State v. Lovano

2013 Ohio 1183

• Court: Ohio Court of Appeals
• Decided: March 28, 2013
• Docket: 98537
• Status: Published

Opinion

[Cite as State v. Lovano, 2013-Ohio-1183.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98537

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

SALVATORE LOVANO DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-551598

BEFORE: Boyle, J., Stewart, A.J., and McCormack, J.

RELEASED AND JOURNALIZED: March 28, 2013 ATTORNEYS FOR APPELLANT

Margaret W. Wong Scott E. Bratton Margaret Wong & Associates Co., L.P.A. 3150 Chester Avenue Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Mary Weston Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:

{¶1} Defendant-appellant, Salvatore Lovano, appeals his conviction for

aggravated assault. He raises two assignments of error for our review, i.e., that his

conviction was not supported by sufficient evidence and was against the manifest weight

of the evidence. Finding no merit to his appeal, we affirm.

Procedural History and Factual Background

{¶2} Lovano was indicted on three counts: two counts of kidnapping, in violation

of R.C. 2905.01(A)(1) and (A)(3), and one count of felonious assault, in violation of R.C.

2903.11(A)(1). The following evidence was presented at a bench trial.

{¶3} Lynn Sidoti testified that Lovano had been her boyfriend on and off since

she had met him three years previously. When the incident at issue occurred, June 19,

2011, they were dating. She said that earlier in the day on June 18, Lovano had been at

her house. Sidoti said that Lovano drank beer “all day” before they went out. Around

9:00 or 9:30 p.m., they went to the Boneyard to listen to Lovano’s friend’s band. Sidoti

said that she had five beers at the bar. Sidoti did not pay attention to how many beers

Lovano had, but she said that he probably had “more than 10.”

{¶4} When they left the bar around 1:30 or 2:00 a.m., Sidoti testified that as soon

as they got into the vehicle, Lovano “made a terrible comment about [her] son being

lazy,” and they got into an argument. Sidoti said they argued all the way home, which took about 20 minutes. While her testimony varied as to when it began, Sidoti explained

that the argument became physical at some point. She said that while Lovano was

driving, he started “beating” her “all the way down [her] left side.” Sidoti testified that

Lovano punched her on her arms, legs, back, head, and face.

{¶5} Sidoti testified that she hit Lovano on his right shoulder during the ride

home from the bar. Sidoti first said that she hit Lovano first. She then stated that she

did not remember when she hit him, but said that it was after Lovano hit her first.

{¶6} Sidoti testified that she attempted to get out of Lovano’s truck, but he

would not let her. She said that she kept asking him to stop the car, but he refused.

She said that he never stopped the whole way home, from North Royalton (where the bar

was located) to Parma. She also stated that she tried to get her cell phone out of her

purse, but he grabbed it and pretended to throw it out the window. She believed he

threw it out the window. She did not learn until later that he had not done so. On

cross-examination, she said that she later learned that police found her cell phone in her

purse.

{¶7} Sidoti testified that when they pulled into her driveway, Lovano “gave [her]

the last blow to [her] face,” and that is when he broke her nose. Sidoti said that Lovano

told her “not to come in * * * to let him go in and get his shit out of the house * * *” and

then he was going to “get out” of there. Sidoti was upset that Lovano did not “come

back to look to see if [she] was all right.” She explained that she was “spinning” in her

driveway because she did not know what to do. {¶8} About five or ten minutes later, she said she saw her neighbor’s boyfriend,

Justin Bly, leaving her neighbor’s house. Sidoti had never met Bly before that night and

did not know his name. She ran up to his car to ask him if he had a cell phone so that

she could call the police. She told Bly that Lovano had just broken her nose. Bly

asked her where Lovano was; she told him, “he’s in my house right now getting his things

out.”

{¶9} Sidoti heard Bly talking to Lovano in the backyard, so she went into her

house and locked the doors until the police came. She told the police what happened.

Emergency medical personnel took her to Parma Hospital. She explained that her nose

is permanently crooked because doctors said they could not fix it. She also explained

that she now has trouble breathing. Photos of her crooked nose were entered into

evidence. Her medical records from that night were also entered into evidence, stating

that she had a nasal bone fracture.

{¶10} Justin Bly testified that he is a police officer for the city of Lakewood, but

he was not on duty on the night of the incident. He said that as he was leaving his

girlfriend’s house, Sidoti came running up to his car “waving her arms hysterically.” He

said she seemed to be “in a panic,” and had “blood all over her face.” Bly further stated

that it appeared as if Sidoti’s nose “may have been broken and she just kept screaming

and yelling; asked if [he] had a cell phone.” Bly called the Parma Police Department.

Bly then went to the back of Sidoti’s house to talk to Lovano to try to get him to stay

there until the Parma police came. On cross-examination, Bly agreed that Lovano complied and remained on the scene.

{¶11} The court asked Bly if he witnessed Sidoti and Lovano interact. Bly said

that he had. Bly testified that when he was talking to Lovano in Sidoti’s backyard,

Sidoti came back there and “the two began arguing.” Bly “intervened and separated

them,” and Sidoti went into her house. When the court asked who started it, Bly replied

that he believed it was “mutual.”

{¶12} The court also asked Bly if he had ever seen anyone intoxicated. Bly

replied that he had. The court then asked Bly if either Sidoti or Lovano were

intoxicated. Bly replied that they both were intoxicated.

{¶13} Upon further questioning by the state, Bly explained that Lovano “was very

belligerent,” and “very highly intoxicated; very unsteady on his feet, slurring words.”

Upon further cross-examination, Bly agreed that Sidoti was “pretty close” to being as

intoxicated as Lovano. He further agreed that when Sidoti came into the backyard when

he was talking to Lovano, she started the fight.

{¶14} Officer Todd Hanley of the Parma Police Department testified that when he

arrived on the scene, Lovano was sitting on Sidoti’s back porch. Other officers

remained with Lovano, while Officer Hanley went inside to talk to Sidoti. He said that

Sidoti was hysterical and had blood all over her face. At the time they took the photo of

her, she had wiped some of the blood off of her face.

{¶15} Officer Hanley identified photos of Lovano’s car that showed drops of

blood on the “armrest” of the inside passenger door, and several drops of blood on the “interior doorjamb” on the passenger side, and in the driveway just outside the passenger

door. Officer Hanley stated that they did not test the samples of blood to verify that they

were blood or to verify that they were Sidoti’s blood.

{¶16} Officer Hanley said that Lovano was calm when they walked up to him.

Officer Hanley stated that Lovano told them without being asked that Sidoti had fallen in

her driveway. Officer Hanley did not look at Lovano’s hands, but said that he did not

see any injuries on Lovano that night.

{¶17} Lovano moved for a Crim.R. 29 acquittal, which the trial court denied.

{¶18} At the conclusion of the bench trial, the trial court found Lovano not guilty

of the two kidnapping charges and not guilty of felonious assault, but guilty of “the

lesser-included offense of aggravated assault.”1 The trial court sentenced Lovano to

eleven months of community control sanctions and six months in the county jail.

Sufficiency and Weight of the Evidence

{¶19} In his first assignment of error, Lovano contends that his aggravated assault

conviction was against the manifest weight of the evidence. Lovano raises three issues to

support his arguments: (1) that the evidence does not show that he assaulted Sidoti or

caused her serious physical harm, (2) that the police never tested the blood that was found

at the scene to confirm that it was in fact blood and that it was Sidoti’s blood, and (3) that

The trial court was incorrect in its characterization of the offense because aggravated assault 1

is an inferior-degree offense of felonious assault, rather than a lesser-included offense. State v. Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, ¶ 25 (8th Dist.), citing State v. Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294 (1988). Sidoti’s testimony was inconsistent and unbelievable.

{¶20} In his second assignment of error, arguing that his conviction was not

supported by sufficient evidence, he does not raise new issues, i.e., he relies only on the

arguments he raised in his first assignment of error with respect to manifest weight of the

evidence. Thus, although the terms “sufficiency” and “weight” of the evidence are

“quantitatively and qualitatively different,” we will address these issues together, while

ensuring that we apply the distinct standards of review to Lovano’s arguments. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶21} In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,

the Ohio Supreme Court explained that in reviewing a claim challenging the manifest

weight of the evidence:

The question to be answered * * * is whether “there is substantial evidence upon which a [trier of fact] could reasonably conclude that all the elements have been proved beyond a reasonable doubt.” In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether 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.”

(Citations omitted.) Id. at ¶ 81.

{¶22} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting

testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). {¶23} When an appellate court reviews a record upon a sufficiency challenge,

“‘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.’” Leonard at ¶ 77, quoting State v. Jenks, 61

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

{¶24} Aggravated assault under R.C. 2903.12(A)(1) states that

[n]o person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly * * * [c]ause serious physical harm to another.

{¶25} Lovano argues that the state did not present sufficient evidence with respect

to two elements of aggravated assault, namely, assault (knowingly causing) and serious

physical harm. He maintains that the evidence does not show that he assaulted Sidoti or

that he caused her serious physical harm.

