[Cite as State v. Miller, 2019-Ohio-92.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, : : Case No. 18CA3 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY LALONI J. MILLER, : : Defendant-Appellant. : Released: 01/08/19 _____________________________________________________________ APPEARANCES:
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
Benjamin E. Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} Appellant, Laloni Miller, appeals her convictions for felonious
assault and assault, which were entered by the Hocking County Court of
Common Pleas after a jury of her peers found her guilty of those offenses.
On appeal, Appellant contends that 1) the jury's finding that she assaulted
Kenneth Wells in any manner is against the manifest weight of the evidence;
2) the State presented insufficient evidence that Kenneth Wells suffered
"serious physical harm," and that Appellant caused that serious physical
harm; and 3) the trial court erred by overruling her Crim.R. 29 motion for
judgment of acquittal. Hocking App. No. 18CA3 2
{¶2} Because we conclude Appellant's convictions are supported by
sufficient evidence and were not against the manifest weight of the evidence,
we find no merit to her first and second assignments of error and they are
both overruled. Further, because we find the State was not barred from
prosecuting Appellant based upon a theory of non-mutual defensive
collateral estoppel, her third assignment of error is also overruled.
Accordingly, having found no merit in any of the assignments of error raised
by Appellant, the judgment of the trial court is affirmed.
FACTS
{¶3} Appellant was indicted on April 18, 2017 for two counts of
felonious assault, both second degree felony violations of R.C. 2903.11.
The first count alleged Appellant caused serious physical harm to the victim,
Kenneth Wells. The second count alleged Appellant caused or attempted to
cause physical harm to the same victim, by means of a deadly weapon, in
particular, a rock. Appellant was ultimately convicted on count one and
acquitted on count two. However, as to count two, the jury found Appellant
guilty of a lesser-included offense of first-degree misdemeanor assault.
{¶4} The case brought against Appellant stemmed from an altercation
that occurred between Appellant, her boyfriend and co-defendant, Raymond
Reynolds, and the victim, Kenneth Wells, the couple's sixty-nine-year-old Hocking App. No. 18CA3 3
neighbor.1 According to the testimony introduced at trial, Mr. Wells owned
several dogs and had a habit of letting them go outside from time to time,
without watching them and without ensuring they remained in his yard. The
testimony introduced at trial further reveals that Appellant and Reynolds had
a history of disagreements regarding the dogs frequently being out in the
road and interfering with traffic.
{¶5} The parties agree that on the night in question, the victim's dogs
were out in the road unattended, and Appellant and Reynolds had to stop
their car on the road in front of the victim's house as a result. The evidence
indicates Reynolds began yelling for the victim to get his dogs out of the
road, which prompted the victim to exit his house and go get the one dog
that remained in the road at that time. The testimony at trial differed as to
what occurred next. Both the victim and his wife, Lorrene Wells, testified
that Reynolds sucker punched the victim in the left eye and on the right
cheek, and that thereafter Appellant struck the victim on the right side of his
forehead with a sixteen-pound rock from the Wells' flower garden.
Reynolds testified on behalf of Appellant at trial and denied that Appellant
1 The record indicates that Appellant's boyfriend, Raymond Reynolds, was also prosecuted for felonious assault stemming from this incident. The parties both represent that he was acquitted of felonious assault and was instead only found guilty of assault. However, no evidence in the form of case documents or certified copies of Reynolds' conviction were entered into evidence. Hocking App. No. 18CA3 4
was involved in the altercation at all. Instead, Reynolds testified that Mr.
Wells started the fight by hitting him with his walking stick.
{¶6} The victim testified that he was in tremendous pain as a result of
being punched by Reynolds and feared that his eyeball was out of the socket.
He further testified that the blow from the rock rendered him nearly
incoherent and that everything after that time was hazy. He testified that
although life flight was called to the scene, bad weather prevented a
helicopter from being able to be used and, as a result, he was instead
transported to the hospital by ambulance.
{¶7} The victim and his wife both testified as to his injuries,
explaining that he received stitches for lacerations to his eye and forehead,
and that he also sustained a fractured thumb, which occurred when the rock
hit his thumb after it hit his head. The victim's CT scan was negative and it
was determined he did not have a concussion. The victim testified that
while his vision was 20/30 prior to the accident, as well as immediately after
the accident, his vision deteriorated to 20/200 within a few months after the
accident. The defense, however, introduced evidence that the victim had a
pre-existing eye condition that also could have contributed to the
deterioration in his vision. Hocking App. No. 18CA3 5
{¶8} The jury ultimately convicted Appellant of the felonious assault
charge contained in count one, but acquitted her of the felonious assault
charge contained in count two. Instead, the jury convicted her of the lesser-
included offense of assault as to count two. Fourteen days later, Appellant
filed a post-verdict Crim.R. 29 motion for judgment of acquittal, which was
denied by the trial court. Appellant now brings her timely appeal, assigning
three errors for this Court's review.
