State v. Zink

[Cite as State v. Zink, 2023-Ohio-1250.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 21CA011813
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEVEN ZINK COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 19CR101802
DECISION AND JOURNAL ENTRY
Dated: April 17, 2023
HENSAL, Presiding Judge.
{¶1} Steven Zink appeals a judgment of the Lorain County Court of Common Pleas that
convicted and sentenced him for one count of felonious assault. For the following reasons, this
Court affirms.
I.
{¶2} Mr. Zink worked as a bouncer at a bar in Lorain. One evening, S.S. was at the bar
with his wife and another couple for dancing. When the disc jockey began playing music S.S. did
not like and refused to play his requested songs, S.S. gave him a thumbs down gesture. The disc
jockey walked over to S.S.’s table, got into a verbal confrontation with him, and continued giving
the group dirty looks after returning to his station. According to S.S., the couples decided to leave
the bar shortly thereafter, but, when he got up, Mr. Zink was standing there. Mr. Zink told S.S.
that he had to leave and began pushing him down the hallway, even as S.S. repeatedly told Mr.
Zink that they were leaving. S.S. testified that Mr. Zink pushed him all the way to the entrance of
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the bar, including off a small flight of stairs. After being pushed down the stairs, his wife attempted
to intervene, but Mr. Zink threw her aside. When S.S. objected, Mr. Zink punched him in the face,
knocking him unconscious and causing him to fall onto the ground outside the bar.
{¶3} The Grand Jury indicted Mr. Zink for felonious assault against S.S. and assault
against S.S.’s wife. At trial, Mr. Zink testified that he did not forcefully push S.S. to the door of
the bar, but only stood behind him and made a sweeping motion with his hand, indicating that S.S.
had to leave. When they reached the door of the bar, S.S. suddenly struck him in the face, causing
him to react with a punch. A jury found Mr. Zink guilty of the felonious assault charge but not
guilty of the assault charge. The trial court sentenced him to three years of community control,
including 90 days in jail. Mr. Zink has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
COMMENTING ON THE EVIDENCE IN VIOLATION OF APPELLANT’S
RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND
ARTICLE ONE, SECTION 10 OF THE OHIO STATE CONSTITUTION.
{¶4} In his first assignment of error, Mr. Zink argues that the trial court improperly
commented on the evidence, in violation of his right to a fair trial. Recognizing that juries are
“highly sensitive to every utterance by the trial judge,” the Ohio Supreme Court has determined
that improper remarks by a trial judge may prejudice a defendant’s right to a fair trial and
representation by counsel. State v. Wade, 53 Ohio St.2d 182, 188 (1978), quoting State v. Thomas,
36 Ohio St.2d 68, 71 (1973).
Generally, in determining whether a trial judge’s remarks were prejudicial, the
courts will adhere to the following rules: (1) The burden of proof is placed upon
the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in
the best position to decide when a breach is committed and what corrective
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measures are called for, (3) the remarks are to be considered in light of the
circumstances under which they are made, (4) consideration is to be given to their
possible effect upon the jury, and (5) to their possible impairment of the
effectiveness of counsel.
Id.{¶5} During cross-examination of S.S., Mr. Zink’s counsel asked S.S. about his medical
records from the night of the incident. One of the things counsel asked about was whether the
records indicated that S.S. had “[a]cute alcohol intoxication.” S.S. agreed that the records stated
so. Summarizing S.S.’s diagnosis from the records, Mr. Zink’s counsel asserted that S.S. had a
severe concussion and was highly intoxicated. After S.S. disagreed, because the records only
indicated “acute” alcohol intoxication, the State objected, noting that S.S. was not an expert who
had knowledge of the meaning of that phrase. The court interjected that the term “acute” does not
suggest that a condition is severe, only that it is current, and contrasted it with a chronic condition.
Mr. Zink’s counsel objected to the court explaining a term in front of the jury. Following a
discussion at sidebar, the court concluded that a mistrial was not warranted.
{¶6} Overnight, Mr. Zink’s counsel uncovered a European medical journal that defined
acute alcohol intoxication as having a blood-alcohol content of more than .08. After noting that
S.S.’s medical records indicated that his blood alcohol content had been .085, the court offered to
provide a curative instruction to the jury. Mr. Zink’s counsel stated that he did not object to a
curative instruction and suggested that the court refer the jury to the page of the medical records
with the blood-alcohol content measurement. Once the jury was seated, the court stated:
[T]here was a time during the cross-examination of [S.S] where [a] phrase * * * in
the medical records referred to acute intoxication. And to give context to that, I
had counsel check the medical records, and they have stipulated as to what the
blood alcohol content was of [S.S.] at the hospital so that then you can conclude[ ]
his level of intoxication, and have context [as] to what acute intoxication meant at
that time.
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The legal standard for intoxication is .08. If you test .08 you’re not supposed to be
driving, and at page 53 of the medical records, the level was .085. So it was over
the legal limit. That’s what his level of intoxication was.
So, you can figure out from there I guess how many beers or whatever it was that
led to that level of blood alcohol. And that’s been stipulated to by both sides so
hopefully that clears up any confusion[.]
Mr. Zink did not object to the content of the curative instruction.
{¶7} Upon consideration of the Wade factors, we conclude that Mr. Zink has not
established that he was prejudiced by the court’s statements about the definition of “acute.” Mr.
