Judge reverses assault verdict

By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- A judge has overturned a jury's conviction of a Hillman Street man last week for assaulting a police officer.
Judge Charles J. Bannon ruled that Aaron D. McGilvary probably was guilty only of resisting arrest and ordered that McGilvary be released from Mahoning County Jail, where he had been held since his conviction. County Prosecutor Paul Gains said he will appeal Bannon's ruling.
McGilvary, 38, was convicted of one count of assaulting a police officer last week after a trial in Mahoning County Common Pleas Court. The same jury found him innocent of a second count of the same charge.
Judge Bannon, a retired judge sitting by assignment of the Ohio Supreme Court, said in his two-page written decision that there is "absolutely no question" that McGilvary struggled with two Youngstown policemen who were trying to arrest him April 21, 2003.
No intent to harm
The judge cited testimony of one of the officers, who said McGilvary was pushing and striking him to get away, not to intentionally hurt him.
"This is the offense of resisting arrest [assuming the arrest was lawful in the first place] but clearly not an assault on a police officer," the judge wrote.
He said the evidence clearly showed that while McGilvary was trying to repel the officers, he was not trying to hurt them.
Therefore, the judge ruled that McGilvary's conviction be set aside and a judgment of acquittal be entered instead.
If the conviction had been allowed to stand, McGilvary could have been sentenced to six to 18 months in prison, or could have been placed on probation.
McGilvary's lawyer, Gary Van Brocklin, had filed a request for a new trial after the jury's verdict, saying it did not make sense for McGilvary to be found guilty of one count and not the other.
bjackson@vindy.com