ASSIGNMENT OF ERROR
“I. THE JURY’S FINDING THAT LALONI MILLER ASSAULTED KENNETH WELLS IN ANY MANNER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE STATE PRESENTED INSUFFICIENT EVIDENCE THAT KENNETH WELLS SUFFERED ‘SERIOUS PHYSICAL HARM’ AND THAT LALONI MILLER CAUSED THAT SERIOUS PHYSICAL HARM.
III. THE TRIAL COURT ERRED BY OVERRULING MS. MILLER’S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL.”
ASSIGNMENT OF ERROR III
{¶9} For ease of analysis, we initially address Appellant's third
assignment of error, out of order. In her third assignment of error, Appellant
contends the trial court erred in overruling her Crim.R. 29 motion for
judgment of acquittal. Appellant's argument on appeal, under this
assignment of error, is that because her co-defendant, Raymond Reynolds, Hocking App. No. 18CA3 6
was tried and found not guilty of felonious assault as to same victim, herein
Kenneth Wells, that she should have been found not guilty as well. Stated
another way, Appellant argues that the injuries suffered by Kenneth Wells in
both cases were the same, and that if the trial court determined Mr. Wells
did not suffer serious physical harm in the case against Reynolds, which was
tried to the court, that he could not have suffered serious physical harm
arising from Appellant's actions either. Appellant argues that "[t]his
concept, that a factual finding made in one case against one defendant can be
used defensively in another case against another defendant, is known as non-
mutual defensive collateral estoppel (or non-mutual defensive issue
preclusion)."
{¶10} As set forth above, Appellant filed a post-judgment Crim.R. 29
motion for acquittal fourteen days after the jury found her guilty of felonious
assault and assault. The First District Court of Appeals recently explained
the standard of review when considering a post-judgment motion for
judgment of acquittal in State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶
16, as follows:
"The standard for reviewing a post-verdict motion for judgment of acquittal made pursuant to Crim.R. 29(C) is identical to the standard for reviewing a motion for an acquittal made during a trial pursuant to Crim.R. 29(A). See State v. Metcalf, 1st Dist. Hamilton No. C–950190, 1996 WL 411620, *1 (July 24, 1996); see also State v. Misch, 101 Ohio App.3d 640, 650, 656 N.E.2d Hocking App. No. 18CA3 7
381 (6th Dist. 1995). On review of a Crim.R. 29(C) post-verdict motion for judgment of acquittal, a court must view the evidence in a light most favorable to the state to determine if reasonable minds could differ as to whether each material element of the crime has been proven beyond a reasonable doubt. See State v. Callins, 1st Dist. Hamilton No. C–930428, 1994 WL 376752, *1 (July 20, 1994), citing State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus; but see State v. Wright, 1st Dist. Hamilton. No. C- 080437, 2009-Ohio-5474, 2009 WL 3323337, ¶ 26 (applying the standard used to review a sufficiency-of-the-evidence claim)."
{¶11} The Harris court further explained that "a Crim.R. 29(C)
motion is not merely a delayed motion for judgment of acquittal. It can be
used [] to challenge defects in the sufficiency of the evidence that only
become apparent after the jury returns its verdicts." Harris at ¶ 14; citing
State v. Glenn, 1st Dist. Hamilton No. C-090205, 2011-Ohio-829, 2011 WL
686202, ¶ 68. Additionally, as explained in Harris, "[a] defendant does
not forfeit issues that he has raised with specificity in a timely Crim.R. 29(C)
motion." Harris at ¶ 15. In Harris, it was determined that the defendant
preserved an inconsistent verdicts issue for appellate review where he raised
the issue in both his oral and written post-verdict motions. Id.
{¶12} Here, although Appellant timely filed her post-verdict Crim.R.
29 motion for judgment of acquittal, the grounds now asserted on appeal,
non-mutual defensive collateral estoppel, or issue preclusion, was not clearly
asserted in the post-verdict motion. In fact, as in Harris, supra, the only Hocking App. No. 18CA3 8
arguments asserted in his Crim.R. 29 motion for judgment of acquittal were
that the jury verdicts were internally inconsistent, and inconsistent with the
prior bench trial decision of her co-defendant. Appellant did not argue that
the State should have been estopped, based upon a theory of defensive non-
mutual collateral estoppel, from prosecuting her for felonious assault to
begin with. Appellant did not mention the phrase "collateral estoppel" until
the filing of her reply brief, which was filed after the State's brief in
opposition, and even then the theory of "defensive non-mutual collateral
estoppel" was not asserted or argued with specificity.
