However,
Martinez “turns herself away from the car and now is facing * * * Graham.” Off.
Gessino recalled Martinez kicking Graham and stating “hell no” when Graham was
attempting to detain her. According to Off. Gessino, it “appeared” that Martinez
kicked Graham “at some point in time as [she] is pushed against the zone car and
Graham’s hand is near her throat * * *.”
Off. Gessino was asked if any “force or restraint” was used against
Martinez after she was placed in handcuffs, and Off. Gessino replied, “To my
knowledge, no.” He further testified as follows about what Graham said after
Martinez was on the ground and handcuffed: “I believe I heard him say that she
kicked him in the balls and that she was going to be arrested for that.”
C. Angelina Martinez
Martinez testified that she was “[f]resh out of high school” and had
just turned 18 when the incident at issue in this case took place. She went to a
Sunoco gas station to “get[] snacks with friends.” Martinez’s friends “got into a fight
with * * * one of the workers and then another co-worker,” and then the police
arrived. Martinez was “walking back and forth” from the store to the police car to
“check on [her] friends * * *.” According to Martinez, Graham “just came over and
was very aggressive with me.” Martinez testified as follows as to the details:
Um, he had asked me to step away from a cop car, and I was listening.
I did step away from the cop car. I obeyed his order. Uh, he was yelling
still, so I said the F word. I said, “F you” to him.
I believe I flipped him off. Um, and I don’t think that he liked that; he
felt disrespected. So he just came over and put his hand around my
throat, I believe in the video. It happened very fast. But he basically
grabbed me by my throat. He pinned me to the ground with his knee.
He pulled my hair with his hand. I don’t think he intentionally pulled
my hair. But when I was choking, it just happened. Sorry. After being
very violent with me, he charged me with assault on an officer and put
me in a cop car and sent me to jail.
Martinez clarified that the police had to tell her “more than once to
step away from the cop car” and that Graham engaged with her after she “listened
to the order * * *.” The prosecutor played Off. Gessino’s body-camera video for the
jury during Martinez’s testimony and asked her to describe what occurred.
According to Martinez, she “instantly” stepped away from the zone car after the
officers ordered her to step back, “but [Graham] was already walking towards” her.
He said he was arresting me for assault on an officer, but he started
arresting me before our bodies came in contact. So obviously I was
reactive. I was freaking out because I knew what he was doing was
wrong. I knew he wasn’t allowed to grab me like that. I knew a cop
wasn’t allowed to manhandle me like that. * * * He grabbed me by my
throat and he pinned me against the cop car.
Asked if Graham touched her anywhere else after “his hands were on
your throat,” Martinez replied, “I don’t recall. I just — I know his knee was in my
back when I was on the ground. I had trouble breathing.” Asked what was “going
through her mind” when Graham “threw you to the ground,” Martinez replied as
follows: “I don’t know. I’m 90 pounds. * * * He could have killed me. I’m sure I
overreacted but it felt justified at the time because I was scared.”
Martinez testified that she took pictures of the bruises she had on her
neck that night. Martinez identified three photographs depicting “minor bruising
on the side [of her throat] where [Graham’s] fingers dug in.” These pictures, which
show bruises on the left, right, and center of her throat, were introduced into
evidence at the trial. Martinez further testified that there was no bruising on her
throat “before [Graham] touched” her. Asked how long the bruises lasted, Martinez
testified as follows: “A couple weeks. The marks, the dark bruises lasted for about a
week or two and then there were like red marks, you know, just normal bruises.”
On cross-examination, Martinez testified about bruising on her wrist,
which she also took photographs of on the night in question. According to Martinez,
while she was in the back of the police cruiser after being arrested, she “jumped” her
handcuffs and injured her wrist. Graham’s defense attorney explained that
“jumping” the handcuffs is when you “take your cuffs from underneath the back of
your legs under your feet and pull your wrists in front * * *,” and Martinez agreed
that this is what she did.
Martinez asserted on cross-examination that she did not resist being
arrested, claiming that “I didn’t know I was being arrested” and that Graham “didn’t
tell me I was being arrested until I was on the ground and his knee was in my back.”
