State v. Green , 2021 Ohio 3260 ( 2021 )

[Cite as State v. Green, 2021-Ohio-3260.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2020 CA 00178
:
DION DAIZHON GREEN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2020 CR
1612
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 16, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KYLE L. STONE D. COLEMAN BOND
STARK COUNTY PROSECUTOR 116 Cleveland Ave. NW
Suite 600
VICKI L. DESANTIS Canton, OH 44702
ASST. PROSECUTING ATTORNEY
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
[Cite as State v. Green, 2021-Ohio-3260.]
Delaney, J.
{¶1} Defendant-Appellant Dion Daizhon Green appeals his conviction and
sentence by the Stark County Court of Common Pleas for one count of domestic violence,
a first-degree misdemeanor in violation of R.C. 2919.25(A)(D)(2). Plaintiff-Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
Indictment
{¶2} On October 19, 2020, the Stark County Grand Jury indicted Defendant-
Appellant Dion Daizhon Green on one count of felonious assault, a second-degree felony
in violation of R.C. 2903.11(A)(2)(D)(1)(a); one count of violating a protection order, a
third-degree felony in violation of R.C. 2919.27(A)(1)(B)(4); and one count of domestic
violence, a first-degree misdemeanor in violation of R.C. 2919.25(A)(D)(2). Green entered
a plea of not guilty to the charges.
{¶3} Prior to trial, the State dismissed Count Two of the indictment, violating a
protection order. The matter proceeded to a jury trial on November 16, 2020. The
following evidence was adduced at trial.
The Witness
{¶4} On July 12, 2020 at approximately 9:00 p.m., A.C. was driving south on
Cleveland Avenue in Canton, Ohio, when he looked to his left and saw “a guy just
pounding a girl, punching her.” (T. 159-160). He saw the man was holding the woman by
her hair and punching her in the head. (T. 167). A.C. pulled his car into a parking lot and
jumped out of the car. As he walked towards the man and woman, the man got into a car
and pulled away. (T. 162). A.C. asked the woman if she was okay and he described her
[Cite as State v. Green, 2021-Ohio-3260.]
as hysterical and crying. (T. 162). A.C. walked back to his car to get his cell phone when
he saw the man come back down the road, pull into the parking lot at 15-20 mph, and to
A.C.’s disbelief, hit the woman with the car. (T. 162-163). The woman had tried to move
out of the way of the car, but it sideswiped her, causing her to hit the ground and her
purse to fly into the air. (T. 165). From A.C.’s vantage point, it appeared the man
intentionally hit the woman with the driver’s front side of the car. (T. 164, 165). A.C. ran
to the woman where she was laying on the ground. (T. 163). The man drove back into the
parking lot and came towards them again when A.C. heard the man ask the woman to
get into the car, but the man then exited the parking lot and drove away. (T. 170). A.C.
got his cell phone and called 911. (T. 164). The 911 call was played at trial and A.C.
identified his voice as the caller. (T. 169). The police and an ambulance responded to the
scene.
{¶5} A.C. described the car that he saw hit the woman as a “smaller white car.”
(T. 166). He did not get a good look at the driver of the car, but described the man as a
skinny, young black male. (T. 166).
The Victim
{¶6} On July 12, 2020, Green picked C.B. up from work in his car with their two-
year old child in the backseat. C.B. and Green had known each other for a decade, were
in a relationship, and were the parents of the child. (T. 175-176). When C.B. got into the
car, C.B. said that Green slapped her and threatened to kill her. (T. 177). Green pulled
the car into a parking lot by a car wash when C.B. got out of the car, but Green pulled the
back of her pants. (T. 177) She pushed him and ran away and Green then hit her in the
back of her head, after which she walked away from him. Green then punched her in the
[Cite as State v. Green, 2021-Ohio-3260.]
head multiple times. (T. 177). She was walking away from Green when he hit her with the
front driver’s side of his car. (T. 178, 180). When she was hit with the car, she flew into
the air, but not really high, and fell on the ground. (T. 181). After she was hit the first time,
she saw Green drive the car back into the parking lot where she believed he was going
to hit her again, but he drove away. (T. 181).
{¶7} C.B. testified she suffered injuries on her side and right arm. (T. 181-182).
She declined care by the paramedics and went for medical treatment the next day but did
not get a diagnosis. (T. 182). She took off three days of work because of the pain from
her injuries. (T. 182).
{¶8} After the incident, C.B. testified that Green sent her a letter on September
25th. (T. 184). The letter was introduced as an exhibit where C.B. testified that she
recognized the handwriting in the letter as Green’s handwriting. (T. 184). The letter was
displayed for the jury and C.B. read the letter aloud:
I miss you, sorry 4 reacting out of emotion!! You kno I love you girl on the
real. To my beautiful son’s mother. * * * Forgive me beautiful I love you and
miss you so much on the real. I f’g love you [C.B.] and I’m going – I’m doing
way better now. I’ve been sober for like 3 months now!!! And I hope and
pray that you can find it in ya lil beautiful pure heart to forgive me. I’m bein
punished enough.
(T. 184-185).
The Police Report
{¶9} On July 12, 2020, Officer George Grubisic with the City of Canton Police
Department reported to an incident on Cleveland Avenue based on a call to dispatch
[Cite as State v. Green, 2021-Ohio-3260.]
about a man striking a woman with his vehicle. When he arrived on the scene, he saw
two witnesses and C.B. being treated by the paramedics. Officer Grubisic spoke with C.B.
and she told him she was in pain. (T. 195). He did not take any pictures of C.B.’s injuries.
(T. 203).
{¶10} The witness and C.B. both told Officer Grubisic that Green intentionally
stuck C.B. with his vehicle. (T. 200). One of the witnesses had taken a short video of the
man’s vehicle leaving the scene. (T. 195). The vehicle was identified as a Chevy Sonic.
(T. 195). Using the information from C.B. about the incident, Officer Grubisic checked the
LEADS system and determined that a Chevy Sonic was registered to Green. (T. 197).
Conviction and Sentence
{¶11} After the State rested, Green moved for dismissal pursuant to Crim.R. 29.
The trial court denied the motion. Green rested without presenting evidence and renewed
his Crim.R. 29 motion. The trial court denied the motion.
{¶12} After deliberation, the jury returned a verdict finding Green not guilty of
Count One, felonious assault and guilty of Count Three, domestic violence.
{¶13} The trial court held a sentencing hearing on November 20, 2020. Via
sentencing entry filed on November 30, 2020, Green was sentenced to 170 days of local
incarceration at the Stark County Jail and granted 88 days of jail time credit.
{¶14} It is from this judgment that Green now appeals.
[Cite as State v. Green, 2021-Ohio-3260.]
ASSIGNMENTS OF ERROR
{¶15} Green raises two Assignments of Error:
{¶16} “I. APPELLANT ASSERTS THE STATE FAILED TO PRESENT
SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST THE APPELLANT,
AND THE CONVICTION MUST BE REVERSED.
{¶17} “II. APPELLANT ASSERTS HIS CONVICTION WAS NOT SUPPORTED
BY THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE
REVERSED.”
ANALYSIS
{¶18} Green’s two Assignments of Errors are related and will be considered
together. Green argues his conviction for domestic violence is not supported by the
sufficiency of the evidence and is against the manifest weight of the evidence because
there was no evidence of physical harm. We disagree.
{¶19} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶20} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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
[Cite as State v. Green, 2021-Ohio-3260.]
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
Inconsistent Verdicts
{¶21} In the instant case, Green was convicted of domestic violence pursuant to
R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause
physical harm to a family or household member.” The jury acquitted Green of felonious
assault, which states, “No person shall knowingly do either of the following: * * * (2) Cause
or attempt to cause physical harm to another or to another's unborn by means of a deadly
weapon or dangerous ordnance.” R.C. 2903.11(A)(2). Green contends the domestic
violence conviction is against the sufficiency and weight of the evidence because it is
inconsistent with the acquittal on the felonious assault count. He specifically argues that
it is inconsistent that the jury found Green did not cause knowingly cause or attempt to
cause physical harm by means of deadly weapon but found that Green knowingly caused
or attempted to cause physical harm to a family member.
{¶22} This Court has previously addressed seemingly inconsistent verdicts. We
have cited the Ohio Supreme Court's decision in State v. Lovejoy, 79 Ohio St.3d 440, 683
N.E.2d 1112 (1997) at paragraph one of the syllabus, holding that “several counts of an
indictment containing more than one count are not interdependent and an inconsistency
in a verdict does not arise out of inconsistent responses to different counts, but only arises
out of inconsistent responses to the same count.” State v. Kelley, 5th Dist. Delaware No.
2006CA00371, 2007-Ohio-6517, ¶ 24 [inconsistent responses to different counts do not
create an inconsistency in the verdicts]. The jury may well have compromised in its
decision. “An inconsistent verdict may very well be a result of leniency and compromise
[Cite as State v. Green, 2021-Ohio-3260.]
by the jurors, rather than being caused by jury confusion.” State v. Fraley, 5th Dist. Perry
No. 03CA12, 2004-Ohio-4898, ¶ 15, citing United States v. Powell, 469 U.S. 57, 105 S.Ct.
471, 83 L.Ed.2d 461 (1984). See also, State v. Nesbitt, 5th Dist. Stark No. 2017CA00234,
2018-Ohio-4222, ¶ 31; State v. Carson, 5th Dist. Licking No. 18-CA-25, 2018-Ohio-5305,
¶ 45.
{¶23} The “contradictory” jury verdicts in the instant case do not affect the validity
of Green’s conviction for domestic violence. In City of Brecksville v. Malone, 8th Dist.
