[Cite as State v. Gatliff, 2013-Ohio-2862.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-06-045
: OPINION - vs - 7/1/2013 :
SHANNON BLAINE GATLIFF, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012CR0020
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Christine Y. Jones, 114 East 8th Street, Suite 400, Cincinnati, Ohio 45202, for defendant- appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Shannon Blaine Gatliff, appeals his conviction in the
Clermont County Court of Common Pleas for felonious assault. For the reasons stated
below, we affirm his conviction.
{¶ 2} On January 11, 2012, appellant was indicted for felonious assault. The charge
arose out of allegations that appellant assaulted Christina Freeman outside Christina's Clermont CA2012-06-045
restaurant on December 24, 2011. A jury trial began on April 26, 2012, where several
witnesses testified regarding the events of that night.
{¶ 3} The first witness to testify was Christina who explained that during the evening
of December 24, 2011, she was at her restaurant, the Backyard Inn Bar & Grill. Christina
had closed the restaurant early and invited a few of her family members and friends to come
by after the business shut down for the night. Around 10:00 p.m., appellant, his sister
(Amanda), and his brother-in-law came into the bar through a back entrance. Christina
stated that she had been in a relationship with appellant for the past several months and the
couple had broken up about ten days earlier. Christina told appellant to leave and followed
him to the back door to ensure that he left the property.
{¶ 4} Christina testified that once outside the bar, Amanda became verbally abusive
towards her. The two women then got involved in a physical altercation. Christina stated
that the pair fell to the ground and "wrestled around." She explained that during the scuffle,
Amanda's hands were tangled in Christina's hair and Amanda was unable to hit her. After
Amanda released Christina's hair, appellant jumped on top of Christina, and repeatedly
struck her in the face with his fist. Christina stated that he hit her in the mouth, her right eye,
and on the right side of her face. Eventually, appellant stopped hitting her and she was able
to get up. As Christina was walking back to the bar, Amanda pulled her hair and she fell to
the ground on her right elbow. As a result of the fight, Christina suffered a fractured orbital
floor of the right eye, loosened teeth, and lip, cheek, and elbow injuries. Christina testified
that she had reconstructive surgery on her right eye and experiences double vision.
{¶ 5} During Christina's testimony, the restaurant's surveillance video was shown.
Christina explained that she has a surveillance video system throughout her restaurant and
after the fight, police obtained the video recording of the restaurant that captured the fight.
The police did not obtain the video of the interior of the restaurant. The video was in black -2- Clermont CA2012-06-045
and white, had no audio, and showed only what occurred outside of the restaurant. The
video captured the initial argument between Christina and Amanda as well as the ensuing
physical altercation between Christina and Amanda.
{¶ 6} The next witness to testify was Christina's mother who explained that she was
at the restaurant on December 24, 2011. She stated that initially, a fight broke out between
Amanda and Christina. During the fight, the women fell to the ground and both girls had their
hands in the other's hair. Appellant then came over and struck Christina in the mouth.
Christina's mother testified that one of appellant's hands was on Christina's throat while the
other hand was hitting her face. Ultimately, Christina's mother called 911 and the 911
recording was introduced at trial where Christina's mother stated that appellant had beat up
her daughter.
{¶ 7} The state also had other witnesses who testified that they observed the fight
between Christina and appellant and some of them admitted consuming alcohol prior to the
altercation. All the witnesses stated that appellant struck Christina and caused all her injuries
except the elbow injury. The witnesses agreed that the fight between Christina and Amanda
did not cause any of Christina's injuries because the women only had their hands in each
other's hair.
{¶ 8} Finally, the state presented the testimony of a jail inmate who was located in
the same section of the jail as appellant and also had criminal charges pending. The inmate
stated that appellant revealed that he knew where the cameras were located at Christina's
restaurant and admitted to assaulting her. Specifically, appellant stated that he "pound[ed]"
Christina's face "a couple times into the ground."
{¶ 9} Defense counsel presented the testimony of Amanda and appellant's brother-
in-law, who denied that appellant caused the injuries to Christina. Appellant's brother-in-law
stated that Christina started the fight when she pushed appellant. He explained that -3- Clermont CA2012-06-045
Christina "bull rushed" Amanda into the truck and they both struck the vehicle very hard.
