State v. Bartulica , 2018 Ohio 3978 ( 2018 )

[Cite as State v. Bartulica, 2018-Ohio-3978.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-17-065
Appellee Trial Court No. 2015-CR-358
v.
George Bartulica DECISION AND JUDGMENT
Appellant Decided: September 28, 2018
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Martha S. Schultes, Assistant Prosecuting Attorney, for appellee.
Eric C. Nemecek, for appellant.
*****
JENSEN, J.
{¶ 1} George Bartulica appeals from a judgment of the Erie County Court of
Common Pleas finding him guilty of one count of assault, two counts of felonious
assault, and one count of tampering with the evidence. For the reasons that follow, we
affirm the judgment of the trial court.
{¶ 2} On September 10, 2015, the Erie County Grand Jury issued a four-count
indictment charging appellant with one count of felonious assault in violation of R.C.
2903.11(A)(1), a felony of the second degree (“Count 1”); one count of felonious assault
in violation of R.C. 2903.11(A)(3), a felony of the second degree (“Count 2”); one count
of assault in violation of R.C. 2903.13(A), a misdemeanor of the first degree (“Count 3”);
and one count of tampering with evidence in violation of R.C. 2921.12(A)(1) (“Count
4”). The charges relate to an altercation that occurred outside of Rudy’s Bar & Grill
(“Rudy’s”) in Vermilion, Ohio, during the early morning hours of August 8, 2015.
{¶ 3} The following evidence was adduced at trial by jury.
{¶ 4} Kory Herchler is a regular at Rudy’s Bar & Grill. Leanna Griebe is one of
Kory’s best friends. Late in the evening of August 7, 2015, Kory and Leanna went to
Rudy’s with two of Kory’s brothers. A short time before “last call” Kory’s brother called
a cab. Leanna went outside and sat on a bench in front of the bar to wait for it. When
Kory saw Leanna outside, he went out and sat next to her.
{¶ 5} A few minutes later, a man later identified as appellant, walked out of the
bar. Kory and appellant got into a “scuffle.” Leanna tried to break it up.
{¶ 6} At trial, Kory testified: “I don’t know what was said or what provoked me
to stand up, but I stood up.” After Leanna pushed appellant away from Kory to break up
the scuffle, Kory noticed blood on Leanna’s arm. Kory explained:
2.
[S]he turns to me, Leanna, and says, oh Kory, you know, this
horrified look on her face, and her arm is sliced open on – on her forearm.
At that rate, I, you know, grabbed her, grabbed her arm, tried to keep
her calm in that situation, although not the calmest situation.
At that rate, Derrick Dillon, the bouncer, must have, you know, seen
us out there, ran out with a towel. We wrapped her arm. My twin brother
comes out and, you know, I was holding Leanna, and then I don’t do well
in those situations, so at that rate he, you know, kind of takes over for me as
the placeholder of maker her – or making sure she stays calm. Again, I am
not calm, clearly, in these situations. So I just kind of like kind of removed
myself from it. He is then tending to her.
{¶ 7} Kory never saw a knife or any type of weapon in appellant’s hand. He
denied having any kind of weapon in his own hand during his confrontation with
appellant. Kory insisted that at the time of the altercation, he, appellant, and Leanna were
the only people outside the bar. Kory testified that he had never met appellant before the
incident nor did he recall seeing appellant inside the bar earlier that night.
{¶ 8} Leanna testified that she recalled seeing appellant come out of the bar and
say something to Kory. She could not remember exactly what appellant said, but
described his words as “like poking at someone, like some type of fighting words.” Both
Kory and Leanna stood up. Leanna explained, “[I] notice that there was going to be
some type of pushing, shoving. * * * I went to put my arm out to stop that, um, and by
3.
the time that I had turned back, didn’t even feel anything, um, Kory grabbed my arm, put
it in the air. I was bleeding all down.” Friends called 911. A few minutes later, police
arrived. An ambulance arrived shortly thereafter. They wrapped the wound and
transported Leanna to the hospital.
