State v. Hymes , 2021 Ohio 3439 ( 2021 )

[Cite as State v. Hymes, 2021-Ohio-3439.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JASON HYMES,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0130
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 19 CR 157
BEFORE:
Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Chief,
Criminal Division, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. Louis DeFabio, 4822 Market Street, Suite 220, Youngstown, Ohio 44512 for
Defendant-Appellant.
–2–
Dated: September 23, 2021
Robb, J.
{¶1} Defendant-Appellant Jason Hymes Sr. appeals his conviction entered in the
Mahoning County Common Pleas Court after a jury found him guilty of murder, felonious
assault, and two offenses which were merged with these counts. He sets forth arguments
on: the admissibility of other acts evidence; sufficiency and weight of the evidence on the
element of purpose for the murder charge in count one; prosecutorial misconduct in
closing arguments; the denial of a mistrial after a spectator’s outburst during closing
arguments; and whether the court should have merged felonious assault with murder.
For the following reasons, Appellant’s convictions are affirmed.
STATEMENT OF THE CASE
{¶2} On February 13, 2019, Ryan Weaver Hymes (the victim) went to a bar with
her husband (Appellant) in Youngstown. A video obtained from the bar’s outdoor
surveillance system showed Appellant’s lengthy assault on the victim in the parking lot.
Appellant’s truck was parked directly in front of the door of the bar with the rear of the
vehicle facing the door; the bar’s camera was pointed at the passenger side. The victim
exited the bar and got in the passenger side of the truck. Appellant then exited the bar
and got in the driver’s seat. After several seconds, the truck rocked from side to side.
{¶3} The victim kicked her door open in an attempt to exit. Appellant can be
seen on the passenger side facing the victim. He reached his left hand out in an attempt
to close the door, but hit the victim’s foot with the door and ripped the interior panel off
the door. He lifted the victim’s legs and pressed her body into the seat; her foot was lifted
all the way to the top of the door frame. He again tried to close the door from the
passenger side while facing the back of the truck.
{¶4} At this point, the victim exited the vehicle from the back door; this placed
her in a position between the two doors as the back door was hinged at the rear. Appellant
grabbed the victim and forcefully pressed her backward into the truck by her hair. He
then picked her legs up and shoved her into the front seat. She attempted to latch her
feet onto the edge of the truck.
Case No. 19 MA 0130
–3–
{¶5} The victim was able to step out of the vehicle again, but Appellant pushed
her back by the face multiple times. Appellant’s brother approached and tried to hold
Appellant back while Appellant continued pressing the victim’s legs into the vehicle.
Appellant seemed to pause as his brother talked to him.
{¶6} When the victim stepped out of the truck again, Appellant roughly grabbed
her and seemed to hit her face as he pressed her against the open door. Appellant’s
brother again attempted to intervene, but Appellant knocked the victim to the ground,
grabbed her by the hair and by the circular scarf around her neck, and began pulling her
around. Another bystander intervened as the victim struggled to pull the scarf over her
head.
{¶7} Appellant punched his way out of the truck as the men attempted to push
him into it. He maintained his grip on the victim’s hair and brought the victim to the ground
while seemingly hitting her in the face. He threatened to hit his brother while the
bystander seemed to scold him and the victim sat on the ground holding her nose. After
the victim stood up, Appellant pushed her hard causing her to fly backwards onto the
passenger seat. She exited the vehicle again.
{¶8} Appellant then can be clearly seen punching the victim hard in the face as
she was pinned against the open door. He picked her up and threw her in the air toward
the passenger area, causing her head/face to slam into the truck’s door frame. He
retrieved her from the ground and shoved her into the front seat, repeatedly slamming
down her legs, which were in the air.
{¶9} Appellant continued to press the victim into the vehicle. When she stopped
resisting, he tried to get the broken passenger door to close. A third bystander ran to the
scene from across the street. Appellant appeared to threaten to fight his brother while
the second bystander intervened. The victim then exited the truck and held a napkin to
her nose. She approached Appellant and walked with him toward the driver’s side of the
truck. He then pushed her toward the vehicle, and she entered the truck through the
driver’s door followed by Appellant. She shut the passenger door, and they immediately
drove away (approximately six minutes after his rampage began).
{¶10} In addition to the surveillance video, the state presented the testimony of
Appellant’s brother. He testified he exited the bar to calm Appellant. He described the
argument he witnessed as “somewhat physical.” He claimed he did not see Appellant hit
Case No. 19 MA 0130
–4–
the victim, but he also said he was struck by Appellant in the mouth during his attempts
to intervene. (Tr. 257-258). Appellant’s brother phoned his wife so she could accompany
him to the hospital as to have his tooth and bleeding lip evaluated. (Tr. 258-259).
{¶11} The victim’s twelve-year-old daughter, who called Appellant “dad” her entire
life, was present when Appellant returned to their house in Youngstown after the bar
incident. She described his demeanor as “mad” and “panicking.” He told her to stay at
the house and said he would return shortly. (Tr. 310).
{¶12} Appellant returned with the victim who appeared hurt: her face and eyes
were red; she was limping; and she was speaking in a low tone. (Tr. 311-312). Appellant
descended to the basement with the victim. The child heard “breaking, and boom, boom
* * * a lot of noise.” (Tr. 312). Both were yelling at the same time with Appellant telling
the victim, “You need to stop having a smart mouth” while the victim screamed, “stop,
Jason, stop.” (Tr. 313). The child was scared.
{¶13} When the victim ascended from the basement, she appeared “Hurt more,
like then she had a little more bruises on her.” The child told the victim she was departing
for a cousin’s house across the street. (Tr. 314). Before she left, the child witnessed
Appellant punch the victim in the face. (Tr. 320). The child ran across the street in a
panic and called 911 at 10:20 p.m. and again at 10:36 p.m. (Tr. 315-316, 333, 500);
(St.Ex. 2). She very quietly reported her dad was beating her mom.
{¶14} Officers were dispatched to the residence for a report of a fight; they
conducted a welfare check and left. (Tr. 512-513). The child stayed at the cousin’s house
that night. Before going to sleep, the child called Appellant’s phone and spoke to her
mother, asking her to go to the hospital. The victim said she was fine and was going to
sleep. (Tr. 316). Appellant told the child, “you don’t call the police on me. Tomorrow I’m
taking that phone.” (Tr. 317).
{¶15} As it approached midnight, Appellant’s brother arrived home from his
emergency room visit and received a call from Appellant, who insisted he come over for
some issue related to the victim. (Tr. 261, 280). Appellant’s brother and his wife arrived
to find Appellant in the kitchen while the victim was on her back on the floor in the child’s
bedroom. Appellant’s brother said it seemed as if the victim was having a seizure as she
was shaking, her eyes were open (but not really looking at him), and she was
Case No. 19 MA 0130
–5–
unresponsive. (Tr. 263). Appellant reported the victim had no history of seizures. (Tr.
507).
{¶16} Appellant’s sister-in-law testified Appellant appeared very nervous and
scared when they arrived at his house. He told them: he was arguing with the victim in
the kitchen; she said she was leaving and was going to get her clothes; she ran into the
child’s room; and he heard a noise like someone fell. (Tr. 266, 283-284). Appellant’s
sister-in-law called 911 at 12:08 a.m. (on February 14, 2019), reporting the victim and her
husband had been fighting and the victim was unconscious. (Tr. 264, 500). Before the
ambulance arrived, Appellant said, “Sis, they gonna take me to jail.” (Tr. 284).
{¶17} The victim was still unconscious when she arrived at the emergency room.
CAT scans showed bilateral acute subdural hematoma (blood clots on both sides of her
brain). (Tr. 423, 456). The bleeding compressed the brain restricting blood flow. (Tr.
457). A neurosurgeon arrived at the hospital and found the victim comatose with minimal
brain function. Her recovery chances were “very, very small,” but the family wanted
everything done, the trauma was recent, and she was young; so, the neurosurgeon
performed surgery to remove the clots along with a craniectomy (bone removal from the
sides of the skull) to relieve swelling. (Tr. 424, 426). He opined the victim’s condition
was caused by “a lot of trauma” and not by a simple slip-and-fall from a standing height,
noting the clots were large and on both sides of the head. (Tr. 428-429).
{¶18} After a few hours at the hospital, Appellant visited the victim’s sister to tell
her about the victim’s condition. He was shaking as he reported the victim was “messed
up” and “something bad happened.” (Tr. 240). The victim’s sister testified her husband
grabbed Appellant and Appellant insisted he “never touched her” (while Appellant’s
brother agreed). (Tr. 241).
{¶19} After the victim arrived at the hospital, the police began investigating
Appellant for felonious assault on the victim. They took photographs of her in the hospital
bed (while a nurse pointed out various injuries). (Tr. 342). They found the victim’s blood
on a bloody napkin in the driveway behind Appellant’s truck. (Tr. 409-410). There were
additional bloody napkins and spots of her blood in the truck. (Tr. 353-354, 360, 411).
The victim’s blood was also on Appellant’s shirt. (Tr. 413).
{¶20} Appellant told the police the same story he told his brother and sister-in-law
and denied hitting the victim that night. When confronted with the blood evidence, he
Case No. 19 MA 0130
–6–
said he may have “threw an elbow at her” and initiated “a bearhug to get her back in the
truck because she was trying to get out.” When the detective mentioned the bar may
have a video surveillance system, Appellant admitted to striking the victim twice at the
bar. He denied being aware the victim was bleeding but later suggested she may have
been bleeding at their home. (Tr. 490). He continued to deny hitting the victim while they
were at home that night. (Tr. 492).
{¶21} The victim’s already minimal brain function quickly deteriorated, and the
breathing machine was stopped with the family’s consent. (Tr. 427-428). She died on
February 15, 2019. That same day, Appellant was recorded during a jail call saying the
video from the bar “needed to come up missing.” (Tr. 506). The victim’s sister testified
Appellant later said he was sorry while asking to see the victim’s child. (Tr. 244). The
victim’s child testified Appellant called her, said he “didn’t mean to do it,” and apologized.
(Tr. 319).
{¶22} The forensic pathologist concluded the cause of death was blunt force
trauma (from blunt force injuries) to the head with the manner of death being a homicide.
(Tr. 470). He viewed the video, noticing the head impacts, and read the police reports.
(Tr. 446-447). He said the vast majority of bilateral acute subdural hematomas are
caused by head injury; theoretically, bleeding on both sides could be caused by one
impact if it was severe enough. (Tr. 460-461, 472). An x-ray showed the victim also
suffered fractured nasal bones. (Tr. 451). The forensic pathologist identified photographs
showing bruises on the victim’s: bottom lip, around both eyes, behind both ears, on the
front and back of her thighs and lower legs, and on both arms. She had abrasions on her
leg, wrist, and arms. (Tr. 452-455).
{¶23} At trial, the detective testified to Appellant’s statements and pointed out
parts of the assault seen in the video, including the following acts by Appellant: dragging
the victim on the ground by her scarf; punching her “hard” twice in the head; and causing
a bloody nose (which the victim cleaned with a napkin). (Tr. 508, 516, 520-521). The
state’s closing argument additionally pointed to the part of the video showing Appellant
slamming the victim’s head against the door frame of the truck.
{¶24} The jury found Appellant guilty of the four counts in the indictment: (1)
murder for purposely causing the death; (2) murder for causing the death as the proximate
result of committing a felony of violence of the first or second degree; (3) felonious assault
Case No. 19 MA 0130
–7–
for knowingly causing serious physical harm (a second-degree felony); and (4) domestic
violence for knowingly causing or attempting to cause physical harm to a family or
household member (a fourth-degree felony due to a prior conviction, which was the
subject of a defense stipulation).
{¶25} The state elected to proceed to sentencing on the murder in count one
rather than the murder in count two which would merge; the state also agreed the
domestic violence count should be merged into the felonious assault count. The state
argued the remaining murder and the felonious assault would not merge as they were
committed separately at two different locations and were offenses of dissimilar import as
the victim suffered separate and identifiable harm. (Sent.Tr. 5-8). The court agreed and
found support for the alternate theory of separate animus. (Sent.Tr. 19-22).
{¶26} The court sentenced Appellant to fifteen years to life for murder (with
purpose) and eight years for felonious assault to run consecutively. Appellant filed a
timely notice of appeal from the October 28, 2019 sentencing entry.
ASSIGNMENT OF ERROR ONE: OTHER ACTS
{¶27} Appellant sets forth five assignments of error on appeal. His first
assignment of error contends:
“The trial court erred in permitting the State to introduce other acts evidence.”
{¶28} The state filed a notice of intent to use evidence with a motion in limine
asking the court to admit evidence of Appellant’s prior violent history with the victim. The
motion said the evidence demonstrated absence of mistake or accident and was relevant
to his identity as the cause of death (as opposed to a fall causing the death). In arguing
the motion before trial, the state emphasized Appellant’s claim to the police that the
victim’s death was caused by a slip and fall and urged his history of violence toward the
victim was relevant to show the lack of accident or mistake and to show his conduct was
purposeful. (Tr. 188-189, 196-197). The defense argued the other acts evidence could
not be considered unless the defense opened the door by presenting Appellant’s
testimony and argued the evidence was unfairly prejudicial. (Tr. 187, 194).
{¶29} The trial court ruled the defendant’s claim of accident did not have to be
elicited from the stand in order for the other acts evidence to be admitted and found the
evidence could be admitted to show lack of accident or mistake as to how the victim died.
Case No. 19 MA 0130
–8–
(Tr. 194-195). Defense counsel asked the court to note a continuing objection to the
evidence, and the court said it would. (Tr. 200).
{¶30} Still, the court indicated the matter would be further judged during trial. The
decision was a preliminary ruling before the actual presentation of the evidence during
the trial testimony where it could be adjudged in context upon proper objection. The
preliminary issue presented in a motion in limine must be renewed at trial when the
evidence is actually presented or the argument made therein is waived for purposes of
appeal. State v. Hill, 75 Ohio St.3d 195, 202-203, 661 N.E.2d 1068 (1996).
{¶31} On appeal, Appellant claims the court improperly allowed the state to
present other acts evidence to demonstrate his propensity for assaulting his wife and to
show he acted in conformity with his character. He says the state used the evidence to
paint a picture that it was only a matter of time before he killed his wife. He contests the
following testimony on other acts.
{¶32} Appellant’s sister-in-law was asked about the relationship between
Appellant and the victim. She said it was sometimes loving but they would argue and
fight, answering in the affirmative when asked if the relationship ever got physical. (Tr.
278). There was no objection entered. If a timely objection was lacking, then the
appellant must not only show an error occurred and the error was obvious, but he must
also show it affected the outcome of the trial. State v. Graham, __ Ohio St.3d __, 2020-
Ohio-6700 at ¶ 93 (finding error in admitting other acts evidence but refusing to find plain
error as the error did not affect the outcome of trial), citing State v. Barnes, 94 Ohio St.3d
21, 27, 759 N.E.2d 1240 (2002). The general, non-specific testimony of Appellant’s
sister-in-law would not have affected Appellant’s substantial rights under the
circumstances of this case. The real focus is on the other acts testimony of the victim’s
sister, the victim’s child, and on statements Appellant made to the detective.
{¶33} The victim’s sister testified she first realized Appellant was abusive when
she looked out her door and saw the victim “fly across the street, like her body.” She did
not see the actual physical motion by which Appellant caused this to occur, but she yelled
at him not to put his hands on her sister and he apologized. (Tr. 231-232). Another time,
she intervened when Appellant was “dragging [the victim] up and down the street.” (Tr.
231-232). In the past, she observed the victim with injuries such as a broken nose, teeth,
and fingers. (Tr. 232). Over objection, the victim’s sister testified: the victim told her
Case No. 19 MA 0130
–9–
Appellant caused these injuries; the victim told the hospital staff she was injured in a fall;
and the staff said the victim’s body could not take much more. (Tr. 232-233, 236).
{¶34} The victim’s child testified: she asked Appellant if he would stop hitting her
mother months before the victim’s death; he said he would; and the situation got worse.
(Tr. 307-308). She stated she witnessed Appellant’s prior acts of punching, hitting,
throwing, and kicking the victim; she associated the behavior as occurring after Appellant
drank liquor. (Tr. 304). The child said he would threaten the victim by stating: “I’m gonna
hurt you if you don’t stop talking.” (Tr. 306). The child mentioned calling her step-brother
on the night at issue because “his mom went through it, so obviously I think he would
know what to do” (not necessarily referring to Appellant). (Tr. 314). There were no
objections during these portions of the child’s testimony.
