State v. George

2021 Ohio 2708

Opinion

[Cite as State v. George, 2021-Ohio-2708.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1044

Appellee Trial Court No. CR0201902503

v.

Alejandro Palmer George DECISION AND JUDGMENT

Appellant Decided: August 6, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

***** DUHART, J.

{¶ 1} This is a delayed appeal filed by appellant, Alejandro Palmer George, from

the December 23, 2019 judgment of the Lucas County Court of Common Pleas. For the

reasons that follow, we affirm.

{¶ 2} Appellant sets forth two assignments of error:

I. The trial court erred in denying appellant’s Rule 29 motion. II. The jury’s verdict was against the manifest weight of the

evidence presented at trial.

Background

{¶ 3} On August 28, 2019, appellant was indicted on one count of felonious

assault in violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree. The

charge arose from an incident which occurred on August 20, 2019, between appellant and

his then-girlfriend (“the victim”). Appellant pled not guilty. The case proceeded to trial.

Victim

{¶ 4} The victim testified to the following. She and appellant were in an on-and-

off relationship for over four years. She had a baby, in July 2019, who she believed

appellant had fathered. She later discovered appellant was not the father of her baby.

{¶ 5} On August 19, 2019, after appellant got home from work, the couple drank

beer and watched a movie in the living room of the victim’s apartment, with the baby

asleep in a swing next to the couch. Appellant started to get drunk and call the victim

names. At about midnight on August 20, 2019, appellant took the victim’s phone and

found messages between the victim and her friend. The messages indicated the victim

kissed or made out with one of appellant’s friends, when the victim and appellant were

broken up.

{¶ 6} Over the next four hours, appellant slapped the victim in her face, punched

her in the ribs, kicked her in her stomach and back, and choked or strangled her until she

could not breathe, she urinated in her pants and started to see stars. The baby was asleep

2. in the swing most of the time, but at one point the baby woke up. While the victim was

holding the baby, appellant hit the victim in the face. He repeatedly said he had to leave

the state, he should quit his job and drive her out to the middle of nowhere and

dismember her.

{¶ 7} At about 4:00 a.m., appellant started to get ready for work, and took a

shower. The victim grabbed her baby and ran out of her apartment. Appellant had the

victim’s phone and car keys, so she went inside another apartment building. A resident

then drove the victim and her baby to a relative’s house. The victim felt like her ribs

were broken and she was having difficulty breathing, so she was taken to the hospital

where she received treatment and was admitted overnight.

{¶ 8} The police were called and the victim told an officer what happened. With

respect to her injuries, the victim described her face “was completely deformed and

swollen,” she had bruises and rug burns, she had “busted blood vessels” in her eye so it

was red on the inside, and she had two black eyes. The victim’s injuries lasted over a

month, but she did not have further medical treatment. The victim moved to Texas

because she was scared of appellant, and she has had no contact with him.

Officer

{¶ 9} The responding officer testified he was wearing a body camera when he

saw the victim at the hospital and she was upset and very distressed. The officer

observed “bruising about the head, neck and on [the victim’s] arms.” The victim reported

3. that appellant hit, slapped and strangled her, and took her car keys and phone. While

appellant was in the bathroom showering, the victim grabbed her baby and fled to an

adjoining building. Someone gave the victim a ride to a relative’s nearby home.

Nurse

{¶ 10} The emergency room nurse testified she is a certified sexual assault nurse

examiner (“SANE”) and took a three-day seminar on strangulation. The nurse conducted

a strangulation examination on the victim, which included an event history. In the

history, the victim reported her child’s father/boyfriend was intoxicated and hit and

strangled her, and took her phone and keys/car. The victim was tearful.

{¶ 11} The nurse prepared a body map indicating injuries on the victim’s neck,

head, face, eyes and left ear. The victim had a circular pattern of bruising on her neck,

which would be indicative of a thumb or finger pressed against her neck. And, the victim

had bruising and petechiae, due to restriction of blood flow. Petechiae are tiny purple

dots that look like bruises. The nurse noted the victim’s right eye had a subconjunctive

hemorrhage, which is “the redness to the white of the eye,” caused by “[a] build up of

pressure in the brain from blood not being able to flow back.” Petechiae and a

subconjunctive hemorrhage are signs of strangulation. On cross-examination, the nurse

acknowledged petechiae can occur due to vomiting.

{¶ 12} The victim also had redness and pain to the left rib area, bruising and

abrasions on her arms and bruising on her feet. The medical records set forth the victim’s

primary diagnosis as “Victim of physical assault. Head injury with loss of consciousness.

4. Manual strangulation.” DNA evidence from the victim’s neck was collected in a

strangulation kit.

