[Cite as State v. Sepulveda,
2016-Ohio-7177.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-16-03
v.
FERNANDO D. SEPULVEDA, OPINION
DEFENDANT-APPELLANT.
Appeal from Celina Municipal Court
Trial Court No. 16CRB00012
Judgment Reversed and Cause Remanded
Date of Decision: October 3, 2016
APPEARANCES:
Richard M. Delzeith for Appellant
George E. Moore for Appellee
Case No. 10-16-03
SHAW, P.J.
{¶1} Defendant-appellant, Fernando D. Sepulveda (“Sepulveda”), brings
this appeal from the February 9, 2016, judgment of the Celina Municipal Court
sentencing Sepulveda to an aggregate 12-month jail term after he was found guilty
in a bench trial of Sexual Imposition in violation of R.C. 2907.06(A)(3), a third
degree misdemeanor, Menacing in violation of R.C. 2903.22(A), a fourth degree
misdemeanor, Resisting Arrest in violation of R.C. 2921.33(A), a second degree
misdemeanor, and Assault in violation of R.C. 2903.13(A), a first degree
misdemeanor.
Relevant Facts and Procedural History
{¶2} On the evening of January 5, 2016, through the early morning hours of
January 6, 2016, H.K. was playing cards and drinking alcohol with three friends at
her residence in Celina. Those playing cards with her included H.K.’s friend
Jennifer Fischer, Sepulveda, and a man named Steven. Sepulveda’s girlfriend was
at H.K.’s residence earlier in the evening but she had gone home. According to
H.K., Sepulveda was staying in her spare room and had been for a little over a week
because he was otherwise homeless.
{¶3} At some point in the early morning hours of January 6, 2016, H.K. fell
asleep on her recliner in the living room and Jennifer went to sleep on the living
room couch. Later, Jennifer woke and saw Sepulveda, naked, performing oral sex
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on a sleeping H.K. Jennifer stated that H.K. was definitely asleep, and that
Sepulveda had H.K.’s pants and underwear all the way off in the recliner. Jennifer
testified that when she saw what was going on she pushed Sepulveda off of H.K.
and awoke H.K.
{¶4} H.K. indicated that she awoke with her pants down, realized what was
going on, and then got a frying pan and chased Sepulveda into the spare room. H.K.
stated that she struck Sepulveda with the pan. H.K. stated that she never consented
to the sexual contact that evening, and that she had never had any sexual contact
with Sepulveda before. After chasing Sepulveda into the spare room, H.K. then
called the police who promptly responded.
{¶5} Celina Police Officers Patrolman Gabe Bartlett and Sergeant Taylor1
were dispatched to the residence for a possible sexual assault. The officers spoke
with Jennifer, H.K., and Sepulveda and took written statements from Jennifer and
H.K. The officers also wore body cameras during their interactions.
{¶6} When Sepulveda spoke with the officers, he denied any wrongdoing,
claiming that he had consensual sex with “Jennifer,” though Sepulveda would later
state at trial that he had mixed up the names. Based on the statements of H.K. and
Jennifer, the officers arrested Sepulveda for Sexual Imposition.
1
Sergeant Taylor’s first name is actually not given in the transcript. It is similarly not included in the record,
as the complainant was Patrolman Gabe Bartlett. Appellee’s brief indicates that Sergeant Taylor’s first name
is Kent.
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{¶7} Sepulveda gave the officers some difficulty as they attempted to
handcuff him. In addition, once Sepulveda was handcuffed, Patrolman Bartlett
attempted to assist Sepulveda with his shoes, but at that time Sepulveda lunged with
his leg at Patrolman Bartlett. For these actions Sepulveda was charged with
Resisting Arrest.
{¶8} It took both officers to get Sepulveda out of the residence. On the way
out of the residence Sepulveda made multiple threats to Patrolman Bartlett.
Sepulveda was charged with Menacing for making these threats.
{¶9} Then, as the officers were walking Sepulveda to a police cruiser,
Sepulveda spit at Patrolman Bartlett. Patrolman Bartlett was not struck that he was
aware. Sepulveda was charged with Assault based on the spitting action. A spit-
hood was retrieved and placed on Sepulveda, and Sepulveda was transferred to the
jail.