Amanda agreed that they hit a truck before the pair fell to the ground and that she was
kicking towards Christina during the fight to free herself. She stated that during the struggle
she kicked and punched Christina in the face. Both Amanda and appellant's brother-in-law
testified that appellant was trying to protect Christina when he fell into the pile. Additionally,
they agreed that appellant never punched Christina.
{¶ 10} Lastly, appellant testified in his own defense and denied causing any of the
injuries to Christina. Appellant stated that he and Christina were in a relationship, had lived
together, and had broken up shortly before the alleged assault. Appellant received a text
message from Christina requesting that he retrieve his clothes from her home. In response
to this text, he went to Christina's restaurant on December 24 to make arrangements to get
his belongings. Upon arriving at the bar, appellant stated that Christina was intoxicated.
According to appellant, a verbal altercation ensued as he was leaving the bar between
Christina and Amanda, and at some point Christina kicked appellant. Christina and Amanda
started fighting and Amanda kicked Christina in the mouth. He stated that he tried to break
up the fight between Christina and Amanda but tripped and fell down to the ground.
Appellant then got entangled in the fight between Christina and Amanda but denied that he
ever choked or hurt Christina.
{¶ 11} At the conclusion of the trial, the jury found appellant guilty as charged. On
May 10, 2012, the trial court held a telephone conference with counsel, where the court
informed counsel that the court's bailiff received information that one of the jurors might have
watched a "YouTube" video of the altercation during the trial. Subsequently, defense
counsel filed a motion for a new trial and an evidentiary hearing. The court held a hearing
regarding the motion for a new trial and ultimately denied both of defendant's motions. On
June 22, 2012, appellant was sentenced to seven years imprisonment.
-4- Clermont CA2012-06-045
{¶ 12} Appellant now appeals, asserting eight assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE JURY ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT
BY FINDING HIM GUILTY OF FELONIOUS ASSAULT, AS THOSE FINDINGS WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE JURY ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT
BY FINDING HIM GUILTY OF FELONIOUS ASSAULT, AS THOSE FINDINGS WERE
CONTRARY TO LAW.
{¶ 17} Assignment of Error No. 3:
{¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-
APPELLANT BY OVERRULING HIS MOTION FOR ACQUITTAL UNDER OHIO CRIMINAL
PROCEDURE RULE 29.
{¶ 19} Appellant argues that there was insufficient evidence to support his conviction,
his conviction is against the manifest weight of the evidence, and the trial court erred in
overruling his Crim.R. 29 motions for acquittal. Specifically, appellant argues his conviction is
in error because the witnesses' testimony was contradictory as to his involvement in the fight
and the evidence established that his sister was the primary person engaged in the fight.
{¶ 20} Crim.R. 29(A) provides, "[t]he court on motion of the defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." A Crim.R. 29(A) motion tests the sufficiency of the evidence. State v. Stutz, 12th
Dist. No. CA2010-06-013, 2011-Ohio-3517, ¶ 11. An appellate court reviews the denial of a
Crim.R. 29 motion under the same standard used for reviewing a sufficiency of the evidence
claim. State v. Clements, 12th Dist. No. CA2009-11-277, 2010-Ohio-4801, ¶ 17. See also -5- Clermont CA2012-06-045
State v. Carter, 72 Ohio St.3d 545, 553 (1995).
{¶ 21} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing
the sufficiency of the evidence underlying a criminal conviction, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist.
No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[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.
{¶ 22} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. No. CA2011-09-177, 2012-
Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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.
State v. Graham, 12th Dist. No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the
evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in
the best position to judge the credibility of witnesses and determine the weight to be given to
the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th
Dist.)
{¶ 23} "Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding of -6- Clermont CA2012-06-045
sufficiency." State v. Hart, 12th Dist. No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
Accordingly, a determination that a conviction is supported by the weight of the evidence will
also be dispositive of the issue of sufficiency. Id.
{¶ 24} Appellant was charged and convicted of felonious assault in violation of R.C.
2903.11(A)(1), a felony in the second degree. Pursuant to R.C. 2903.11(A)(1), "[n]o person
shall knowingly * * * [c]ause serious physical harm to another or to another's unborn." "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 * * *." R.C. 2901.22(B).
