State v. Leigh , 2013 Ohio 3243 ( 2013 )

[Cite as State v. Leigh, 2013-Ohio-3243.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99181
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
AUSBURN LEIGH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-556762 and CR-556285
BEFORE: S. Gallagher, P.J., Blackmon, J., and McCormack, J.
RELEASED AND JOURNALIZED: July 25, 2013
ATTORNEY FOR APPELLANT
Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian M. McDonough
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Defendant-appellant Ausburn Leigh appeals from his conviction for felonious
assault. For the following reasons, we affirm.
{¶2} The victim testified that in the early morning of November 18, 2011, she
went to a home located on West 46th Street to obtain heroin. Several people were in the
home at the time, including Leigh and Nereida Rosario. According to the victim, Leigh
approached her and took her belongings to cover the $20 she owed him for a prior heroin
purchase. After obtaining heroin from another drug dealer at the house, the victim
pleaded with Leigh to return her belongings. Leigh responded by calling her a “snitch”
because he suspected the victim was the informant underlying a raid at his home on
November 2, 2011. While the victim was crying and sitting “Indian-style” on the living
room floor, Leigh, who was six feet three inches tall and weighed 240 pounds, struck her
on the left side of her face with his right open hand.
{¶3} When questioned on direct examination how she felt after Leigh struck her,
the victim testified:
A. I kind of saw stars a little bit. Not really stars, but it really shook my
whole head and it took me aback and it split my nose open. I had blood all
over my face.
Q. Did it hurt?
A. It hurt very badly.
Tr. 454: 4-9. The victim testified further that she left the home and walked over to a
friend’s gas station located at the intersection of Fulton Road and Denison Avenue. A
police officer in the area approached the victim and asked her to explain what happened
to her. The victim testified that Leigh assaulted her and as a result of the assault, she
sustained a laceration on her nose, bruises on her left eye, and fractures to several facial
bones.
{¶4} The state also presented the testimony of the two police officers who
responded to the alleged assault, Michael Billet and Frank Ambrose. The officers
received a call about the alleged assault at 10:13 a.m. Billett testified that he approached
the victim at the gas station because she was upset and crying, and had cuts on her nose
and left cheek. The cut on her nose was bleeding, and her face was swollen.
{¶5} The police officers took the victim back to the home on West 46th Street.
They arrested Leigh but could not locate any other eyewitness to the alleged assault.
The officers then took the victim to MetroHealth for examination and treatment.
{¶6} A CT scan showed the victim had facial and orbital fractures. Specifically,
she had a left maxillary sinus anterior wall fracture and a minimally displaced left orbital
floor fracture. Her medical report documented a laceration to the bridge of her nose,
with the bleeding controlled; an abrasion on the left side of her face, with no bleeding;
and positive swelling to her left maxilla. The report also indicated that the victim did
not lose consciousness, but she had a headache and some dizziness. Her pain was
moderate and constant in severity.
{¶7} Rosario also testified on behalf of the state. She identified herself as
Leigh’s former girlfriend, and a high school acquaintance of the victim. Rosario
admitted to being with Leigh at the home on West 46th Street when the victim arrived
there on November 18, 2011. Rosario testified that she saw Leigh strike the victim once
in the face with an open hand, resulting in a cut to the victim’s nose. According to
Rosario, the victim did not have any bruising or other injuries to her left cheek or eye
following the incident.
{¶8} Rosario testified further that the victim then begged another drug dealer in the
home for some heroin. The victim “shot up” and left the home to engage in prostitution
in order to repay Leigh the $20 owed to him. According to Rosario, the victim appeared
fine, and was not crying when she left the home.
{¶9} The state submitted into evidence two photographs of the victim’s injuries.
It also submitted into evidence her medical records from MetroHealth.
{¶10} The Cuyahoga County Grand Jury issued a seven-count indictment against
Leigh as a result of the November 18, 2011 incident. The charges were as follows:
Count 1, kidnapping in violation of R.C. 2905.01(A)(4); Count 2, rape in violation of
R.C. 2907.02(A)(2); Count 3, felonious assault in violation of R.C. 2903.11(A)(1); Count
4, aggravated robbery in violation of R.C. 2911.01(A)(3); Count 5, theft in violation of
R.C. 2913.02(A)(1); Count 6, theft in violation of R.C. 2913.02(A)(1); and Count 7,
intimidation of a crime victim in violation of R.C. 2921.04(B).
{¶11} A jury trial commenced on September 26, 2012. After the state’s case,
Leigh made a motion for acquittal. The trial court denied the motion except as to Count
7, intimidation of a victim. The jury subsequently returned a guilty verdict on Count 3,
felonious assault. The jury found Leigh not guilty on the remaining counts. The trial
court sentenced Leigh to a term of eight years for the felonious assault.
