State v. Parker

2012 Ohio 3078

Opinion

[Cite as State v. Parker, 2012-Ohio-3078.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97449

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ANTHONY PARKER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-545274

BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 5, 2012 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender

BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Margaret A. Troia Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113 MELODY J. STEWART, P.J.:

{¶1} A jury found defendant-appellant Anthony Parker guilty of a single count of

felonious assault in connection with an incident in which he crushed the victim’s larynx

by strangulation during a confrontation. In this appeal, Parker makes the sole complaint

that the verdict is against the manifest weight of the evidence. We conclude that minor

inconsistencies in the evidence were not so compelling that the jury necessarily lost its

way by finding that other evidence was competent and credible enough to warrant a

conviction.

{¶2} The manifest weight of the evidence standard of review requires us to review

the entire 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 and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that

the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution of factual

issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶3} Both Parker and the victim agreed on the background giving rise to the

confrontation that led to the criminal charges. Parker and two nephews traveled from

New Jersey the weekend before Thanksgiving to stay at a house that the victim shared

with his girlfriend, who was also Parker’s sister. While attending a party with the victim,

Parker gave the victim money and asked him to procure a bag of marijuana. The victim

obtained the marijuana and gave it to Parker. A few days later, Parker complained that

he did not get his money’s worth — he accused the victim of skimming marijuana from

the bag before handing it over. The victim denied Parker’s allegations, but tensions grew

over the next few days to the point where the victim began carrying a hammer for

protection.

{¶4} The testimony diverged on the actual events of the incident. On

Thanksgiving Day, November 25, 2011, the victim said he was alone in the living room

watching television when Parker entered. Parker grabbed him by the neck and pressed

his thumbs into his throat, saying, “[y]ou thought I was going to forget it.” The victim

had trouble breathing and began “fading out.” He tried calling for help, but Parker told

him to be quiet. As the victim struggled to breathe, Parker said, “I got your ass now.”

The victim tried kicking a glass coffee table to make noise and then broke free from

Parker. The girlfriend heard the commotion from upstairs and came down to see Parker

and the victim standing apart. She did not witness the incident but saw that the victim’s nose was bloodied. She told both men to leave immediately. The victim walked a very

short distance to a friend’s house. Seeing that the victim was having trouble breathing,

the friend wanted to call an ambulance. The victim told him not to call an ambulance

because he thought he could catch his breath. The friend left the house to run a quick

errand. He returned 30 minutes later to find the victim still struggling to breathe, so he

called for emergency help. The victim was taken to the hospital and later required

surgery on his throat.

{¶5} Parker testified that he came downstairs on Thanksgiving Day to find the

victim on the couch, watching television. The victim was surprised by Parker’s

appearance and started to approach him. A struggle ensued and the two fell onto the

couch. A glass coffee table was kicked over during the scuffle, and the girlfriend came

downstairs and broke up the fight. Parker and the nephews left for New Jersey after

being ordered out of the house by the victim’s girlfriend.

{¶6} Both Parker and the victim testified that there had been a scuffle in the living

room. There is likewise no disagreement that the victim’s injuries were sufficient to

establish the “serious physical harm” element of felonious assault under R.C.

2903.11(A)(1). The only question for resolution by the jury was whether Parker caused

the victim’s injuries.

{¶7} Parker argues that the victim’s injuries must have been caused after the

incident in the living room. He notes that the victim did not have difficulty speaking

immediately after the incident and that the victim did not immediately seek medical assistance. He further notes that the 911 recording shows that the victim’s friend told the

dispatcher that the victim had been robbed by two men, that medical records from the

hospital state that the victim suffered his injuries while “playing cards,” and that the

timeline given by the victim did not match medical records. Finally, Parker notes that

the victim had a lengthy history of substance abuse that made him less credible and that

lab work done at the hospital revealed the presence of opiates and marijuana in the

victim’s blood.

{¶8} Although the victim could still speak immediately after the incident and he

did not immediately seek medical care, the surgeon who operated on the victim testified

that throat injuries of the kind suffered by the victim do not necessarily manifest

immediately after the trauma. The surgeon testified that the effects from “compression

of the neck” could manifest “a day later or even weeks later.” Given this testimony, it

was possible that the victim’s breathing could have appeared uncompromised when the

girlfriend broke up the incident and ordered the men to leave the house. Certainly, the

injury had manifested itself by the time the victim went to his friend’s house — the friend

testified that the victim was having so much difficulty breathing that he wanted to call an

ambulance. Testimony from an emergency medical technician who responded to the

friend’s house found the victim was “passing air” but that the victim was complaining

about his difficulty breathing. By the time the victim arrived at the hospital, the surgeon

found that the victim showed so much “airway compromise” that he was intubated and placed on a ventilator. He remained in that condition until surgery was performed nearly

two weeks later.

{¶9} As for the 911 call and the friend’s statement that the victim had been

robbed by two men, the friend explained that the victim said that he had been “jumped or

something.” The friend continued to state that the victim told him that there were two

people involved, but said “[h]e came in and said he got jumped. I figured they was

trying to rob him or something. I don’t know.” This testimony suggests that the friend

may have been reading into the victim’s story, particularly since the friend conceded that

he never heard the entire story of what happened because the victim “never could catch

his breath to talk like his own person.”

{¶10} The origin of a notation in the medical record stating that the victim’s

injuries occurred “while playing cards” is obscure. It was contained in a consultation

note prepared on December 7, 2010, nearly two weeks after the incident. The consulting

physician must not have obtained the medical history from the victim because the

evidence showed that the victim had been intubated upon his arrival at the hospital and

was breathing with the assistance of a ventilator. For obvious reasons, the victim was

sedated, a fact stated in the consultation note and confirmed by the girlfriend who

described the victim as being in a “coma” for two weeks before his surgery. The

consultation note also stated that “[the victim] opens eyes but does not follow

commands.” In fact, the decision to perform surgery on the victim was made by two

other physicians “as the patient was unable to consent for himself * * *.” The clear import of this evidence was that the victim had been unable to communicate, so the

consulting physician could not have learned from the victim himself that the injuries

occurred during a card game. That information must have come from a third party, so it

had no direct effect on the victim’s credibility.

{¶11} It is unclear why the victim’s history of substance abuse would call his

credibility into question in this case. It is true that blood work performed on the victim

after his admission to the hospital showed him to be under the influence of opiates and

marijuana, but there was no indication that these drugs impaired his ability to recall

events accurately. In any event, testimony by other witnesses corroborated the important

parts of the victim’s testimony. There was no question that a scuffle occurred in the

living room. The state offered as a motive for the attack Parker’s continuing

dissatisfaction with being shorted on a bag of marijuana, a fact confirmed by the

girlfriend. Following the attack, the victim immediately went to his friend’s house where

his breathing difficulties were noted. Testimony by the treating physician confirmed that

the victim’s breathing difficulties might not have immediately manifested, but could have

worsened over time, an opinion consistent with the state’s evidence.

{¶12} Having reviewed the evidence and weighed the credibility of the witnesses,

we have no reason to conclude that the jury’s verdict was against the manifest weight of

the evidence. The assigned error is overruled.

{¶13} Judgment affirmed.

It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.

MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and SEAN C. GALLAGHER, J., CONCUR