State v. M.L.D.

[Cite as State v. M.L.D., 2016-Ohio-1238.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-614
v. : (C.P.C. No. 14CR-3477)
[M.L.D.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 24, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee. Argued: Michael P. Walton.
On brief: Yavitch & Palmer Co., L.P.A., Keri Lynne Collin,
and Stephen E. Palmer, for appellant. Argued: Keri Lynne
Collin.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, M.L.D., appeals from the judgment of conviction and
sentence entered by the Franklin County Court of Common Pleas following a bench trial
in which she was found guilty of one count of felonious assault, in violation of R.C.
2903.11, a second-degree felony.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The charge against appellant arose from a violent altercation between two
mixed groups of adults and teenagers that began in the parking lot of Reynoldsburg High
School and continued to the street and front lawn of a nearby residence on Redwood
Avenue, Reynoldsburg, Franklin County, Ohio. The indictment contains a single count of
felonious assault in that appellant "did knowingly cause or attempt to cause physical harm
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* * * by means of a deadly weapon or dangerous ordnance * * * to wit: a motor vehicle
and/or baton." The indictment specifies that the victim, like appellant, was an adult
woman, S.B. The two women are parents of teenage daughters, and a rift between the
daughters appears to be at the root of the eventual violence.
{¶ 3} After extensive testimony from eyewitnesses, including responding police
officers and review of dash-cam video from a police cruiser and two school surveillance
locations, the court rendered its verdict and sentenced appellant to a three-year term of
incarceration. She has timely appealed.
II. ASSIGNMENTS OF ERROR
{¶ 4} Appellant assigns the following errors for our review:
[1.] TRIAL COUNSEL'S FAILURE TO ASSERT THE
AFFIRMATIVE DEFENSE OF SELF-DEFENSE AND
DEFENSE OF OTHERS RESULTED IN APPELLANT'S
CONVICTION AND DEPRIVED APPELLANT OF HER
SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL.
[2.] THE TRIAL COURT ERRED BY OVERRULING
APPELLANT'S CRIM.R. 29 MOTION FOR JUDGMENT OF
ACQUITTAL, AND THEREBY DEPRIVED APPELLANT OF
DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH
AND FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.
[3.] 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.
[4.] THE TRIAL COURT ERRED BY NOT STATING
SPECIFIC REASONS FOR ORDERING A NON-MINIMUM
FELONY SENTENCE, THEREBY VIOLATIING HER DUE
PROCESS RIGHTS UNDER THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONTITUTION
[AND] COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION.
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No. 15AP-614
III. DISCUSSION
{¶ 5} We will address appellant's assignments of error out of numerical order,
beginning with her third assignment of error, which asserts that the verdict is against the
manifest weight of the evidence heard at trial.
{¶ 6} "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.'
It indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established before them.
Weight is not a question of mathematics, but depends on its effect in inducing belief."
(Emphasis omitted.) State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black's
Law Dictionary 1594 (6th Ed.1990).
{¶ 7} The finder of fact at trial is in the best position to weigh the credibility of
testimony by assessing the demeanor of the witnesses and the manner in which they
testify, their connection or relationship with the parties, and their interest, if any, in the
outcome. The finder of fact can accept all, part, or none of the testimony offered by a
witness, whether it is expert opinion or eyewitness fact and whether it is merely evidential
or tends to prove the ultimate fact. State v. McGowan, 10th Dist. No. 08AP-55, 2008-
Ohio-5894, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 8} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
"thirteenth juror" and disagrees with the factfinder's resolution of the conflicting
testimony. Thompkins at 387. An appellate court should reverse a conviction as against
the manifest weight of the evidence in only the most "exceptional case in which the
evidence weighs heavily against conviction," instances in which 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." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
{¶ 9} After independently reviewing the evidence and bearing in mind the trial
court's superior, first-hand perspective in judging the demeanor and credibility of
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witnesses, we cannot conclude that the trial court "lost its way" by finding that the state's
evidence supported conviction. Id.{¶ 10} The indictment charged appellant with felonious assault, a violation of R.C.
2903.11(A)(2), in that she knowingly caused or attempted to cause physical harm to
another by means of a deadly weapon or dangerous ordnance as defined in R.C. 2923.11.
Based on the evidence, the prosecution described the deadly weapons as the use of
appellant's automobile to strike the victim and the use of a metal baton or club to strike
the victim.
{¶ 11} The state first presented the testimony of the victim, S.B. S.B. testified that
on May 28, 2014, she lived on Redwood Avenue, a street adjacent to the parking lot of the
high school. S.B.'s daughter, R.B., and appellant's daughter, M.D., were classmates in the
eighth grade. On the afternoon in question, S.B. returned to her home from work in the
afternoon. Shortly thereafter, her daughter entered the house in a frantic state and
complained that M.D. and M.D.'s friend, D., a girl of similar age, had chased her with
police-style "night sticks." (Tr. 21.)
{¶ 12} S.B. went to the door of her home and observed M.D. and D. running with
club-like objects in their hands through the school parking lot. The girls ignored S.B.'s
demand that they stop what they were up to, so S.B. chased them on foot and caught up
with them in the parking lot. She approached the girls and "started fussing at them." (Tr.
21.) She told the girls to quit coming to her house and trying to fight her daughter. The
girls were not compliant and began "talking trash." (Tr. 22.) S.B. attempted to call police
but her phone was dead, so she turned to walk home, and at the midpoint as she crossed
the parking lot, she heard a car and saw appellant coming toward her in her van. As S.B.
turned to face the vehicle, appellant drove "straight into" her and struck her. (Tr. 22.)
S.B. could not run effectively because she was holding her five-year-old daughter's hand.
Appellant then circled S.B. with the van, hitting S.B. repeatedly.
{¶ 13} Appellant then stopped the van and got out with a metal baton and began
striking S.B. with it. M.D. and D. joined in the assault while R.B. attempted to pull them
off S.B. Appellant re-entered the van and drove from the school lot, striking S.B. one
more time and almost striking S.B.'s two-year-old son. S.B. returned to her house, where
neighbors attempted to stem the flow of blood from her head by applying towels. S.B.
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No. 15AP-614
then observed that a police cruiser had arrived at the scene, parking directly behind
appellant's van, which was now located in front of S.B.'s house. Appellant, D., and M.D.
again began attacking R.B. S.B. interrupted her brief conversation with the newly-arrived
officer and again ran to her daughter's aid. She punched appellant and then they both fell
to the ground under the effect of police pepper spray, effectively ending the fight.
{¶ 14} S.B. further testified by observing and describing for the court the events
depicted on a surveillance video covering the school parking lot. She identified the
various parties and their actions and described events corresponding to her testimony.
She was then given the opportunity to do the same for the police dash-cam video taken
from the first cruiser on the scene at the second phase of the fight, in front of her house on
Redwood Avenue. She also identified in court two batons secured by police at the scene
and stated that these resembled the ones used to strike her.
{¶ 15} S.B. next described the nature of her physical injuries. She identified and
described photographs taken of her after the fight. She stated that these showed bruises,
welts, and contusions from blows to her head, as well as a bite mark to her face. She
stated that after the fight, she was taken by emergency squad to Grant Medical Center.
Medical personnel stopped the bleeding from her worst head wound and applied a neck
brace. S.B. was dizzy, disoriented, "couldn't think straight," and in "a lot of pain" at the
hospital. (Tr. 40.) She also suffered bruises to her knees and legs where the van struck
her.
{¶ 16} Despite her condition, S.B. left the hospital on the evening of the assault so
that she could return home to care for her children. She declined to wait for further
treatment that night, including stitches for her head wound. Later, she underwent
therapy because she had difficulty walking. Because of her injuries, she has not worked
regularly since the fight. S.B. closed her testimony on direct examination by stating that
at no time in the incident was she armed and that she did not initiate the confrontation
with the girls in the school parking lot with any intent of starting a physical fight.
{¶ 17} Plaintiff-appellee's, State of Ohio, next witness was Sergeant Lawrence
Finkes, a 27-year veteran of the Reynoldsburg Police Department. On the day in question,
he responded to a dispatch indicating a disturbance in the parking lot of the high school.
On arriving, he observed several vehicles driving much too fast in the school lot. Several
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No. 15AP-614
persons were also running from the scene, confirming Sergeant Finkes's belief that a large
fight was in progress. He followed a white van, later identified as appellant's, to the
nearby street while another responding cruiser pulled over a different vehicle.