{¶12} This appeal followed. In one assignment of error, Leigh challenges the
sufficiency of the evidence supporting his guilt. Specifically, Leigh argues the state
failed to present any expert medical testimony at trial to prove beyond a reasonable doubt
that the victim’s facial and orbital fractures were the proximate result of Leigh slapping
her once with an open hand. In other words, causation under the circumstances was
sufficiently complex to be beyond the knowledge and experience of the jury.
{¶13} The test as stated in Thompkins for judging the sufficiency of the evidence is
as follows: “‘sufficiency’ 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.” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). Verdicts not supported by sufficient evidence
violate a defendant’s due process rights. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct.
2211, 72 L.Ed.2d 652 (1982).
{¶14} When there is conflicting evidence “it [is] the function of the jury to weigh
the evidence and assess the credibility of the witnesses in arriving at its verdict.” State
v. Jenks, 61 Ohio St.3d 259, 279, 574 N.E.2d 492 (1991). “It is not the function of an
appellate court to substitute its judgment for that of the fact finder.” Id. It is the jurors’
minds that must be convinced rather than the reviewing court. State v. Thomas, 70 Ohio
St.2d 79, 80, 434 N.E.2d 1356 (1982).
{¶15} A court reviewing the sufficiency of the evidence must consider the totality
of all the evidence, construing all the evidence in the light most favorable to the
prosecution. State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). The
mere existence of conflicting evidence cannot make the evidence insufficient as a matter
of law. Id.{¶16} In this case, Leigh claims the state failed to provide expert medical
testimony as to the cause of the victim’s facial or orbital fractures and, therefore, failed to
prove felonious assault. The jury convicted Leigh of felonious assault in violation of
R.C. 2903.11(A)(1), which provides in pertinent part, “[n]o person shall knowingly * *
*[c]ause serious physical harm to another.” “Serious physical harm,” in turn is defined
as any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total,
or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some
temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial
suffering or that involves any degree of prolonged or intractable pain.
R.C. 2901.01(A)(5). This court has previously determined that “[t]he degree of harm that rises to the
level of ‘serious’ physical harm is not an exact science, particularly when the definition includes such
terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’” State v. Miller, 8th Dist. No. 98574,
2013-Ohio-1651,  18, citing State v. Irwin, 7th Dist. No. 06 MA 20, 2007-Ohio-4996, ¶ 37. In
Miller, the victim was knocked unconscious from a blow to the head that caused both a laceration
requiring stitches and a skull fracture. Upon those facts, this court determined that there was
sufficient evidence of serious physical harm to sustain the defendant’s conviction. Id. at  23.
{¶17} After construing the facts of this case in a light most favorable to the
prosecution, we conclude the evidence is legally sufficient to support Leigh’s felonious
assault conviction. The victim testified that as a result of the blow to her face
administered by Leigh, she sought treatment at the hospital for facial and orbital fractures,
a laceration to the bridge of her nose, an abrasion on the left side of her face, and positive
swelling to her left maxilla. The evidence also indicated that although the victim did not
lose consciousness, she had a headache and some lingering dizziness. Her pain was
moderate and constant in severity. Upon similar facts, this court has consistently found
that sufficient evidence supported the jury’s conclusion that serious physical harm
occurred as a result of the assault. See, e.g., State v. Melendez, 8th Dist. No. 97175,
2012-Ohio-2385 (finding the sufficiency of the evidence established that the victim
suffered serious physical harm as she experienced severe head and shoulder pain and had
a one centimeter laceration over her right eye); State v. Rogers, 8th Dist. No. 91380,
2009-Ohio-2252 (finding the fact that the victim required stitches to arrest the bleeding
from the laceration caused by the assault was sufficient evidence of serious physical
harm).
{¶18} Leigh’s singular argument on appeal is that the state was required to
introduce medical evidence establishing that the assault proximately caused the victim’s
injuries. Apparently, Leigh’s defense theory is that he could not have caused all the
injuries from a single “slap” to the victim’s face. When construing the evidence in a
light favorable for the prosecution, the victim’s testimony alone establishes the causal
connection between the assault and her injuries diagnosed at the hospital shortly after the
assault. In this case, no further evidence is needed to determine that the jury’s verdict is
supported by the sufficiency of the evidence. The victim’s credibility regarding the
cause of her injuries was well within the province of the jury’s determination.
{¶19} Because of the foregoing analysis, Leigh’s assignment of error is overruled.
{¶20} Judgment is affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR