State v. Rice

2022 Ohio 2050

Opinion

[Cite as State v. Rice, 2022-Ohio-2050.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Earle E. Wise, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : JESSE RICE, : Case No. 21 CAA 10 0050 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 21 CRI 030146

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 16, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ELIZABETH A. MATUNE APRIL F. CAMPBELL Assistant Prosecutor Campbell Law, LLC 145 North Union Street 46 1/2 N. Sandusky Street Delaware, Ohio 43015 Delaware, Ohio 43015 Delaware County, Case No. 21 CAA 10 0050 2

Baldwin, J.

{¶1} Jesse Rice appeals the decisions of the Delaware Court of Common Pleas

regarding his conviction of attempted felonious assault, a felony of the third degree, in

violation of R.C. 2923.02(A)/R.C. 2903.11(A) and domestic violence, a misdemeanor of

the first degree, in violation of R.C. 2919.25(A). The State of Ohio is appellee.

STATEMENT OF FACTS AND THE CASE

{¶2} The Delaware Police Department responded to a call from a woman, A.M.

who reported that she had been strangled by her boyfriend, Jesse Rice. Two officers

arrived nearly simultaneously and one went to the residence and located the victim. The

second officer found appellant, Jesse Rice, in a pick-up truck outside the home apparently

scrolling through his phone. He appeared unconcerned by the officers’ sudden

appearance and denied that he had assaulted A.M.

{¶3} The second officer found A.M. at the home, but she did not permit him to

enter for fear of frightening the young daughter of Rice and A.M. who was in the house

and presumably not attentive to the arrival of the officers. The officer noted bruises on

the side of A.M.’s neck, a fist size bruise on her upper chest and red, finger-tip size bruises

on the back of her neck. The officer also noted her voice was scratchy.

{¶4} At trial A.M. described how Rice had become angry with her and eventually

choked her three times, slapped her several times and told her that he would kill her.

Once she escaped, she called a friend for help and then contacted 911 to report the

incident. Delaware County, Case No. 21 CAA 10 0050 3

{¶5} During the trial, A.M. explained that she had kept their child from Rice for

one year, but did not disclose the reason for the separation. Defense counsel explored

that issue on cross-examination:

Q. Well, you talked on direct that while Jesse was strangling you, he was

yelling at you about not letting you—him see his daughter for a year?

A. Yes, sir.

Q. That was untrue?

A. No. That is true.

Q. Okay, so when was that year you wouldn't let him see his daughter?

A. June of 2019 to May of 2020.

Q. Okay, And repeatedly on direct you had stated that you were afraid to

call the police on Jesse, you didn't want him to get into trouble because you

wanted him to be in his daughter's life, correct?

A, Yes, sir.

Q. But you didn't have that concern for the year you wouldn't let him see

her?

A. No, sir.

Trial Transcript, Volume I, Pages 213-214

{¶6} In redirect, the prosecution asked the victim why she did not let Rice

see his daughter and Rice objected. The trial court overruled the objection (Trial

Transcript, Volume I, Page 232) and A.M. explained that she kept Rice away from

their daughter because he was supposed to help her move but did not; because

he did not ask about his daughter; because he had flown off the deep end; and Delaware County, Case No. 21 CAA 10 0050 4

because he had once offered money on Facebook for someone to find her; among

other things. Trial Transcript, Volume I, Pages 232-234.

{¶7} The matter went to the jury and Rice was convicted on both counts and

sentenced to a prison term of twenty-four months.

{¶8} Rice’s counsel filed an Anders brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967). In Anders the Supreme Court of the United States held

if, after a conscientious examination of the record, a defendant's counsel concludes the

case is wholly frivolous, then counsel should so advise the court and request permission

to withdraw. Anders at 744. Counsel must accompany the request with a brief identifying

anything in the record that could arguably support the defendant's appeal. Id. Counsel

also must: (1) furnish the defendant with a copy of the brief and request to withdraw; and,

(2) allow the defendant sufficient time to raise any matters that the defendant chooses.

Id. Once the defendant's counsel satisfies these requirements, the appellate court must

fully examine the proceedings below to determine if any arguably meritorious issues exist.

If the appellate court also determines that the appeal is wholly frivolous, it may grant the

counsel's request to withdraw and dismiss the appeal without violating constitutional

requirements, or may proceed to a decision on the merits if state law so requires. Id.

{¶9} Appellate counsel's brief lists the following potential assignments of error:

{¶10} “I. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OVER RICE'S

OBJECTION, AS TO THE REASON WHY THE VICTIM DID NOT LET RICE SEE THEIR

CHILD FOR ALMOST A YEAR.”

{¶11} “II. THE EVIDENCE OF ATTEMPT TO CAUSE SERIOUS PHYSICAL

HARM WAS LEGALLY INSUFFICIENT TO CONVICT RICE OF ATTEMPTED Delaware County, Case No. 21 CAA 10 0050 5

FELONIOUS ASSAULT, AND THE EVIDENCE WEIGHED MANIFESTLY AGAINST

HIM.”

{¶12} “III. THE TRIAL COURT ERRED IN SENTENCING RICE.”

{¶13} In the listed assignments of error, appellate counsel suggests there are no

issues that could be considered meritorious. Counsel timely served Rice with a copy of

the brief, but he has not filed a brief in response to service of the Anders brief. He did file

a motion to dismiss the appeal, pro se. That motion was denied because Rice was

represented by counsel in this matter.

ANALYSIS

I.