{¶35} The detective testified he asked Appellant about past violence in the
relationship. Over objection, the detective said Appellant “initially downplayed it, but
ultimately admitted to having some physical altercations” with the victim in the past. (Tr.
491). Appellant said one such altercation resulted in “a cut over her eye” which occurred
when he “grabbed her and she slipped and fell and hit her eye”; Appellant also
acknowledged the victim “has lied for him in the past when they have gone to the hospital.”
(Tr. 491-492).1
{¶36} “Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity 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). “Thus,
while evidence showing the defendant's character or propensity to commit crimes or acts
is forbidden, evidence of other acts is admissible when the evidence is probative of a
separate, nonpropensity-based issue. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-
4440, 161 N.E.3d 651, ¶ 22.
1 Appellant complains the state’s notice of intent to use evidence (which sought to introduce other acts by
Appellant against the victim) mentioned the victim’s sister and the victim’s child as witnesses to prior
incidents but did not mention the detective would be testifying about Appellant’s statement about their past.
However, Evid.R. 404(B) says the proponent of the evidence “shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.” (Emphasis added.) In addition, Appellant’s statement was
recorded and provided in discovery.
Case No. 19 MA 0130
– 10 –
{¶37} A trial court is precluded as a matter of law from admitting improper
character evidence under Evid.R. 404(B) but has discretion to admit other acts evidence
which has a permissible purpose. State v. Graham, __ Ohio St. 3d __, 2020-Ohio-6700,
__ N.E.3d __, ¶ 72, citing Hartman, 161 Ohio St.3d 214 (“the admissibility of other-acts
evidence pursuant to Evid.R. 404(B) is a question of law”), citing State v. Williams, 134
Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 17 (the rule bars evidence to prove
character in order to demonstrate conforming conduct, but it gives the trial court discretion
to admit other acts evidence for a permissible other purpose). The court employs:
a three-part analysis for determining the admissibility of other-acts
evidence: to be admissible, (1) the evidence must be relevant, Evid.R. 401,
(2) the evidence cannot be presented to prove a person's character to show
conduct in conformity therewith but must instead be presented for a
legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the
evidence cannot be substantially outweighed by the danger of unfair
prejudice, Evid.R. 403.
Graham, __ Ohio St. 3d __, 2020-Ohio-6700, __ at ¶ 72.
{¶38} In general, evidence is relevant if it tends “to make the existence of any fact
that is of consequence to the determination * * * more probable or less probable than it
would be without the evidence.” Evid.R. 401. See also Hartman, 161 Ohio St.3d 214 at
¶ 24; Evid.R. 402 (“Evidence which is not relevant is not admissible.”). The relevancy
determination in this context asks “whether the evidence is relevant to the particular
purpose for which it is offered” which must be one other than character or propensity.
Hartman, 161 Ohio St.3d 214 at ¶ 26.
{¶39} Evid.R. 404(B) contains a “nonexhaustive list of the permissible
nonpropensity purposes for which other-acts evidence may be introduced.” Id. at ¶ 26.
“The nonpropensity purpose for which the evidence is offered must go to a ‘material’ issue
that is actually in dispute between the parties.” Id. at ¶ 27. Also, evidence of similar acts
“is relevant only if the jury can reasonably conclude that the act occurred and that the
defendant was the actor.” Id. at ¶ 28.
{¶40} If the evidence is not presented for character and has a permissible purpose
under Evid.R. 404(B), then the trial court uses its discretion to determine whether the
probative value “is substantially outweighed by the danger of unfair prejudice, of
Case No. 19 MA 0130
– 11 –
confusion of the issues, or of misleading the jury.” Id. at ¶ 29-30, citing Evid.R. 403(A).
The probative value and the unfairness of any prejudice can depend on the degree to
which the fact is truly in dispute and whether it can be shown with alternative evidence.
Id. at ¶ 31-32.
{¶41} First, we address Appellant’s claim there was no “substantial proof” he
committed the other acts. Hartman, 161 Ohio St.3d 214 at ¶ 28. He notes the testimony
was not corroborated with a police report or hospital record. “It is not essential to the
admissibility of evidence regarding prior incidents that such incidents were either reported
to police officials by the victim or resulted in a conviction.” State v. Jones, 7th Dist.
Mahoning No. 95 C.A. 98 (June 26, 1998) (admitting testimony on an incident where the
defendant held his former wife hostage with a rifle ten years prior to the prosecution for
the death of his current wife where the defendant claimed the shooting was accidental
while they were fighting over a gun), citing State v. Armstrong, 74 Ohio App.3d 732, 600
N.E.2d 690 (2d Dist.1991).
{¶42} Here, the “jury can reasonably conclude that the act occurred and that the
defendant was the actor.” See Hartman, 161 Ohio St.3d 214 at ¶ 28. The jury could
evaluate the credibility of the victim’s sister and the victim’s child who claimed to have
witnessed certain acts. Moreover, the detective testified as to Appellant’s own
admissions about: prior physical arguments, the victim lying for him at the hospital in the
past, and a specific incident where the victim ended up with a head wound and Appellant
claimed she slipped and fell during a fight.
{¶43} Second, we address Appellant’s argument that other acts evidence cannot
be admitted for a use permitted by Evid.R. 404(B) unless the defendant specifically
introduced evidence at trial on a defense related to a permissible use of other acts
evidence. Appellant points out the non-propensity purpose for admitting the other acts
evidence must relate to a material issue “actually in dispute.” See Hartman, 161 Ohio
St.3d 214 at ¶ 27. He complains the prosecution introduced the defendant’s statement
(that the victim was injured due to an accidental fall) and used this to assert a permissible
use under Evid.R. 404(B) without waiting to see if he would be opening the door to the
issue.
{¶44} As the trial court ruled at the motion in limine hearing, the permissible uses
of other acts evidence in Evid.R. 404(B) do not only apply when a defendant takes the
Case No. 19 MA 0130
– 12 –
stand or presents witnesses. See generally State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶ 20, 22, 30 (where the defendant told the police the child
fell down the stairs and presented no guilt phase witnesses, the Court upheld the decision
to admit evidence on prior incidents of injury to the child which the defendant had reported
were a result of his falling while holding the child).2 We note a defendant often does not
present witnesses because the state’s witnesses have the information relevant to
defending the case, defendants rarely testify, and there is no formal notice a defendant
must file disclosing every defense theory to the state. Also, the mere decision to forgo a
lengthy opening statement does not bar the state from establishing there is an issue
surrounding a permissible use of other acts evidence. The defendant’s own pretrial
statements can be used by the state to show the lack of mistake or accident is a material
issue in the case. See id.{¶45} Here, Appellant repeatedly claimed the victim was injured at home as a
result of an accident where she fell in a bedroom while running (from him after a night of
physical violence as captured on video and subsequently witnessed by the victim’s
twelve-year-old child). The state’s first two witnesses (Appellant’s brother and sister-in-
law) testified to Appellant’s claim at the scene while the victim was lying on the floor dying.
After summoning them and instead of calling 911, Appellant told them the victim was
injured when she slipped and fell while running into a bedroom (to pack and leave the
house). Appellant also told this story to the police when he was interviewed on the day
the victim was hospitalized, and the detective testified to Appellant’s claim. Appellant
also suggested to the detective he may have elbowed the victim in the face by mistake
while putting her in “a bearhug.” And, Appellant told the victim’s sister he did not put his
hands on the victim.
{¶46} Moreover, defense counsel asked the victim’s child whether her mother got
aggressive when she drank alcohol, eliciting a statement that the victim would sometimes
2 In a murder case where the state was required to show an intentional homicide, the United States
Supreme Court said evidence which eliminated the possibility of accident was probative of intent where the
defendant claimed before trial the victim injured herself by falling, regardless of whether the defendant
specified a defense of accidental death at trial. Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991) (noting the prosecution had the burden to prove every element of the crime). A
defendant’s claim of how an injury occurred to police and medical staff can reveal a possible defense of
accident, allowing the state to introduce other acts evidence of his prior assault on the same victim. People
v. Wright, 918 N.Y.S.2d 598, 601 (2011).
Case No. 19 MA 0130
– 13 –
hit Appellant (but only if he hit her first). Defense counsel cross-examined the
neurosurgeon on whether the brain trauma could have resulted from a fall, whether a
seizure could cause damage to the brain, and whether the bouncing of a head on the
floor during a seizure could cause problems. (Tr. 432). He also asked the forensic
pathologist whether the trauma to the victim’s brain could have occurred from just one
impact. (Tr. 472). In closing arguments, defense counsel mentioned the testimony
stating the victim appeared to be having a seizure. He also said the testimony showed
the victim’s injuries could have been sustained “by one fall” while noting she did not
appear seriously injured after the punches that were witnessed. (Tr. 580-581). Counsel
also urged there was no evidence showing Appellant had intent to purposely cause the
death of his wife. (Tr. 581).
{¶47} Appellant next suggests the evidence was not material to the absence of
mistake or accident exception. The state urges the absence of mistake or accident as to
the cause of the victim’s death and his purpose (intent) were material issues actually in
dispute. The state points out to negate a defendant's claim of mistake or accident, the
prosecution can use similar incidents to show the act in dispute was not inadvertent,
accidental, involuntary, or lacking in guilty knowledge. Hartman, 161 Ohio St.3d 214 at ¶
52. It is argued the case at bar implicates both categories discussed by Hartman in
explaining the two main ways a defendant raises a claim of accident: (1) a statement
disputing whether a criminal act occurred at all or (2) a statement disputing the act was
committed with criminal intent. Id. at ¶ 52-53.
{¶48} For the first category, the Court provided an example of the state alleging a
defendant killed his fourth wife by poison while the defendant claimed a certain natural
cause, which would allow evidence showing his other wives died with nearly the same
symptoms. Id. at ¶ 52. As to the second category, the Court provided the example of a
husband who claimed he accidentally shot his wife while hunting, which would allow
evidence he shot other wives under similar circumstances to show his intent in the most
recent shooting. Id. at ¶ 53.
{¶49} These examples do not require the past incidents to be close in time to the
current incident. This court has applied Ohio Supreme Court precedent allowing evidence
of prior acts of domestic violence to show motive, intent, and absence of mistake or
accident when the defendant later kills the victim. State v. Ash, 2018-Ohio-1139, 108
Case No. 19 MA 0130
– 14 –
N.E.3d 1115, ¶ 67 (7th Dist.) (even an incident temporally removed from the incident in
question can be admitted under an exception to show the tumultuous and strained
relationship), citing State v. Nields, 93 Ohio St.3d 6, 10, 22, 752 N.E.2d 859 (2001). See
also Jones, 7th Dist. No. 95 C.A. 98 (admissible other acts testimony on an incident with
former wife ten years before the defendant’s current wife was allegedly accidentally shot)
{¶50} In a death penalty case, the defendant said his child fell down the basement
steps. The Supreme Court upheld the admission of testimony about two prior hospital
visits where the defendant claimed the child was injured when the defendant fell while
holding the child. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955,
¶ 16-17, 109-111. “Such evidence was particularly relevant because it showed that [the
defendant’s] claim that [the child] died during an accidental fall was probably untrue.
Based on this evidence, the panel could reasonably infer that [the defendant] acted
purposefully in killing [the child].” Id. at ¶ 114.
{¶51} Here, the similar incidents involved the same victim. Appellant claimed no
criminal act caused the victim’s death as she died after slipping and falling. See Hartman,
161 Ohio St.3d 214 at ¶ 52. He also claimed some prior physical injuries that night were
mistakenly or accidentally inflicted and certain blows to the victim’s head did not cause
her death or were not struck with purpose to cause her death. See id. at ¶ 53.
Furthermore, when apologizing to the victim’s child soon after the death, he generally
claimed he “didn’t mean to do it.”
{¶52} Notably, Hunter involved the defendant’s claim the victim died after suffering
an accident by falling; the defendant’s story as to how the child died did not involve a
claim he accidentally injured the child. Similarly, the first qualifying example in Hartman
involved a defendant’s claim that something caused the victim’s death naturally rather
than a claim he accidentally caused it. This concept is on point as to Appellant’s story of
the victim’s death (the victim fell when she was running away from him to pack clothes
and leave him), and this story was similar to the story Appellant told the detective about
the victim’s past head injury (she received a cut above her eye during their fight when he
grabbed her and she fell). It also supports the testimony of the victim’s sister confirming
Appellant’s statement to the detective that the victim previously lied to cover for him by
saying she fell. The contested testimony was not presented as character or propensity
Case No. 19 MA 0130
– 15 –
evidence but was relevant to an exception to the other acts exclusion which was in
material dispute.
{¶53} Next, Appellant contends “the probative value [of the other acts evidence]
is substantially outweighed by the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury” and was required to be excluded under Evid.R. 403(A). There
was no indication the evidence would cause confusion or mislead the jury. The state
points out the evidence was highly probative to show the victim’s various injuries were
not caused by a mistake or accident and the death was caused with specific intent. It
was reasonable to find “under the circumstances, the detailed facts of the charged and
uncharged offenses strongly suggest that an innocent explanation is implausible.”
Hartman, 161 Ohio St.3d 214 at ¶ 58 (to determine whether other acts evidence is
genuinely probative of the intent of the accused to commit the charged crime, rather than
merely the accused's propensity to commit similar crimes).
{¶54} This probative value must be outweighed by not just prejudice but by “unfair
prejudice,” and this outweighing must be substantial. Evid.R. 403(A). “All state's
evidence is meant to be prejudicial.” State v. Rupp, 7th Dist. Mahoning No. 05 MA 166,
2007-Ohio-1561, ¶ 67, citing State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820
N.E.2d 302. Unfair prejudice is not evidenced by the harm caused to the defense by
admissible evidence which had a high probative value but involves an invitation to rule
based on invalid grounds. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 89.
{¶55} “Because fairness is subjective, the determination of whether evidence is
unfairly prejudicial is left to the sound discretion of the trial court and will be overturned
only if the discretion is abused.” State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550,
820 N.E.2d 302, ¶ 25. The decision was within the trial court’s discretion. State v.
Graham, __ Ohio St. 3d __, 2020-Ohio-6700, __ N.E.3d __, ¶ 72. Notably, the jury heard
strong evidence of Appellant’s violence toward the victim on the night her demise began:
the video showed Appellant striking the victim’s head with his fist at least twice and
causing her head to hit the truck, and later, the victim’s child heard the victim begging
Appellant to stop while banging emanated from their location in the basement and then
witnessed him punch the victim in the face. Furthermore, as the trial court concluded,
prejudice was lessened by the jury instruction. Williams, 134 Ohio St.3d 521 at ¶ 24
Case No. 19 MA 0130
– 16 –
(“This evidence is not unduly prejudicial, because the trial court instructed the jury that
this evidence could not be considered to show [the defendant] had acted in conformity
with a character trait. This instruction lessened the prejudicial effect”).
{¶56} At the end of trial, the court instructed the jury: “Evidence was received
about the commission of other acts other than the offenses with which the defendant is
charged in this trial. That evidence was received only for the limited purpose. It was not
received and you may not consider it to prove the character of the defendant in order to
show that he acted in accordance with that character. If you find that the evidence of
other acts is true and that the defendant committed them, you may consider that evidence
only for the purpose of deciding whether it proves the absence of mistake.” (Tr. 615-616).
We presume the jury followed the limiting instruction stating the other acts evidence was
not offered to prove the defendant’s character. Williams, 134 Ohio St.3d 521 at ¶ 23.
{¶57} Appellant argues this instruction should have been tailored to a particular
count. He states if the other acts evidence was admissible, then the jury should have
been instructed they could only use it for the murder count. He claims he never said the
assault at the bar was a mistake or an accident. However, when discussing the blood in
his truck, he indicated to the detective he may have accidentally hit the victim with an
elbow. He also commented he had her in a “bearhug” outside of the bar merely to get
her back in the truck, which impliedly suggested he may have accidentally hurt her in the
process, such as when he caused her head to hit the truck’s door frame. Evidence that
he bodily threw her in the past would be material to whether this incident was an accident.
Furthermore, his repeated slip and fall claims could allow the prosecution to conclude he
was suggesting the victim’s main injuries were caused by her alleged fall.
{¶58} In any event, at the motion in limine hearing, the court asked defense
counsel to draft the limiting instruction. (Tr. 198). And, there was no objection to the
limiting instruction when the court gave the final jury instructions. “On appeal, a party
may not assign as error the giving or the failure to give any instructions unless the party
objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection.” Crim.R. 30(A).
{¶59} Finally, an “improper evidentiary admission under Evid.R. 404(B) may be
deemed harmless error on review when, after the tainted evidence is removed, the
remaining evidence is overwhelming.” State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-
Case No. 19 MA 0130
– 17 –
5205, 123 N.E.3d 955 ¶ 177 (finding harmless error in capital case, where the state
presented other acts evidence including evidence the defendant was a suspect in a prior
robbery), quoting State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,
¶ 32. Without any consideration of other acts evidence, the evidence of the offenses was
overwhelming, including the independent incidents of felonious assault and the two types
of murder. As to the element of purpose for the count one murder, the evidence is further
discussed in the next assignment of error. In any event, the state properly introduced
other acts against the same victim to show the death was caused with specific intent and
not due to mistake or accident. This assignment of error is overruled.
ASSIGNMENT OF ERROR TWO: PURPOSE
{¶60} Appellant’s second assignment of error alleges:
“The jury’s verdict of Guilty as to the Count I Murder charge was not supported by
sufficient evidence and was against the manifest weight of the evidence.”
{¶61} This assignment of error relates to the murder charge in count one with the
elements of purposely causing the victim’s death. R.C. 2903.02(A).3 Appellant claims
the state failed to present sufficient evidence of his purposeful intent. Alternatively, he
contends the jury’s decision on the element of purpose was against the manifest weight
of the evidence.
{¶62} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). The standard for reviewing the sufficiency of the evidence to support
a criminal conviction on appeal is the same as the standard used to review the denial of
a motion for acquittal. See State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724(1996); Crim.R. 29(A) (motion for judgment of acquittal based on insufficient evidence).
{¶63} In reviewing the sufficiency of the evidence, the court views the evidence in
the light most favorable to the prosecution to ascertain whether any rational juror could
have found the elements of the offense proven beyond a reasonable doubt. State v. Goff,
3 We note even if Appellant’s contention on purpose had merit, a remand would involve the activation or
un-merging of the count two murder (proximately causing the death as a result of committing felony of
violence of the first or second degree) which was merged with the count one murder and which could be
viewed as dissimilar and separate from the felonious assault charge as there was more than one episode
of felonious assault, as discussed in the final assignment of error (finding the felonious assault did not
merge with the count one murder). The sentence of fifteen years to life applies to both types of murder in
R.C. 2903.02. See R.C. 2909.02(B)(1).
Case No. 19 MA 0130
– 18 –
82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). The rational inferences to be drawn from
the evidence are also evaluated in the light most favorable to the state. See State v.
Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999).
{¶64} An evaluation of witness credibility is not involved in a sufficiency review as
the question is whether the evidence is sufficient if it is believed. State v. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v. Murphy, 91 Ohio
St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency involves the state's
burden of production rather than its burden of persuasion. Thompkins, 78 Ohio St.3d at
390 (Cook, J., concurring). If the court finds insufficient evidence to support a conviction,
then a retrial is barred. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d
284, ¶ 16-20. Evidence presented by the state that was erroneously admitted by the trial
court can be considered in the sufficiency evaluation because the remedy for the
erroneous admission of prejudicial evidence is a new trial. See id.{¶65} “A person acts purposely when it is the person's specific intention to cause
a certain result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is his specific
intention to engage in conduct of that nature.” R.C. 2901.22(A). The specific intent to
cause death “may be presumed where the natural and probable consequence of the
wrongful act done is to produce death.” In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-
5307, 897 N.E.2d 629, ¶ 53. See also State v. Reddy, 192 Ohio App.3d 108, 2010-Ohio-
5759, 948 N.E.2d 454, ¶ 37 (8th Dist.) (where the defendant claimed he pressed his
hands around his mother's neck with intent to render her unconscious, there was sufficient
evidence of a specific intent to cause death as this was a natural and probable
consequence of his act).
{¶66} “Based on the surrounding circumstances, which include the vulnerability of
the victim and the force with which the victim was struck, a blow to the head may be
probative of intent to kill.” State v. Heckathorn, 7th Dist. Columbiana No. 17 CO 0011,
2019-Ohio-1086, ¶ 42, quoting State v. Clay, 10th Dist. Franklin No. 99AP-404 (Mar. 28,
2000). A greater height, weight, and strength of the defendant compared to the victim is
pertinent in evaluating purpose in inflicting blows to the victim. Id. at ¶ 42. See also State
v. Powell, 75 Ohio Law Abs. 33, 142 N.E.2d 244 (7th Dist.1955) (considering the relative
Case No. 19 MA 0130
– 19 –
size and strength of the parties, the manner of attack, and the wounds to determine
whether the defendant intended to kill the victim).
{¶67} The detective pointed out the “big size difference” in height and weight
between Appellant and the victim. (Tr. 520). Appellant’s brother described the victim as
petite and small while describing Appellant as tall and having a “nice build.” (Tr. 255).
Appellant’s sister-in-law described the victim as “real tiny.” (Tr. 277). Photographs of the
victim were introduced, and the coroner’s report showed she weighed 115 pounds. The
video from the bar showed Appellant’s size relative to the victim. At the bar, Appellant
dragged her on the ground by a scarf around her neck, caused her head to slam against
the truck’s door frame, and hit her in the face at least twice; her broken nose bled in the
truck after they left the bar. The victim was already injured and fragile when she arrived
home after the felonious assault at the bar.
{¶68} Appellant entered the house apparently acting extremely agitated and left
to retrieve the victim from an unknown location so he could assault her again. Appellant
descended to the basement with the limping victim. The victim’s child heard banging and
booming from the basement while Appellant was yelling about stopping the victim’s “smart
mouth” and the victim was screaming for him to stop. The child was frightened and
decided to leave the house. Appellant was clearly still experiencing the extreme anger
witnessed by his brother in the bar’s parking lot and depicted on the video. Before leaving
her home, the child saw Appellant punch the victim in the face. She then ran across the
street to a relative’s house in a panic and called 911 twice. The police briefly investigated
and left. The child called the victim, who said she was okay and did not need to go to the
hospital.
{¶69} However, a rational juror could find by circumstantial evidence that the
abuse was not over yet for the victim. Appellant indicated to the child over the phone he
was upset about the 911 call. The victim indicated to the child she was okay and was
going to sleep. Yet, Appellant’s own statements to various witnesses suggested he was
still fighting with the victim seconds before she ended up on the bedroom floor as he
essentially said she threatened to pack her bags and leave the house, she ran from him,
and he heard a big boom in the bedroom.
{¶70} The forensic pathologist opined the cause of death was blunt force “injuries”
causing blunt force trauma to the head. (Tr. 470). Although a single severe enough
Case No. 19 MA 0130
– 20 –
impact could theoretically cause the condition to the brain, he could not comment on the
number of impacts here. (Tr. 472). He was viewing the victim’s head only after the
emergency surgery which included the removal of clots and the removal of bone from the
sides of the skull to relieve pressure. As the neurosurgeon pointed out, the victim’s head
suffered a lot of trauma; the acute subdural hematoma occurred bilaterally (on both sides
of her head), caused large clots, and was unlikely to have been caused by a fall from
standing height. A rational juror could find Appellant concocted the story that the victim
slipped and fell while running in an attempt to explain her final head injuries.
{¶71} As Appellant acknowledges, this court held a defendant’s fists “become
most deadly by blows often repeated, long continued, and applied to vital and delicate
parts of the body of a defenseless, unresisting man on the ground.” Powell, 142 N.E.2d
at 247, quoting A.L.R., quoting M’Whirt’s Case, 44 Va. 594 (1846). Furthermore, the
Supreme Court has since ruled circumstantial evidence inherently possesses the same
probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d
749 (2001); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991) (overturning
the rule that circumstantial evidence must be irreconcilable with any reasonable theory of
innocence). See also State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991) (“A
conviction can be sustained based on circumstantial evidence alone.”).
{¶72} This is especially relevant to the element of intent. Because a defendant's
intent dwells in his mind, the surrounding facts, circumstances, and resulting inferences
are the traditional indicators of a defendant’s intent. Treesh, 90 Ohio St.3d at 485. In
speaking of the totality of the circumstances used to determine purpose to cause a death,
it is often stated: “The intent of an accused person dwells in his mind. Not being
ascertainable by the exercise of any or all of the senses, it can never be proved by the
direct testimony of a third person, and it need not be.” In re Washington, 81 Ohio St.3d
337, 340, 691 N.E.2d 285 (1998).
{¶73} Appellant emphasizes the neurosurgeon’s testimony about “the family”
wanting him to do everything he could for the victim. He was not asked to identify who
the family entailed, but as Appellant was the victim’s husband, it could be presumed he
was involved in the decision-making and this seemed to have occurred prior to the police
arriving at the hospital. We note the neurosurgeon also told the family before surgery the
chances of recovery were “very, very small.” A person who wishes to deflect blame for
Case No. 19 MA 0130
– 21 –
life-threatening injuries would wish to be publicly seen hoping for the victim’s recovery.
Also, a person who purposely kills his wife while in a rage throughout the night could be
expected to regret his impulses thereafter for one reason or another and hope his wife
can be saved.
{¶74} On the topic of Appellant claiming he wanted to do all he could to save the
victim, it is remarkable that Appellant did not call 911 despite the victim’s obviously critical
condition. He called his brother instead and waited for him to arrive. Appellant was in
the kitchen when his brother arrived while the victim was lying on the floor in the bedroom
dying. His brother said the victim was shaking as if having a seizure, her eyes were open
but she did not seem to be aware, and she was unresponsive. Appellant’s sister-in-law
happened to accompany her husband to Appellant’s house (as she had just accompanied
her husband to the hospital to be treated for the injury Appellant caused him). She took
it upon herself to call 911 after viewing the victim’s dire condition. Appellant told her “they
gonna come take me to jail.” After his arrest for felonious assault, he suggested someone
should destroy the video evidence. He also later apologized to the victim’s sister and
child, claiming to the child that he “didn’t mean to do it.”
{¶75} For a sufficiency review, the question is merely whether “any” rational juror
could have found the contested element satisfied beyond a reasonable doubt. State v.
Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewing all of the evidence and
rational inferences in the light most favorable to the prosecution, some rational juror could
find that Appellant had the requisite mental state and purposely caused the victim’s death
by his continued purposeful assault on her head. Accordingly, his sufficiency argument
is overruled.
{¶76} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, 78 Ohio St.3d at 387. Although the effect of the evidence in inducing belief
is evaluated, weight of the evidence is not a question of mathematics. Id. A weight of
the evidence review considers whether the state met its burden of persuasion. See id. at
390 (Cook, J., concurring) (as opposed to the burden of production involved in a
sufficiency review).
Case No. 19 MA 0130
– 22 –
{¶77} When a defendant claims the conviction is contrary to the manifest weight
of the evidence, the appellate court is to review 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. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220,
citing Thompkins, 78 Ohio St.3d at 387. “[T]he weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 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
occupies the best position from which to weigh the 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).
{¶78} Although only two of the three appellate judges on the panel must vote to
reverse a conviction on the grounds of sufficiency of the evidence, the situation is different
when a defendant asks for reversal of a jury verdict on weight of the evidence grounds.
Where a case was tried by a jury, only a unanimous appellate court can reverse on
manifest weight of the evidence grounds. Thompkins, 78 Ohio St.3d at 389, citing Ohio
Constitution, Article IV, Section 3(B)(3). The power of the court of appeals to sit as the
“thirteenth juror” is limited in order to preserve the jury's primary function of weighing the
evidence. Id.
{¶79} Our review of the entire record does not indicate this is the exceptional case
in which the evidence weighs heavily against the conviction and requires the exercise of
our limited “thirteenth juror” discretion to grant a new trial. See Lang, 129 Ohio St.3d 512at ¶ 220. Appellant’s brother’s testimony was enlightening but also appeared slanted in
Appellant’s favor. The video showed the initial assault and indicated Appellant’s rage and
the victim’s condition. Appellant’s failure to call 911 was revealing. The testimony of the
victim’s twelve-year-old child was highly credible. Appellant claims a mere three punches
to the head would be unlikely to cause death; however, he is speaking of only the
witnessed punches to the head (at two different locations) prior to victim’s later loss of
consciousness. A purposeful death does not require an eyewitness to be believable.
Case No. 19 MA 0130
– 23 –
Appellant’s claims about a slip and fall lacked credibility. We additionally incorporate our
review of the evidence in our Statement of the Case and sufficiency analysis above.
{¶80} The evidence and inferences relied upon by the jury were not unbelievable.
“When more than one competing interpretation of the evidence is available and the one
chosen by the jury is not unbelievable, we do not choose which theory we believe is more
credible and impose our view over that of the jury.” State v. Baker, 7th Dist. Mahoning
No. 19 MA 0080, 2020-Ohio-7023, ¶ 148, citing State v. Gore, 131 Ohio App.3d 197, 201,
722 N.E.2d 125 (7th Dist.1999). Appellant’s conviction of murder by purposely causing
the victim’s death was not contrary to the manifest weigh of the evidence. Appellant’s
assignment of error is overruled.
ASSIGNMENT OF ERROR THREE: PROSECUTORIAL MISCONDUCT
{¶81} Appellant’s third assignment of error provides:
“The Prosecutor engaged in prosecutorial misconduct during closing arguments,
thus depriving Appellant of his right to a fair trial.”
{¶82} When reviewing a claim of prosecutorial misconduct in closing arguments,
the reviewing court evaluates whether remarks were improper and, if so, whether they
prejudicially affected the defendant's substantial rights. State v. Lott, 51 Ohio St.3d 160,
165, 555 N.E.2d 293 (1990). The prosecution is afforded wide latitude in summation. Id.Contested statements made during closing arguments are not viewed in isolation but are
read in context of the entire argument and the entire case. State v. Treesh, 90 Ohio St.3d
460, 466, 739 N.E.2d 749 (2001); State v. Rahman, 23 Ohio St.3d 146, 154, 492 N.E.2d
401 (1986) (also noting if the Court were to find “every remark made by counsel outside
of the testimony were grounds for a reversal, comparatively few verdicts would stand,
since in the ardor of advocacy, and in the excitement of trial, even the most experienced
of counsel are occasionally carried away by this temptation”).
{¶83} Appellant criticizes the state’s rebuttal portion of closing arguments and
notes there was no corrective instruction (just instructions before and after closing which
explained closing arguments were not evidence.) However, there was no objection to the
prosecutor’s remarks and no request for a curative instruction. “A claim of prosecutorial
misconduct is waived unless raised at trial, and if so waived, can serve as the basis for
relief only if the conduct constitutes plain error.” State v. Franklin, 97 Ohio St.3d 1, 2002-
Ohio-5304, 776 N.E.2d 26, ¶ 24. Plain error is a discretionary doctrine to be used with
Case No. 19 MA 0130
– 24 –
the utmost care by the appellate court in exceptional circumstances to avoid a manifest
miscarriage of justice where an obvious error affected substantial rights, meaning it was
outcome determinative. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d
88, ¶ 62, applying Crim.R. 52(B).
{¶84} First, Appellant says the prosecution denigrated defense counsel by
describing counsel’s reference to the lack of injuries to Appellant’s hands as: “Smoke
and mirrors, ladies and gentlemen. It’s that witch in the window. They are trying to put
doubt where there is no doubt.” (Tr. 583-584).
{¶85} Appellant points out the prosecutor shall not denigrate or impute insincerity
to defense counsel in the jury's presence. See State v. Davis, 116 Ohio St.3d 404, 2008-
Ohio-2, 880 N.E.2d 31, ¶ 301 (but finding the improper comments did not result in plain
error as they “did not pervade the closing argument, let alone the entire trial. Moreover,
there is no reasonable basis to conclude that the result of the trial would have been
different absent these improper comments”). Contrary to Appellant’s contention, the
prosecutor’s “smoke and mirrors” remark is not akin to a case where the prosecutor made
remarks unsubstantiated by the evidence and suggested defense counsel suborned
perjury and the Supreme Court upheld the remand for a new trial. See State v. Smith, 14
Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). Merely because the Smith case involved the
word “smokescreen” did not make it similar. See State v. Bedford, 39 Ohio St.3d 122,
127, 529 N.E.2d 913 (1988) (finding no prejudice when prosecutor called the defense a
“smokescreen” and called the defendant a “demon”). Also, Smith did not involve the plain
error doctrine (nor did Bedford where the conviction was affirmed).
{¶86} Appellant also relies on a case finding it was improper for the prosecutor to
say defense counsel had no defense to present and when “you have no defense you
attack the police, you attack the prosecutor, you attack everybody. * * * You want to look
at things that aren't important to this particular case, you want to deflect, you want to look
for something that doesn't exist, you want smoke so he can't be seen.” State v. Getsy,
84 Ohio St.3d 180, 194, 702 N.E.2d 866 (1998). However, the Court concluded the
remarks “occurred only during closing argument and did not rise to the level of plain error.”
Id. See also State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 126
(derogatory statements about defense trial tactics did not constitute plain error).
Case No. 19 MA 0130
– 25 –
{¶87} Finally, in the contested comment on smoke and mirrors, the prosecutor
was discussing the portion of defense counsel’s closing argument claiming Appellant had
no damage to his hands. Notably, there was no evidence that he suffered no injury; a
photograph of Appellant at the police station was admitted, but his hands were facing to
the sides. As the prosecutor pointed out, not every punch (or incident of grabbing to
slam) must cause an injury to the hand of the assailant. Comments in the rebuttal portion
of closing arguments in direct response to arguments advanced by opposing counsel are
given more latitude. State v. Miller, 7th Dist. Mahoning No. 17 MA 0120, 2018-Ohio-5127,
¶ 25.
{¶88} Appellant also argues the prosecution improperly appealed to the jurors’
sense of moral or civic duty rather than the evidence and law or made emotional
arguments to inflame the jurors’ sensibilities. He believes it was improper for the
prosecutor to say he was raised to respect the principle that “under no circumstances do
you put your hands on a woman.” He also complains the prosecutor encouraged the jury
to punish Appellant for lying to the police by stating: “while we are holding this defendant
accountable for what he did to Ryan that night, let’s also hold him accountable for the
multiple times he lied to police in his interview * * *.” (Tr. 587). Comments about the
interview may have been supported by the record, but the phraseology about holding him
accountable for lying was irregular since he was not charged with an offense containing
that element.
{¶89} Finally, the prosecutor said: “it brings to mind a specific quote. And that is,
the only thing necessary for the triumph of evil is for good people to do nothing. Ladies
and gentlemen, this defendant is evil. What he did to Ryan is unadulterated, pure evil.
So do something. Stop that evil.” (Tr. 611). This started in the context of discussing
items in the record: how Appellant’s performance of certain acts in public allows them to
infer what he could do in the privacy of their home and the observation that it was
unfortunate no one saved the victim at the bar or when the police arrived at the house.
Calling an act evil can be expected hyperbole in the ardor of the moment, but it has been
said the prosecutor should not apply these types of derogatory terms to the defendant
personally. See State v. Liberatore, 69 Ohio St.2d 583, 433 N.E.2d 561 (1982), fn. 9
(where the case was already being reversed for a new trial on unrelated grounds, the
Court found extensive prosecutorial misconduct for many reasons, including the
Case No. 19 MA 0130
– 26 –
prosecutor’s characterization of the defendant “in derogatory terms clearly designed to
inflame the jury”).4
{¶90} Assuming the contested statements were improper, there was no plain
error. Even when there is objection, “[n]ot every intemperate remark by counsel can be
a basis for reversal.” State v. Landrum, 53 Ohio St.3d 107, 112, 559 N.E.2d 710 (1990).5
The question is the fairness of trial, not the culpability of the prosecutor. Id. Again, this
was the rebuttal portion of closing argument, and no issue is taken with the initial closing
argument presented by the state.
{¶91} Based on our review of the entire case, the contested remarks were not
outcome determinative and did not deny Appellant a fair trial. Accord State v. Lundgren,
11th Dist. Lake No. 90-L-15-140 (Sept. 14, 1993) (no plain error where prosecutor
paraphrased from the bible, “you have an opportunity to put this evil from the midst of
us”), aff’d 73 Ohio St.3d 474, 488, 653 N.E.2d 304 (1995) (improper comment but no plain
error in guilt phase of death penalty case); State v. Jefferson, 2d Dist. Montgomery No.
15828 (Mar. 14, 1997) (no reasonable probability outcome was affected by the
prosecutor’s characterization of the defendant as “an evil man” during closing argument);
State v. Smith, 1st Dist. Hamilton No. C-860865 (Mar. 16, 1988) (even though the
appellate court was already reversing on various other grounds, it found no plain error
where the prosecutor called the defendant “evil,” “vicious,” “cruel,” and a “piranha”), rev’d
on other grounds, State v. Smith, 49 Ohio St.3d 137, 146, 551 N.E.2d 190 (1990)
(upholding the convictions). As Appellant’s substantial rights were not affected, there is
no reason to consider exercising our discretion to recognize plain error. This assignment
of error is overruled.
4 See also State v. Keenan, 66 Ohio St.3d 402, 408, 613 N.E.2d 203, 208 (1993) (where the prosecutor
said “That's a human being?” and then called the defendant an “animal,” the Court said this type of
“invective is not unfair per se” but added to the improper emotional appeal surrounding the prosecutor's
entire argument in that case), citing State v. Wiles, 59 Ohio St.3d 71, 87, 571 N.E.2d 97 (1991) (where the
prosecutor called the defendant “an ogre * * *, a man-eating monster, a hideous, brutish person * * * an
animal,” the Court said this “invective is highly unprofessional” but also said strong characterizations such
as this have been allowed where there is support for them in the record).
5“Exercising restraint during closing arguments is frequently a part of a trial strategy involving a desire to
avoid interruption and to avoid drawing attention to certain statements.” State v. Henderson, 7th Dist.
Mahoning No. 16 MA 0057, 2019-Ohio-1760, ¶ 11, citing State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-
4836, 873 N.E.2d 828, ¶ 90, State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 42, and
State v. Clay, 7th Dist. Mahoning No. 08MA2, 2009-Ohio-1204, ¶ 141. “Instances of debatable trial tactics
generally do not constitute ineffective assistance of counsel.” Id., citing State v. Lang, 129 Ohio St.3d 512,
2011-Ohio-4215, 954 N.E.2d 596, ¶ 192.
Case No. 19 MA 0130
– 27 –
ASSIGNMENT OF ERROR FOUR: SPECTATOR COMMENT AT CLOSING
{¶92} Appellant’s fourth assignment of error alleges:
“The trial court erred and abused its discretion in failing to grant a mistrial based
on a spectator’s outburst during closing arguments.”
{¶93} During the rebuttal portion of the state’s closing argument, the prosecutor
re-played the video from the bar and was reviewing what the video depicted. When
pointing out the punches to the victim’s head and the victim’s head hitting the truck, an
unidentified speaker said, “Why don’t you come do that to me, punk?” A deputy said,
“Okay, stop. Stop. Enough.” The court reporter then typed, “there was an untranscribable
outburst from the gallery.” Outside the presence of the jury, the court noted the spectator
seemed to issue a threat to the defendant with words such as “I will get you.”
{¶94} Defense counsel asked for a mistrial. The court said it would provide a
cautionary instruction to the jury about the incident. (Tr. 603-604). Defense counsel
indicated he would still object. (Tr. 606). The court then instructed the jury: the
disturbance was unacceptable and dealt with quickly by the deputies; the occupants of
the courtroom were in no danger; and more deputies were added “to make sure that
everyone has calmed down and that emotions are not going to cause a disturbance.” (Tr.
607). The court reminded the jury their decision must be based on whether the state met
its burden to prove beyond a reasonable doubt every element and not based on bias,
sympathy, prejudice and emotion. (Tr. 608). The court continued, “what happened in
here, in the courtroom, can in no way have any bearing on your decision in this case.”
The jury was told to disregard the outburst, put it aside, and not let it affect the decision,
reminding them the constitution requires the decision to be “based solely upon facts, not
upon other outside influences or factors.” (Tr. 609). Later, after the final jury instructions,
counsel renewed his motion for a mistrial, which the trial court denied. (Tr. 638-639).
{¶95} Appellant contends the spectator’s outburst denied him a fair trial by
improperly influencing the jurors. He claims the cautionary instruction was inadequate
and may have inflamed the jury. The state counters by pointing to the thoroughness of
the curative instruction and noting Appellant’s argument is speculative.
{¶96} The decision on a mistrial motion lies within the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. State v. Treesh, 90 Ohio
St.3d 460, 480, 739 N.E.2d 749 (2001). The mere existence of error or irregularity does
Case No. 19 MA 0130
– 28 –
not warrant a mistrial. Id. “The granting of a mistrial is necessary only when a fair trial is
no longer possible.” Id., citing State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1(1991) (“Mistrials need be declared only when the ends of justice so require and a fair
trial is no longer possible.”). We presume that the jury followed the court's instructions to
disregard the outburst. Id.{¶97} “When an emotional outburst takes place in court, the issue is whether the
outburst ‘deprived the defendant of a fair trial by improperly influencing the jury’.” State
v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 126 (outbursts by
spectators during gruesome photographs), quoting State v. Scott, 101 Ohio St.3d 31,
2004-Ohio-10, 800 N.E.2d 1133, ¶ 44. This “is a factual question to be resolved by the
trial court, whose determination will not be overturned absent clear, affirmative evidence
of error.” Id., quoting State v. White, 85 Ohio St.3d 433, 440, 709 N.E.2d 140 (1999),
citing State v. Morales, 32 Ohio St.3d 252, 255, 513 N.E.2d 267 (1987). To reverse the
trial court’s exercise of discretion, there must be evidence “clearly and affirmatively
appearing on the face of the record” showing the outburst improperly influenced the jury
against the accused and deprived him of a fair trial. Morales, 32 Ohio St.3d at 255
(evaluating an “emotional demonstration in the courtroom during the course of a murder
trial by a spectator related to the victim”).
{¶98} The trial court did not abuse its discretion in providing the curative
instruction and finding the defendant was not deprived of a fair trial by the spectator’s
outburst during the state’s rebuttal portion of closing argument. There is no clear and
affirmative showing to the contrary on the record. This assignment of error is overruled.
ASSIGNMENT OF ERROR FIVE: MERGER
{¶99} Appellant’s fifth and final assignment of error contends:
“The trial court erred in violation of the Appellant’s rights under the Double
Jeopardy Clauses of the United States and Ohio Constitutions, R.C. 2941.25, when it
failed to merge for sentencing purposes offenses that had a similar import, arose from the
same conduct and were not committed separately.”
{¶100} As aforementioned, the state elected sentencing on the murder in count
one (purposely causing the death) rather than murder in count two (causing the death as
the proximate result of committing a felony of violence of the first or second degree). The
domestic violence count was merged with the felonious assault count. The state argued
Case No. 19 MA 0130
– 29 –
the felonious assault count (knowingly causing serious physical harm) would not merge
with murder as the relevant acts were committed separately at two different locations and
were offenses of dissimilar import as the victim suffered separate and identifiable harm.
(Sent.Tr. 5-8). The court agreed the felonious assault count would not merge with the
murder count under these theories and also found support for the third theory of separate
animus. (Sent.Tr. 19-22).
{¶101} R.C. 2941.25 codifies the constitutional double jeopardy protection against
multiple punishments for the same offense. In re A.G., 148 Ohio St.3d 118, 2016-Ohio-
3306, 69 N.E.3d 646, ¶ 11; State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, ¶ 10, 12. This statute provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
R.C. 2941.25.
{¶102} In evaluating whether allied offenses must be merged into a single
conviction under R.C. 2941.25(A), the court “must first take into account the conduct of
the defendant. In other words, how were the offenses committed?” Ruff, 143 Ohio St.3d
114 at ¶ 25. “At its heart, the allied-offense analysis is dependent upon the facts of a
case because R.C. 2941.25 focuses on the defendant's conduct.” Id. at ¶ 26. “Rather
than compare the elements of two offenses to determine whether they are allied offenses
of similar import, the analysis must focus on the defendant's conduct to determine
whether one or more convictions may result, because an offense may be committed in a
variety of ways and the offenses committed may have different import.” Id. at ¶ 30.
Case No. 19 MA 0130
– 30 –
{¶103} There is no bright-line rule governing the comparison of two offenses, and
thus, the analysis may “result in varying results for the same set of offenses in different
cases.” Id. at ¶ 30, 32.
If any of the following is true, the offenses cannot merge and the defendant
may be convicted and sentenced for multiple offenses: (1) the offenses are
dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, or
(3) the offenses were committed with separate animus or motivation.
Id. at ¶ 25. Stated differently, there are “three categories in which there can be multiple
punishments: (1) offenses that are dissimilar in import, (2) offenses similar in import but
committed separately, and (3) offenses similar in import but committed with separate
animus.” Id. at ¶ 20.
{¶104} Appellant argues felonious assault must be merged with murder because
the state alleged a felonious assault resulted in the death. He says the felonious assault
occurred when he inflicted blows to his wife and the events occurred continuously over a
short period of time. He cites a case where an appellate court found felonious assault
should have been merged with involuntary manslaughter (where the victim was stabbed
four times “on the backside”). State v. Anthony, 2015-Ohio-2267, 37 N.E.3d 751, ¶ 48
(8th Dist.). The appellate court rejected the state’s argument that the conduct could be
differentiated into fatal and non-fatal stab wounds after noting there was nothing in the
record to establish there were different types of wounds. Id. at ¶ 49. The court also found
there was nothing in the record showing the offenses were committed separately or with
separate animus and the court noted there were no details showing a break in the
“temporal continuum” between the first and the final stab. Id. The case did not go to trial,
and the court was confined to the plea and sentencing transcripts.
{¶105} However, the situation here is not similar. There was a trial here, and the
trial record shows Appellant assaulted the victim two different witnessed times that night
in two different locations and also when alone without witnesses. The night experienced
by the victim did not involve one episode of felonious assault that resulted in her death.
The specific facts determine whether merger is required, not the potential facts that could
constitute the offenses in other cases. See Ruff, 143 Ohio St.3d 114 at ¶ 26, 30. In
Case No. 19 MA 0130
– 31 –
reviewing the facts, the court gives deference to the jury’s factual determinations and
reviews the trial court’s merger decision de novo. State v. Williams, 134 Ohio St.3d 482,
2012-Ohio-5699, 983 N.E.2d 1245, ¶ 26.
{¶106} As for the first category, the offenses are of dissimilar import or
significance if “the defendant's conduct constitutes offenses involving separate victims or
if the harm that results from each offense is separate and identifiable.” Ruff, 143 Ohio
St.3d 114 at ¶ 23, 26. The harm from each offense was separate and identifiable as: at
the bar, Appellant dragged the victim on the ground by her scarf, hit her in the face
causing a bloody nose, punched her again in the head, and caused her to hit her head
on his truck while forcing her into the vehicle; after he drove to their home and they
entered their house where the child spoke to them, he assaulted the victim in the
basement and then punched her in the face while the child was watching just before 10:30
p.m.; and after the police stopped by the house (and before Appellant’s sister-in-law
called 911 near midnight), an argument occurred which caused the victim to run from
Appellant and the victim ended up unconscious on the floor with Appellant claiming he
heard a loud boom when the victim slipped and fell (her brain was bleeding on both sides,
she never regained consciousness, and she died a day later).
{¶107} Additionally, applying the second category, there were discrete instances
of conduct committed separately. There were details establishing a break in the “temporal
continuum” between the first assault on the victim and the last. The assault at the bar
and the assault at the home did not constitute one continuous act.
{¶108} As the trial court pointed out, there were also indicators of the alternate
third category: separate animus or motivation. Appellant was upset with the victim at the
bar. After she tried to exit the vehicle, part of his motive for injuring her was to try to force
her into his vehicle in order to take her with him. Later, she did not enter the house with
him; he appeared mad and panicking and left to retrieve her from an unknown location.
They entered the house and went to the basement where he declared he was now upset
with the victim because she would not stop her “smart mouth.” The victim looked more
injured when she ascended from the basement. The victim’s child told the victim she was
leaving, and Appellant punched the victim in the face. After the victim’s child called 911,
Appellant expressed anger the police were called on him, constituting yet another
motivation for Appellant. Later, according to Appellant’s own statements, the victim said
Case No. 19 MA 0130
– 32 –
she was leaving him, she intended to pack and she ran from him. This would involve a
new motivation related to how she ended up on the floor with bilateral acute subdural
hematoma from blunt force trauma to the head.
{¶109} A finding of any one of the three categories allowed a conviction to be
entered on the felonious assault rather than merging it with the murder. Ruff, 143 Ohio
St.3d 114 at ¶ 25. All three existed here. Accordingly, the trial court did not err in refusing
to merge the felonious assault with the murder. This assignment of error is overruled.
{¶110} For the foregoing reasons, the trial court’s judgment is affirmed.
Donofrio, P J., concurs.
Waite, J., concurs.
Case No. 19 MA 0130
– 33 –
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 Mahoning 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.
Case No. 19 MA 0130