Serious physical harm includes,
(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 or prolonged or intractable pain.
R.C. 2901.01(A)(5).
{¶ 25} We find that the greater inclination of the evidence supports appellant's
felonious assault conviction. The state produced ample evidence that appellant knowingly
caused physical harm to Christina. Christina and five other eyewitnesses testified that
appellant punched Christina in the face. Specifically, Christina stated that appellant punched
her multiple times in the mouth, the eye, and on the side of her face. Christina and the
eyewitnesses all consistently denied that Amanda caused Christina's injuries explaining that
Amanda only had her hands in Christina's hair. The state also produced the testimony of a
man who was in jail with appellant. The man stated that appellant "bragged" to him that he -7- Clermont CA2012-06-045
had "got on top of Christina and pounded her face a couple times into the ground."
{¶ 26} The evidence also established that the injuries Christina suffered qualified as
"serious physical harm." Christina testified that as a result of the assault she suffered a
fractured orbital floor of the right eye, her teeth were loose, her lip was spilt open, and her
cheek was bruised and severely swollen. The state introduced medical records and
photographs taken of Christina after the assault that corroborated her testimony regarding
her injuries. The photographs showed severe bruising of Christina's right eye and numerous
other bruises on Christina's body. Christina also explained that she had to undergo
reconstructive surgery in order to repair the orbital fracture and noted that she suffers from
double vision in that eye. An emergency room physician who treated Christina also testified
that Christina's orbital fracture was a "significant injury." He stated that the concerns with this
kind of injury are brain damage, the loss of the ability to move the eye, and double vision.
{¶ 27} Appellant contends that his conviction was in error because there was
contradictory testimony regarding his and Amanda's involvement in the fight. Appellant
argues the jury lost its way because it did not consider the defense witnesses' testimony who
explained that Christina's injuries were caused by her fall and her fight with Amanda.
However, simply because the testimony at trial was contradictory does not make a conviction
against the manifest weight of the evidence. It was for the jury to determine whether all, part,
or none of the defense witnesses' testimony was credible as it was in the best position to
observe the witnesses' demeanor. State v. Mays, 12th Dist. CA2012-05-038, 2013-Ohio-
1952, ¶ 27. The jury's decision to find the state's witnesses credible does not render the
verdict against the manifest weight of the evidence. State v. Birt, 12th Dist. No. CA2012-02-
031, 2013-Ohio-1379, ¶ 47.
{¶ 28} Given the evidence presented, the jury clearly did not lose its way and create
such a manifest miscarriage of justice such that the conviction must be reversed and a new -8- Clermont CA2012-06-045
trial ordered. As appellant's felonious assault conviction was not against the manifest weight
of the evidence, we necessarily conclude that the state presented sufficient evidence to
support the jury's finding of guilt and to overcome appellant's Crim.R. 29(A) motion.
Accordingly, appellant's first, second, and third assignments of error are overruled.
{¶ 29} Assignment of Error No. 4:
{¶ 30} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY IMPOSING A SENTENCE THAT IS AN ABUSE OF DISCRETION.
{¶ 31} Appellant argues the trial court abused its discretion when it sentenced him to
seven years of imprisonment. He maintains his sentence was excessive because he did not
start the altercation and after it started, he was merely a minimal participant in the fight.
{¶ 32} Appellate courts apply a two-step procedure when reviewing felony sentences.
First, courts must examine the sentencing court's compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. If
this first prong is satisfied, then the sentencing court's decision is reviewed for an abuse of
discretion. Id. An abuse of discretion "connotes more than an error of law or of judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v.
Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181.
{¶ 33} In applying the first prong under Kalish, a sentence is not clearly and
convincingly contrary to law where the trial court considers the purposes and principles of
sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in
R.C. 2929.12, properly applies postrelease control, and sentences a defendant within the
permissible statutory range. Kalish at ¶ 18; State v. Rose, 12th Dist. No. CA2011-11-241,
2012-Ohio-5607, ¶ 78. The trial court has discretion in determining whether the sentence
satisfies the overriding purpose of Ohio's sentencing structure and is not required to engage -9- Clermont CA2012-06-045
in any factual findings under R.C. 2929.11 or R.C. 2929.12. Rose at ¶ 78.
{¶ 34} Upon review of the record, we find that appellant's sentence is not contrary to
law. The trial court stated it considered the purposes and principles of sentencing under R.C.
2929.11 and balanced the seriousness and recidivism factors listed in R.C. 2929.12. The
trial court also sentenced appellant within the applicable statutory range. Appellant was
convicted of felonious assault in violation of R.C. 2903.11(A)(1), a felony in the second
degree. R.C. 2903.11(D)(1)(a). According to R.C. 2929.14(A)(2), the sentence for a felony
of the second degree shall be between two and eight years. Therefore, appellant's sentence
of seven years was within the applicable range. Lastly, the trial court properly applied
postrelease control.
{¶ 35} We further find that the trial court did not abuse its discretion in sentencing
appellant to seven years in prison. The trial court considered the presentence investigation
report as well as appellant's lack of remorse. The court noted that while appellant does not
have a long criminal record, the crimes he has committed are serious offenses. The court
also noted that appellant received multiple misconduct reports while in prison. Therefore, the
court found that due to these factors, appellant's chances of recidivism are more likely.
Thus, in light of the facts of this case, the court did not abuse its discretion in imposing a
seven year prison term.
{¶ 36} Appellant's fourth assignment of error is overruled.
{¶ 37} Assignment of Error No. 5:
{¶ 38} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY NOT GRANTING HIS REQUEST FOR EVIDENCE.
{¶ 39} Appellant argues his due process rights were violated when the state failed to
preserve the surveillance video of the interior of the bar. Appellant alleges this recording
contained exculpatory evidence regarding the actions of appellant and the witnesses prior to - 10 - Clermont CA2012-06-045
the altercation. Appellant also maintains that this evidence was at least potentially useful and
it was destroyed in bad faith.
{¶ 40} Depending on the nature of the evidence, different tests are applied to
determine whether the state's failure to preserve evidence amounts to the level of a due
process violation. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73-77. The
state's failure to preserve "materially exculpatory" evidence, regardless of whether such
failure was done in good faith or bad faith, violates due process. California v. Trombetta, 467
U.S. 479, 489, 104 S.Ct. 2528 (1984). Evidence is constitutionally material when it
possesses "an exculpatory value that was apparent before the evidence was destroyed, and
[is] of such a nature that the defendant would be unable to obtain comparable evidence by
other reasonably available means." Powell at ¶ 74, quoting Trombetta at 489. The
defendant bears the burden to show that the evidence was materially exculpatory. Powell at
¶ 74. See State v. Powers, 12th Dist. No. CA2004-12-110, 2005-Ohio-4340, ¶ 15 (noting
that burden shifts to state when defendant requests preservation of evidence prior to
evidence's destruction).
{¶ 41} However, a different rule is used when the evidence is merely "potentially
useful." State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239 at ¶ 9-10. "Unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488
U.S. 51, 58, 109 S.Ct. 333 (1988). Bad faith implies more than bad judgment or negligence,
rather "[i]t imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
known duty through some ulterior motive or ill will partaking of the nature of fraud." Powell at
¶ 81.
{¶ 42} We find that appellant's due process rights were not violated when the state
failed to preserve the surveillance video of the interior of the bar. We begin by noting that - 11 - Clermont CA2012-06-045
appellant has the burden to prove the evidence is materially exculpatory as his discovery
demand occurred after the video was erased pursuant to the surveillance system's normal
procedures. Appellant has failed to establish the video would be materially exculpatory. It is
undisputed that the altercation occurred completely outside. Therefore, the interior video
would not provide any evidence regarding what took place during the fight. Additionally, the
video would not provide materially exculpatory information regarding the parties' actions prior
to the fight. Appellant's time inside the restaurant was brief and all the witnesses testified
regarding what occurred inside the restaurant. Additionally, the surveillance video would not
provide any information as to the conversations before the fight as the video did not record
any audio.
