State v. Henderson , 2018 Ohio 4550 ( 2018 )

[Cite as State v. Henderson, 2018-Ohio-4550.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-30
v.
JENNIFER A. HENDERSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 18CRB00344
Judgment Affirmed
Date of Decision: November 13, 2018
APPEARANCES:
Carroll R. Creighton for Appellant
Anthony M. DiPietro for Appellee
Case No. 1-18-30
PRESTON, J.
{¶1} Defendant-appellant, Jennifer A. Henderson (“Henderson”), appeals
the May 14, 2018 judgment entry of conviction and sentence of the Lima Municipal
Court. For the reasons that follow, we affirm.
{¶2} This case arises from a December 16, 2017 incident in which
Henderson allegedly struck Brooke Jamison (“Jamison”) twice in the face at a
restaurant in Lima, Ohio. (May 8, 2018 Tr. at 8-14). (See Doc. No. 2). On February
8, 2018, a complaint was filed in the Lima Municipal Court charging Henderson
with assault in violation of R.C. 2903.13(A), a first-degree misdemeanor. (Doc. No.
3). On February 26, 2018, Henderson appeared for arraignment and entered a plea
of not guilty. (Doc. No. 6).
{¶3} Following a bench trial on May 8, 2018, the trial court found Henderson
guilty of assault. (Doc. No. 11). The trial court fined Henderson $500 and
sentenced her to 30 days in jail with 20 days suspended on condition that she have
no contact with Jamison for two years and that she commit no similar offenses for
two years. (Id.). The remaining 10 days in jail were suspended on the condition
that Henderson complete 30 hours of community service prior to August 8, 2018.
(Id.). (See Doc. No. 12). On May 14, 2018, the trial court filed its judgment entry
of conviction and sentence. (Doc. No. 11).
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{¶4} Henderson filed her notice of appeal on June 1, 2018. (Doc. No. 13).
She raises one assignment of error.
Assignment of Error
Jennifer Henderson’s conviction should be overturned because it
is against the manifest weight of the evidence.
{¶5} In her assignment of error, Henderson argues that her assault conviction
is against the manifest weight of the evidence. Specifically, Henderson argues that
the trial court clearly lost its way in concluding that she assaulted Jamison because
Jamison testified that she had not met Henderson prior to the night of the alleged
incident, Jamison identified Henderson based on a single photo, rather than a lineup,
Henderson had five witnesses testify that “they did not see [Henderson] strike
[Jamison] or even approach her,” and the trial court stated that “there was no
evidence of anyone else striking the victim, despite all of [Henderson’s] witnesses
testifying that [she] did not strike [Jamison].” (Appellant’s Brief at 7).
{¶6} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the
evidence and all reasonable inferences, consider[ ] the credibility of witnesses and
determine[ ] whether in resolving 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. Thompkins, 78 Ohio St.3d 380,
387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A
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reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-
weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶7} Henderson was convicted of assault in violation of R.C. 2903.13(A).
R.C. 2903.13(A) provides, in relevant part: “No person shall knowingly cause or
attempt to cause physical harm to another * * *.” “‘Physical harm,’ as defined by
R.C. 2901.01(A)(3), ‘means any injury, illness, or other physiological impairment,
regardless of its gravity or duration.’” State v. Valladares, 3d Dist. Allen No. 1-17-
49, 2018-Ohio-1250, ¶ 19, quoting R.C. 2901.01(A)(3). “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.” R.C. 2901.22
(B). “When determining whether a defendant acted knowingly, his state of mind
must be determined from the totality of the circumstances surrounding the alleged
crime.” Valladares at ¶ 20, citing State v. Ingram, 10th Dist. Franklin No. 11AP-
1124, 2012-Ohio-4075, ¶ 22. Circumstantial evidence is frequently used to
establish culpable mental states. Id., citing Ingram at ¶ 22.