{¶13} In McFadden v. Butler, 166 Ohio Misc.2d 16, 2011-Ohio-
6971, 961 N.E.2d 746, ¶ 1, an "apparently novel issue" was presented
regarding whether a defendant may "use collateral estoppel to defeat a
plaintiff's claim when the defendant has asserted a counter claim arising out
of the same facts." Specifically at issue in McFadden, which was an
automobile negligence case, was "the preclusive effect, if any, of plaintiff
Guy McFadden's prior conviction for running a red light." Id. In that case,
McFadden filed a complaint alleging automobile negligence against Butler
claiming Butler ran a red light, despite the fact that McFadden had been
previously convicted for running the red light and received a citation in the
auto accident at issue. Id. at ¶ 2-3. Hocking App. No. 18CA3 9
{¶14} The McFadden court discussed the doctrine of collateral
estoppel generally, explaining the doctrine as follows:
"The doctrine of collateral estoppel has been explained to be a 'preclusion of the relitigation in a second action of an issue or issues that have been actually and necessarily litigated and determined in a prior action.' Goodson v. McDonough Power Equip. (1983), 2 Ohio St.3d 193, 195, 443 N.E.2d 978. There are two types of collateral estoppel or 'issue preclusion.' Offensive use of collateral estoppel 'occurs when the plaintiff seeks to foreclose the defendant from litigating an issue [that] the defendant has previously litigated unsuccessfully in an action with another party.' Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552. Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff has previously litigated unsuccessfully in another action. Id." McFadden at ¶ 4.
Here, much like Butler, Appellant seeks to use the doctrine defensively.
{¶15} McFadden further noted as follows regarding the use of both
offensive and defensive collateral estoppel:
"While federal courts have allowed the use of both
defensive and offensive collateral estoppel in appropriate
circumstances, see Parklane, 439 U.S. at 323–325, 99 S.Ct.
645, 58 L.Ed.2d 552, Ohio courts have been more cautious.
Ohio traditionally has required a strict mutuality of parties for
the application of the doctrine. Goodson, 2 Ohio St.3d 193, 443
N.E.2d 978, at paragraph one of the syllabus. In reaching its Hocking App. No. 18CA3 10
decision in Goodson requiring mutuality of parties, the Ohio
Supreme Court acknowledged that in an earlier case, Hicks v.
De La Cruz (1977), 52 Ohio St.2d 71, 369 N.E.2d 776, it had
allowed the use of offensive collateral estoppel under the facts
of that case. Goodson at 199, 443 N.E.2d 978. The court
explained in Goodson, however, that Hicks was not an
abandonment of the mutuality rule but simply a demonstration
that the court '[was] willing to relax the [mutuality] rule where
justice would reasonably require it.' Id.
The trend in lower courts in Ohio since Goodson has
been in the direction of relaxing the mutuality requirement to
allow for at least the defensive use of collateral estoppel. See,
e.g., Frank v. Simon, Lucas App. No. L–06–1185, 2007-Ohio-
1324, 2007 WL 866998, at ¶ 12 ('[t]he defensive use of
collateral estoppel has been upheld in the majority of Ohio
appellate courts'). The First District Court of Appeals explicitly
has recognized nonmutual defensive collateral estoppel.
Mitchell v. Internatl. Flavors, Inc., 179 Ohio App.3d 365,
2008-Ohio-3697, 902 N.E.2d 37. Hocking App. No. 18CA3 11
In Mitchell, the court held that 'collateral estoppel applies when
(1) the party against whom estoppel is sought was a party or in
privity with a party to the prior action; (2) there was a final
judgment on the merits in the previous action after a full and
fair opportunity to litigate the issue; (3) the issue was admitted
or actually tried and decided and was necessary to the final
judgment; and (4) the issue was identical to the issue involved
in the new action.' Id. at ¶ 14." McFadden at ¶ 5-7.
The McFadden court ultimately determined that all of the elements of
collateral estoppel were met, and specifically found that the factual issue in
the prior criminal bench trial, (i.e. whether McFadden ran the red light
causing the accident), was identical to the issue in the pending civil action.
Id. at ¶ 8.