{¶ 43} Because the video did not provide any materially exculpatory evidence, our
inquiry turns to whether it would be potentially useful and whether the video was destroyed in
bad faith. Even assuming that a video of the interior of the bar prior to the fight would be
potentially useful, appellant has failed to point to any evidence to show how it was destroyed
in bad faith. Instead, the evidence showed that the surveillance video was taped over in the
normal course of business. The state preserved the video that contained images of the fight.
Appellant's assertions that the video was destroyed in bad faith are solely speculative. Thus,
we find the trial court did not err by denying his request to preserve the evidence.
{¶ 44} Appellant's fifth assignment of error is overruled.
{¶ 45} Assignment of Error No. 6:
{¶ 46} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY NOT INCLUDING A LESSER INCLUDED JURY INSTRUCTION.
{¶ 47} Appellant challenges the trial court's jury instructions. At trial, the court refused
to instruct the jury on assault with the mens rea of recklessness. Instead, the court instructed
the jury regarding felonious assault and assault with the mens rea of knowingly. Appellant - 12 - Clermont CA2012-06-045
asserts the court's refusal to instruct the jury regarding reckless assault was in error because
the jury could have found that he did not knowingly cause the injuries to Christina but instead
injured her inadvertently.
{¶ 48} The jury was instructed on and appellant was convicted of felonious assault, in
violation of R.C. 2903.11(A)(1). Pursuant to R.C. 2903.11(A)(1), "[n]o person shall
knowingly * * * cause serious physical harm to another or to another's unborn." (Emphasis
added.) However, the court refused to instruct the jury regarding reckless assault in
violation of R.C. 2903.13(B), which provides, "[n]o person shall recklessly cause serious
physical harm to another or to another's unborn." (Emphasis added.) The distinction
between felonious assault and reckless assault is the mental state. A person acts
knowingly, when, regardless of his purpose, "he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature * * *." R.C. 2901.22(B).
However, recklessly is defined as a person acting "with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to cause a
certain result * * *." Id. at (C).
{¶ 49} Jury instructions are matters left to the sound discretion of the trial court. State
v. Guster, 66 Ohio St.2d 266, 271 (1981). Therefore, this court reviews the trial court's
decision refusing to provide the jury with a requested jury instruction for an abuse of
discretion. State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion implies that
the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error
of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{¶ 50} A jury instruction on a lesser-included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime charged
and a conviction on the lesser-included offense. State v. Carroll, 12th Dist. Nos. CA2007-02-
030, CA2007-03-041, 2007-Ohio-7075, ¶ 136, citing State v. Carter, 89 Ohio St.3d 593, 600 - 13 - Clermont CA2012-06-045
(2000). However, an instruction is not warranted simply because the defendant offers "some
evidence" to establish the lesser-included offense. State v. Shane, 63 Ohio St.3d 630, 632-
633 (1992). Instead, there must be "sufficient evidence" to "allow a jury to reasonably reject
the greater offense and find the defendant guilty on a lesser included offense." (Emphasis
sic.) State v. Anderson, 12th Dist. No. CA2005-06-156, 2006-Ohio-2714, ¶ 11, quoting
Shane at 632-633. In making this determination, the trial court must consider the evidence in
a light most favorable to the defendant. State v. Smith, 89 Ohio St.3d 323, 331 (2000).
{¶ 51} Reckless assault, in violation of R.C. 2903.13(B), is a lesser included offense of
felonious assault in violation of R.C. 2903.11(A)(1). State v. Vera, 8th Dist. No. 79367, 2002
WL 363648, *6 (Mar. 7, 2002); State v. Turks, 3d Dist. Nos. 1-10-02, 1-10-26, 2010-Ohio-
5944, ¶ 26; State v. Krug, 11th Dist. No. 2008-L-085, 2009-Ohio-3815, ¶ 95. Therefore, our
inquiry turns on whether there was sufficient evidence presented at trial that reasonably
supports an acquittal on felonious assault and a conviction on reckless assault.