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{¶8} Henderson does not dispute the evidence concerning the underlying
elements of the assault offense of which she was convicted; rather, she disputes the
issue of identity as to the conviction. See State v. Missler, 3d Dist. Hardin No. 6-
14-06, 2015-Ohio-1076, ¶ 13. As such, we will address only the identity element
of the offense. Id., citing State v. Carter, 2d Dist. Montgomery No. 25447, 2013-
Ohio-3754, ¶ 9-12. “‘It is well settled that in order to support a conviction, the
evidence must establish beyond a reasonable doubt the identity of the defendant as
the person who actually committed the crime at issue.’” Id., quoting State v.
Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27, citing State v.
Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19 and State v. Lawwill,
12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11. ‘“[D]irect or
circumstantial evidence is sufficient to establish the identity of the accused as the
person who committed the crime.’” Collins at ¶ 19, quoting Lawwill at ¶ 11.
{¶9} At trial, the State first offered the testimony of Jamison. (May 8, 2018
Tr. at 8). Jamison testified that she was at Fat Jack’s Pizza on Spencerville Road in
Lima, Ohio on December 16, 2017 talking with a group of approximately four
individuals in the area between the restaurant seating and the bar when Henderson
approached her group and asked Jamison for her name. (Id. at 8-12). Jamison stated
that she responded with her first name and continued her conversation with the other
individuals in the group. (Id. at 12). She testified that Henderson again interrupted
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the group’s conversation and asked Jamison for her last name. (Id.). Jamison then
testified that once she gave Henderson her last name, Henderson said “that’s what I
thought” and struck her. (Id.).
{¶10} Following the first strike, Jamison asked, “What did you do that for?”
(Id.). Jamison testified that Henderson replied, “That’s for my brother, bitch” and
struck Jamison a second time. (Id.). Jamison stated that Henderson was then
escorted out of the building by her husband. (Id. at 13). Jamison testified that before
and during the physical confrontation, there was approximately two feet between
her and Henderson and that Henderson was standing directly in front of Jamison.
(Id. at 14).
{¶11} Jamison testified that one of her friends identified Henderson shortly
after the physical confrontation and informed Jamison that Henderson was the sister
of Kevin Jones (“Jones”). (Id. at 13). Jones was once married to one of Jamison’s
best friends and although Jamison and Jones had once been friendly, they no longer
spoke because Jamison did not “approve of what [Jones] did to * * * his ex-wife.”
(Id.).
{¶12} The State then introduced State’s Exhibit A, a video of the security
footage from Fat Jack’s Pizza on December 16, 2017. (Id. at 15-17). State’s Exhibit
A depicts Jamison being struck in the face twice by a woman who was immediately
escorted away by a man with an irregular gait. (State’s Ex. A). Jamison identified
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herself and Henderson in the video and also stated that it was Henderson who was
depicted striking her. (May 8, 2018 Tr. at 15-17). Jamison testified that she was
familiar with Henderson’s husband, Joel Henderson (“Joel”), and identified Joel on
the security footage as the person escorting Henderson out of the restaurant
immediately following the altercation. (Id. at 16-18). In addition, Jamison
identified Henderson twice in open court as the individual who struck her. (Id. at
10-12, 19). On cross-examination, Jamison stated that she did not personally know
Henderson and had never seen her before the night of the incident. (Id. at 23-24).
On re-direct examination, Jamison stated that she initially identified Henderson as
“Jennifer Jones,” Henderson’s maiden name. (Id. at 26).
{¶13} Next, Patrolman Justin Halker (“Patrolman Halker”), a patrolman for
the City of Lima Police Department, testified that on December 20, 2017, several
days after the incident, he went to the restaurant and viewed the security footage
from the night of the incident. (Id. at 27-28). Patrolman Halker stated that, due to
a technical issue with the restaurant’s security system, he was unable to get the
original video directly from the security system, but was able to obtain a copy of the
the video using his camera to record the security footage from the computer screen.
(Id. at 29). Patrolman Halker viewed State’s Exhibit A and testified that it was a
fair and accurate representation of the security footage he viewed at the restaurant
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on December 20, 2017 and that it had not been changed or altered in any way. (Id.
at 29-31).
