State v. Beaver

2014 Ohio 4995

• Court: Ohio Court of Appeals
• Decided: November 10, 2014
• Docket: 14-13-15
• Status: Published

Opinion

[Cite as State v. Beaver, 2014-Ohio-4995.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-13-15

v.

DEVVEN W. BEAVER, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2012-CR-0293

Judgment Affirmed

Date of Decision: November 10, 2014

APPEARANCES:

Alison Boggs for Appellant

Rick Rodger for Appellee Case No. 14-13-15

PRESTON, J.

{¶1} Defendant-appellant, Devven W. Beaver (“Beaver”), appeals the July

11, 2013 judgment entry of conviction and sentence of the Union County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} On December 21, 2012, the Union County Grand Jury indicted Beaver

on four counts, including: Count One of felonious assault in violation of R.C.

2903.11(A)(1), (D)(1)(a), a second-degree felony; Count Two of robbery in

violation of R.C. 2911.02(A)(3), (B), a third-degree felony; Count Three of

kidnapping in violation of R.C. 2905.01(A)(3), (C)(1), a first-degree felony; and,

Count Four of abduction in violation of R.C. 2905.02(A)(2), (C), a third-degree

felony. (Doc. No. 1).

{¶3} On January 17, 2013, Beaver entered pleas of not guilty at

arraignment. (Doc. No. 7).

{¶4} On July 3, 2013, the State filed motions requesting that the trial court

issue an arrest warrant for the victim, Krista Buckner (“Buckner”), as a material

and necessary witness, and requesting that the trial court declare her a court’s

witness. (Doc. Nos. 56, 57). On that same day, the trial court issued a warrant for

Buckner’s arrest as a material and necessary witness. (July 3, 2013 JE, Doc. No.

58). On July 8, 2013, the trial court held a hearing on the State’s motion

requesting that the trial court declare Buckner a court’s witness. (July 8, 2013 Tr.

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at 3). On that same day, the trial court granted the State’s motion and declared

Buckner a court’s witness under to Evid.R. 614(A). (July 8, 2013 JE, Doc. No.

62).

{¶5} On July 10, 2013, Count Two of the indictment was dismissed at the

State’s request. (July 10, 2013 JE, Doc. No. 70).

{¶6} On July 10-11, 2013, a jury trial was held. At the end of the State’s

case-in-chief, Beaver moved for a Crim.R. 29 judgment of acquittal for Counts

One, Three, and Four of the indictment. (July 15, 2013 JE, Doc. No. 75). The

trial court granted Beaver’s motion as to Count Three and denied his motion as to

Counts One and Four. (Id.). The jury found Beaver guilty as to Count One and

not guilty as to Count Four. (July 11, 2013 Tr. at 70-71); (July 11, 2013 JE, Doc.

No. 76). Thereafter, the trial court sentenced Beaver to eight years imprisonment.

(Id. at 77); (Id.).

{¶7} The trial court filed its judgment entry of sentence on July 11, 2013,

and Beaver filed his notice of appeal on August 2, 2013. (Doc. Nos. 76, 82).

Beaver raises four assignments of error for our review.

Assignment of Error No. I

The jury lost its way when reviewing the evidence, resulting in a verdict that is against the manifest weight of the evidence and the sufficiency of the evidence.

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{¶8} In his first assignment of error, Beaver argues that his felonious

assault conviction was against the manifest weight of the evidence and was not

supported by sufficient evidence. In particular, Beaver argues that the State failed

to produce any corroborating evidence that he assaulted Buckner. Beaver argues

that Buckner was lying and that she caused the injuries to herself by hitting herself

with a car door because she was intoxicated.

{¶9} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). As such, we address each legal concept individually.

{¶10} “An 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 the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, “[t]he 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.” Id. “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts

nor assess the credibility of witnesses, as both are functions reserved for the trier

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of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505,

2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No.

4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy

rather than credibility or weight of the evidence.”), citing Thompkins at 386.

{¶11} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters

relating to the weight of the evidence and the credibility of the witnesses. State v.

DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.”

State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

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{¶12} The criminal offense of felonious assault is codified in R.C. 2903.11,

which provides, in relevant part: “No person shall knowingly * * * [c]ause serious

physical harm to another * * *.” R.C. 2903.11(A)(1). The requisite culpable

mental state for felonious assault is “knowingly.” “A person acts knowingly,

regardless of his purpose, when he is aware that his conduct will probably cause a

certain result or will probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B). “Serious physical harm” is any of the following:

(a) Any mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial

incapacity;

(d) Any physical harm that involves some permanent

disfigurement or that involves some temporary, serious

disfigurement;

(e) Any physical harm that involves acute pain of such duration as

to result in substantial suffering or that involves any degree of

prolonged or intractable pain.

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R.C. 2901.01(A)(5).

{¶13} The State presented testimony from nine witnesses during the trial.

Although she was declared a court’s witness, Buckner was called as the State’s

first witness. (July 10, 2013 Tr., Vol. I, at 99). Buckner testified that she and

Beaver went to Chillicothe, Ohio for the weekend following the Thanksgiving

holiday in November 2012. (Id. at 100). At the time of the incident, she had been

in a relationship with Beaver for approximately four or five years. (Id.).

{¶14} Beaver was to drive her to Marysville, Ohio on Monday, November

26, 2012 so that she could go to work at Honda of America Manufacturing, Inc.

(“Honda”). (Id. at 101). Buckner was to report to work at 4:00 or 4:30 p.m., but

did not arrive to the parking lot outside Honda until 5:00 or 5:30 p.m. (Id.). She

testified that she had been drinking beer and vodka earlier that day. (Id. at 118).

She testified that she was “buzzed,” but not drunk. (Id. at 118, 119).

