[Cite as State v. Foster, 2018-Ohio-3569.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106554
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAYMOND FOSTER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-618153-A
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Boyle, J.
RELEASED AND JOURNALIZED: September 6, 2018 ATTORNEY FOR APPELLANT
James M. Price, Jr. 1496 Westford Circle, Apt. 203 Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
Andrew T. Gatti Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Daymond Foster (“Foster”) appeals his felonious
assault conviction, arguing that it was both against the manifest weight of the evidence
and supported by insufficient evidence. For the reasons that follow, we affirm Foster’s
conviction.
Procedural and Substantive History
{¶2} On June 13, 2017, Foster was indicted by a Cuyahoga County Grand Jury
on one count of felonious assault in violation of R.C. 2903.11(A)(1) and one count of
aggravated robbery in violation of R.C. 2911.01(A)(3). These charges stemmed from an
incident on June 7, 2017.
{¶3} Foster and the victim, Ralph Ronsky (“Ronsky”), were together on the
evening of June 6, 2017, when they went with a third man to Home Depot. At Home
Depot, Ronsky returned cable and received a gift card in exchange for the cable.
According to Foster, Ronsky owed him money for a portion of the gift card and for drugs.
{¶4} In the early hours of the morning on June 7, 2017, Foster confronted
Ronsky. According to Ronsky’s testimony, Foster entered Ronsky’s home, took a bottle
of whiskey that Ronsky had been drinking, and proceeded to tease Ronsky about the
whiskey before riding away on a bicycle. At that point, Ronsky left his house to
purchase beer from a nearby corner store. Because the store was not yet open, he went
to his neighbor Susan Davis’s house for coffee and breakfast. Foster approached
Ronsky in Davis’s driveway, demanded that Ronsky give him what Foster claimed he was owed, and proceeded to punch Ronsky. According to the testimony of both Ronsky and
Foster, Foster knocked Ronsky to the ground several times with the force of his punches.
Ronsky alleged that after knocking him to the ground, Foster took two cell phones, a
necklace, and a wallet from his pockets and left.
{¶5} Foster disagrees with Ronsky as to how this fight started. He testified that
he approached Ronsky and asked Ronsky to pay him, and in response, Ronsky refused
and “rushed [him].” Foster does not deny punching Ronsky and knocking him to the
ground.
{¶6} Ronsky then went inside Davis’s house, and Davis, seeing Ronsky’s
condition, called 911. Ronsky was treated for his injuries at Fairview Hospital, and
Foster was arrested the following day.
{¶7} On June 16, 2017, Foster pleaded not guilty as to both counts. On
September 18, 2017, Foster waived his right to a jury trial. A bench trial began the next
day. Ronsky, Davis, and Foster testified at trial, along with two Cleveland police
officers, a detective, and the physician assistant who treated Ronsky. On September 20,
2017, the court found Foster guilty of felonious assault and not guilty of aggravated
robbery. On October 16, 2017, the court sentenced Foster to three years in prison.
Foster now appeals, presenting two assignments of error for our review.
Law and Analysis
Sufficiency {¶8} In his first assignment of error, Foster argues that the state failed to produce
legally sufficient evidence to support his felonious assault conviction. Specifically, he
asserts that the state failed to present any evidence that Ronsky suffered serious physical
harm.
{¶9} A sufficiency challenge requires a court to determine whether the state has
met its burden of production at trial and to consider not the credibility of the evidence but
whether, if credible, the evidence presented would support a conviction. State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. 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. State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492
(1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).
{¶10} Foster was convicted of felonious assault pursuant to R.C. 2903.11(A)(1),
which makes it a crime to knowingly cause serious physical harm to another. R.C.
2901.01(A)(5) defines “serious physical harm to persons” as, inter alia, “any physical
harm that involves some permanent incapacity, whether partial or total, or that involves
some temporary, substantial incapacity.”
