State v. Rydarowicz

[Cite as State v. Rydarowicz, 2023-Ohio-916.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
FRANCIS RYDAROWICZ,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0087
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 19 CR 704
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman
Street, 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and
Atty. Louis M. DeFabio, 4822 Market Street, Suite 220, Youngstown, Ohio 44512 for
Defendant-Appellant.
Dated: March 16, 2023
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Robb, J.
{¶1} Defendant-Appellant Francis Rydarowicz appeals after being convicted of
murder in the Mahoning County Common Pleas Court. First, Appellant contends the
testimony of the surgeon who operated on him on the day he stabbed his wife and the
corresponding medical records were admitted in violation of the physician-patient
privilege. Next, Appellant claims the surgeon and a nurse should not have been permitted
to testify about whether his wounds appeared self-inflicted or defensive because the state
did not provide an expert report in discovery. Appellant also argues the state did not
present sufficient evidence on a lack of self-defense and claims the jury verdict was
contrary to the manifest weight of the evidence. For the following reasons, Appellant’s
conviction is affirmed.
STATEMENT OF THE CASE
{¶2} On June 22, 2019, Appellant stabbed his wife Katherine in the back while
they were at a motel where he lived in Coitsville. The police were called after the victim
collapsed in the parking lot area. After securing the victim’s body, the police saw
Appellant in the doorway of his motel room. He was bleeding from the neck and wrist.
Before being transported to the hospital, Appellant claimed he stabbed his wife in self-
defense. Appellant was indicted for five alternate counts: aggravated murder (prior
calculation and design); murder (death caused purposely); murder (death proximately
resulted from felonious assault); felonious assault (with a deadly weapon); and domestic
violence (a third-degree felony due to prior convictions, with three priors listed). (8/22/19
Ind.)
{¶3} The case was tried to a jury in August 2021. The victim’s daughter testified
her mother and Appellant were married and lived in the motel together. She said
Appellant was known by the name Jerry; she provided the names of his two sisters and
his ex-wife (who were mentioned in recovered phone messages). (Tr. 326-328).
{¶4} Before the stabbing, a neighbor who lived near the motel saw Appellant and
the victim talking near a tree where their dogs were tied. She then watched the victim
make two trips from the motel room carrying different baskets. Minutes later, the neighbor
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saw the victim running across the grass in front of the motel; she thereafter noticed the
police at the scene. (Tr. 355-357).
{¶5} The victim’s friend testified he provided the victim with a ride to do errands
on the day of her death (as her vehicle was not running). (Tr. 333). While they were out,
Appellant called the victim, prompting a trip to the motel so the victim could retrieve some
belongings. (Tr. 334). The victim drove her friend’s truck to the motel parking lot after
dropping him off at the convenience store across the street from the motel to wait for her.
(Tr. 336). The friend saw the victim bring a basket of items to his truck. He texted her a
few times after worrying because she took longer than expected; she did not respond.
(Tr. 338-339). When the friend exited the store, he saw a police officer approach a body
in the drive of the motel’s parking lot. (Tr. 339, 349).
{¶6} The first responding police officer testified he received a report at 6:30 p.m.
that a woman had been shot at the motel. When he arrived, the victim had no pulse. He
thus attempted chest compressions (but a large amount of blood was expelled from her
nose and mouth). (Tr. 369-370). Bystanders pointed the police to a motel room. A
second officer approached the room and found Appellant about to exit the room. This
officer observed blood running from Appellant’s neck to his chest and from his wrists; she
instructed Appellant to step back into the room and lay on the bed. (Tr. 399-400). When
asked about the location of the weapon, Appellant pointed to a knife on a table and said
he had to use it to protect himself because the victim was coming after him. (Tr. 401-402,
420).
{¶7} Appellant was taken by ambulance to Mercy Health in Youngstown, where
he underwent surgery on his neck and wrist. A nurse assisted with Appellant’s post-
surgical care. She heard Appellant tell his sisters the victim came looking for money and
he had a car part under the bed but no money. (Tr. 500). Thereafter, the nurse supported
Appellant’s grieving mother as she entered his room. When the mother asked what
happened, Appellant replied, “I stabbed her.” (Tr. 490). He provided no further
explanation to his mother. (Tr. 492). The nurse reported Appellant’s statement to the
hospital police. (Tr. 496). The nurse additionally testified Appellant’s wrist wounds ran
parallel on the inside of his left wrist. (Tr. 493-494). When she was asked if the wrist
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wounds appeared to be defensive wounds, she said defensive wounds are generally not
located on the inside of one’s arms. (Tr. 495).
{¶8} Testimony was also presented by the trauma surgeon who operated on
Appellant’s neck and wrist after he arrived at the hospital. The surgeon described bilateral
neck stab wounds, which measured 3 and 8 centimeters. (Tr. 731, 745). He also
described three lacerations to Appellant’s left wrist. One measured 3 centimeters and
caused significant damage to arteries, tendons, and nerves; the other two wrist wounds
were more superficial. (Tr. 732, 747). The surgeon believed Appellant’s wounds were
consistent with self-inflicted wounds and inconsistent with defensive wounds. (Tr. 734-
735). He also said Appellant was right-handed and weighed 225 pounds. (Tr. 737, 739).
{¶9} In searching the motel room, the police did not find additional weapons. (Tr.
391). The referenced car part was not found in the room or in the truck the victim was
loading. (Tr. 375-377, 434). Some blood in the parking lot matched Appellant’s DNA.
(Tr. 437, 716). The blood under the victim’s fingernails and on various locations on her
shirt only matched her own DNA. (Tr. 716-717).
{¶10} The sample of blood from the tip of the knife matched Appellant’s DNA (with
a statistic of one in one trillion). (Tr. 714). The sample of blood from the base of the knife
blade contained a mixture of DNA from Appellant and the victim on one side of the blade
and only Appellant’s DNA on the other side of the blade. Only Appellant’s DNA was
recovered from the top and middle of the knife handle. (Tr. 714-715).
{¶11} The medical examiner testified the victim was stabbed in the left middle
back. The wound was four to six inches deep and entered her lung. (Tr. 787, 790). She
had three fresh bruises, located on her inside arm near her elbow, her right leg, and her
right shin. (Tr. 784). Although there were cocaine metabolites in her blood, she had no
active drug in her system and was thus not under the influence of cocaine at the time of
her death. (Tr. 795, 798, 800). A painkiller in her system was at therapeutic levels. (Tr.
796-797, 800).
{¶12} A BCI forensic computer scientist extracted data from the phone Appellant
possessed when he arrived at the hospital and from the victim’s phone found in the truck
she was loading. First, the witness recited texts between Appellant and one of his sisters.
(Tr. 535-571); (St.Ex. 117a). On June 9, 2019, Appellant texted, “Hey I’m outta jail!! I am
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ready to bash the shit outta her!!!!” In the next few days, Appellant asked this sister for
money, requested his dad’s phone number, and inquired why his mother would not speak
to him. On June 13, he disclosed he needed items from the pharmacy, and the next day,
he said he needed help. On the day before the June 22 stabbing, he told this sister, “It
just keeps getting worse and there’s no help. Mom still won’t answer me. Have you talked
to them? * * * I just don’t know what to do.”
{¶13} Appellant also communicated with his other sister, by text and instant
message. (Tr. 572-594); (St.Ex. 115a, 116a). On June 9, 2019, he declared, “I’m outta
jail let’s get her” (with seven exclamation points). Two days later, he said, “I thought you
knew what my plan was from [the other sister].” In seeming to speak about the victim,
Appellant said he “had to kiss her ass for 2 months to save 3 years in prison [and] could
not fight with her for any reason” and asked his sister if they could talk on the phone so
he could explain. He added, “I just got home from jail and she’s been gone. I fucking hate
her!!!” He also disclosed the following issues: he was starving; his truck had a blown
transmission; his bank account was frozen; he was “stuck” on house arrest; and he was
not permitted to travel to renew his expired driver’s license.
{¶14} On June 12, he told this sister he was up all night worried “about what you
said. If something happens. I need to get someone on my bank account asap.” He then
spoke of his children, said the only person he trusted was his ex-wife (as opposed to the
victim, who was his current wife), and asked his sister to help him communicate with them.
Later messages indicate his ex-wife refused to communicate with him and was concerned
with his expression of urgency. On June 14, he told his sister he was broke, going crazy,
and trying to sell the dogs. On June 18, he observed, “I am homeless and she is gone!!!!
I need my family. It’s all I have to live for.” On the day of the stabbing, Appellant told this
sister, “my phone is going to be shut off any day now. They stopped my Social Security
check. I’m jobless, and homeless. I have no reason to go on except for my kids and family.
I need help immediately.” An hour later, he said, “I can’t keep texting like this. There is
no time to waste. I need help immediately. If there’s no chance. I need to know that.”
{¶15} Conversations between Appellant and the victim were also admitted into
evidence. (Tr. 595-643); (St.Ex. 114a). On June 7, 2019, Appellant expressed anger
about the victim returning clothing to a man. Appellant told the victim he loved her and
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then instructed, “get home, no more meaningless bullshit.” Appellant also observed, “I
can’t believe I have to beg you to stay away from other men. You are torchering me to
death!!!! I’m done talking about it. Just please come home. I love you.” (Text spellings
are original.) He then noted he did not want her to stay away because she thought he
was mad. He texted he needed her to stop somewhere for him and later declared, “I’m
throwing up. Please hurry.” Minutes later, he said, “I was throwing up and I’m starving.”
The next day he said she was lying and pleaded with her to answer him. She eventually
replied angrily with a screenshot of a social media post wherein he denigrated her in
various aspects of life.
{¶16} On June 9, Appellant said, “Enjoy your knife and camo snot rag.” He
accused her of being unfaithful while he was away and said, “you went through 5,000 and
partied your ass off. I hope you had fun. But I’m not taking your dumb unpredictable
bullshit any longer. I can’t. You’ll end up putting me in prison. Your not worth it.” The next
text stated, “You had many chances to get away.” Later, he texted, “Get your ass here
right now!!!!! I have your things. I love you” (with 13 exclamation points). When he begged
her to answer him, she replied, “Fuck you. Please never talk to me again.” He responded,
“You will be in my arms tonight safe and sound if it’s the last thing I do!!”
{¶17} On June 14, the victim sent a captioned photograph of herself to Appellant.
He deduced it was intended for someone else and replied, “Wrong man slut.” After noting
he viewed a post stating she was in a relationship, he said, “You’re a whore and god
knows it.” The next day she asked for a car part he had, which she needed to fix her car.
Among other insults, he said, “I wouldn’t piss on you if you were on fire!!”
{¶18} On the day of the stabbing (after a week without communication), Appellant
sent the victim a text asking if she still needed “this strut” and said he would put it on the
car for her. When she asked the price, Appellant said, “I don’t care. I just wanna do the
right thing. I found some more clothes and you have mail here also.” After they spoke on
the phone, he told her to come alone, explaining he did not want to see her with another
man. He also said she had some of his belongings, including a ring that “means more to
me than it ever will you I want to be buried with that ring on my finger someday.” In a
subsequent text, Appellant observed, “You just called me. I heard a man’s voice.” (St.Ex.
114a).
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{¶19} A stipulation was entered regarding Appellant’s DNA profile and three prior
domestic violence convictions. (Tr. 500). Appellant’s parole officer testified he began
supervising Appellant on June 5, 2019, based on a felony conviction of domestic violence
where his wife was the victim. (Tr. 511). Upon questioning by defense counsel, the
parole officer said he found no contraband or weapons at the motel when he visited
Appellant. (Tr. 513). Appellant was on electronic monitoring house arrest (EMHA), and
the records showed he did not leave his allowed area on the day of the stabbing (except
when transported to the hospital). (Tr. 515, 855).
{¶20} Appellant testified in his own defense. He said the victim picked him up
when he was released from incarceration on June 5, 2019, but she soon moved out of
the motel; he said she returned three times to retrieve belongings with a police escort.
(Tr. 865, 868, 870). He claimed the victim stole money from his wallet during one of the
escorted visits. (Tr. 873). He confirmed sending the text messages to his sisters and
acknowledged he was speaking about the victim in the initial texts but said “bash” merely
referred to actions against a person on social media. (Tr. 872). He also acknowledged
he was upset the victim was with other men. (Tr. 898, 903).
{¶21} Appellant revealed he had owned the subject knife since he was nine years
old but claimed he did not have it at the motel before the victim arrived. (Tr. 874). He
said the victim had his knife and his ring, about which they argued. (Tr. 881-882). He
denied luring the victim to the motel by offering a car part and claimed the part was in his
truck bed. (Tr. 873).
{¶22} Appellant alleged the following events occurred: after the victim made trips
to a truck with her belongings, she followed him to the room and asked to look under the
bed; he held up the box spring and mattress for her to look underneath the bed; he felt a
sharp pain on the left side of his neck; he turned to see her coming at him with a knife; he
raised his arm to protect himself and disarmed her; she turned to an open utensil drawer
containing steak and paring knives; and he stabbed her in the back in self-defense
because he saw his bleeding reflection in a mirror and feared for his life. (Tr. 884-887).
