State v. McCombs

[Cite as State v. McCombs, 2015-Ohio-3848.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 15AP-245
(C.P.C. No. 14CR-4873)
Avery McCombs, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 22, 2015
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
Todd W. Barstow, for appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Avery McCombs is appealing from his conviction of charges of felonious
assault and domestic violence. He assigns a single error for our consideration:
THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
OF DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION TEN OF
THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF
FELONIOUS ASSAULT AS THAT VERDICT WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 2} Sufficiency of the evidence is the legal standard applied to determine
whether the case should have gone to the jury. State v. Thompkins, 78 Ohio St. 3d 380,
386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks
No. 15AP-245 2
whether the evidence introduced at trial is legally sufficient as a matter of law to support a
verdict. Id. "The 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. Jenks, 61 Ohio St. 3d
259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307
(1979). The verdict will not be disturbed unless the appellate court finds that reasonable
minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the
court determines that the evidence is insufficient as a matter of law, a judgment of
acquittal must be entered for the defendant. See Thompkins at 387.
{¶ 3} Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence. Thompkins at 387. In so
doing, the court of appeals, sits as a " 'thirteenth juror' " and, after " '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.' " Id. (quoting State v. Martin, 20 Ohio App. 3d 172, 175
(1st Dist.1983)); see also Columbus v. Henry, 105 Ohio App. 3d 545, 547-48 (10th
Dist.1995). Reversing a conviction as being against the manifest weight of the evidence
should be reserved for only the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Thompkins at 387.
{¶ 4} As this court has previously stated, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio
St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). It was within the province of the jury to make the credibility
decisions in this case. See State v. Lakes 120 Ohio App. 213, 217 (4th Dist.1964), ("It is
the province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness.")
{¶ 5} See State v. Harris, 73 Ohio App. 3d 57, 63 (10th Dist.1991), (even though
there was reason to doubt the credibility of the prosecution's chief witness, he was not so
unbelievable as to render verdict against the manifest weight).
No. 15AP-245 3
{¶ 6} Applying this set of legal standards to the facts set forth below, we affirm
the judgment of the trial court.
{¶ 7} McCombs became upset with the woman with whom he was living. He hit
the woman hard enough to knock her out. Five days later, she went to a hospital for a
broken nose, sprained ankle, and contusions. Her face was black and blue. Her legs were
heavily bruised as were her arms. Apparently McCombs had kicked her repeatedly while
she was unconscious. She had none of the injuries before being knocked out.
{¶ 8} Felonious assault is defined by R.C. 2903.11 to include knowingly doing
serious physical harm. Serious physical harm to a person is defined by R.C. 2901.01(A)(5)
as follows:
"Serious physical harm to persons" means any of the
following:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
(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.
{¶ 9} The harm done by McCombs fits a number of the sub-paragraphs of the
statutory definition, specifically (a), (d), and (e).
{¶ 10} The same evidence which supported the felonious assault conviction also
supported the domestic violence conviction which the trial court merged with the
felonious assault. McCombs had two prior domestic violence convictions. He did the
harm outlined above.
No. 15AP-245 4
{¶ 11} As a result, we overrule the single assignment of error. We, therefore,
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and HORTON, JJ., concur.