{¶11} We find that the state clearly met its burden with respect to establishing that
Foster inflicted serious physical harm on Ronsky. The physician assistant who treated
Ronsky testified that Ronsky had suffered from an orbital fracture, a nasal fracture, an ear laceration requiring a stitch, and a subconjunctival hemorrhage in his left eye. These
injuries are sufficient to constitute serious physical harm. This court has held that nasal
fractures are sufficient to constitute serious physical harm. State v. Clark, 8th Dist.
Cuyahoga No. 104076, 2016-Ohio-5143, ¶ 23. Here, the victim suffered multiple facial
fractures, and his injuries resulted in significant bruising and swelling, along with
substantial pain that required prescription medication. Further, Foster does not dispute
any of the evidence regarding the harm suffered by Ronsky; he merely disputes the
seriousness of Ronsky’s injuries. Taking the evidence in the light most favorable to the
state, however, there was sufficient evidence to show that Foster caused Ronsky serious
physical harm. Therefore, this assignment of error is without merit.
Manifest Weight
{¶12} Unlike a challenge to the sufficiency of evidence, a manifest weight
challenge attacks the quality of the evidence and questions whether the state met its
burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 13. When reviewing a manifest weight challenge, a court reviews
the entire record, weighing all evidence and reasonable inferences and considering the
credibility of the witnesses, to determine whether the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed.
Thompkins at 387. {¶13} After a thorough review of the record, we conclude that the trier of fact did
not clearly lose its way, because Foster’s conviction was not against the manifest weight
of the evidence. Again, the only element of his felonious assault conviction that Foster
contests is serious physical harm. We established above that the state presented
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[Cite as State v. Foster, 2018-Ohio-3569.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106554
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAYMOND FOSTER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-618153-A
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Boyle, J.
RELEASED AND JOURNALIZED: September 6, 2018 ATTORNEY FOR APPELLANT
James M. Price, Jr. 1496 Westford Circle, Apt. 203 Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
Andrew T. Gatti Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Daymond Foster (“Foster”) appeals his felonious
assault conviction, arguing that it was both against the manifest weight of the evidence
and supported by insufficient evidence. For the reasons that follow, we affirm Foster’s
conviction.
Procedural and Substantive History
{¶2} On June 13, 2017, Foster was indicted by a Cuyahoga County Grand Jury
on one count of felonious assault in violation of R.C. 2903.11(A)(1) and one count of
aggravated robbery in violation of R.C. 2911.01(A)(3). These charges stemmed from an
incident on June 7, 2017.
{¶3} Foster and the victim, Ralph Ronsky (“Ronsky”), were together on the
evening of June 6, 2017, when they went with a third man to Home Depot. At Home
Depot, Ronsky returned cable and received a gift card in exchange for the cable.
According to Foster, Ronsky owed him money for a portion of the gift card and for drugs.
{¶4} In the early hours of the morning on June 7, 2017, Foster confronted
Ronsky. According to Ronsky’s testimony, Foster entered Ronsky’s home, took a bottle
of whiskey that Ronsky had been drinking, and proceeded to tease Ronsky about the
whiskey before riding away on a bicycle. At that point, Ronsky left his house to
purchase beer from a nearby corner store. Because the store was not yet open, he went
to his neighbor Susan Davis’s house for coffee and breakfast. Foster approached
Ronsky in Davis’s driveway, demanded that Ronsky give him what Foster claimed he was owed, and proceeded to punch Ronsky. According to the testimony of both Ronsky and
Foster, Foster knocked Ronsky to the ground several times with the force of his punches.
Ronsky alleged that after knocking him to the ground, Foster took two cell phones, a
necklace, and a wallet from his pockets and left.
{¶5} Foster disagrees with Ronsky as to how this fight started. He testified that
he approached Ronsky and asked Ronsky to pay him, and in response, Ronsky refused
and “rushed [him].” Foster does not deny punching Ronsky and knocking him to the
ground.
{¶6} Ronsky then went inside Davis’s house, and Davis, seeing Ronsky’s
condition, called 911. Ronsky was treated for his injuries at Fairview Hospital, and
Foster was arrested the following day.