She further claimed that she did not recall whether Graham spun her around after
initially having her up against the police car, or whether she did that on her own.
D. Cleveland Police Officer Juan Dejesus
Juan Dejesus (“Det. Dejesus”) testified that he is a detective for the
City of Cleveland, Division of Police, and was working as a patrol officer on
September 12, 2017, when he responded to the call at the gas station in question in
this case. Det. Dejesus was Off. Gessino’s partner at the time. Asked what the call
concerned, Det. Dejesus answered, “I know it involved a gun.” When Det. Dejesus
arrived, two males had already been apprehended and were being put in the back of
zone cars. Det. Dejesus heard another officer say, “Get away from the vehicle,” and
he turned around to see Martinez standing by one of the cars with a male “detained
in the back seat.” According to Det. Dejesus, there were “a lot of people [there], so
it was kind of hectic.” He was “focused [on] if there is a gun, did we find the gun,
where was it at * * *.” Det. Dejesus’s sergeant told him to “go get” Martinez.
Det. Dejesus’s body-camera video was played for the jury. He testified
that, at one point, Graham’s hands were on Martinez’s neck. Det. Dejesus put his
arm on Martinez’s arm “to assist detaining her.” Det. Dejesus let go of Martinez
when Graham “was taking her down,” because he “didn’t want to * * * pull her one
way [while] she was getting taken down.” Det. Dejesus explained as follows: “I felt
due to her stature I didn’t have to hold her because she was already getting taken
down. When I let her go, she was getting already taken down.” Det. Dejesus testified
that Graham had “the angle” to take Martinez down, but if he “had the right” angle,
he would have “taken her down.”
The following colloquy took place during Det. Dejesus’s direct-
examination regarding “levels that [officers] have to walk through and the type of
force [officers] are allowed to use based on” the general police order from the
Cleveland Division of Police (the “GPO”) which establishes the “Use of Force”
policy:1
Q: Uh, and what is the first one?
A: Force level A is [officers] shall first attempt verbal persuasion tactics
and warnings to gain the person’s cooperation.
Q: Okay. Let me stop you there.
[A portion of Det. Dejesus’s body-camera video was played for the jury.
An officer can be heard off camera telling Martinez to “get away from
the car.” Two officers walk toward Martinez, yelling, “Hey! Hey!”
Martinez backs two steps away from the police car as the officers
approach her.]
Q: Uh, would that be [an] example of verbal tactics, sir?
A: Yes.
Q: Okay, uh, turning your attention back to [the GPO], can you read us
the next line or the next step?
A: “If, uh, verbal persuasion and warning do not gain compliance,
[officers] shall obtain assistance to gain the person’s cooperation
through a show of force.”
Q: Uh, what does show of force mean, officer?
A: Uh, it can mean a couple different things. It’s, you know, officers’
presence. The officers’ there as a show of presence. That’s a show of
force, uh, or physical force, detaining somebody.
1 The GPO was introduced into evidence as the City’s exhibit No. 11. The contents
of the GPO are more fully addressed in the next section of this opinion.
Q: Okay. Uh, and in this instance after the verbal commands, so we
have compliance?
A: Uh, it appears so, yes.
Q: Okay. But we still continue on the progression, correct, in terms of
force used?
A: Uh, yes.
Q: Uh, can you read the next line in what the next step is in terms of
force usage.
A: “If a show of force does not gain compliance the [officers] shall use
physical holds.”
Q: So physical hold is actually the third step, correct?
A: Right.
Q: And in this instance you actually had compliance after the first step,
correct?
A: It appears so, yes.
Q: So there was no need to proceed to step 2 or step 3, correct?
A: Correct.
Det. Dejesus testified that, pursuant to the GPO, officers shall
consider “alternative tactics to the use of force,” including allowing “time or
opportunity for a person to regain self-control or cease struggling * * *.” In applying
this policy to the situation at hand, Det. Dejesus testified that Graham allowed
Martinez “less than a minute” or “maybe 30 seconds” to “stop resisting.”