{¶ 18} As soon as the van stopped, the occupants exited and began fighting another
group of women in front of the van. The altercation quickly drew onlookers, and as the
crowd was growing and the combatants were completely unresponsive to police
commands, Sergeant Finkes deployed his pepper spray on all involved. He then called
additional units to keep the parties separated and for medics to assist those who were
reacting badly to the pepper spray. EMS personnel arrived quickly, and Sergeant Finkes
had a brief conversation with S.B. before she was taken to the EMS vehicle for treatment.
S.B. stated she had been assaulted in the parking lot and then run over by the white van
that Sergeant Finkes had pulled over.
{¶ 19} Once the parties had been separated and somewhat calmed, Sergeant
Finkes secured the scene as best as he could and gathered physical evidence, primarily by
impounding appellant's van. He was particularly interested in preserving the van as
evidence because he had observed blood on the exterior of the vehicle. He then contacted
school officials to obtain copies of the school parking lot surveillance video.
{¶ 20} The state then presented the witness with the collapsible metal batons used
in the altercation. The defense stipulated that these were the batons recovered at the
scene from appellant's van. Sergeant Finkes described them as police-style batons to be
used when a person strongly resists arrest or in defensive situations requiring physical
force. Sergeant Finkes specified that, pursuant to his training, the collapsible batons
could be used in various submission holds and pressure point applications and should not
be used to strike a person in the head unless it was a life-threating situation where deadly
force would be justified to protect the officer.
{¶ 21} On cross-examination, Sergeant Finkes confirmed that although he had
requested that S.B. furnish her medical records from Grant Medical Center as part of the
investigation, she failed to produce them with respect to her first hospital stay at Grant on
the day of the incident and could only furnish them for a visit two days later to Mount
Carmel Hospital. Under further cross-examination, Sergeant Finkes stated that his initial
assessment of both the school parking lot video and his own dash-cam video did not fully
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No. 15AP-614
support S.B.'s account of the incident. He specifically conceded that the initial part of the
school video depicts S.B. and her daughter, R.B., running from their home toward the
parking lot and confronting D. and M.D. Sergeant Finkes observed that one discrepancy
involved S.B.'s claim to him in interviews that she had been "run over," whereas the
school video disclosed that she had been struck but the vehicle did not physically pass
over her body. Sergeant Finkes also confirmed on cross that when he arrived at the
Redwood Avenue location and spoke to S.B., she broke away from him immediately and
joined the fight taking place in front of appellant's van.
{¶ 22} The state next called S.L.R., who testified that she resided on Redwood
Avenue on May 28, 2014. She knew her neighbor, S.B., by sight but had only a nodding
and waving acquaintance with her. On the day in question, S.L.R. returned from work
and saw many people gathered in the parking lot of the high school. At first, it seemed the
gathering was comprised mostly of young teens and children, but then a white van pulled
into the parking lot going too fast and began driving in circles around a group of people.
A very young child in the group was screaming as the vehicle circled, and it appeared that
the child could not safely break away from the group.
{¶ 23} At that time, a young man came from S.B.'s house and walked toward the
parking lot. He appeared to observe the car going around the children and was trying to
rescue the younger child. The van was moving fast enough that S.L.R. could hear the tires
screeching. The van hit S.B., who went flying onto the hood and then fell back to lie on
the ground.
{¶ 24} After a minute or two, S.B. got up, whereupon the occupants of the car
exited and began beating her. The van then left the parking lot and S.B. began walking
toward her home. S.L.R. went home and got her first aid kit and offered assistance.
Using a rag, S.L.R. began to get blood cleaned from S.B.'s face. As S.L.R. attempted to
treat S.B., initially S.B. appeared disoriented and was "gushing blood" from her head. (Tr.
97.)
{¶ 25} S.L.R. then heard tires screeching in the street. S.B. ran out of the house
toward a white van parked in front of S.L.R.'s driveway. The same individual with two
younger girls again exited the van and began another fight in the middle of the street. The
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No. 15AP-614
two girls were fighting S.B.'s daughter, R.B., and the older women were initially some
distance away, fighting each other.
