State v. Dean , 2019 Ohio 1391 ( 2019 )

[Cite as State v. Dean, 2019-Ohio-1391.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 18CA011290
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DA'JON DEAN COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 17CR096378
DECISION AND JOURNAL ENTRY
Dated: April 15, 2019
HENSAL, Judge.
{¶1} Da’Jon Dean appeals his felonious-assault conviction from the Lorain County
Court of Common Pleas. This Court affirms.
I.
{¶2} A grand jury indicted Mr. Dean on one count of felonious assault, one count of
assault, and one count of aggravated riot based upon his involvement in a bar fight. Mr. Dean
waived his right to a jury, and the case proceeded to a bench trial.
{¶3} At trial, the State presented testimony from witnesses who explained that the fight
broke out in the poolroom of the bar, that multiple people became involved, and that it was “just
madness.” The victim in this case testified that he became involved because he was trying to
help his friend who was being kicked and punched by several people. While trying to help his
friend, the victim was struck in the head with a billiard ball, which caused his head to
immediately swell. The victim testified that he suffered a concussion, that the impact caused a
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chip in his skull, and that he still experiences headaches as a result of the injury. The State then
presented surveillance footage showing Mr. Dean throwing the billiard ball at the victim’s head.
{¶4} After the State rested, the defense moved for an acquittal on the felonious-assault
count on the basis that a billiard ball is not a deadly weapon. The trial court denied the motion
and, after the defense indicated that it was not presenting any evidence, denied the defense’s
renewed motion for acquittal. The trial court found Mr. Dean guilty of felonious assault and
aggravated riot. It found him not guilty of assault. Mr. Dean has appealed his felonious-assault
conviction, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE VERDICT ON COUNT ONE IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE
AND CONTRARY TO LAW.
{¶5} In his first assignment of error, Mr. Dean challenges both the sufficiency and the
manifest weight of the evidence presented at trial. Sufficiency and manifest weight are legally
distinct issues. State v. Lee, 158 Ohio App. 3d 129, 2004-Ohio-3946, ¶ 17 (9th Dist.).
Notwithstanding, we will address them together.
{¶6} Whether a conviction is supported by sufficient evidence is a question of law,
which we review de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). In carrying out
this review, our “function * * * is to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus. “The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
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prosecution, any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Id.
{¶7} Regarding a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “weigh the evidence and all reasonable inferences,
consider the credibility of witnesses 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. Otten, 33 Ohio App. 3d
339, 340 (9th Dist.1986).
{¶8} Mr. Dean was convicted of felonious assault under Revised Code Section
2903.11(A)(2). In relevant part, that Section prohibits persons from causing physical harm to
another by means of a deadly weapon. Section 2923.11(A) defines “[d]eadly weapon” as “any
instrument, device, or thing capable of inflicting death, and designed or specially adapted for use
as a weapon, or possessed, carried, or used as a weapon.”
{¶9} In his merit brief, Mr. Dean asserts that the State failed to present evidence
showing that he knowingly caused physical harm to the victim. He, however, has not developed
any argument in support of his position. See App.R. 16(A)(7). Accordingly, this Court will not
address that issue. Mr. Dean also asserts that the State failed to present evidence showing that a
billiard ball is a deadly weapon for purposes of establishing felonious assault. This Court
disagrees.
{¶10} As the Ohio Supreme Court has stated, a trier of fact “is permitted to infer the
deadly nature of an instrument from the facts and circumstances of its use.” State v.
Vondenberg, 61 Ohio St. 2d 285, 289 (1980). To that end, “[t]he manner of use of the instrument
is what is determinative.” (Alteration sic.) State v. Norris, 9th Dist. Summit No. 27630, 2016-
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Ohio-1526, ¶ 13, quoting State v. Goodwin, 6th Dist. Lucas No. L–12–1341, 2014-Ohio-2323, ¶
33. Here, the State presented evidence indicating that Mr. Dean picked up a billiard ball and
threw it at the victim’s head with such force that – after it struck the victim – it ricocheted across
the room. The State also presented photographs of the victim that showed a disturbingly large
welt on the victim’s head, and elicited testimony from the victim, who stated that he suffered a
concussion, and that the impact caused a chip in his skull. Viewing this evidence in a light most
favorable to the State, we conclude that the State presented sufficient evidence for the trier of
fact (i.e., the trial court) to infer the deadly nature of the billiard ball from the facts and
circumstances of its use. Vondenberg at 289; see, e.g., State v. Gates, 8th Dist. Cuyahoga No.
78120, 2001 WL 534163, *6 (May 17, 2001) (holding that, based upon its manner of use, a rock
constituted a deadly weapon); State v. Ramos, 9th Dist. Lorain No. 05CA008830, 2006-Ohio-
4534, ¶ 13 (holding that, based upon its manner of use, a mug constituted a deadly weapon).
We, therefore, reject Mr. Dean’s challenge to the sufficiency of the evidence. We likewise reject
his challenge to the manifest weight of the evidence, which is based solely on his position that he
did not use a deadly weapon. Mr. Dean’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILURE TO STATE A DEFENSE OF
OTHERS CLAIM.
{¶11} In his second assignment of error, Mr. Dean argues that his trial counsel provided
ineffective assistance because he did not assert the affirmative defense of defense of others. This
Court disagrees.
{¶12} “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,
112 Ohio St. 3d 377, 2006-Ohio-6679, ¶ 62. “To establish ineffective assistance, [a defendant]
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must show (1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694
(1984) and State v. Bradley, 42 Ohio St. 3d 136 (1989). If a defendant fails to prove one prong
under Strickland, this Court need not address the other prong. State v. Lortz, 9th Dist. Summit
No. 23762, 2008-Ohio-3108, ¶ 34.
{¶13} “To assert an affirmative defense of defense of others a defendant must prove that
he was protecting another person from immediate danger of bodily harm and that the other
person would be able to assert the defense for him- or herself.” State v. Frazier, 7th Dist.
Belmont No. 16 BE 0040, 2017-Ohio-8594, ¶ 21, citing State v. Wenger, 58 Ohio St. 2d 336
(1979). As the Ohio Supreme Court has stated, “one who intervenes to help a stranger stands in
the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the
intervenor is not justified in his use of force * * *.” Wenger at 340.
{¶14} As previously noted, the State presented surveillance footage and the testimony of
the victim, both of which indicated that the victim became involved in the fight because he was
trying to help his friend, who was being kicked and punched by several people. When the victim
intervened, some – if not all – of the people attacking his friend then started to attack the victim.
Nonetheless, Mr. Dean asserts that “other people started the [fight,]” and that he threw the
billiard ball at the victim to protect his friends. He provides no indication, however, as to who
the “other people” were. This is significant because a claim for self-defense (and, thus, a claim
for defense of others) requires the defendant to demonstrate that he “was not at fault in creating
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the situation giving rise to the affray[.]” State v. Robbins, 58 Ohio St. 2d 74 (1979), paragraph
two of the syllabus.
{¶15} Having reviewed his argument, we conclude that Mr. Dean has not adequately
explained how his friends were justified in their use of force, nor has he adequately explained
how he was justified in his use of force to purportedly protect them from immediate danger or
bodily harm. He, therefore, has not established that his trial counsel rendered ineffective
assistance by not raising the affirmative defense of defense of others. Accordingly, Mr. Dean’s
second assignment of error is overruled.
III.
{¶16} Mr. Dean’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DENISE G. WILMS, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.