{¶10} On January 6, 2016, complaints were filed in the Celina Municipal
Court alleging that Sepulveda committed Sexual Imposition in violation of R.C.
2907.06(A)(3), a third degree misdemeanor, Menacing in violation of R.C.
2903.22(A), a fourth degree misdemeanor, Resisting Arrest in violation of R.C.
2921.33(A), a second degree misdemeanor, and Assault in violation of R.C.
2903.13(A), a first degree misdemeanor. The assault charge specifically alleged
that Sepulveda “did spit at a police officer after being arrested.”
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{¶11} Sepulveda pled not guilty to the charges and the case proceeded to a
bench trial on February 9, 2016. At trial the State called Jennifer Fischer and H.K.
in addition to Sergeant Taylor and Patrolman Bartlett. The State also entered into
evidence the footage from the officers’ body cameras.
{¶12} After the State rested, Sepulveda testified briefly, apologizing to the
officers for his actions, which included the spitting. Sepulveda testified that he was
intoxicated and “didn’t know what [he] was doing.” (Tr. at 99). However, he
testified that he did not sexually assault H.K., that the sexual contact was
consensual, and that he had a sexual relationship with H.K. in the past. He also
testified that he had been living at the residence for several months, rather than
merely a week, and that he had been helping H.K. with her bills.
{¶13} The court ultimately found Sepulveda guilty of all four counts against
him, and ordered Sepulveda to serve maximum sentences on each count,
consecutive to each other, for an aggregate 12-month jail sentence.2 A judgment
entry memorializing Sepulveda’s convictions and sentence was filed February 9,
2016.
{¶14} It is from this judgment that Sepulveda appeals, asserting the
following assignment of error for our review.
2
Specifically, Sepulveda was sentenced to serve six months in jail on the Assault, three months in jail on the
Resisting Arrest, two months in jail on the Sexual Imposition, and one month in jail on the Menacing, all
consecutive to each other based on Sepulveda’s extensive criminal history.
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ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PLAIN ERROR BY
CONVICTING MR. SEPULVEDA OF ASSAULT UNDER
OHIO REVISED CODE §2903.13(A), SINCE INSUFFICIENT
EVIDENCE WAS INTRODUCED AT TRIAL TO PROVE
ASSAULT BY DEFENDANT’S ACTION OF ALLEGEDLY
SPITTING TOWARDS A POLICE OFFICER.
{¶15} In his assignment of error, Sepulveda argues that the trial court erred
by convicting him of Assault. Specifically, Sepulveda contends that there was
insufficient evidence to establish that spitting at Patrolman Bartlett was a knowing
attempt to cause physical harm such that it would satisfy the elements of R.C.
2903.13(A).3
{¶16} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is
a test of adequacy.
Id. When an appellate court reviews a record upon a sufficiency
challenge, “ ‘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.
Leonard,
104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 77, quoting State v. Jenks,
61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
3
Sepulveda does not challenge his convictions for Sexual Imposition, Resisting Arrest, or Menacing,
therefore we will not address them.
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{¶17} Notably, Sepulveda did not make a Crim.R. 29 motion for acquittal
either at the close of the State’s evidence or at the end of the trial, therefore he has
waived all but plain error with regard to the sufficiency of the evidence. State v.
Gipson, 3d Dist. Allen No. 1-15-51, 2016-Ohio-994, ¶ 17, citing State v. Fugate, 2d
Dist. Montgomery No. 25782, 2014–Ohio–415, ¶ 20. However, “[w]hether a
sufficiency of the evidence argument is reviewed under a prejudicial error standard
or under a plain error standard is academic.” Perrysburg v. Miller,
153 Ohio App.3d
665, 2003–Ohio–4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist.
Montgomery No. 17891 (July 14, 2000). Regardless of the standard used, “a
conviction based on legally insufficient evidence constitutes a denial of due
process,” and constitutes a manifest injustice. (Citation omitted.) Thompkins, 78
Ohio St.3d at 386–87; State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-
2716, ¶ 38
{¶18} In this case Sepulveda contests his conviction for Assault, which is
codified in R.C. 2903.13(A), and reads, “No person shall knowingly cause or
attempt to cause physical harm to another or to another’s unborn.”
{¶19} Physical harm to persons is defined in R.C. 2901.01(A)(3) as, “any
injury, illness, or other physiological impairment, regardless of its gravity or
duration.” The phrase “physiological impairment” is not further defined in the
Revised Code; however, courts have interpreted it through its plain everyday usage.
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“The term ‘physiological impairment’ may, therefore, ‘be defined as a damaging or
lessening of a person’s normal physical functioning.’ ” State v. Vore, 12th Dist.
Warren No. CA2012-07-065, 2014-Ohio-1583, ¶ 17, appeal not allowed,
139 Ohio
St.3d 1486,
2014-Ohio-3195, ¶ 17 (2014), quoting State v. Roof, 1st Dist. Butler No.
CA77–10–0110,
1978 WL 216430, * 1 (Nov. 8, 1978). Importantly, “A threshold
level of ‘physiological impairment’ must be required before one can conclude that
an ‘injury’ has occurred; otherwise, the definition of ‘physical harm to persons’ in
R.C. 2901.01(A)(3) would be no different than the definition of ‘force’ as applied
to persons in R.C. 2901.01(A)(1).”4 State v. Frunza, 8th Dist. Cuyahoga No. 82053,
2003-Ohio-4809, ¶ 8; State v. Fritts, 11th Dist. Lake No. 2003-L-026, 2004-Ohio-
3690, ¶ 18.
{¶20} In order to convict Sepulveda of Assault at trial, the State first called
Sergeant Taylor of the Celina Police Department, who gave the following testimony
related to the spitting incident giving rise to the Assault charge.
SERGEANT TAYLOR: After he was handcuffed, Sepulveda was
pushing and pulling,5 trying to turn away or towards us till we
escorted him out to the front yard area, still continued to push
and pull us.
4
To be even more specific related to the exact words, Black’s Law dictionary defines “Impairment” as “The
quality, state, or condition of being damaged, weakened, or diminished … a condition in which a part of a
person’s mind or body is damaged or does not work well, esp. when the condition amounts to a disability.”
Black’s Law Dictionary (10th ed. 2014). “Physiological” is not defined in Black’s Law Dictionary. MerriamWebster’s dictionary defines it as “characteristic of or appropriate to an organism’s healthy or normal
functioning.”
5
Sepulveda’s pushing and pulling was part of his Resisting Arrest charge.
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Even at that point I heard him make like the hawker sound
and turned his head and heard the spit noise, which would have
been – I was on [Sepulveda’s] left side, Patrolman Bartlett was on
[Sepulveda’s] right side. He turned his head to the right, towards
Patrolman Bartlett and made a spit noise I overheard at that
point.
We then placed [Sepulveda] … stomach down on the
ground until … I went to the cruiser to get a spit hood because
we didn’t want him to spit on us any longer at that point.
(Tr. at 60-61).
{¶21} Sergeant Taylor was then questioned specifically about filing the
Assault charge in the following dialogue with the prosecutor.
Q [STATE]: All right. And I believe there was an assault charge
filed as well?
A: Yes, sir.
Q: And what were the circumstances that led to that charge?
A: That would have been the spitting of his bodily fluid towards
Patrolman Bartlett in an attempt to (inaudibles).
Q: All right.
A: The spit.
Q. From your vantage point, were you able to see any spit?
A: I did not see him spit, but I clearly heard him do the hawking
noise and make the spit noise, which I would associate with him
being spitting [sic] at someone or something? [sic]
(Tr. at 62-63).
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{¶22} Sergeant Taylor was further questioned about the spitting incident on
cross-examination, leading to the following exchange between him and defense
counsel.
Q: You indicated you heard some hawker sound, spitting sound,
but you didn’t see any spitting as far as the spitting incident.
Could you testify how far away the defendant was from Officer
Bartlett when these noises occurred?
A: Officer Bartlett was in physical contact with Mr. Sepulveda’s
right arm, so he was touching him. That’s relatively close.
Q: Okay. Do you know whether he made contact with the
person of Officer Bartlett with the spittle?
A: I recall asking Officer Bartlett if he had spit on him. I don’t
think that I saw it.
Q: Okay. Okay. And the charge of this assault is based purely
on the basis of this spit, is that right?
A: Yes.
Q: And assault involves physical harm or threat of physical
harm, is that true?
A: I believe it also involves attempted.
Q: Attempted physical harm?
A: Physical harm.
Q: And what physical harm do you feel that the spit would,
could have been to Officer Bartlett.
A: Spitting in someone’s face, eyes, or nose could cause – I have
no idea what kind of ailments or, that [Sepulveda] has. It was
serious enough I think it would be cause to try to harm someone.
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…
Q: Okay. Was anyone actually injured by [Sepulveda]?
A: No injuries were incurred by the officers.
(Tr. at 74-75)
{¶23} Patrolman Bartlett was also questioned about the spitting incident that
gave rise to the Assault charge. On direct-examination, he provided the following
testimony.
A: At that point then I heard him draw in for a hawker and then
spit in my direction, near the area of my face.
Q: Approximately how close was his face from yours at this
time?
A: We was very close. I was on his right-hand side, just a little
behind. I had a hold of his arm with my left hand, so between
here and here, where his arm was, so very close.
Q: When you heard – you described as a hawking or inhaling
from the spit, did you respond in any way?
A: I tried getting out of the way, but I believe that he completely
missed me, but I’m not 100 percent sure. I didn’t feel any go onto
my eyes or onto my skin.
Q: All right. Were you concerned that it might?
A: Yes.
(Tr. at 81-82).
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{¶24} Patrolman Bartlett was then asked specifically what the factual basis
was for the Assault charge was on direct examination and, unfortunately, the
transcript only presents us with “(Inaudibles)” as his answer. (Tr. at 84). None of
Patrolman Bartlett’s response to that question was apparently able to be transcribed.
{¶25} However, on cross-examination, Patrolman Bartlett was asked,
“besides [the spitting], did [Sepulveda] make any effort … to assault you?” (Tr.
at 91-92). Patrolman Bartlett responded, “I don’t believe so except for the spitting.”
(Id. at 92).
{¶26} The preceding excerpts constitute the entirety of the testimony
presented at trial related specifically to the Assault.6 Based on this evidence, the
trial court conducted the following analysis in open court, leading to the stated
conclusion, after finding Sepulveda guilty of the other crimes alleged.
The assault was a little more complicated, but I didn’t find that
there was actual got hurt, [sic] but there certainly was an attempt.
Spitting, I don’t know if a guy would have meningitis, hepatitis,
HIV. I don’t know that he’s got any of that, but you spit, you got
bodily fluids, so I’m going to find him guilty basically beyond a
reasonable doubt, each and every essential element proved on all
charges.
(Tr. at 108).
6
The body camera footage was also entered into evidence. It was dark when the officers were removing
Sepulveda from H.K.’s residence, so anything related specifically to the spit cannot really be seen. However,
the “hawker” sound described by the officers does appear to be present in the audio.
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{¶27} On appeal, Sepulveda argues that the trial court’s conclusion is plain
error as the evidence is insufficient to convict him of Assault. Sepulveda contends
that without testimony establishing that the spit from Sepulveda harmed, or could
have harmed, Patrolman Bartlett, the State did not satisfy its burden of proof.
{¶28} To support his argument Sepulveda directs us to two appellate cases
wherein defendants had been convicted of Assault for spitting on a police officer
and their convictions for Assault were reversed. See State v. Bailey, 83 Ohio App.3d
544 (2nd Dist.1992); State v. Wyland 8th Dist. Cuyahoga No. 94463, 2011-Ohio-
455. Sepulveda notes, however, that this precise situation is one of first impression
in our district. Nevertheless, he urges us to apply the reasoning and logic of the
Second and Eighth District Courts of Appeal to this case.
