DocketNumber: No. C-030568.
Citation Numbers: 811 N.E.2d 567, 157 Ohio App. 3d 383, 2004 Ohio 2871
Judges: GORMAN, Judge.
Filed Date: 6/4/2004
Status: Precedential
Modified Date: 1/13/2023
{¶ 1} Viewed narrowly, this appeal presents a simple question: whether the trial court erred by convicting the defendant-appellant, Gino Guidugli, of misdemeanor assault, in violation of R.C.
{¶ 2} Unfortunately, the larger social question is not directly addressed by the legal issues presented on appeal, which concern only the sufficiency of the *Page 385 evidence and the competency of counsel in presenting Guidugli's unsuccessful claim of self-defense. Although questioning the necessity of prosecuting as a criminal offense what may have been dealt with internally by the university, and the harshness of the sentence imposed by the trial court, we are unable to find any reversible legal error. As a court of law, not of social policy, we affirm.
{¶ 4} There was conflicting testimony regarding the nature of the ensuing scuffle. Keith Steineman, the intramural supervisor, described it as a "fracas" involving "pushing and shoving." He stated that supervisors were trained to "let players like work it out themselves so we don't get involved and get hit." Steineman testified, though, that the only punch he saw thrown was that by Guidugli. But one of Guidugli's teammates, Doug Monaghan, testified that the pushing and shoving quickly escalated into a donnybrook. In his words, "fists were flying."
{¶ 5} According to Steineman, he witnessed Guidugli enter the fracas, and it was his opinion that Guidugli was, initially at least, "trying to break up [the] scuffle." But he then saw Guidugli knock over one of the opposing players, Levi Harris, and "punch him with a full swing" around the eye. Chris Brunswick, who was acting as scorekeeper, testified that he thought Harris was already on the ground when Guidugli ran onto the court and punched him. Guidugli, however, testified that he was one of the players on the floor and had taken a position along the foul lane, getting ready for the foul shots, when the fight broke out. He stated that he saw another teammate of his, Kevin Hazel, punch Harris, and that he was pulling someone off Monaghan when he saw a punch coming in his direction out of the corner of his eye. He stated that when he turned around, he recognized the person attempting to throw the punch as Harris and he "just defended himself."
{¶ 6} Whatever the degree of the fight, Steineman testified that afterward the teams "worked it out" and order was restored. Guidugli's team was told, apparently by Steineman, that they had forfeited the game and should leave the gym, which they did. *Page 386
{¶ 7} The university police were called after Steineman reported the "group fight" by radio to the main office. Officer Kevin Manz arrived two minutes after being dispatched, but some 30 to 45 minutes after the incident. Although Guidugli and his team had left, Harris and his team had remained because they had another game. Officer Manz spoke to Harris, who was holding a wet cloth to the area around his left eye. Officer Mainz took photographs of Harris's face. Harris then signed a complaint charging Guidugli with criminal assault. Harris's affidavit accompanying the complaint stated, "As I was walking away I was hit with two punches, one from the side and one from the back. I was unaware who hit me."
{¶ 8} Harris, it must be noted, failed to appear at trial. According to the prosecution, Harris was living in Columbus and was unable to leave work to attend the proceeding.
{¶ 9} The trial court, upon hearing all of the various versions of the fight and punch, rejected Guidugli's claim of self-defense, stating that the evidence showed that he had punched Harris in retaliation rather than to protect himself. The court thus convicted Guidugli of misdemeanor assault. After listening to arguments in favor of mitigation made by Guidugli's trial counsel, the court imposed a 180-day jail sentence, which it then suspended in favor of one year's probation with the conditions that Guidugli undergo 60 days of home incarceration using an electronic monitoring unit, and that he participate in any treatment or counseling, including anger management, recommended by the probation department. Further, Guidugli was required to pay a $100 fine and court costs.