{¶ 9} The emergency room doctor testified that he could not tell by looking at the
wound whether it was caused by glass or a knife. However, he stated that the nurse’s
notes indicated that Leanna self-reported that she had been cut by a knife. Medical
records from Leanna’s August 8, 2015 visit to the emergency room at Amherst Health
Center, reveal the laceration on Leanna’s left forearm was 10 cm long and required 42
sutures in multiple layers of skin.
{¶ 10} At trial, Leanna testified that she had never seen or spoken to appellant
before the altercation outside the bar. She did not even recall seeing him inside.
{¶ 11} During cross-examination, Leanna indicated that she was unsure what had
cut her arm. She never saw a knife.
{¶ 12} Carolyn Ann Thayer is a bartender at Rudy’s. Thayer was behind the bar
on the evening of August 7, 2015, and into the early morning hours of August 8, 2015.
Thayer testified that she had worked at the bar for ten years, but had never seen nor met
appellant before that evening. She described appellant as “very non-threatening looking
* * * normal summertime guy.”
{¶ 13} Towards the end of the night, appellant became drunk; so drunk, that
Thayer “cut[] him off.” Thayer opined that appellant did not like being cut off. She
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recalled appellant making a derogatory comment towards her. She explained, “I kind of
joked and laughed it off, and he said another comment to me and I ended up saying, well,
my husband, who is in the Marine Corps, probably wouldn’t appreciate the way you’re
speaking to me.”
{¶ 14} Derrick Dillon is a bouncer at Rudy’s. Dillon testified that in the early
morning hours of August 8, 2015, he witnessed a man being rude to one of the
bartenders. He asked the man to leave and escorted him to the door, without incident. A
minute or two after the man left, Dillon looked out the window and noticed an altercation
in front of the bar. He went outside. Kory and the man Dillon had just escorted out the
door were pushing and shoving each other. He saw a woman, later identified as Leanna,
“try to grab Kory away to stop or to get him to not do anything.”
{¶ 15} Dillon went outside. He saw blood on the ground. Leanna was standing
nearby holding her arm. Dillon explained,
I looked back and I saw a guy with blood on his shirt and reaching or
putting something in his back pocket. Then me and Nick [West] went to
follow the guy because he was walking down the street. I got probably 10
feet away, I stopped. I told Nick to follow the guy and I went back to help
the girl. * * * She had a pretty serious cut on her arm and I had – I ran back
in to get some towels. I tied one towel around her arm, had her hold it
above her head, and I covered her arm with another two or three towels just
to try to stop the bleeding.
5.
{¶ 16} On cross-examination, Dillon explained that before he witnessed appellant
put something in his back pocket, appellant made “some type of flipping motion with his
hands.” Dillon admitted that the item in the man’s hand could have been a wallet. He
did not see a blade.
{¶ 17} Nicholas West works the door at Rudy’s. West testified that in the early
morning hours of August 8, 2015, there were almost 100 people inside the bar. At some
point, he noticed some “commotion” on the floor. The bouncer, Derrick Dillon, looked at
West and indicated that he was escorting a man1 out. According to West, the man walked
past him and out of the bar without creating a “fuss.” Moments later, however, West
heard a commotion outside. West went out and saw a man and a woman. The woman’s
arm was bleeding. When West asked the couple what had happened, the couple “pointed
to [the man he had escorted out the door] and said that he had stabbed the victim.” West
yelled into the bar, instructing his co-workers to call 911. West continued:
I saw him over there. I said, you got to come back. The cops are on
their way. You got to talk to ‘em. He said, I didn’t do anything. I said,
well, they’re saying that you stabbed her. You got to come back and talk to
‘em. At that point [the man] took off walking down the street.
West testified that he and a few other people followed the man down the street. While
everyone was walking, West saw something in the man’s hand and confronted him. As
1
When asked to identify the man that was the subject of his testimony, West identified a
person sitting in the gallery of the courtroom. He did not identify appellant.
6.
the man pushed West, something came out of the man’s hand. West and the others
continued to follow the man. One of the people with West exclaimed, “you’ve got blood
all over your shirt.” According to West, the man then took off his shirt and “threw it over
to the side and said, I don’t have anything on my shirt.”
{¶ 18} At trial, West was asked to identify what was in the man’s hand. West
responded, “I saw him with something in his hand that looked like a knife. * * * That’s
what I thought was tossed when he pushed me.” After the police arrived, West tried to
explain to the officers what had happened. According to West, “[a]t that point the
defendant came at me again and that’s when the officer tackled him.”
{¶ 19} Vermilion police officer Aaron Bolton was the first officer to respond to
the scene. Bolton testified that when he arrived, appellant was surrounded by a small
group of people down the street from Rudy’s. The jury was shown footage from Bolton’s
body camera depicting Bolton’s arrival and Bolton’s questioning of appellant, bystanders,
Kory, and Leanna. According to Bolton, none of the bystanders saw how the altercation
between appellant and Kory started, but one bystander reported that he saw appellant
close his knife and slip it into his back pocket. Another bystander reported that appellant
had been wearing a sweatshirt, the sweatshirt was covered in blood, and that appellant
had thrown the sweatshirt behind a nearby lamppost before police arrived.
{¶ 20} Bolton testified that initially, it was unclear how Leanna sustained the
injury on her arm; some at the scene suggested the injury was caused by a knife, some
indicated it was caused by a beer bottle. Bolton did not recall seeing any half broken beer
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bottles in the area. He did recall seeing “little pieces,” “shards,” and “chunks” of glass on
the ground.
{¶ 21} Bolton described the victim as “stunned” by the incident. He explained
that he and his fellow officers were unable to get pictures of the injury before she was
taken to the hospital by ambulance because the arm was wrapped in towels. Bolton did,
however, receive pictures of the injury from the victim after it was sutured. These photos
were shown to the jury.
{¶ 22} Scott Holmes is a sergeant with the Vermilion Police Department. He
handles Miro, the department’s dual purpose K-9. Sergeant Holmes testified that Miro’s
primary function is narcotics detection, but he is also certified as “patrol dog” used for
tasks such as criminal apprehension, searches, tracking, and handler protection. When
Sergeant Holmes arrived on the scene, he instructed Miro to search. Miro is trained to
search for items that have fresh human scent attached to them.
{¶ 23} Jeff Chandler is a sergeant with the City of Vermilion Police Department.
Sergeant Chandler testified that upon his arrival at the scene, he was instructed to stay
with appellant while other officers questioned witnesses. Sergeant Chandler explained
that while he was standing with appellant, a group of gentlemen stood nearby. Everyone
was talking, telling their side of the story. “Suddenly,” Sergeant Chandler explained,
“[appellant] pushed one of the gentlemen, I believe it was Nick West, pushed him
backwards. * * * At that time I took [appellant] to the ground and Sergeant Bolton helped
me and we got him cuffed and then we placed him in the cruiser.”
8.
{¶ 24} Sergeant Chandler indicated that once appellant was in the cruiser, he
questioned appellant about the knife and its location. Appellant started talking, instead,
about his version of events. Sergeant Chandler testified:
A. I get him out of the car and I ask him if he can remember or
show me where he discarded the knife at, and he says he – he was on the
corner. He said something about the sewers. We checked the sewers.
There was no knife. And then he was asking where the bar was in relation
to where he was at now, and I pointed up the road to where the bar was and
where we apprehended him at. He just said he couldn’t remember where it
was or * * * what had happened with it. So he was taken back over and
seated in the cruiser.
{¶ 25} After 10-15 minutes of searching, Miro alerted at a patch of sunflowers.
There, officers found appellant’s black handled SOG folding knife with a locking
mechanism. The blade of the knife was in a “closed position.”
{¶ 26} At trial, Sergeant Chandler showed the blade to the jury. He explained that
the knife is “referred to as a SOG Flash.” When asked to explain what the name means,
Sergeant Chandler said, “I don’t know for sure, but you can open it fast.” Next, the
prosecutor handed Sergeant Chandler the sweatshirt found at the scene. The following
dialog occurred:
Q. Do you notice anything about that sweatshirt?
A. The blood pattern.
9.
Q. What is that?
A. It looks like the shirt was used to wipe something off. * * * The
pattern on the shirt looks as if the knife possibly had been wiped off with
the shirt.
Q. Now, I know you don’t want to open this knife, Sergeant, but
I’m going to have to ask you * * * to do that. * * * Can you lay the blade of
that knife on that sweatshirt in the part that you were testifying looks like it
had been wiped off or smeared?
A. Right in there.
Q. Do you see anything about that?
A. It pretty – pretty much matches or closely resembles the blade
and part of the knife, as well as up in this area here where the knife would
be wiped, and it goes down the shirt. The pattern travels across the shirt.2
{¶ 27} During cross-examination, questioning again turned to the sweatshirt. The
following exchange occurred between defense counsel and Sergeant Chandler:
Q. All right. So let’s talk about this knife and the spatter patterns on
the sweatshirt, okay? Now, you were showing the jury how you felt that
this pattern meant to essentially almost my client wiping the blade, correct?
2
Photos of the knife and sweatshirt are included in the BCI report. A photo of the back
of the sweatshirt depicts dark stains in various locations. It is not clear from the record
what portions of the sweatshirt Sergeant Chandler was referencing in his testimony as
matching or closely resembling the blade and part of the knife.
10.
A. Resembling it, yes.
Q. Resembling that, correct? You can’t say for sure, can you? You
can’t –
A. No.
Q. – say for sure, but I want to bring your attention over here to this.
Now, you’ve identified – you’ve – you’ve come on the stand here and
you’ve said that you believe that this to be him wiping blood, correct?
A. Correct.
Q. Can you tell me what kind of spatter pattern this is?
A. I do not know.
Q. Do you know if it’s – so you can’t tell whether it’s an arterial
spatter pattern?
A. No.
Q. You cannot tell this jury because you’re not trained in that kind
of investigation as to blood splatter, correct?
A. As to spatter, correct.
***
Q. So you can’t say within any degree of reasonable scientific
certainty how this blood got there and – and what direction, directionality it
got on there –
A. No.
11.
{¶ 28} Linda Eveleth is employed by the Ohio Bureau of Criminal Investigations
(“BCI”) in the Laboratory Division. She holds a Bachelor of Science and a Master of
Science in biology. At trial, she was “identified and qualified as an expert in the
testimony concerning the DNA analysis and biological fluid analysis.” Ms. Eveleth
testified that the tip of the blade of the knife was tested. No blood was identified.
However, a DNA profile was obtained and it was consistent with Leanna’s DNA. Ms.
Eveleth further testified that a cutting from the stain on appellant’s sweatshirt was tested.
The results indicate that the stain was “probably blood” and that the DNA profile
obtained from the cutting was consistent with Leanna’s DNA.
{¶ 29} Appellant testified that he walked to Rudy’s bar with two friends around
9:30 p.m. on August 7, 2015. They played pool and had some drinks. At some point in
the evening, appellant’s friends left. Appellant stayed to have a few more drinks. When
he went to sit down at the bar, he noticed a woman a few seats down. It was Leanna.
Appellant explained, “when I ordered my drink, I also told the bartender that if [Leanna]
would like anything that I could – I would pay for it, if she wanted.” Moments later, a
man sat down next to Leanna. It was Kory. Leanna responded to appellant’s drink offer
by saying “my husband is a Marine.” Appellant explained, “I scoffed and said, oh, the
Marines.”
{¶ 30} Appellant testified that earlier in the evening, one of his friends had
informed him that Kory was “a local” that had used his status as a Marine to “instigate
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fights.” Appellant admitted that he should have known Kory was “someone to avoid in
that circumstance specifically with regard to * * * the subject of a Marine.”
{¶ 31} Appellant indicated that when he left the bar around 1:30 a.m., three men
were standing directly in front of him. He noticed Kory sitting on a bench with Leanna.
Appellant explained,
I was fishing a cigarette to have on my walk, and I noticed [the]
three men * * * stopped talking and turned and advanced towards me. One
of them was – one of them chucked a cigarette like at my feet, and I – and I
had – at that time I was pretty apprehensive as to what was going to
happen, um, because I had recognized them before, and so the only person
that I knew that I thought I could diffuse the situation, um, being that he
must know a Marine and he knows my friend, who’s also a Marine, was to
turn and ask, and the question I asked was: Do you think it’s ok to threaten
people because you are a Marine?
***
Well, at that point I was pretty apprehensive what was gonna
happen, and like I said, I made that statement, and then Mr. Herchler got
straight up and he said that he was going to kick my ass, and at that point I
– I knew that all my options basically were gone and – and that if I wasn’t
gonna get a punch this way, I was just gonna get hit this way from Kory.
13.
{¶ 32} According to appellant, as soon as Kory stood up, appellant pulled his
hands out of his pockets, his keys were in his left hand and his knife was in his right
hand. He placed both hands on Kory’s chest and tried to throw him into the group of
men. Appellant recalled falling backwards. By the time appellant stood up, Leanna and
Kory were gone, but the three men were still there. Appellant started walking away from
the men, backwards. At that point, someone walked out of the bar and stated that Leanna
had been cut. The three men went inside the bar.
{¶ 33} At trial, appellant explained that during the summer he usually kept his
knife in his pocket. He used it for his work at a marina. Appellant stated, “I knew that I
had my knife and that it was possible that I could have cut her.” He explained, “So I go
back to Rudy’s. I’m walking back to Rudy’s I’m looking at my knife and I’m like
looking at it. I open it a couple times. I look around in front of Rudy’s. I’m checking to
see if there’s anything on it. There’s nothing on it.” Then, according to appellant,
someone walked out of the bar and accused him of having a knife. More people started
coming out of the bar. Then, someone accused appellant of having blood on the back of
his sweatshirt. So, appellant took off his sweatshirt to see what people were talking
about. When he looked at the back of his sweatshirt, he noticed the blood. For a
moment, he thought that perhaps, he too was injured. Appellant soon realized he wasn’t.
{¶ 34} Appellant started walking away, again. Someone said they had called the
police. Appellant set the sweatshirt next to a lamppost. Appellant’s confusion led to
14.
frustration. By the time the police arrived, appellant tossed the knife down by some
sunflowers.
{¶ 35} At trial, appellant was adamant he did not cut Leanna:
Q. You have a lot of reasons not to tell the truth here? Why should
these people believe you?
A. Because I didn’t cut Leanna.
Q. You just said you didn’t know if you did.
A. I believe I did not cut Leanna.
Q. Did your knife ever open? Did you ever see your knife open
during the course of that evening?
A. No.
Q. Did you ever brandish your knife at anyone else?
A. No.
Q. As that mob moved towards you, did you pull that knife out,
open it up, and show it to them?
A. No.
Q. You ever stab somebody before?
A. No.
Q. Ever cut somebody with your knife before?
A. No.
15.
{¶ 36} The jury found appellant guilty on all counts. The trial court merged the
convictions for Counts 1 and 2, and the state elected to proceed to sentencing on Count 1.
Appellant was sentenced to 120 days in the Erie County Jail and placed on a five-year
term of community control. He was ordered to pay court costs and the costs of
restitution.
First Assignment of Error
{¶ 37} In his first assignment of error, appellant asserts,
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE
TO SUSTAIN THE CONVICITONS IN VIOLATION OF
BARTULICA’S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO STATE
CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
{¶ 38} “A sufficiency of the evidence argument challenges whether the state has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery
No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). When reviewing for the sufficiency of the evidence, an appellate
court’s function 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
16.
two of the syllabus. “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.” Id.{¶ 39} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(1) and (A)(2). R.C. 2903.11(A) provides that “No person, shall knowingly
do either of the following: (1) Cause serious physical harm to another * * *; (2) Cause or
attempt to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance.”
{¶ 40} In his first argument under his first assignment of error, appellant contends
there was insufficient evidence that appellant’s knife constituted a “deadly weapon.”
{¶ 41} R.C. 2923.11(A) defines “Deadly weapon” as “any instrument, device, or
thing capable of inflicting death, and designed or specially adapted for use as a weapon,
or possessed, carried, or used as a weapon.” “[A] knife is an instrument readily
identifiable as one capable of inflicting death.” State v. Watters, 8th Dist. Cuyahoga No.