{¶ 52} The evidence at trial did not reasonably support both an acquittal on felonious
assault and a conviction on reckless assault. At trial, appellant's defense was that he did not
hit Christina or cause any of her injuries. Appellant testified that the injuries were a result of
the fight between Christina and appellant's sister. Appellant explained that he attempted to
break up the fight but he did not hurt Christina in any way. Appellant's sister also testified
that she and Christina got into a fight and appellant was attempting to protect her. On the
other hand, the witnesses for the state all testified that appellant deliberately caused
Christina's injuries. Therefore, there was no evidence at trial to support the inference that
appellant merely "recklessly" caused Christina's injuries. Instead, the evidence only
supported either the conclusion that appellant "knowingly" caused Christina's injuries or that
he did not injure her at all. Thus, the trial court did not err in refusing to instruct the jury
regarding reckless assault, committed in violation of R.C. 2903.13(B). - 14 - Clermont CA2012-06-045
{¶ 53} Appellant's sixth assignment of error is overruled.
{¶ 54} Assignment of Error No. 7:
{¶ 55} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY NOT ALLOWING EVIDENCE TO BE ADMITTED.
{¶ 56} Appellant argues the trial court erred when it did not allow testimony regarding
Christina's alleged involvement in an arson. Appellant maintains that this testimony provides
a possible motive to prove that Christina falsely accused appellant of assaulting her.
Appellant also maintains that the court erred when it refused to admit still photographs taken
from the surveillance video of Christina's restaurant.
{¶ 57} The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court. State v. Lee, 191 Ohio App.3d 219, 2010-Ohio-6276 (12th Dist.),
¶ 23, citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. An
appellate court will not disturb evidentiary rulings absent an abuse of discretion that produced
a material prejudice to the aggrieved party. Lee at ¶ 23. An abuse of discretion is more than
an error of judgment; it means that the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181.
{¶ 58} It is well-established that evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that a person acted in
conformity therewith on a particular occasion. Evid.R. 404(B); State v. Ford, 12th Dist. No.
CA2009-01-039, 2009-Ohio-6046 ¶ 37. Such evidence may be used for other purposes,
however, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. Evid.R. 404(B); Ford at ¶ 37. Nevertheless, even if the
evidence meets the prerequisites of Evid.R. 404(B), it may still be excluded under Evid.R.
403(A) if its probative value is substantially outweighed by the danger of unfair prejudice,
confusing the issues, or misleading the jury. State v. Hart, 12th Dist. No. CA2008-06-079, - 15 - Clermont CA2012-06-045
2009-Ohio-997, ¶ 11. Further, a court also has the discretion to exclude otherwise
admissible evidence, if the probative value is substantially outweighed by "needless
presentation of cumulative evidence." Evid.R. 403(B).
{¶ 59} "Evid.R. 403(A) speaks in terms of unfair prejudice. Logically, all evidence
presented by a prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant.
It is only the latter that Evid.R. 403 prohibits." State v. Martin, 12th Dist. No. CA2007-01-022,
2007-Ohio-7073, ¶ 16, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 107.
Unfairly prejudicial evidence is that which might result in an improper basis for a jury decision.
State v. Bowman, 144 Ohio App.3d 179, 186 (12th Dist.2001).
{¶ 60} We begin by discussing whether the trial court erred in prohibiting evidence of a
possible arson investigation against Christina. At trial, defense counsel elicited the following
evidence. Appellant testified that earlier in the year the cabin of his best friend, Tim, burned
down in a fire. Appellant explained that on the day the fire occurred, Christina told appellant
that her best friend had burned down the cabin. Christina also reportedly told appellant that
she jokingly told her best friend to burn down the cabin. Appellant testified that later that
night, Christina's best friend came over and confessed that she was involved in the arson.
Two months later, appellant informed Tim what he heard about who was involved in the
arson. Shortly thereafter, appellant met with the State Fire Marshall to discuss the arson.
Appellant stated that once Christina found out he was meeting with the Fire Marshall, she
broke up with him and kicked him out of the house. This occurred ten days before Christina's
alleged assault.
