State v. Teal , 95 N.E.3d 1095 ( 2017 )

[Cite as State v. Teal, 2017-Ohio-7202.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1280
L-15-1281
Appellee
Trial Court Nos. CR0201401007
v. CR0201501994
Kenneth Teal, Jr. DECISION AND JUDGMENT
Appellant Decided: August 11, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
OSOWIK, J.
Introduction
{¶ 1} In these consolidated appeals, Kenneth Teal, Jr., the defendant-appellant
herein, appeals his convictions for felonious assault and intimidating a witness. The
cases involve Teal’s physical assault of a woman and subsequent threats he made to her
while awaiting trial. Following a bench trial before the Lucas County Court of Common
Pleas, Teal was convicted in both cases. For the reasons that follow, we affirm.
Facts and Procedural History
{¶ 2} The following evidence was offered at trial.
{¶ 3} Teal and the victim, “S.C.,” met in 2011. After they met, the victim began
renting a “fixer-upper” home from Teal’s aunt in Lambertville, Michigan. Teal lived
down the street and was supposed to be renovating the property.
{¶ 4} The victim operated an internet-based business out of her home, and Teal
worked for the business sporadically. Sometime in 2012, their relationship became
romantic, but it was troubled from the start.
{¶ 5} The victim described one aberrant act after another by Teal: that he would
come over, uninvited, ostensibly to work, but would instead watch her; that he twice
broke into her house at night, and one time she awoke to find him crawling on her floor;
that he hacked into her Facebook and Verizon accounts, making it look as though she was
sending messages to other people; that he installed spyware on her devices so that he
could track her whereabouts; that he would show up at places shortly after she did and
then refuse to leave.
{¶ 6} In the summer of 2013, the victim said that Teal began “full blown
terrorizing” her, which included “hitting,” “smacking” and “shoving” the victim. Teal
also tracked a male friend of the victim’s; he frequently called the victim a “whore.” He
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blackmailed her, telling her that he “would destroy” her by revealing personal
information about her to her parents. The victim reported Teal’s behavior to the police.
{¶ 7} Teal’s increasingly violent behavior caused the victim to move to an
apartment in Toledo, Ohio. On December 18, 2013, Teal went, uninvited, to the victim’s
home. The victim testified that she repeatedly told him to leave. At one point, Teal
advanced toward her, and she pushed him away and spat in his face. Teal then punched
the victim in the face, causing her to spin and fall to the floor. Teal took the victim’s cell
phone and keys and fled the house.
{¶ 8} Within minutes, Teal returned, at which point the victim activated the
recorder on her phone. An 11 minute audiotape was received as an exhibit and played for
the court. It memorialized what occurred next:
{¶ 9} The victim can be heard crying, pleading and yelling. The audio reveals that
the victim told Teal to “get out” 10 times; to “just go” 13 times; “I don’t want you
touching me” 7 times; and “please get off of me” 6 times. Teal can be heard saying
“shhhhh” during many of these pleas. The victim testified that she was held down on the
couch, unable to move except to turn her head. At some point, the victim bit and slapped
Teal. She also told him that he was a “failure and a loser.” At that point, Teal punched
her with both of his closed fists, “over and over again, and again and again” as the victim
begged him to stop. The victim bled profusely and threw up.
{¶ 10} When the beating was over, Teal can be heard saying, repeatedly, “Tonight
I am going to die” and “I’m going to kill myself tonight,” which the victim took as a sign
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that he was going to kill her and then commit suicide. Instead, Teal left and drove away.
The victim was treated for a broken nose and a cut near her eye, which resulted in a scar.
{¶ 11} On January 2, 2014, a Lucas County, Ohio grand jury indicted Teal on one
count of felonious assault, in violation of R.C. 2903.11(A)(1)(D), a felony of the second
degree.
{¶ 12} Teal fled out of state, but returned after Christmas. Despite a “no contact
order,” prohibiting him from having any contact with the victim, Teal continued to
communicate with her via Skype, Facebook, text and phone. Teal told her that she did
not need to cooperate with the prosecution and threatened to “destroy her” if she did.
Teal proposed marriage, offered to pay her, and showed her homes for sale to convince
her to move in with him. Teal sent the victim an audio recording in which he told his
children that he was going to have to go away for a long time. Again, he threatened to
divulge personal information about the victim in an effort to hurt her business and
personal relationships.
{¶ 13} On June 24, 2015, Teal was indicted in a second case, for one count of
menacing by stalking, in violation of R.C. 2903.211(A)(1)(B)(2)(E), a felony of the
fourth degree and one count of intimidation of attorney, victim or witness in a criminal
case, in violation of R.C. 2921.04(B), a felony of the third degree. The cases were
consolidated, and a bench trial was held in September of 2015. The trial court found Teal
guilty of felonious assault and intimidation. It sentenced him to serve 6 years and 24
months, as to the respective convictions. The court found him not guilty of menacing.
4.
{¶ 14} Teal was appointed appellate counsel and asserts six assignments of error
for our review.
Assignments of Error
1. The trial court erred to the prejudice of Appellant by improperly
allowing Evid.R. 404(B) evidence to be introduced by the state.
2. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, §10 of the Ohio Constitution.
3. The trial court committed error to the prejudice of Appellant by
imposing the costs of prosecution without consideration of Appellant’s
present or future ability to pay.
4. The trial court did not comply with the directives of R.C. 2929.11
and 2929.12 in sentencing Appellant to eight years in the Ohio Department
of Rehabilitation and Corrections.
5. The trial court abused its discretion and erred to the prejudice of
Appellant by not convicting Appellant of aggravated assault, the inferior
degree offense of felonious assault.
6. The trial court’s verdict was against the manifest weight of the
evidence presented at trial.
5.
Evidence of “Prior Bad Acts” Under Evid.R. 404(B)
{¶ 15} In his first assignment of error, Teal argues that the trial court erred in
allowing the state to introduce testimony from three witnesses: Teal’s former wife, an
ex-girlfriend, and the ex-girlfriend’s daughter. They testified about two incidents, both in
2008, when Teal broke into their respective homes, with a knife/box cutter, caused
mayhem, and then threatened suicide. Teal argues that the testimony was impermissible
evidence of other crimes, wrongs, or acts, in contravention of Evid.R. 404(B).
{¶ 16} “The admission of such [other-acts] evidence lies within the broad
discretion of the trial court, and a reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that created material prejudice.” State
v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting State v.
Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.
{¶ 17} Teal concedes that he failed to object to the testimony at trial. Therefore,
he has waived all but plain error. State v. Getsy, 84 Ohio St.3d 180, 192, 702 N.E.2d 866(1998). “For a court to notice plain error, the error must be an obvious defect in a trial’s
proceedings, it must have affected substantial rights, and it must have affected the
outcome of the trial.” State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135,
¶ 30. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id., quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of
the syllabus.
6.
{¶ 18} Evid.R. 404(B) and its statutory counterpart, R.C. 2945.59, “preclude
admission of other acts evidence to prove a character trait in order to demonstrate
conduct in conformity with that trait.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-
5695, 983 N.E.2d 1278, ¶ 16. The rule also provides, however, that evidence of other
acts may be admissible for other purposes, such as to show proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. at
¶ 19. As set forth in Williams, in considering other acts evidence, trial courts should
conduct a three-step analysis:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused in
order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in
Evid.R. 404(B). The third step is to consider whether the probative value of
the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R. 403. Id. at ¶ 20.
{¶ 19} The state offered the testimony of three witnesses: Teal’s ex-wife, “T.T.,”
Teal’s ex-girlfriend, (“L.E.”), and the girlfriend’s daughter (“J.K.”). Specifically, T.T.
testified that, after their divorce, Teal broke into her home and hid in the shower with a
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knife. He came within two to three feet of T.T., but did not cut her. Teal did, however,
cut himself in a failed suicide attempt. T.T. also testified that Teal choked her father,
causing her father’s face to turn blue. He also violated a “no-contact” order.
{¶ 20} An ex-girlfriend’s daughter, J.K., described an incident, following her
mother’s break-up from Teal. She discovered Teal hiding in a guest bedroom closet at
night. He gained access to the home by breaking a window, and when discovered, he
shoved J.K. out of the way, causing J.K. to fall, as Teal “tried to get her” mother. Teal
was ordered to have “no contact” with L.E., which he violated in person and by phone.
{¶ 21} Teal was charged and convicted following both home invasions, and
records from those criminal cases were received into evidence. The records show that
Teal was sentenced to prison on January 28, 2009, as to two counts of home invasion,
third degree and one count of fleeing and eluding a police officer, fourth degree by the
38th Circuit Court in Monroe, Michigan. He was released onto parole on September 9,
2010.
{¶ 22} Teal argues that the testimony was “unrelated” to the charges in the instant
case and was too remote in time. He argues that, even if relevant, the probative value of
the testimony was substantially outweighed by unfair prejudice and therefore it should
have been excluded by the court under Evid.R. 403(A). He adds that, without such
testimony, “the remaining evidence [against him] is primarily the victim’s testimony.”
{¶ 23} The state counters that the evidence was offered for the purpose of
demonstrating Teal’s history of violence, an element of the menacing by stalking charge.
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Pursuant to R.C. 2903.211(A)(1), the state was required to show that Teal, “by engaging
in a pattern of conduct,” knowingly caused the victim to believe that he would cause her
physical harm or mental distress. To elevate the menacing by stalking offense to a
fourth-degree felony, the state was required to show that Teal had a “history of violence
toward the victim or any other person or a history of other violent acts toward the victim
or any other person.” (Emphasis added.) R.C. 2903.211(B)(2)(e).
{¶ 24} We agree with the state that the testimony was admissible for the purpose
of demonstrating Teal’s history of violent acts; it was not inadmissible character evidence
under Evid.R. 404(B). State v. Jones, 6th Dist. Wood No. WD-12-049, 2013-Ohio-5906,
¶ 36. We also find that this case simply does not provide the exceptional circumstances
resulting in a manifest miscarriage of justice, a necessary predicate before finding plain
error under State v. Long, 530 Ohio St.2d 91, 372 N.E.2d 804. The other acts evidence
presented in this case was also overshadowed by other, more relevant evidence of guilt,
namely the audiotape of the felonious assault itself and the victim’s testimony.
{¶ 25} We find that the trial court’s admission of the other acts evidence did not
constitute plain error, and Teal’s first assignment of error is not well-taken.
Right to Counsel
{¶ 26} In his second assignment of error, Teal argues that he received ineffective
assistance of counsel.
{¶ 27} The Sixth Amendment right to counsel exists “in order to protect the
fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct.
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2052, 80 L.Ed.2d 674 (1984). To prove a claim of ineffective assistance of counsel, a
defendant must show that: (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defense. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraphs one and two of the syllabus, citing Strickland at 688.
{¶ 28} A reviewing court must determine whether trial counsel’s assistance fell
below an objective standard of reasonable advocacy. Bradley at 141-142. Moreover, the
deficient performance must have been so serious that, “were it not for counsel’s errors,
the result of the trial would have been different.” Id.{¶ 29} Moreover, trial strategy “must be accorded deference and cannot be
examined through the distorting effect of hindsight.” State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland at 691.
{¶ 30} In support of this assignment of error, Teal makes two arguments. First, he
cites trial counsel’s failure to object to the introduction of evidence presented under
Evid.R. 404(B), specifically the “damaging” testimony (previously described) by Teal’s
ex-wife, his ex-girlfriend, and daughter. Teal argues that counsel should have objected
to, or moved to strike, the testimony.
{¶ 31} “[T]he failure to make objections is not alone enough to sustain a claim of
ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, 848 N.E.2d 810, ¶ 103. Further, given our finding that the evidence at issue was
10.
not improper character evidence, it follows that Teal’s trial counsel cannot be held
ineffective for failing to object to such evidence. State v. Curtis, 9th Dist. Medina No.
04CA0067-M, 2005-Ohio-2143, ¶ 23 (“As counsel was not required to raise objections
that lack merit, Appellant has not demonstrated ineffective assistance of counsel.”).
{¶ 32} Teal also cites counsel’s failure to object to the introduction of
photographs, offered by the state, that “were not disclosed or provided” to Teal until they
were introduced at trial as exhibit Nos. 131-134. Teal fails to describe the exhibits or to
put forth any argument as to what impact the photographs had. More importantly, the
transcript demonstrates that it was Teal who produced the photographs to the state.
{¶ 33} We find Teal’s second assignment of error not well-taken.
Costs
{¶ 34} In his third assignment of error, Teal argues that the trial court erred in
“imposing the costs of prosecution.”
{¶ 35} The trial court made the following ruling in both cases with regard to costs:
Defendant found to have, or reasonably may be expected to have, the
means to pay all or part of the applicable costs of supervision, confinement,
assigned counsel, and prosecution as authorized by law.1
1
The judgment entries are identical, except that, in the felonious assault case, the court
also ordered restitution on behalf of a hospital that provided medical treatment to the
victim. Teal does not challenge the order of reimbursement.
11.
{¶ 36} Our standard of review on this issue is whether the imposition of costs and
financial sanctions was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b). State v.
Farless, 6th Dist. Lucas Nos. L-15-1060, 2016-Ohio-1571, ¶ 4 citing State v. Collins,
12th Dist. Warren No. CA2014-11-135, 2015-Ohio-3710, ¶ 30 (“An appellate court may
not modify a financial sanction unless it finds by clear and convincing evidence that it is
not supported by the record or is contrary to law.”).
{¶ 37} In his assignment of error, Teal raises only the imposition of prosecution
costs. In the body of his appellate brief, however, he also challenges the costs imposed
with regard to his appointed counsel and confinement.
{¶ 38} With regard to the costs of prosecution, Teal complains that the trial court
ordered such costs “without inquiry as to [his] present or future ability to pay.”
{¶ 39} R.C. 2947.23(A)(1)(a) provides that the trial court shall include in every
sentencing judgment the costs of prosecution without consideration of whether the
defendant has the ability to pay such costs. State v. Rhoda, 6th Dist. No. F-06-007, 2006-
Ohio-6291, ¶ 13. Indeed, Teal acknowledges that a trial court need not determine a
defendant’s ability to pay prosecution costs, prior to imposing such costs. We find the
trial court did not err by imposing the costs of prosecution.
{¶ 40} Before a trial court may assess the costs of confinement and/or attorney’s
fees, however, it must determine whether the defendant has, or will have, the ability to
pay. Indeed, R.C. 2929.18(A)(5)(a)(ii) requires that the trial court impose against all
convicted defendants a financial sanction for the costs of confinement in a state
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institution to the extent he is able to pay. Likewise, R.C. 2941.51(D) provides that the
court can order the defendant to pay all or a part of the cost of appointed counsel but only
if the court determines that the offender “has, or reasonably may be expected to have, the
means to meet some part of the costs of the services rendered.” Id. R.C. 2941.51(D)
does not require that the court hold a hearing, although “there must be a finding on the
record that the offender has the ability to pay.” State v. Mallow, 6th Dist. Lucas No.
L-10-1350, 2011-Ohio-6919, ¶ 12.
{¶ 41} The trial court stated in its sentencing entry that Teal has, or reasonably
may be expected to have, the means to pay all or part of the costs of his confinement and
appointed counsel. We find that the record supports the trial court’s determination. Teal
is currently 48 years old, with plenty of working years remaining once he is released from
prison. Also, Teal holds a Class A commercial driver’s license and has extensive
remodeling and information technology (“IT”) skills, making him employable in a variety
of fields. At the September 28, 2015 sentencing hearing, Teal’s attorney represented to
the court that he had a job “waiting for him,” such that if fines or costs were imposed,
Teal “will have the capacity to get that done.”
{¶ 42} We find that there was evidence in the record to support the court’s
conclusion that Teal has, or will have, the ability to pay the costs of confinement and
appointed counsel. Accordingly, Teal’s third assignment of error is found not-well taken.
13.
Sentencing Under R.C. 2929.11 and 2929.12
{ ¶ 4 3 } In his fourth assignment of error, Teal concedes that his eight-year prison
sentence “falls within the guidelines” of R.C. 2929.14, the sentencing statute. He argues,
however, that the lower court failed to consider the victim’s intoxication and provocation
as being contributory factors, which Teal argues, should be considered mitigating factors
under R.C. 2929.12(C). Teal also argues that the eight- year sentence was not in
compliance with the directive under R.C. 2929.11(A) “to punish the offender using the
minimum sanctions.”
{¶ 44} We begin with R.C. 2929.12, entitled “Seriousness and Recidivism
factors.” R.C. 2929.12(C) provides,
The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant
factors, as indicating that the offender’s conduct is less serious than conduct
normally constituting the offense: (1) The victim induced or facilitated the
offense. (2) In committing the offense, the offender acted under strong
provocation. (3) In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property. (4) There are
substantial grounds to mitigate the offender’s conduct, although the
grounds are not enough to constitute a defense.
{¶ 45} There was clear recorded evidence of the victim repeatedly demanding that
Teal leave her home, to get out, to stop touching her. Also, standing alone, a victim’s
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intoxication does not amount to a mitigating factor. State v. Stanton, 6th Dist. Lucas No.
L-15-1081, 2016 Ohio App. LEXIS 2940. Because there was no evidence demonstrating
that the victim’s intoxication somehow induced or facilitated the offense, the court did
not err in not considering the victim’s intoxication under R.C. 2929.12(C). See also State
v. Saur, 10th Dist. Franklin No. 10AP-1195, 2011-Ohio-6662, ¶ 47.
{¶ 46} Moreover, the trial court specifically noted its consideration of R.C.
2929.11 and 2929.12 in its sentencing entries. State v. Hildebrand, 6th Dist. Lucas No.
L-14-1049, 2015-Ohio-918, ¶ 9 (Sentence that falls within the acceptable range under
R.C. 2929.14 is not contrary to law where trial court’s sentencing entry indicates that the
court considered the principles and purposes of sentencing under R.C. 2929.11 and the
factors under R.C. 2929.12); see also State v. Craig, 6th Dist. Wood No. WD-14-061,
2015-Ohio-1479, ¶ 13.
{¶ 47} Consecutive sentences were appropriate in this case due to Teal’s criminal
history, the fact that he was awaiting trial when he committed the intimidation offense,
and the fact that the felonious assault occurred just five months after his parole ended in
Michigan. Based on the above, the trial court did not err in ordering the offenses to be
served consecutively, for a total of eight years. The trial court properly considered the
statutory factors, and the record supported the sentence. Teal’s fourth assignment of
error is not well-taken.
15.
Aggravated Assault as an Inferior-Degree Offense
{¶ 48} In his fifth assignment of error, Teal asserts that the trial court abused its
discretion in failing to convict him of aggravated assault in violation of R.C. 2903.12, a
felony of the fourth degree, rather than felonious assault in violation of R.C. 2903.11, a
felony of the second degree.
{¶ 49} Teal claims sufficient evidence was introduced at trial to warrant
consideration of aggravated assault, based on evidence of the victim’s provocation and
aggressive behavior toward him on December 18, 2013.
{¶ 50} The elements of felonious assault are identical to the elements of
aggravated assault, except that aggravated assault has an additional mitigating element of
“serious provocation.”2 State v. Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294(1988), paragraphs two and four of the syllabus, modified on other grounds, State v.
Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889. Teal bears the burden of
proving the mitigating factor by a preponderance of the evidence. State v. Rhodes, 63
Ohio St.3d 613, 590 N.E.2d 261 (1992), syllabus.
2
Felonious assault is defined as “[n]o person shall knowingly do either of the following:
(1) [c]ause serious physical harm to another * * *.” R.C. 2903.11. Aggravated assault is
an inferior, but not a lesser included offense of felonious assault. Deem at paragraphs
two and four of the syllabus. The aggravated assault statute provides that “[n]o person,
while under the influence of sudden passion or in a 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 * * *.” R.C. 2903.12.
16.
{¶ 51} An objective standard is applied to determine whether the provocation is
reasonably sufficient to bring on sudden passion or a sudden fit of rage. State v. Shane,
63 Ohio St.3d 630, 634, 590 N.E.2d 272 (1992). For provocation to be serious, it must be
“‘reasonably sufficient to bring on extreme stress and * * * reasonably sufficient to incite
or to arouse the defendant into using deadly force.’” Deem at 211, quoting State v.
Mabry, 5 Ohio App.3d 13, 449 N.E.2d 16 (8th Dist.1982). Moreover, the provocation
must be “sufficient to arouse the passions of an ordinary person beyond the power of his
or her control.” Shane at 635.
{¶ 52} If the objective standard is met, the inquiry then shifts to a subjective
standard to determine whether the defendant actually was under the influence of sudden
passion or in a sudden fit of rage. Id. at 634. The emotional and mental state of the
defendant and the conditions and circumstances that surrounded him at the time are
considered to determine whether the defendant was reasonably provoked by the victim.
Id.
{¶ 53} We have reviewed the record and find that the circumstances do not reflect
that the victim acted with serious provocation. Testimony by the victim and Teal
demonstrate that Teal was the aggressor from the beginning and that it was a one-sided
assault. Even the victim’s name-calling of Teal, that he was “a loser” and “a failure”
does not warrant an aggravated assault consideration. Words alone will not constitute
sufficient provocation to incite the use of force in most situations. State v. Shane, 63
Ohio St.3d 630, 637, 590 N.E.2d 272 (1992).
17.
{¶ 54} In short, we find nothing in the record to suggest that the trial court did not
give due and fair consideration to the inferior-degree offense of aggravated assault.
Moreover, as we found in the preceding section, because the evidence fails to
demonstrate the existence of adequate provocation, we are unable to conclude that the
trial court erred in finding Teal guilty of felonious assault, rather than aggravated assault.
State v. Balis, 8th Dist. Cuyahoga No. 101520, 2015-Ohio-1296, ¶ 15-16 (Where
defendant was the aggressor and punched the victim, knocked him off of chair, dragged
him outside, stomped on him, and caused victim to lose consciousness, the evidence did
not demonstrate that provocation was reasonably sufficient to warrant an aggravated
assault instruction, even though evidence also showed that victim attempted to swing at
defendant).
{¶ 55} Appellant’s fifth assignment of error is not well-taken.
Manifest Weight of the Evidence
{¶ 56} Finally, in his sixth assignment of error, Teal claims that the trial court’s
verdict was against the manifest weight of the evidence presented at trial.
{¶ 57} In determining whether a verdict is against the manifest weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). We review the entire record, weigh the evidence and all reasonable
inferences, and consider the credibility of witnesses. Id. Additionally, we 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
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new trial ordered.” Id. We reverse a conviction on manifest weight grounds for only the
most “exceptional case in which the evidence weighs heavily against the conviction.” Id.
at 387. “‘[I]t is inappropriate for a reviewing court to interfere with factual findings of
the trier of fact * * * unless the reviewing court finds that a reasonable juror could not
find the testimony of the witness to be credible.’” State v. Miller, 6th Dist. Lucas No.
L-08-1056, 2009-Ohio-2293, ¶ 21, quoting State v. Brown, 10th Dist. Franklin No.
02AP-11, 2002-Ohio-5345, ¶ 10.
{¶ 58} In support of this claim, Teal argues that, excluding the impermissible
evidence allowed under Evid.R. 404(B), the only testimony upon which to base the
verdict against him was the “incredulous” testimony of the victim. Teal claims that she
displayed an “avowed hatred of [him] while simultaneously maintaining regular contact
and remaining in a relationship with him even after [the assault].” Teal’s argument does
not speak to the truthfulness of the victim’s testimony, rather that she exercised poor
judgment in maintaining a relationship with him. In any event, it was for the trial court,
acting as the fact finder, to assess the victim’s and Teal’s credibility. “[W]eight and
credibility [of evidence] are primarily for the trier of fact.” State v. Pena, 6th Dist. Lucas
No. L-12-1309, 2014-Ohio-423, ¶ 22. This is because the trier of fact is in the best
position to “view the witnesses and observe the credibility of the proffered testimony.”
(Quotation omitted.) Id. at ¶ 22. A jury, or a judge may believe all, part, or none of a
witness’s testimony. Id.
19.
{¶ 59} Also, as we have found, the verdict was premised upon multiple pieces of
evidence, none more damaging than the audiotape of the assault. In addition, there were
medical records, other recordings, phone calls, photos, text messages, Facebook posts and
screenshots. Appellant immediately fled after the felonious assault and apologized to the
victim, both of which demonstrate his consciousness of guilt. Teal also never denied that
he caused the victim serious physical harm.
{¶ 60} As to the intimidation charge, Teal sent text messages in which he
attempted to persuade the victim not to cooperate with the prosecution. On the one hand,
he offered her money, sent her gifts, proposed marriage, and offered to buy her a house,
while on the other hand he threatened to ruin her business and family relationships.
{¶ 61} Having carefully reviewed the record, we conclude that substantial
evidence supports the verdict, and that the trial court did not lose its way and create a
manifest miscarriage of justice. We find that the verdict is not against the manifest weight
of the evidence. Teal’s sixth assignment of error is not well-taken.
{¶ 62} Based on the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. Teal is ordered to pay the costs of this appeal pursuant to
App.R. 24(A).
Judgment affirmed.
20.
State v. Teal
C.A. Nos. L-15-1280
L-15-1281
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
21.