[Cite as State v. Lynch, 2011-Ohio-3062.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95770
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANGELA M. LYNCH
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Heights Municipal Court Case No. CRB 0901993
BEFORE: E. Gallagher, J., Sweeney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 23, 2011 ATTORNEY FOR APPELLANT 2
Edward S. Wade, Jr. 75 Public Square Suite 1111 Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Kim T. Segebarth City Prosecutor City of Cleveland Heights 40 Severance Circle Cleveland Hts., Ohio 44118
EILEEN A. GALLAGHER, J.:
{¶ 1} Angela M. Lynch appeals her conviction entered in the Cleveland
Heights Municipal Court. Lynch argues the trial court erred when it
provided a lesser included offense instruction to the jury, and when it failed
to charge the jury on self-defense and mutual combat. For the following
reasons, we affirm the judgment of the trial court.
{¶ 2} On September 15, 2009, Lynch attended an emergency sports
meeting at Lutheran East High School for her son, J.L. At that time, J.L.
lived with his father, James Hudson-Bey and his live-in girlfriend, Rosalyn
Stewart. J.L. attended Lutheran East High School and was a member of 3
the football team. On September 15, 2009, the football team held a meeting
to discuss an out-of-town trip, which required parental permission. J.L.
attempted to contact his mother and father to attend the meeting but both
stated that they had prior commitments. As a last resort, J.L. contacted
Stewart, who agreed to attend the meeting on behalf of James Hudson-Bey.
{¶ 3} Unbeknownst to J.L., Lynch arrived at the high school to attend
the meeting. She sat near Stewart and the two women immediately
engaged in a verbal confrontation. Lynch and Stewart sat through the
remainder of the meeting without further incident, but then continued their
confrontation as they, along with J.L., left the school. Stewart was walking
ahead of Lynch and J.L. when Lynch began yelling at her. Stewart
responded and as the women exited the double set of doors that led to a
parking area, Lynch grabbed Stewart by the hair and struck her. Stewart
fought back and during the fight, Lynch bit Stewart’s left hand. The fight
was broken up by Andrew Pearson, a concessioner, who was in the area.
{¶ 4} Stewart walked to the Cleveland Heights Police Department and
filed a complaint for assault against Lynch. The officers photographed
Stewart’s hand and then Stewart sought medical attention for her injury.
{¶ 5} On September 15, 2009, the Cleveland Heights Police
Department issued a warrant charging Lynch with one count of assault, a 4
first-degree misdemeanor in violation of R.C. 2903.13(A). Lynch pleaded not
guilty. The case proceeded to a jury trial on February 5, 2010, which
resulted in a hung jury. A second trial commenced on September 17, 2010.
At the latter trial, the City presented the testimony of Stewart, J.L., and
Officer Thomas Decaro. In response, the defense presented the testimony of
Andrew Pearson and Lynch.
{¶ 6} At the close of the evidence, the defense requested three jury
instructions. First, defense counsel requested a jury instruction on the
lesser included offense of disorderly conduct, a request with which the city
prosecutor agreed. Defense counsel then requested jury instructions on
self-defense and mutual combat. The trial court granted defense counsel’s
request as to the lesser included offense charge and to the self-defense
charge but denied counsel’s request for a charge on mutual combat. Defense
counsel objected.
{¶ 7} The jury returned a verdict of guilty on the charge of disorderly
conduct, in violation of Cleveland Heights City Ordinances 509.03(A)(1).
The trial court sentenced Lynch to a suspended jail term of sixty days, active
probation for two months, inactive probation for four months, and imposed a
fine of five-hundred dollars, of which all but one hundred and twenty-five
dollars was suspended. On September 22, 2010, Lynch appealed, raising 5
the two assignments of error contained in the appendix to this opinion.
{¶ 8} In her first assignment of error, Lynch argues the trial court
erred when it charged the jury on the lesser included offense of disorderly
conduct, as disorderly conduct is not a lesser included offense of assault.
This assignment of error lacks merit.
{¶ 9} Initially, we note that Lynch’s trial counsel requested the charge
of disorderly conduct. Prior to the commencement of trial, Lynch’s trial
counsel provided the City Prosecutor with his proposed jury instructions, and
the court had an opportunity to review those proposed instructions, which
included the lesser included offense of disorderly conduct. (Tr. 3.) At the
conclusion of the evidence, Lynch’s counsel again requested of the court that
instruction on the lesser included offense of disorderly conduct be provided to
the jury. Tr. 124-125.
{¶ 10} Accordingly, the record reflects that not only did Lynch’s trial
counsel fail to object to the lesser included offense instruction, but that he, in
fact, requested it in writing and in open court. We, therefore, review the
given instructions for plain error. State v. Darkenwald, Cuyahoga App. No.
83440, 2004-Ohio-2693. The standard for plain error is “but for the error,
the outcome of the trial clearly would have been otherwise.” State v. McKee
(2001), 91 Ohio St.3d 292, 294, 744 N.E.2d 737, citing Crim.R. 52(B); State v. 6
Johnson (2000), 88 Ohio St.3d 95, 723 N.E.2d 1054. “Notice of plain error
under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804.
