[Cite as State v. Parker, 2016-Ohio-5663.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 15CA010750
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE AARON PARKER COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 14CR090747
DECISION AND JOURNAL ENTRY
Dated: September 6, 2016
CANNON, Judge.
{¶1} Appellant, Aaron Parker, appeals the judgment of the Lorain County Court
of Common Pleas finding him guilty of various offenses. At issue is whether the verdict
was supported by both sufficient evidence and the manifest weight of the evidence. Also
at issue is whether appellant’s trial counsel was ineffective. For the reasons that follow,
the judgment is affirmed.
I.
{¶2} Appellant was indicted on the following charges: felonious assault (Count
One), in violation of R.C. 2903.11(A)(1), a felony of the first degree; having weapons
while under disability (Count Two), in violation of R.C. 2923.13(A)(2), a felony of the
third degree; assault (Count Three), in violation of R.C. 2903.13(A), a felony of the
fourth degree; carrying a concealed weapon (Count Four), in violation of R.C. 2
2923.12(A)(2), a felony of the fourth degree; improperly handling firearms in a motor
vehicle (Count Five), in violation of R.C. 2923.16(B)(4), a felony of the fourth degree;
and obstructing official business (Count Six), in violation of R.C. 2921.31(A), a felony of
the fifth degree.
{¶3} A jury trial was held on Counts One, Three, Four, Five, and Six. A bench
trial was held on Count Two. The jury found appellant guilty on Counts One, Three,
Four, Five, and Six. Appellant was also found guilty with respect to Count Two. For
purposes of sentencing, Count Three, assault, was merged with Count One, felonious
assault. The instant appeal focuses on the finding of guilty with respect to Counts One
and Three.
{¶4} During trial, the testimony revealed appellant’s charges stemmed from an
incident that occurred on November 18, 2014. On this day, two officers, Officers
Cambarare and Manicsic of the Lorain Police Department, were searching for a suspect
named Milles Diaz. The officers went to the home of Mr. Diaz’s mother, a quadplex
housing unit, but she refused to cooperate. Believing Mr. Diaz was in the area, they
conducted surveillance on the residence. While conducting surveillance, a man who
looked like Mr. Diaz, exited the quadplex and entered a red Dodge Neon. The vehicle
pulled away, with the officers following. Because the vehicle was speeding, the officers
initiated a traffic stop.
{¶5} Appellant was sitting in the rear of the vehicle. After running a background
check, the officers learned he had an out-of-state arrest warrant for a weapons offense.
Appellant exited the vehicle and was patted down. 3
{¶6} Officer Cambarare testified that he felt what he believed to be a handgun
between appellant’s legs. As Officer Cambarare attempted to place appellant in
handcuffs, he fled.
{¶7} Appellant retreated behind a garage. As appellant emerged from behind the
garage, the officers deployed their tasers, causing appellant to fall on a small, decorative
fence. The fence cut the taser wires, and appellant reached down toward his waistband.
The officers jumped on appellant and attempted to handcuff him, but a fight ensued. The
testimony reveals that appellant clenched his fist over his head, in a hammer-type motion,
and struck Officer Manicsic’s right hand. Officer Manicsic’s right hand immediately
went numb; it was ultimately determined his right hand was broken, and two pins were
required to set the fractured bone.
{¶8} Once the officers were able to detain appellant, it was confirmed that
appellant had a loaded gun on his person.
{¶9} The jury found appellant guilty of all counts; the trial court found appellant
guilty of having weapons under disability. Appellant was sentenced to an aggregate
prison sentence of seven years in the Lorain Correctional Institution.
{¶10} Appellant alleges two assignments of error.
II.
First Assignment of Error
Trial Counsel was ineffective for failing to subpoena witnesses or introduce evidence regarding pictures of Aaron Parker taken on November 18, 2014. 4
{¶11} In evaluating ineffective assistance of counsel claims, Ohio appellate courts
apply the two-part test enunciated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). First, it must be determined that counsel’s
performance fell below an objective standard of reasonableness. State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph two of the syllabus. Second, it must be shown that
prejudice resulted. Id.
