State v. Wing

2023 Ohio 4171

• Court: Ohio Court of Appeals
• Decided: November 20, 2023
• Docket: CA2023-03-022
• Status: Published

Opinion

[Cite as State v. Wing, 2023-Ohio-4171.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-03-022

: OPINION - vs - 11/20/2023 :

LEO E. WING, :

Appellant. :

CRIMINAL APPEAL FROM FAIRFIELD MUNICIPAL COURT Case No. 2022 CRB 02562

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee.

Maria L. Rabold, for appellant.

M. POWELL, J.

{¶ 1} Defendant-Appellant, Leo Wing, appeals his convictions in the Fairfield

Municipal Court for assault and aggravated menacing. For the reasons discussed below,

we affirm his convictions.

{¶ 2} Jefferey Denier was leasing a home at 5978 Morningside Dr., Fairfield, Ohio Butler CA2023-03-022

45014 from his mother (hereinafter the Home), where he lived with his brother and S.D. his-

13-year-old son. Denier's mother is married to Wing. Sometime prior to September 7,

2022, Denier's mother and Wing advised Denier to vacate the Home. By September 2,

2022, Denier was residing in another residence, but some of his personal belongings, such

as a flat screen television, remained in the Home. Denier claimed he did not "officially"

move out of the Home until September 22, 2022.

{¶ 3} On September 7, 2022, Denier and S.D. returned to the Home to retrieve his

personal belongings. Unbeknownst to Denier, Wing had changed the locks. Unable to

access the Home, Denier left the premises and went to the police department to solicit help

from the police. Denier and two police officers contacted Denier's mother who declined to

grant permission for Denier to enter the Home and retrieve his personal belongings.

{¶ 4} Denier and S.D. later returned to the Home. As Denier pulled his car up to

the Home, he observed Leo outside and then run into the Home and lock the door. Denier

then walked around to the rear of the Home and was able to open a window to gain entry.

The blinds to the window were drawn closed. As Denier attempted to enter the Home, he

was met by Wing and a struggle ensued. During the altercation, S.D. approached the

window and Wing grabbed his arm. In seeking to escape Wing's grasp, Wing scratched

S.D.'s arm. S.D. took off running and Wing jumped out of the window and chased S.D.

around the Home. During the altercation, according to Denier, Wing was threatening Denier

and S.D. Denier specifically recalled Wing saying to S.D. as he grabbed S.D.'s arm, "I'm

going to get you too."

{¶ 5} S.D. ran around the house and called 9-1-1. On the 9-1-1 recording, Wing

can be heard screaming, "You get the fuck out of here" and "I'm going to knock the shit out

of you." S.D. initially testified that he could not remember Wing making any threats directed

at him or his father. However, in the 9-1-1 recording, S.D. told the operator that Wing was

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threatening to kill him, and S.D. testified about how scared he was and his fears that Wing

was going to hurt him and his father.

{¶ 6} When police arrived on the scene, they observed Denier and Wing in the

doorway. Denier came out to meet the police while Wing retreated into the Home and

attempted to close the door before he was detained by police. Denier told the police that

Wing had assaulted him.

{¶ 7} On September 7, 2022, Leo Wing was charged in the Fairfield Municipal Court

with felonious assault against Denier and with assault and aggravated menacing against

S.D. On September 9, 2022, two days after the altercation between Denier and Wing,

Denier's mother filed a complaint to have Denier evicted from the Home.

{¶ 8} A preliminary hearing was held, and the matters were bound over to the Butler

County Grand Jury. On November 8, 2022, the grand jury returned a no bill on the felonious

assault charge and certified the misdemeanor assault and aggravated menacing charges

to the municipal court. A bench trial on these charges was held on January 26-27, 2023.

{¶ 9} At trial, Wing's testimony contradicted that of other witnesses. Wing testified

he had changed the locks on the Home on September 7, 2022 at the direction of his

attorney, John Clemmons. By contrast, his friend Sean Howard, who had been doing some

work on the Home, testified that the locks had already been changed no later than

September 2, 2022. Mr. Clemmons testified that when he spoke to Wing on September 6,

2022, he did not give Wing instructions, but merely explained that if Wing intended to retake

possession of the Home due to abandonment, he should change the locks. Wing made no

indication to Clemmons that he had already done so. At trial, Wing claimed both Howard

and Clemmons were mistaken.

{¶ 10} The trial court discounted Wing's testimony as not credible, relied upon the

testimony of Denier and S.D. and found Wing guilty as charged.