{¶26} “A person acts knowingly, regardless of purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances

probably exist.” R.C. 2901.22(B). It is well established that one may be presumed to

intend results that are the natural, reasonable, and probable consequences of his voluntary

acts. State v. Sellers, 5th Dist. No. 12CAA020012, 2012-Ohio-5546, ¶ 74, citing State v.

Farmer, 156 Ohio St. 214, 102 N.E.2d 11 (1951).

{¶27} R.C. 2901.01(A)(5) defines “serious physical harm” and provides that it

means any of the following: (a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

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

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

{¶28} Sidoti testified that Lovano hit her multiple times and broke her nose with

the last punch. She further testified that her nose was permanently misshapen (i.e.,

crooked) because the doctor said that it could not be fixed and that she has had trouble

breathing since the break. She also stated that her nose was not crooked before Lovano

punched her. Photos were admitted into evidence showing that Sidoti’s nose was

disfigured. Sidoti’s medical records were admitted as well, evidencing that she had a

nasal bone fracture on the night of the incident. We find that Sidoti’s testimony, if

believed, is sufficient to establish that Lovano knowingly caused Sidoti serious physical

harm under R.C. 2901.01(A)(5)(d) (any harm that involves some permanent

disfigurement or that involves some temporary, serious disfigurement).

{¶29} The only question that remains for purposes of addressing Lovano’s

weight-of-the-evidence issues is whether Sidoti broke her own nose by falling out of the

car, as Lovano contends, or whether Lovano caused Sidoti’s broken nose by punching

her. Lovano claims that the police failed to test “the alleged blood” found inside Lovano’s truck to determine if it was, in fact, blood, and more importantly, to determine

if it was Sidoti’s blood. He also argues that the police failed to take any pictures of

Lovano’s hands to determine if they showed evidence of “beating a woman for twenty

minutes.” Finally, Lovano points to Sidoti’s credibility, arguing that “the only evidence

of what occurred was offered by an extremely intoxicated woman whose story was

implausible, incredible, and riddled with blatant, material inconsistencies on the very

issues that go to the heart of the case.”

{¶30} Although police did not test the “alleged” blood samples that were

photographed inside and outside of the passenger side of Lovano’s truck, they did not

have to. Officer Hanley testified that the spots appeared to be blood. Further, Sidoti,

Officer Hanley, and Bly all testified that Sidoti had blood all over her face. The state

also introduced photos that police took showing the spots that Officer Hanley had

described. The trial court, as the trier of fact, could evaluate all of this evidence.

{¶31} Further, defense counsel made sure that the trial court was well aware of the

fact that police did not test the blood samples or take photos of Lovano’s hands.

Additionally, defense counsel thoroughly raised the issue of Sidoti’s credibility at trial,

pointing out her intoxication and the inconsistencies in her testimony. Defense counsel

further argued extensively that because Sidoti was intoxicated, she could have fallen out

of Lovano’s truck, breaking her own nose. Again, these issues were for the trier of fact

to determine after hearing all of the evidence.

{¶32} Regarding Sidoti’s credibility, we find that the trial court was in a much better place than we are to determine whether she was telling the truth. Although a

weight-of-the-evidence argument permits a reviewing court to consider the credibility of

witnesses as the thirteenth juror, that review must be tempered by the principle that

weight and credibility questions are primarily for the trier of fact. State v. Goldwire, 2d

Dist. No. 19659, 2003-Ohio-6066, ¶ 13, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. Because the factfinder has the

opportunity to see and hear the witnesses, appellate courts must exercise caution before

finding that a judgment is against the manifest weight of the evidence. Id. at ¶ 14.

Substantial deference must be extended to the factfinder’s determinations of credibility.

Id. Indeed, the factfinder is free to believe all, part, or none of the testimony of each

witness appearing before it. Hill v. Briggs, 111 Ohio App.3d 405, 412, 676 N.E.2d 547

(10th Dist.1996). Thus, we conclude that the trial court, as the trier of fact, acted well

within its discretion in believing Sidoti’s testimony and finding her allegations to be true.

{¶33} Accordingly, after examining the entire record, weighing the evidence and

all reasonable inferences, and considering the credibility of the witnesses, we conclude

that the trier of fact did not clearly lose its way and create such a manifest miscarriage of

justice such that Lovano’s conviction must be reversed and a new trial ordered.

{¶34} Accordingly, Lovano’s conviction is supported by sufficient evidence and is

not against the weight of the evidence. Lovano’s first and second assignments of error

are overruled. {¶35} Judgment affirmed.

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.

____________________________________ MARY J. BOYLE, JUDGE

MELODY J. STEWART, A.J., and TIM McCORMACK, J., CONCUR