State v. Walker , 2014 Ohio 1287 ( 2014 )

[Cite as State v. Walker, 2014-Ohio-1287.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25741
Plaintiff-Appellee :
: Trial Court Case No. 12-CR-2584
v. :
:
TOBBY T. WALKER : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of March, 2014.
...........
MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard, Springboro,
Ohio 45066
Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Tobby T. Walker appeals from his conviction and sentence on one count of
felonious assault (serious physical harm).
[Cite as State v. Walker, 2014-Ohio-1287.]
{¶ 2} Walker advances three assignments of error. First, he alleges ineffective
assistance of counsel based on his attorney’s failure to request an inferior-degree-offense
instruction at trial. Second, he contends his conviction is against the manifest weight of the
evidence. Third, he claims the trial court erred in imposing a statutory maximum sentence.
{¶ 3} The record reflects that Walker was charged with two counts of felonious assault,
one count of evidence tampering, and one count of disrupting public services. The charges
stemmed from his alleged physical assault on his girlfriend, Jennifer Dixon, his disposal of a
blood-spattered shirt, and his act of cutting her telephone cords before fleeing her apartment. At
trial, the State presented evidence that Walker choked Dixon and struck her in the face multiple
times with his fist and a roller skate. As a result, Dixon suffered a broken nose, her mouth was
wired shut, and her left eye swelled shut. She was hospitalized for weeks and had to use a
breathing tube. After being released, she required months of in-home care. For his part, Walker
testified at trial and claimed that he struck Dixon in self defense when she attacked him with
scissors.
{¶ 4} After hearing the evidence, a jury found Walker guilty of felonious assault
(serious physical harm). It found him not guilty of felonious assault (deadly weapon). It also
found him not guilty of evidence tampering or disrupting public services. The trial court imposed
a statutory maximum eight-year prison sentence for the second-degree-felony conviction. This
appeal followed.
{¶ 5} In his first assignment of error, Walker alleges ineffective assistance of counsel
based on his attorney’s failure to request a jury instruction on aggravated assault as an
inferior-degree-offense of felonious assault.
{¶ 6} The distinction between felonious assault and aggravated assault involves the
3
mitigating element of serious provocation. Unlike felonious assault, aggravated assault requires
that a person knowingly cause serious physical harm to another “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[.]” R.C. 2903.12(A). Walker argues that the evidence at trial reasonably supported a finding
that he was arguing with Dixon, that she attacked him with scissors, and that her attack
constituted serious provocation that produced in him a sudden passion or fit of rage. Therefore,
he asserts that an aggravated-assault instruction was warranted and that counsel’s failure to
request one could not have been a matter of trial strategy.
{¶ 7} Upon review, we find Walker’s argument to be unpersuasive. At trial, he testified
that he acted out of fear. (Trial Tr. at 408). According to Walker, he was “calm” and “trying to
calm [Dixon] down” when she attacked him. (Id. at 406). Walker testified that the attack made
him fear for his life. (Id. at 407). As a result, he struck Dixon three times to disarm her. (Id. at
407-408). After separating her from the scissors, he tried to “console” her. (Id. at 408). He then
left to take a walk and was not angry. (Id. at 416). There was no testimony that he acted out of
sudden passion or a fit of rage. In fact, Walker insisted that he “was never angry.” (Id. at 417). On
this record, we would not fault the trial court for refusing to give an inferior-degree instruction on
aggravated assault.
{¶ 8} Moreover, in light of Walker’s testimony, defense counsel reasonably could have
decided not to pursue an aggravated-assault instruction. Walker’s testimony was consistent with
his self-defense argument but inconsistent with a claim that he acted in a sudden passion or fit of
rage. Defense counsel also reasonably could have determined that claiming sudden passion or a
4
fit of rage conflicted with, and weakened, the self-defense claim. See State v. Crawford, 2d Dist.
Montgomery No. 22314, 2008-Ohio-4008, ¶ 27 (“Crawford’s counsel could have reasonably
decided not to request an aggravated assault instruction under the evidence presented with the
hope of attaining a complete acquittal for the two counts of felonious assault. It may have been
counsel’s belief that the inferior-degree offense conflicted with the theory of self-defense or may
confuse the jury.”).
{¶ 9} “The test for a claim of ineffective assistance of counsel is not whether counsel
pursued every possible defense; the test is whether the defense chosen was objectively
reasonable. * * * A reviewing court may not second-guess decisions of counsel which can be
considered matters of trial strategy.” (Citations omitted) Id. at ¶ 29. Here Walker’s testimony did
not fit the elements of aggravated assault, and defense counsel reasonably may have elected not
to request the inferior-degree-offense instruction as a matter of trial strategy. We see no
ineffective assistance. The first assignment of error is overruled.
{¶ 10} In his second assignment of error, Walker contends his conviction for felonious
assault (serious physical harm) is against the weight of the evidence. According to Walker, the
evidence supports his claim that Dixon was the aggressor and that he simply defended himself
from her scissor attack. He also contends his conviction is inconsistent with the jury’s not-guilty
verdict on charges of felonious assault (deadly weapon), evidence tampering, and disrupting
public services. He argues:
* * * It is clear from the jury’s verdict that they did not believe Ms.
Dixon’s granddaughter’s account that she saw the Defendant hitting Ms. Dixon
with the roller skates, nor did the jury believe her son’s claim that all the phone
5
cords in the home had been cut even though the uncontroverted evidence at trial
was that a 911 call was made from a landline inside the home after the Defendant
had left. The evidence, on the other hand, clearly supports the Defendant’s
contention that it was Ms. Dixon who came at him with a pair of scissors and that
he was simply defending himself from her attack. The jury’s guilty verdict on the
felonious assault (serious physical harm) is not consistent with its not guilty
verdicts on all other charges and is against the manifest weight of the evidence
that clearly demonstrates that the Defendant was simply trying to defend himself
from Ms. Dixon’s provocation when he struck her. Therefore, a manifest
miscarriage of justice has occurred such that the conviction herein must be
reversed.
(Appellant’s brief at 10).
{¶ 11} When a conviction is challenged on appeal as being against the weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, 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, 678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest
weight of the evidence “only in the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶ 12} With the foregoing standards in mind, we conclude that Walker’s conviction is
6
not against the weight of the evidence. Dixon testified that she and Walker got involved in an
argument in her apartment. (Trial Tr. at 302). At one point, Walker began choking her in the
kitchen for about fifteen minutes. (Id. at 303). The fight continued when Walker dragged her to
an upstairs bedroom, where he continued choking her and began hitting her. (Id. at 305, 321).
Dixon was able to remember receiving at least four blows to her face. (Id. at 305). She could not
say what Walker used other than his fist to strike her because she was “out.” (Id.). She did recall,
however, being hit by something hard that she believed was a roller skate. (Id. at 334). Dixon’s
granddaughter testified that she was present and saw Walker hit Dixon with the roller skate. (Id.
at 208-209). Dixon denied having any weapon herself and denied attacking Walker. (Id. at
304-305, 326). Eventually, she made her way to the bathroom, where she threw up blood, her
nose started bleeding, and she felt blood running down her head. (Id. at 306). Dixon testified that
Walker left, and paramedics took her to the hospital. (Id. at 306-308). She was hospitalized for
weeks. She required surgery on her broken nose, and her mouth was wired shut, forcing her to eat
through a straw. (Id. at 310). She also used a breathing tube for about two weeks and had a metal
plate placed in her eye. (Id. at 311). She required in-home care for months after her release from
the hospital. (Id. at 314).
{¶ 13} Having reviewed the record, we find no merit in Walker’s manifest-weight
challenge. It is well settled that evaluating witness credibility is primarily for the trier of fact.
State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact does not
lose its way and create a manifest miscarriage of justice if its resolution of conflicting testimony
is reasonable. Id. Here the jury quite reasonably could have credited Dixon’s testimony that
Walker beat her so severely that he caused serious physical harm. Indeed, her version of events
7
seems to us much more believable than Walker’s claim that she attacked him with scissors and
that he reacted in self defense to disarm her. In any event, the jury did not lose its way and create
a manifest miscarriage of justice in reaching the guilty verdict it did.
{¶ 14} Walker’s argument about inconsistency in the verdicts fails to persuade us
otherwise. With regard to his acquittal on the felonious assault (deadly weapon) charge, the jury
may have concluded that a roller skate is not a deadly weapon. Or it may have disbelieved the
testimony that Walker struck Dixon with a roller skate. Regardless, the jury remained free to
believe Dixon’s testimony that Walker repeatedly hit her in the head with his fist and caused the
injuries she sustained. As this court has recognized, a trier of fact is free to believe all, part, or
none of the testimony of each witness. Benton at ¶ 7. Walker’s acquittal on charges of evidence
tampering and disrupting public services also does not establish that his felonious-assault
conviction is against the weight of the evidence. Even if the jury was unpersuaded beyond a
reasonable doubt that Walker discarded a blood-spattered shirt to impede an investigation or that
he cut Dixon’s telephone lines, such findings are not inconsistent with a verdict that he
knowingly caused her serious physical harm by beating her. Accordingly, the second assignment
of error is overruled.
{¶ 15} In his third assignment of error, Walker claims the trial court erred in imposing a
statutory maximum eight-year prison sentence. His entire argument is as follows:
In the case at bar, while it appears that the sentence imposed upon [sic] is
not contrary to law, it is plain and clear that the trial court abused its discretion
when it sentenced the Defendant to the maximum eight year prison term for a
felony of the second degree. The trial court offered no justification for such a
8
sentence other than that it considered the relevant statutory factors the court is
required to consider. The fact is that the trial court could have followed the
purposes and principles of sentencing with a shorter prison term. Therefore, the
trial court erred in sentencing the Defendant as it did and this matter should be
reversed and remanded accordingly.
(Appellant’s brief at 11).
{¶ 16} Upon review, we see no error in the trial court’s sentencing decision. As a
threshold matter, we note that Walker raises his argument under State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912, 896 N.E.2d 124. Pursuant to Kalish, a felony sentence is reviewed using a
two-step process. The first step involves determining whether the sentence is contrary to law, i.e.,
whether the trial court complied with all applicable rules and statutes. The second step involves
determining whether the trial court abused its discretion. Here Walker raises his argument under
the second step of Kalish, asserting that the trial court abused its discretion in imposing an
eight-year sentence.
{¶ 17} After Walker filed his appellate brief, State v. Rodeffer, 2d Dist. Montgomery
Nos. 25574, 25575 and 25576, 2013-Ohio-5759, was decided. In Rodeffer, a panel of this court
(with one dissent) held that Kalish’s two-step approach should no longer apply to appellate
review of felony sentences. Instead, Rodeffer applied the standard of review found in R.C.
2953.08(G)(2). Id. at ¶ 29. Under this statute, an appellate court may increase, reduce, or modify
a sentence; or it may vacate the sentence and remand for resentencing. It may take these actions,
however, only if it “clearly and convincingly” finds either (1) that the record does not support
certain specified findings or (2) that the sentence imposed is contrary to law. The Rodeffer
9
majority stated “[f]urthermore, ‘[a]lthough Kalish no longer provides the framework for
reviewing felony sentences, it does provide * * * adequate guidance for determining whether a
sentence is clearly and convincingly contrary to law.’ * * * According to Kalish, a sentence is not
contrary to law when the trial court imposes a sentence within the statutory range, after expressly
stating that it had considered the purposes and principles of sentencing set forth in R.C. 2929.11,
as well as the factors in R.C. 2929.12.” (Citations omitted) Id. at ¶ 32.
{¶ 18} We recognize that Walker briefed his appeal under Kalish without the benefit of
the opinion in Rodeffer. Under Kalish, the second step in the analysis is whether the sentence is
an abuse of discretion. Here, the PSI report, which the trial court considered, reflects that Walker
has an extensive criminal history as an adult. He appears to have had at least eighteen
misdemeanor convictions between 1988 and 2009. They involved offenses including attempted
drug abuse, disorderly conduct (multiple offenses), drug abuse, having weapons while
intoxicated, OVI, domestic violence (multiple offenses), public intoxication, criminal trespass,
unauthorized operation of property, assault (multiple offenses), soliciting, and an open-container
violation. In addition to the instant offense, Walker has prior adult felony convictions for
possession of cocaine and trafficking in marijuana. On the possession charge, he received
community control but had it revoked. He also had community control revoked in at least two of
his misdemeanor cases. The record further reflects that he served prison time in both of his prior
felony cases.
{¶ 19} Upon review, applying either Rodeffer or Kalish, we find no basis for altering
Walker’s sentence or for remanding for resentencing. Walker does not claim any of the findings
specified in R.C. 2953.08(G)(2) were required here or are unsupported by the record. His
10
sentence also is not contrary to law. His eight-year sentence is within the statutory range for a
second-degree felony, and the trial court considered the principles and purposes of sentencing as
well as the seriousness and recidivism factors. (Trial Tr. at 501). Moreover, in light of the
extreme physical harm Walker inflicted on Dixon and his extensive criminal history, we cannot
say the trial court abused its discretion in imposing a statutory maximum sentence. Accordingly,
the third assignment of error is overruled.
{¶ 20} The judgment of the Montgomery County Common Pleas Court is affirmed.
.............
FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Mathias H. Heck
Matthew T. Crawford
Marshall G. Lachman
Hon. Michael W. Krumholtz