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{¶ 11} Wing appealed his convictions, raising three assignments of error for our

review.

{¶ 12} Assignment of Error No. 1:

{¶ 13} APPELLANT'S CONVICTION OF ASSAULT AND AGGRAVATED

MENACING WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 14} Assignment of Error No. 2:

{¶ 15} THE STATE'S EVIDENCE WAS INSUFFICIENT TO SATISFY ITS BURDEN

TO PROVE EACH AND EVERY ELEMENT OF ASSAULT AND AGGRAVATED

MENACING BEYOND A REASONABLE DOUBT.

{¶ 16} In his first and second assignments of error, Wing claims his convictions for

both assault and aggravated menacing were against the manifest weight of the evidence

and were not supported by sufficient evidence. We disagree. For ease of discussion, we

will address these assignments of error together.

{¶ 17} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence to determine whether such evidence,

if believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt. State v. Intihar, 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-5507, ¶ 9. 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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. In other words, "the test for sufficiency requires a determination as to

whether the state has met its burden of production at trial." State v. Boles, 12th Dist. Brown

No. CA2012-06-012, 2013-Ohio-5202, ¶ 34, citing State v. Wilson, 12th Dist. Warren No.

CA2006-01-007, 2007-Ohio-2298, ¶ 33. When evaluating the sufficiency of the evidence,

this court must "defer to the trier of fact on questions of credibility and the weight assigned

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to the evidence." State v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-1966, ¶ 132.

{¶ 18} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of the witnesses, and determine whether

in resolving the 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. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147,

2014-Ohio-2472, ¶ 34. An appellate court will overturn a conviction due to the manifest

weight of the evidence only in extraordinary circumstances when the evidence presented

at trial weighs heavily in favor of acquittal. State v. Blair, 12th Dist. Butler No. CA2014-01-

023, 2015-Ohio- 818, ¶ 43.

{¶ 19} "The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380,

386 (1997). Nevertheless, although the two concepts are different, a finding that a

conviction is supported by the manifest weight of the evidence is also dispositive of the

issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150,

¶ 19. Therefore, "[b]ecause sufficiency is required to take a case to the jury, a finding that

a conviction is supported by the weight of the evidence must necessarily include a finding

of sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.

Assault

{¶ 20} Appellant was convicted of assault in violation of R.C. 2903.13(A), which

provides, "No person shall knowingly cause or attempt to cause physical harm to another

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or to another's unborn." Pursuant to R.C. 2901.22(B), "[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." "Physical harm" means "any

injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C.

2901.01(A)(3). A victim's testimony is all that is needed to "sustain a conviction for assault

in violation of R.C. 2903.13(A) if the victim's testimony proves all the elements of the

offense." State v. Lunsford, 12th Dist., Butler No. CA2019-07-116, 2020-Ohio-965, ¶ 13.

{¶ 21} Wing claims there is no evidence that he caused the scratch on S.D.'s arm

other than S.D.'s testimony, which was inconsistent and therefore not credible. Wing further

argues there was insufficient evidence that he acted knowingly, as he could not know that

grabbing S.D.'s arm would result in a scratch. Additionally, Wing suggests that he was

defending himself from Denier, and therefore his conduct with regard to S.D. was self-

defense, but no such argument was asserted at trial.

{¶ 22} It is well established that "issues not raised in the trial court may not be raised

for the first time on appeal because such issues are deemed waived." State v. Vaughn,

12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 9. Wing may not hold his self-

defense arguments in reserve for appeal, and thus evade the trial court process. Even if

such arguments had been properly preserved, "Ohio courts have long recognized that a

defendant is at fault in creating the situation giving rise to the affray when the defendant

chooses to confront the victim or knowingly go to a place where the victim will be, even

when the defendant's action was otherwise completely lawful." State v. Elam, 12th Dist.

Butler No. CA2021-08-106, 2022-Ohio-1895, ¶ 15. On September 7, 2022, Denier had not

been legally evicted and therefore still had a right to access the home. Wing and his wife

did not even file an eviction complaint until September 9, 2022, two days after the

altercation, and Denier's personal property was still at the Home. Yet, when Wing saw

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Denier arrive at the house, Wing ran inside, locked the door, and immediately attacked

Denier as soon as Denier stepped through the rear window. Wing's conduct amounted to

"self-help" in contravention of Ohio's landlord-tenant laws, and Wing was at fault in creating

the confrontation with Denier. Wing's self-defense arguments are both waived and entirely

without merit.