{¶15} When they arrived at Honda, Buckner got out of the car to retrieve a

pair of work boots from her mother’s car, which was in the parking lot because

Buckner’s brother also worked for Honda. (Id. at 101-102). After she retrieved

her work boots, she got back into the car with Beaver to talk with him while she

put her boots on. (Id. at 102-103). At that point, she testified that they began to

argue over gas money—that is, he wanted her to give him gas money and she told

him that she did not have any money. (Id. at 103).

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{¶16} While they were arguing, Beaver drove out of the Honda parking lot.

(Id. at 104). Buckner testified that she told Beaver to stop the car and to let her

out, but he would not. (Id. at 105). According to Buckner, Beaver was driving to

her mother’s house so that she could get money from her mother to give to Beaver.

(Id. at 113-114). Shortly after the couple left the Honda parking lot, Buckner

testified that Beaver punched her in the face two or three times, and that she was

scared of him and was fighting back because she knew what he was capable of.

(Id. at 105-106, 161). After Beaver punched her, Buckner’s nose began to bleed.

(Id. at 107).

{¶17} Beaver then pulled over by a gas station, and Buckner got out of the

car, but she stated she had to get back into the car because she did not have

another way to get home. (Id. at 111). According to Buckner, they were lost and

she wanted to go inside the gas station to ask for directions, but Beaver did not

want her to go inside because he was concerned someone might think he hurt her

since she had blood all over her clothes. (Id.). She further testified that she

attempted to call 9-1-1 while she was in the car on the way to her mother’s house,

but could not get through to an operator due to poor cell-phone reception. (Id. at

165).

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{¶18} When Beaver and Buckner arrived at Buckner’s mother’s house

around 8:00 p.m., Buckner went inside, called 9-1-1, and told the dispatcher that

Beaver struck her in the face. (Id. at 113-114).

{¶19} Lieutenant John Shaffer (“Lieutenant Shaffer”) of the Marion Police

Department responded to Buckner’s mother’s house. (Id. at 116). By the time

Lieutenant Shaffer arrived, Beaver already left to get gas. (Id.). While Lieutenant

Shaffer was interviewing Buckner, he took Buckner’s clothing as evidence. (Id. at

117). After Buckner spoke with Lieutenant Shaffer, she sought medical treatment

at Marion General Hospital. (Id. at 120). Shortly after leaving the hospital,

Buckner spoke with Union County Sheriff Deputy Kelly Nawman (“Deputy

Nawman”). (Id. at 119-120).

{¶20} At Marion General Hospital, Buckner was diagnosed with a broken

nose. (Id. at 120). Buckner’s injuries required corrective surgery, which was

performed about one month later. (Id. at 120). Buckner testified that her injuries

were “awful” and that her face was swollen and her eyes were black and blue. (Id.

at 121). She testified that she had not yet recovered from her injuries and said,

“It’s still dark and still – the inside of my nose is – hurts, you know, around dust,

dirt, things like that; so it’s not completely healed now.” (Id.). According to

Buckner, this was not the first time Beaver struck her—he broke her nose before.

(Id. at 108, 110).

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{¶21} Buckner testified that, in addition to statements that she provided to

law enforcement and medical professionals, she provided an affidavit to Beaver’s

counsel on March 11, 2013—she identified the affidavit as State’s Exhibit Four.

(Id. at 122). She testified that Beaver and his mother told her to write the affidavit

and she did because she felt sorry for him and still loved him. (Id. at 123, 124).

Specifically, she testified that Beaver’s mother picked her up and drove her to

Beaver’s counsel’s office so she could provide the affidavit. (Id.). In the affidavit,

she averred that she was drinking on November 26, 2012, that she was not clear

about the events of that night, and that she could have hit her nose on the car door.

(Id. at 124). However, Buckner testified that the portion of the affidavit where she

stated that she could have hit her nose on the car door was not true. (Id.). Rather,

Buckner testified at trial that she was not hit by a car door, did not fall on her face

when she was retrieving her work boots from her mother’s car, and did not fall at

any other time during the ride back to her mother’s house. (Id. at 119, 132-133).

{¶22} On cross-examination, Buckner testified that she and Beaver were

drinking “[a] fifth or a pint” of vodka on the car ride from Chillicothe to

Marysville. (Id. at 127). Buckner confirmed that she lied in the March 11, 2013

affidavit, but further indicated that she wrote in the affidavit, “I don’t think he

needs prison, but help. Prison does him no good.” (Id. at 134). Buckner also

testified that she sent Beaver a letter while he was in jail awaiting trial, which she

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identified as Defendant’s Exhibit A. (Id. at 135). In the letter, Buckner said that

she did not agree with one of the charges against Beaver. (Id. at 136).

{¶23} On re-direct examination, Buckner identified State’s Exhibits Two

and Three as the statements she provided Lieutenant Shaffer and Deputy Nawman.

(Id. at 157-161). Buckner testified that she provided the same statement to

Lieutenant Shaffer and Deputy Nawman. (Id.). She further testified that she made

the same statement to the medical staff at Marion General Hospital when she

sought treatment for her injuries. (Id. at 161-162).

{¶24} On re-cross examination, Buckner testified that she did not want to

testify against Beaver and that she was only testifying against him because she

was arrested prior to the hearing for evading the prosecutor’s efforts to serve her

with a subpoena to testify. (Id. at 170-171). She indicated that she was telling the

truth and that the reason she did not want to testify was not because she was

concerned about perjury. (Id. at 171-172).

{¶25} The next day, Marion City Police Department 9-1-1 dispatcher Bevin

Peppard (“Peppard”) testified that she received a 9-1-1 emergency call from

Buckner at 8:08 p.m. on the evening of November 26, 2012 while she was

working as a dispatcher. (July 10, 2013 Tr., Vol. II, at 183). Peppard identified

State’s Exhibit Five as a true and accurate audio recording of Buckner’s 9-1-1 call,

which was subsequently played for the jury. (Id. at 184-186).