Det. Dejesus further testified that, pursuant to the GPO, officers shall
consider various factors when choosing how to respond to a situation. Pertinent to
this appeal, Det. Dejesus testified that Martinez was “small in stature” and he is
“bigger in stature.” Det. Dejesus further testified as follows: “I’m 210 pounds. I
realized she was small. And if I held her, I could have, you know, harmed her.”
On cross-examination, Det. Dejesus testified that he and his partner
arrived on the scene “significantly later” than Graham and, when this happens, he
would typically rely on information he received that the earlier officer “may know
* * * to make decisions if they have more information than” he does. Asked if
Graham “had significantly more knowledge of what was happening on the scene
before you arrived,” Det. Dejesus answered, “That’s correct.” Det. Dejesus further
testified that he was responding to a call involving a firearm, which is the “highest
priority” type of call.
Det. Dejesus agreed with defense counsel when asked if the Use of
Force Policy should not be “looked [at] in a vacuum.” According to Det. Dejesus,
“there’s other things that can be taken into consideration if the detention is
appropriate based on the procedures and the policy * * * at that time.” Det. Dejesus
also agreed that, when he was ordered to assist Graham in Martinez’s detention, he
did not have any “intel.” Det. Dejesus testified that, because Graham arrested the
male suspect with whom Martinez was trying to talk, Graham was “responsible” for
this suspect. According to Det. Dejesus, when the police are “in a situation involving
a firearm,” they “don’t want individuals getting close to the police car where
someone’s detained.” Det. Dejesus testified that evidence could be “passed over.
[S]omebody could open the door, * * * situations like that.” According to Det.
Dejesus, this is a “safety concern” and an “evidence compromising concern.”
Det. Dejesus testified that when Martinez was asked to move away
from the police car the first time, she “gave the gesture” and “cussed” at the officers.
According to Det. Dejesus, when Martinez did back away from the police car, she
moved a “[c]ouple feet.” In Det. Dejesus’s opinion, as a “reasonable officer,” this is
not a “safe distance” away from a zone car. Det. Dejesus testified that Graham
placed his hands on Martinez’s “neck region” after Martinez “spun around, * * *
indicating to law enforcement that she was not going to allow herself to be cuffed
* * *.” Asked if her “turbulent behavior” continued, Det. Dejesus answered, “That’s
correct.” Det. Dejesus testified that he did not know what happened with Martinez
after Graham detained her because he was still looking for the firearm that was
reportedly seen during the fight, which at that point in time, had not been located.
Asked if Martinez’s behavior was cooperative or resistant, Det.
Dejesus answered, “Resistant.” The detective further testified that if somebody is
“resistant,” an officer might inadvertently touch that person. Defense counsel asked
Det. Dejesus if, but for Martinez’s conduct, Graham was “engaging her physically
within policy.” Det. Dejesus replied, “Yes.”
E. General Police Order
As testified to by Det. Dejesus, the GPO establishes the City’s “Use of
Force” policy. In general, the GPO states that police officers “shall use only the force
that is objectively reasonable to effectively bring an incident under control, while
protecting the life of the [officer] or others.” The GPO also states that excessive force
is strictly prohibited. Furthermore, “[u]se of force decisions are dictated by the
actions of the resistant or combative person, [police] policy, proper tactics, and
training.” (Emphasis omitted.)
Force is defined in the GPO as follows: “any physical strike or
instrumental contact with a person, or any significant physical contact that restricts
movement of a person.” Included within the document’s examples of force are
“[u]se of a[n officer’s] body part(s) to strike a person”; “[a]ctively holding/pinning a
person against the ground or other fixed object”; “[a]ny deliberate force which
causes injury to a person or causes a person to fall or collide with an object”; and
“[a]ny other less lethal physical action required to control a resistant, combative, or
violent person.”
Objectively reasonable force is “that level of force that is appropriate
when analyzed from the perspective of a reasonable officer possessing the same
information and faced with the same circumstances as the officer who actually used
force.” Furthermore, “[o]bjective reasonableness is not analyzed with hindsight, but
will take into account, where appropriate, the fact that officers must make rapid
decisions regarding the amount of force to use in tense, uncertain, and rapidly
evolving situations.”