Zink correctly notes that S.S.’s level of intoxication was a factor that could have affected his ability
to remember the incident and, consequently, influenced his credibility to the jury. Whether S.S.’s
blood alcohol content qualified as “high” or “acute,” however, was not as important as providing
the jury with context about how inebriated S.S. was at the time of the incident. The court’s curative
instruction clarified that S.S.’s blood-alcohol content at the hospital was .085, which it noted was
above the legal limit to operate a motor vehicle. It also explained that that was the context under
which the hospital staff diagnosed S.S. as having acute alcohol intoxication. A jury is presumed to
follow curative instructions given to it by a trial judge. State v. Garner, 74 Ohio St.3d 49, 59
(1995). In light of the court’s instruction, combined with S.S.’s acknowledgement that he “had a
buzz” at the time of the incident, we conclude that the trial court’s initial statements that an acute
condition is not “severe” and contrasting an acute condition from a chronic one did not violate Mr.
Zink’s right to a fair trial. Mr. Zink’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO.
{¶8} In his second assignment of error, Mr. Zink argues that his felonious assault
conviction is not supported by sufficient evidence. Whether a conviction is supported by sufficient
evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). In carrying out this review, our “function * * * is to examine the evidence admitted
at trial to determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” Id.{¶9} Mr. Zink argues that the State failed to prove that he did not act in self-defense
when he punched S.S. “Self-defense requires that a defendant: (1) was not at fault in creating the
situation giving rise to the affray; (2) had a bona fide belief that he was in imminent danger of * *
* great bodily harm and that his only means of escape * * * was in the use of such force; and (3)
did not violate any duty to * * * avoid the danger.” State v. Warren, 9th Dist. Summit No. 29455,
2020-Ohio-6990, ¶ 12, citing State v. Barnes, 94 Ohio St.3d 21, 24 (2002). “All three of these
elements must be present to establish self-defense.” Id.{¶10} The Ohio Supreme Court has recently clarified that “a defendant charged with an
offense involving the use of force has the burden of producing legally sufficient evidence that the
defendant’s use of force was in self-defense.” State v. Messenger, __ Ohio St.3d __, 2022-Ohio-
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4562, ¶ 25. If the defendant satisfies that burden, the State then has the “burden of disproving the
defendant’s self-defense claim beyond a reasonable doubt[.]” Id. at ¶ 27. The Ohio Supreme
Court has also held that “a manifest-weight-of-the-evidence standard of review applies to the
state’s burden of persuasion” on the issue of self-defense. Id. at ¶26. When considering a
challenge to the manifest weight of the evidence, this Court is required to consider 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “A reversal on this basis
is reserved for the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26.
{¶11} Mr. Zink testified that S.S. struck him in the face as he was escorting S.S. from the
bar, which is what prompted him to punch S.S. He testified that S.S.’s strike not only left red
marks on his face but also bent the glasses he was wearing. Accordingly, there was evidence that
tended to support that Mr. Zink acted in self-defense.
{¶12} The State, however, presented evidence that Mr. Zink created the situation that gave
rise to the affray and that he did not have a bona fide belief that he was in imminent danger.
Contrary to Mr. Zink’s testimony, S.S. testified that, after he stood up to leave, Mr. Zink grabbed
his shoulders and pushed him into a wall. Mr. Zink then pushed him down a hall, through a
doorway, off a landing, and out a door onto the concrete outside. When S.S. asked Mr. Zink what
his problem was after Mr. Zink pushed S.S.’s wife, Mr. Zink responded by punching him in the
face.
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{¶13} Based on the testimony of S.S., although he got into a verbal confrontation with the
disc jockey, Mr. Zink came over after it was over and initiated the physical contact between them.
S.S. testified that Mr. Zink kept pushing him down the hallway, even though he had his arms up
and was telling Mr. Zink that his group was leaving. S.S. also testified that Mr. Zink punched him
while he was not even facing Mr. Zink. Upon review of the record, we conclude that the jury’s
determination that Mr. Zink did not act in self-defense is not against the manifest weight of the
evidence. Mr. Zink’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
CONSTITUTION.
{¶14} In his third assignment of error, Mr. Zink argues that his conviction is against the
manifest weight of the evidence. Mr. Zink argues that he was more credible than S.S., noting that
S.S. had been heavily drinking and there was testimony that S.S. was loud and out of control. He,
on the other hand, was working that evening and had not had any alcohol to drink, which was
verified by one of his co-workers.
{¶15} Mr. Zink’s co-worker testified that S.S.’s group was loud and drinking heavily, but
he did not testify about S.S. specifically. He testified that it was customary for Mr. Zink not to
drink while working, but he was outside part of that evening while Mr. Zink was working inside.
He, therefore, did not see Mr. Zink during his entire shift and did not see the incident.
{¶16} S.S.’s version of the events was supported by his wife, who saw Mr. Zink push S.S.
into a wall and down the hallway. According to S.S.’s wife, she ran up the stairs and into the bar
after Mr. Zink pushed her aside so she did not see the punch. The wife of the other couple that
was with S.S. that evening testified that, because she was busy getting ready to leave, she did not
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see Mr. Zink put his hands on S.S., but she heard S.S. tell Mr. Zink to get his hands off him. A
police officer who responded to the incident testified that he did not see any red marks on Mr.
Zink’s face and could not remember if Mr. Zink was wearing glasses.
{¶17} The credibility of the witnesses is primarily for the trier of the facts to determine.
State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. “In reaching its verdict,
the jury was in the best position to evaluate the credibility of the witnesses and it was entitled to
believe all, part, or none of the testimony of each witness.” State v. Shank, 9th Dist. Medina No.
12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the record, although S.S. had been drinking
at the time of the incident, we cannot say that the jury lost its way when it accepted his version of
the facts and created such a manifest miscarriage of justice that Mr. Zink’s conviction should be
overturned. Mr. Zink’s third assignment of error is overruled.
III.
{¶18} Mr. Zink’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
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for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
SUTTON, J.
CONCUR.
APPEARANCES:
GIOVANNA BREMKE, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting
Attorney, for Appellee.