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{¶26} Lieutenant Edward Brown (“Lieutenant Brown”) of the Marion City

Police Department testified that he was dispatched to Buckner’s mother’s house

on November 26, 2012. (Id. at 188). Shortly after he arrived at Buckner’s

mother’s house, he learned that Beaver had already left to go to the gas station.

(Id. at 190). As a result, Lieutenant Brown drove to the gas station, saw Beaver,

and pulled him over. (Id. at 191-192). Lieutenant Brown testified that Beaver told

him that Buckner was drinking and arguing with him while they were driving from

Chillicothe to Marysville. (Id. at 192). He further testified that Beaver told him

that Buckner tripped and fell in the Honda parking lot and that was how she

became injured. (Id. at 193). He testified that Beaver did not indicate that

Buckner hit her face on the car door. (Id.). On cross-examination, Lieutenant

Brown testified that he did not notice any alcohol odor on Beaver’s breath and that

he did not appear to be impaired. (Id. at 195). Further, he testified that Beaver did

not appear as if he had been in a fight or altercation and he did not recall seeing

any blood on him. (Id. at 196). However, he did not examine Beaver’s hands for

any bruises or scrapes. (Id.).

{¶27} Lieutenant Shaffer testified that he too was dispatched to Buckner’s

mother’s house on November 26, 2012. (Id. at 198). After arriving at Buckner’s

mother’s house, Lieutenant Shaffer spoke with Buckner about the incident. (Id. at

199). He testified, “She was upset, seemed angry.” (Id.). He testified that her

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clothes were covered in blood and that she had a small bump above her right eye

and an injury to her nose. (Id.). He testified that Buckner told him that Beaver

assaulted her in his car after leaving the Honda parking lot. (Id. at 200). Buckner

told him that she had been drinking earlier and he smelled the odor of alcohol on

Buckner’s breath; however, he stated that she did not appear to be intoxicated.

(Id. at 202-203). Lieutenant Shaffer identified State’s Exhibits Six and Seven as

the Honda uniform—a white shirt and white pants—Buckner was wearing on the

evening of November 26, 2012. (Id. at 207-208). Lieutenant Shaffer testified that

he examined Buckner’s uniform and did not notice any dirt or debris on the shirt

or pants. (Id. at 209). Lieutenant Shaffer identified State’s Exhibits 9 through 13

as true and accurate photographs of Buckner’s condition as he observed it on the

evening of November 26, 2012. (Id.).

{¶28} On cross-examination, Lieutenant Shaffer confirmed that the stains

on Buckner’s uniform were fresh blood stains because the red marks were still wet

when he first observed them. (Id. at 216). He further testified that Buckner told

him that she was riding in the passenger seat of Beaver’s car when he reached over

and struck her several times. (Id. at 221). Lieutenant Shaffer identified

Defendant’s Exhibit B as his report depicting the November 26, 2012 incident.

(Id. at 217).

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{¶29} Norma Prater (“Prater”), Buckner’s mother, testified that she

observed Buckner when she arrived at her house on the evening of November 26,

2012. (Id. at 229). Prater testified that Buckner was upset when she arrived, was

covered in blood, and wanted to call the police. (Id. at 230). She testified that she

did not think that Buckner was intoxicated when she arrived, but that she “was

very upset,” “hurt,” “angry,” and was crying. (Id. at 229-230, 234). Prater

testified that Buckner wanted her to give Beaver gas money, and when she went

out to Beaver’s car, “[h]e jumped out of his car. He said: Look, I don’t have –

there’s no blood on me.” (Id. at 230-231). Prater told Beaver to get into his car

and follow her to the gas station, and she put gas in his car. (Id.). Prater identified

State’s Exhibits 14 through 18 as true and accurate photographs of Buckner

depicting her “normal” look and how she looked in the days and weeks following

the incident. (Id. at 236-238).

{¶30} Cassandra Cook (“Cook”), a registered nurse with Marion General

Hospital, testified that she saw Buckner when she came to the Marion General

Hospital Emergency Room on November 26, 2012. (Id. at 253). Cook identified

State’s Exhibit One as Buckner’s November 26, 2012 chart documentation from

Marion General Hospital. (Id.). Cook testified that she treated Buckner, and

Buckner told her that her pain was nine out of ten when she first arrived to the

emergency room. (Id. at 254, 257). She stated that Buckner sought treatment

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because she had been in an “altercation.” (Id. at 254). Cook further testified that

she interacts with intoxicated patients, but, based on her knowledge and

experience, she did not smell the odor of alcohol on Buckner or believe her to be

intoxicated. (Id. at 260-261). Cook identified State’s Exhibits 19 through 21 as

photographs she took of Buckner, which truly and accurately reflected Buckner’s

injuries as they appeared on the evening of November 26, 2012. (Id. at 258-259).

On cross-examination, Cook testified that, even though the historical notes

included in State’s Exhibit One indicated that Buckner told the triage nurse that

she had been drinking, Cook did not have a chance to review the notes prior to

treating Buckner and did not believe Buckner was intoxicated based on her

interaction with her. (Id. at 263-264). She also testified that she did not have the

kind of training that would provide her knowledge to testify as to what might have

caused Buckner’s injuries. (Id. at 266).

{¶31} Kristina Roberts (“Roberts”), a nurse practitioner with Marion

General Hospital, testified that she also treated Buckner on the evening of

November 26, 2012. (Id. at 271, 273). Roberts testified that Buckner came to the

emergency room that night because of “an alleged assault with facial injury.” (Id.

at 271). She stated that she saw Buckner after Cook initially assessed her, and

confirmed that Buckner’s nose was broken. (Id. at 273). Roberts also testified,

based on her training and experience, that she did not believe Buckner was

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intoxicated at the time she treated her. (Id. at 276). On cross-examination,

Roberts described Buckner’s forehead as swollen and as having bruising and

abrasions to the bridge of her nose. (Id. at 281). She indicated that Buckner’s

injures were located on the top of her nose and on the right side of her forehead

extending to her brow. (Id.). On re-direct examination, Roberts testified that the

abrasion injuries Buckner sustained are common injuries when someone is hit, or

assaulted, in the nose. (Id. at 282-283).

{¶32} Deputy Nawman testified that she interviewed Buckner after she was

seen at Marion General Hospital. (Id. 286). She said, “My initial impression of

her was that she was agitated and upset * * *.” (Id. at 288). Deputy Nawman

testified that she heard Buckner’s testimony and that it was consistent with the

narrative she prepared after meeting with Buckner on the night of the incident.

(Id. at 290). Deputy Nawman testified that she did not find any evidence that

Buckner caused her injuries to herself. (Id. at 292). Deputy Nawman identified

State’s Exhibit 22 as a photograph she took of Buckner, which truly and accurately

reflected Buckner’s injuries as they appeared on the night of the incident. (Id. at

289).

{¶33} Thereafter, the State moved to admit its exhibits and rested. (Id. at

299-307). State’s Exhibits One, Six, and Seven were admitted by stipulation. (Id.

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at 301, 305). State’s Exhibits Two, Three, and Four1 were excluded. (Id. at

301-304). (See also July 11, 2013 Tr. at 15-19).2 State’s Exhibit Five was

admitted over the defense’s objection. (Id. at 304-305). State’s Exhibits 9 through

22 were admitted without objection. (Id. at 306-307). Next, Beaver made a

Crim.R. 29(A) motion, which the trial court denied as to Counts One and Four of

the indictment and granted as to Count Three of the indictment. (Id. at 314-322).

{¶34} The next day, Beaver presented the testimony of one witness, Cory

Hamilton (“Hamilton”), the Union County Prosecutor’s Office’s Victims of Crime

Assistance Program (“VOCA”) advocate. (July 11, 2013 Pre-Day 2 Tr. at 5-6).

Hamilton testified that she initially made contact with Buckner on November 28,

2012, and thereafter made contact with her approximately five times after

attempting to contact her more than “a dozen” times. (Id. at 7). Further, she

testified that Buckner did not tell her that the accusations against Beaver were lies

or that she did not want Beaver to be prosecuted. (July 11, 2013 Tr. at 4-5).

Moreover, she testified that the Union County Prosecutor’s Office had to arrest

Buckner to ensure that she would testify because she was a material witness. (Id.

1 The record reflects that the State did not offer State’s Exhibit Four at the conclusion of its case-in-chief because the trial court excluded State’s Exhibits Two and Three, and the State reasoned that State’s Exhibit Four would be excluded for the same reason. (July 10, 2013 Tr., Vol. II, at 304). Beaver did not object to State’s Exhibit Four. (Id.). The next day, the trial court noted that Beaver “wanted to admit Exhibit 4.” (July 11, 2013 Tr. at 17). 2 The record reflects that the trial court initially excluded State’s Exhibits Two, Three, and Four pursuant to Evid.R. 803(5). (July 10, 2013 Tr., Vol. II, at 301-304). The next day, the trial court clarified that it improperly excluded State’s Exhibits Two, Three, and Four under Evid.R. 803(5), and excluded the exhibits under Evid.R. 801(D)(1)(A), (B). (July 11, 2013 Tr. at 15-19).

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at 7). On cross-examination, Hamilton testified that Buckner did not deny that

Beaver assaulted her and broke her nose and that she remained consistent as to

what happened on November 26, 2012. (Id. at 10, 12).

{¶35} Thereafter, the defense moved to admit Defendant’s Exhibits A and

B, which were not admitted, and rested. (Id. at 14-18). The State did not present

any witnesses on rebuttal, and the matter was submitted to the jury, which found

Beaver guilty as to Count One not guilty as to Count Four. (Id. at 19, 65, 70-71).

{¶36} We first review the sufficiency of the evidence supporting Beaver’s

felonious-assault conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10,

2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999

WL 355190, *1 (Mar. 26, 1999). Beaver argues that the State did not prove

beyond a reasonable doubt that he caused Buckner’s injuries because it did not

produce corroborating evidence of Buckner’s version of events. However,

Beaver’s argument is erroneous because the statute does not require corroborating

evidence for a felonious-assault conviction. See R.C. 2903.11. See also State v.

Gibson, 5th Dist. Stark No. 2013CA00175, 2014-Ohio-1169, ¶ 36-37 (victim’s

testimony alone is sufficient to support felonious-assault and abduction

convictions). Rather, the credibility and weight of the evidence are primarily for

the trier-of-fact—in this case, the jury. State v. Frazier, 115 Ohio St.3d 139,

2007-Ohio-5048, ¶ 106, citing State v. DeHass, 10 Ohio St.2d 230 (1967),

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paragraph one of the syllabus. In assessing the sufficiency of the evidence, we do

not resolve evidentiary conflicts or assess the credibility of witnesses; rather, we

determine if any rational trier of fact could have found the essential elements of

felonious assault beyond a reasonable doubt when viewing the evidence in a light

most favorable to the prosecution. Jenks, 61 Ohio St.3d 259, at paragraph two of

the syllabus; Jones, 2013-Ohio-4775, at ¶ 33. There was sufficient evidence

supporting each element of felonious assault.

{¶37} Here, the testimony of the victim, law enforcement officers, medical

professionals, and the VOCA advocate amounted to sufficient evidence that

Beaver committed felonious assault. Buckner testified that Beaver punched her in

the face two or three times after they left the Honda parking lot. (July 10, 2013

Tr., Vol. I, at 105-106). Lieutenant Shaffer and Deputy Nawman testified that

they interviewed Buckner shortly after the incident and she told them that Beaver

punched her in the face after they left the Honda parking lot while they were

arguing. (July 10, 2013 Tr. Vol. II at 200, 221, 290). Likewise, Hamilton testified

that Buckner did not deny that Beaver assaulted her and broke her nose and that

she remained consistent as to what happened on November 26, 2012. (July 11,

2013 Tr. at 10, 12). The testimony of Lieutenant Shaffer, Deputy Nawman, and

Hamilton supports Buckner’s version of events. Buckner also told the medical

personnel at Marion General Hospital that she was assaulted when she sought

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treatment for her injuries. (See State’s Ex. 1); (July 10, 2013 Tr., Vol. II, at 254,

271). Punching someone in the face satisfies the requisite culpable mental state

for felonious assault—that is, Beaver was aware that punching Buckner in the face

would probably cause her serious physical harm. See R.C. 2901.22(B). See also

State v. Higgins, 9th Dist. Summit No. 26120, 2012-Ohio-5650, ¶ 19 (“[F]or the

law to hold him to have acted ‘knowingly,’ it is only necessary that the serious

physical harm is a ‘reasonable and probable’ result of his action.”), quoting State

v. Powell, 11th Dist. Lake No. 2007-L-187, 2009-Ohio-2822, ¶ 52.

{¶38} Next, the physical evidence in the record supports that Beaver caused

serious physical harm to Buckner. (See State’s Exs. 1, 6-7, 9-22). Beaver broke

Buckner’s nose and caused it to bleed profusely. (See State’s Exs. 1, 6-7); (July

10, 2013 Tr., Vol. I, at 107, 120); (July 10, 2013 Tr., Vol. II, at 198, 273). As a

result of her injuries, Buckner suffered significant bruising and swelling to her

face as evidenced by the numerous photographs, which were admitted into

evidence. (See State’s Exs. 9-22); (July 10, 2013 Tr., Vol., I at 121); (July 10,

2013 Tr., Vol. II, at 199, 236-238, 258-259, 281, 289). Buckner’s injuries caused

her to seek medical treatment, and ultimately required surgery. (See State’s Ex.

1); (July 10, 2013 Tr., Vol. I, at 120). Serious physical harm includes any physical

harm “that involves some temporary, serious disfigurement,” or “physical harm

that involves acute pain of such duration as to result in substantial suffering or that

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involves any degree of prolonged or intractable pain.” R.C. 2901.01(A)(5)(d), (e).

Buckner described her injuries as “awful” and testified that she was continuing to

experience discomfort from her injuries at the time of the trial. (July 10, 2013 Tr.,

Vol. I, at 121); State v. Lawson, 3d Dist. Union No. 14-06-13, 2006-Ohio-5160, ¶

27 (concluding that the jury did not lose its way in finding that two months of

persistent pain constituted either “acute pain of such duration as to result in

substantial suffering” or “any degree of prolonged or intractable pain” under R.C.

2901.01(A)(5)(e)). Cook testified that Buckner rated her pain as a nine out of ten

when she first sought medical treatment for her injuries. (July 10, 2013 Tr., Vol.

II, at 257). Likewise, the jury saw photographs of Buckner before, right after, and

in the days and weeks following the incident that depicted the swelling and

bruising Buckner experienced to her face. (See State’s Exs. 9-22); State v. Stover,

3d Dist. Union No. 14-12-24, 2013-Ohio-5665, ¶ 44 (finding that the victim

suffered serious physical harm under R.C. 2901.01(A)(5)(d) because his “face was

extremely bruised and swollen”). Accordingly, a jury could reasonably find that

Buckner suffered some temporary, serious disfigurement, or a duration of acute

pain that resulted in substantial suffering or any degree of prolonged intractable

pain.

{¶39} Viewing this evidence in a light most favorable to the prosecution, a

rational trier of fact could have found beyond a reasonable doubt that Beaver

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knowingly caused serious physical harm to Buckner, and therefore, committed

felonious assault.

{¶40} Having concluded that Beaver’s conviction was based on sufficient

evidence, we next address Beaver’s argument that his conviction was against the

manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76. As we

summarized in our discussion of the sufficiency of the evidence above, Buckner

testified that Beaver struck her in the face multiple times breaking her nose, and

the law enforcement officers’ and the VOCA advocate’s testimony complemented

Buckner’s testimony. Also, as we summarized above, there was ample evidence

documenting the extent of Buckner’s injuries. Prater testified that Buckner was

crying and very upset, and Lieutenant Shaffer and Deputy Nawman described her

as upset and angry or agitated after the November 26, 2012 incident.

{¶41} Beaver attempted to discredit Buckner’s version of the events of

November 26, 2012. As such, on appeal, Beaver argues that Buckner caused the

injuries to herself because she was intoxicated and ran into the car door and argues

that she lied that Beaver caused her injuries because she was angry with him for

ending their relationship.

{¶42} There is no evidence that Buckner caused her injuries because she

was intoxicated or that she fabricated her story. First, while the evidence in the

record demonstrates that Buckner had been drinking that day, the evidence does

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not demonstrate that she was intoxicated—that is, the evidence in the record does

not show that she was so inebriated that she was unsteady on her feet or unable to

control her faculties, i.e. running into a car door. Rather, Buckner testified that

she was not intoxicated, and the law enforcement officers, medical personnel, and

Buckner’s mother also testified that she did not appear to be intoxicated. (July 10,

2013 Tr., Vol. I, at 118, 119); (July 10, 2013 Tr., Vol. II, at 202-203, 234, 260-

261, 276).

{¶43} Second, although Buckner admittedly lied in the March 11, 2013

affidavit stating that she was not clear about what happened on November 26,

2012 and that she may have hit her head on the car door, she indicated that she lied

in the affidavit because she felt sorry for Beaver and still loved him. (July 10,

2013 Tr., Vol. I, at 122-124). Nevertheless, Beaver argues that the evidence that

Buckner hit her head on the car door outweighed the evidence that he struck her.

However, the only evidence in the record that Buckner hit her head on the car door

is her statement in the March 11, 2013 affidavit. Instead, the evidence in the

record indicates that Beaver told Lieutenant Brown that Buckner tripped and fell

down in the Honda parking lot. (July 10, 2013 Tr., Vol. II, at 193). The jury very

well may have viewed the contradiction in Beaver’s statement to Lieutenant

Brown and Buckner’s affidavit as creating an inconsistency and instead gave more

weight to Buckner’s trial testimony. In addition, Lieutenant Shaffer testified that

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he examined Buckner’s clothing and did not note any dirt or debris that would

have been consistent with a fall. (Id. at 209). Indeed, while Buckner testified that

she still loved Beaver and did not want to testify against him, she testified that her

story was not fabricated. (July 10, 2013 Tr. Vol. I at 170-172).

{¶44} Accordingly, Beaver’s argument that Buckner fabricated her story

and caused her injuries to herself because she was intoxicated was underwhelming

compared to the evidence that Beaver committed felonious assault.

{¶45} After weighing the evidence and evaluating the credibility of the

witnesses, with appropriate deference to the jury’s credibility determination, we

cannot conclude that the jury, as the trier of fact, clearly lost its way and created a

manifest injustice. As such, we are not persuaded that Beaver’s felonious-assault

conviction must be reversed and a new trial ordered.

{¶46} For these reasons, Beaver’s first assignment of error is overruled.

Assignment of Error No. II

The trial court erred when it granted the State’s motion to make Krista Buckner a material witness which was prejudicial to appellant.

{¶47} In his second assignment of error, Beaver argues that the trial court

erred in designating Buckner as a court’s witness.3 Specifically, Beaver argues

3 We note that Beaver argues that the trial court erred in declaring Buckner a material witness; however, it appears that Beaver intended to argue that the trial court erred in declaring Buckner a court’s witness. (See Appellant’s Brief at 11-15). The material-witness standard applies to the State’s ability to obtain an arrest warrant for a witness who is material to the case, and whose detention is necessary to procure their

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that he was prejudiced by Buckner being called as a court’s witness because it

allowed the State to conduct its direct examination of her using leading questions,

and put more weight on her testimony in the eyes of the jury.

{¶48} Under Evid.R. 614(A), “[t]he court may, on its own motion or at the

suggestion of a party, call witnesses, and all parties are entitled to cross-examine

witnesses thus called.” The purpose of calling a witness as a court’s witness is to

allow for a proper determination in a case where a witness is reluctant or unwilling

to testify, or there is some indication that the witness’s trial testimony will

contradict a prior statement made to police. State v. Renner, 2d Dist. Montgomery

No. 25514, 2013-Ohio-5463, ¶ 23, citing State v. Curry, 8th Dist. Cuyahoga No.

89075, 2007-Ohio-5721, ¶ 18; State v. Arnold, 189 Ohio App.3d 507,

2010-Ohio-5379, ¶ 44 (2d Dist.). “The prime candidate is a victim and an

eyewitness who will not otherwise cooperate with the party originally planning to

call him.” Renner at ¶ 23, citing Curry at ¶ 18.

{¶49} The trial court’s decision to call a witness under Evid.R. 614(A) is

within the trial court’s discretion and will not be reversed absent an abuse of

discretion. Id., citing State v. Croom, 2d Dist. Montgomery No. 25094, 2013-

attendance at trial. State ex rel. Dorsey v. Haines, 63 Ohio App.3d 580, 582 (2d Dist.1991). Conversely, a witness may be declared a court’s witness when the witness’s testimony is beneficial to ascertaining the truth of the matter and there is some indication that the witness’s trial testimony will contradict a prior statement, or that there is some indication that the witness refuses to, or is reluctant to, testify. State v. Arnold, 189 Ohio App.3d 507, 2010-Ohio-5379, ¶ 44 (2d Dist.); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 23, citing State v. Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶ 18. Beaver does not argue in his brief that the trial court erred in issuing a warrant for Buckner’s arrest as a material witness and subsequently detaining her to ensure her attendance at trial.

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Ohio-3377, ¶ 74, citing State v. Jones, 2d Dist, Montgomery No, 14731, 1996 WL

38940. *4 (Jan. 31, 1996). “The term ‘abuse of discretion’ connotes more than an

error or law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary, or unconscionable.” State v. Apanovitch, 33 Ohio St.3d 19, 22 (1987),

citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).

{¶50} Evid.R. 614(C) requires that objections to the trial court’s calling of a

witness be made either at the time of the calling or shortly thereafter. Beaver did

not object to the trial court’s calling of Buckner as its witness. He filed no written

opposition to the State’s motion, nor did his trial counsel orally contest the calling

of Buckner. As such, Beaver waived appellate review of this issue. See State v.

May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 64, citing State v. Davis, 79

Ohio App.3d 450, 455 (4th Dist.1992) and State v. Brown, 11th Dist. Trumbull

No. 2001-T-0146, 2003-Ohio-2364, ¶ 38-39.

