STATE OF OHIO v. LA‘SHA BATTLES
No. 109265
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
February 4, 2021
2021-Ohio-310
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 4, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634883-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Ashley Gilkerson, Assistant Prosecuting Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for appellant.
SEAN C. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant La‘Sha Battles (“Battles“) appeals her conviction for felonious assault and aggravated menacing. Upon review, we affirm.
{¶ 2} On December 7, 2018, Battles was indicted for felonious assault in violation of
{¶ 3} The testimony revealed that on the date of the incident, Battles was attempting to cash a check at a liquor store. The victim, who was the cashier and the store manager, doubted the validity of the check. After some discussion, the victim informed Battles that he could not cash the check. Battles took the check back, cursed at the victim, and struck the victim in the face with a pen, which left a mark under the victim‘s left eye.
{¶ 4} Next, Battles began to run out of the store, the victim gave chase, Battles fell, and the two engaged in a scuffle, during which Battles shouted “I will show you,” cursed at the victim, and kicked him with her leg. The victim testified that Battles then threatened “I will send my men to finish with you” and left the scene.
{¶ 5} Five to seven minutes later, Battles‘s brother and another man in a blue hoodie entered the store. The victim tried to explain what happened and
{¶ 6} The victim did not call the police or seek medical attention right away, and he finished working his shift. When a police officer entered the store, the victim explained what happened and the officer instructed him to make a medical report. The victim explained he did not understand how he could do that because he did not have medical insurance and was relatively new to the United States.
{¶ 7} The victim went to the hospital two days after the incident. The victim reported to the nurses that he was experiencing issues with balance and had a headache. The victim was diagnosed with a concussion and received discharge instructions. The victim testified that he was unable to drive for about eight to nine months, that he constantly had a light headache, and that he continued to have issues with balance and vision. He testified that he continued to work because he has a low income, and that he did not seek follow-up medical care because he did not have medical insurance.
{¶ 9} The state proceeded against Battles on a theory of complicity on Count 1 for felonious assault. The jury returned a verdict of guilty on both counts. The trial court sentenced Battles to one and one-half years of community control on each count and advised Battles of the three years of mandatory postrelease control. The court ordered no contact with the victim and stated a violation could result in more restrictive sanctions or a prison term of two years. The court also ordered Battles to perform 50 hours of community service. Battles timely filed this appeal.
{¶ 10} While this appeal was pending, Battles‘s probation was terminated. However, the appeal is not moot and Battles need not present evidence that she will suffer some collateral disability. See State v. Golston, 71 Ohio St.3d 224, 227, 643 N.E.2d 109 (1994). As the Supreme Court of Ohio has recognized, “[t]he collateral legal consequences associated with a felony conviction are severe and obvious.” Id.
{¶ 11} Battles raises three assignments of error for our review. Under her first assignment of error, Battles claims the trial court erred by failing to grant her motion for judgment of acquittal for the offense of felonious assault.
{¶ 12} A Crim.R. 29 motion for judgment of acquittal is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A challenge to the sufficiency of the evidence presents a question of law. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 13} Battles was found guilty of felonious assault in violation of
{¶ 15} The testimony and evidence showed that after the victim informed Battles he could not cash her check, Battles struck the victim in the face with a pen, cursed at the victim, and threatened the victim, stating she would “send my men to finish with you.” Within minutes, two men entered the store. While the victim was trying to clear up the matter by showing them the surveillance video, one of the men punched the victim in the face. The victim blacked out and lost consciousness; he was unable to get off the floor without assistance and was “totally out of balance“; he went to the hospital two days later; and he was diagnosed with a concussion. He testified that he experienced headaches and issues with balance; that he was unable to drive for eight or nine months; and that he was still having issues with headaches, eyesight, and balance at the time of trial.
{¶ 17} Sufficient evidence of serious physical harm has been found under circumstances where the victim was knocked temporarily unconscious, the victim‘s injuries were serious enough to cause the victim to seek medical treatment, and the victim suffered from persistent pain for months. See State v. Redman, 3d Dist. Allen No. 1-15-54, 2016-Ohio-860, ¶ 25-28. In State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068, this court found the state presented sufficient evidence of serious physical harm where the victim suffered multiple punches and kicks to his head and face, his head hit a steel post, he suffered a concussion as well as scrapes and cuts, he sought medical treatment and remained at the hospital for several hours, and he had fits of vomiting and experienced headaches for several days. Id. at ¶ 6-8 and 22-23; see also State v. Rogers, 8th Dist. Cuyahoga No. 105879, 2018-Ohio-3495, ¶ 41-46 (finding sufficient evidence of serious physical harm where the victim sustained a concussion, headaches, and head trauma as a result of a blow to his head, and the victim testified that he received medical treatment for his injuries);
{¶ 18} Although Battles argues that the victim in this case did not seek immediate medical attention, as determined by the First District Court of Appeals, “the fact that the victim does not seek medical treatment after an assault does not preclude a finding that the victim suffered serious physical harm.” Ohio v. Craig, 1st Dist. Hamilton No. C-160816, 2020-Ohio-3103, ¶ 30 (finding the state presented sufficient evidence of serious physical harm where the victim was “knocked out” after being repeatedly head-butted, suffered a temporary loss of consciousness, and had a knot on her forehead that lasted for months); see also State v. Simpson, 8th Dist. Cuyahoga No. 107407, 2019-Ohio-2912 (finding sufficient evidence of serious physical harm where the victim, who did not seek immediate medical attention, had sustained a minor concussion, a minor neck sprain, and a back contusion).
