2014 Ohio 5143
Ohio Ct. App.2014Background
- Defendant David M. West was tried in Cuyahoga C.P. for two counts of felonious assault after a 10/12/2013 incident in which the victim was struck in the head with a heavy 1800 vodka bottle and required 32 stitches. Court found guilty after a bench trial; merged offenses; sentenced to 4 years imprisonment.
- At the scene both parties were intoxicated; defendant gave oral and written statements admitting he took the bottle and "beat it out of her;" officer described the bottle as large/heavy and capable of causing deadly injury.
- Victim testified defendant snatched the bottle and hit her in the head with it; photographs and medical treatment corroborated serious injury and permanent scarring.
- Defendant testified there was a tussle over the bottle, denied striking the victim with the bottle (claimed she hit herself), and admitted mutual hitting with hands during the fight.
- Trial court excluded cross-examination of the victim about a 2002 burglary conviction as beyond the ten-year impeachment rule; defense raised ineffective assistance for not impeaching with the victim’s pending charges; defendant also argued aggravated assault (inferior degree) should apply due to serious provocation, and asserted manifest-weight error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (West) | Held |
|---|---|---|---|
| Admissibility of victim's 2002 burglary conviction for impeachment (Evid.R. 609) | 2002 burglary is probative of credibility and shows dishonesty | Conviction is admissible despite being over 10 years old | Excluded; defendant failed to give required advance written notice and court did not abuse discretion in excluding a stale conviction |
| Ineffective assistance of counsel for not cross-examining victim about pending charges arising from same date | Failure to cross-examine did not prejudice outcome; no evidence victim had a motive to lie | Counsel should have exposed victim’s pending burglary/theft charges to show bias/interest | Denied: defendant failed to show prejudice; overwhelming evidence supported conviction |
| Whether aggravated assault (inferior degree) applies because of serious provocation | No inferior offense; conduct not seriously provoked | Defendant claims victim attempted to steal bottle and they struggled, constituting serious provocation | Denied: facts do not show "serious provocation" sufficient to excuse use of deadly force; defendant’s response was excessive |
| Manifest weight of the evidence | Conviction supported by victim testimony, defendant’s statements, physical evidence, and photos | Defendant argues victim intoxicated and only hand-to-hand force occurred; bottle strike disputed | Affirmed: record does not show manifest miscarriage of justice; evidence supports felonious assault conviction |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- State v. Perez, 920 N.E.2d 104 (2009) (Ohio high-court discussion applying Strickland)
- State v. Bradley, 538 N.E.2d 373 (1989) (Ohio standard for ineffective-assistance review)
- State v. Deem, 533 N.E.2d 294 (1988) (aggravated assault as inferior degree of felonious assault; serious provocation defined)
- State v. Shane, 590 N.E.2d 272 (1992) (elements and analysis of serious provocation)
- State v. Thompkins, 678 N.E.2d 541 (1997) (standard for manifest-weight review)
- Keaton v. Abbruzzese Bros., 940 N.E.2d 603 (2010) (trial court has broad discretion; stale convictions should rarely be admitted)