{¶ 10} On July 3, 2003, Guidugli, represented by new counsel, filed a written motion to mitigate, requesting the court to reconsider its sentence. In his motion, Guidugli asked the court to sentence him to community service only, asserting that the incident that had led to his conviction was an isolated event in which he had allowed his competitive nature to interfere with his better judgment. He claimed that he deeply regretted his behavior and had learned a valuable lesson that would preclude him from ever committing a similar offense. In support of his character, he pointed out that he had been a law-abiding citizen for the first 20 years of his young life and had maintained a grade point average of 3.27 as a business-management major at the University of Cincinnati while maintaining the rigorous schedule of a college athlete. He also pointed out that he had been an active member of CPAWS, a student-athlete group that took part in service projects throughout the greater Cincinnati area, and that he had voluntarily spoken at numerous fundraisers and had traveled to Mississippi Gulf Coast Community College to work as a camp counselor for disadvantaged children. He also observed that the sentence as imposed by the trial court had forced him to cancel plans to attend the Peyton Manning Sports Camp, and that *Page 387 it threatened his participation in certain media events important in garnering awards during the college football season, as well as his presence at a team training camp considered integral in preparation for the first game of the season.
{¶ 11} On July 7, 2003, the trial court denied the motion. On August 14, 2003, the trial court granted Guidugli's motion to stay further execution of the sentence pending this appeal.
{¶ 13} A motion for a judgment of acquittal should not be granted when reasonable minds can reach different conclusions as to whether each element of the crime charged has been proved beyond a reasonable doubt. See Crim.R. 29; see, also, State v. Bridgeman (1978),
{¶ 14} Because the case was tried to the bench, it was unnecessary for Guidugli to have renewed his Crim.R. 29 motion at the close of all of the evidence. Dayton v. Rogers (1979),
{¶ 15} The Second Appellate District, it should be noted, has concluded that a defendant who presents evidence does not waive his right to argue on appeal that the trial court erred by overruling his Crim.R. 29 motion at the close of the state's evidence. State v. Parks (1990),
{¶ 16} Notwithstanding Parks and its progeny, we continue to adhere to our own rule in Erwin. The Ohio Supreme Court's holding in Helmick was based, in part, upon Civ.R. 50(A)(2). That rule states that "[a] party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event the motion is not granted * * * to the same extent as if the motion had not been made * * *." Crim.R. 29 contains no parallel provision. Furthermore, the court in Helmick
reasoned that there was no logic in a rule that forces a civil defendant to rest at the close of the plaintiff's case-in-chief and risk an adverse verdict in order to preserve error. But the same reasoning does not apply to a criminal case. Unlike a civil case, the state may not depose the defendant or call the defendant as a witness as on cross-examination in its case-in-chief. The
{¶ 17} We raise this point because Guidugli's arguments concerning the sufficiency of the evidence are directed solely to the state's case. Under Erwin, however, his decision to go forward with a defense waived such an argument. We note, though, that, even if we ignore Guidugli's defense in which he admitted striking Harris, the state offered sufficient direct and circumstantial evidence in its case-in-chief to convict Guidugli of misdemeanor assault. "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof." State v. Jenks
(1991),
{¶ 18} In the state's case-in-chief, both Steineman and Brunswick testified that they saw Guidugli punch the victim in the face with such force that one could reasonably infer intent to inflict physical injury. Steineman described the force as "pretty good," and Brunswick testified that Guidugli "wound up" before delivering the punch. A person is presumed to intend the natural consequences of his actions, and, therefore, the trial court was entitled to infer that Guidugli, by landing a forceful punch just beneath Harris's eye, intended to do more than just temporarily distract his attention. As for the state's evidence establishing the victim's identity, Officer Manz testified that he spoke to the victim, who was holding a wet towel to his face, upon arriving at the basketball court. Officer Manz identified the man he spoke to as Levi Harris, and he then presented photographs, which were admitted as exhibits, of Harris's injured face. We have examined these black-and-white photographs independently, and although Harris's eye does not appear to have sustained any injury, there is a barely noticeable swelling underneath the left socket, which, though appearing anything but serious, could be perceived by the trier of fact as a minor welt. Accordingly, it was reasonable for the trial court to conclude at the close of the state's case that Guidugli had knowingly caused or attempted to cause Harris physical harm, which R.C.