{¶14} Patrolman Halker testified that in addition to viewing and preserving
the security video from the restaurant, he continued his investigation by identifying
Henderson through her Facebook page and the LEADS database. (Id. at 32).
Patrolman Halker stated that he printed a BMV photo of Henderson and provided
the photo to Jamison, who identified the individual in the photo as the person who
struck her. (Id. at 32-33). On cross-examination, Patrolman Halker conceded that
it may have been better procedure to provide Jamison with a photo lineup, but that
a photo lineup was not necessary because he received a separate phone call from
Jamison informing him that she knew her assailant and her assailant’s current name
is “Jennifer Henderson” and not “Jennifer Jones.” (Id. at 34). Patrolman Halker
testified that he attempted to contact Henderson several times via telephone and by
visiting the residence listed on her BMV registration and driver’s license, but was
unsuccessful. (Id. at 34-35).
{¶15} Finally, Patrolman Benjamin Kuney (“Patrolman Kuney”), a
patrolman for the City of Lima Police Department, testified that he was dispatched
to the Fat Jack’s Pizza on Spencerville Road in Lima, Ohio on December 16, 2017
to investigate a complaint of assault. (Id. at 36-37). He stated that when he arrived
at the restaurant, the assailant was gone but he made contact with Jamison and
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observed and photographed a bump above her right eye. (Id. at 37-38). Patrolman
Kuney testified that Jamison identified her assailant as “Jenny Jones.” (Id. at 38).
{¶16} Thereafter, the State moved to admit State’s Exhibit A and rested. (Id.
at 39). State’s Exhibit A was admitted without objection. (Id.).
{¶17} As her first witness, Henderson offered the testimony of Jones, her
brother, who testified that he was at the restaurant on December 16, 2017 with a
group of 20 to 25 people, including Henderson, following a family funeral. (Id. at
39-41). Jones testified that he left the restaurant after Henderson and did not observe
an altercation or Henderson being escorted from the bar. (Id. at 42-43). Jones
testified that he was sitting approximately 25-30 feet from the bar section and would
have noticed an altercation taking place. (Id. at 44-45). He stated that Henderson
did not tell him about any altercation she was involved in but said “[Jamison] was
running her mouth about something and that was it and they left.” (Id. at 45).
{¶18} Next, Anthony Streeter (“Streeter”) testified that he saw Henderson at
the restaurant on December 16, 2017, but he did not observe Henderson in the bar
area and did not witness any altercation. (Id. at 46-49). On cross-examination,
Streeter testified that he has known Henderson and her husband, Joel, for
approximately ten years and that Joel walks with a clubfoot. (Id. at 49-50).
{¶19} Christine Sheffield (“Sheffield”), Jones’s girlfriend, testified that she
was at the restaurant on December 16, 2017 with a group of people, including
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Henderson. (Id. at 51). Although she testified that she witnessed Henderson visiting
friends in the bar area of the restaurant and that she saw Henderson being escorted
out of the establishment by Joel, she denied observing an altercation. (Id. at 52-54).
{¶20} Jarrah Cole (“Cole”) testified that she was at the restaurant on
December 16, 2017 with a group of people, including Henderson. (Id. at 54-55).
Cole stated that she spoke to Henderson, but denied seeing her involved in an
altercation. (Id. at 55-56). Cole testified that she observed Henderson speaking
with Jamison, but did not know what they were talking about and did not see a
physical altercation. (Id. at 57-58). Cole described the conversation as “not at all”
heated and stated that when she walked past the pair, they were “laughing and
talking” and therefore Cole “figured it was just complete benign conversation.” (Id.
at 57-58).
{¶21} Finally, Joel testified that he was at the restaurant on December 16,
2017 “eating and fellowshipping with family,” including Henderson. (Id. at 60).
He denied seeing Henderson involved in an altercation with Jamison and stated that
he pulled his wife away from Jamison because Jamison was cussing at Henderson
and calling her “the ‘B’ word.” (Id.). Joel testified that when asked what happened,
Henderson informed him that Jamison spit on her. (Id.). Joel denied seeing any
physical altercation and specifically denied witnessing Henderson hit Jamison. (Id.
at 60-61). Joel testified that he and Henderson left the bar following the incident.