82451, 2004-Ohio-2405, ¶ 36, citing State v. Curnutte, 9th Dist. Lorain Nos. 4189, 4198,
1987 Ohio App. LEXIS 8687 (Sept. 9, 1987), citing State v. Anderson, 2 Ohio App.3d
71, 440 N.E.2d 814 (1st Dist.1981); State v. Thorpe, 9th Dist. Lorain No. 3856, 1985
Ohio App. LEXIS 8884 (Oct. 9, 1985). However, knives are adaptable to many legal
uses. “In order to show appellant was carrying a deadly weapon, the state was required to
prove either (1) that the knife was designed or specifically adapted for use as a weapon,
or (2) that the defendant possessed, carried, or used the knife as a weapon.” Id. at ¶ 37.
17.
{¶ 42} Here, appellant admitted that he had the knife in his hand when he
encountered Kory in front of the bar. However, he claimed that the blade of the knife
was closed. No witness saw a knife in appellant’s hand during the confrontation.
However, the bouncer, Derrick Dillon, testified that when he walked outside to address
the individuals involved in the altercation, he saw appellant make a “flipping motion” and
put something in his back pocket. Further, appellant testified that he opened the knife
and looked for blood on the blade after the incident occurred.
{¶ 43} As is the case with many criminal convictions, the credibility of the
appellant is central to the case. “Ohio courts have held that the testimony of one witness,
if believed by the jury, is sufficient to support a conviction. The issue of witness
credibility is a matter within the province of the jury.” State v. Williams, 5th Dist. Stark
No. 2016 CA 00074, 2017-Ohio-803,¶ 54, citing State v. Jamison, 49 Ohio St.3d 182,
552 N.E.2d 180 (1990).
{¶ 44} Here, the jury was presented evidence about a fact in dispute—whether the
knife was open when he confronted Kory. While there was no witness that could
affirmatively state that the blade of the knife was open, there is circumstantial evidence
supporting that position: the wound itself, the movements leading to the wound, the
DNA on the blade of the knife, and appellant’s admission that he opened the blade to
look for blood. If the jury concluded that appellant brandished the knife while
confronting Kory, then the evidence was sufficient for a jury to conclude that the knife
was, in fact, a deadly weapon. Had the jury believed appellant’s statement that the knife
18.
remained unopened during the confrontation, that conclusion would not be possible. See
Watters at ¶ 39 (“The fact the weapon was openly carried and displayed is sufficient
evidence for a jury to determine that the knife was a deadly weapon.”). Appellant’s first
argument under his first assignment of error is not well-taken.
{¶ 45} In his second argument under his first assignment of error, appellant asserts
there was insufficient evidence that the knife caused Leanna’s injuries.
{¶ 46} Above, we addressed circumstantial evidence that the jury could have used
to infer that the knife was open. The same circumstantial evidence is relevant to the
jury’s consideration of the cause of Leanna’s injuries. “Circumstantial evidence” is
defined as “[t]estimony not based on actual personal knowledge or observation of the
facts in controversy, but of other facts from which deductions are drawn, showing
indirectly the facts sought proved.” State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d
1236 (1988), quoting Black’s Law Dictionary 221 (5th Ed.1979). “The distinction
between direct and circumstantial evidence is that direct evidence can prove a fact by
itself; circumstantial evidence proves a fact from which an inference of the existence of
another fact may be drawn.” State v. Pointer, 8th Dist. Cuyahoga No. 100608, 2014-
Ohio-4081, ¶ 7.
{¶ 47} Various witness accounts attest that the injury occurred when Leanna
pushed appellant away from Kory. If the jury believed that appellant was brandishing his
knife when he confronted Kory, the jury could infer that the knife caused Leanna’s
19.
injury. Appellant’s second argument under his first assignment of error is not well-
taken.
{¶ 48} In his third argument under his first assignment of error, appellant contends
that there was insufficient evidence that appellant acted “knowingly.”
{¶ 49} To be guilty of felonious assault, a defendant must act “knowingly.” R.C.
2903.11(A). R.C. 2901.22(B) defines the term “knowingly” by stating that “[a] person
acts knowingly, regardless of his purpose, when he is aware that the person’s conduct
will probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.”
{¶ 50} Here, the state presented evidence that appellant confronted Kory in front
of the bar while holding a knife. Appellant testified that he had both fists pushed against
Kory’s chest when he tried to throw Kory into a group of men during the confrontation.
Appellant claims that the blade of the knife was not open. If the jury found appellant’s
testimony incredible, then it could infer that the defendant acted knowingly. Cutting
someone with a knife is a natural result of pushing someone with an open knife in hand.
Appellant’s third argument under his first assignment of error is not well-taken.
{¶ 51} Appellant was also convicted of tampering with evidence in violation of
R.C. 2921.12(A)(1), which provides: “No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter,
destroy, conceal, or remove any record, document, or thing, with purpose to impair its
value or availability as evidence in such proceeding or investigation[.]”
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{¶ 52} In his fourth argument under his first assignment of error, appellant asserts
that appellant never attempted to destroy or conceal the sweatshirt or knife, he simply
discarded the items after the altercation with Kory. In support of his argument, appellant
points to his own testimony at trial. In regard to the sweatshirt, appellant explained that
he took off his sweatshirt and placed it by a lamppost he “wanted to get if off [his] hands,
but * * * know where it was.” In regard to the knife, appellant explained the he put it
“down * * * by the sunflowers” when the police arrived because he was apprehensive
about how they would react if he had the knife in his possession. Appellant argues that
both items were placed “in the plain view of others and in locations which would be
easily accessible to the police.” The sweatshirt was easily found by law enforcement.
Sergeant Chandler testified that looked for the knife, but could not find it. The K-9 unit
was able to locate the knife.
{¶ 53} Nicholas West testified that he informed appellant that the cops were on
their way because “they’re saying that you stabbed her.” This information was relayed to
appellant before he discarded the items. Thus, a jury could reasonably determine that
appellant attempted to conceal the items after he knew that an official proceeding or
investigation was likely to be instituted. Appellant’s fourth argument under his first
assignment of error is not well-taken.
{¶ 54} Construing all of the evidence in a light most favorable to the state, we find
that appellant’s felonious assault and tampering with evidence convictions were
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supported by sufficient evidence. Thus, appellant’s first assignment of error is not well-
taken.
Second Assignment of Error
{¶ 55} In his second assignment of error appellant asserts,
BARTULICA’S CONVICTIONS FOR FELONOUS ASSAULT
AND TAMPERING WITH EVIDENCE ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 56} “A manifest weight of the evidence challenge contests the believability of
the evidence presented.” State v. Wynder, 11th Dist. Ashtabula No. 2001-A-0063, 2003-
Ohio-5978, ¶ 23. When determining whether a conviction is against the manifest weight
of the evidence, the appellate court must review the entire record, weigh the evidence and
all reasonable inferences drawn from it, consider the witnesses’ credibility, and decide
whether in resolving any 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. Prescott, 190 Ohio App.3d 702, 2010-Ohio-6048, 943
N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶ 57} Above, we addressed appellant’s credibility and the circumstantial
evidence we found sufficient to support appellant’s conviction. Here, we emphasize that
credibility is an issue to be determined by the jury. An appellate court “will not second-
guess * * * jury’s witness-credibility determination unless it is clear that the jury lost its
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way and a miscarriage of justice occurred.” (Citations omitted). State v. Thompson, 3d
Dist. Seneca No. 13-17-26, 2018-Ohio-637, ¶ 109.
{¶ 58} Here, a reasonable fact finder could have found beyond a reasonable doubt
that appellant knowingly cut Leanna with a deadly weapon and tried to conceal evidence
of the assault. This is not the exceptional case in which the jury lost its way and created a
manifest miscarriage of justice. See Prescott at ¶ 48. Therefore, appellant’s second
assignment of error is not well-taken.
Third Assignment of Error
{¶ 59} In his third assignment of error appellant asserts,
THE TRIAL COURT ERRED BY PERMITTING TESTIMONY
REGARDING BLOOD SPATTER PATTERNS WITHOUT PRIOR
EXPERT QUALIFICATION AND/OR A PROPER FOUNDATION.
{¶ 60} The parties agree that Sergeant Chandler was not certified as an expert
witness in this case. The question, therefore, is whether the trial court erred when
allowed Sergeant Chandler to offer opinion testimony as a lay witness over appellant’s
objections.
{¶ 61} Evid.R. 701 provides: “If the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the witness and (2) helpful
to a clear understanding of the witness’ testimony or the determination of a fact in issue.”
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{¶ 62} Over appellant’s objection, the trial court allowed Sergeant Chandler to
testify as to what he “noticed” about the sweatshirt. He replied, “It looks like the shirt
was used to wipe something off. * * * The pattern on the shirt looks as if the knife
possibly had been wiped off with the shirt.” Sergeant Chandler then went on to lay the
blade of the knife on the sweatshirt in the area that the officer was referring to.
{¶ 63} Sergeant Chandler’s testimony is based on his personal observation. His
testimony is helpful to the trier of fact in determining whether the knife’s blade was open
or closed during appellant’s confrontation with Kory. As such, it is lay witness testimony
properly admitted under Evid.R. 701. Accordingly, appellant’s third assignment of error
is not well-taken.
Fourth Assignment of Error
{¶ 64} In his fourth assignment of error, appellant asserts:
THE PROSECUTOR’S IMPROPER STATEMENTS DURING
CLOSING ARGUMENT DEPRIVED BARTULICA OF HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
{¶ 65} In support of his argument, appellant asserts that the state made several
prejudicial statements regarding the elements of the offenses and the state’s burden of
proof during closing argument. Specifically, appellant claims that with respect to the
element of intent, the state informed the jury that “if you bring a * * * knife, and you take
it out and it’s used and it hurt’s (sic) someone * * * you’ve knowingly cause or attempted
to cause serious physical harm.” Appellant further asserts that the state improperly stated
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that appellants act of discarding the sweatshirt and knife were sufficient to convict him of
tampering with evidence. Finally, appellant contends the trial court “effectively
instructed the jury that a knife constitutes a ‘deadly weapon’ per se” when it stated:
“A knife is a deadly weapon.”
{¶ 66} Generally, “the prosecution is entitled to a certain degree of latitude in
summation.” (Citations omitted.) State v. Treesh, 90 Ohio St.3d 460, 466, 739
N.E.2d749 (2001). A reviewing court must view the “state’s closing argument in its
entirety to determine whether the allegedly improper remarks were prejudicial.” Id.,citing State v. Moritz, 63 Ohio St. 2d 150, 157, 407 N.E.2d 1268, 1273 (1980).
{¶ 67} During closing, the state summarized the testimony of each of its witnesses.
It then instructed the jury to remember the meaning of “circumstantial evidence” and how
that could be used to determine appellant’s guilt. Finally, the state addressed one of the
most difficult issues for this jury, appellant’s intent. The state asserted:
What I want you to remember, ladies and gentlemen, are a few
things. One is that the defendant took the stand and he told you a story, and
if you listen to what he said and then you put it in perspective with the other
witnesses that you heard from, he actually admits to several of the elements
of the counts, and I think your job is probably going to be, well, what if he
didn’t mean to do it? What if it was an accident? You get the jury
instructions from the Court. Your job is to put that with the facts that
you’ve heard and deliberate and – and return a verdict. But remember, if
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you bring a weapon, a knife, and you take it out and it’s used and it hurts
someone, it cuts someone, you’ve knowingly caused or attempted to cause
serious physical harm.
The state then asked the jury to return guilty verdicts on each and every count against
appellant.
{¶ 68} Before summation, the trial court instructed the jurors that statements made
during closing argument are not evidence, but an “argument as to what they believe their
evidence has shown.” After summation, the trial court properly instructed the jurors on
each and every element of the offenses charged.
{¶ 69} We have reviewed the closing argument in its entirety to determine whether
prejudicial error occurred. We conclude that the alleged statements, even if improper, did
not permeate the state’s argument so as to deny appellant a fair trial. For this reason, we
find appellant’s fourth assignment of error not well-taken.
{¶ 70} Conclusion
{¶ 71} The judgment of the Erie County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
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State v. Bartulica
C.A. No. E-17-065
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
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