{¶7} On June 16, 2017, Foster pleaded not guilty as to both counts. On
September 18, 2017, Foster waived his right to a jury trial. A bench trial began the next
day. Ronsky, Davis, and Foster testified at trial, along with two Cleveland police
officers, a detective, and the physician assistant who treated Ronsky. On September 20,
2017, the court found Foster guilty of felonious assault and not guilty of aggravated
robbery. On October 16, 2017, the court sentenced Foster to three years in prison.
Foster now appeals, presenting two assignments of error for our review.
Law and Analysis
Sufficiency {¶8} In his first assignment of error, Foster argues that the state failed to produce
legally sufficient evidence to support his felonious assault conviction. Specifically, he
asserts that the state failed to present any evidence that Ronsky suffered serious physical
harm.
{¶9} A sufficiency challenge requires a court to determine whether the state has
met its burden of production at trial and to consider not the credibility of the evidence but
whether, if credible, the evidence presented would support a conviction. State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. 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. State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492
(1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).
{¶10} Foster was convicted of felonious assault pursuant to R.C. 2903.11(A)(1),
which makes it a crime to knowingly cause serious physical harm to another. R.C.
2901.01(A)(5) defines “serious physical harm to persons” as, inter alia, “any physical
harm that involves some permanent incapacity, whether partial or total, or that involves
some temporary, substantial incapacity.”
{¶11} We find that the state clearly met its burden with respect to establishing that
Foster inflicted serious physical harm on Ronsky. The physician assistant who treated
Ronsky testified that Ronsky had suffered from an orbital fracture, a nasal fracture, an ear laceration requiring a stitch, and a subconjunctival hemorrhage in his left eye. These
injuries are sufficient to constitute serious physical harm. This court has held that nasal
fractures are sufficient to constitute serious physical harm. State v. Clark, 8th Dist.
Cuyahoga No. 104076, 2016-Ohio-5143, ¶ 23. Here, the victim suffered multiple facial
fractures, and his injuries resulted in significant bruising and swelling, along with
substantial pain that required prescription medication. Further, Foster does not dispute
any of the evidence regarding the harm suffered by Ronsky; he merely disputes the
seriousness of Ronsky’s injuries. Taking the evidence in the light most favorable to the
state, however, there was sufficient evidence to show that Foster caused Ronsky serious
physical harm. Therefore, this assignment of error is without merit.
Manifest Weight
{¶12} Unlike a challenge to the sufficiency of evidence, a manifest weight
challenge attacks the quality of the evidence and questions whether the state met its
burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 13. When reviewing a manifest weight challenge, a court reviews
the entire record, weighing all evidence and reasonable inferences and considering the
credibility of the witnesses, to determine whether the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed.
Thompkins at 387. {¶13} After a thorough review of the record, we conclude that the trier of fact did
not clearly lose its way, because Foster’s conviction was not against the manifest weight
of the evidence. Again, the only element of his felonious assault conviction that Foster
contests is serious physical harm. We established above that the state presented
sufficient evidence that Foster caused Ronsky serious physical harm. Given the totality
and nature of the evidence, we must also conclude that the evidence was credible and
persuasive.
{¶14} In arguing that his conviction was against the manifest weight of the
evidence, Foster argues that Ronsky’s testimony was inconsistent and therefore not
credible enough to support a conviction. We disagree. Although Ronsky’s testimony
contained several inconsistencies, he clearly testified as to the physical assault he suffered
at the hands of Foster. Further, this aspect of Ronsky’s testimony was supported by
Foster’s own testimony and the medical evidence presented in the case. Therefore, even
if Ronsky’s testimony was inconsistent or even incredible as to how exactly the
altercation started, this is outweighed by the totality of the evidence in the case.
Therefore, this assignment of error is without merit.
{¶15} Because we find that Foster’s conviction was supported by sufficient
evidence and was not against the manifest weight of the evidence, we affirm his
conviction. It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________ TIM McCORMACK, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR