State v. Sims , 2021 Ohio 2334 ( 2021 )

[Cite as State v. Sims, 2021-Ohio-2334.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
LUCAS L. SIMS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 CO 0035Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2019-CR-10
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Tammie Riley Jones,
Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for
Plaintiff-Appellee
Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501, for Defendant-
Appellant.
–2–
Dated: June 30, 2021
WAITE, J.
{¶1} Appellant Lucas L. Sims appeals the judgment of the Columbiana County
Court of Common Pleas entered after a jury found him guilty of felonious assault and
aggravated menacing. On appeal, Appellant argues the trial court erred when it failed to
provide jury instructions on self-defense or a jury instruction on an inferior offense of
aggravated assault. He also argues it was error to admit social media messages.
Appellant also alleges ineffective assistance of counsel and that the verdict was against
the manifest weight and sufficiency of the evidence. For the following reasons,
Appellant’s assignments of error are without merit and the judgment of the trial court is
affirmed.
Factual and Procedural History
{¶2} Appellant and the victim, Charlie Lewis (“Lewis”), had been friends for
twenty years. On October 21, 2018, Appellant agreed to watch Lewis’ 11 year old son
for the evening while Lewis went on a date. Lewis returned to Appellant’s home at
approximately 10:00 p.m. that evening where he joined Appellant and Appellant’s
pregnant girlfriend, Linda McKinnon. Lewis’ son and Appellant’s son were playing video
games in a bedroom while the three adults remained in the living room. All three were
drinking alcohol and Appellant and McKinnon were also smoking marijuana.
{¶3} At some point, Appellant asked Lewis if he wanted to have sex with
Appellant and his girlfriend. McKinnon said she was interested but Lewis declined.
McKinnon said she was tired and eventually all three ended up in a bedroom together.
McKinnon was lying on the bed and Appellant and Lewis were sitting on the bed. All three
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remained fully clothed. Appellant left the room briefly to use the restroom and McKinnon
told Lewis the three of them were going to have sex. Lewis testified that he, “told her that
she was nuts and I smacked her on the butt and told her that it would not be a good idea.”
(8/20/19 Tr., p. 313.) Apparently, McKinnon began to fall asleep and Appellant testified
that before he actually left for the restroom, he saw Lewis groping McKinnon. (8/20/19
Tr., p. 384.) Appellant testified that on his return from the restroom, McKinnon woke up
and he heard her tell Lewis to stop touching her. (8/20/19 Tr., p. 384.) At that point
Appellant hurried into the bedroom and began hitting Lewis, striking him in the face
several times. As Lewis stood up, Appellant struck him in the ribs causing Lewis to fall to
his knees. Appellant continued to strike Lewis in the ribs, puncturing a lung and rendering
Lewis unable to easily breathe. (8/20/19 Tr., p. 315.) Once Appellant finally stopped his
assault, Lewis retrieved his phone and tried to call for an ambulance, but Appellant took
his phone. Appellant struck Lewis a few more times before Lewis was able to reach the
bathroom. Appellant followed Lewis to the bathroom and pulled him back into the
bedroom. (8/20/19 Tr., pp. 316-317.) Lewis was bleeding from his nose and eyes. At
that point, the children ran out of the nearby bedroom and Lewis asked his son to call an
ambulance. Appellant told the children to go back in the bedroom. When Lewis told
Appellant he was going to vomit, Appellant let him leave the residence. Lewis made his
way to a neighboring house where his daughter’s aunt, Krista Pipes, resided. He knocked
on her door and then collapsed on the front porch. Pipes testified that she called an
ambulance and was worried that Lewis was going to die on her porch. (8/20/19 Tr., p.
199.) The ambulance transported Lewis to the East Liverpool City Hospital where he was
interviewed by police officers before being transferred to a hospital in Youngstown. Lewis
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was treated for broken ribs, a punctured lung, a broken nose and bruising to his eyes,
face and head. (8/20/19 Tr., pp. 319, 322.)
{¶4} After the incident, Appellant called Lewis multiple times to apologize and
ask Lewis not to press charges against him. (8/20/19 Tr., p. 323.) McKinnon contacted
Lewis on Facebook Messenger (a private messaging component of Facebook) telling him
she was sorry for what had happened. (8/20/19 Tr., p. 324.) In December of 2018
Appellant used McKinnon’s Facebook profile to send Lewis a message telling Lewis that
he was going to kill him. (8/20/19 Tr., p. 325.) Appellant also sent audio messages
through Facebook messenger threatening him. Lewis shared both the texts and audio
messages with the police. (8/20/19 Tr., pp. 325-327.) In May of 2019 Lewis called police
to his residence when he thought he heard someone entering his home because he
remained concerned for his safety based on threats made to him by Appellant. (8/20/19
Tr., pp. 327-328.)