{¶ 11} We decline to find plain error in this case. In State v. Young,
Cuyahoga App. No. 79779, 2002-Ohio-1274, this court held that disorderly
conduct, as defined in R.C. 2917.11 is a lesser included offense of assault, as
provided in R.C. 2903.13. See, also, State v. Koreny (Apr. 12, 2001),
Cuyahoga App. No. 78074; State v. Reider (Aug. 3, 2000), Cuyahoga App. No.
76649, State v. Sanchez (June 3, 1999), Cuyahoga App. No. 73926. Although
the jury found Lynch guilty of disorderly conduct as defined in Cleveland
Heights Ordinances 509.03(a)(1), the language in 509.03(a)(1) is identical to
that of R.C. 2917.11. Specifically, 509.03(a)(1) provides as follows:
“(a) No person shall recklessly cause inconvenience, annoyance or alarm to another, by doing any of the following:
“(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”
{¶ 12} R.C. 2917.11 provides as follows:
“(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
“(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.” 7
{¶ 13} Accordingly, consistent with this Court’s prior holdings, we find
that disorderly conduct, as defined in Cleveland Heights Ordinances 509.03
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[Cite as State v. Lynch, 2011-Ohio-3062.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95770
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANGELA M. LYNCH
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Heights Municipal Court Case No. CRB 0901993
BEFORE: E. Gallagher, J., Sweeney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 23, 2011 ATTORNEY FOR APPELLANT 2
Edward S. Wade, Jr. 75 Public Square Suite 1111 Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Kim T. Segebarth City Prosecutor City of Cleveland Heights 40 Severance Circle Cleveland Hts., Ohio 44118
EILEEN A. GALLAGHER, J.:
{¶ 1} Angela M. Lynch appeals her conviction entered in the Cleveland
Heights Municipal Court. Lynch argues the trial court erred when it
provided a lesser included offense instruction to the jury, and when it failed
to charge the jury on self-defense and mutual combat. For the following
reasons, we affirm the judgment of the trial court.
{¶ 2} On September 15, 2009, Lynch attended an emergency sports
meeting at Lutheran East High School for her son, J.L. At that time, J.L.
lived with his father, James Hudson-Bey and his live-in girlfriend, Rosalyn
Stewart. J.L. attended Lutheran East High School and was a member of 3
the football team. On September 15, 2009, the football team held a meeting
to discuss an out-of-town trip, which required parental permission. J.L.
attempted to contact his mother and father to attend the meeting but both
stated that they had prior commitments. As a last resort, J.L. contacted
Stewart, who agreed to attend the meeting on behalf of James Hudson-Bey.
{¶ 3} Unbeknownst to J.L., Lynch arrived at the high school to attend
the meeting. She sat near Stewart and the two women immediately
engaged in a verbal confrontation. Lynch and Stewart sat through the
remainder of the meeting without further incident, but then continued their
confrontation as they, along with J.L., left the school. Stewart was walking
ahead of Lynch and J.L. when Lynch began yelling at her. Stewart
responded and as the women exited the double set of doors that led to a
parking area, Lynch grabbed Stewart by the hair and struck her. Stewart
fought back and during the fight, Lynch bit Stewart’s left hand. The fight
was broken up by Andrew Pearson, a concessioner, who was in the area.
{¶ 4} Stewart walked to the Cleveland Heights Police Department and
filed a complaint for assault against Lynch. The officers photographed
Stewart’s hand and then Stewart sought medical attention for her injury.
{¶ 5} On September 15, 2009, the Cleveland Heights Police
Department issued a warrant charging Lynch with one count of assault, a 4
first-degree misdemeanor in violation of R.C. 2903.13(A). Lynch pleaded not
guilty. The case proceeded to a jury trial on February 5, 2010, which
resulted in a hung jury. A second trial commenced on September 17, 2010.
At the latter trial, the City presented the testimony of Stewart, J.L., and
Officer Thomas Decaro. In response, the defense presented the testimony of
Andrew Pearson and Lynch.
{¶ 6} At the close of the evidence, the defense requested three jury
instructions. First, defense counsel requested a jury instruction on the
lesser included offense of disorderly conduct, a request with which the city
prosecutor agreed. Defense counsel then requested jury instructions on
self-defense and mutual combat. The trial court granted defense counsel’s
request as to the lesser included offense charge and to the self-defense
charge but denied counsel’s request for a charge on mutual combat. Defense
counsel objected.
{¶ 7} The jury returned a verdict of guilty on the charge of disorderly
conduct, in violation of Cleveland Heights City Ordinances 509.03(A)(1).
The trial court sentenced Lynch to a suspended jail term of sixty days, active
probation for two months, inactive probation for four months, and imposed a
fine of five-hundred dollars, of which all but one hundred and twenty-five
dollars was suspended. On September 22, 2010, Lynch appealed, raising 5
the two assignments of error contained in the appendix to this opinion.
{¶ 8} In her first assignment of error, Lynch argues the trial court
erred when it charged the jury on the lesser included offense of disorderly
conduct, as disorderly conduct is not a lesser included offense of assault.
This assignment of error lacks merit.
{¶ 9} Initially, we note that Lynch’s trial counsel requested the charge
of disorderly conduct. Prior to the commencement of trial, Lynch’s trial
counsel provided the City Prosecutor with his proposed jury instructions, and
the court had an opportunity to review those proposed instructions, which
included the lesser included offense of disorderly conduct. (Tr. 3.) At the
conclusion of the evidence, Lynch’s counsel again requested of the court that
instruction on the lesser included offense of disorderly conduct be provided to
the jury. Tr. 124-125.
{¶ 10} Accordingly, the record reflects that not only did Lynch’s trial
counsel fail to object to the lesser included offense instruction, but that he, in
fact, requested it in writing and in open court. We, therefore, review the
given instructions for plain error. State v. Darkenwald, Cuyahoga App. No.
83440, 2004-Ohio-2693. The standard for plain error is “but for the error,
the outcome of the trial clearly would have been otherwise.” State v. McKee
(2001), 91 Ohio St.3d 292, 294, 744 N.E.2d 737, citing Crim.R. 52(B); State v. 6
Johnson (2000), 88 Ohio St.3d 95, 723 N.E.2d 1054. “Notice of plain error
under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804.
{¶ 11} We decline to find plain error in this case. In State v. Young,
Cuyahoga App. No. 79779, 2002-Ohio-1274, this court held that disorderly
conduct, as defined in R.C. 2917.11 is a lesser included offense of assault, as
provided in R.C. 2903.13. See, also, State v. Koreny (Apr. 12, 2001),
Cuyahoga App. No. 78074; State v. Reider (Aug. 3, 2000), Cuyahoga App. No.
76649, State v. Sanchez (June 3, 1999), Cuyahoga App. No. 73926. Although
the jury found Lynch guilty of disorderly conduct as defined in Cleveland
Heights Ordinances 509.03(a)(1), the language in 509.03(a)(1) is identical to
that of R.C. 2917.11. Specifically, 509.03(a)(1) provides as follows:
“(a) No person shall recklessly cause inconvenience, annoyance or alarm to another, by doing any of the following:
“(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”
{¶ 12} R.C. 2917.11 provides as follows:
“(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
“(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.” 7
{¶ 13} Accordingly, consistent with this Court’s prior holdings, we find
that disorderly conduct, as defined in Cleveland Heights Ordinances 509.03
is a lesser included offense of assault, as defined by R.C. 2903.13. Young,
Koreny, Reider, Sanchez. We therefore overrule Lynch’s first assignment of
error.
{¶ 14} In her second assignment of error, Lynch argues the trial court
erred in failing to instruct the jury on self-defense and mutual combat. We
disagree with Lynch’s argument.
{¶ 15} The trial court did instruct the jury on self-defense. (Tr. 169.)
Accordingly, we will limit our discussion in this assigned error to Lynch’s
argument that the court failed to give an instruction on mutual combat.
{¶ 16} In putting forth this argument, Lynch fails to cite to any legal
authority in support of her claim that the jury should have been instructed
on mutual combat. Moreover, this court is unable to locate any evidence
that the defense of mutual combat exists. In State v. Milling, Summit App.
No. 24402, 2009-Ohio-3002, the ninth appellate district noted that the
situations of assault and battery, mutual combat, illegal arrest, and
discovering a spouse in the act of adultery are cases in which the jury
instruction of voluntary manslaughter is appropriate. The court then cited 8
Black’s Law Dictionary for the definition of mutual combat: “[a] consensual
fight on equal terms — arising from a moment of passion but not in
self-defense — between two persons armed with deadly weapons.” Black’s
Law Dictionary 1045 (8th Ed.2004).
{¶ 17} This line of case law is the only place we find mention of the
term mutual combat. Clearly, the facts as outlined above do not apply to
the instant case. We find no other authority in support of Lynch’s claim.
{¶ 18} An appellate court may disregard an assignment of error
pursuant to App.R. 12(A)(2) if an appellant fails to cite to any legal authority
in support of an argument as required by App.R. 16(A)(7). State v. Martin
(July 12, 1999), Warren App. No. CA99-01-003, citing Meerhoff v. Huntington
Mtge. Co. (1995), 103 Ohio App.3d 164, 658 N.E.2d 1109; Siemientkowshi v.
State Farm Ins., (Aug. 18) Cuyahoga App. No. 85323, 2005-Ohio-4295. “If
an argument exists that can support this assigned error, it is not this court’s
duty to root it out.” Cardone v. Cardone (May 6, 1998), Summit App. Nos.
18349 and 18673.
{¶ 19} Based on the foregoing, we overrule Lynch’s second assignment
of error.
Judgment affirmed. 9
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 lower 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.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and KENNETH A. ROCCO, J., CONCUR
Appendix
Assignments of Error:
“I. The trial court erred and abused its discretion in its charge to the jury resulting in the jury finding appellant guilty of disorderly conduct, a third degree misdemeanor, as a lesser included offense of assault under R.C. 2903.13(A).”
“II. The trial court erred and abused its discretion by not granting defendant’s requested charge on self-defense and mutual combat.” 10