{¶ 26} The next witness for the prosecution was Officer Craig Brafford of the
Reynoldsburg Police Department. On the day in question, he was called to collect
evidence, including blood splatter evidence from a white Town and Country mini van at
the scene of a fight on Redwood Avenue. He collected blood samples with cotton swabs
and submitted them to the Ohio Bureau of Criminal Identification and Investigation
crime lab. The crime lab returned a report matching the blood to S.B. Officer Brafford
identified photographs of a van showing the blood stains and authenticated the general
appearance of the stains.
{¶ 27} Officer Brafford further testified that he also collected two expandable metal
batons from inside the vehicle. He made a courtroom identification of the batons and
stated that he was familiar with their use. Departmental policy in Reynoldsburg was to
employ the batons in "joint manipulation" or by striking major muscle groups, including
the upper shoulder area. (Tr. 118.) Policy prohibited use of the batons against a person's
head, which would be deadly force in self-defense and employed by an officer as a last
resort when confronted with deadly force. On cross-examination, Officer Brafford
conceded that he had not visually observed blood on the batons, nor tested them for
blood. He also confirmed that when searching appellant's van, he found two civil
protection orders against R.B. issued in Franklin County the day prior to the incident but
not yet served.
{¶ 28} After the state rested, the defense moved for a Crim.R. 29 dismissal based
on the lack of credibility of the victim witness and a lack of corroboration of her story by
the police and parking lot surveillance cameras. The trial court overruled the motion.
{¶ 29} Appellant testified on her own behalf. She testified that on the day in
question, she received a "frightening" phone call from her daughter, who was screaming
and stated that R.B. and her mother were fighting with her. (Tr. 132.) Appellant ran to
her car and began to drive to the school parking lot while calling 911. She first drove to
the wrong school. When she eventually arrived at the high school, she saw young people
gathered in the parking lot.
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No. 15AP-614
{¶ 30} Appellant saw S.B. chasing appellant's daughter, M.D., and tried to catch up
with them in the van. She then drove around the parking lot and tried to place her van
between S.B. and M.D. Appellant thought that S.B. would jump back as the car
approached but instead S.B. put her hands on the hood of the vehicle after the vehicle had
stopped. Appellant then exited the vehicle, fearing for M.D. and D. because a crowd of
hostile people had gathered. She grabbed a baton from D.'s hand, feeling threatened by
S.B. who had assumed a fighting stance. Appellant hit S.B. after being punched by S.B. in
the face. S.B.'s boyfriend then grabbed the baton from appellant, and appellant and S.B.
then fought with their bare hands. S.B.'s boyfriend also struck appellant at this point.
The parties then separated and S.B.'s boyfriend gave appellant back the baton, somewhat
to her surprise as she initially thought he was going to hit her with it. As appellant and
M.D. got back in the car and drove away, M.D. pointed out that appellant's phone was
missing.
{¶ 31} At this point in the testimony, appellant's 911 call was played in open court.
In the call, appellant states that police should come to Reynoldsburg High School because
a woman was assaulting her 13-year-old daughter. Appellant was then given the
opportunity to view the school security video and describe the events depicted. She stated
that as the fight progressed to the Redwood Avenue area, S.B. at one point attempted to
rub a rag covered in an irritating substance in appellant's face.
{¶ 32} On cross-examination, appellant stated that after arriving in the parking lot,
she witnessed S.B.'s daughter, R.B., chasing her daughter M.D. and swinging at her.
Appellant denied seeing a two-year-old child in the parking lot. She insisted she obtained
her baton from M.D.'s friend D. and did not have it with her when she arrived at the
scene.
{¶ 33} The defense also called R.F., currently married to appellant. He was present
in appellant's home when they received the phone call about young people fighting in the
high school parking lot. He left the house shortly after appellant and arrived in his own
vehicle. When he arrived at the high school, appellant and M.D. were saying that S.B. and
S.B.'s boyfriend had struck them. The situation then moved to the street in front of S.B.'s
house, where another fight ensued. The police pepper sprayed all those involved in the
fighting.
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No. 15AP-614
{¶ 34} Appellant asserts that the above evidence presented at trial did not support
conviction because S.B. did not suffer "serious" physical harm as defined by R.C.
2903.11(A), that her actions were justified because she acted in self-defense, and that her
actions were justified because she acted in defense of M.D., who was the object of a
physical assault.
{¶ 35} With respect to the severity of the injuries suffered by S.B., S.B.'s testimony,
if believed, supports the conclusion that appellant inflicted serious physical injuries by
striking S.B. with her car, in the head with a baton, and possibly inflicting bite wounds.
Moreover, under the version of felonious assault given in the indictment, the state was
only held to prove that appellant attempted to cause physical harm by means of a deadly
weapon. R.C. 2903.11(A)(2). The degree of injury suffered by S.B., while well-
substantiated, is relevant only insofar as it corroborates appellant's attempt to knowingly
inflict physical harm with the requisite type of weapon.
{¶ 36} Under R.C. 2923.11(A), "deadly weapon" is defined as "any instrument,
device, or thing capable of inflicting death, and designed or specially adapted for use as a
weapon, or possessed, carried, or used as a weapon." (Emphasis added.) Although not
expressly as such, "[w]hen an automobile is used in a manner likely to produce death or
grave bodily harm, it can be classified as a deadly weapon under R.C. 2923.11." State v.
Bandy, 7th Dist. No. 10 MA 74, 2011-Ohio-4332, ¶ 22, citing State v. Tortarella, 11th Dist.
No. 2002-L-147, 2004-Ohio-1175, ¶ 64; State v. Allsup, 3d Dist. No. 6-10-06, 2011-Ohio-
405, ¶ 23. This is true because a car is a large and heavy instrument that is fully capable
of inflicting death or serious bodily injury, even if traveling at a relatively slow speed.
Bandy at ¶ 23; see also State v. Taylor, 5th Dist. No. 12CAA020007, 2012-Ohio-5029;
State v. Hudson, 7th Dist. No. 11 MA 130, 2012-Ohio-5614. "When determining whether
an automobile is a deadly weapon, a court should consider the intent of the user, the
nature of the weapon, the manner of its use, the actions of the user and the capability of
the instrument to inflict death or serious bodily injury." State v. Evans, 10th Dist. No.
01AP-1112, 2002-Ohio-3322, ¶ 22, citing State v. Gimenez, 8th Dist. No. 71190 (Sept. 4,
1997).
{¶ 37} The evidence, if believed, established that appellant deliberately
maneuvered her vehicle at excessive speed around the school parking lot, amidst a crowd
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No. 15AP-614
of persons including very young children, and at least twice struck her victim with enough
force to inflict trauma and leave blood smears on the van. When a person drives a vehicle
directly at a plainly visible pedestrian and fails to stop or change direction despite the
opportunity to do so, the intent to knowingly inflict physical harm may be inferred.
Hudson at ¶ 26 (defendant drove car directly into group of police officers on foot, who
only avoided being struck by leaping aside).
{¶ 38} The evidence also establishes that appellant struck S.B. in the head with a
baton. Two different law enforcement witnesses testified that, pursuant to department
policies, striking an individual in the head with a metal baton of this type constituted
deadly force to be used only when justified. This court has specifically held that a metal
baton used to inflict blows to the head may satisfy the deadly weapon element of felonious
assault. State v. Logan, 10th Dist. No. 08AP-881, 2009-Ohio-2899, ¶ 20-23.
{¶ 39} Viewing these factors under a manifest weight standard of review, we find
that the state presented ample evidence to support a conviction for felonious assault
based on the knowing infliction of physical harm by use of either type of deadly weapon.
We therefore find that the trial court's verdict is not against the manifest weight of the
evidence in this respect. Under a manifest weight challenge, the mere presence of
conflicting evidence does not establish that the evidence presented could not support a
conviction. State v. Samatar, 10th Dist. No. 02AP-180, 2003-Ohio-1639, ¶ 113; State v.
Murphy, 91 Ohio St.3d 516, 543 (2001).
{¶ 40} We next examine appellant's claims of self-defense or defense of another.
Self-defense is an affirmative defense in which the accused has the burden to prove by a
preponderance of the evidence. R.C. 2901.05(A). To establish the affirmative defense of
self-defense through the use of deadly force, appellant must prove first, that she was not
at fault in creating the situation that gave rise to the affray; second, that she had a bona
fide belief that she was in imminent danger of death or great bodily harm and that her
only means of escape from such danger was the use of force; and third, she must not have
violated any duty to retreat or avoid the danger. State v. Smith, 10th Dist. No. 04AP-189,
2004-Ohio-6608, ¶ 16. A person may use only as much force as is reasonably necessary
to repel an attacker. State v. Harrison, 10th Dist. No. 06AP-827, 2007-Ohio-2872, ¶ 25,
citing State v. Jackson, 22 Ohio St.3d 281 (1986).