Scientist

{¶ 13} An Ohio Bureau of Criminal Investigation (“BCI”) forensic scientist

testified she conducted DNA analysis on submitted items and generated a report which

set forth her findings and conclusions. The BCI scientist detected male DNA on items

from the victim’s strangulation kit, and on one item, appellant and his paternal male

relatives could not be excluded as the source of the DNA profile. The BCI scientist could

not say how or when the DNA was deposited.

Detective

{¶ 14} A detective with the domestic violence unit testified she met with the

victim at the hospital. The victim had bruises developing around her eyes, she had

petechiae, and she was emotional and crying. After speaking with the victim, the

detective went to the victim’s apartment complex and located the victim’s car and

attempted to locate the person who drove the victim to her relative’s house, but was

unable to do so.

{¶ 15} The detective met with appellant at the police station. Appellant appeared

fine, he had no visible injuries and he had the victim’s keys in his pocket. Appellant was

interviewed about the domestic violence incident but he said he did not have much of a

recollection, he had been inebriated and had some spots in his memory. The detective

took DNA swabs from appellant in order to have a DNA standard for the strangulation

5. kit. The detective stated the DNA test conducted by the BCI scientist showed there was a

DNA deposit from appellant on the victim’s throat.

Appellant

{¶ 16} Appellant testified to the following. He had been living with the victim, on

and off, for about a month to a month and a half before the incident. On the night of

August 19, 2019, he and the victim were drinking and started watching a movie at 11:00

p.m. On August 20, 2019, just past midnight, the victim’s phone vibrated and lit up.

Appellant asked if he could see the phone and the victim handed it to him. Appellant

“seen it was a guy, so it sparked my curiosity.” Appellant went outside with the victim’s

phone and looked through “Facebook Messenger, text, calls, [and] gallery for over an

hour.”

{¶ 17} When appellant returned to the apartment, the victim was resting on the

couch on her back, and appellant held her phone “over her face as she was lying down,

and I asked her what does that say. * * * She says it says we made out. We, meaning [the

victim] and [appellant’s friend].” Appellant said he dropped the phone of her face from

about ten inches to a foot, with “[n]o, no velocity.” Appellant then slapped the victim

across the face. By this time it was one o’clock or later, appellant recalled, and “[t]here

was no arguing. There was no yelling. No. Just, just talking. I was talking.”

{¶ 18} Appellant saw another text between the victim and her friend which said

the victim had sex with another guy, so appellant asked the victim about the text. The

victim said it did not happen, and appellant “slapped her for the second time * * * [he]

6. slapped her a total of five times.” At one point the baby cried so appellant picked up the

baby and handed her to the victim so the baby could be fed. After the baby fell asleep, he

put her back in her swing. Then, appellant was on his knees in front of the victim and

“holding her * * * her abdominal * * * and hugging her and just asking why, why she

cheated.”

{¶ 19} Appellant and the victim sat of the couch and talked for over an hour, when

“I looked to my left. I seen the stove, seen the time[,] it said four o’clock. I knew I had

to start getting ready for work, and that’s what I did.” Appellant put the victim’s phone

by the television and took a shower. Appellant’s mother picked him up and drove him to

work. Appellant only had his own keys with him. Appellant said he was not trying to

hurt the victim when he slapped her, he “was trying to get the truth out.”

{¶ 20} On cross-examination, appellant said throughout his on-and-off relationship

with the victim, he did not see other people when he and the victim were not together.

He denied that he had the victim’s keys when he went to the police station. Appellant

recognized there might be some holes in his memory, but he remembers the events from

August 20, 2019 better because “[a]s time goes on * * * you regather your thoughts.”

He remembers slapping the victim with an open hand five times, hard, not lightly, and

holding her tightly. He did not strangle her. Appellant believes the victim was vomiting

on August 20, 2019, which potentially could have caused the petechial hemorrhaging.

Appellant admitted he “[c]onversated and argued” with the victim on August 20, 2019,

and the victim called herself names like “dumb slut.”

7. Verdict

{¶ 21} The jury found appellant guilty of felonious assault, and he was sentenced

to a minimum of two years in prison and a potential maximum of three years in prison.

Appellant appealed.

First Assignment of Error

{¶ 22} Appellant argues the trial court erred in denying his Crim.R. 29 motion for

judgment of acquittal, as he did not cause serious physical harm to the victim. Appellant

maintains the state did not present credible evidence that he choked the victim, and the

state was unable to offer proof that the victim wet herself while being choked, as the

victim claimed. Appellant also observes the victim testified she had no follow-up doctor

visits related to the incident. Appellant submits the victim’s injuries were minimal and

not serious in nature, as she had essentially two black eyes as the result of being slapped.

Appellant asserts it strains credibility to think that no neighbor heard or reported the

assault which took place over a four-hour period in the victim’s apartment.