{¶ 19} Guidugli's first assignment of error is overruled.
{¶ 24} These arguments were clearly cogent and supportive of Guidugli's claim of self-defense. They were not incompetent or ineffective. Concededly, at one point defense counsel stated that Guidugli's punch was thrown in "retaliation," but when the remark is considered in context, it is clear that he did not mean to imply that the punch was gratuitous. The thrust of his argument was that the punch was thrown to ward off another blow.
{¶ 26} This argument brings into focus the larger question alluded to at the outset of this opinion: whether physical altercations arising in sports contests that are already subject to some form of internal regulation and discipline should necessarily result in criminal charges, at least where there are no serious physical injuries as a result. Legal scholars have questioned the strict application of the criminal law to sports contests in which, contrary to real-world norms that generally condemn such behavior, a premium is placed upon physical aggression, intimidation, and enforcement. See, e.g., Clarke, Law and Order on the Courts: The Application of Criminal Liability for Intentional Fouls During Sporting Events (2000), 32 Ariz.St.L.J. 1149; Harary, Aggressive Play or Criminal Assault? An In Depth Look at Sports Violence and Criminal Liability (2002), 25 Colum.J.L. Arts 197.
{¶ 27} "From an early age, athletes are taught to intimidate opponents and to precipitate physical altercations rather than to avoid them. Athletes learn that they need to be tough to get noticed and to excel in higher levels of competition." Clarke, supra, 32 Ariz.St.L.J. at 1157-1158. "Violence in sports can be attributed *Page 392 to many factors, including: the interplay between competition, frustration, and aggression; the `game reasoning' or `sport reasoning' that supplements — or, at times, replaces — ordinary moral reasoning during sporting events; the degree of `sport socialization' that leads players to perceive sports violence as legitimate; the sports norm ofreciprocity for acts of aggression by opposing players; and the significance placed upon winning at all costs. It is the confluence of these factors that create[s] the curious world which is sports — a world in which real world behavioral models have no place." (Emphasis added.) Id. at 1155-1156.
{¶ 28} Given the unique social dynamic involved in sports, "[c]riminal prosecution of sports participants for conduct that occurs with the playing of the game is rare." Id., 32 Ariz.St.L.J. at 1168, citing Yasser, Mcurdy Goperlud, Sports Law (1990) 378. Most prosecutions, not surprisingly, have involved hockey games. See Calvert-Hanson Dernis, Revisiting Excessive Violence in the Professional Sports Arena: Changes in the Past Twenty Years? (1996), 6 Seton Hall L.Rev. 127, 138. Perhaps saying something about the American competitive nature, prosecutors in the United States have shown far less zeal in punishing sports violence than their Canadian counterparts, who have been observed to use the criminal law much more frequently. See White, Sports Violence as Criminal Assault: Development of the Doctrine by Canadian Courts (1986), 1986 Duke L.J. 1030, 1034.
{¶ 29} One stated rationale for prosecutorial restraint is the inherent safeguards of league play, with its system of in-game punishment and suspension. As one commentator has written, "It is inevitable that players' passions will at times be aroused, but game officials and coaches are vested with the authority to impose sanctions for misconduct during the game. The penalties imposed by referees or umpires may seem minor when compared to those imposed on perpetrators of the same conduct outside the sport context, but those punishments are quick and certain, and are thought by some criminologists to be more effective in deterring undesirable behavior than the imposition of more severe penalties." Clarke, supra, 32 Ariz.St.L.J. at 1192.