Cuyahoga No. 75466, 2000 WL 193232, *1 (Feb. 17, 2000), appeal not allowed, 89 Ohio
St.3d 1451, 731 N.E.2d 1139 (2000), the Eighth District Court of Appeals summarized
Ohio's approach to inconsistent verdicts:
It is well settled that the validity of a conviction does not depend on
consistency between verdicts on various counts of a multiple count
indictment when a jury finds the defendant guilty of one or more offenses
and not guilty on others even though the difference in the verdicts cannot
rationally be reconciled. United States v. Powell, [469 U.S. 57, 105 S.Ct.
471, 83 L.Ed.2d 461 (1984) ]; Dunn v. United States, [284 U.S. 390, 52
S.Ct. 189, 76 L.Ed. 356 (1932) ]; Browning v. State, [120 Ohio St. 62, 165
N.E. 566 (1929) ] (inconsistency does not arise out of inconsistent
responses to different counts, but only arises out of inconsistent responses
to the same count). In declining to vacate seemingly inconsistent verdicts,
the Ohio Supreme Court reasoned that the defendant received the benefit
of the jury's mistake, compromise or lenity with regard to the acquittal, and
[Cite as State v. Green, 2021-Ohio-3260.]
it is not unreasonable for the defendant to accept the burden of the jury's
conviction. Id.{¶24} We therefore decline in this case to vacate Green’s domestic violence
conviction simply because the jury acquitted him of felonious assault. Carson, supra,
2018-Ohio-5305 at ¶ 47 citing Nesbitt, supra, 2018-Ohio-4222 at ¶ 33, citing State v. King,
5th Dist. Guernsey No. 09 CA 000019, 2010-Ohio-2402, ¶ 34 [inconsistent verdicts do
not render conviction against manifest weight of evidence]; State v. Norman, 10th Dist.
Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 14 [defendant convicted of domestic violence
but acquitted of assault, but inconsistency does not warrant reversal of conviction]; State
v. Burnett, 5th Dist. Stark No. 2016CA00007, 2016-Ohio-7502, ¶ 18, motion for delayed
appeal denied, 148 Ohio St.3d 1441, 2017-Ohio-1427, 72 N.E.3d 656, citing State v.
Gardner, 118 Ohio St.3d 420, 2008–Ohio–2787 [verdict convicting defendant of one
crime but acquitting him of another may not be disturbed merely because the two findings
are irreconcilable]; see also, State v. Wofford, 5th Dist. Stark No. 2013CA00186, 2014-
Ohio-3122, ¶ 50, appeal not allowed, 141 Ohio St.3d 1474, 2015-Ohio-554, 25 N.E.3d
1080. As discussed below, the jury’s verdict for domestic violence is supported by the
sufficiency and manifest weight of the evidence.
Physical Harm
{¶25} Green contends there was insufficient evidence as to physical harm to
support the verdict for domestic violence. He bases his argument on the fact that the jury
found he did not knowingly cause or attempt to cause physical harm to C.B. with a deadly
weapon or dangerous ordnance so a verdict finding physical harm against a family
member should likewise be unsupported by the evidence. He argues the State did not
[Cite as State v. Green, 2021-Ohio-3260.]
produce direct evidence of physical harm to C.B. such as photographs of her injuries or
a medical diagnosis of her injuries.
{¶26} We find the evidence in this case supports a verdict for domestic violence.
While Green was charged with felonious assault, which required the jury to determine
that Green knowingly caused or attempted to cause physical harm to C.B. by means of a
deadly weapon or dangerous ordnance (to-wit: a motor vehicle), the jury found the facts
did not meet the elements of felonious assault as charged. The elements of the charge
of domestic violence, however, are different from that of the charge of felonious assault
in this case. The State was required to prove beyond a reasonable doubt that Green
caused or attempted to cause physical harm to C.B. without consideration of a deadly
weapon or dangerous ordnance.
{¶27} C.B. testified that before Green allegedly hit her with his car, he punched
her in the head multiple times. A.C. testified that he witnessed the man driving the smaller
white car, later identified as Green, holding C.B. by the hair and punching her in the head
to such an extent that A.C. was compelled to stop his car to intervene. When A.C. reached
C.B., she was hysterical and crying. Officer Grubisic testified the reports made by C.B.
and A.C. at the time of the incident were consistent that Green punched C.B. before he
allegedly hit her with his car. After the incident, Green sent a letter to C.B., asking her to
forgive him because he reacted out of emotion. The jury in this case found the testimony
of C.B. and A.C. to be credible that Green knowingly caused or attempted to cause
physical harm to C.B. by holding her by the hair and punching her multiple times in the
head, which is separate act from the incident with Green’s car.
[Cite as State v. Green, 2021-Ohio-3260.]
{¶28} Viewing the evidence in a light most favorable to the State, the State met
its burden of production so that a reasonable person could find beyond a reasonable
doubt that Green caused or attempted to cause physical harm to C.B. Further, the jury
did not lose its way to create a manifest miscarriage of justice when it found Green guilty
of domestic violence. This is not the exceptional case in which the evidence weighs
heavily against the conviction.
{¶29} Green’s first and second Assignments of Error are overruled.
CONCLUSION
{¶30} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.