{¶16} The McFadden case obviously involved an attempt by a
private litigant to apply the doctrine of non-mutual defensive collateral
estoppel as against another private litigant in civil litigation occurring
subsequent to criminal litigation involving the State. Here, Appellant
appears to attempt to collaterally estop the State, despite the fact that she
failed to raise this issue until after the State successfully prosecuted her,
from convicting her of committing felonious assault with respect to the Hocking App. No. 18CA3 12
victim, Kenneth Wells, based upon the fact that her co-defendant was
acquitted of felonious assault stemming from the same incident with the
same victim. Appellant argues that her co-defendant was acquitted because
the trial court, after a bench trial, determined that the victim did not sustain
serious physical injury. As such, she argues the State should not be able to
assert in the prosecution against her that the victim sustained serious
physical injury, when it was already determined in prior litigation against
her co-defendant that the victim did not sustain serious physical injury.
{¶17} The United States Supreme Court discussed the doctrine of
"nonmutual collateral estoppel" in Standefer v. U.S., 447 U.S. 10, 100 S.Ct.
1999 (1980), in the context of a request by a criminal defendant to apply the
doctrine of non-mutual collateral estoppel against the government in a
criminal case. Standefer was convicted for aiding and abetting an IRS agent
in accepting unlawful compensation, even though the IRS agent had been
acquitted on charges arising from the same incident. Id. The Standefer
Court acknowledged its first application of the doctrine was in the case of
Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402
U.S. 313, 91 S.Ct. 1434 (1971), which held "that a determination of patent
invalidity in a prior patent infringement action was entitled to preclusive
effect against a patentee in subsequent litigation against a different Hocking App. No. 18CA3 13
defendant." Id. at 21. The Court further acknowledged its later application
of the doctrine, offensively, in Parklane Hosiery Co. v. Shore, supra, which
held "that a defendant who had had a 'full and fair' opportunity to litigate
issues of fact in a civil proceeding initiated by the Securities and Exchange
Commission could be estopped from relitigating those issues in a subsequent
action brought by a private plaintiff." Id. The Standefer Court noted that in
both of those situations, "application of nonmutual estoppel promoted
judicial economy and conserved private resources." Id. The Court then went
on to note a distinction in those cases compared to the facts presently before
it, which urged application of the doctrine against the government, in a
criminal case. Id. at 21-22.
{¶18} The Standefer Court went on to discuss the considerations and
complicated application of the doctrine to the government in criminal cases,
including the fact that the government cannot secure appellate review where
a defendant has been acquitted, that criminal cases permit juries to acquit out
of compassion or compromise, or through the exercise of lenity, and that
under "contemporary principles of collateral estoppel[,]" such factors
strongly "militate[] against giving an acquittal preclusive effect." Id. at 22-
23; citing United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192 (1896);
and quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189 (1932); Hocking App. No. 18CA3 14
in turn quoting Steckler v. United States, 7 F.2d 59, 60 (CA2 1925)
(additional internal citations omitted). The Court further reasoned that
"application of nonmutual estoppel in criminal cases is also complicated by
the existence of rules of evidence and exclusion unique to our criminal
law[,]" noting that "[i]t is frequently true in criminal cases that evidence
inadmissible against one defendant is admissible against another." Id. at 23.
{¶19} Finally, the Standefer Court stated that the case presently
before it involved an "ingredient" not present in either Blonder-Tongue or
Parklane Hosiery, which was "the important federal interest in the
enforcement of the criminal law." Id. at 24. That same concern exists in the
case presently before us, albeit the enforcement of state, rather than federal
law. Ultimately, the Court denied the preclusive effect of Standefer's
codefendant's acquittal. Id. at 25. In reaching its decision, the Standefer
Court stated as follows:
"This case does no more than manifest the simple, if discomforting, reality that 'different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.' Roth v. United States, 354 U.S. 476, 492, n. 30, 77 S.Ct. 1304, 1313, n. 30, 1 L.Ed.2d 1498 (1957). While symmetry of results may be intellectually satisfying, it is not required. See Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974)." Standefer at 25. Hocking App. No. 18CA3 15
{¶20} Four years later in United States v. Mendoza, 464 U.S. 154,
104 S.Ct. 568, syllabus (1984), Justice Rehnquist authored a unanimous
opinion holding that the United States could not be collaterally estopped
from seeking adjudication on an issue that had been adjudicated against in
an earlier lawsuit brought by a different party, which involved the
naturalization of Filipino nationals. In reaching its decision, the Mendoza
Court reasoned as follows:
“[a] rule allowing nonmutual collateral estoppel against the
Government would substantially thwart the development of
important questions of law by freezing the first final decision
rendered on a particular legal issue, and would require
substantial revision of the Solicitor General's policy for
determining when to appeal an adverse decision.” Id. at section
(B) of the syllabus.
The Court further reasoned as follows:
“The conduct of Government litigation in the federal courts is
sufficiently different from the conduct of private civil litigation
in those courts so that what might otherwise be economy
interests underlying a broad application of nonmutual collateral Hocking App. No. 18CA3 16
estoppel are outweighed by the constraints which peculiarly
affect the Government.” Id. at section (c) of the syllabus.
Thus, the Mendoza decision “was most significant because of the Court’s
decision to bar the general use of nonmutual collateral estopped against the
government.” Supreme Court Doctrine in the Trenches: The Case of
Collateral Estoppel, William and Mary Law Review Vol. 27, Issue 1 (1985).
{¶21} Here, even if the mere mention of "collateral estoppel" in
Appellant's reply memorandum, filed after her initial Crim.R. 29 motion for
judgment of acquittal, served to preserve this argument on appeal, we agree
with the State's contention that Appellant has not demonstrated that the issue
currently on appeal is identical to the issue which led to an acquittal in her
co-defendant's case. Appellant's co-defendant's acquittal may have been
based upon a determination that the co-defendant did not cause serious
physical injury to the victim, not that the victim did not sustain serious
physical injury at all, as argued by Appellant. Further, and importantly, we
are limited in our review of this issue because Appellant has failed to
provide this Court with the pertinent and necessary portions of the record
from her co-defendant's case required to properly review her assigned error.
In fact, other than references to fact patterns and outcomes in her co- Hocking App. No. 18CA3 17
defendant's case, Appellant has not provided any documentation at all from
that case.
{¶22} Although this Court may take judicial notice of information
contained in the online docket detailing the court filings and judgment issued
in her co-defendant's case, the information contained in the online docket
does not provide the detail required to discern whether the specific issue
raised by Appellant herein was at issue in the prior co-defendant case. For
instance, Appellant urges this Court to accept that the trial court determined,
in her co-defendant's bench trial, that the victim did not sustain serious
physical injury to satisfy the requirement for proving felonious assault.
However, there is no way to confirm that was the finding in the prior bench
trial. The trial court may have found that while the victim sustained serious
physical injury, Appellant's co-defendant did not cause it. Any conclusions
made by this Court as to the exact issue or reason that led to an acquittal of
Appellant's co-defendant on the felonious assault charge with respect to the
victim herein would be the result of improper speculation, the exercise of
which we will not engage.
{¶23} Additionally, because Appellant urges this Court to apply the
doctrine of non-mutual defensive collateral estoppel in a criminal context,
which poses all the same concerns and considerations as discussed in Hocking App. No. 18CA3 18
Standefer, and without citing this Court to any Ohio authority supporting the
application as between two criminal cases involving different parties, we
reject Appellant's urging to do so. This is true, especially considering the
fact that Appellant has failed to properly place in evidence or include in the
record any official court filings, judgment entries or transcripts from her co-
defendant's criminal trial. Without this information, we are unable to
determine if all of the elements of collateral estoppel have been met,
particularly the element which requires the specific issue to be identical in
each case. Accordingly, we find no merit to Appellant's third assignment of
error and it is therefore overruled.
ASSIGNMENT OF ERROR II
{¶24} We next address Appellant’s first and second assignments of
error, in conjunction with one another, for ease of analysis. In her first
assignment of error, Appellant contends that the jury’s finding that she
assaulted Kenneth Wells, the victim herein, in any manner is against the
manifest weight of the evidence. In her second assignment of error,
Appellant contends that the State presented insufficient evidence that 1)
Kenneth Wells suffered “serious physical harm;” and 2) Appellant caused
that serious physical harm. In support of her contentions, Appellant argues
that the injuries suffered by the victim do not rise to the level of “serious Hocking App. No. 18CA3 19
physical harm” as required by the statute. Appellant also argues that even if
she did assault the victim, the State did not prove beyond a reasonable doubt
that this assault caused the serious physical harm. The State contends, on
the other hand, that it presented sufficient evidence that the victim sustained
serious physical harm caused by Appellant, and that “Appellant begs this
Court to overturn the jury verdict simply because the jury did not believe
[her] story.”
{¶25} “When a court reviews a record for sufficiency, ‘[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.’ ” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
{¶26} “The court must defer to the trier of fact on questions of
credibility and the weight assigned to the evidence.” State v. Dillard, 4th
Dist. Meigs No. 13CA9, 2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140
Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.
{¶27} In determining whether a criminal conviction is against the
manifest weight of the evidence, an appellate court must review the entire Hocking App. No. 18CA3 20
record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving 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. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶28} “Although a court of appeals may determine that a judgment is
sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence.” Thompkins at 387. But
the weight and credibility of evidence are to be determined by the trier of
fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of
the testimony of any witness, and we defer to the trier of fact on evidentiary
weight and credibility issues because it is in the best position to gauge the
witnesses' demeanor, gestures, and voice inflections, and to use these
observations to weigh their credibility. Dillard at ¶ 28; citing State v. West,
4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.
{¶29} As set forth above, Appellant was originally indicted on two
counts of felonious assault in violation of R.C. 2903.11. Count one charged
Appellant with a violation of R.C. 2903.11(A)(1), which provides as
follows: Hocking App. No. 18CA3 21
"(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's
unborn[.]"
Count two charged Appellant with a violation of R.C. 2903.11(A)(2), which
provides as follows:
***
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance."
{¶30} R.C. 2901.22(B) defines “knowingly” as follows:
“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. A person
has knowledge of circumstances when the person is aware that
such circumstances probably exist.”
“Serious physical harm” is defined under R.C. 2901.01(A)(5)(c), (d), and (e)
as including harm that produces “temporary, substantial incapacity,”
“temporary, serious disfigurement,” or “acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or Hocking App. No. 18CA3 22
intractable pain.” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 25 (4th
Dist.); quoting State v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-
4170, ¶ 23.
{¶31} The jury found Appellant guilty of count one, as charged, but
acquitted Appellant on count two. The jury instead found Appellant guilty
of a lesser-included offense of first-degree misdemeanor assault on count
two. R.C. 2903.13 governs assault, and provides in section (A)(1) that "[n]o
person shall knowingly cause or attempt to cause physical harm to another
or to another's unborn." Appellant asserts that because the jury acquitted her
on count two, it must have determined that she did not use a rock to assault
the victim, and that there was no testimony at all that she struck the victim
with her hand. However, in denying her Crim.R. 29 motion for judgment of
acquittal, the trial court stated as follows:
"This Court believes that the verdict on Count II is likely the
result of the jury believing that a rock is not a deadly weapon.
As such, the verdicts are not inconsistent."
We agree with the reasoning of the trial court, based upon the testimony
introduced by the State at trial.
{¶32} Appellant argues that what is in dispute in this case is whether
she participated in the assault of the victim, or whether she was a bystander. Hocking App. No. 18CA3 23
She further argues that the jury's conclusion that she struck the victim in the
head with a fifteen pound rock is physically impossible based upon the
medical evidence. She asserts that the fact that the victim did not sustain a
severe injury, specifically that he did not have a concussion and had a
negative MRI and CT scan of his head, are incompatible with the State's
allegations against her. Appellant also references law enforcement's failure
to obtain fingerprints or other DNA samples from the rock that was alleged
to have been used, as well as the fact that no blood could be seen on the
rock.
{¶33} Further, with regard to who inflicted the injuries upon the
victim, and Appellant's argument that she didn't assault the victim, let alone
commit felonious assault, Appellant argues that the victim acknowledged at
trial that her co-defendant's acts of punching him twice is what damaged his
eye, and that the injury to the victim's eye is "the only damage that could be
characterized as 'serious physical harm'." Appellant urges this Court to
accept another "more plausible" scenario, which involves the victim striking
Appellant's co-defendant and breaking his own thumb and then concocting a
claim that Appellant struck him with a rock in order to claim self-defense,
with the ultimate goal of ridding himself of his troublesome neighbors by
ensuring they were sentenced to prison. Hocking App. No. 18CA3 24
{¶34} Additionally, Appellant argues that the State failed to prove the
victim sustained "serious physical harm" as required by the felonious assault
statute. Appellant again references the fact that the victim had no
concussion and no skull fracture, had no permanent disfigurement or
scarring, and that his vision immediately after the accident was the same as
it was before the accident. Appellant asserts that the victim's testimony
regarding being in pain was related to the pain that occurred as a result of the
punches thrown by her co-defendant. Appellant, however, concedes that
R.C. 2901.01(A)(5)(c) arguably applies, which includes within the definition
of serious physical harm "[a]ny physical harm that involves some permanent
incapacity, whether partial or total, or that involves some temporary,
substantial incapacity[.]" Finally, Appellant suggests that in the absence of
expert testimony as to the severity and permanent nature of the injury, there
was insufficient evidence to prove the victim suffered serious physical harm.
{¶35} Here, the State presented the testimony of the victim at trial.
The victim testified that upon entering the roadway to retrieve his dog,
Appellant's co-defendant, Raymond Reynolds, sucker punched him in the
left eye and on the right side his cheek. He testified that he was hit so hard
he almost lost consciousness. He testified that as he reached up to grab his
eye, which was bleeding badly, his wife alerted him that Appellant was Hocking App. No. 18CA3 25
approaching him. He testified that as he turned to look for Appellant, she hit
him with a sixteen-pound rock on his "right forehead." He testified that
from that point on "it was very hazy because I had almost lost consciousness
at that point." He further testified as follows:
"That's a sixteen-pound rock, nearly sixteen pounds and it hit
me here. If it would have been two inches lower it would have
hit me in the temple. I probably wouldn't be sitting here today.
I think she attempted to kill me."
Regarding his condition after being hit with the rock, the victim testified as
follows: "I say it was real hazy I mean I'd just been hit with that sixteen-
pound rock and I wasn't very coherent. I'm really surprised I didn't faint,
pass out whatever * * *." The victim further testified that Appellant's co-
defendant hit him so hard he thought he would lose his eye, stating as
follows:
"He hit me so hard that I thought my eye was out at that time
because it hurt tremendously and I couldn't hardly hold my
hand on it I mean it was but I knew my eye ball wasn't out."
{¶36} The victim further testified that he was transported to the
hospital via ambulance, and that although life flight was initially called, they
couldn't get there because the weather was too bad. Appellant testified that Hocking App. No. 18CA3 26
although it was determined he did not have a concussion, he had bad cuts on
his eye and forehead and received stitches for those injuries. Further, and
importantly, the victim testified that he sustained a fractured thumb, which
occurred as a result of the rock hitting his thumb after it hit his head. The
victim denied striking either Appellant or her co-defendant, but testified that
he sprayed pepper spray on Appellant after she struck him with the rock.
{¶37} Appellant's wife, Lorrene Wells, also testified at trial. She
testified that she saw Appellant strike her husband with a rock. She further
identified a laceration appearing on the right side of the victim's head, as
shown to her in a photo which was also submitted to the jury, and testified it
was from being hit with the rock. Additionally, photographs submitted to
the jury depict the victim in a neck brace with bleeding all around his left
eye and running down his face. They also demonstrate a laceration to the
top right side of the victim's forehead consistent with where both Lorrene
and Kenneth Wells testified the rock struck him.
{¶38} Thus, according to the victim and his wife's testimony,
Appellant struck Mr. Wells with a sixteen-pound rock in the right side of his
forehead, just after he had been punched very hard, to the extent he was in
"tremendous" pain and feared his eyeball was actually out of the socket. A
laceration to that area was visible on photographs submitted to the jury and Hocking App. No. 18CA3 27
the victim's wife identified a laceration caused from the rock. Further,
according to the victim's testimony, after being hit with the rock he was very
hazy and incoherent, and he also sustained a fracture to his thumb from the
rock after the rock hit his head. Raymond Reynolds testified to a different
version of events. He testified that the victim came out into the street and
initiated the altercation by striking Reynolds with his walking stick. He
further testified that Appellant was not involved in the altercation.
{¶39} In State v. Blanton, 4th Dist. Adams No. 16CA1035, 2018-
Ohio-1278, -- N.E.3d -- , ¶ 30, we observed that In re Miller, 11th Dist.
Ashtabula No. 2000-A-0014, 2002-Ohio-3360, was instructive in a scenario
regarding harm inflicted by more than one individual. In Blanton, we
observed that in Miller, in response to an argument that the victim had been
kicked in the head by several other people before Miller became involved in
the fight and that it was impossible to sort out which blow to the victim's
head caused what amount of damage, it was reasoned as follows:
“ ‘[As to the persons kicking the victim] Those actions caused
serious physical harm. Assuming, for purposes of this point,
that they did, a party cannot then jump on top of the victim
bargaining only for a “regular” assault by hitting the victim in a
manner that may not, under normal circumstances, cause Hocking App. No. 18CA3 28
serious physical harm. If, in fact, appellant did not enter the
melee until the victim had already suffered serious physical
harm, his actions are all the more inculpatory. Harm heaped on
top of serious physical harm must itself be considered serious
physical harm even if under different circumstances it may not
have risen to that level. It is impossible to sort out which blow
to the victim's head caused what amount of damage. Those that
assaulted him all contributed jointly in the harm the victim
suffered.’ ” Blanton at ¶ 30; quoting In re Miller at ¶ 31.
{¶40} In Blanton, we reasoned that the victim's injuries, which
included a possible concussion, two black eyes, bruising of eyes, ear, neck,
stomach and back, a busted lip and a gash on the head, despite the absence
of fractures of the head, elbow and chest as confirmed by a CT scan and x-
rays, rose to the level of serious physical injury for purposes of establishing
felonious assault. Blanton at ¶ 31-32, 34. In reaching our decision, we
observed as follows:
" 'The degree of harm that rises to the level of "serious"
physical harm is not an exact science, particularly when the
definition includes such terms as "substantial," "temporary,"
"acute," and "prolonged." ' Id. at ¶ 26, quoting State v. Mango, Hocking App. No. 18CA3 29
8th Dist. Cuyahoga No. 103146, 2016-Ohio-2935, 2016 WL
2756627, ¶ 33. (Internal citations omitted.) The statute does not
define 'substantial suffering'; instead, the trier-of-fact must
determine its existence from the facts of each particular case.