{¶29} In State v. Bailey, 83 Ohio App.3d 544, the Second District Court of
Appeals reversed a defendant’s convictions for two violations of Dayton’s assault
ordinance where the defendant spit on the right arm of two officers. Dayton’s
assault ordinance was the same as R.C. 2903.13(A), reading, “ ‘no person shall
knowingly cause or attempt to cause physical harm to another.’ ” 7 Bailey at 545.
{¶30} In Bailey, the defendant originally was charged with assault by causing
physical harm to each police officer, but the charges were amended to an attempt to
7
Dayton’s ordinance also defined physical harm as “ ‘any injury illness, or other physiological impairment,
regardless of its gravity or duration.’ ” Thus it is essentially identical to R.C. 2903.13(A) and the definition
of physical harm in R.C. 2901.01.
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cause physical harm to each officer.8 Bailey was convicted at the trial court level
of attempting to harm each officer by spitting on them. Bailey appealed his
convictions to the Second District Court of Appeals, arguing, inter alia, that there
was no evidence introduced proving that the victims could have been physically
harmed by the spit.
{¶31} In Bailey, the Second District summarized the evidence presented,
which included the testimony of one officer that he was angered and disgusted when
Bailey spit on his arm. The officer testified that he felt it was a health risk by being
spit on by a “chronic drunk.” Bailey at 546. However, the officer testified that he
had “no pain, no immediate injury” and that he was not harmed that he was aware.
Id. The second officer provided similar testimony, adding that he felt
“contaminated,” and that he considered being spit on harmful because he had to
“wash up” and “take [his] clothes off and get them cleaned.”
Id. 547.
{¶32} The Second District analyzed this evidence and determined the
following.
As disclosed by the nature of the testimony of Sergeant Bardun
and Officer Fisher, the evidence was clearly inadequate to prove
that the officers suffered any immediate physical harm from the
spitting, and this development undoubtedly prompted the trial
court to amend the complaint. However, even in the amended
form, there is a dearth of evidence in the record to sustain the
8
Such an amendment did not change any statutory subsection, as Assault pursuant to both R.C. 2903.13(A)
and Dayton’s assault ordinance reads cause or attempt to cause physical harm. The State was merely
clarifying that it was asserting that Bailey had attempted to cause the officers physical harm instead of
actually causing the officers physical harm.
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charges. In fact, no testimony, expert or otherwise, was presented to
show that the sputum had any potential for bacterial or viral
physical harm to the officers.
Furthermore, the appellee failed to prove that Bailey acted
“knowingly,” as that term is defined for purposes of the assault
ordinance. To the contrary, the record is devoid of any evidence
that the appellant was aware that his conduct probably would
cause injury, illness, or physiological impairment to the arresting
officers.
We agree with Sergeant Bardun that the acts of Bailey were
disgusting, and his vile language and general conduct on August
3, 1991 were inexcusable. However, according to the evidence, the
offenses he committed did not constitute either assault or
attempted assault, and for this reason, the judgment must be
reversed and the defendant discharged.
(Emphasis added). State v. Bailey, 83 Ohio App.3d 544, 547 (2nd Dist.1992)
{¶33} In a similar factual situation to Bailey, and more closely analogous to
the case sub judice, the Eighth District Court of Appeals came to the same
conclusion as the Second District and reversed a defendant’s conviction for Assault
where the defendant actually spit in the face of a police officer. State v. Wyland,
8th Dist. Cuyahoga No. 94463, 2011-Ohio-455. In Wyland, the defendant was
charged with two counts of Assault in violation of R.C. 2903.13(A) after he kicked
a police officer and spit in the officer’s face. Wyland challenged both of his
convictions on appeal to the Eighth District. The Assault conviction related to
kicking the officer was affirmed; however, the Assault conviction related to spitting
in the officer’s face was reversed.
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{¶34} In Wyland the victim testified that the defendant spit in his face and
after the defendant spit in his face he went to the hospital to get tested for
communicable diseases, but the results came back negative. The State argued that
since the officer sought medical care it was evidence of physical harm. The Eighth
District did not agree with the State, finding that “being tested for harm as a result
of being spit on does not amount to evidence of ‘physical harm’ as required under
R.C. 2903.13(A).” Wyland at ¶ 30. Testing was not the same as treatment. The
Eighth District further reasoned that there “was no evidence in the record that
Officer Bishop suffered physical harm. Nothing in the record suggests that
defendant’s saliva was tainted, that it was tested, or that defendant carried or
believed he carried a disease that could have been transferred” to the officer through
bodily fluids. Id. at ¶ 31. The Eighth District thus reversed the defendant’s
conviction for Assault for actually spitting in an officer’s face.
{¶35} Sepulveda now asks us to adopt a rationale similar to those expressed
by the Second and Eighth District Courts of Appeal.
{¶36} The State attempts to counter the cases presented by Sepulveda by
directing us to State v. Weiss, 4th Dist. Athens No. 09CA30, 2010-Ohio-4509,
wherein the Fourth District Court of Appeals determined that there was sufficient
evidence to convict a defendant of an Athens city ordinance comparable to R.C.
2903.13(A) where the defendant threw water balloons at people. The Fourth
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District examined whether throwing water balloons could reasonably result in
physical harm, and reasoned that it could, citing a number of older treatises
containing language that “any offensive touching could constitute a battery[,]” and
“the slightest physical harm is sufficient.”9 Id. at ¶ 24, ¶ 27.
{¶37} We note that Weiss was a 2-1 decision, and the dissent specifically
stated that there was no testimony of any physical harm done. The dissent stated
that there was evidence to show disorderly conduct, but not an attempted assault.10
We would also like to emphasize that the older treatises quoted in Weiss speak of
battery as any offensive touching, but they say little of R.C. 2903.13(A)’s
requirement of physical harm.
{¶38} The legislative history to R.C. 2903.13(A) speaks to some of the
treatise language cited in Weiss, stating, “This section prohibits simple assault and
simple battery in the traditional sense.” The “traditional sense” might lead a court
to believe that “any offensive touching” thus constitutes an assault; however, it does
not alleviate the State’s burden of establishing the actual statutory element of
physical harm in R.C. 2903.13(A). We must presume that the legislature
9
Weiss quoted the following language from an 1857 treatise, which briefly mentions spitting: “ ‘A battery is
more than an attempt to do a corporal hurt to another; but any injury whatsoever, be it ever so small, being
actually done to the person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting
in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery in the
eye of the law. For the law cannot draw the line between different degrees of violence, and, therefore, totally
prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to
meddle with it in any the slightest manner.’ ” Weiss at ¶ 25, quoting 1 Russell, A Treatise of Crimes and
Misdemeanors (1857 8 Ed.) 751.
10
We note that some courts have held, however, that disorderly conduct is not a lesser included offense of
assault. See State v. Conley, 9th Dist. Summit No. 26704, 2013-Ohio-3347;
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specifically selected the term “physical harm” over some form of “offensive
touching” that had been more commonplace when the older treatises were written.
Moreover, other Ohio Appellate Courts have required physical harm as the statute
states, rather than simply requiring offensive touching. See State v. Kemper, 12th
Dist. Butler No. CA2012-04-079, 2012-Ohio-5958, ¶¶ 20-21 (shoving someone,
without evidence of injury or a clear showing of intent to do harm through shove
insufficient to support conviction of assault).
{¶39} In our own review of the case, and the caselaw that exists on the topic,
we cannot categorically find that spitting on someone would never constitute an
Assault, and to the extent that either the Bailey or the Wyland decisions can be
construed to be based on such a determination, we expressly decline to adopt them.
In sum, there are a number of situations where it would seem possible that spitting
on someone could constitute physical harm, or an attempt to cause physical harm,
such as if the defendant did have a communicable disease like HIV or Hepatitis and
knew about it, see State v. Price, 5th Dist. Fairfield No. 04CA24, 2005-Ohio-4150,
¶¶ 22-27, or if the defendant spit directly into an officer’s eye, causing pain.
However, we also believe that any such situation requires the testimony of someone
familiar with the actual or potential harm to present that evidence to the trial court.