{¶5} On January 9, 2019, the Columbiana County Grand Jury returned a secret
indictment against Appellant. Appellant was charged with one count of felonious assault
in violation of R.C. 2903.11(A)(1), a second degree felony; and one count of aggravated
menacing in violation of R.C. 2903.21(A), a first degree misdemeanor. A jury trial was
held on August 19, 2019. The following day, the jury returned a verdict of guilty on both
counts. That same day the trial court sentenced Appellant to seven years in prison on
the felonious assault charge and 180 days for aggravated menacing, both to run
concurrently, for a total stated prison term of seven years.
{¶6} Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
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The trial court abused its discretion when it refused to provide jury
instruction for self-defense, in violation of Sim's [sic] right to due process
under the Fourteenth Amendment to the United States Constitution and
Article I, Section 16 of the Ohio Constitution.
{¶7} In his first assignment of error Appellant contends the trial court erred in
failing to instruct the jury on self-defense. Appellee responds that the evidence presented
at trial was legally insufficient to enable Appellant to raise self-defense and that, even if
there was sufficient evidence, the incident in question occurred in October of 2018. Thus,
the statutory amendment that shifted the burden of proof to the prosecution does not
apply.
{¶8} Generally, jury instructions are matters left to the sound discretion of the
trial court. State v. Guster, 66 Ohio St.2d 266, 271, 421 N.E,2d 157 (1981). When
reviewing a trial court’s decision not to instruct a jury in a certain manner, an appeals
court applies an abuse of discretion standard. State v. Lewis, 7th Dist. Mahoning No. 07
MA 199, 2009-Ohio-5075, ¶ 36. An abuse of discretion connotes more than an error of
judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Yashphalt Seal Coating, LLC v. Giura, 7th Dist. Mahoning No. 18 MA 0107, 2019-Ohio-
4231, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). The trial court must provide the jury with all relevant and necessary instructions
in order for the jury to weigh the evidence and discharge their duty as finder of fact. State
v. Curtis, 7th Dist. Belmont No. 18 BE 0007, 2019-Ohio-499, 129 N.E.3d 961. Moreover,
witness credibility is within the jury’s purview and determinations regarding conflicting
testimony and weight of the evidence are “primarily for the trier of fact.” State v. Italiano,
Case No. 19 CO 0035–6–
7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-1283, ¶ 15 quoting State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. However, a trial
court is not required to give the jury an instruction requested by a defendant if the
evidence offered at trial is “legally insufficient” to support the issue raised in the
instruction. State v. Barnd, 85 Ohio App.3d 254, 259, 619 N.E.2d 518, 521 (1993).
Evidence is sufficient where the claimed defense raises a reasonable doubt of a
defendant’s guilt. State v. Melchoir, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978). Where
the evidence constitutes “mere speculation,” it is insufficient to raise the defense and the
requested instruction is not warranted. Id.{¶9} Self-defense, if proved, relieves the defendant of criminal liability for the
force used. There are two types of self-defense in Ohio: (1) defense against danger of
bodily harm, also known as non-deadly force self-defense; and (2) defense against
danger of death or great bodily harm, or deadly force self-defense. Struthers v. Williams,
7th Dist. Mahoning No. 07 MA 55, 2008-Ohio-6637, ¶ 13. Appellant was convicted of
felonious assault in violation of R.C. 2903.11(A)(2)(D). Self-defense is available as a
defense to felonious assault. Prior to March 28, 2019, self-defense was an affirmative
defense which placed the burden on the defendant to prove each element by a
preponderance of the evidence. On March 28, 2019, a new law went into effect in Ohio
placing the burden on the prosecutor, not the defendant, to prove the accused did not act
in self-defense. The self-defense statute, R.C. 2901.05, enacted as a result of
Am.Sub.H.B. 228, was amended to shift the burden of proof to the state to “prove beyond
a reasonable doubt that the accused person did not use the force in self-defense, defense
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of another, or defense of that person's residence, as the case may be.” R.C.