{¶51} Even assuming Beaver did not waive this issue, the trial court did not

abuse its discretion in declaring Buckner its witness. Buckner’s testimony was

essential to determining the case against Beaver, she was unwilling or reluctant to

testify, and there was some evidence that she would contradict her prior statements

made to law enforcement officers. In particular, the State was unsuccessful in its

attempts to subpoena Buckner, was unable to contact her, and believed she did not

want to testify against Beaver based on a letter she wrote to Beaver, in which she

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stated, “I told Cory Hamilton I will not testify against you.” (Defendant’s Ex. A).

Likewise, the affidavit that Buckner provided to Beaver’s counsel stating that she

was unclear about the events of November 26, 2012 and that she may have hit her

head on the car door contradicted her original statements that Beaver struck her.

(July 10, 2013 Tr., Vol. I, at 124). At trial, Buckner affirmed her unwillingness to

testify and said that she would not have testified if the trial court had not ordered

her arrest. (Id. at 171).

{¶52} We also note that Beaver’s argument that he was prejudiced by

Buckner being declared a court’s witness is erroneous. In fact, when Buckner was

initially called to testify, she was called as if she were the State’s witness. (July

10, 2013 Tr. Vol. I at 99). See also State v. Ross, 10th Dist. Franklin No. 93AP-

1017, 1993 WL 538305, *2 (the jury was not informed that the witness was a

court’s witness because she was called as if she were the State’s witness). When a

witness is designated a court’s witness, both parties are permitted to cross-examine

the witness—that is, both parties may ask the witness leading questions. See

Evid.R. 614(A). See also State v. Webb, 70 Ohio St.3d 325, 340-341 (1994)

(finding that it is unnecessary to conclude that the State would be entitled to ask

leading questions on direct examination for the court to be able to call the witness

as a court’s witness at the State’s request). Nonetheless, Beaver did not provide

any argument relative to how he was prejudiced by the State being permitted to

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ask Buckner leading questions, and we decline to make an argument for him on

appeal. State v. Fisher, 3d Dist. Hardin No. 6-13-03, 2014-Ohio-436, ¶ 7, fn. 1,

citing App.R. 12(A)(2); App.R. 16(A)(7).

{¶53} Therefore, Beaver’s second assignment of error is overruled.

Assignment of Error No. III

The trial court erred when it denied appellant’s counsel the ability to question the victim on a letter she sent to appellant while he was in jail.

{¶54} In his third assignment of error, Beaver argues that the trial court

erred in denying his trial counsel the ability to question Buckner about the letter

she sent to Beaver while he was in jail. We find this assignment of error to be

without merit because the trial court did not make a ruling that prevented Beaver’s

trial counsel from questioning Buckner about the letter she sent to Beaver. See

Dailey v. R & J Commercial Contracting, 10th Dist. Franklin No. 01AP-1464,

2002-Ohio-4724, ¶ 17 (“Assignments of error should designate specific rulings

which the appellant wishes to challenge on appeal.”), quoting Taylor v. Franklin

Blvd. Nursing Home, Inc., 112 Ohio App.3d 27, 32 (8th Dist.1996).

{¶55} The transcript of the hearing reveals the following exchange

regarding the letter:

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[Beaver’s Counsel]: Ms. Buckner, I’m going to hand to you

what’s been marked as Defendant’s Exhibit

A. Can you identify what that document is?

[Buckner]: It’s a letter.

[Beaver’s Counsel]: And it’s a letter from – to whom from

whom?

[Buckner]: To Devven from me.

[Beaver’s Counsel]: Okay. Do you recall – did you – can you

review that letter? Do you recall writing

that letter?

[Buckner]: Yeah.

[Beaver’s Counsel]: Okay. And at what point – when did you

send that to him?

[Buckner]: I don’t know.

[Beaver’s Counsel]: Okay. In that letter, don’t you indicate that

the events of November 26th of 2012 that, in

fact, you had not told the truth to the police

and others about what happened that night?

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[Buckner]: I – I talked to Ms. Hamilton about the

charges. I called her and asked her. I said

those are not correct, so –

[Beaver’s Counsel]: We’re not going to get to that. I’m talking

about the letter here.

[Buckner]: Yeah. That’s what I said in here, isn’t it?

[Beaver’s Counsel]: Are you familiar with the contents of the

letter? Do you need some time to read it?

[Buckner]: No. I know what it says.

[Beaver’s Counsel]: Okay. And, in fact, within that letter to Mr.

Beaver, you acknowledge that you had lied

to people about what had happened, correct?

[Buckner]: This is – no.

[Trial Court]: Counsel approach.

(Thereupon, the following bench conference was held.)

[Trial Court]: That’s not what this says.

[The State’s Counsel]: That’s not what it says either.

[Beaver’s Counsel]: (Inaudible.)

[Trial Court]: (Inaudible) possible interpretation of that.

[The State’s Counsel]: Right.

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[Trial Court]: No possible interpretation of that.

[The State’s Counsel]: I just got done reading it.

[Trial Court]: (Inaudible.)

[The State’s Counsel]: It sounds like – it sounds like they are lying.

That’s what – I just got done reading it, but

that’s –

[Trial Court]: That’s the third time you referred to it that

way.

[Beaver’s Counsel]: I’m sorry?

[Trial Court]: That’s the third time that you referred to it

that way and there’s no possible

interpretation that that’s a correct

interpretation.

[Beaver’s Counsel]: Thank you.

(Thereupon, the bench conference was concluded.)

[Beaver’s Counsel]: At what point did you decide to go to your

mother’s house instead of going to work that

day?

(July 10, 2013 Tr., Vol. I, at 137-139).

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{¶56} The trial court, outside of the hearing of the jury, articulated to

Beaver’s counsel that he was mischaracterizing Buckner’s letter. The State did

not object to Beaver’s trial counsel’s line of questioning, nor did the trial court

make a ruling prohibiting Beaver’s trial counsel from continuing to question

Buckner about the letter. Instead, Beaver’s trial counsel discontinued his line of

questioning on his own accord as it related to the letter.

