State v. Cousins

2019 Ohio 2899

• Court: Ohio Court of Appeals
• Decided: July 16, 2019
• Docket: 18-CA-95
• Status: Published

Opinion

[Cite as State v. Cousins, 2019-Ohio-2899.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JONATHON COUSINS : Case No. 18-CA-95 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 17 CR 743

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 16, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAULA M. SAWYERS KATHERINE L. WOLFE 20 South Second Street 1350 West 5th Avenue Fourth Floor Suite 330 Newark, OH 43055 Columbus, OH 43212 Licking County, Case No. 18-CA-95 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Jonathon Cousins, appeals his August 29, 2018

convictions in the Court of Common Pleas of Licking County, Ohio. Plaintiff-Appellee is

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 31, 2017, the Licking County Grand Jury indicted appellant on

one count of felonious assault in violation of R.C. 2903.11, two counts of domestic

violence in violation of R.C. 2919.25, and one count of improperly handling a firearm in a

motor vehicle in violation of R.C. 2923.16. Said charges arose from an incident involving

appellant and his wife's grandfather, Donald Rostofer.

{¶ 3} A jury trial commenced on August 28, 2018. The jury found appellant guilty

of the felonious assault count and the handling count, and not guilty of the domestic

violence counts. The trial court filed a judgment entry of conviction on August 29, 2018.

By judgment entry filed October 5, 2018, the trial court sentenced appellant to an

aggregate term of two years in prison.

{¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 5} "THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF

EVIDENCE."

II

{¶ 6} "THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUPPORT THE CONVICTIONS." Licking County, Case No. 18-CA-95 3

I, II

{¶ 7} In his two assignments of error, appellant claims his convictions are against

the sufficiency and manifest weight of the evidence. We disagree.

{¶ 8} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 9} On review for manifest weight, a reviewing court is to 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 jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d

541 (1997). The granting of a new trial "should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction." Martin at 175.

{¶ 10} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d

180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and Licking County, Case No. 18-CA-95 4

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 11} Appellant was convicted of felonious assault in violation of R.C.

2903.11(A)(1): "No person shall knowingly * * * [c]ause serious physical harm to another

or to another's unborn." R.C. 2901.22(B) defines "knowingly" as:

A person acts knowingly, regardless of purpose, when the person is

aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When

knowledge of the existence of a particular fact is an element of an offense,

such knowledge is established if a person subjectively believes that there is

a high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

{¶ 12} R.C. 2901.01(A)(5) defines "serious physical harm to persons" as:

(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; Licking County, Case No. 18-CA-95 5

(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.

{¶ 13} Appellant was also convicted of improperly handling a firearm in a motor

vehicle in violation of R.C. 2923.16(B): "No person shall knowingly transport or have a

loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the

operator or any passenger without leaving the vehicle."

{¶ 14} Eleven witnesses testified during the trial. The first witness, Newark City

Police Sergeant Clint Eskins, was the responding officer to a domestic situation call. T.

at 100. When he arrived on the scene, appellant pulled up in his pickup truck. T. at 101.

Appellant told Sergeant Eskins he and his wife Abby had been arguing when Abby's

grandfather Donald grabbed him by the neck. T. at 102. Appellant reacted and struck

Donald. Id. Sergeant Eskins testified appellant's hand was swollen and appeared to be

broken. Id. Sergeant Eskins observed injuries to Donald's face. T. at 106. Donald's eye

and nose area was red and swollen. T. at 107; State's Exhibit 4.

{¶ 15} When Sergeant Eskins asked appellant if he had any weapons in his

vehicle, appellant stated, "there was an old handgun in the vehicle in the glove box." T.

at 107. Sergeant Eskins testified he secured the firearm from the vehicle along with "a

loaded magazine with rounds inside the truck, as well." T. at 103; State's Exhibits 1 and

2. The loaded magazine was in the gun. T. at 104. Appellant did not have a permit to Licking County, Case No. 18-CA-95 6

carry the firearm. T. at 105. Sergeant Eskins testified the firearm would be within

appellant's reach when he was driving the vehicle. T. at 106.