{¶ 30} Here, the case proceeded in municipal court based upon the complaint of Harris, and as we understand the procedures in that court, such cases are not normally subjected to a decision whether to prosecute. Given that a criminal complaint was filed and the matter brought to trial, rather than handled within the internal disciplinary procedures of the university and its intramural sports program, the only defense readily available to Guidugli in a court of law was self-defense, which his attorney unsuccessfully yet competently argued.
{¶ 31} The only other argument that Guidugli's trial counsel could have conceivably made was one invoking the doctrine of implied consent. The doctrine, which has found some traction in criminal prosecutions of sports *Page 393 violence, is best summarized as follows: "Generally, consent to violent acts capable of producing serious injury will not aid the attacker in avoiding criminal prosecution. However, participation in a sport provides automatic consent to certain contact encountered during the usual course of competitive athletic events, even if that contact can, or does, produce a serious injury. The rationale behind this doctrine is that when the victim consents to participating in a particular sport, he or she then consents by the very nature of the sport to certain acts of aggressive contact." Harary, supra, 25 Colum.J.L. Arts at 205.
{¶ 32} Canadian courts were among the first to establish the implied-consent doctrine of sports in criminal cases, see Regina v.Green (Ontario Provincial Ct. 1970), 2 C.C.C.2d 442; and Regina v. Maki (Ontario Provincial Ct. 1970), 1 C.C.C.2d 333, but, interestingly, the American Law Institute had earlier adopted the doctrine in its 1962 Official Draft of the Model Penal Code. Section 2.11(2) of the code provides that consent can be an absolute defense to bodily harm if "the conduct and the harm are a reasonably foreseeable hazard of joint participation in a lawful athletic competition or competitive sport * * *."
{¶ 33} The Model Penal Code section has no analog in the Ohio Revised Code. As a matter of decisional law, the doctrine, although acknowledged, has found limited application in American courts. See Statev. Floyd (Iowa App. 1990),
{¶ 34} Our research has not disclosed any Ohio cases involving application of the implied-consent doctrine in a criminal prosecution for sports violence. In State v. Dunham (1997),
{¶ 35} Given its limited application, and our holding in Dunham, we cannot say that Guidugli's trial counsel was ineffective for not advancing the doctrine of implied consent as another affirmative defense. As noted, trial counsel appears to have argued the doctrine, in principle at least, during mitigation following the verdict, but not before. Even if we were to assume that the doctrine exists in Ohio, it is unlikely that the trial court would have found the doctrine applicable in this case. To have successfully argued the doctrine, Guidugli would have had to have persuaded the trial court that the punch he threw was a foreseeable part of the game and one to which Harris impliedly consented. Although it is specious to suggest that basketball remains today a noncontact sport, it is quite a stretch to argue that retaliatory punches during a pause in play are to be accepted as the unavoidable cost of playing the sport at the intramural level. It bears emphasis in this regard that the punch, as described by the state's witnesses, was entirely outside the scope of play and did not arise, for example, as a result of a scuffle under the basket or in a fight for a rebound.
{¶ 36} In sum, we find no deficiency in trial counsel's performance and no basis to assume that any defenses that he might have otherwise raised would have had any probability of altering the result of the trial, or cast doubt upon the fairness or reliability of the judgment reached. Accordingly, Guidugli's second assignment of error is overruled.
{¶ 38} The judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., concurs.
SUNDERMANN, J., concurs in judgment only.
State v. Nevius , 147 Ohio St. 263 ( 1947 )
State v. Brown , 90 Ohio App. 3d 674 ( 1993 )
State v. Powell , 90 Ohio App. 3d 260 ( 1993 )
State v. Higgins , 61 Ohio App. 3d 414 ( 1990 )
State v. Dunham , 118 Ohio App. 3d 724 ( 1997 )
Lockhart v. Fretwell , 113 S. Ct. 838 ( 1993 )
State v. Shelley , 85 Wash. App. 24 ( 1997 )
Strickland v. Washington , 104 S. Ct. 2052 ( 1984 )