{¶57} Because the trial court did not make a ruling preventing Beaver’s

trial counsel from questioning Buckner about the letter, we need not address

Beaver’s assignment of error. Dailey at ¶ 17. See also App.R. 12(A)(2); App.R.

16(A)(7). Accordingly, Beaver’s third assignment of error is overruled.

Assignment of Error No. IV

Appellant was deprived effective assistance of counsel thereby depriving appellant a fair trial.

{¶58} In his fourth assignment of error, Beaver argues that he was deprived

the effective assistance of trial counsel. In particular, Beaver argues that his trial

counsel failed to object to the trial court’s ruling during his cross-examination of

Buckner regarding the letter she sent to Beaver, failed to file any responsive

pleading to the State’s motion requesting Buckner to be declared a court’s witness,

and failed to attempt to admit State’s Exhibit Four and Defendant’s Exhibit A.

{¶59} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

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the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466

U.S. 668, 687 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558

(1995). Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136,

141-42 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

{¶60} First, Beaver argues that his trial counsel’s performance was

deficient because he failed to object to the trial court’s ruling during his cross-

examination of Buckner regarding the letter she sent to Beaver. Based on our

determination in Beaver’s third assignment of error, Beaver’s argument here is

likewise without merit—that is, the trial court made no ruling to which Beaver’s

trial counsel could object. Rather, the trial court, outside of the jury’s hearing,

advised Beaver’s trial counsel that he mischaracterized the letter, and Beaver’s

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trial counsel chose to discontinue his line of questioning regarding the letter and

move on to another topic.

{¶61} Even if the trial court made a ruling regarding Beaver’s trial

counsel’s questioning of Buckner regarding the letter she sent to Beaver, Beaver’s

argument still fails. The “failure to make objections is within the realm of the trial

tactics and does not establish ineffective assistance of counsel.” State v. Ray, 3d

Dist. Union No. 14-05-39, 2006-Ohio-5640, ¶ 63, citing State v. Lockett, 49 Ohio

St.2d 48 (1976), paragraph nine of the syllabus, rev’d on other grounds, sub nom.

Lockett v. Ohio, 438 U.S. 586 (1978). “Because ‘objections tend to disrupt the

flow of a trial, [and] are considered technical and bothersome by the fact-finder,’ *

* * competent counsel may reasonably hesitate to object in the jury’s presence.’”

State v. Hartman, 93 Ohio St.3d 274, 296 (2001), quoting State v. Campbell, 69

Ohio St.3d 38, 53 (1994).

{¶62} Beaver’s trial counsel was not ineffective for failing to object to the

trial court’s admonishment for mischaracterizing the letter Buckner wrote to

Beaver.

{¶63} Next, Beaver’s argument that his trial counsel was ineffective

because he failed to file any “responsive pleading”4 to the State’s motion

4 “A motion is not a pleading.” State ex rel. Holder v. Deweese, 5th Dist. Richland No. 14CA02, 2014- Ohio-2753, ¶ 7. Nor is a memorandum in opposition to a motion a pleading. Turner v. Salvagnini America, Inc., 12th Dist. Butler No. CA2007-09-233, 2008-Ohio-3596, ¶ 25, fn. 4, citing Dane v. Kirsh, 2d Dist. Montgomery No. CA 9069, 1985 WL 7865, *2 (Mar. 20, 1985).

-34- Case No. 14-13-15

requesting Buckner be declared a court’s witness is also without merit. The failure

to file a motion is not per se ineffective assistance of counsel. State v. Schlosser,

3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 34, citing In re Smith, 3d Dist.

Hancock No. 5-01-34, 2002 WL 255126, *6 (Feb. 22, 2002). “Without proving

that trial counsel was deficient for failing to make certain motions and that those

motions had a reasonable probability of success, the ineffective assistance of

counsel claim fails.” Id.

{¶64} Here, Beaver failed to demonstrate that his trial counsel was deficient

for failing to file a response or that such a response would have been successful.

First, the only argument in support of his claim that his trial counsel was deficient

for failing to file a response is that it cannot be considered trial strategy to fail to

file written opposition to the State’s motion requesting the victim be declared a

court’s witness. However, Beaver provides no support for his argument. As such,

“this Court is left with nothing other than conjecture to evaluate his contention.”

Id. at ¶ 36. Because Beaver’s argument fails for this reason, we need not

determine whether a response would have had a reasonable probability of success.

See Keeton, 2008-Ohio-2613, at ¶ 38. However, even though we need not address

whether a response would have had a reasonable probability of success, we note

that Beaver provides no argument regarding that issue. But, as we determined in

Beaver’s second assignment of error, the trial court did not err in granting the

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State’s motion declaring Buckner a court’s witness. As such, Beaver cannot show

a response to the State’s motion would have had a reasonable probability of

success. Therefore, we conclude that Beaver’s allegation of ineffective assistance

of counsel for failure to oppose the State’s motion requesting Buckner be declared

a court’s witness is meritless.

{¶65} Third, Beaver argues that his trial counsel was ineffective because he

failed to proffer State’s Exhibit Four and Defendant’s Exhibit A. We decline to

address Beaver’s assertion because he did not provide any argument relative to

how he was prejudiced or how his trial counsel was deficient in failing to proffer

State’s Exhibit Four and Defendant’s Exhibit A. State v. Raber, 189 Ohio App.3d

396, 2010-Ohio-4066, ¶ 30 (“[I]f an argument exists that can support [an]

assignment of error, it is not this [c]ourt’s duty to root it out.”). See also App.R.

12(A)(2); App.R. 16(A)(7).

{¶66} For these reasons, Beaver’s fourth assignment of error is overruled.

{¶67} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr

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