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(Id. at 61). On cross-examination, Joel stated that he has a clubfoot that causes him
issues with walking and prevents him from having a straight gait. (Id.).
{¶22} Thereafter, Henderson rested without offering any exhibits. (Id. at
62). The State did not present any additional witnesses on rebuttal. (Id.).
{¶23} Henderson argues that her conviction is against the manifest weight of
the evidence because Jamison testified that she never met Henderson before the
night of the incident and because Patrolman Halker showed Jamison a single photo
of Henderson, rather than a lineup. (Appellant’s Brief at 7). In addition, Henderson
argues that she presented five witnesses who testified that “they did not see
[Henderson] strike [Jamison] or even approach her” and that the trial court did not
“specifically address any credibility issues with [Henderson’s] witnesses.” (Id.).
Finally, Henderson argues that the trial court stated in its decision that there was no
evidence of anyone other than Henderson striking the victim, despite Henderson
calling witnesses who testified that Henderson did not strike Jamison. (Id.).
{¶24} However, after weighing the evidence and evaluating the credibility
of the witnesses, with appropriate deference to the trier of fact’s credibility
determination, we cannot conclude that the trier of fact clearly lost its way and
created a manifest injustice. Thus, we conclude that Henderson’s conviction is not
against the manifest weight of the evidence as the evidence weighs in favor of a
finding that Henderson was the perpetrator of the assault against Jamison.
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{¶25} First, Henderson’s argument that her conviction is against the manifest
weight of the evidence because Jamison testified that she had never met Henderson
before the night of the incident is without merit. Jamison identified Henderson
twice in open court and affirmed to the trial court that she had no doubt that
Henderson was her assailant. (May 8, 2018 Tr. at 11, 19). Jamison testified that
Henderson was standing directly in front of her and approximately two feet away
from her immediately before the physical altercation. (Id. at 14). Moreover,
Jamison and Henderson conversed prior to and following the physical altercation.
(Id. at 10-12). As such, Jamison had a clear view of her assailant and was in the
best position to identify Henderson as her attacker. Therefore, the fact that Jamison
met Henderson for the first time on the night of the incident does not weigh against
Henderson’s conviction. See State v. Prater, 71 Ohio App.3d 78, 85 (10th
Dist.1990) (holding that Prater’s conviction was not against the weight of the
evidence where the victim did not know Prater and therefore had “no reason or
motive to lie” and gave a “positive and firm” identification of Prater at trial).
{¶26} Henderson’s assertion that her conviction is against the manifest
weight of the evidence because Patrolman Halker showed Jamison a single photo,
rather than a photo lineup, is likewise unpersuasive. “[T]here is no general
requirement that the defendant must be identified in photo lineups.” State v. Miller,
11th Dist. Lake No. 2011-L-111, 2012-Ohio-3515, ¶ 53. Rather, “‘direct or
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circumstantial evidence is sufficient to establish the identity of the accused as the
person who committed the crime.’” Id., quoting Lawwill, 2008-Ohio-3592, at ¶ 11,
citing State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 16-21.
Although Patrolman Halker stated on cross-examination that it “possibly could
have” been better procedure to prepare a photo lineup, he also testified that he
believed that a photo lineup “was not necessary” because he received a separate
telephone call from Jamison identifying her attacker as “Jennifer Henderson” and
stating that she knew [of] her. (May 8, 2018 Tr. at 33-34). The additional
information received from Jamison, which corroborated Patrolman Halker’s own
investigation into Henderson’s social media accounts and known associates, led
Patrolman Halker to testify on cross-examination that he “100% believe[s] [he] had
the correct person.” (Id. at 33-34). Moreover, as discussed above, Jamison also
identified her assailant twice in open court. (Id. at 11, 19). As such, the use of the
single photo in lieu of a photo lineup does not weigh against Henderson’s
conviction. See State v. Brown, 7th Dist. Mahoning No. 16 MA 0059, 2017-Ohio-
7704, ¶ 8, 30-31 (rejecting Brown’s argument that his conviction was against the
manifest weight of the evidence where a victim who identified Brown as the
perpetrator identified Brown from a single photo, rather than a photo lineup, and
was familiar with Brown).
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{¶27} Moreover, the fact that Henderson presented five witnesses who
testified that “they did not see [Henderson] strike [Jamison] or even approach her”
and that the trial court did not “specifically address any credibility issues with
[Henderson’s] witnesses” does not mean that Henderson’s conviction is against the
manifest weight of the evidence. Likewise, the fact that the trial court stated in its
decision that there was no evidence of anyone other than Henderson striking the
victim, despite Henderson calling witnesses who testified that Henderson did not
strike Jamison, does not make Henderson’s conviction against the manifest weight
of the evidence. While Henderson called five witnesses who stated that they did not
see her strike Jamison, this fact does not make Henderson’s conviction against the
manifest weight of the evidence. By all accounts, the restaurant was busy on the
night of the incident, each of Henderson’s witnesses were at the establishment with
a large group of people following a funeral event, and none of Henderson’s
witnesses were with her for the whole evening. (May 8, 2018 Tr. at 9, 41-42, 46-
47, 51-52, 55, 59-60). Therefore, Henderson’s five witnesses were only a small
sample of the individuals who were present at the restaurant at the time of the
incident.
{¶28} Moreover, of Henderson’s witnesses, two were asked if they saw any
physical confrontation at the restaurant on December 16, 2017, and both denied
observing any confrontation, whether involving Henderson or not. (Id. at 42, 48).
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Yet, State’s Exhibit A clearly shows that a physical confrontation occurred. (See
State’s Ex. A). In fact, two of the five witnesses admitted seeing Henderson and
Jamison talking and interacting. (May 8, 2018 Tr. at 56-58, 60-61).
{¶29} Furthermore, “the weight to be given the evidence and the credibility
of the witnesses are primarily for the trier of the facts.” DeHass, 10 Ohio St.2d 230at paragraph one of the syllabus. “‘When examining witness credibility, “the choice
between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of
the finder of fact.”’” State v. White, 3d Dist. Seneca No. 13-16-21, 2017-Ohio-
1488, ¶ 50, quoting In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and
2010-L-041, 2011-Ohio-6845, ¶ 79, quoting State v. Awan, 22 Ohio St.3d 120, 123
(1986). “‘A fact finder is free to believe all, some, or none of the testimony of each
witness appearing before it.’” Id., quoting In re N.Z. at ¶ 79, citing State v. Thomas,
11th Dist. Lake No. 2004-L-176, 2005-Ohio-6570, ¶ 29. See also Missler, 2015-
Ohio-1076, at ¶ 44, quoting State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-
Ohio-2128, ¶ 68, quoting State v. Antill, 176 Ohio St. 61, 67 (1964). “A verdict is
not against the manifest weight of the evidence because the finder of fact chose to
believe the State’s witnesses rather than the defendant’s version of the events.”
State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16, citing
State v. Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28. As such, the
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trial court was able to assign whatever credibility it deemed appropriate to the
witnesses presented. Therefore, the fact that Henderson called five witnesses who
all testified that they did not see a physical confrontation between Henderson and
Jamison does not make the verdict against the weight of the evidence, even when
the trial court does not “specifically address any credibility issues with
[Henderson’s] witnesses.”
{¶30} Therefore, having weighed the evidence and all reasonable inferences,
and considering the credibility of the witnesses, we conclude that the trial court did
not clearly lose its way and create such a manifest miscarriage of justice that
Henderson’s conviction must be reversed. As the weight of the evidence supports
the finding that Henderson is the individual who assaulted Jamison, Henderson’s
conviction is not against the manifest weight of the evidence.
{¶31} Accordingly, Henderson’s assignment of error is overruled.
{¶32} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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