{¶ 19} We also decline to draw a distinction in this matter as advocated by Battles.1 As this court has recognized, the degree of harm that constitutes “serious”
{¶ 20} The state was required to prove beyond a reasonable doubt that Battles knowingly caused serious physical harm to another as that term is statutorily defined. Included in the statutory definition of “serious physical harm” is any physical harm that involves “some temporary, substantial incapacity,”
{¶ 21} Upon our review, we find that the state presented sufficient evidence to prove that the victim suffered serious physical harm. Moreover, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of felonious assault proven beyond a reasonable doubt. We also find sufficient evidence was presented from which the jury could infer Battles was complicit in the felonious assault. The first assignment of error is overruled.
{¶ 23} First, Battles claims that the weight of the evidence proves that the victim did not suffer “serious” physical harm and that the victim‘s conduct in waiting to seek any medical testing, his treatment with over-the-counter medication, and his discharge papers reflect that the degree of his injuries was not serious within the meaning of
{¶ 24} Second, Battles claims her conviction for complicity in the crime of felonious assault is against the manifest weight of the evidence. Battles argues the evidence suggests she was only angry with the victim when she left the store, she did not share the criminal intent of the principal offender, and the principal offender formed his intent while she was not present. In support of her argument, Battles states the man in the blue hoodie did not assault the victim immediately upon entering the store, the encounter started as a discussion, and the man did not act to harm the victim until he saw the surveillance video. “[An] accomplice‘s criminal intent may be inferred, by direct or circumstantial evidence, and from the presence, companionship, and conduct of the accomplice both before and after the offense is committed.” State v. Shropshire, 8th Dist. Cuyahoga No. 85063, 2005-Ohio-3588, ¶ 15, citing State v. Nievas, 121 Ohio App.3d 451, 456-457, 700 N.E.2d 339 (8th Dist.1997). Our review of the entire record reflects the jury heard evidence that Battles struck the victim with a pen, cursed at the victim, kicked at the victim, and threatened, “Okay, I will show you. I will send my men to finish with you.” Within
{¶ 25} Third, Battles claims the state failed to prove the crime of aggravated menacing under
{¶ 26} We recognize that the offense of aggravated menacing was alleged to have occurred on or about June 24, 2017, which is the date the victim refused to cash the check for Battles. Battles claims that the victim did not believe she would “cause serious physical harm” to him and did not take the threat seriously. She points to
{¶ 27} The second assignment of error is overruled.
{¶ 28} Under her third assignment of error, Battles claims the trial court committed plain error and confused the jury by giving an incorrect and misleading jury instruction on the definition of complicity by including a conspiracy instruction.
{¶ 29}
No person, acting with the kind or culpability required for the commission of an offense shall do any of the following:
Solicit or procure another to commit the offense; - Aid or abet another in committing the offense;
- Conspire with another to commit the offense in violation of section
2923.01 of the Revised Code ; - Cause an innocent or irresponsible person to commit the offense.
{¶ 30} Because felonious assault in violation of
Complicity. The State of Ohio has presented a theory that the defendant acted in complicity with a principal offender in the commission of the felonious assault. A person who is complicit with another in the commission of a criminal offense is regarded as guilty as if she personally performed every act constituting the offense. This is true even if she did not personally perform every act constituting the offense or was not physically present at the time the offense was committed.
Before you can find the defendant guilty of complicity in the commission of a felonious assault, you must find beyond a reasonable doubt that * * * the defendant solicited or procured another to commit the offense of felonious assault, or aided or abetted another in committing the offense of felonious assault, or conspired with another to commit the offense of felonious assault.
{¶ 31} The instructions proceeded to define “solicit,” “procure,” “aided or abetted,” and “conspiracy.” Battles made no objection to these jury instructions or to the inclusion of the instruction on conspiracy. “When a defendant fails to object to the jury instructions, she waives all but plain error.” State v. Owens, Slip Opinion
{¶ 32} Under Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” The Supreme Court of Ohio has recognized that a “plain error” is “an obvious defect in the trial proceedings,” and that to qualify as “plain error,” the defect “must have affected ‘substantial rights,‘” which has been interpreted to mean that the error “‘must have affected the outcome of the trial.‘” State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 72, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; see also State v. Hundley, Slip Opinion No. 2020-Ohio-3775, ¶ 116.2 Further, “a defendant must ‘demonstrate a reasonable probability that the error resulted in prejudice.‘” Kirkland at ¶ 72, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶ 33} We find that even if there was error in providing the instruction, it did not affect the substantial rights of Battles. Although the state concedes the conspiracy instruction does not apply in this case, it argues that the jury could have found Battles complicit in the felonious assault under other theories of complicity. A jury instruction is not to be judged in artificial isolation but must be viewed in the context of the overall charge. See State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772
{¶ 34} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
SEAN C. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and EILEEN T. GALLAGHER, J., CONCUR