An “Actively Resistant” person is defined as follows: “one who takes
an offensive or a physically resistant action. These actions can take the form of * * *
the person using active physical resistance to custody * * *.”
The GPO explains the “force level” that officers should use in “police-
involved use of force” situations. Pertinent parts of this explanation follow:
Force Level
A. [Officers] shall first attempt verbal persuasion tactics and warnings
to gain the person’s cooperation. If verbal persuasion and warnings do
not gain compliance, [officers] shall obtain assistance to gain the
person’s cooperation through a show of force. If a show of force does
not gain compliance, the [officer] shall use physical holds.
B. [Officers] shall determine the level of force necessary to protect
themselves or others, or gain compliance from combative, resistant, or
violent persons. [Officers] shall consider alternative tactics to the use
of force, which include, but are not limited to:
***
5. Judiciously allow time and/or opportunity for a person to regain
self-control or cease struggling/resisting, when their actions do not
immediately threaten the safety of themselves or others.
(Emphasis omitted.)
F. Christopher Graham
Graham testified that he was employed as a Cleveland police officer
on September 12, 2017. That night, he was a “sector supervisor” on basic patrol. He
responded to a dispatch call about a fight “with a gun” at a gas station on “136th and
Lorain.” Graham testified that this was a “priority 1” call because of the firearm and
that five police officers reported to the scene. Graham arrived at the same time as
Off. Bellomy and his partner. Det. Dejesus and Off. Gessino “were the last two-man
car that arrived.” The officers detained two male suspects who fit the descriptions
given over the radio. According to Graham, “the guy with the gun was supposed to
be wearing the camo pants.” This is the male who he detained and placed in the
back of the police car that Martinez later walked up to.
Graham patted this male down and did not find any firearms. A
second male was detained and placed in the back of a separate police car. No firearm
was found on this male either. Graham testified that “we only had two of the four
players and no guns at this point.” Graham began to tell Det. Dejesus and Off.
Gessino “what had transpired prior to their arrival,” when Off. Bellomy “blurted out,
‘Get away from the car’” to Martinez. According to Graham, Det. Dejesus and Off.
Gessino then “blurted out, ‘Get away from the car.’ One, two, three officers had given
a command.”
Graham testified that “red flags were going off” concerning Martinez
“being right up against the car” in which one of the male suspects was detained, her
failure to follow the officers’ commands, and the fact that the officers “were still just
trying to locate the other missing people that were involved and get the guns that
were still floating around * * *.” According to Graham, it was “a dangerous issue.”
Graham testified that “bad things can happen” when an unidentified person has
access to a suspect in handcuffs. Graham also testified that Martinez’s movement
“a foot or two” away from the car did not make him feel safe. Graham made the
decision to detain Martinez.
So I want to detain her, put her in handcuffs, and if she’s armed, pat
her down, figure out who she is if she’s involved in the fight, if she’s
involved with the gun, if she’s involved with the guy in the back seat.
All these questions but I don’t have answers to them yet. So we were
gonna handcuff her and hold on to her until we further figured it out.
Asked specifically if he intended to cause Martinez harm, Graham
testified as follows: “No. Actually, uh, quite the opposite. * * * The fact that my hand
ended up on her neck was just me pushing her back, and it’s inadvertent. * * * My
target zone is above her breasts, below her chin. * * * When I put her in the escort
position to get her over the car where I would have held her against the car and then
handcuffed her, when she spun, that’s a danger clue.”
On cross-examination, the prosecutor asked Graham what he did
after hearing the command to Martinez to get away from the car and seeing
Martinez’s reaction. Graham answered as follows: “I told either Dejesus or Gessino,
whoever was closest to me, * * * ‘Cuff her up,’ I think [were] the words I used.”
Graham testified that he did not believe Martinez complied with officers’ orders
because, although she stepped back, as the officers approached her, she “was still
very close to the car.”