{¶ 23} S.D. testified that Wing reached out through the window to grab him, and that

he sustained the scratch in trying to extricate himself from Wing's grasp. To be sure, there

were some inconsistencies and discrepancies in S.D.'s testimony and between his

testimony and statements he made during the 9-1-1 call. The trial court, in evaluating S.D.'s

testimony, took into consideration that he was only 13 years old and confronted with a

frightening and rapidly escalating situation. However, other evidence corroborated S.D.'s

testimony on its important aspects. It was clear that S.D. suffered a scratch on his arm as

there was documentary evidence of it. Additionally, the 9-1-1 call recording confirms that

Wing was around S.D. when he was talking with the 9-1-1 dispatcher and making threats.

The evidence supports the trial court's conclusion that Wing acted knowingly when he

engaged in conduct that resulted in S.D.'s arm sustaining a scratch.

{¶ 24} Wing's assault conviction was supported by sufficient evidence and the

manifest weight of the evidence.

Aggravated Menacing

{¶ 25} The aggravated menacing statute, R.C. 2903.21(A), provides that "[n]o

person shall knowingly cause another to believe that the offender will cause serious physical

harm to the person or property of the other person, the other person's unborn, or a member

of the other person's immediate family."

{¶ 26} To prove aggravated menacing, the state is not required to show that the

offender is able to carry out the threat or even that the offender intended to carry out the

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threat. State v. Salinger, 12th Dist. Butler No. CA2014-10-208, 2015-Ohio-2821, ¶ 17.

However, the state must show that the victim had a subjective belief of serious physical

harm from the offender. State v. Clemons, 12th Dist. Butler No. CA2020-01-004, 2020-

Ohio-5394, ¶ 33. Evidence of a person's belief that an offender will cause serious physical

harm can be proven with circumstantial evidence. Id.

{¶ 27} Wing claims that his conviction was against the manifest weight of the

evidence and not supported by sufficient evidence because S.D. initially testified that he

could not remember if Wing had made any threats. However, the 9-1-1 recording captured

Wing's threats. Upon hearing the call again, and further questioning, S.D. testified he "was

afraid, really afraid. I thought he was going to hurt me," and that he was fearful for both his

father's life and his own.

{¶ 28} Wing's aggravated menacing conviction was supported by sufficient evidence

and the manifest weight of the evidence.

{¶ 29} Wing's first and second assignments of error are overruled.

{¶ 30} Assignment of Error No. 3:

{¶ 31} DEFENDANT WAS PROVIDED WITH INEFFECTIVE ASSISTANCE OF

COUNSEL

{¶ 32} In his third and final assignment of error, Wing argues his trial counsel was

ineffective because (1) he did not subpoena Sean Howard as a witness for the preliminary

hearing in municipal court and (2) he failed to allege a defect in the complaint and/or

indictment. Nevertheless, because Wing has failed to demonstrate any prejudice, we

disagree.

{¶ 33} The failure to subpoena witnesses does not deny a defendant effective

assistance of counsel absent a showing that the testimony of the witness would have

assisted the defense. State v. Reese, 8 Ohio App.3d 202, 203 (1st Dist. 1982); State v.

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Hunt, 20 Ohio App.3d 310, 312 (9th Dist. 1984). Here, the preliminary hearing concerned

only the felonious assault charge which was ultimately no-billed by the grand jury. It had

nothing to do with the two misdemeanor charges of which Wing was eventually convicted,

and therefore Wing suffered no prejudice from not having Howard's testimony at the

preliminary hearing.

{¶ 34} Wing also claims that trial counsel provided ineffective assistance by failing to

allege a defect in the complaint and indictment, asserting that the original aggravated

menacing complaint alleged that Denier, not S.D., was the victim. Wing attempts to support

this claim by pointing to the preliminary hearing's focus on Wing's altercation with Denier

rather than with S.D. However, as stated above, the preliminary hearing is only concerned

with whether there is probable cause that a felony has been committed for purposes of

binding the matter over to the grand jury. The misdemeanor charges were not the subject

of the hearing.

{¶ 35} Ultimately, whether or not the original complaint alleged Denier was the victim

of aggravated menacing would not have limited the grand jury from indicting Wing for

aggravated menacing against S.D.

{¶ 36} Wing's third assignment of error is overruled.

{¶ 37} Judgment affirmed.

S. POWELL, P.J., and BYRNE, J., concur.

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