{¶40} Unfortunately, this particular record does not appear to contain any
testimony establishing physical harm or an attempt to cause physical harm. First,
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the officers explicitly denied any evidence of harm or any contact from the spit, so
we are in the realm of “attempt to cause” physical harm in this instance. Second,
neither police officer provided any testimony as to what kind of harm could have
resulted or might have been intended from the spit had it connected with Patrolman
Bartlett. The closest testimony that was provided was Sergeant Taylor testifying
that he did not know what potential diseases Sepulveda had, but that if Sepulveda
had some disease it could have harmed Patrolman Bartlett.
{¶41} Third, the State presented no testimony that Sepulveda’s spit was
tainted or of the potential harm his spit might have caused or been intended had it
made contact. For example, there was no indication that Sepulveda was ever tested
for any communicable disease that he could transfer to Patrolman Bartlett. Nor was
there testimony that the spit could cause any physical pain.
{¶42} Moreover, the record is further diminished in this case by the fact that
the transcript is missing key passages that could not be heard by the court reporter
in creating the transcript submitted to this Court. During the questioning of the
officers when they were both specifically asked about why the Assault charge was
filed, the record contains “inaudible” segments, depriving us of potentially
important testimony.
{¶43} Furthermore, our review of caselaw reveals no cases where a
defendant has been convicted of Assault in violation of R.C. 2903.13(A) for simply
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spitting upon an officer, or attempting to spit on an officer, without additional
testimony that the spit could cause harm or did cause harm, no matter how slight.
See Correa v. Simone, 528 Fed.Appx. 531, 536 (6th Cir.2013) (stating that “spitting
on someone does not generally constitute assault in Ohio,” absent some additional
evidence). Cases do exist where a defendant has been convicted of Assault when
he spit on someone and also struck that person physically. State v. Skinner, 7th Dist.
Mahoning No. 05 MA 56,
2006-Ohio-3486, ¶ 12, 21 (“Appellant slapped McCauley
in the face and spit on her face.”). Defendants have also been convicted of
Disorderly Conduct for spitting in another person’s face. See State v. Roberts, 4th
Dist. Washington No. 98CA21,
1999 WL 152128, *1 (Mar. 11, 1999). Defendants
have even been convicted of Attempted Felonious Assault where it was shown that
the defendant had HIV/Hepatitis, knew about it, and spit blood at an officer. See
State v. Price, 5th Dist. Fairfield No. 04CA24,
2005-Ohio-4150, ¶¶ 20-27.
Defendants have been convicted of Harassment by an Inmate in violation of R.C.
2921.38(A) if the defendant spits on someone while confined in a detention facility
with intent to harass, annoy, threaten or alarm the other person. See e.g., State v.
Noble, 9th Dist. Lorain No. 04CA008495,
2005-Ohio-600. However, the State has
shown us no appellate caselaw to establish that mere attempted contact through spit,
no matter how repugnant or offensive, constitutes “physical harm” without some
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Case No. 10-16-03
testimony from any of the witnesses that there was actual or potential harm rather
than merely offense.
{¶44} Thus while Sepulveda’s act may be repugnant, and we in no way
condone it, we cannot find based on the specific facts of this case that he committed
an Assault.11 Sepulveda may have been guilty of some other crime when he spit at
Patrolman Bartlett, but absent testimony of any potential consequences related to
the physical harm, we are compelled to find that insufficient evidence was presented
to convict Sepulveda of Assault. Therefore, Sepulveda’s first assignment of error
is sustained.
{¶45} Having found error prejudicial to Sepulveda in his sole assignment of
error, the judgment of the Celina Municipal Court is reversed, and this case is
remanded to discharge Sepulveda on the Assault charge.
Judgment Reversed and
Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
11
We would note that while the State did not attempt to elevate Sepulveda’s assault, R.C. 2903.13(C)(5)
actually makes Assault a felony of the fourth degree if it is charged and specified that the victim of the Assault
is a peace officer acting in the performance of his or her duty. So if we adopted the State’s position that
simply spitting in the direction of the officer is an assault without evidence of harm, it is not only an Assault,
but a felony of the fourth degree.
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