Asked about his “physical interactions with” Martinez, Graham
testified that he had the “first contact” with Martinez, and he “pin[ned] her against
the zone car.” Martinez then “spun out of” Graham’s hold on her and faced him.
According to Graham, “when somebody starts to resist your efforts of law
enforcement, it can be a precursor to violence.” When Martinez spun around,
Graham still had one hand on her right arm. According to Graham, his other hand
is pushing Martinez “back on the car.” Asked where on her body is his other hand
touching Martinez, Graham answered, “Throat and chest.” The prosecutor asked
Graham if his hand was on Martinez’s neck, and Graham responded, “Yes, ma’am.”
G. Body-Camera Videos
Three police body-camera videos were introduced into evidence at
trial. Two of these videos detail what occurred between Graham and Martinez.
Martinez was asked to step away from the police vehicle twice before she moved and
swore at the officers. Three officers approach Martinez, who is still standing within
a couple feet of the police vehicle. Graham holds Martinez’s right arm behind her
back and pins her against the police car as he attempts to put her in handcuffs. At
this time, Martinez is facing the police car with her back to the officers. Martinez
appears to spin around to face Graham, attempts to punch him by swinging her left
arm, and kicks him. Graham pins her back against the police car by putting his hand
on her throat for approximately three seconds. At this point, another officer holds
her left arm as Graham takes her to the ground. An officer is heard telling Martinez
to “relax.” Graham holds her down and the other officer puts her in handcuffs.
III. Law and Analysis
A. Double Jeopardy
In his first assignment of error, Graham argues that his second trial
violated his protection against double jeopardy because it required “relitigation of
factual issues already resolved by the first” trial when he was acquitted of unlawful
restraint. Graham further argues that the alleged double-jeopardy violation “was
further exacerbated by the lack of any curative instruction from the court either
advising the jury as to the limited purpose for which such evidence could be
considered and/or informing them that the legality of the arrest or detention was
not an issue in dispute.”
Graham was acquitted of unlawful restraint in his first trial. The
Double Jeopardy Clauses of the United States and Ohio Constitutions protect
against ‘“a second prosecution for the same offense after acquittal,’” among other
things. State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 15,
quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969). See also Fifth Amendment to the U.S. Constitution (No person shall “be
subject for the same offence to be twice put in jeopardy of life or limb * * *.”).
Therefore, under the double jeopardy protection, Graham cannot be
retried for unlawful restraint of Martinez concerning her arrest on September 12,
2017. See Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 24 (1978)
(Double jeopardy “affords the defendant who obtains a judgment of acquittal at the
trial level absolute immunity from further prosecution for the same offense * * *.”).
In the case at hand, Graham was not retried for unlawful restraint.
Rather, he was retried for assault after his first trial resulted in a hung jury on the
assault charge. We find that being retried for assault did not violate Graham’s
protection against double jeopardy. See State v. Plott, 3d Dist. Seneca No. 13-14-21,
2015-Ohio-932, ¶ 4 (“[D]ouble jeopardy does not preclude a second prosecution for
the same offense after a mistrial declared by the trial court based on the fact that the
jury could not reach a verdict on any of the charges.”).
Additionally, we find no merit to Graham’s argument that his second
trial required “relitigation of factual issues already resolved by the first,” which
amounts to a double-jeopardy violation. See State v. Smith, 162 Ohio St.3d 353,
2020-Ohio-4441, 165 N.E.3d 1123, ¶ 21 (“The United States Supreme Court has held
that the federal double jeopardy provision does not preclude evidence of conduct
that was subject to a prior acquittal from being introduced as other-acts evidence in
a subsequent trial for a different offense.”).
This “successive prosecutions” argument necessarily contemplates
being tried for two separate offenses. A “person may not be subjected to multiple
prosecutions when proof of one offense is necessary, as a practical matter, to prove
the other, and both contemplated offenses arose out of the same criminal conduct.”
State v. Thomas, 61 Ohio St.2d 254, 261, 400 N.E.2d 897 (1980). The Thomas Court
also held that “successive prosecutions will be barred in some circumstances where
the second prosecution requires the relitigation of factual issues already resolved by
the first.” Id. at 260. See also State v. Liberatore, 4 Ohio St.3d 13, 445 N.E.2d 1116,
1118 (1983) (Double jeopardy “protects the accused from attempts to relitigate facts
underlying a prior acquittal.”).
Pursuant to C.C.O. 621.08(a), unlawful restraint is defined as follows:
“[n]o person, without privilege to do so, shall knowingly restrain another of his or
her liberty.” Pursuant to C.C.O. 621.03(a), assault is defined as follows: “[n]o person
shall knowingly cause or attempt to cause physical harm to another.”
The Ohio Supreme Court has applied the test developed by the United
States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,
76 L.Ed. 306 (1932), to determine whether two offenses are the same for double
jeopardy purposes. State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d
542, ¶ 18. “The applicable rule is that where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” Blockburger at 304. “[W]here the two offenses
for which the defendant is punished or tried cannot survive the ‘same-elements’ test,
* * * double jeopardy bars additional punishment and successive prosecution.”
United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
“This test focuses upon the elements of the two statutory provisions, not upon the
evidence proffered in a given case.” Thomas at 259.
A conviction for unlawful restraint requires the prosecution to prove,
in part, that the defendant restrained another person’s liberty. C.C.O. 621.08(a).
Assault, on the other hand, requires the prosecution to prove that the defendant
knowingly caused or attempted to cause physical harm to another. C.C.O. 621.03(a).
Unlawful restraint does not contain an element of “harm,” and assault does not
contain an element of “restraint.” Upon review, we find that these two offenses
survive the Blockburger test, because “each * * * requires proof of a fact which the
other does not.” Blockburger at 304. Therefore, double jeopardy does not apply.
We further find that, because there is no double-jeopardy violation, it
could not have been “further exacerbated by the lack of any curative instruction from
the court * * *.” See State ex rel. Tracy v. Indus. Comm., 121 Ohio St.3d 477, 2009-
Ohio-1386, 905 N.E.2d 625, ¶ 36 (“An exacerbation, by definition, is a worsening
* **.”).
Accordingly, Graham’s first assignment of error is overruled.
B. Sufficiency of the Evidence
In his second assignment of error, Graham argues that because
Martinez resisted arrest, the state was required to present evidence that he used
“excessive or unnecessary force” to obtain an assault conviction against him.
1. Prosecution of Law Enforcement Officers
A “law enforcement officer has a privilege to use reasonable force in
the discharge of his official duties.” State v. Bolton, 2018-Ohio-1551, 111 N.E.3d 545,
¶ 23 (6th Dist.), citing State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d
939, ¶ 14, 17. See also Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989) (“Fourth Amendment jurisprudence has long recognized that
the right to make an arrest or investigatory stop necessarily carries with it the right
to use some degree of physical coercion or threat thereof to effect it.”); Tennessee v.
Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.E.2d 1 (1985) (The question regarding
the amount of force used by law enforcement officers is “whether the totality of the
circumstances justified a particular sort of search or seizure.”). The United States
Supreme Court has held that “all claims that law enforcement officers have used
excessive force * * * in the course of an arrest, investigatory stop, or other ‘seizure’
of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard * * *.” (Emphasis sic.) Graham at 395.
We note that “[w]hile not new, reported instances of Ohio law
enforcement officers prosecuted for their on-duty conduct are at least infrequent.”
State v. White, 2013-Ohio-51, 988 N.E.2d 595, ¶ 54 (6th Dist.), aff’d by White, 142
Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939. The White Court further noted that
when a police officer uses excessive, rather than reasonable, force while he or she is
on duty, “such conduct has typically resulted in a civil suit * * *.” White at ¶ 53. “The
merits of such claims are determined under the doctrines for evaluating police uses
of force that have evolved principally from” Graham and Garner. Id. Courts use
this same body of law when police officers are faced with criminal prosecutions.
“Given that a police officer is authorized and, indeed, frequently obligated to use
force * * * the benchmark of the ‘objectively reasonable officer’ is not just
appropriate for criminal prosecutions, but necessary.” White at ¶ 57.
In evaluating whether use of force was objectively reasonable, courts
have “identified several contextual considerations,” including the following: “the
severity of the crime at issue, whether the suspect pose[d] an immediate threat to
the safety of the officers or others, and whether he (or she) is actively resisting arrest
or attempting to evade arrest by flight.” Graham at 396, citing Garner at 8-9. The
White Court stated that “[o]ther relevant considerations may, and often do, exist.”
White at ¶ 69.
These include whether the incident occurred at night, “the suspect’s
demeanor,” the “size and stature of the parties involved,” and whether
the suspect was “intoxicated and noncompliant.” Davenport v.
Causey, 521 F.3d 544, 551 (6th Cir.2008). Also relevant is whether the
suspect is, or appears to be, violent or dangerous, the duration of the
confrontation, whether it occurs during a chase or an arrest, the
possibility that the suspect may be armed, and the number of suspects
with whom the officer must contend. See, e.g., Kopec v. Tate, 361 F.3d
772, 777 (3d Cir.2004).
Id. Furthermore, the White Court noted that these factors are not meant to be an
exhaustive list. “Rather, they are simply examples to assist the trier of fact in
assessing the reasonableness of force under particular circumstances.” Id. at ¶ 68.
2. Standard of Review
“[A]n appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d
259, 273, 574 N.E.2d 492 (1991). “A challenge to the sufficiency of the evidence
supporting a conviction requires the court to determine whether the prosecution has
met its burden of production at trial.” State v. Toby, 8th Dist. Cuyahoga No. 106306,
2018-Ohio-3369, ¶ 19. That 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.” Jenks at paragraph one
of the syllabus. “In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law.” State v. Thompkins, 78
Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
3. Analysis
Upon review, we find that Martinez testified that Graham “just came
over and put his hand around my throat * * *.” She further testified that Graham
was “very violent” with her, she “knew” Graham was not “allowed to manhandle
[her] like that,” and Graham “could have killed” her. Martinez weighed only 90
pounds, significantly less than Graham.
Det. Dejesus testified about the “levels that [officers] have to walk
through and the type of force [officers] are allowed to use” to “gain * * * cooperation
[or] compliance” under the GPO. Officers “shall first attempt verbal persuasion
tactics and warnings”; second, officers can use “a show of force”; third, officers “shall
use physical holds.”
Det. Dejesus testified that, at one point, Graham’s hands were on
Martinez’s neck. He further testified that it “appeared” that there was “compliance”
after the “verbal commands,” which is the first “step.” Asked if “there was no need
to proceed to step 2 or step 3,” Det. Dejesus answered, “Correct.” Furthermore,
Graham admitted that his “hand ended up on [Martinez’s] neck * * *,” and the body-
camera video evidence corroborates this testimony.
To convict Graham for assault pursuant to C.C.O. 621.03(a), the City
was required to prove that he “knowingly cause[d] or attempt[ed] to cause physical
harm to” Martinez. Additionally, because Graham was a police officer acting in the
line of duty on the night in question, the state was also required to show that the
force Graham used against Martinez was not “reasonable” under the totality of the
circumstances.
Upon review, we find that the City presented sufficient evidence to
convict Graham of assault. The evidence presented at trial was sufficient, if believed,
to establish that he knowingly put his hands around Martinez’s throat, which caused
visible bruising and, which was not reasonable under the circumstances.
Accordingly, Graham’s second assignment of error is overruled.
C. Manifest Weight of the Evidence
In his fourth assignment of error, Graham argues that “multiple
inconsistencies and pervasive credibility issues plaguing Martinez’s testimony
render the trier of fact’s decision against the manifest weight of the evidence.”
Specifically, Graham argues that Martinez’s testimony is inconsistent with the police
officer’s body-camera videos showing that she “failed to comply with the officers’
initial commands” and that he “did not immediately grab Martinez by the neck
* * *.”