{¶12} To demonstrate prejudice, “the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Id. at paragraph three of the syllabus. Further, an appellate court
need not analyze both prongs of the Strickland test if it finds that appellant failed to prove
either. State v. Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.
{¶13} Appellant argues his trial counsel was ineffective for failing to subpoena
witnesses to testify regarding photographs of him taken after the incident. Appellant
claims that if the trier of fact viewed these photographs, the outcome of the trial would
have been different. To support this contention, appellant points to a question asked by
the jury during deliberation: “If we are unsure that the injury was a direct result of the
strike, as described in the testimony, but still as a result of the scuffle, does that indicate
felonious assault?”
{¶14} The photographs were not made part of the record for our review.
Normally, for the defendant to be able to pursue an ineffective assistance claim such as
this, it would be necessary for him to file a post-conviction relief proceeding and 5
establish a record with the photographs and other testimony, such as the testimony of
defense counsel.
{¶15} Appellant’s first assignment of error is without merit.
III.
Second Assignment of Error
The verdicts in count one and three were not supported by sufficient evidence and were against the manifest weight of the evidence.
{¶16} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “‘lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In
weighing the evidence submitted at a criminal trial, an appellate court must defer to the
factual findings of the trier of fact regarding the weight to be given the evidence and
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of
the syllabus. Further, a conviction resulting from a trial by jury shall not be reversed on
the weight of the evidence except by the concurrence of all three judges hearing the
appeal. Thompkins, supra, at 386.
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[Cite as State v. Parker, 2016-Ohio-5663.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 15CA010750
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE AARON PARKER COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 14CR090747
DECISION AND JOURNAL ENTRY
Dated: September 6, 2016
CANNON, Judge.
{¶1} Appellant, Aaron Parker, appeals the judgment of the Lorain County Court
of Common Pleas finding him guilty of various offenses. At issue is whether the verdict
was supported by both sufficient evidence and the manifest weight of the evidence. Also
at issue is whether appellant’s trial counsel was ineffective. For the reasons that follow,
the judgment is affirmed.
I.
{¶2} Appellant was indicted on the following charges: felonious assault (Count
One), in violation of R.C. 2903.11(A)(1), a felony of the first degree; having weapons
while under disability (Count Two), in violation of R.C. 2923.13(A)(2), a felony of the
third degree; assault (Count Three), in violation of R.C. 2903.13(A), a felony of the
fourth degree; carrying a concealed weapon (Count Four), in violation of R.C. 2
2923.12(A)(2), a felony of the fourth degree; improperly handling firearms in a motor
vehicle (Count Five), in violation of R.C. 2923.16(B)(4), a felony of the fourth degree;
and obstructing official business (Count Six), in violation of R.C. 2921.31(A), a felony of
the fifth degree.
{¶3} A jury trial was held on Counts One, Three, Four, Five, and Six. A bench
trial was held on Count Two. The jury found appellant guilty on Counts One, Three,
Four, Five, and Six. Appellant was also found guilty with respect to Count Two. For
purposes of sentencing, Count Three, assault, was merged with Count One, felonious
assault. The instant appeal focuses on the finding of guilty with respect to Counts One
and Three.
{¶4} During trial, the testimony revealed appellant’s charges stemmed from an
incident that occurred on November 18, 2014. On this day, two officers, Officers
Cambarare and Manicsic of the Lorain Police Department, were searching for a suspect
named Milles Diaz. The officers went to the home of Mr. Diaz’s mother, a quadplex
housing unit, but she refused to cooperate. Believing Mr. Diaz was in the area, they
conducted surveillance on the residence. While conducting surveillance, a man who
looked like Mr. Diaz, exited the quadplex and entered a red Dodge Neon. The vehicle
pulled away, with the officers following. Because the vehicle was speeding, the officers
initiated a traffic stop.