2901.05(B)(1).
{¶10} Under the amended statute, when an accused raises self-defense, in order
to convict an accused of felonious assault, the state must prove beyond a reasonable
doubt that the accused: (1) was at fault in creating the situation giving rise to the incident;
(2) did not have a bona fide belief that he was in imminent danger of death or great bodily
harm and that his only means of escape from such danger was the use of force; and (3)
violated the duty to retreat or avoid danger. Italiano at ¶ 18, citing State v. Jackson, 8th
Dist. Cuyahoga No. 108493, 2020-Ohio-1606, ¶ 17.
{¶11} Appellant argues that he acted in self-defense and in defense of McKinnon
during this incident. The jury was presented with two different versions of the events.
Appellant testified that he became seriously provoked after he saw Lewis grope
McKinnon, provoked to such an extent that he feared for their safety and was required to
defend himself and McKinnon. However, our review of the evidence presented at trial
reveals no evidence of serious provocation by Lewis. First, Appellant invited Lewis into
his home after he arrived to pick up his son. It was Appellant who asked Lewis if he
wanted to engage in sexual intercourse with McKinnon. (8/20/19 Tr., p. 312.) After the
three ended up in the bedroom, Appellant testified that he watched Lewis grope McKinnon
but proceeded to leave the bedroom and use the restroom. As he returned, Appellant
again saw Lewis groping McKinnon and heard her tell him to stop. At this point, Appellant
entered the room and began his assault on Lewis. Appellant testified that he was now
angry, and that it was necessary to defend McKinnon. However, according to Lewis, even
when Lewis fell to his knees Appellant continued to assault him. Appellant also prevented
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Lewis from using his phone to call 911. Further, Lewis attempted to leave the bedroom
after the assault began. When he reached the bathroom Appellant pulled him back into
the bedroom in order to continue the beating. It was only when Lewis told him he was
going to vomit that Appellant let Lewis leave the residence. Appellant maintains that it
was not until his return from the restroom and again seeing Lewis grope McKinnon that it
became necessary to defend her, despite acknowledging that he had already noticed
Lewis touching McKinnon prior to leaving the bedroom. The jury clearly did not find
Appellant credible and did not believe his version of events. Regardless of this obvious
credibility problem, the evidence as offered at trial is legally insufficient to support self-
defense. Appellant admitted that he saw Lewis groping McKinnon and yet left the room.
It was not until his return that he began to assault Lewis. His assault continued well
beyond mere “protection” of McKinnon and was prolonged by Appellant when he
prevented Lewis from leaving and pulled him back into the fray. This record reveals that
Appellant’s conduct did not comport with a claim that he was in fear of bodily harm to
himself or others, required for a self-defense claim.
{¶12} Appellant argues that after he raised self-defense, the state was required to
prove he was not acting in self-defense beyond a reasonable doubt under the amended
statutory burden. The question of whether the trial court was required to give a self-
defense jury instruction consistent with the changes to H.B. 228 is a legal issue that we
review de novo. State v. Kormos, 2012-Ohio-3128, 974 N.E.2d 725, ¶ 12 (12th Dist.). It
is clear from the record that there was insufficient evidence presented to raise the issue
of self-defense under either the statute as it previously existed or as amended under H.B.
228. Hence, the issue of burden-shifting in the instant matter is moot. Barnd at 259.
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{¶13} As the record reflects, Appellant’s first assignment of error is without merit
and is overruled.
ASSIGNMENT OF ERROR NO. 2
The trial court abused its discretion when it refused to provide jury
instruction for aggravated assault in violation of Sim's [sic] right to due
process under the Fourteenth Amendment to the United States Constitution
and Article I, Section 16 of the Ohio Constitution.
{¶14} This assignment is closely related to the first assignment of error. Appellant
contends here that the trial court erred when it did not instruct the jury on the inferior
degree offense of aggravated assault.
{¶15} Again, trial courts are required to give jury instructions which are relevant
and necessary for the jury to weigh the evidence and discharge their duty as the finder of
fact. State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the
syllabus. Although aggravated assault is an inferior degree offense of felonious assault,
instruction on an inferior offense is only required when the evidence presented at trial
reasonably supports both an acquittal on the crime charged and a conviction on the
inferior offense. State v. Carter, 89 Ohio St.3d 593, 600, 734 N.E.2d 345 (2000). In
determining whether to include an instruction on an inferior offense, the trial court must
consider both the state’s and the defense’s evidence, and must view that evidence in a
light most favorable to the defendant. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-
2282, 827 N.E.2d 285, ¶ 37. The court must find sufficient evidence to allow a jury to
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reasonably reject the greater offense and find the defendant guilty on the inferior degree
offense. State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397, ¶ 84.
{¶16} The jury found Appellant guilty of second-degree felonious assault. The
relevant statute provides:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's unborn;
(D)(1)(a) Whoever violates this section is guilty of felonious assault. Except
as otherwise provided in this division or division (D)(1)(b) of this section,
felonious assault is a felony of the second degree.
R.C. 2903.11(A)(1)(D).
{¶17} R.C. 2903.12(A) defines aggravated assault:
No person, while under the influence of sudden passion or in a sudden fit
of rage, either of which is brought on by serious provocation occasioned by
the victim that is reasonably sufficient to incite the person into using deadly
force, shall knowingly:
(1) cause serious physical harm to another or to another's unborn;
(2) cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance, as defined
in [R.C. 2923.11].
Case No. 19 CO 0035– 11 –
{¶18} Aggravated assault is an inferior degree offense of felonious assault
because it contains elements identical to those that define felonious assault except for
the additional mitigating element of serious provocation. State v. Deem, 40 Ohio St.3d
205, 210, 533 N.E.2d 294 (1988). If the defendant presents sufficient evidence of serious
provocation at trial, an instruction on aggravated assault must be given. Id. A serious
provocation is defined as extreme stress reasonably sufficient to incite the defendant into
using deadly force. State v. Holcomb, 7th Dist. Columbiana No. 18 CO 0039, 2020-Ohio-
561, ¶ 30, citing Deem, paragraph five of the syllabus.
{¶19} Appellant alleges here that he was seriously provoked by Lewis. A review
of the evidence presented at trial does not support this contention. Appellant testified that
he watched Lewis grope McKinnon but left the room anyway. (8/20/19 Tr., p. 384.) Thus,
he testified that he was not provoked enough to remain in the room and defend McKinnon.
Only as he returned and again saw Lewis touch McKinnon and heard her tell him to stop
did he enter and begin assaulting Lewis. (8/20/19 Tr., p. 384.) Captain Darin Morgan of
the East Liverpool Police Department testified that Appellant called him on October 23,
2018 because he heard that Captain Morgan wanted to speak with him. Captain Morgan
invited Appellant to the station to be interviewed, but Appellant kept talking:
At one point in that conversation he told me that he was standing in the
hallway, watching to see what was going to happen in the bedroom. He
said he wanted to see if [McKinnon] was going to tell him to stop or don’t.
(8/20/19 Tr., p. 271.) McKinnon was also interviewed by Captain Morgan on October 24,
2018. She reported that Lewis had inappropriately touched her over her clothing. He
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testified, “[f]rom the conversation I had with her, she didn’t think that was a big deal.”
(8/20/19 Tr., p. 278.) The only evidence to support provocation was offered by Appellant,
who also alleged that Lewis hit him first:
Mad? I was provoked. I was angry. I was mad he was touching her. I was
mad he hit me. I was protecting her, protecting myself and I was in my own
household. Why wouldn’t I do that? Anyone of you guys would be mad and
upset.
(8/20/19 Tr., pp. 385-386.)
{¶20} The evidence presented at trial is not sufficient to establish that Appellant
was seriously provoked by Lewis’ conduct. McKinnon testified that Lewis’ behavior was
not significant. Appellant himself testified that he watched Lewis touch McKinnon but left
the room without being provoked. In the absence of sufficient evidence to support serious
provocation, the trial court was not required to instruct the jury on the inferior offense of
aggravated assault.
{¶21} Appellant’ second assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
The trial court erred when it admitted irrelevant and prejudicial evidence,
denying Sims [sic] right to due process and a fair trial.
{¶22} Appellant contends the evidence of other acts presented through use of
Facebook Messenger evidence should have been excluded. Appellant claims this
evidence was irrelevant under Evid.R. 401, was not admitted for a proper purpose under
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Evid.R. 404(B), and any probative value of this evidence was outweighed by the danger
of unfair prejudice, requiring exclusion under Evid.R. 403(A). The state argues the
evidence was relevant, was admitted for a proper purpose, and the probative value of the
evidence was not outweighed by any unfair prejudice. Both the Facebook Messenger
text and audio messages were admitted into evidence at trial were sent to Lewis in early
December of 2018, just over a month after the incident at issue occurred.
{¶23} A trial court’s decision on the admission of evidence is reviewed for an
abuse of discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 19. Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Evid.R. 401. R.C. 2945.59 governs “other acts”
evidence and provides:
In any criminal case in which the defendant's motive or intent, the absence
of mistake or accident on his part, or the defendant's scheme, plan, or
system in doing an act is material, any acts of the defendant which tend to
show his motive or intent, the absence of mistake or accident on his part, or
the defendant's scheme, plan, or system in doing the act in question may
be proved, whether they are contemporaneous with or prior or subsequent
thereto, notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant.
{¶24} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in conformity
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therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Evid.R. 404(B). This list of exceptions is not exclusive. Morris, ¶ 18. The rule
does not exclude evidence which is intrinsic to the crime for which the defendant is being
tried. State v. Smith, 49 Ohio St.3d 137, 139-140, 551 N.E.2d 190 (1990). Other acts
are admissible if “they are so blended or connected with the one on trial as that proof of
one incidentally involves the other; or explains the circumstances thereof; or tends
logically to prove any element of the crime charged.” State v. Roe, 41 Ohio St.3d 18, 23,
535 N.E.2d 1351 (1990), citing State v. Wilkinson, 64 Ohio St.2d 308, 317, 415 N.E.2d
261 (1980), quoting United States v. Turner, 423 F.2d 481, 483-484 (7th Cir.1970). Thus,
a court can admit evidence of other acts which may comprise the immediate background
of, and are inextricably linked to, an act which forms the foundation of an offense charged.
State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994).
{¶25} Before addressing the merits of this assignment, however, we note that
Appellant did not preserve this issue for appeal. At trial, the state submitted Exhibit 3
which were Facebook Messenger text messages. The state also submitted Exhibit 4,
which were Facebook Messenger audio messages. Appellant contends that trial counsel
objected to the Facebook Messenger evidence. However, a review of the record reveals
defense counsel stated it had “no objection” when the state moved for admission of
Exhibit 3 and Exhibit 4. (8/20/19 Tr., pp. 283, 286.) Therefore, the trial court admitted
both Exhibits without objection. After admission, however, the state began to play the
audio messages. It was at this point that defense counsel asked to approach the bench:
COUNSEL: Your honor, approach the bench?
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THE COURT: Okay. You may.
PROSECUTION: Before I play those?
COUNSEL: Uh-huh.
THE COURT: Is this on the record, Mr. Wise?
***
COUNSEL: My client is in a position to plead guilty to the aggravated
menacing. He would like to plead guilty to that outside the hearing of the
jury.
PROSECUTION: Your Honor, we’ve come this far. I would like to continue
here. And I think this dovetails into the nature of the relationship that’s been
ongoing from the time of this incident.
THE COURT: All right. Well, if he wishes to plead guilty, we’ll take that up
during a recess or a break. I’m not going to interrupt the state’s case at this
point to allow it. Thank you. So, Ms. Jones, you can continue.
COUNSEL: At this point then I’m going to object to the playing of these.
THE COURT: Thank you. So noted.
(8/20/19 Tr., pp. 286-287.)
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{¶26} Not only did Appellant fail to object to the actual admission of the Facebook
exhibits at trial, he also failed to challenge the admissibility of the evidence when the issue
was raised in the state’s motion in limine. The state wanted to offer into evidence
threatening Facebook messages Appellant directed toward a second male trying to
contact McKinnon. These second messages were included in discovery along with the
messages directed to Lewis. The trial court heard arguments outside of the jury prior to
trial on the state’s motion. At that hearing defense counsel objected to the Facebook
messages regarding the second male but did not raise any objection to the Facebook
messages that were directed toward Lewis. The trial court denied the state’s motion and
did not allow the admission of the Facebook messages directed toward the second
individual. Thus, the state argues that Appellant never objected to the Facebook
messages at the hearing on the motion in limine nor during trial, and only challenged the
admissibility of the evidence after admission, immediately before they were played for the
jury.
{¶27} It is well-settled that in order to avoid waiver, a party must object to the
alleged trial error, preserving the matter for appellate review. State v. Murphy, 91 Ohio
St.3d 516, 532, 747 N.E.2d 765 (2001). Accordingly, we review the instant challenge to
the admission of the evidence under a plain error standard. State v. Jones, 91 Ohio St.3d
335, 347, 744 N.E.2d 1163 (2001). Pursuant to Crim.R. 52(B), in the absence of an
objection, we may review plain errors or defects which affect a substantial right.
“Generally, however, notice of plain error under Crim.R. 52(B) must be taken with caution
and only under exceptional circumstances, to prevent a miscarriage of justice.” Italiano,
supra, at ¶ 24.
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{¶28} Appellant contends the Facebook Messenger evidence is irrelevant and
does not satisfy a permissible purpose, claiming that prior to their admission defense
counsel objected. However, as noted above, defense counsel stated on the record that
he had no objection. Appellant’s counsel raised no issue with this evidence until the
moment when the already admitted audio messages were to be played for the jury. Even
then, there was no actual objection lodged. Instead, defense counsel announced that
Appellant was ready to plead guilty to the aggravated menacing charge, apparently in an
attempt to avoid having the messages played for the jury. The trial court ruled that
Appellant could enter a plea during recess, but that the state’s case was not going to be
interrupted by a partial plea. The audio messages were then played for the jury.
Appellant left three audio messages for Lewis which were extremely explicit and
threatening. The first was largely inaudible. In the second, Appellant accuses Lewis of
having contact with McKinnon and says “I’m gonna kill your f**kin little b*tch-ass.” In the
third message, Appellant again threatens Lewis, saying “[j]ust wait I’m gonna kill you[.]”
(State’s Exhibit 4.)
{¶29} At trial, Captain Morgan testified that he could identify Appellant’s voice on
the messages and that “the girl” referred-to was McKinnon. He also testified that Lewis
was frightened and had acknowledged that “the girl” referred to was McKinnon. Lewis
was worried that “something bad was going to happen to him.” (8/19/19 Tr., p. 288.)
{¶30} The threshold question in other acts evidence is whether the evidence is
relevant. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 24;
Evid.R. 401. The question of relevance in light of Evid.R. 404(B) involves two inquiries:
(1) whether the proffered evidence is relevant for the particular purpose for which it is
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offered; and (2) whether it is relevant to an issue that is actually in dispute. Hartman,
¶ 26-27. Here Appellant concedes that the Facebook messages were relevant to the
aggravated menacing charge. He argues, however, that once Appellant agreed to enter
a guilty plea on the aggravated menacing charge, the evidence was no longer relevant.
However, Appellant had not actually entered a guilty plea at the point at which the
messages were played for the jury, and defense counsel had already stated for the record
that the defense had no objection to the admission of the messages. Therefore, the
charge of aggravated menacing was still before the jury and the matter was still in dispute.
{¶31} Appellant was charged with aggravated menacing under R.C. 2903.21(A),
which provides:
No 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. In addition to any other basis for the other person's belief 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, the other person's belief may be based on words or
conduct of the offender that are directed at or identify a corporation,
association, or other organization that employs the other person or to which
the other person belongs.
{¶32} The threatening messages highlight the menacing nature of Appellant’s
attitude towards Lewis and his intent to cause Lewis to believe he would cause additional
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serious physical harm. It supports motive and background, as Lewis informed police of
the ongoing threats from Appellant and, according to other testimony, Lewis actually was
afraid that Appellant was going to again harm him after the initial assault.
{¶33} Finally, the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice, or of confusing the issues, or misleading
the jury. While the audio messages were certainly prejudicial to Appellant insofar as they
called into question his assertion that he assaulted Lewis in self-defense, the evidence
was not unfairly prejudicial.
{¶34} Accordingly, Appellant’s third assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 4
Sims' conviction was based on insufficient evidence as matter of law and
was against manifest weight of the evidence.
{¶35} In his fourth assignment of error Appellant challenges both the weight and
sufficiency of the evidence.
{¶36} “Weight of the evidence focuses on ‘the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the
other.’ ” (Emphasis deleted.) Thompkins, at 387. A review of the manifest weight of the
evidence focuses on the state's burden of persuasion and the believability of the evidence
presented. State v. Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34. A
reviewing court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
Case No. 19 CO 0035– 20 –
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 484 N.E.2d 717 (1st Dist.1983).
{¶37} A reversal under a manifest weight review in a criminal matter should be
granted only “in the exceptional case in which the evidence weighs heavily against the
conviction.” State v. Andric, 7th Dist. Columbiana No. 06 CO 28, 2007-Ohio-6701, ¶ 19,
citing Martin at 175. Determinations regarding witness credibility, conflicting testimony,
and the weight to give the evidence “are primarily for the trier of the facts.” State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 995, ¶ 118, quoting State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact
is in the best position to weigh all evidence and judge the witnesses’ credibility by
observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). When presented with two
fairly reasonable versions of the evidence or with two conflicting stories of the events,
neither of which can be ruled out as unbelievable, we will not choose which one is more
credible. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶38} Sufficiency of the evidence is a question of law relating to the legal
adequacy of the evidence. State v. Saffell, 7th Dist. No. 19 JE 0021, 2020-Ohio-7022,
¶ 10, citing Thompkins at 386. This standard is used to determine whether the case may
go to the jury or whether the evidence is sufficient, as a matter of law, to support the jury
verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In determining
whether a judgment is supported by sufficient evidence, this Court’s inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier
Case No. 19 CO 0035– 21 –
of fact could have found the essential elements of the crime were proven beyond a
reasonable doubt. State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
{¶39} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(1) which provides, “[n]o person shall knowingly do either of the following: (1)
Cause serious physical harm to another or to another’s unborn[.]”
{¶40} R.C. 2901.01(A)(5) defines “serious physical harm” and reads:
(5) “Serious physical harm to persons” means 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.
{¶41} According to Appellant the only evidence of injury was Captain Morgan’s
testimony that “he saw a black eye and some marks on Lewis on the day of the incident”
and Lewis’ testimony about his injuries. (Appellant’s Brf., p. 4.) Appellant contends that,
Case No. 19 CO 0035– 22 –
because the state did not present expert physician testimony regarding the extent of
Lewis’ injuries and whether the injury was serious, there was insufficient evidence to send
the matter to a jury on the felonious assault charge.
{¶42} “Where injuries to the victim are serious enough to cause him or her to seek
medical treatment, a jury may reasonably infer that the force exerted on the victim caused
serious physical injury as defined by R.C. 2901.01(A)(5).” State v. Wilson, 8th Dist. No.
77115, 2000 WL 1369868, *5. (Citations omitted.)
{¶43} Contrary to Appellant’ assertion, the record is replete with evidence of the
serious nature of Lewis’ injuries. The state presented testimony from multiple witnesses
regarding the extent of these injuries. Pipes testified that she answered her door to find
Lewis laying on her front porch covered in blood and having difficulty breathing. (8/19/19
Tr., pp. 198-199). She was afraid he would die. Responding Officer Steven Adkins
testified that he arrived on the scene and viewed Lewis in the ambulance. He followed
the ambulance to East Liverpool City Hospital. He testified that he was personally familiar
with Lewis, but due to the extent of Lewis’ facial injuries, Officer Adkins could not
recognize him. (8/19/19 Tr., p. 220). The state also submitted into evidence multiple
photographs of Lewis that Adkins had taken at the hospital the day after the incident which
showed multiple facial injuries, including: a black eye, a flattened, swollen nose; and a
bruised ear. (8/19/19 Tr., pp. 223-225.) Other photographs included depictions of Lewis’
bloody clothing and of Lewis’ hands, which showed no abrasions or bruises, indicating
that he was not combative during the altercation. (8/19/19 Tr., pp. 225-226). Adkins also
testified that Lewis was struggling to breathe and he was concerned that Lewis might not
survive his injuries. (8/19/19 Tr., pp. 228-229). Captain Morgan interviewed Lewis at
Case No. 19 CO 0035– 23 –
home the day after the incident once Lewis had been released from the hospital. Lewis
told Captain Morgan that he had suffered a punctured lung, broken nose and bruising of
his head. (8/19/19 Tr., pp. 262-263). He also testified that he continued to have trouble
breathing and sore ribs for several months after the incident. (8/19/19 Tr., p. 323). Finally,
Lewis testified as to his injuries, including a broken nose, broken ribs and punctured lungs,
as well as a split eye and multiple head bruises. (8/20/19 Tr., pp. 316, 322.)
{¶44} In addition to testimony, the state presented Lewis’ medical records
obtained by Captain Morgan from the treating hospitals. The records were consistent
with all of the witness testimony. Appellant contends that without medical expert
testimony regarding the injuries, there was insufficient evidence Lewis sustained serious
physical injury. Appellant cites no authority that requires expert testimony on serious
physical harm. This is because the state need not present expert medical testimony to
establish the element of serious physical harm. “Proof of ‘serious physical harm’ does
not require expert medical testimony; rather, it is an element, like any other, that the state
must prove beyond a reasonable doubt.” State v. Brown, 5th Dist. No. 2018CA00120,
2019-Ohio-3486, ¶ 29. (Citations omitted.)
{¶45} This record reveals the witness testimony and medical records constitute
compelling evidence of the extent and nature of the serious physical harm sustained by
Lewis. Viewing the probative evidence and any inferences to be drawn from this evidence
in a light most favorable to the state, the record reflects that any rational trier of fact could
have found proof of each element of felonious assault beyond a reasonable doubt, and
sufficient evidence was presented to support Appellant’s convictions.
Case No. 19 CO 0035– 24 –
{¶46} After review of the entire record, we must conclude that the verdict was
supported by sufficient evidence and was not against the manifest weight of the evidence.
The jury did not lose its way and create such a manifest miscarriage of justice to warrant
a reversal or a new trial.
{¶47} Appellant’ fourth assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 5
Sims' [sic] was denied his right to effective assistance of counsel at his trial.
{¶48} The test for ineffective assistance of counsel is two-part: whether trial
counsel's performance was deficient and, if so, whether the deficiency resulted in
prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing
Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred.
Id. at 693.
{¶49} As both are necessary, if one prong of the Strickland test is not met, an
appellate court need not address the remaining prong. Id. at 697. The appellant bears
the burden of proof on the issue of counsel's effectiveness and, in Ohio, a licensed
attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 2000-CO-32,
Case No. 19 CO 0035– 25 –
2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E.2d 905 (1999).
{¶50} When a claim for ineffective assistance of counsel is made based on failure
to file an objection or a motion, the appellant must demonstrate that the objection or
motion would have had a reasonable probability of success. If the objection or motion
would not have been successful, then the appellant cannot prevail on an ineffective
assistance of counsel claim. State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577,
¶ 14 (4th Dist.).
{¶51} Appellant raises two issues regarding ineffective assistance of trial counsel.
First, he contends trial counsel was ineffective for failing to review discovery evidence
with Appellant. Immediately prior to trial, the trial court addressed a number of issues
outside the presence of the jury. Toward the end of the hearing, Appellant requested to
speak, and asked if he could hire a different lawyer because trial counsel had not shared
all of the evidence with Appellant and had only interviewed a key witness once. Defense
counsel stated that the matter had been continued several times because of new
discovery obtained and that he had, in fact, reviewed evidentiary materials with Appellant.
(8/19/19 Tr., p. 7.) He also stated that he had interviewed both McKinnon and Lewis in
preparation for trial. (8/19/19 Tr., p. 7.) The prosecution also added that several
discovery items were marked “counsel only,” which prohibited trial counsel from sharing
those items with Appellant. (8/19/19 Tr., p. 10.) This record reveals no deficiencies of
counsel as to these matters.
{¶52} The second issue raised by Appellant is trial counsel’s failure to present
expert testimony regarding the extent of Lewis’ injuries. Trial counsel is not ineffective by
Case No. 19 CO 0035– 26 –
failing to call an expert and relying instead on cross-examination. State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 66. Trial counsel’s decision to forego
expert testimony is considered a trial tactic which requires deference to counsel’s
judgment. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). The state
did not present medical expert testimony but relied primarily upon witness testimony.
Failure to call an expert to impeach an expert called by the state has not been found to
be ineffective assistance, so failure to call an expert when the state did not cannot be
ineffective. Also, the evidence of Lewis’ injuries was overwhelming, and multiple
witnesses corroborated each other’s testimony, further establishing the degree of Lewis’
injuries.
{¶53} We conclude Appellant has not shown deficient performance by trial
counsel. Additionally, Appellant has not demonstrated any prejudice or a reasonable
probability the result would have been different if a defense expert had been utilized.
{¶54} Appellant’s fifth assignment of error is without merit and is overruled.
{¶55} Based on the foregoing, all of Appellant’s assignments of error are without
merit and the judgment of the trial court is hereby affirmed.
Robb, J., concurs.
D’Apolito, J., concurs.
Case No. 19 CO 0035[Cite as State v. Sims, 2021-Ohio-2334.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.