State v. Bell, 1989 WL 10372, (Feb. 7, 1989), *2. (Internal
citations omitted.) 'Physical harm to persons' means 'any injury,
illness, or other physiological impairment, regardless of its
gravity or duration.' R.C. 2901.01(A)(3) State v. Henry, 8th
Dist. Cuyahoga No. 10002634, 2016-Ohio-692, 2016 WL
762573, ¶ 40." Blanton at ¶ 34; quoting State v. Adams, 2016-
Ohio-7772, 84 N.E.3d 155, ¶ 26 (4th Dist.).
{¶41} We further noted in ¶ 35 of Blanton as follows regarding what
may constitute serious physical injury:
"The Henry court observed that serious physical harm has been
found where a victim sustains a bloody cut and/or significant
swelling to the face because this is sufficient to establish
serious physical harm in that it constitutes 'temporary, serious
disfigurement.' Id. at ¶ 42. Courts have also determined that
'serious physical harm' exists ‘ "where the injuries caused the Hocking App. No. 18CA3 30
victim to seek medical treatment.” " Adams, supra, at ¶ 30,
quoting Scott, supra, at ¶ 3. (Internal citations omitted.)"
{¶42} In light of the foregoing case law, as applied to the evidence
introduced by the State at trial, we believe the jury could have reasonably
concluded that Appellant knowingly caused serious physical harm to the
victim herein. As indicated above, although Appellant was acquitted of the
felonious assault charge contained in count two, which specified the use of a
deadly weapon, we agree with the trial court's conclusion that the jury likely
acquitted on that charge based upon a failure to find the rock constituted a
deadly weapon, rather than a finding that a rock was not used in the
commission of the offense. Thus, the conviction on the lesser-included
offense charge of assault was appropriate given the evidence presented at
trial.
{¶43} Further, with respect to Appellant's urging that we accept an
alternate pattern of facts which involved Appellant simply being an innocent
bystander and the victim concocting a story to be able to claim self-defense
and get rid of his neighbors, we decline the invitation. As set forth above,
the weight and credibility of the evidence are to be determined by the trier of
fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of
the testimony of any witness. The jury apparently believed the State's Hocking App. No. 18CA3 31
version of the facts over Appellant's. Further, there was evidence in the
record which supported the jury's decision and, therefore, we cannot
conclude this is a case in which the jury lost its way.
{¶44} We further note that “[w]hen conflicting evidence is presented
at trial, a conviction is not against the manifest weight of the evidence
simply because the jury believed the prosecution's testimony.” State v.
Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 17;
quoting State v. Mason, 9th Dist. No. 21397, 2003-Ohio-5785, ¶ 17; quoting
State v. Gilliam, 9th Dist. No. 97CA006757, 1998 WL 487085 (Aug. 12,
1998). Moreover, a conviction is not against the manifest weight of the
evidence even if the “evidence is subject to different interpretations.” State
v. Adams, 2nd Dist. Greene Nos. 2013CA61, 2013–CA–62, 2014-Ohio-
3432, ¶ 24. Instead, a reviewing court should find a conviction against the
manifest weight of the evidence only in the “ ‘exceptional case in which the
evidence weighs heavily against the conviction.’ ” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541(1997).
{¶45} In light of the foregoing, and based on this record, we cannot
conclude that Appellant’s convictions for felonious assault and assault are
against the manifest weight of the evidence. Moreover, “[w]hen an appellate
court concludes that the weight of the evidence supports a defendant's Hocking App. No. 18CA3 32
conviction, this conclusion necessarily also includes a finding that sufficient
evidence supports the conviction.” State v. Adkins, 4th Dist. Lawrence No.
13CA17, 2014-Ohio-3389, ¶ 27. Having already determined that Appellant’s
convictions are not against the manifest weight of the evidence, we
necessarily reject Appellant’s additional claim that her convictions are not
supported by sufficient evidence. Thus, we reject both the manifest weight
and sufficiency portions of Appellant’s argument and overrule Appellant’s
first and second assignments of error.
{¶46} Having found no merit to the assignments of error raised by
Appellant, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED. Hocking App. No. 18CA3 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________ Matthew W. McFarland
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.