{¶5} Appellant was sitting in the rear of the vehicle. After running a background
check, the officers learned he had an out-of-state arrest warrant for a weapons offense.
Appellant exited the vehicle and was patted down. 3
{¶6} Officer Cambarare testified that he felt what he believed to be a handgun
between appellant’s legs. As Officer Cambarare attempted to place appellant in
handcuffs, he fled.
{¶7} Appellant retreated behind a garage. As appellant emerged from behind the
garage, the officers deployed their tasers, causing appellant to fall on a small, decorative
fence. The fence cut the taser wires, and appellant reached down toward his waistband.
The officers jumped on appellant and attempted to handcuff him, but a fight ensued. The
testimony reveals that appellant clenched his fist over his head, in a hammer-type motion,
and struck Officer Manicsic’s right hand. Officer Manicsic’s right hand immediately
went numb; it was ultimately determined his right hand was broken, and two pins were
required to set the fractured bone.
{¶8} Once the officers were able to detain appellant, it was confirmed that
appellant had a loaded gun on his person.
{¶9} The jury found appellant guilty of all counts; the trial court found appellant
guilty of having weapons under disability. Appellant was sentenced to an aggregate
prison sentence of seven years in the Lorain Correctional Institution.
{¶10} Appellant alleges two assignments of error.
II.
First Assignment of Error
Trial Counsel was ineffective for failing to subpoena witnesses or introduce evidence regarding pictures of Aaron Parker taken on November 18, 2014. 4
{¶11} In evaluating ineffective assistance of counsel claims, Ohio appellate courts
apply the two-part test enunciated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). First, it must be determined that counsel’s
performance fell below an objective standard of reasonableness. State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph two of the syllabus. Second, it must be shown that
prejudice resulted. Id.
{¶12} To demonstrate prejudice, “the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Id. at paragraph three of the syllabus. Further, an appellate court
need not analyze both prongs of the Strickland test if it finds that appellant failed to prove
either. State v. Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.
{¶13} Appellant argues his trial counsel was ineffective for failing to subpoena
witnesses to testify regarding photographs of him taken after the incident. Appellant
claims that if the trier of fact viewed these photographs, the outcome of the trial would
have been different. To support this contention, appellant points to a question asked by
the jury during deliberation: “If we are unsure that the injury was a direct result of the
strike, as described in the testimony, but still as a result of the scuffle, does that indicate
felonious assault?”
{¶14} The photographs were not made part of the record for our review.
Normally, for the defendant to be able to pursue an ineffective assistance claim such as
this, it would be necessary for him to file a post-conviction relief proceeding and 5
establish a record with the photographs and other testimony, such as the testimony of
defense counsel.
{¶15} Appellant’s first assignment of error is without merit.
III.
Second Assignment of Error
The verdicts in count one and three were not supported by sufficient evidence and were against the manifest weight of the evidence.
{¶16} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “‘lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In
weighing the evidence submitted at a criminal trial, an appellate court must defer to the
factual findings of the trier of fact regarding the weight to be given the evidence and
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of
the syllabus. Further, a conviction resulting from a trial by jury shall not be reversed on
the weight of the evidence except by the concurrence of all three judges hearing the
appeal. Thompkins, supra, at 386.
{¶17} “‘“[S]ufficiency” is a term of art meaning that legal standard which is
applied to determine whether the case may go to the jury or whether the evidence is
legally sufficient to support the jury verdict as a matter of law.’” Id., quoting Black’s 6
Law Dictionary, 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy.” Id.
When reviewing a conviction for sufficiency, evidence must be viewed in a light most
favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of
the syllabus. The pertinent question is whether “any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” Id.
{¶18} Appellant was found guilty of felonious assault, in violation of R.C.
2903.11(A)(1), which states: “No person shall knowingly * * * [c]ause serious physical
harm to another * * *[.]” (Emphasis added.) Appellant was also found guilty of assault,
which merged with felonious assault, in violation of R.C. 2903.13(A), which states: “No
person shall knowingly cause or attempt to cause physical harm to another * * *.”
(Emphasis added.)
{¶19} Appellant argues he could not have acted “knowingly.” “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.” R.C. 2901.22(B). Appellant maintains the state failed to present evidence that he
intended to cause injury to Officer Manicsic’s hand. He contends that both officers
deployed their tasers, which caused him to make involuntary movements. These
involuntary movements, appellant argues, could have caused the officer’s injury.
Conversely, the state argues the officer’s injury was a reasonable and foreseeable
consequence of appellant’s actions of fleeing and fighting with the officers. 7
{¶20} “[A] person is presumed to intend the natural, reasonable and probable
consequences of his voluntary acts.” State v. Johnson, 56 Ohio St.2d 35, 39 (1978).
Furthermore, “[i]t is not necessary that the accused be in a position to foresee the precise
consequence of his conduct; only that the consequence be foreseeable in the sense that
what actually transpired was natural and logical in that it was within the scope of the risk
created by his conduct.” State v. Losey, 23 Ohio App.3d 93, 96 (10th Dist.1985). Intent
can be determined from the surrounding facts and circumstances. State v. Robinson, 161
Ohio St. 213 (1954), paragraph five of the syllabus.
{¶21} Here, appellant fled the scene on foot. Both officers deployed their taser,
causing appellant to fall on a decorative fence. The fence cut the wires to the taser
causing the probes to lose contact with appellant. Appellant reached to his waistband
where Officer Cambarare believed a gun was located. Both officers jumped on appellant.
Appellant began to fight with the officers. The testimony reveals that appellant tried to
break contact with the officers. Officer Cambarare testified that appellant made a
hammer fist and struck Officer Manicsic’s right hand. Officer Manicsic also testified that
appellant brought “his hand up like this and brings it down on top of my hand
(indicating.)”
{¶22} Appellant attempts to discredit the testimony of the officers by noting that
Officer Manicsic “stated that his bodyweight was also on his ultimately injured hand
during this event” and that Officer Cambarare testified, “a person could injure an officer
without knowingly doing so.” However, the officers’ testimony reveals that it was, in
fact, appellant that struck Officer Manicsic’s hand. Officer Manicsic testified that after 8
appellant struck his hand, he collapsed on top of him, and “as soon as he hit the top of my
hand, I lost all feelings.”
{¶23} This Court recognizes that “the trier of fact is in the best position to
determine the credibility of witnesses and evaluate their testimony accordingly.” State
v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. The trier of fact is free
to believe “all, part, or none of the testimony of each witness.” State v. Tabassum, 9th
Dist. Summit No. 25568, 2011-Ohio-6790, ¶ 27, quoting State v. Cross, 9th Dist.
Summit No. 25487, 2011-Ohio-3250, ¶ 35.
{¶24} Appellant may not have foreseen the precise injury caused to the officer.
Appellant, however, engaged in an altercation with the officers. Also, the testimony
reveals that appellant struck the officer’s hand with a hammer fist. The “natural,
foreseeable and probable consequence” of that voluntary act is to cause injury. The
officer’s hand became numb after appellant’s strike. This is more than sufficient to prove
the mental state required to convict appellant of felonious assault. Additionally, upon our
review of all of the evidence adduced at trial, it is our view the jury did not lose its way
and did not create a manifest miscarriage of justice justifying reversal of appellant’s
conviction.
{¶25} Appellant’s second assignment of error is without merit.
{¶26} Having overruled appellant’s assignments of error, we affirm the judgment
of the Lorain County Court of Common Pleas.
Judgment affirmed. 9
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
TIMOTHY P. CANNON FOR THE COURT
CARR, P.J. MOORE, J. CONCUR
(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
APPEARANCES:
NICHOLAS J. HANEK, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY SLANCZKA, Assistant Prosecuting Attorney, for Appellee.