2023 Ohio 3209
Ohio Ct. App.2023Background:
- On Dec. 19, 2021, at a Circle K in Findlay, OH, Dominic Passmore grabbed Latasha Jaquez by both sides of the head and forcefully slammed her skull into the store counter; she fell, hit the floor, suffered a deep laceration and a concussion, and required seven staples and EMS transport.
- Store clerk and a witness corroborated that Jaquez did not threaten or strike Passmore before the assault; video (without audio) of the incident was played at trial.
- Passmore fled in a red pickup, lied about his name to police, and was arrested; he was indicted for felonious assault (R.C. 2903.11(A)(1)), tried by jury, convicted, and sentenced.
- On appeal Passmore raised six assignments: insufficiency of evidence (intent/serious harm), manifest weight/self-defense, trial court’s imposition of court costs/fees without ability-to-pay consideration, prosecutorial misconduct (stricken remark "I'm going to kill you"), ineffective assistance for trial counsel’s stipulations (prior conviction and video), and improper consecutive sentence findings.
- The Third District affirmed: it found evidence supported serious physical harm and intent, the jury verdict was not against the manifest weight, costs/fees were properly imposed as mandatory, the stricken statement caused no prejudice, counsel’s tactical stipulations were not deficient, and the consecutive sentence findings were supported.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Passmore) | Held |
|---|---|---|---|
| Sufficiency — intent & serious physical harm | State: evidence (victim testimony, EMS, medical records, and Passmore’s admission) proved serious harm and that slamming the head showed knowing conduct. | Passmore: no proof he intended serious harm; conduct not akin to a shooting-level offense. | Court: Affirmed sufficiency; concussion and laceration qualify as serious physical harm and forceful head‑slamming supports knowing conduct. |
| Manifest weight & self‑defense | State: eyewitnesses and video show victim did not threaten; Passmore’s version inconsistent; force was disproportionate. | Passmore: jury lost its way; he acted in self‑defense or believed force was necessary. | Court: Verdict not against manifest weight; evidence supports rejection of self‑defense. |
| Financial sanctions — ability to pay | State: costs of prosecution and R.C. 2929.18(A)(4) fees are mandatory costs. | Passmore: court failed to consider his ability to pay before imposing fees. | Court: Costs and listed fees are mandatory; no pre‑payment ability‑to‑pay finding required. |
| Prosecutorial misconduct — stricken statement | State: officer’s testimony about hearing “I’m going to kill you” was factual observation of recording. | Passmore: the statement was highly prejudicial and violated court’s ruling; deprived him of fair trial. | Court: Even if improper, court struck it, gave curative instruction, and Passmore failed to show prejudice. |
| Ineffective assistance — stipulations to prior conviction & video | State: counsel’s stipulations were tactical and permissible; the evidence was admissible/available. | Passmore: counsel unreasonably stipulated to highly prejudicial prior conviction and the video, waiving Evid.R. 609 protections. | Court: Counsel’s choices were sound trial strategy or non‑futile; no deficient performance or prejudice shown. |
| Consecutive sentences — statutory findings | State: trial court made necessity/proportionality and R.C. 2929.14(C)(4)(c) (history of criminal conduct) findings, supported by record. | Passmore: record insufficient to support consecutive sentences; multiple‑offense requirement not met. | Court: Findings were made and supported (including prior prison term), so consecutive sentence affirmed. |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (1991) (standard for reviewing sufficiency of the evidence)
- State v. Seiber, 56 Ohio St.3d 4 (1990) (intent to cause serious harm may be inferred from defendant’s conduct)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (manifest‑weight review and role of appellate court as thirteenth juror)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (trial court must make and record consecutive‑sentence findings)
- State v. Taylor, 161 Ohio St.3d 319 (2020) (court costs of prosecution are mandatory regardless of ability to pay)