{¶ 16} Newark City Police Detective Timothy Elliget is a criminalist. T. at 116. He

performed an operability test on the firearm retrieved from appellant's vehicle. Detective

Elliget testified the firearm was operable and fully functional. T. at 118-119; State's Exhibit

3.

{¶ 17} Donald Rostofer, the grandfather, was seventy-two years old at the time of

trial. T. at 121. He testified appellant and Abby were living with his daughter Shelly and

her husband Roy. T. at 124. Donald was over most weekends to help with a kitchen

remodel. T. at 125. He was aware that prior to his arrival on the day in question, all of

the parties had been arguing. T. at 126. As he began working in the kitchen, appellant

and Abby were leaving the house. T. at 126-127, 141-142. On the way out, Abby stopped

to say something to her grandmother Lee. T. at 127. Donald testified he observed

appellant grab Abby's arm and say "come on" and Abby saying a couple times she did

not want to go and telling appellant he was hurting her. T. at 127, 143-144. Donald

grabbed Abby's arm and told appellant, " 'Just go calm down. She doesn't want to go.' "

Id. That was the last thing he remembers because appellant hit him on his right temple

and knocked him out. T. at 127-128. When he came to, he was bleeding from his

forehead, under his eye, and his nose. T. at 130; State's Exhibits 4 and 5. He sustained

bruising and abrasions, a concussion, facial fractures on his left side, headaches, and a

brain bleed. T. at 131, 133, 135, 147. He testified he did not put his hands on appellant

or try to pry his grip off of Abby's arm. T. at 144. Licking County, Case No. 18-CA-95 7

{¶ 18} Dr. Steven Hazelcorn, an emergency room physician at Licking Memorial

Hospital, treated Donald following the incident. T. at 151. He testified to the injuries

sustained by Donald and the seriousness of those injuries. T. at 152-159. Donald "ended

up with a subdural hematoma." T. at 155. Dr. Hazelcorn testified a subdural hematoma

can cause death. T. at 157. The fractures to Donald's face were "serious, especially at

that age. It could also lead to entrapment of the eyeball." T. at 158. Dr. Hazelcorn opined

the subdural hematoma was "much more serious," and it was caused by the trauma to

the head during the incident with appellant. T. at 158, 160.

{¶ 19} Abigail "Abby" Athey, appellant's wife at the time of the incident, ex-wife at

the time of trial, testified to the argument she had with appellant prior to the incident with

her grandfather. T. at 170-172. As appellant and Abby were leaving the house, appellant

"aggressively" pulled on her arm and she asked him to let go because she did not "want

to go anymore." T. at 173. Abby testified her grandfather observed what was happening,

came over to try and calm down appellant, and pushed appellant's shoulder. T. at 173-

174. Appellant said, " 'Don't touch me' " and as her grandfather continued to attempt to

calm him down, appellant punched him. T. at 174-175. Donald stumbled out into the

sunroom and appellant punched him again, punched him a third time, and then Donald

blacked out and "fell flat on his face." T. at 175-176. Abby's father Roy attempted to

protect Donald and he also fell to the floor. T. at 176. Appellant punched Roy's back and

the back of his head until Abby's mother Shelly pulled appellant off. Id. Appellant ran out

and then came back, yelling to Abby "to get his stuff." Id. Abby collected his stuff, ran

out and gave it to appellant, and he ran away. T. at 176-177. Abby was cross-examined

with her statement to police which did not mention the argument prior to the incident or Licking County, Case No. 18-CA-95 8

that appellant punched her grandfather multiple times. T. at 186-191, 195; Defendant's

Exhibit B. In the middle of her statement, Abby wrote, " 'I was mad and upset and basically

Jon was being a good husband that day.' " T. at 195. Abby explained she wrote that

because she was scared and nervous and "didn't really know what I wanted to write down.

My mind was everywhere." T. at 196. On redirect, Abby acknowledged that she wrote in

her statement that appellant threw "fists" at her grandfather, as in multiple attempts to hit

him. T. at 199.

{¶ 20} Roy Athey, Abby's father, testified to arguing with appellant and Abby prior

to the incident. T. at 205-206. He was working in the kitchen when he heard arguing in

the sunroom. T. at 206. Roy went out and observed appellant hit Donald in the face. T.

at 206-207. Roy attempted to break up the fight, but appellant punched Donald again.