He said he also sustained a smaller wound to the right side of his neck and wounds to his
left wrists during the altercation. (Tr. 888-889). He denied his wounds were self-inflicted.
Instead of calling an ambulance, he said he paced around the motel room trying to stop
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his bleeding. (Tr. 936-937). Appellant confirmed he was right-handed and disclosed he
was 6’2” (while the victim was 5’6” or less). (Tr. 914-915, 935).
{¶23} The jury found Appellant not guilty of aggravated murder but guilty of murder
and the other alternate charges. The court sentenced Appellant to 15 years to life for the
murder in count two, merging the remaining charges. (8/23/21 J.E.). The within appeal
followed.
ASSIGNMENT OF ERROR ONE: PRIVILEGE
{¶24} Appellant sets forth three assignments of error, the first of which alleges:
“The trial court erred in permitting testimony concerning Appellant’s medical
treatment and his medical records as the admission of said evidence violated the patient-
physician privilege.”
{¶25} Appellant claims the trial court violated R.C. 2317.02(B)(1) by admitting the
surgeon’s testimony about Appellant’s injuries from the day of the stabbing along with
Appellant’s resulting medical records. He claims the defense was highly prejudiced by
the following parts of the surgeon’s testimony: Appellant was right-hand dominant; the
wounds did not appear defensive but appeared to be self-inflicted; and Appellant was
referred for a psychiatric consult. This information was also expressed or implied in the
medical records. When the state first called the surgeon to the stand, defense counsel
objected in an unrecorded sidebar and continued to object throughout the surgeon’s
testimony; the court thereafter allowed counsel to specify his objections on the record at
which time the physician-patient privilege was asserted. (Tr. 726, 752-753).
{¶26} According to statute: “The following persons shall not testify in certain
respects: * * * A physician * * * concerning a communication made to the physician * * *
by a patient in that relation or the advice of a physician * * * given to a patient * * *.” R.C.
2317.02(B)(1) (with exceptions not alleged to be applicable here). Communication means
“acquiring, recording, or transmitting any information, in any manner, concerning any
facts, opinions, or statements necessary to enable a physician, advanced practice
registered nurse, or dentist to diagnose, treat, prescribe, or act for a patient.” R.C.
2317.02(B)(5)(a). The term includes any medical or hospital communication “such as a
record, chart, letter, memorandum, laboratory test and results, x-ray, photograph,
financial statement, diagnosis, or prognosis.” Id.Case No. 21 MA 0087
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{¶27} However, the physician-patient privilege in R.C. 2317.02(B) “is in
derogation of the common law and must be strictly construed.” In re Miller, 63 Ohio St.3d
99, 109, 585 N.E.2d 396 (1992). The privilege is not a requirement of due process or
otherwise constitutionally based; the purpose of the privilege is not about the fairness of
trial. State v. Webb, 70 Ohio St.3d 325, 334-335, 638 N.E.2d 1023 (1994). Other relevant
statutes may evince higher priorities involving justice.
{¶28} A criminal statute provides: “no person giving aid to a sick or injured person
shall negligently fail to report to law enforcement authorities any gunshot or stab wound
treated or observed by the person, or any serious physical harm to persons that the
person knows or has reasonable cause to believe resulted from an offense of violence.”
R.C. 2921.22(B). The failure to report is a misdemeanor of the second degree. R.C.
2921.22 (I). “No disclosure of information pursuant to this section gives rise to any liability
or recrimination for a breach of privilege or confidence.” R.C. 2921.22(H). Although
certain other regulated disclosures are not required if there was a physician-patient
privilege, the duty to report in division (B) is not included in this physician-patient privilege
exemption. See R.C. 2921.22(G)(1) (“Divisions (A) and (D) of this section do not require
disclosure of information, when * * * The information is privileged by reason of the
relationship between * * * physician and patient”).
{¶29} The state points to a Supreme Court case where a defendant convicted of
assaulting his wife challenged the trial court’s admission of a physician’s testimony on the
wife’s injuries. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964) (where the wife did
not waive the physician-patient privilege). The physician described the wife’s injuries and
provided an opinion on their cause; when asked whether the puncture wound to the chest
“could have happened by a person just walking, say, into a sharp instrument,” he
suggested it could not, opining the person would “recoil as quickly as possible.” Id. at 62,
66.
{¶30} The Supreme Court said the purpose of the privilege in R.C. 2317.02 was
“to encourage patients to make a full disclosure of their condition and symptoms to their
physicians without fear that such matters will later become public. [However,] Against the
interest of the patient in having his condition remain confidential, must be balanced the
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interest of the public in detecting crimes in order to protect society.” Id. at 64-65.1 “To
accomplish this end,” the predecessor statute to R.C. 2921.22(B) was enacted. Id. at 65,
citing former R.C. 2917.44 (which initially covered a gunshot wound or a wound inflicted
by a deadly weapon). Accordingly, it is:
proper for the physician who treats [a wound covered by the reporting
statute] to testify in court as to the nature of the wound. The publicity against
which the privilege is supposed to protect has already taken place. The
details of the wound must have been reported by the physician to a law-
enforcement officer. The only purpose that sustaining the privilege can now
serve is to obstruct the course of justice.
Antill, 176 Ohio St. at 65.
{¶31} In a subsequent Supreme Court case, the victim was beaten to death in a
hotel room; her jaw was broken and multiple teeth were knocked out. A hotel employee
told police another employee suffered a hand injury on the day of the murder. After the
suspected employee filed a worker’s compensation claim for his hand injury, the police
subpoenaed the related medical records and questioned Appellant’s hand surgeon. State
v. Jones, 90 Ohio St.3d 403, 404, 739 N.E.2d 300 (2000). At trial, this surgeon opined
the injury appeared to be a fist-to-mouth wound and revealed he discovered an organism
typically found in dental plaque within a culture from the defendant’s infected hand wound.
Id. at 406.
{¶32} On appeal, the defendant argued his attorney was ineffective by failing to
raise the physician-patient privilege in R.C. 2317.02(B). The Supreme Court rejected this
argument because “the privilege was inapplicable in the circumstances of this case * * *
even if counsel had objected to [the surgeon’s] testimony, the trial court would have been
required to overrule the objection and allow [the surgeon] to testify.” Id. at 408.
{¶33} The Court relied on the statutory requirement for a physician to report “any
serious physical harm to persons that the physician * * * knows or has reasonable cause
to believe resulted from an offense of violence.” Id., quoting R.C. 2921.22(B). The
requirement to report “is absolute, i.e., no privilege attaches in the cases covered.” Id. at
1The policies in favor of disclosure may be even stronger after the legislature transferred the burden to the
state to disprove self-defense.
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409 (citing a comment to the original enactment). As to any failure to actually report, it
was noted the surgeon’s suspicion of a fist-to-mouth injury was substantiated when the
police informed him the defendant was a murder suspect and the surgeon would have
been required to report the injury if he learned the defendant was a suspect from a source
other than police. Id. at 408. It was therefore concluded R.C. 2921.22(B) was applicable
“even though [the surgeon] did not report the injury.” Id.
{¶34} The Jones Court further observed there was no reason to distinguish the
portion of the statutory division at issue in that case from the deadly weapon portion at
issue in Antill, finding the underlying policies were identical. Id. at 409 (reiterating if the
details of the wound should already have been reported, then the only purpose in applying
the privilege at trial would be to obstruct justice). The Court thus confirmed a physician
in such a scenario can be asked to describe the wounded person and the nature and
location of the wounds. Id.
{¶35} Here, as to the neck wounds, the surgeon observed and treated stab
wounds to Appellant’s neck. He was required to report the wounds under the plain
language of R.C. 2921.22(B). The surgeon’s knowledge of the existing homicide
investigation and any resulting failure to initiate a report did not defeat his ability to testify
in response to a subpoena. See Jones, 90 Ohio St.3d at 408 (“As it was, he was already
in contact with the police, so the reporting was no longer required. The situation is no
different than if [the surgeon] had reported appellant's injury on his own initiative.”).
{¶36} We also note the grammatical set up of the statutory provision makes clear
the gunshot and stab wound portions of the division are not modified by the “knows or
has reasonable cause to believe resulted from an offense of violence” portion of the
statute, which modifies only the “any serious physical harm to persons” portion. See R.C.
2921.22(B). As the Supreme Court observed, “R.C. 2921.22(B) requires that physicians
and certain others giving aid to an injured person report to law enforcement personnel
gunshot or stab wounds and further requires reporting ‘any serious physical harm to
persons that the physician * * * knows or has reasonable cause to believe resulted from
an offense of violence.’” (Emphasis added.) Jones, 90 Ohio St.3d at 408.
{¶37} As for any suggestion that some wounds were not actually “stab wounds”
under R.C. 2921.22(B), the physician can speak to other presenting injuries on the body
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of the patient when testifying about stab wounds, especially major lacerations potentially
caused by the same weapon as the stab wound. In Antill, the wife suffered a stab wound
to the chest, other cuts, and “bruises about her arm and upper body.” The physician
“testified relative to the condition in which he found Mrs. Antill and gave his opinion as to
the cause of her injuries.” Antill, 176 Ohio St. at 62. There would be reasonable cause
to believe Appellant’s wrist wounds resulted from the same offense of violence.
Moreover, a laceration can begin as a stab wound. In fact, the medical records described
Appellant’s wrist injuries as not only “Laceration of left wrist” but also involving “Stab
Wound of left wrist” and said the Appellant presented on June 22, 2019 with “multiple stab
wounds” to both the neck and the left wrist. (St.Ex. 120 at 4, 15, 19, 31, 36-37, 45, 55,
59, 66, 70).
{¶38} Furthermore, the avoiding-publicity purpose of the physician-patient
privilege was already eliminated as to the existence, location, and general appearance of
the wounds, and “the interest of the patient in having his condition remain confidential”
was outweighed by “the interest of the public in detecting crimes in order to protect
society.” See Antill, 176 Ohio St. at 65. Appellant was transported to the hospital after
the police ordered him an ambulance; his neck and wrist wounds were already observed
by the officers at the scene of the crime. Before Appellant was rushed to the hospital to
receive blood transfusions and surgery on his bleeding neck and wrist, he informed police
he had to stab his wife because she came after him. By claiming self-defense, he
essentially conceded there was “reasonable cause to believe” his wounds “resulted from
an offense of violence” R.C. 2921.22(B). The pre-surgical medical records mentioned the
patient was assaulted and stabbed with a knife in the neck and wrist, and a post-surgical
note says the patient reported his injuries occurred during a knife fight. (St.Ex. 120 at 7,
24). The state’s theory about Appellant causing his own injuries (to create a self-defense
story or to kill himself after committing a murder) would not prohibit the surgeon from
testifying about Appellant’s wounds.
{¶39} Appellant attempts to create an exception or distinguish Jones by pointing
out the physician in that case was informed of a crime during police questioning after
treatment of the patient, whereas law enforcement here was involved before Appellant
arrived at the hospital and there was no indication they questioned the surgeon. However,
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this argument is not convincing. Jones rejected an argument that R.C. 2921.22 did not
result in a “waiver of the physician-patient privilege” for trial just because the duty to report
previously arose. See Jones, 90 Ohio St.3d at 408. Moreover, the Court applied Antill
and generally concluded R.C. 2921.22(B) was applicable “even though [the surgeon] did
not report the injury.” Id. (where the surgeon answered questions to police before trial).
In Antill, the Supreme Court indicated if “[t]he details of the wound must have been
reported by the physician to a law-enforcement officer[, then the] only purpose that
sustaining the privilege can now serve is to obstruct the course of justice.” (Emphasis
added.) Antill, 176 Ohio St. at 65 (with no mentioning of an actual report to police or
questioning by police). The basis for the lifting of the statutory privilege is the fact that a
different statute requires a report on certain injuries, not that police questioned a
physician.
{¶40} The surgeon who operated on Appellant’s wounds was informed about
Appellant’s status as a suspect by police, and he was questioned, at trial, about injuries
required to be reported under R.C. 2921.22. Because the surgeon was “required [by
statute] to report” the injuries, he “may testify, without violating the physician-patient
privilege, as to the description of the wounded person, as to his name and address, if
known, and as to the description of the nature and location of such wound, obtained by
examination, observation and treatment of the victim.” Jones, 90 Ohio St.3d at 408-409,
quoting Antill, 176 Ohio St. 61 at paragraph four of the syllabus. Accordingly, there was
no error in allowing the surgeon to testify about Appellant’s condition and the location and
nature of his wounds, including whether the surgeon believed a wound appeared
defensive or a wound appeared self-inflicted.
{¶41} The additional disclosure about referring Appellant for a psychiatric consult
showed the surgeon took steps typical for self-inflicted wounds, reinforcing his testimony
on the nature of the wounds. Considering the surgeon was permitted to testify about the
nature of the wrist wounds appearing self-inflicted, this additional information was not
surprising and was not prejudicial (even assuming arguendo it was beyond the scope of
the permitted disclosures). Plus, after stating such referral was typical for self-inflicted
wounds, the surgeon noted it was sometimes issued for victims of assault as well.
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{¶42} In fact, the state argues the medical evidence contested as privileged and
prejudicial was harmless even assuming arguendo some of it was inadmissible. Even
when an improper evidentiary admission is somewhat prejudicial, the error can be
declared harmless beyond a reasonable doubt if the court excises the offending evidence
and finds the remaining evidence of guilt is overwhelming. State v. Morris, 141 Ohio St.3d
399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 27-28, 31-33 (“blatant prejudice may override
even a strong case and require a new trial. As noted, however, an improper evidentiary
admission * * * may be deemed harmless error on review when, after the tainted evidence
is removed, the remaining evidence is overwhelming”). See also State v. Tench, 156
Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 177; State v. Harris, 142 Ohio St.3d
211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37 (to find an error was not harmless, the court
must find defendant was prejudiced by the error, the error was not harmless beyond a
reasonable doubt, and the evidence remaining after excising the prejudicial evidence fails
to establish the defendant's guilt beyond a reasonable doubt).
{¶43} The state points to the overwhelming evidence presented against Appellant
(as discussed in the Statement of the Case supra and in the third assignment of error
infra), including: his messages to the victim and his sisters; the location of his DNA on
the tip of the knife in comparison to the victim’s DNA on the bottom of the knife blade; his
ownership of the knife; the victim being stabbed in the back; and his admission to stabbing
her after he (allegedly) took the knife from her. We also note the nurse had already
testified: Appellant was treated in the trauma unit for critical care patients after
undergoing surgery for neck and wrist injuries; he had parallel wrist wounds on the inside
of his left wrist; and defensive wounds to this area were generally seen on the outside of
the forearm.
{¶44} In any event, the surgeon was permitted to testify as to Appellant’s condition
during treatment and the location and nature of the wounds. This assignment of error is
overruled.
ASSIGNMENT OF ERROR TWO: EXPERT REPORT
{¶45} Appellant’s second assignment of error provides:
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“The trial court erred by permitting the State to introduce expert testimony when
the State and the experts failed to produce a written expert’s report within 21 days of trial
as required by Crim.R. 16(K).”
{¶46} The surgeon who operated on Appellant after he was delivered by
ambulance to the emergency room and the nurse who attended to Appellant after the
surgery testified as fact witnesses. Appellant argues the portion of their testimony on
defensive wounds crossed into the territory of expert opinions, requiring the state to
provide expert reports in discovery before trial. Because the defense was not provided
expert reports with qualifications attached, Appellant argues the opinion testimony on
defensive or self-inflicted wounds should have been excluded under Crim.R. 16(K).
{¶47} Specifically, after the nurse testified to hearing Appellant tell his mother he
stabbed the victim and to observing Appellant’s wrist wounds ran parallel on the inside of
his left wrist, she said she was familiar with defensive wounds through her work as a
trauma nurse where she learned from physicians and courses. (Tr. 494, 501). Over
objection, the nurse then testified: “Defensive wounds generally are when someone’s
coming at you, you see them to the hands, you see them to the outside of the forearms.
You may see them to the back part of the shoulders. Anywhere where you’re trying to
escape or – it’s your body’s natural defense to protect the core of your body.” (Tr. 493-
494). The prosecutor next asked the nurse if Appellant’s wrist wounds were consistent
with defensive wounds based on her training and experience as a trauma nurse. After
the court overruled another objection, the nurse answered, “We generally don’t see
defensive wounds on the inside of arms.” (Tr. 495).
{¶48} The surgeon later testified about Appellant’s wounds. The prosecution
asked if he was familiar with defensive wounds in his work as a trauma surgeon. (Tr.
733). Over objection, he said defensive wounds occur when someone who is being
assaulted tries to fight off the assailant and Appellant’s wrist wounds were not consistent
with defensive wounds based on his training and experience as a trauma surgeon and
were consistent with self-inflicted wounds. (Tr. 734-735). On cross-examination, defense
counsel prompted the surgeon to clarify that a stab wound to the neck would not be
classified as a defensive wound even if it was inflicted by another. (Tr. 741-742).
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{¶49} Before proceeding, we point out the defense objection to the nurse’s
testimony on defensive wounds was not specified on the record under Evid.R. 103(A)(1)
(timely objection to the decision to admit evidence must be made “stating the specific
ground of objection, if the specific ground was not apparent from the context”). An
objection during the nurse’s testimony on the wounds was discussed at sidebar; however,
the sidebar was off the record. (Tr. 493, 495). The surgeon testified after the nurse. The
defense objections to the surgeon’s testimony on defensive and self-inflicted wounds
were not initially specified on the record, as an unrecorded sidebar was also held before
the surgeon answered whether the wounds appeared defensive. At the conclusion of the
surgeon’s testimony, the court called a recess so defense counsel could place his
objections in the record. In addition to arguing physician-privilege, defense counsel said
the surgeon offered expert opinions on defensive wounds without a Crim.R. 16(K) report
while acknowledging he received his client’s medical records in discovery. (Tr. 750-753).
There was no reference to the nurse’s prior testimony during this recitation of the
objections.
{¶50} Pursuant to Crim.R. 16(K), “An expert witness for either side shall prepare
a written report summarizing the expert witness's testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert's qualifications.” The
purpose of this rule is to strengthen the due process right to a fair trial and to prevent
unfair surprise by giving notice to the defendant so he has an opportunity to challenge the
expert's findings or qualifications. State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061,
153 N.E.3d 44, ¶ 44, 48 (expert report of coroner should have disclosed he would testify
on time of death and on his comparison of a wound to an item collected by the state as
evidence).
{¶51} Although courts typically have discretion in admitting evidence, "the plain
language of Crim.R. 16(K) limits the trial court's discretion and provides its own specific
remedy for a violation of the rule." Id. at ¶ 54 (but confers discretion to modify the 21-day
requirement "for good cause shown, which does not prejudice any other party”). "Failure
to disclose the written report to opposing counsel shall preclude the expert's testimony at
trial." Crim.R. 16(K). The rule only requires exclusion of the violative portion of the
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testimony. See Boaston, 160 Ohio St.3d 46 (and does not preclude a harmless error
analysis).
{¶52} While Appellant relies on Boaston and the exclusionary language in Crim.R
16(K), the state urges the nurse and surgeon were fact witnesses testifying about wounds
they observed under Evid.R. 701. It is argued the statement that a wound did not appear
defensive or appeared self-inflicted is still part of the description of the wound and could
be mentioned from these fact witnesses, just as it could be mentioned by a police officer
or other fact witness.
{¶53} Evid.R. 702 provides three requirements before a person can testify as an
expert: (A) the testimony either relates to matters beyond the knowledge or experience
possessed by lay persons or dispels a misconception common among lay persons; (B)
the witness is qualified as an expert by specialized knowledge, skill, experience, training,
or education regarding the subject matter of the testimony; and (C) the testimony is based
on reliable scientific, technical, or other specialized information. However, a fact witness
can provide opinions, and a fact witness is not necessarily testifying as an expert merely
because he has expertise in a certain field.
{¶54} “It is well established that a treating medical professional may be called at
trial to testify as an observer of a patients' physical condition and not as expert retained
in anticipation of litigation.” State v. Reed, 5th Dist. Delaware No. 20 CAA 04 0021, 2021-
Ohio-858, ¶ 30. “Evid.R. 701, testimony by a lay witness, allows treating physicians to
render opinions based upon their personal observations and perceptions.” Id.{¶55} “If the witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences is limited to those opinions or inferences which are (1)
rationally based on the perception of the witness and (2) helpful to a clear understanding
of the witness' testimony or the determination of a fact in issue.” Evid.R. 701. See also
Evid.R. 704 (“Testimony in the form of an opinion or inference otherwise admissible is not
objectionable solely because it embraces an ultimate issue to be decided by the trier of
fact.”). The opinion of a layperson uses a reasoning process familiar in everyday life, as
opposed to the opinion of an expert using a reasoning process that is mastered by a
specialist in the field. State v. Baker, 2020-Ohio-7023, 166 N.E.3d 601, ¶ 34 (7th Dist.),
citing State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 56. We review
Case No. 21 MA 0087
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a decision to admit evidence under Evid.R. 701 under an abuse of discretion standard of
review, whereby a decision will not be reversed unless it is unreasonable, arbitrary, or
unconscionable. City of Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109, 113, 539
N.E.2d 140 (1989) (pointing out that even where the admission of lay opinion testimony
was not required, this does not mean the admission of such testimony was an abuse of
discretion).
{¶56} Where a police officer provides an opinion, we have explained how this may
qualify as a lay witness opinion rather than an expert opinion, even though it is based on
a particular officer's knowledge and experience. Baker, 2020-Ohio-7023 at ¶ 34
(detective’s knowledge of cell phone tower and GPS technology), citing Johnson, 2014-
Ohio-1226 at ¶ 57, 62 (officer's opinion on whether defendant's tattoos were gang-
related). “The Ohio Supreme Court has accepted the trend toward allowing lay witnesses
to express their opinions in areas in which it would ordinarily be expected that an expert
must be qualified under Evid.R. 702.” Id. at ¶ 35, citing State v. McKee, 91 Ohio St.3d
292, 296, 744 N.E.2d 737 (2001).2 The Court concluded a lay opinion based on personal
knowledge and experience can fall within Evid.R. 701 even on a subject outside the realm
of common knowledge. McKee, 91 Ohio St.3d at 296-297 (a drug user can testify on the
identity of drugs if the proper foundation is laid).
{¶57} The Eighth District found a psychologist testified as a fact witness when she
discussed the child’s disclosure and her perception and treatment of the child but
seemingly expressed expert opinions when explaining the hallmarks of childhood sexual
abuse. State v. Heineman, 2016-Ohio-3058, 65 N.E.3d 287, ¶ 20-22 (8th Dist.). The
court found the issue was harmless if an expert report was required, noting the medical
records lessened any prejudice. Id. at ¶ 22-23. The court concluded the trial court did
not abuse its discretion in admitting the testimony and cited the emerging precedent
allowing a witness with firsthand knowledge to offer lay opinion testimony if “they have a
reasonable basis—grounded either in experience or specialized knowledge—for arriving
at the opinion expressed.” Id. at ¶ 25-26, quoting McKee, 91 Ohio St.3d at 296.
2See also State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 28 (officer’s testimony
on horizontal gaze nystagmus test is not expert opinion); State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-
37, 801 N.E.2d 446, ¶ 15 (“officer's observations regarding a defendant's performance on nonscientific field
sobriety tests [is] admissible as lay evidence of intoxication”).
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{¶58} The Ninth District held a treating physician from a children’s hospital, who
was testifying about the injuries she observed as a fact witness, was permitted to testify
the injuries appeared non-accidental without having provided an expert report to the
defense where the physician’s conclusion was consistent with the medical records. State
v. Heller, 9th Dist. Lorain No. 18CA011304, 2019-Ohio-4722, ¶ 8. The court concluded
the treating physician “testified as a lay witness and provided an opinion based upon her
personal observations of the baby, which would have been helpful to the jury's
understanding of the testimony or the determination of a fact in issue” under Evid.R. 701.
Id. at ¶ 10. See also State v. Brofford, 3d Dist. Union No. 14-12-08, 2013-Ohio-3781, ¶
31-37, 40 (a treating physician testifying as a fact witness could opine the wounds were
consistent with the history provided without having supplied an expert report). The Ninth
District additionally said the defendant could not claim prejudice from the lack of an expert
report, even if the treating physician’s conclusion ventured into the realm of expert
opinion, because the defense was not taken by surprise and the ability to cross-examine
the witness was not obstructed. Heller, 9th Dist. No. 18CA011304 at ¶ 10.
{¶59} Here, the physician at issue was Appellant’s own surgeon who operated on
his wounds on the day the victim was stabbed. The surgeon gained knowledge about
defensive wounds and self-inflicted wounds in his experience and training, as did the
nurse. They did not claim to be experts in the field of stabbing reconstruction. As the
state points out, the witnesses did not testify the wounds were inconsistent with defensive
wounds to a reasonable degree of medical certainty. Just because a fact witness could
qualify as an expert on certain medical topics does not mean every opinion they give on
a wound becomes an expert opinion. More specifically, merely because a witness is a
trauma surgeon or trauma nurse (and has expert knowledge in their particular field) does
not mean such a witness provides an expert opinion when asked if the wrist wounds they
observed were in a location consistent with defensive wounds.
{¶60} A police officer could have testified whether an arm wound was in a location
consistent with a defensive wound based upon the officer’s experience and training. See,
e.g., State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 108 (2d Dist.), citing State v.
Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 77 (allowing a police officer
to testify about his personal observation of the victim displaying defensive marks, which
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he recognized from his experience and training). The evaluation of wound location for
consistency with a defensive or self-inflicted wound does not involve “a process of
reasoning that only specialists in the field can master.” See McKee, 91 Ohio St.3d 292at fn. 2. In fact, it is common knowledge that wounds from a suicide attempt with a knife
are commonly made on the inside of the wrist. Moreover, the instinct to defend yourself
when a knife is coming toward your neck is a matter of common knowledge a juror could
consider along with the mechanics of their own arms raised in mock defense.
{¶61} A fact witness who answers questions about wrist wounds (on exactly
where, how many, or how long) assists the fact-finder in their decision-making. The
surgeon and nurse were fact witnesses whose testimony provided “opinions or inferences
which are (1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue” as
permitted by Evid.R. 701. The addition of testimony on whether the location of an arm
wound was consistent with a self-inflicted wound did not clearly stray over the line into
expert territory in this case.
{¶62} Even if the characterization of the wounds crossed the boundary between
fact and expert opinion, the defendant’s medical records were provided in discovery. The
medical records showed the defendant was consistently classified as a suicide attempt
by those treating him at the hospital immediately after the injuries were sustained. See
Reed, 5th Dist. No. 20 CAA 04 0021 at ¶ 32 (even if the physician testified as an expert,
the medical records pertaining to the victim’s emergency room visit were provided to the
defense); Heller, 9th Dist. No. 18CA011304 at ¶ 10 (even if the physician presented some
expert testimony, there was no prejudice where the victim’s medical records were
provided). We discussed the medical records in more detail in the prior assignment of
error. The defense knew of the self-inflicted classification in the disclosed medical
records. In opening statements, defense counsel advised the jury they would hear about
the wounds and would conclude Appellant did not inflict them on himself. The defense
was prepared to ask the surgeon about this wound characterization and clarified on cross-
examination that a neck wound can be suffered by another’s infliction in an offensive
manner (even if not considered a defensive wound). The testimony on defensive or self-
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inflicted wounds by disclosed treating witnesses, consistent with disclosed medical
records, was not an ambush situation.
{¶63} This leads to the state’s alternative argument that any error would be
harmless because there was overwhelming evidence showing guilt beyond a reasonable
doubt when the record is considered without the testimony on the wounds appearing to
be self-inflicted wounds. See Boaston, 160 Ohio St.3d 46 at ¶ 61-70 (applying harmless
error after finding exclusion was mandatory where an expert report did not contain certain
topics upon which the expert opined), citing Harris, 142 Ohio St.3d 211 at ¶ 37 (for
harmless error test). Any exclusion under this assignment of error would be the specific
characterization of a wound as being consistent with a defensive wound, a self-inflicted
wound, or neither; the testimony would not be excluded in its entirety. See Boaston, 160
Ohio St.3d 46. The jury would still hear about the factual location and physical
appearance of the wounds from the surgeon and the nurse.
{¶64} We refer to the state’s alternative argument under the prior assignment of
error for a discussion of harmless error and to the following recap of the other evidence
and the reasonable inferences to be drawn therefrom: Appellant’s messages to the victim
and his sisters; his ownership of the knife; his admission to the police officer he stabbed
the victim after he disarmed her; the victim being stabbed in the back; the lack of other
weapons in the motel room; and his admission to his mother he stabbed the victim
(without adding an allegation of self-defense); and the location of Appellant’s DNA on the
tip of the knife in comparison to the victim’s DNA on the bottom of the knife blade (as
evidence of the order of the knife’s insertion).
{¶65} In any event, this assignment of error is overruled, as Appellant’s treating
medical personnel were testifying as fact witnesses and presented testimony consistent
with disclosed medical records.
ASSIGNMENT OF ERROR THREE: SUFFICIENCY & WEIGHT
{¶66} Appellant’s third assignment of error contains two separate topics, alleging:
“The jury’s verdicts of Guilty were not supported by sufficient evidence and were
against the manifest weight of the evidence.”
{¶67} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
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N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency
review, as the question is whether the evidence is sufficient if taken as true. State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency
involves the state's burden of production rather than its burden of persuasion.
Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶68} In reviewing the sufficiency of the evidence, the court views the evidence in
the light most favorable to the prosecution to ascertain whether a rational juror could have
found the elements of the offense proven beyond a reasonable doubt. State v. Goff, 82
Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). See also State v. Filiaggi, 86 Ohio St.3d
230, 247, 714 N.E.2d 867 (1999) (reasonable inferences are also viewed in favor of the
state); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (all
of the evidence is to be considered in the light most favorable to the prosecution, including
reasonable inferences). The question is merely whether “any” rational trier of fact could
have found the contested elements were adequately established. State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson, 443 U.S. at 319.
{¶69} Appellant admitted he stabbed his wife, and he does not contest the
sufficiency of the evidence on the statutory elements of the offenses. However, Appellant
contends the state failed to present sufficient evidence to show he did not act in self-
defense.
{¶70} Self-defense is an affirmative defense with an atypical burden of proof due
to the March 28, 2019 statutory amendments to R.C. 2901.05. “The burden of going
forward with the evidence of an affirmative defense, and the burden of proof, by a
preponderance of the evidence, for an affirmative defense other than self-defense,
defense of another, or defense of the accused's residence presented as described in
division (B)(1) of this section, is upon the accused.” R.C. 2901.05(A). “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
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the force in self-defense * * * the prosecution must prove beyond a reasonable doubt that
the accused person did not use the force in self-defense * * *.” R.C. 2901.05(B)(1). 3
{¶71} Deadly force can be used in self-defense if the defendant: (1) was not at
fault in creating the situation giving rise to the confrontation; (2) had a bona fide belief he
was in imminent danger of great bodily harm and that the only means of escape from
such danger being the use of such force; and (3) did not violate a duty to retreat or avoid
the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). Appellant
acknowledges the state need only disprove one of the elements of self-defense. See
State v. Sarge, 5th Dist. Knox No. 21CA000014, 2021-Ohio-4379, ¶ 30, citing State v.
Carney, 10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31. Applying a sufficiency
of the evidence test, Appellant concludes no rational fact-finder could have found an
element of self-defense was disproven even when the evidence is viewed in the light most
favorable to the state.
