The Akron Legal News

Trained fighter who punched police officer loses appeal

ANNIE YAMSON
Special to the Legal News
Published: May 28, 2014

The 2nd District Court of Appeals recently affirmed the judgment of the Montgomery County Court of Common Pleas when it ruled that the lower court properly convicted a defendant of felonious assault after he punched a police officer into unconsciousness.

The defendant, Nikolaos Boscarino, appealed from his conviction and seven-year prison sentence on charges of felonious assault on a peace officer, resisting arrest, misdemeanor assault and a repeat violent offender specification.

Boscarino challenged the sufficiency and manifest weight of the evidence against him and also alleged that he received ineffective assistance of counsel because his attorney failed to object to trial evidence about Boscarino being a mixed-martial-arts fighter.

The case stemmed from a fight that occurred outside a bar called Taggart’s Pub.

Dayton police officer Donnie Smith responded to a call about attempted theft of patio furniture in the early morning hours of Aug. 12, 2011.

Smith was speaking to the owner, Michael Taggart, and bouncer Brian Rinderle, when a white Cadillac pulled up heading the wrong way down a one-way street.

The car stopped briefly and three men got out, later identified as Boscarino and two of his friends, Anthony Ballard and Mo Rashad.

Taggart advised Rinderle that he did not want the men in the pub because it was near closing time and they already appeared intoxicated.

Smith heard the conversation and indicated that he would go speak to the group of men.

As they neared the pub, Boscarino stepped away from his friends and began urinating by some hedges.

Smith approached, identified himself as a police officer, and told Boscarino that he would be issuing a citation for urinating in public.

According to case summary, Boscarino then adopted a fighting stance and Smith stepped back, pulled out his stun gun and warned Boscarino to cooperate.

Boscarino appeared to relax so Smith began to put his stun gun away.

As he did so, Boscarino suddenly punched him twice in the face, knocking Smith to the ground.

Eyewitness Nicholas Folan testified that he saw Boscarino lean over and deliver a “vicious blow” to Smith’s head while he was down on the concrete and it appeared that the officer had been knocked unconscious.

Rinderle ran to help Smith, tackling Boscarino to the ground.

As they struggled, Smith regained consciousness and entered the fray again.

Pub patrons, including an off-duty police officer also attempted to help.

Eventually, Smith issued an officer-in-distress call. Additional officers arrived and were able to subdue Boscarino.

Upon arresting him, the officers discovered that Boscarino was a licensed mixed-martial-arts fighter.

Smith was transported to the hospital and received treatment for cuts, scrapes and a hematoma on the back of his head.

He complained of headaches, short-term memory loss and “floaters” in his vision and doctors diagnosed him with a concussion.

Smith followed up with his family doctor who testified at trial that Smith’s injuries resulted from the assault by Boscarino.

Smith had previously received treatment for a brain tumor and often complained of headaches but the family doctor, a neurosurgeon and chiropractor all testified that his symptoms were not attributable to his previous medical problems.

After hearing the evidence and witness testimony, a jury convicted Boscarino of all charges and the trial court imposed an aggregate term of seven years in prison.

Boscarino argued upon appeal that the state failed to prove that he knowingly caused serious physical harm to Smith.

However, the trial court concluded that the convictions were supported by legally sufficient evidence.

“In addition to a loss of consciousness, the record contains evidence that Smith suffered a concussion and began experiencing physical problems as a result of being assaulted by Boscarino,” wrote Judge Michael Hall for the court of appeals. “Smith presented expert testimony from which the jury reasonably could have attributed these symptoms to the blows inflicted by Boscarino and could have found serious physical harm based on them.”

After reviewing the record, the appellate panel ruled that the evidence weighed heavily in favor of conviction.

Additionally, it found Boscarino’s counsel was not ineffective for failing to object to testimony about Boscarino’s mixed-martial-arts training.

“The trial court found that evidence about his status as a licensed mixed-martial-arts fighter was highly relevant and that its probative value was not outweighed by the danger of unfair prejudice,” wrote Judge Hall.

Information about Boscarino’s training was relevant because it proved his awareness that his punches could inflict serious physical harm, the appellate panel held.

“That issue was material because Boscarino was charged with felonious assault, which required proof that he knowingly caused serious physical harm to Smith,” wrote Judge Hall.

The court of appeals reviewed several other cases in which trained fighters were found guilty after their use of force caused injury.

It concluded that Boscarino’s case was no different and proceeded to affirm the judgment of the Montgomery County court and the sentence it imposed.

Judges Mary Donovan and Mike Fain joined Judge Hall to form the majority.

The case is cited State v. Boscarino, 2014-Ohio-1858.

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