T. at 207. Roy got in between the two and appellant struck Donald a third time, causing

him to stumble and fall down. Id. When Donald fell, Roy fell with him. Id. Appellant then

hit Roy in the back and the back of his head until his wife Shelly pulled appellant off. T.

at 208. Appellant left and then came back around and threatened to kill all of them. T. at

209. The comment made him feel "pretty scared" because he knew appellant had guns.

Id. Roy was cross-examined with his statement to police which did not mention that

appellant punched Donald multiple times. T. at 220-221; Defendant's Exhibit C. Roy

explained at the time of writing his statement, "everything happened so fast that I was

shaking and everything and I just wrote down. I started writing down stuff." T. at 222.

{¶ 21} Leota "Lee" Rostofer, Donald's wife, testified on the way out of the house,

Abby started arguing with her. T. at 232. After, Lee observed appellant pulling on Abby's

arm and telling her to "come on," Abby saying she did not want to go, her husband holding Licking County, Case No. 18-CA-95 9

on to Abby's arm and trying to calm appellant down, and appellant hitting her husband in

the head and "continued on hitting him." T. at 232-233. She saw her husband on the

floor face down and Roy was on top of him trying to protect him. T. at 233. Appellant hit

Roy in the head until Shelly pulled him off. Id. Appellant left and then came back around

and threatened to kill all of them. T. at 234. The comment terrified her because she knew

appellant had guns. Id. She did not see any contact from her husband to appellant prior

to the punch. T. at 239. Lee was cross-examined with her statement to police which did

not mention that appellant punched Donald multiple times. T. at 243-244; Defendant's

Exhibit A. Lee explained at the time of writing her statement, she was "just so upset." T.

at 241.

{¶ 22} Michele "Shelly" Athey, Abby's mother, testified to arguing with appellant

and Abby prior to the incident. T. at 250-252. She did not observe the altercation between

appellant and her father, but she could hear them arguing. T. at 253. By the time she

got to the sunroom, her father was face down on the floor and Roy was on top of him. T.

at 254, 266. Appellant hit Roy in the back and the back of his head until she pulled him

off. T. at 254. Appellant left and then came back around and threatened to kill all of them.

T. at 255. The comment scared her because she knew appellant had guns. Id.

{¶ 23} Appellant testified on his own behalf. Appellant was twenty-four years old

at the time of trial. T. at 304. He had served in the Army and had received specialized

training such as hand-to-hand combat and attack and defend skills. T. at 304, 342-343.

Appellant testified prior to the incident, Abby's parents Roy and Shelly had been yelling

at him so he fled to his bedroom and locked the door. T. at 315. Abby was in the room

with him, and they were not arguing. Id. Roy and Shelly began "beating" on the bedroom Licking County, Case No. 18-CA-95 10

door and telling them "to get out of there" before they retreated and went "back up front."

T. at 316. Appellant was "very upset" and ready to leave. Id. He and Abby walked

through the house to leave when Abby got into an argument with her family. T. at 317-

318. Appellant testified two times he grabbed Abby's arm and said "come on" and both

times she "jerked away and continued yelling at her family." T. at 318-319. He then

picked up Abby and moved her onto the sunporch and stood between her and her family.

T. at 319-320. Abby never stated she did not want to leave. T. at 319. Donald said

something derogatory to appellant and grabbed his shirt "and kind of did like a shove - -

shove kind of pull thing, and I stiff armed him off of me and I told him, 'We're leaving'." T.

at 321. Appellant testified Donald "proceeded to grab my shirt, and when he grabbed my

shirt for a demonstration, he put his fist up underneath my throat and attempted to lift me

off the ground to where my tippy toes were up." Id. As appellant attempted to get away

from Donald, Donald "grabbed the back of my head and pulled me into his chest." T. at

322. Appellant thought his life was in danger and he started suffocating so he "swung up

forward" with his right arm and made contact with the left side of Donald's face. T. at 322-

323. Donald let go, fell to the ground, and landed on the right side of his face. T. at 323.

Appellant stated he hit Donald only once. T. at 333. Appellant testified he was not trying

to hurt anyone, he just wanted to get away. T. at 325. He attempted to make sure Donald

was okay when he heard Roy yelling and charging him. T. at 324. They then had an

altercation. T. at 325-326. Shelly came in and shoved appellant. T. at 326. Appellant

rushed out of the house and then ran back in to retrieve his book bag. T. at 326. He then

went to his truck and returned to the house to have Abby hand him his keys and phone

and "stuff." T. at 326-327. Donald came out with a towel against his head and went after Licking County, Case No. 18-CA-95 11

appellant, "shoving me up against the back of his truck." T. at 329. Appellant had his

hands up and told him he was going to hit him again. Id. Donald continued to shove him

and Roy had to hold him back. Id. Appellant left and then returned to the house to defend

himself and tell the police his side of the story. T. at 330. While he was gone, he took

his loaded firearm out of his book bag and placed it in his glove compartment. T. at 331,

339. He thought Ohio was an open carry state. T. at 331. Appellant testified he was

never trying to hurt anyone, he had an honest belief that he was in imminent danger of

bodily harm, and he did nothing to create the situation. T. at 333. Appellant stated he

never threatened to kill them. T. at 335. The entire time, he was "trying to alleviate the

hostility and just get away." T. at 335.

{¶ 24} The jury was instructed on the affirmative defense of self-defense. T. at

397-400. As explained by this court in State v. Lawyer, 5th Dist. Licking No. 2018 CA

00030, 2019-Ohio-597, ¶ 29:

To establish self-defense in the use of non-deadly force, the accused

must show: 1) he was not at fault in creating the situation giving rise to the

altercation; 2) the accused had reasonable grounds to believe and an

honest belief, even though mistaken, that some force was necessary to

defend himself against the imminent use of unlawful force; and 3) the force

used was not likely to cause death or great bodily harm. State v.

Hoopingarner, 5th Dist. Tuscarawas No. 2010AP 07 00022, 2010-Ohio-

6490, ¶ 31, citing State v. Vance, 5th Dist. Ashland No. 2007-COA-035,

2008-Ohio-4763, ¶ 77 (citations omitted). If any one of these elements is Licking County, Case No. 18-CA-95 12

not proven by a preponderance of the evidence, the theory of self-defense

does not apply. State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279

(1990).

{¶ 25} Appellant argues the testimony was inconsistent regarding the felonious

assault conviction. As noted above, the jury is entrusted with determining the credibility

of the witnesses. It is undisputed appellant struck Donald. As a result, Donald required

medical attention and Dr. Hazelcorn testified to the seriousness of his injuries. "Ohio

courts have also determined that 'serious physical harm' exists where the injuries caused

the victim to seek medical treatment." State v. Nicholson, 5th Dist. Morgan No. 18 AP

0005, 2019-Ohio-1058, ¶ 22, citing State v. Scott, 4th Dist. Washington No. 15CA2, 2015-

Ohio-4170, ¶ 23. Further, "Ohio courts have held that it is a foreseeable consequence

for someone to fall to the ground after being punched in the head or pushed." Nicholson

at ¶ 23. It was up to the jury to accept appellant's self-defense claim. The jury heard

inconsistent testimony and it was within the jury's province to accept the version of the

incident as presented by appellee.

{¶ 26} As for the improperly handling a firearm in a motor vehicle conviction,

appellant argues there was no evidence as to whether the glove box was locked or not,

rendering the gun accessible. Sergeant Eskins did not testify to having any trouble

retrieving the firearm from the glove box. He testified the gun would be within appellant's

reach when he was driving the vehicle. Appellant did not testify to locking the glove box

after he placed the loaded gun inside. Licking County, Case No. 18-CA-95 13

{¶ 27} Upon review, we find there is sufficient evidence, if believed, to support the

convictions beyond a reasonable doubt. In weighing the evidence presented, we do not

find the jury lost its way and created a manifest miscarriage of justice.

{¶ 28} Assignments of Error I and II are denied.

{¶ 29} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Hoffman, J. concur.

EEW/db 627