State v. Figueroa , 110 N.E.3d 612 ( 2018 )

[Cite as State v. Figueroa, 2018-Ohio-1453.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-A-0034
- vs - :
JAMIE FIGUEROA, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 CR
00312.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Andrew R. Zellers, 3810 Starrs Centre Drive, Canfield, OH 44406 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Jamie Figueroa, appeals from the judgment of the Ashtabula
County Court of Common Pleas, entered on a jury verdict, sentencing him to a total term
of eight years imprisonment following his convictions on three counts of felonious assault,
and one of petty theft. Appellant contends he was prejudiced by the trial court’s failure to
give certain cautionary instructions. He also contends two of his felonious assault
convictions are premised on insufficient evidence. We affirm.
{¶2} On May 16, 2015, appellant entered the Speedway gas station located on
State Route 20 in Ashtabula Township, and stole two six packs of beer and some snacks.
An employee saw this on the security camera, and told the shift leader, Diana Higley. Ms.
Higley went outside, and found appellant seated at the side of the store, drinking a beer.
She told him to leave. He got up, pulled a steak knife out of his pocket, and pointed it at
her, screaming abuse. Another employee, Melynn McCoy, had stopped by the Speedway
to get ice for a party. Ms. Higley asked her to tell the clerk in the store to call the police.
Ms. McCoy did so, then returned outside. Danyet Pinney, a third employee, drove into
the parking lot shortly after the dispute between Ms. Higley and appellant commenced.
A regular patron, Darrell Thompson, had stopped by the store to buy a cigar. He, too,
observed the dispute.
{¶3} Appellant was standing about ten feet away from Ms. Higley. Suddenly, he
turned the knife around so the blade was pointing out the back of his hand, turned, and
leapt at Ms. Higley, striking her in the mouth with his fist. She fell down, covered with
blood. Mr. Thompson went to her aid. Appellant took a few steps towards Mr. Thompson,
and asked him if he wanted some, too. Appellant had the knife at his side. Mr. Thompson
ran around the side of his car for protection. Appellant then fled down a side street.
{¶4} Deputy Sheriff Ted Barger, Jr., responded to the Speedway. He found
Appellant in a parking lot approximately 300 yards from the gas station, drinking a beer.
The deputy put him under arrest, and returned with him to the gas station, where the
victims and witnesses identified him. Mr. Thompson found the knife in a ditch nearby.
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{¶5} Ms. Higley required 12 stitches to her mouth. One of her teeth was knocked
loose and suffered root damage.
{¶6} The Ashtabula County Grand Jury subsequently returned an indictment on
four counts against appellant: count one, felonious assault against Ms. Higley with the
knife, a second degree felony, in violation of R.C. 2903.11(A)(2); count two, felonious
assault against Ms. Higley with his fist, a second degree felony, in violation of R.C.
2903.11(A)(1); count three, felonious assault against Mr. Thompson with the knife, a
second degree felony, in violation of R.C. 2903.11(A)(2); and count four, petty theft, a first
degree misdemeanor, in violation of R.C. 2913.02(A)(1). He pleaded not guilty to all
counts. After appellant was deemed competent to stand trial, a jury trial commenced and
concluded the following day. The jury quickly returned verdicts of guilty on all charges.
{¶7} The trial court proceeded to sentencing. It merged the felonious assault
convictions regarding Ms. Higley, and imposed six years imprisonment. It sentenced him
to two years on the felonious assault conviction regarding Mr. Thompson, the term to be
served consecutively to that regarding Ms. Higley. It imposed six months for the petty
theft, to be served concurrently to the felonious assault terms, for a total of eight years
imprisonment, and informed appellant he was subject to three years post-release control.
{¶8} Appellant now appeals and assigns three errors. The first provides:
{¶9} “The trial court committed an error when it allowed inadmissible hearsay to
be introduced into the record despite an objection from defense counsel and as a result
was prejudicial to the appellant, thus affecting the outcome of the case.”
{¶10} Appellant contends the trial court twice erred in failing to give a curative
instruction. First, he objects to the following exchange:
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{¶11} Assistant Prosecutor: “And beyond speaking with the witnesses and
retrieving written statements from them, did you make – do anything else in your
investigation to determine what had happened?”
{¶12} Deputy Barger. Yes, Darrel Thompson made a comment that he found the
knife that was, in fact used.”
{¶13} Defense Counsel: “Objection, Your Honor.”
{¶14} Trial Court: “I’m going to sustain that.”
{¶15} Appellant also objects to the following exchange between the assistant
prosecutor and Deputy Barger:
{¶16} Assistant Prosecutor: “Based on your investigation, did you come to any
conclusions?”
{¶17} Deputy Barger: “Yes.”
{¶18} Assistant Prosecutor: “What did you conclude?”
{¶19} Deputy Barger: “That the Defendant assaulted the victim. And,
unfortunately, there was no cameras on the west side of the building where you’d be able
to see a lot more. But if you noticed in the video, when Mr. Thompson again in the blue
T-shirt, he was running around the vehicles, that is when the Defendant obviously still
had the knife in his hand, and he made the statement to him such as * * *”
{¶20} Defense Counsel: “Objection.”
{¶21} Deputy Barger: “Do you want * * *”
{¶22} Trial Court: “Okay, you can’t * * *”
{¶23} Deputy Barger: “Okay.”
{¶24} Trial Court: “I’ll sustain that.”
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{¶25} Defense counsel: “Thank you, Your Honor.”
{¶26} A trial court’s decision on whether to provide cautionary instructions is
reviewed for abuse of discretion. State v. Frost, 14 Ohio App. 3d 320, 322 (11th
Dist.1984). The phrase “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record. State v. Ferranto, 112
Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court
“applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App. 3d 401, 2008-
Ohio-1720, ¶15 (8th Dist.) We discern no abuse of discretion on this issue.
{¶27} First, as the state notes, the trial court did, in fact, give the following
instruction to the jury before the commencement of testimony: “If a question is asked and
an objection to the question is sustained, you will not hear the answer. You must not
speculate as to what the answer might have been or as to the reason for the objection.”
Perhaps it would have been best if the trial court had reiterated this at the time of the two
objections in question, but it was not required to do so, as we must presume a jury follows
the instructions given it by the trial court. State v. Tackett, 11th Dist. Lake No. 2012-L-
130, 2013-Ohio-4098, ¶18. Further, it is difficult to see how appellant suffered prejudice
because Mr. Thompson testified he discovered the knife, and additionally stated appellant
asked him if he “wanted any.”
{¶28} The first assignment of error lacks merit.
{¶29} Appellant’s second assignment of error asserts:
{¶30} “The trial court erred when it failed to sustain the appellant’s Crim.R. 29
motion and affirm the conviction by the jury as the evidence presented at trial was
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insufficient to support a determination that the appellant was guilty of felonious assault
with respect to alleged victim number two, Darrell Thompson.”
{¶31} Appellant argues that the state did not prove by sufficient evidence he
intended to harm Mr. Thompson.
{¶32} A Crim.R. 29 motion challenges the sufficiency of the evidence introduced
by the state to support a conviction. State v. Stefl, 11th Dist. Lake No. 2009-L-088, 2010-
Ohio-591, ¶18. A “sufficiency” argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.
State v. Windle, 11th Dist. Lake No.2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper
inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury
could have found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Troisi, 179 Ohio App. 3d 326, 2008-Ohio-6062 ¶9 (11th Dist.)
{¶33} Appellant was convicted of felonious assault against Mr. Thompson
pursuant to R.C. 2903.11(A)(2), which provides, in pertinent part:
{¶34} “(A) No person shall knowingly do either of the following:
{¶35} “* * *
{¶36} “(2) Cause or attempt to cause physical harm to another * * * by means of
a deadly weapon or dangerous ordnance.”
{¶37} A finder of fact may infer a defendant’s intent to cause physical harm from
his or her actions and the surrounding circumstances. See e.g. State v. Seiber, 56 Ohio
St.3d 4, 15 (1990). “A ‘criminal attempt’ [occurs] when one purposely does or omits to do
anything which is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime. To constitute a substantial step, the
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conduct must be strongly corroborative of the actor’s criminal purpose. (R.C. 2923.02(A)
construed.)” State v. Woods, 48 Ohio St. 2d 127 (1976), paragraph one of the syllabus
(vacated on other grounds). To constitute a substantial step, the offender’s conduct need
not be the last proximate act prior to the commission of the offense, but it “must be
strongly corroborative of the actor’s criminal purpose.” Id. A defendant who steps toward
a victim while holding a knife ready for use may be reasonably viewed as taking a
substantial step toward the execution of an assault. State v. Workman, 84 Ohio App. 3d
534, 537 (9th Dist.1992). Additional evidence, such as verbal threats and violent
behavior, may be considered in the determination of whether sufficient evidence supports
a conviction for felonious assault. See e.g. State v. Brown, 97 Ohio App. 3d 293, 299 (8th
Dist.1994).
{¶38} In support of his claim that the conviction was not supported by sufficient
evidence, appellant cites State v. Smith, 9th Dist. Lorain No. 98CA007168, 2000 WL
110411 (Jan. 26, 2000). In that case, the alleged victim observed the defendant arguing
with a third party. When the alleged victim tried to intervene, he noticed that the defendant
was holding a knife with the blade open. The defendant then waved the knife and advised
the alleged victim, “I'm going to cut you. I'm going to get you.” The defendant began
walking toward the alleged victim, still waving the knife and shouting vulgarities. The
alleged victim advised the defendant that the police were present, and the defendant
stopped approaching. At that point, the defendant fled on foot, throwing the knife in grass.
The Ninth District held the defendant’s actions were merely preparatory and insufficient
to convey an intention to carry out his expressed threat of harm. Id. at *3. The court
underscored the defendant never lunged at the alleged victim, he was not holding the
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knife in a manner that would permit him to carry out his stated intentions, and did not take
any additional action beyond a continuation of his verbal tirade. Id.
{¶39} The facts and circumstances of the instant case demonstrate appellant took
a substantial step in the commission of felonious assault. Mr. Thompson observed
appellant charge Ms. Higley and punch her in the face. Appellant was holding a knife
approximately six to eight inches in length. He held the knife forward and it remained in
his hand as he struck Ms. Higley. As Mr. Thompson approached to help Ms. Higley,
appellant stepped toward him and asked if he “wanted some too.” Mr. Thompson then
fled behind his car.
{¶40} Under the circumstances, appellant, who had just assaulted a third party
and was brandishing a relatively large knife, threatened Mr. Thompson while moving
toward him. Given the entirety of the circumstances, a reasonable juror could conclude
appellant had taken a substantial step in knowingly attempting to cause physical harm to
Mr. Thompson with a deadly weapon.
{¶41} The second assignment of error is without merit.
{¶42} The third assignment of error states:
{¶43} “The trial court erred when it failed to sustain the appellant’s Crim.R. 29
motion and affirm the conviction of the jury as the evidence presented at trial was
insufficient to support a determination that the appellant was guilty of felonious assault
with respect to alleged victim number one, Diana Higley.”
{¶44} Appellant challenges his conviction under R.C. 2903.11(A)(2) for assaulting
Ms. Higley with his knife. Appellant notes he had turned the knife’s blade backward when
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he punched Ms. Higley. Consequently, he asserts, again, that there is no overt act
directed toward physically harming her with the knife. We do not agree.
{¶45} Appellant struck Ms. Higley in the face with a fist holding a knife. Having the
knife in the hand with which he committed this first assault did more than cause Ms. Higley
to believe that physical harm was imminent: it was an overt act, in and of itself, directed
to causing her further physical harm.
{¶46} The third assignment of error lacks merit.
{¶47} The judgment of the Ashtabula County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
_______________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
{¶48} I concur with the majority’s well-reasoned disposition of appellant’s first and
second assignments of error. However, I find merit in his second assignment of error,
and would reverse his felonious assault conviction regarding Mr. Thompson. Instead, I
would apply the reasoning of the Ninth District in Smith, supra. The court observed:
{¶49} “In order to establish a knowing attempt to cause physical harm, the state
was required to demonstrate that Smith had the criminal intent to harm George, and that
his conduct represented a substantial step in carrying out that intent. See State v. Brooks
(1989), 44 Ohio St. 3d 185, 190-191, * * *, quoting State v. Farmer (1951), 156 Ohio St.
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214, 216, * * *. Although Smith’s actions ‘need not be the last proximate act prior to the
consummation of the felony(,)’ id. at 190, ‘there must (have been) some overt act directed
toward physical harm which (was) beyond behavior that merely causes another to believe
physical harm is imminent.’ State v. Clark (June 27, 1991), Cuyahoga App. No. 58270,
unreported.
{¶50} “* * *
{¶51} “Pointing a knife at an individual is different from pointing a gun, even
though both are deadly weapons. Pointing a knife at someone is generally only one of
several steps preparatory to using it to injure another, rather than the penultimate one.
That act alone, or even when accompanied by verbal threats, is equivocal as to whether
the assailant was trying to harm the victim, or merely intending to frighten him, one of the
primary distinctions between felonious assault, R.C. 2903.11(A)(2), and aggravated
menacing, R.C. 2903.21(A). See Brooks, 44 Ohio St. 3d at 192, * * *.” (Parallel citations
omitted.) Smith, 2000 WL 11041, at *2-3.
{¶52} I find this argument persuasive. At the time appellant threatened Mr.
Thompson, the two were about five feet apart according to the latter’s testimony, and
appellant had the knife pointed down, at his side. There was no overt act by appellant
directed toward causing Mr. Thompson physical harm – merely action that might cause
him to believe such harm was imminent. This is insufficient evidence to support a
conviction for felonious assault under RC. 2903.11(A)(2). Smith at *2-3.
{¶53} I respectfully concur and dissent.
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