Law

{¶ 23} Crim.R. 29(A) provides:

The court on motion of a defendant * * * after the evidence on either

side is closed, shall order the entry of a judgment of acquittal of one or

more offenses charged in the indictment * * * if the evidence is insufficient

to sustain a conviction of such offense or offenses.

8. {¶ 24} Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally adequate to support a jury verdict as to all elements

of the crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The

proper analysis under a sufficiency of the evidence standard 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. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 25} The felonious assault statute, R.C. 2903.11(A)(1) provides “No person shall

knowingly * * * [c]ause serious physical harm to another.” R.C. 2901.22(B) states “[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.”

{¶ 26} Under R.C. 2901.01(A)(5), “serious physical harm” means:

***

(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;

9. (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.

{¶ 27} When determining if the state proved the elements of serious physical

harm, “Ohio appellate courts have held that ‘[w]here injuries are serious enough to cause

him or her to seek medical treatment, the finder of fact may reasonably infer that the

force exerted on the victim caused serious physical harm as defined by R.C.

2901.01(A)(5).’” (Citations omitted.) State v. Lee, 6th Dist. Lucas No. L-06-1384, 2008-

Ohio-253, ¶ 30.

{¶ 28} In State v. Pinkelton, 6th Dist. Ottawa No. OT-07-047, 2009-Ohio-264, ¶

11, 56, the victim was attacked in his asleep, and suffered “a black eye, fat lips, a busted

up nose and a swollen ear,” and his two front teeth were knocked out. The victim sought

medical treatment on the day he was attacked, but he was not kept overnight in the

hospital. Id. at ¶ 46. The victim admitted that on the day after he was injured, he could

physically do his daily activities, but he had trouble speaking and could not eat. Id. No

medical records were entered into evidence at trial concerning the victim’s injuries. Id.

{¶ 29} We concluded the evidence, construed most favorably to the state,

supported the findings that a reasonable trier of fact would find the victim suffered

serious physical harm, as required to support a conviction for felonious assault, thus a

reasonable trier of fact would find the victim suffered permanent physical disfigurement

or temporary serious disfigurement, as defined in R.C. 2901.01(A)(5)(d). Id. at ¶ 56.

10. Analysis

{¶ 30} Upon review, the evidence presented at trial shows the victim testified that

for several hours, appellant slap her in the face, punched her in the ribs, kicked her in the

stomach and back, and choked or strangled her. Appellant admitted he slapped the victim

numerous time. The evidence further demonstrated the victim suffered injuries to her

head, face, neck, ribs, arms and feet, she required medical attention and a hospital stay,

and she suffered the effects of her injuries for over a month.

{¶ 31} Construing the evidence in a light most favorable to the state, as we are

required to do, we find there was sufficient evidence which demonstrated the victim

suffered serious physical harm. We further find that any rational trier of fact could have

found the essential elements of felonious assault proven beyond a reasonable doubt.

Consequently, the evidence was sufficient to support the conviction, and the trial court

did not err in denying appellant’s Crim.R. 29 motion for acquittal. Accordingly,

appellant’s first assignment of error is not well-taken.

Second Assignment of Error

{¶ 32} Appellant challenges the credibility of the evidence and argues the state did

not present credible evidence that he caused the victim to suffer serious physical harm.

Appellant asserts the jury completely discounted his testimony that although he forcefully

slapped the victim five times, he did not choke or threaten her and he did not intend to

hurt her.

11. {¶ 33} Appellant further contends the jury’s verdict discounted the fact that the

victim apparently lied to him regarding the paternity of her baby. And, appellant

submits, the jury did not give proper weight to the victim being less than truthful about

wetting herself after allegedly being choked, and this issue directly challenges her

truthfulness.

{¶ 34} Weight of the evidence concerns

the inclination of the greater amount of credible evidence, offered in

a trial, to support one side of the issue rather than the other. It indicates

clearly to the jury that the party having the burden of proof will be entitled

to their verdict, if, on weighing the evidence in their minds, they shall find

the greater amount of credible evidence sustains the issue which is to be

established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief. (Citation omitted.) Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541.

{¶ 35} When analyzing a manifest weight of the evidence claim,

[t]he court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

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. The discretionary power to grant a

12. new trial should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction. (Citation omitted.) Id.

Analysis

{¶ 36} A review of the record shows there was credible evidence to support

appellant’s conviction for felonious assault, and we cannot find the evidence weighed

heavily against the conviction, or that a manifest miscarriage of justice occurred. While

appellant challenges the victim’s credibility and the severity of her injuries, the resolution

of inconsistent or conflicting evidence was left to the jury; we cannot say the jury lost its

way. Accordingly, we find appellant’s second assignment of error is not well-taken.

{¶ 37} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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