{¶ 61} We find that the trial court did not abuse its discretion by refusing to admit
evidence regarding Christina's alleged involvement in the arson. Assuming, arguendo, that
such evidence of Christina's past wrong was admissible to prove a motive to falsely accuse
appellant of felonious assault; we find that any probative value was substantially outweighed - 16 - Clermont CA2012-06-045
by the dangers listed in Evid.R. 403(A), and the evidence was therefore inadmissible. The
probative value of this evidence was low as appellant's evidence regarding Christina's
involvement in the arson is merely speculative. There was no evidence that Christina has
been charged or convicted for her involvement in the alleged arson. See State v. Buchanan,
12th Dist. No. CA2008-04-001, 2009-Ohio-6042, ¶ 57. Further, no party who was allegedly
involved in the arson had anything to do with the present charge against appellant. The
evidence's probative value is also weakened in light of the diminished role that Christina's
credibility played at trial. At trial, the state not only presented Christina's testimony but also
presented five other eyewitnesses, a surveillance video, testimony of a jail inmate, and
several photographs of Christina's injuries.
{¶ 62} On the other hand, the prejudicial effect of this testimony is great as this
evidence could confuse the jury as to the issues involved in the present case. Additionally,
the jury could use this evidence as improper character evidence, inferring that Christina is a
bad person and must be punished rather than conducting an objective evaluation of the
operative facts. Accordingly, we find the trial court did not abuse its discretion in refusing to
admit evidence regarding Christina's involvement in the arson.
{¶ 63} We also find that the court did not abuse its discretion in refusing to admit the
still photographs taken from the surveillance video. At trial, defense counsel sought to
introduce several still photographs of the incident. These photographs were taken from the
surveillance video that was admitted into evidence. In refusing to admit these photographs,
the court reasoned that the photographs would not be helpful to the jury as the photos were
taken directly from the surveillance video. The jury had access to the surveillance video
during its deliberations and was able to stop the video and observe a single scene of the
video. Additionally, the court reasoned that the still photographs might have distorted the
images as compared to the video. - 17 - Clermont CA2012-06-045
{¶ 64} We agree with the trial court that the probative value of the still photos is slight
as the jury already had access to the surveillance footage. The still photos were cumulative
to the evidence already admitted at trial. Accordingly, we find that the court did not abuse its
discretion in refusing to admit the still photos.
{¶ 65} Appellant's seventh assignment of error is overruled.
{¶ 66} Assignment of Error No. 8:
{¶ 67} DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS BY
THE MISCONDUCT OF THE JURY AND HIS MOTION FOR A NEW TRIAL AND/OR
EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.
{¶ 68} Appellant argues the court erred by denying his motion for a new trial based on
juror misconduct, or at least, erred by denying his motion without holding an evidentiary
hearing. Specifically, appellant maintains that a member of the jury conducted an improper
independent inquiry when that juror was aware of and most likely viewed a video of the
altercation on the internet.
{¶ 69} A new trial may be granted on motion of a criminal defendant due to juror
misconduct that materially affects the defendant's substantial rights. Crim.R. 33(A)(2). A
motion for a new trial based on juror misconduct must be supported by an affidavit showing
the truth of the allegation. Crim.R. 33(C). The decisions whether to grant a motion for a new
trial or hold an evidentiary hearing on the motion are committed to the trial court's sound
discretion, and the trial court's decision will not be reversed absent an abuse of discretion,
i.e., the decision is arbitrary, unconscionable or unreasonable. State v. Brakeall, 12th Dist.
No. CA2008-06-022, 2009-Ohio-3542, ¶ 9, citing State v. Hessler, 90 Ohio St.3d 108, 122-
124 (2000).
{¶ 70} When considering the evidence regarding a motion for a new trial due to juror
misconduct, the court is constrained by Evid.R. 606(B). Evid.R. 606(B), which embodies the - 18 - Clermont CA2012-06-045
"aliunde rule," governs the competency of a juror to testify at subsequent proceedings
concerning the original verdict. Hessler at 123. The rule provides,
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. However a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying will not be received for these purposes.
(Emphasis added.) Evid.R. 606(B).