A manifest-weight-of-the-evidence challenge “addresses the
evidence’s effect of inducing belief. * * * In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s?” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “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 the ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541. Reversing a conviction under a manifest-
weight theory “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
This court has held that “a defendant is not entitled to reversal on
manifest weight grounds merely because certain aspects of a witness’ testimony are
inconsistent or contradictory.” State v. Flores-Santiago, 8th Dist. Cuyahoga
No. 108458, 2020-Ohio-1274, ¶ 40. Upon review, we find that Martinez’s testimony
is inconsistent, in certain respects, with the body-camera videos introduced into
evidence and testimony from other witnesses. However, we do not find the
inconsistencies to be of such significance to warrant reversal.
First, Martinez testified that she “instantly” “obeyed [Graham’s]
order” to get away from the police vehicle. Off. Bellomy testified that Martinez
“cussed” and “gave [him] the finger” before moving back from the police car, but
that “she was still near the vehicle” after she moved back. Off. Gessino testified that
Martinez initially responded to the order to step away from the police car by saying,
“Hell no” and “What the f***.” Off. Gessino further testified that Graham then told
Martinez to “[s]top and relax.”
Det. Dejesus testified inconsistently regarding whether Martinez
complied with the officers’ order to step away from the police car. On direct-
examination, he stated that it “appeared” that there was compliance. However, he
also testified that in response to the first time the officers told Martinez to move, she
“gave the gesture” and “cussed” at the officers. Det. Dejesus further testified that
Martinez ultimately moved a “[c]ouple feet” away from the car, and in his opinion,
this is not a “safe distance” away from the zone car.
Second, Martinez testified that Graham “just came over and put his
hand around my throat * * *.” However, the videos show that Graham’s hands were
on Martinez’s throat only after she spun around and resisted arrest. This video
evidence is corroborated by testimony from Off. Gessino, Det. Dejesus, and Graham.
Notwithstanding these inconsistencies, upon review, we cannot say
that this is an exceptional case in which the evidence weighs heavily against the
conviction. Nor can we say that the factfinder lost its way in considering the
witnesses’ credibility and created such a manifest miscarriage of justice that
Graham’s conviction must be reversed and a new trial ordered.
Accordingly, Graham’s fourth assignment of error is overruled.
D. Denial of Motion to Dismiss — Qualified Immunity
Under his third assignment of error, Graham argues that he is entitled
to immunity from the assault charge against him because he was justified, under the
Fourth Amendment, in using the amount of force he used against Martinez.
Specifically, Graham argues that we “must consider whether every reasonable
officer would know that law enforcement cannot engage in the particular conduct
being alleged in [this] case.”
In Ohio, political subdivision immunity, which is governed by
R.C. Chapter 2744, applies to civil cases for injury or loss to persons or property. See
generally Meekins v. Oberlin, 8th Dist. Cuyahoga No. 106060, 2018-Ohio-1308,
¶ 21; R.C. 2744.02(B)(5) (“[A] political subdivision is liable for injury, death, or loss
to a person or property when civil liability is expressly imposed upon the political
subdivision by a section of the Revised Code * * *.”) (Emphasis added.);
R.C. 2744.03(A)(identifying defenses and immunities available to political
subdivisions or their employees in a “civil action * * * to recover damages * * *.”).
However, in the case at hand, Graham asks us to apply political subdivision
immunity in the criminal context.
The Eleventh District Court of Appeals has held that “the issue of
under what circumstances a police officer should be given immunity from criminal
prosecution is a matter best left to the legislature.” State v. Truckey, 11th Dist.
Ashtabula No. 2017-A-0076, 2019-Ohio-407, ¶ 38. In White, 142 Ohio St.3d 277,
2015-Ohio-492, 29 N.E.3d 939, at ¶ 41, quoting White, 2013-Ohio-51, 988 N.E.2d
595, at ¶ 85, the Ohio Supreme Court declined to address the issue of “immunity
from criminal liability,” which “‘might protect police officers from criminal
prosecution for using deadly force’” because the appellant forfeited this claim by
failing to raise it in the trial court. We agree with the Truckey Court that this issue
is best left to the legislature.
Accordingly, Graham’s third assignment of error lacks merit.
Judgment 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
Cleveland Municipal 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.
LISA B. FORBES, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR