State v. Carney

[Cite as State v. Carney, 2020-Ohio-2691.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-402
v. : (C.P.C. No. 17CR-2569)
Sean E. Carney, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 28, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Yavitch & Palmer, Co., and Jeffrey A. Linn, II, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Sean E. Carney, appeals from a judgment of the
Franklin County Court of Common Pleas entered on May 29, 2019, imposing a two-year
prison sentence for felonious assault and tampering with evidence. Because we conclude
that Carney's convictions were sufficiently supported and not against the manifest weight
of the evidence, we overrule both of Carney's assignments of error and affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 10, 2017, a Franklin County Grand Jury indicted Carney for felonious
assault and tampering with evidence arising out of an incident in which Carney stabbed a
15-year-old, S.A., four times and then allegedly sought to impair the prosecution by
laundering blood-stained clothes. (May 10, 2017 Indictment.) Carney pled "not guilty."
(May 12, 2017 Plea Form.) At one point, Carney pled guilty to attempted felonious assault.
(May 23, 2018 Plea Form.) However, before sentencing, Carney dismissed his counsel and
No. 19AP-402 2
withdrew his plea. (May 23 and Aug. 7, 2018 Hearing Tr. in passim, filed Aug. 5, 2019.)
Thereafter, the court held a trial on the indicted offenses in late April and early May 2019.1
{¶ 3} Eight witnesses testified at trial: three police officers who responded to the
scene, investigated the incident, and arrested Carney; a paramedic who treated S.A.; S.A.'s
girlfriend, who witnessed the incident; S.A.'s mother; S.A. himself; and Carney. (Tr. in
passim.) In addition to the testimony of the witnesses, the parties introduced a number of
photographs including photos of the scene, the bloody knife, and the victim. (State's Exs.
A1-A21, B1-B3, C1-C5, I1-I8.) The parties also stipulated that DNA from a knife recovered
at the scene belonged to Carney and S.A. and that a blood droplet swabbed from Carney's
dryer was Carney's blood. (Tr. at 376-77.)
{¶ 4} An officer of the Bexley Police Department was the first witness to testify. He
said he was working on May 1, 2017, when, near 6:00 p.m., he responded to South
Roosevelt Avenue in Bexley. (Tr. at 171-72, 178-79.) On entering the residence, he saw a
teenager sitting on a sofa with people holding towels to his back. (Tr. at 173.) When the
towels were removed briefly, he observed a big open slash wound to the minor's back. (Tr.
at 175-76.) He found a folding knife in a back bedroom of the home. (Tr. at 175.) Medics
responded to the scene, bandaged the teenager, and transported him to the hospital. (Tr.
at 176.)
{¶ 5} The next witness to testify was a detective sergeant, also of the Bexley Police
Department. (Tr. at 183.) The detective sergeant recounted that he was also called to South
Roosevelt Avenue regarding a stabbing. (Tr. at 184-85.) He personally collected the knife
found at the scene and described it as a folding knife that had to be manually unfolded and
opened. (Tr. at 190, 200.) He observed blood droplets in the detached garage where the
incident apparently occurred. (Tr. at 195.) The detective photographed S.A. and
documented multiple stab and slash wounds. (Tr. at 205-07.) Ultimately, during the
investigation, the detective was informed that Carney was the suspect, and he obtained his
address. (Tr. at 212-14.)
{¶ 6} Approximately two and one-half hours after beginning the investigation, the
detective went to Carney's residence. (Tr. at 214, 237.) At Carney's residence, the detective
1 The transcript of the trial and sentencing was filedin two consecutively paginated volumes on August 5, 2019
and will be cited herein solely by "Tr." followed by the page number.
No. 19AP-402 3
first encountered Carney's mother who denied he was present. (Tr. at 214.) Then, after
seeing Carney through a window of the home, officers were able to arrest Carney. (Tr. at
215.) When asked where the clothes were that Carney had been wearing at the time of the
stabbing, Carney, who was very intoxicated and bore abrasions to his head and hand,
indicated that the clothes were in the washing machine. (Tr. at 216-17.) The detective
documented Carney's injuries at the time and acknowledged that sometimes blunt force
injuries to the nose and face look worse after one day or two. (Tr. at 224, 236-37.) Though
the detective did not recount the content of his interviews with witnesses to the stabbings,
he agreed that their statements were not consistent about the order of the events in the
altercation as he had learned in his investigation. (Tr. at 245.)
{¶ 7} The next witness was a paramedic who responded to the scene on May 1, 2017
and cared for S.A. (Tr. at 249.) The paramedic testified that he observed a large laceration
to S.A.'s back from his shoulder toward his spine that exposed a good deal of tissue and,
perhaps, some of the shoulder blade itself. (Tr. at 250-51.) He also noted that S.A.'s
shoulder was bleeding heavily. Id. The paramedic treated S.A. with a trauma dressing,
oxygen, and a large bore intravenous line, because S.A. appeared pale. (Tr. at 251-53.) He
then transported S.A. by ambulance to the hospital. Id. The paramedic agreed that bruising
and swelling can sometimes look worse one day or two after an injury. (Tr. at 256-58.)
{¶ 8} The plaintiff-appellee's, State of Ohio, final investigatory witness was another
officer of the Bexley Police Department. (Tr. at 259.) The officer testified that he helped to
arrest Carney. (Tr. at 261.) He said that, as he transported Carney after his arrest, Carney
spontaneously remarked something to the effect of, "I'm surprised it took you so long to
come to my house," and expressed that he had been waiting for the police. (Tr. at 263.)
{¶ 9} The next witness was S.A., the victim. S.A. testified that on May 1, 2017, he
was 15 years old and lived at South Roosevelt Avenue in Bexley with his father, mother,
brother, and sister. (Tr. at 289, 294.) Carney, he explained, was a friend of his father's.
(Tr. at 290-91.) S.A. said that on the day in question, he, his girlfriend, and two other male
friends were all socializing. (Tr. at 292-93.) They decided to go to the back of the house to
smoke some marijuana and encountered his father and Carney sitting in chairs in the
garage with the door open, drinking together. (Tr. at 292-93, 297, 300-01.) While smoking,
S.A. noticed there seemed to be a great deal of beer and asked his father why he was
No. 19AP-402 4
spending so much of his mother's money on alcohol. (Tr. at 300.) His father did not
respond to this inquiry, merely gave him a blank stare and sipped his beer. (Tr. at 301-02.)
{¶ 10} S.A. turned back to his friends and, at that point, heard his father telling
Carney repeatedly to put his knife away. (Tr. at 302-03.) S.A. said he turned back and
asked Carney why he had a knife out. (Tr. at 303.) He also asked his friends if they would
help him against Carney if Carney were to attack him and both friends said they would. (Tr.
at 304.) According to S.A., Carney then stood up and "went across my back." Id. In
response to that knife attack, S.A. said he punched Carney. Id. S.A. said when he punched
Carney, Carney fell back but that he kept hitting Carney and Carney kept stabbing him. (Tr.
at 306-07.) S.A. said his girlfriend got the knife away from Carney in the scuffle but that
Carney continued to attack him even without the knife. (Tr. at 308.) S.A. claimed not to
have said anything to Carney in the garage to provoke the fight and related that he and
Carney had only met once before. (Tr. at 312, 316-17.)
{¶ 11} S.A. said that he was ultimately stabbed four times. (Tr. at 314.) He received
staples and stitches as treatment and was in the hospital for three days. (Tr. at 313-14.) He
described the injuries as the worst pain he had ever felt and stated that he still has scars
from the incident. (Tr. at 313-15.)
{¶ 12} On cross-examination, S.A. admitted that Carney was sitting when the fight
began and that Carney had to get part of the way out of his seat in order to stab him. (Tr.
at 319.) S.A. said he did not leave the area before the attack because, once Carney had the
knife out, he was worried about being stabbed in the back. (Tr. at 320.) He admitted that
he may have told an interviewer at the hospital that he hit Carney first and that Carney
responded by stabbing him. (Tr. at 323.) But he said he misspoke and was under the
influence of trauma and drugs. (Tr. at 324.) He admitted that he might also have told
hospital staff that he was a gang member who sold drugs and had been shot at. (Tr. at 329-
31.) However, he said he had lied in an effort to seem "cool" while under the influence of
pain killers. Id. He said he was still in a relationship with the same girlfriend who was to
testify in the case, but they had never spoken about the incident or their testimony. (Tr. at
324-26.) S.A. acknowledged that he sometimes had gotten in physical fights with his father
and that, after this incident, his father left the country and S.A. never saw him again. (Tr.
at 317, 327-28.)
No. 19AP-402 5
{¶ 13} S.A.'s girlfriend testified next. She testified that on May 1, 2017, she, S.A., and
two male friends were socializing when they decided to leave the house to smoke marijuana.
(Tr. at 337.) They encountered Carney and S.A.'s father sitting drinking near the garage.
(Tr. at 338.) She said S.A. questioned his father about why he was spending all the money
on alcohol. (Tr. at 338-39.) Nobody responded to S.A.'s questioning, but Carney put his
hand down in his lap area and S.A.'s father asked him what he was doing and told him to
put the knife away. (Tr. at 339.) S.A.'s girlfriend testified that Carney rose to his feet and
stabbed at S.A., who was standing diagonally to Carney. (Tr. at 340.) She related that
Carney stabbed as he stood up but was not sure exactly how Carney managed to stab S.A.
in the place that he did. (Tr. at 341.) She grabbed the knife from Carney when they fell to
the ground in the tussle. (Tr. at 342-43.) She said S.A. was stabbed four times and received
stitches and staples to treat the wounds. (Tr. at 341-42, 345.)
{¶ 14} On cross-examination, S.A.'s girlfriend admitted that she told the detective
who interviewed her at the scene that S.A. ran at Carney while Carney sat in the lawn chair
but said she was frantic at the time and did not mean what she said. (Tr. at 348.) She also
admitted (after some apparent reluctance and after seeing a video of her interview) that she
told the detective at the scene that S.A. walked over to Carney, who was sitting, and
"punched him so hard in the face" which set off the incident in which Carney "whipped a
knife out." (Tr. at 349-58.) However, she insisted that her account at the scene was a
misspoken comment. (Tr. at 350, 358-59.) She denied ever having discussed the events or
her testimony with her boyfriend, S.A. (Tr. at 359-61.)
{¶ 15} On redirect, she testified to a written statement she had given to the detective
whereby she indicated that S.A. only ran at Carney because Carney pulled a knife out on
him. (Tr. at 362-63.) She said that her written statement indicated that Carney sliced S.A.'s
back as S.A. was attempting to throw a punch. Id. She reiterated, however, that her
testimony at the trial was that Carney stabbed S.A. before S.A. hit him. (Tr. at 363-64.)
{¶ 16} S.A.'s mother also testified, confirming who was present in the house and
recounting how she ran out in the backyard when she heard screaming and saw S.A.
standing with a "big hole in his back, bleeding." (Tr. at 366-70.) She confirmed that Carney
was a friend of her husband's, who had been at the house perhaps ten times. (Tr. at 367.)
She testified that she, as a trained R.N., put pressure on the back wound with a clean towel
No. 19AP-402 6
and that S.A. telephoned the police himself. (Tr. at 367, 373.) She confirmed that S.A. was
in the hospital for three days as a result of his wounds. (Tr. at 374.)
{¶ 17} The final witness to testify, and the only witness to testify for the defense, was
Carney. (Tr. at 386.) Carney agreed that, at the time of the incident on May 1, 2017, he was
46 and S.A. was 15. (Tr. at 386, 407.) He said that S.A.'s father had picked him up earlier
that day and brought him over to look over some drywall repair work in the basement of
the house at South Roosevelt Avenue. (Tr. at 387-88.) After he viewed the site for the
potential repair work, S.A.'s father invited him to sit and have a couple of beers and talk
about the potential drywall repair job. (Tr. at 388.) They each sat in a chair in the garage
and had been there approximately one and one-half hours drinking when S.A. and his three
teenage friends arrived. (Tr. at 389, 391-92.) At that point, he testified, he had consumed
four beers. (Tr. at 389-90.) He was carrying his pocket knife, which he always did in
connection with his trade as a carpenter. Id. He stated that he had met S.A. once before
and had no animosity toward him. (Tr. at 391.)
{¶ 18} He said that S.A. began to argue with his father over whether he and his
friends could smoke marijuana in the garage and why S.A.'s father was drinking in the
garage. (Tr. at 392-93.) At the time of this argument, S.A. and his friends were arrayed in
front of where the two men were seated. (Tr. at 392.) Carney testified that he was aware
that S.A. was prone to violence and had physically attacked his father on several occasions.
(Tr. at 393-94.) He said the argument escalated and S.A. got close to his father, yelling in
his face and pointing his finger at his face. (Tr. at 394.) So Carney took out his knife, opened
it, and held it at his side by his right hip. (Tr. at 395.) He denied waving it or making overtly
threatening gestures. (Tr. at 396.) However, he testified that the next thing he knew he
was on the ground, S.A. having punched him in the face, knocking him from the chair, and
that S.A. was continuing to beat his face. Id. He said he used the knife only to get S.A. off
of him and protect himself from harm. (Tr. at 396-97.)
{¶ 19} After the fight, S.A.'s father drove Carney home. (Tr. at 397-98.) Carney
cleaned the blood from his face and head and threw his clothes in the laundry. (Tr. at 398.)
Carney testified that he had no thought that the clothes might be needed as evidence
because he viewed the interaction as self-defense and had no idea at that point how badly
he had hurt S.A. (Tr. at 398-99.) He testified that, to calm his nerves, he drank
No. 19AP-402 7
approximately six more beers. (Tr. at 399.) He stated that he anticipated that the police
might want to come interview him about the incident but that he never thought he would
be arrested or charged. (Tr. at 401.)
{¶ 20} On cross-examination, Carney agreed that, although S.A. was not talking to
him, he was talking about him and pointing at him. (Tr. at 403.) Carney agreed that S.A.'s
father told Carney to put down the knife. (Tr. at 404.) Carney agreed that he stabbed S.A.
four times. (Tr. at 403.) Carney confirmed that he left the scene with S.A.'s father before
the police arrived and that he did not call the police to report that S.A. had attacked him.
(Tr. at 404-06.) Carney agreed that when the police arrived at his house, he asked the
officers something to the effect of "[w]hat took you so long to get here?" (Tr. at 406.) But
he also indicated that he voluntarily told them where the bloody clothes were. Id.
{¶ 21} Carney's counsel made and renewed Criminal Rule 29 motions during the
trial which the trial court denied. (Tr. at 383-84, 411.) After deliberating, the jury found
Carney guilty of both counts of the indictment. (Tr. at 483-85.) The trial court sentenced
Carney to serve two years in prison for the felonious assault with a concurrent term of one
year for the offense of tampering with evidence. (Tr. at 497; May 29, 2019 Jgmt. Entry at
1.)
{¶ 22} Carney now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 23} Carney presents two assignments of error for review:
[1.] THE TRIAL COURT ERRED AND THEREBY DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE PROVISIONS
OF THE OHIO CONSTITUTION BY OVERRULING
APPELLANT'S CRIM. R. 29 MOTION FOR JUDGMENT OF
ACQUITTAL, AS THE STATE FAILED TO OFFER
SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY
ELEMENT OF THE CHARGES BEYOND A REASONABLE
DOUBT.
[2.] THE TRIAL COURT ERRED BY FINDING APPELLANT
GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF
THE OHIO CONSTITUTION BECAUSE THE VERDICT OF
GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
No. 19AP-402 8
III. DISCUSSION
A. First and Second Assignments of Error – Whether Carney's Convictions
were Against the Manifest Weight of the Evidence and Whether they
were Insufficiently Supported by the Evidence such that a Criminal Rule
29 Motion should have been Granted
{¶ 24} In his first assignment of error, Carney argues that both his convictions were
insufficiently supported and that the trial court should have granted a motion under
Crim.R. 29, dismissing the case for insufficient evidence. (Carney's Brief at 13-20.) In his
second assignment of error, Carney argues that his conviction for felonious assault was
against the manifest weight of the evidence. Id. at 20-24. Despite the distinct differences
in the standards of analysis between these two issues for review on appeal, they share some
commonality, and we address them together to avoid restating matters in common to both.
{¶ 25} The Supreme Court of Ohio has "carefully distinguished the terms
'sufficiency' and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are
'both quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St. 3d 328,
2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St. 3d 380 (1997), paragraph
two of the syllabus.
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. * * * . Weight is not a
question of mathematics, but depends on its effect in inducing
belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's Law Dictionary 1594
(6th Ed.1990). In manifest weight analysis, "the appellate court sits as a 'thirteenth juror'
and disagrees with the jury's resolution of the conflicting testimony." Thompkins at 388,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175
(1st Dist.1983).
{¶ 26} In contrast, sufficiency is:
"[A] term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the
No. 19AP-402 9
evidence is legally sufficient to support the jury verdict as a
matter of law." * * * In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is
a question of law.
Eastley at ¶ 11, quoting Thompkins at 386; Black's at 1433. "In reviewing a record for
sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.' " State v. Monroe, 105 Ohio
St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus.
{¶ 27} "A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient evidence."
State v. Tenace, 109 Ohio St. 3d 255, 2006-Ohio-2417, ¶ 37, citing State v. Carter, 72 Ohio
St.3d 545, 553 (1995); Thompkins at 386. Thus, when reviewing the record for sufficiency
of evidence, we also address Carney's arguments relating to Crim.R. 29 motions at trial
using the same standard.
1. Felonious Assault
{¶ 28} The Ohio Revised Code defines felonious assault as follows:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another * * *;
(2) Cause or attempt to cause physical harm to another * * * by
means of a deadly weapon* * * .
R.C. 2903.11(A). " 'Deadly weapon' means 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." R.C. 2923.11(A). " 'Physical harm to persons' means any
injury, illness, or other physiological impairment, regardless of its gravity or duration."
R.C. 2901.01(A)(3).
"Serious physical harm to persons" means any of the following:
***
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
No. 19AP-402 10
(e) Any physical harm that involves acute pain of such duration
as to result in substantial suffering or that involves any degree
of prolonged or intractable pain.
R.C. 2901.01(A)(5).
{¶ 29} There is no dispute that Carney used a knife to stab S.A. repeatedly with the
result that he caused at least "physical harm" to S.A. and can also be found to have caused
him "serious physical harm." Compare R.C. 2901.01(A)(3) with R.C. 2901.01(A)(5). It is
also clear that the knife was a "deadly weapon" because it was capable (by its nature as a
knife) of inflicting death and was, in this case, "used as a weapon." R.C. 2923.11(A).
Carney's testimony was perfectly frank about the fact that he knowingly stabbed S.A. with
the knife, and the record contains no dispute regarding the testimony on the significant
nature of the cuts inflicted, particularly to S.A.'s back. (Tr. at 175-76, 205-07, 250-51, 374,
403.) Thus, leaving aside for a moment the issue of self-defense, the evidence in the record
clearly indicates that Carney committed felonious assault when he knowingly stabbed and
slashed S.A. repeatedly with a knife with the result that S.A. received significant wounds
and required several days of treatment in the hospital. Id.; R.C. 2903.11(A)(1) and (2).
{¶ 30} However, a significant feature in this case was the issue of self-defense. Both
we and the Supreme Court have previously explained that the elements of self-defense in a
deadly force case are that the defendant (1) was not at fault in creating the situation giving
rise to the affray, (2) that the defendant had a bona fide belief that he or she was in
imminent danger of death or great bodily harm and his or her only means of escape from
such danger was the use of such force, and (3) that the defendant did not violate any duty
to retreat or avoid the danger. State v. Robbins, 58 Ohio St. 2d 74 (1979), paragraph two of
the syllabus; State v. Howard, 10th Dist. No. 16AP-226, 2017-Ohio-8742, ¶ 22. Consistent
with the self-defense requirement that force must be the only means of escape, a person
may only use as much force as is reasonably necessary to repel the attack. Howard at ¶ 22,
citing State v. Jones, 10th Dist. No. 14AP-796, 2015-Ohio-2357, ¶ 27; State v. Harrison,
10th Dist. No. 06AP-827, 2007-Ohio-2872, ¶ 25; State v. Williford, 49 Ohio St. 3d 247, 250
(1990); State v. Thomas, 77 Ohio St. 3d 323, 329-30 (1997).
{¶ 31} In the past, the elements of self-defense were for the defendant to establish
by a preponderance of the evidence. See, e.g., State v. Martin, 21 Ohio St. 3d 91, 94 (1986).
But, revisions to the law enacted shortly before the trial of this case have placed the burden
No. 19AP-402 11
on the prosecution to disprove at least one of the elements of self-defense beyond a
reasonable doubt. R.C. 2901.05(B)(1); 2019 Am.Sub.H.B. No. 228.2 That is, R.C.
2901.05(B)(1) provides:
A person is allowed to act in self-defense, defense of another,
or defense of that person's residence. If, at the trial of a person
who is accused of an offense that involved the person's use of
force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense,
defense of another, or defense of that person's residence, the
prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of
another, or defense of that person's residence, as the case may
be.
In other words, in this case, the prosecution was required to disprove self-defense by
proving beyond a reasonable doubt that Carney (1) was at fault in creating the situation
giving rise to the affray, OR (2) did not have a bona fide belief that he was in imminent
danger of death or great bodily harm for which the use of deadly force was his only means
of escape, OR (3) did violate a duty to retreat or avoid the danger. See R.C. 2901.05(B)(1);
Robbins at paragraph two of the syllabus.
{¶ 32} Both S.A. and his girlfriend testified that Carney was the first to strike. See
supra at ¶ 10, 12-15. Although both gave conflicting reports shortly after the stabbing,
which were used to impeach their credibility, under the sufficiency standard and viewing
the evidence in the light most favorable to the State, we assume the credibility of their
assertion that Carney struck first. Monroe, 2005-Ohio-2282, at ¶ 47. Under that version
of events, the State disproved self-defense.
{¶ 33} Turning to the manifest weight standard, where we "sit[] as a 'thirteenth
juror' and disagree[] with the jury's resolution of the conflicting testimony," we recognize
that, regardless of who was the initial physical aggressor in this case, the evidence was
extremely thin on the question of why Carney and S.A. fought at all. Thompkins, 78 Ohio
St.3d at 388, quoting Tibbs, 457 U.S. at 42. They essentially did not know each other and
said little to nothing to each other before engaging physically. See supra at ¶ 10, 17-18.
Thus, it would be difficult to say that the State proved, beyond a reasonable doubt, that
Carney was at fault in creating the situation giving rise to the affray. However, we need not
2 Archived online at 2017 Ohio HB 228.
No. 19AP-402 12
definitively settle that issue because there is a second and alternative element of proof that
may be examined.
{¶ 34} Even if S.A. attacked first and punched Carney in the face, it is difficult to find
that this 46-year-old carpenter, armed with a knife in hand, held a bona fide belief that he
was in imminent danger of death or great bodily harm from an unarmed 15-year-old (albeit
supported by his teenage friends), such that the use of deadly force was his only means of
escape. We do not imply that no juror could have believed that Carney held such a bona
fide fear or belief. But we must review the entire record, weigh the evidence and all
reasonable inferences as a thirteenth juror, including considering the credibility of
witnesses, which we have done in our review. Accordingly, we cannot reach the conclusion
that the jury clearly lost its way and created a manifest miscarriage of justice. We are able
to determine from our review that the jury could have found that the prosecution had
proved Carney was not genuinely in fear for his life when he lashed out at S.A. with a knife.
Thompkins at 387.
{¶ 35} From a sufficiency of evidence standpoint on the prosecution's recent
statutory duty to disprove one of the elements of self-defense, we further find that, "viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found" that the prosecution disproved at least one of the "essential elements" of self-
defense "beyond a reasonable doubt." (Citations and quotation marks omitted.) Monroe,
2005-Ohio-2282, at ¶ 47. We overrule Carney's first and second assignments of error as to
the felonious assault offense.
2. Tampering with Evidence
{¶ 36} The Ohio Revised Code defines the offense of tampering with evidence in
relevant part as follows:
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation.
R.C. 2921.12(A)(1). There is no dispute in this case that after the incident, Carney washed
the blood from his face and laundered the clothes he had been wearing when he stabbed
No. 19AP-402 13
S.A. (Tr. at 216-17, 406.) The relevant questions to the offense of tampering with evidence
are whether he knew that an official investigation was in progress or likely to be instituted
and whether he acted with purpose to impair the value of the bloodstained clothes as
evidence.
{¶ 37} Both the officer who arrested Carney, and Carney himself, testified that
Carney remarked something to the effect of, "I'm surprised it took you so long to come to
my house," and expressed that he had been waiting for the police. (Tr. at 263, 401, 406.)
This could be taken by a jury to be an indication of Carney's recognition that the police
would find a stabbing incident involving a 46-year-old man stabbing a 15-year-old boy in
front of four witnesses significant enough to investigate. Even though Carney testified that
he never thought he would be arrested or charged, the evidence supports that he recognized
that an official investigation was likely to be instituted or in progress. (Tr. at 401.)
{¶ 38} The question of whether Carney acted with purpose to impair the value of the
bloodstained clothing as evidence is a closer one. R.C. 2921.12(A)(1). However, in a
sufficiency analysis, drawing all inferences in favor of the State, the facts speak for
themselves. That is, Carney (a 46-year-old) stabbed S.A. (a 15-year-old) and, on returning
home, laundered the bloody clothes despite his confessed expectation that the police would
soon arrive and, at a minimum, want to talk to him about what happened. (Tr. at 216-17,
263, 386, 398, 401, 406-407.) Under the facts, it could be inferred that Carney was seeking
to destroy evidence of his involvement in the altercation. Monroe, 2005-Ohio-2282, at
¶ 47. Thus, "viewing the evidence in a light most favorable to the prosecution," we find that
a "rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt." (Citations and quotation marks omitted.) Id.
{¶ 39} In a manifest weight analysis, where we are not required to draw inferences
in favor of the State and are instead called upon to "sit[] as a 'thirteenth juror' and disagree[]
with the jury's resolution of the conflicting testimony," the analysis conceivably might be
different. Thompkins, 78 Ohio St. 3d at 388, quoting Tibbs, 457 U.S. at 42. But Carney does
not argue on appeal that his conviction for tampering was against the manifest weight of
the evidence. (Carney's Brief at 22-24.) Consequently, we do not address that issue.
No. 19AP-402 14
{¶ 40} Because the evidence was sufficient to convict Carney of tampering with
evidence, we overrule his first assignment of error as it relates to his conviction for
tampering.
IV. CONCLUSION
{¶ 41} Carney's conviction for felonious assault was sufficiently supported and not
against the manifest weight of the evidence where, despite a dispute in the record about
who struck the first blow in the fight, he, a 46-year-old intoxicated carpenter, repeatedly
stabbed an unarmed 15-year-old boy. Carney's conviction for tampering with evidence was
supported by sufficient evidence because, viewing the evidence in a light most favorable to
the prosecution, it is reasonable to infer that Carney's decision to wash his bloody clothing
was made with purpose to impair its use as evidence. We overrule both of Carney's
assignments of error and affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
LUPER SCHUSTER and NELSON, JJ., concur.