{¶72} However, as the Supreme Court recently explained, the statutory
amendment to R.C. 2901.05 did not place a burden of production on the state to be
reviewed for sufficiency. State v. Messenger, __ Ohio St.3d __, 2022-Ohio-4562, __
N.E.3d __. The amendment merely constituted a “change to the state's burden of
persuasion regarding self-defense” because requiring the state to disprove an affirmative
defense beyond a reasonable doubt does not cause the affirmative defense to become
an element of the offense. Id. at ¶ 24. The defendant still has “the burden of producing
legally sufficient evidence that the defendant's use of force was in self-defense.” Id. at ¶
25 (the defendant satisfies his burden of production if the evidence and any reasonable
inferences would allow a rational trier of fact to find all the elements of a self-defense
claim when viewed in the light most favorable to the defendant). Accordingly, a self-
defense claim that is submitted to the jury is not subject to review for the sufficiency of
the state’s evidence, as a sufficiency analysis applies only to the elements of an offense
3 In addition, there is a presumption of self-defense if the defendant used “defensive force that is intended
or likely to cause death or great bodily harm” against a person who “is in the process of unlawfully and
without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence
or vehicle occupied by the person using the defensive force.” R.C. 2901.05(B)(2), (3) (inapplicable if the
other person has a right to be in, or is a lawful resident of, the residence or vehicle or if the defendant used
the force while unlawfully, and without privilege to be, in that residence or vehicle), (4) (rebuttable by
preponderance of the evidence).
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and the affirmative defense of self-defense remains subject only to a manifest weight of
the evidence review on appeal. Id. at ¶ 27. We thus consider Appellant’s contentions
under his weight of the evidence argument.
{¶73} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, 78 Ohio St.3d at 387. The court evaluates the effect of the evidence in
inducing belief, but weight of the evidence is not a question of mathematics. Id. A weight
of the evidence review considers whether the state met its burden of persuasion. Id. at
390 (Cook, J., concurring) (as opposed to the burden of production involved in a
sufficiency review). When a defendant claims the conviction is contrary to the manifest
weight of the evidence, the appellate court is to review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,
954 N.E.2d 596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387.
{¶74} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position
from which to weigh the evidence and judge the witnesses’ credibility by observing their
gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984).
{¶75} Where a case is tried by a jury, only a unanimous appellate panel can
reverse on manifest weight of the evidence grounds. Ohio Constitution, Article IV, Section
3(B)(3). The power of the court of appeals to sit as the “thirteenth juror” is limited in order
to preserve the jury's primary function of weighing the evidence. Thompkins, 78 Ohio
St.3d at 389.
{¶76} As mentioned above, Appellant acknowledges a negative finding on one of
the three self-defense elements would support the rejection of the defense. First,
Appellant claims there was no evidence he was at fault in creating the situation because
Case No. 21 MA 0087
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the victim came to the motel, she previously came with police escorts, no one said he
started an argument, and he testified she stabbed him from behind with a knife she
previously stole from him. Second, he says being stabbed in the neck would give rise to
his bona fide belief of imminent danger of great bodily harm and stabbing her in the back
was his only means of escape because she was heading toward a utensil drawer after he
wrested the knife from her hand. Third, he points out there is no duty to retreat from one’s
home. State v. Williford, 49 Ohio St.3d 247, 250, 551 N.E.2d 1279 (1990).
{¶77} However, Appellant’s first two arguments rely on his version of events. The
state presented persuasive evidence contradicting Appellant’s story. To recap, Appellant
sent concerning texts about the victim and about his life to his sisters. His texts showed
he was having a hard time finding a reason for hope in life. He was upset his wife was
seeing other men and no longer wished to be in a relationship. He previously mentioned
a plan to “bash the shit out of her.” He argued with the victim in texts in the weeks
preceding her death while she refused to return to the motel. After a week of silence, he
texted to say he would give her a car part she needed, encouraging her to come to the
motel alone for the part and some of her belongings. The police did not recover a car
part. The victim came to the motel that day and began retrieving her belongings from the
room. After a few trips to the vehicle with baskets, the victim ran from the motel with a
deep stab wound to the middle of her back.
{¶78} Appellant owned the switchblade knife that killed the victim (stating he
received it as a ninth birthday present). The fact that a parole officer did not find
“contraband or weapons” when he first visited the motel room did not mean the knife was
brought to the motel thereafter. Appellant was 6’2” while the victim was 5’6” or less.
Appellant did not call 911 to report the alleged attack or seek an ambulance for the victim
or himself even though he said he was worried about the blood running from his deep
wounds.
{¶79} Only the victim’s own DNA was found in the blood recovered from her body
and clothes. The location of Appellant’s blood on the knife in comparison to the location
of the victim’s blood was telling as to the sequence of events. Appellant’s DNA was
recovered from the tip of the knife and the handle while the victim’s DNA was only
recovered from the bottom of the blade, suggesting she was stabbed first. Circumstantial
Case No. 21 MA 0087
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evidence and direct evidence inherently possess the same probative value. State v.
Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).
{¶80} Appellant admitted he stabbed the victim to his mother in front of a nurse
but did not contemporaneously mention his self-defense story to his mother, even though
he previously told a police officer he used the knife to protect himself because the victim
was coming after him. Appellant testified in his own defense. We note the jury did not
believe the state’s theory that Appellant killed his wife with prior calculation and design,
as the jury found him not guilty of aggravated murder. However, they believed he
purposely killed her without falling under a self-defense scenario. The jury saw
Appellant’s demeanor and gestures as he claimed the victim stabbed him in the left side
of his neck and then caused cuts to the inside of his left wrist and a stab wound to the
other side of his neck as he was disarming her. They heard his voice and watched for
any signs of deceit as he said his wounds were not self-inflicted. The jury was not
required to believe the victim attacked Appellant. It was reasonable for the jury to
conclude Appellant’s wounds were self-inflicted in a suicide attempt or in an attempt to
create the appearance of a legal justification for stabbing his wife.
{¶81} The jury was in the best position to judge Appellant’s credibility and weigh
the evidence. When there is more than one believable interpretation of the evidence, we
do not choose which theory we believe is more credible and substitute it for the theory
chosen by the jury. State v. Baker, 7th Dist. Mahoning No. 19 MA 0080, 2020-Ohio-7023,
¶ 148, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
The jury did not clearly lose its way and create a manifest miscarriage of justice, and this
is not the “exceptional case where the evidence weighs heavily” against the jury verdict
and requires this court to step in as the “thirteenth juror.” See Lang, 129 Ohio St.3d 512at ¶ 220. This assignment of error is overruled.
{¶82} For the foregoing reasons, Appellant’s conviction is affirmed.
Waite, J., concurs.
D’Apolito, P. J., concurs.
Case No. 21 MA 0087
[Cite as State v. Rydarowicz, 2023-Ohio-916.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.