{¶14} The first proposed assignment of error focuses upon the exchange between

A.M., defense counsel, and the prosecutor regarding A.M.’s keeping Rice’s child away

from him for one year. A.M. did describe the separation as a source of Rice’s anger but

did not disclose and was not asked for a reason during direct examination. During cross-

examination, defense counsel explored the topic, highlighting the inconsistency between

her statement that she wanted Rice to be part of her daughter’s life and her act of keeping

her daughter away from Rice. Defense counsel’s questioning prompted questions on

redirect examination regarding the reason for the different treatment and A.M. described

the negative behaviors of Rice that prompted her actions. Rice objected but the objection

was overruled.

{¶15} Appellant’s counsel has cited two Eighth District Court of Appeals that she

has interpreted as supporting the introduction of otherwise inadmissible evidence when

one party “opens the door” to that topic. This court has reached the same conclusion. Delaware County, Case No. 21 CAA 10 0050 6

State v. Nemethy, 5th Dist. Licking No. 06 CA 159, 2007-Ohio-4387, ¶ 56 (Prejudicial

error will not be found when the defense “opens the door” to this evidence. See State v.

Greer (1988), 39 Ohio St.3d 236, 243, 530 N.E.2d 382; State v. Hartford (1984), 21 Ohio

App.3d 29, 31, 486 N.E.2d 131.); State v. Hootman, 5th Dist. Richland No. 18CA31, 2019-

Ohio-607, ¶ 53 (A court will not find error “when the defense opens the door to otherwise

inadmissible evidence.” State v. Davis, 195 Ohio App.3d 123, 2011-Ohio-2387, 958

N.E.2d 1260, ¶ 26 (8th Dist.)).

{¶16} We find that Rice’s cross-examination of the victim opened the door for the

state to question her regarding her reason for keeping Rice from his daughter. Rice’s first

proposed assignment of error is overruled.

II.

{¶17} In the second proposed assignment of error, appellant’s counsel examines,

but finds no merit in the assertion that the conviction for attempted felonious assault was

not supported by sufficient evidence or was against the manifest weight of the evidence.

{¶18} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), in which the Ohio

Supreme Court held, “an appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.” Delaware County, Case No. 21 CAA 10 0050 7

{¶19} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶20} It is well-established, though, that the weight of the evidence and the

credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio

St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The jury is free to accept or reject any and

all of the evidence offered by the parties and assess the witness's credibility. Id.

{¶21} Rice was charged with attempted felonious assault, a violation of R.C.

2903.11(A) which states in relevant part that: “No person shall knowingly * * * [c]ause

serious physical harm to another * * *. The state argued that attempted felonious assault

allegedly occurred when Rice “purposely or knowingly, and when purpose or knowledge

is sufficient culpability for the commission of an offense, *** engage[d] in conduct that, if

successful, would constitute or result in [felonious assault]. R.C. 2923.02(A).

{¶22} A.M. testified that Rice choked her three separate times to the brink of

unconsciousness while threatening to kill her. She described losing feeling in her limbs,

blurred vision and difficulty breathing while “things were going black.” (Transcript, p. 188,

lines 6-10). The jury was provided with photographs of bruises on her neck and chest as Delaware County, Case No. 21 CAA 10 0050 8

well as red marks on her neck that she attributed to Rice’s actions. The record contains

no alternate explanation for A.M.’s symptoms or injuries.

{¶23} We find that the record contains sufficient evidence for a reasonable jury to

find, beyond a reasonable doubt, that Rice committed attempted felonious assault.

Further, the evidence in the record does not demonstrate that the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be overturned

and a new trial ordered.

{¶24} Appellant’s second assignment of error is overruled.

III.

{¶25} In the final proposed assignment of error, appellant’s counsel examines

whether the trial court erred in sentencing Rice and concludes that there is no merit to

that argument.

{¶26} Rice was convicted of Attempted Felonious Assault, in violation of R.C.

2923.02(A) and 2903.11(A), a felony of the third degree and Domestic Violence, in

violation of R.C. 2919.25(A) a misdemeanor of the first degree. The maximum prison term

for a felony of the third degree is sixty months and for a first degree misdemeanor the

maximum term is one hundred eighty days. The trial court, after considering “the record,

oral statements of counsel and the Defendant, any victim impact statement, and any

presentence investigation report prepared by the Delaware County Office of Adult Court

Services, as well as the principles and purposes of sentencing under R.C. 2929.11” after

balancing the seriousness and recidivism factors under R.C. 2929.12” ordered that Rice

serve a prison term of twenty-four months for attempted felonious assault and one Delaware County, Case No. 21 CAA 10 0050 9

hundred eighty days for domestic violence and further ordered that the sentences were

to run concurrently. No fine was imposed.

{¶27} R.C. 2953.08 governs appeals claiming a violation of felony sentencing

guidelines. Subsection (G)(2) describes this court's standard of review:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or division (I)

of section 2929.20 of the Revised Code, whichever, if any, is relevant;

That the sentence is otherwise contrary to law.

{¶28} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-

015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019- Delaware County, Case No. 21 CAA 10 0050 10

03-026, 2019-Ohio-4209, ¶ 36. We have reviewed the record and found that the trial court

fulfilled those requirements as it imposed the sentence, so we find no error.

{¶29} For these reasons, after independently reviewing the record, we agree with

counsel's conclusion that no arguably meritorious claims exist upon which to base an

appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's

request to withdraw, and affirm the judgment of the Delaware County Court of Common

Pleas.

By: Baldwin, J.

Wise, Earle, P.J. and

Gwin, J. concur.