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No. 15AP-614
{¶ 41} The standard for defense of another is comparable. See State v. Moss, 10th
Dist. No. 05AP-610, 2006-Ohio-1647, ¶ 13. A defendant claiming the lawful right to act in
defense of another must meet the criteria for the affirmative defense of self-defense. Id.{¶ 42} The evidence in the present case does not demonstrate error on the part of
the trial court in concluding that appellant had failed to meet her burden of establishing
by a preponderance of the evidence that she acted in self-defense or defense of another.
Appellant used a motor vehicle and a metal baton to inflict injuries on S.B. S.B. testified
that to the extent that she responded physically, she used only her bare hands. In
response to the initial affray between teenage girls, appellant chose not to retrieve her
daughter, which testimony and surveillance video demonstrate to have been possible at
various points, and thereafter leave the parking lot but, instead, drove in circles with
numerous other persons in the vicinity, striking S.B. at least twice with her van and
leaving both S.B. and the vehicle bloodied. Even accepting in its entirety, which the trial
court was not required to do, appellant's testimony regarding past bullying incidents and
the physical attack on appellant's daughter, M.D., the use of force was not commensurate
with those attacks, and appellant's failure to immediately retreat from the parking lot
situation was compounded by her decision to drive to the vicinity of S.B.'s home.
{¶ 43} We accordingly find that the trial court's verdict is not against the manifest
weight of the evidence either on the basis of self-defense or defense of another, based on
the degree of force employed by appellant and the resulting injuries. The verdict is not
against the manifest weight on the question of appellant's knowing use of a deadly
weapon to inflict or attempt to inflict physical harm. Appellant's third assignment of error
is overruled.
{¶ 44} Appellant's second assignment of error asserts that the trial court erred in
overruling defense counsel's Crim.R. 29 motion for acquittal at the close of the state's
evidence. A Crim.R. 29 motion tests the sufficiency of the evidence, and, accordingly, we
apply the same standard of review to Crim.R. 29 motions that we use in reviewing
sufficiency of the evidence as a challenge to a guilty verdict. State v. Hernandez, 10th
Dist. No. 09AP-125, 2009-Ohio-5128, ¶ 6; State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, ¶ 37.
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No. 15AP-614
{¶ 45} The legal concepts of sufficiency of the evidence and weight of the evidence
involve different determinations. Thompkins at 386. As to sufficiency of the evidence,
" '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 evidence is legally sufficient to support
the jury verdict as a matter of law." Id., citing Black's Law Dictionary 1433 (6th
Ed.1990). A determination as to whether the evidence is legally sufficient to sustain a
verdict is a question of law. Id. When we review the sufficiency of the evidence on appeal,
we construe the evidence in the light most favorable to the prosecution to determine
whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. As a result, when we review the sufficiency of the evidence, we do not,
on appeal, reweigh the credibility of the witnesses. State v. Yarbrough, 95 Ohio St.3d
227, 2002-Ohio-2126, ¶ 79.
{¶ 46} The relevant inquiry on review of the sufficiency of the evidence is whether,
"after viewing the evidence in the 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." (Emphasis sic.) Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
reversal based on insufficient evidence has the same effect as a not-guilty verdict because
such a determination "means that no rational factfinder could have voted to convict the
defendant." Tibbs v. Florida, 457 U.S. 31, 41 (1982).
{¶ 47} Under the above standard, we find that the examination of evidence in
relation to appellant's manifest weight challenge to her conviction produces the identical
result when examining the sufficiency of the evidence before the court at the close of the
prosecution's case. Deprived of the limited reweighing of evidence available in a manifest
weight challenge, we are left only to construe the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have found the essential
elements of the offense proven beyond a reasonable doubt. For the reasons that support
our conclusion that the trial court did not err in its verdict under a manifest-weight
standard, we conclude that the trial court did not err in finding the evidence sufficient to
overrule a Crim.R. 29 motion for acquittal. Appellant's second assignment of error is
overruled.
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No. 15AP-614
{¶ 48} Appellant's fourth assignment of error asserts that the trial court erred by
not giving specific reasons for sentencing her to a sentence greater than the statutory
minimum (two years, R.C. 2929.14(A)(2)) specified for the crime for which she was
convicted. The sentencing entry contains the following language with respect to the
statutory sentencing factors:
The Court has considered the purposes and principles of
sentencing set forth in R.C. 2929.11 and the factors set forth in
R.C. 2929.12. In addition, the Court has weighed the factors
as set forth in the applicable provisions of R.C. 2929.13 and
R.C. 2929.14. The Court further finds that a prison term is
not mandatory pursuant to R.C. 2929.13(F).
***
After imposing sentence the Court gave its finding and stated
the reasons for the sentence as required by R.C.
2929.19(B)(2)(a)(b) and (c)(d) and (e).
(June 15, 2015 Judgment Entry, 1-2.)
{¶ 49} Appellant's brief on appeal appears to concede that this language used by
the court in its entry, in conjunction with the statements of the court at the sentencing
hearing, complies with Ohio's statutory sentencing requirements when entering a greater-
than-minimum felony sentence, pursuant to the Supreme Court of Ohio's decision in
State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, as modified by State v. Bonnell, 140
Ohio St.3d 20, 2014-Ohio-3177. See State v. Hargrove, 10th Dist. No. 15AP-102, 2015-
Ohio-3125 (addressing required findings when imposing consecutive sentences). The trial
court retains discretion in sentencing, and we may not modify or vacate a sentence unless
it is clearly and convincingly contrary to law. R.C. 2953.08(G)(2); State v. Rivera, 10th
Dist. No. 10AP-945, 2012-Ohio-1915, ¶ 51. The sentence imposed here by the trial court is
within the range specified by statute. Furthermore, appellant's brief on appeal confirms
that this argument is raised here only to preserve it for subsequent collateral attack on her
conviction in federal court. Appellant raising no new argument in support of a reversal on
the basis of sentencing, we duly note that the issue is adequately preserved and overrule
appellant's fourth assignment of error.
15
No. 15AP-614
{¶ 50} Finally, we turn to appellant's first assignment of error, which asserts that
she did not receive the effective assistance of trial counsel guaranteed under the Sixth
Amendment to the U.S. Constitution. In order to establish a claim of ineffective
assistance of counsel, a defendant must first demonstrate that trial counsel's performance
was so deficient that it was unreasonable under prevailing professional norms. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must then establish that
"there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
{¶ 51} "A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at
the time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances the challenged action 'might be considered sound trial
strategy.' " Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101 (1955). A verdict
adverse to a criminal defendant is not of itself indicative that he received ineffective
assistance of trial counsel. State v. Hester, 45 Ohio St.2d 71, 75 (1976).
{¶ 52} Appellant specifically asserts that trial counsel failed to effectively argue the
affirmative defenses of self-defense and defense of others, despite the presence of
favorable facts and evidence to support those affirmative defenses. When a defendant
alleges that counsel was ineffective for failure to pursue an additional legal defense, the
actual prejudice prong of Stickland presents two components: first, the defendant must
prove that the proposed defense was meritorious, and second, the defendant must show
that there is a reasonable probability that the outcome of trial would have been different
had counsel pursued the defense. State v. Santana, 90 Ohio St.3d 513 (2001), citing State
v. Lott, 51 Ohio St.3d 160, 174-76 (1990).
{¶ 53} As described in our discussion of appellant's third assignment of error, the
evidence certainly supports a finding that the situation escalated out of a generalized
affray in which the victim took some aggressive action. That evidence, however, does not
16
No. 15AP-614
rise to a level that would support a finding that the finder of fact would have reached a
different outcome if counsel would have presented a more coherent and emphatic self-
defense argument. The steps appellant took to escalate and continue the confrontation
and the physical means that she used to inflict serious injury on her opponent, including a
metal baton and motor vehicle, do not comport with the reasonable-force elements
inherent in her self-defense argument. We accordingly find that appellant has not
demonstrated that trial counsel was ineffective, and appellant's first assignment of error is
overruled.
IV. CONCLUSION
{¶ 54} In summary, we overrule appellant's four assignments of error and affirm
the judgment of conviction and sentence entered by the Franklin County Court of
Common Pleas.
Judgment affirmed.
TYACK and BROWN, JJ., concur.