{¶ 71} In State v. Schiebel, 55 Ohio St.3d 71, 75 (1990), the Supreme Court explained
that "[i]n order to permit juror testimony to impeach the verdict [pursuant to Evid.R. 606(B)], a
foundation of extraneous, independent evidence [i.e. evidence aliunde] must first be
established." The Court noted that "[t]his foundation must consist of information from
sources other than the jurors themselves and the information must be from a source which
possesses firsthand knowledge of the improper conduct." (Citation omitted.) Id. Therefore,
a juror's affidavit alleging misconduct of another juror may not be considered without
evidence aliunde being introduced first. Id. Additionally, "where an attorney is told by a juror
about another juror's possible misconduct, the attorney's testimony is incompetent and may
not be received for the purposes of impeaching the verdict or for laying a foundation of
evidence aliunde." Id. See Brakeall at ¶ 19-20 (reasoning that defense counsel's affidavit of
juror misconduct not proper Evid.R. 606(B) evidence when information ultimately came from
juror).
- 19 - Clermont CA2012-06-045
{¶ 72} "The purpose of the aliunde rule is to maintain the sanctity of the jury room and
the deliberations therein. The rule is designed to ensure the finality of jury verdicts and to
protect jurors from being harassed by defeated parties." Hessler at 123. Therefore, when
there is no evidence of juror misconduct that is offered from sources other than jurors
themselves, a trial court does not abuse its discretion in failing to hold an evidentiary hearing
or granting a new trial. Brakeall at ¶ 19-20; Hessler at 123.
{¶ 73} In the present case, appellant attached two affidavits to his motion for a new
trial. One of the affidavits was from Juror No. 9 who served as part of the jury during
appellant's trial. Juror No. 9 averred that she was told by Juror No. 10 that his daughter
informed him that the surveillance video of the fight was on YouTube. Juror No. 9 did not
state whether Juror No. 10 saw this video. The second affidavit was from appellant's counsel
who averred that he was made aware that Juror No. 9 alleged that another member of the
jury had watched a YouTube video of the fight. In his affidavit, he explained that the bailiff
heard from Juror No. 9 that a member of the jury might have watched a YouTube video of the
fight. Additionally, attached to appellant's counsel affidavit was a printout from the YouTube
website of two scenes of the fight. The printouts show that on May 1, 2012, the second day
of trial, someone "googled" appellant's name and was directed to the video. On May 1, 2012,
the first video was viewed 15 times while the second video was viewed five times.
{¶ 74} We find that the trial court did not abuse its discretion in denying appellant's
motion for a new trial and refusing to grant an evidentiary hearing as appellant failed to
present evidence of the alleged juror misconduct. Appellant presented three pieces of
evidence to support his motion for a new trial. One of the pieces of evidence, the YouTube
printouts, did constitute outside evidence. However, the printouts merely show that the two
fight scenes were viewed on the second day of trial; the printouts do not contain any
information to connect these viewings to any member of the jury. Therefore, these printouts - 20 - Clermont CA2012-06-045
did not constitute sufficient evidence to demonstrate juror misconduct.
{¶ 75} Additionally, the other two remaining pieces of evidence did not demonstrate
juror misconduct as appellant did not lay the requisite foundation for the introduction of any
testimony from a member of the jury regarding alleged juror misconduct. The affidavits from
Juror No. 9 and appellant's counsel were not based on outside evidence. Instead, both
affidavits contained information that ultimately came from a juror. Therefore, these affidavits
were not evidence aliunde of the alleged juror misconduct. Additionally, as the YouTube
printout did not demonstrate evidence of juror misconduct, it could not constitute evidence
aliunde necessary to introduce the affidavits.
{¶ 76} Lastly, we note that even if the affidavits were admissible, appellant has not
demonstrated that he suffered prejudice. The affidavit of Juror No. 9 merely stated that Juror
No. 10 was aware that the video was posted on YouTube. Appellant presented no evidence
that any juror watched this video. It is a "long standing" rule that a judgment will not be
reversed based upon juror misconduct unless prejudice to the complaining party is shown;
prejudice will not be presumed. State v. Doan, 12th Dist. No. CA2001-09-030, 2002-Ohio-
3351, ¶ 45, citing State v. Keith, 79 Ohio St.3d 514, 526 (1997).
{¶ 77} Thus, the trial court did not err when it denied appellant's motion for a new trial
on the ground of juror misconduct, since appellant did not produce evidence of the alleged
misconduct. Also, the trial court did not abuse its discretion under the circumstances of this
case by denying appellant's motion without holding an evidentiary hearing.
{¶ 78} Appellant's eighth assignment of error is overruled.
{¶ 79} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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