The Akron Legal News

Man who tried to run over a police chief loses appeal

JESSICA SHAMBAUGH
Special to the Legal News
Published: July 9, 2014

IA three-judge panel in the 4th District Court of Appeals recently affirmed a man’s conviction for assault on a peace officer after finding the alleged victim was in fact acting in his role as a police chief when the man tried to run him over with an SUV.

Brandon Kessinger appealed from the judgment of the Highland County Court of Common Pleas, arguing that it improperly denied his motion for acquittal both prior to the trial and after the state concluded its presentation of evidence.

Kessinger’s case stemmed from an incident involving his cousin, Daniel Pack, and the village of Lynchburg Police Chief Timothy Heizer.

According to the state’s evidence, Kessinger was driving around Pack’s residence on Sept. 6, 2012, circling the block and revving his engine in front of Pack’s house.

The state claimed the behavior was designed to taunt Pack. Eventually, Pack exited his home and confronted Kessinger.

The two argued until Pack walked away toward Heizer’s home, which was next door.

Pack explained the situation to Heizer and the police chief put on his uniform and walked to Pack’s house.

As Pack and Heizer continued to talk, Kessinger began to circle the block again.

When he approached Pack’s house, he turned off his headlights and started to rev his engine again.

This time, Heizer saw the Ford Explorer approaching and stationed himself in front of Pack’s driveway.

He used his flashlight to signal the vehicle to stop. Instead, the Explorer began to accelerate.

Heizer continued to order the vehicle to stop and ultimately pulled his firearm and stepped toward the driveway.

Kessinger continued to drive toward Heizer and the chief began discharging his firearm. He testified that the vehicle barely missed him as it sped past.

Pack gave similar testimony about the events and both he and his girlfriend testified that Kessinger’s vehicle only missed Heizer by a couple feet.

In his own defense, Kessinger testified that when he reached Pack’s house on his final pass, he turned off his head lights, placed the vehicle in neutral and revved his engine, as he had done on previous passes.

He told the court he remembered seeing a light and “a flash of fire” and then he felt a pain in his leg.

Fearing the gunshots, Kessinger said he ducked down, put the car in drive and knew only to “get out of there.”

As he fled the neighborhood he drove the Explorer into a ditch.

Police later found six bullet holes in the vehicle and noted that Kessinger gave multiple explanations for his behavior, none of which were consistent with one another.

The jury found Kessinger guilty of assault on a peace officer and the trial court sentenced him to 17 months in prison, in addition to 936 days from his remaining time on a post-release control sentence from an earlier conviction.

Before the three-judge appellate panel, Kessinger argued that the trial court should have granted his motion for acquittal because there was insufficient evidence to show that Heizer was acting in his official duties at the time of the incident.

Upon review, the judges examined the evidence and the circumstances to determine if Heizer was acting as the chief of police when he confronted Kessinger.

Specifically, they found that Heizer told the court “he is always on duty.”

He also changed into his uniform before leaving the house, stood under a streetlight so that Kessinger could see his uniform and shouted “police, stop, police” as the Explorer approached him.

“Although these facts demonstrate that Chief Heizer received the complaint at the time when he was off duty, Chief Heizer responded to the complaint by putting on his uniform and then walking to his neighbor’s house to investigate the complaint. Therefore, we find evidence exists that Chief Heizer was in the performance of his official duties as police chief when appellant drove his car towards Chief Heizer and Pack,” Judge Marie Hoover wrote for the court.

The judges ruled that Heizer’s actions were attributable to his status as a police officer.

“Accordingly, pursuant to our standard of review, we find the evidence sufficient to reasonably support the jury’s guilty verdict,” Judge Hoover stated.

For similar reasons, the judges overruled Kessinger’s second assignment of error in which he argued that the trial court improperly failed to give the jury lesser-included offense instructions.

Kessinger again argued that the victim’s status as a peace officer was incorrectly included as an essential element of the offense and the judges once again found that the evidence supported that Heizer was acting in such a capacity.

“It is ordered that the judgment is affirmed. Appellant shall pay the costs herein taxed.”

Presiding Judge Peter Abele and Judge Matthew McFarland joined Judge Hoover to form the majority.

The case is cited State v. Kessinger, 2014-Ohio-2496.

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