State v. ChurchState v. Church
James E. Cooney, 110 North Main Street, Hamilton, Ohio 45011, for defendant-appellant
Scott D. Kruger, 616 Dayton Street, P.O. Box 1166, Hamilton, Ohio 45012, for defendant appellant
O P I N I O N
HUTZEL, J.
{¶ 1} Defendant-appellant, Jeffrey Church, appeals his conviction in the Butler County Court of Common Pleas for felonious assault.
{¶ 2} On May 26, 2010, appellant was indicted on one count of felonious assault in violation of
{¶ 3} Appellant appeals, raising five assignments of error. The second and third assignments of error will be addressed first and together.
{¶ 4} Assignment of Error No. 2:
{¶ 5} THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT-APPELLANT OF FELONIOUS ASSAULT.
{¶ 6} Assignment of Error No. 3:
{¶ 7} THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT A FINDING OF GUILT AGAINST THE DEFENDANT-APPELLANT FOR FELONIOUS ASSAULT.
{¶ 8} Appellant argues that his сonviction for felonious assault was supported by insufficient evidence and was against the manifest weight of the evidence because the state failed to establish he caused Lawson serious physical harm.1 In support of his argument, appellant asserts that while Lawson suffered extensive bruising and swelling on her face, and bruising and superficial rug burns on her legs and back, she was not admitted at the hospital, did not receive sutures, and did not suffer any broken bones, lacerations, or long term physical impairment.
{¶ 9} Whether the evidence presented is legally sufficient to sustain a verdict is a
{¶ 10} In determining whether a conviction is contrary to the manifest weight of the evidence, an appellate court must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of witnesses to decide whether the jury clearly lost its way in resolving evidentiary conflicts and created such a manifest miscarriage of justice that the conviction must be reversed. Layne at ¶ 24. This discretionary power is to be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. A determination that a conviction is supported by the manifest weight of the evidence will also be dispositivе of the issue of sufficiency. State v. Rodriguez, 12th Dist. No. CA2008-07-162, 2009-Ohio-4460, ¶ 62.
{¶ 11}
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duration as to result in substantial suffеring or that involves any degree of prolonged or intractable pain.
{¶ 12} Lawson testified that during the attack, which lasted almost two hours, appellant struck her in the chest and the back with a belt, kicked her on the lower back, bit her on the arm, struck her in the face with the phone receiver, and choked her. She remembered going in and out of consciousness while she was being choked. Although she refused medical treatment at the scene, she later went to the emergency room (E.R.) of Mercy Hospital where she was given a prescription for pain medication. That evening, she told the E.R. nurse that on a scale of one to ten, her pain level was a ten. The E.R. nurse testified that given the еxtensive bruising on Lawson‘s face and the severity of the injuries, Lawson‘s injuries were in the nurse‘s “top two injuries.”
{¶ 13} The following day (April 18, 2010), Lawson was barely able to walk. Upon realizing the extent of her injuries, she went to the police station where she gave a written statement. Sergeant Lori Cresap, who was at the crime scene the day before, was present at the police station. Sergeant Cresap testified that on April 18, Lawson had more injuries; her left eye was completely swollen shut and her right eye was almost swollen shut; and Lawson moved very slowly. Lawson told her that it hurt to stand, she felt pain everywhere, and she had trouble standing, sitting, and walking. Sergeant Cresap felt several knots on the top of Lawson‘s head.
{¶ 14} On April 20, 2010, three days after the attack, Lawson went back to the E.R., complaining of blurry vision, eye sensitivity to the light, and migraines. She reported that her pain level was now a nine. The E.R. nurse testified that the bruising on Lawson‘s face and
{¶ 15} The state submitted to the jury three different sets of photographs depicting Lawson‘s injuries. The first set was taken on the day of the assаult on April 17, 2010; the second set was taken the day after the assault (April 18); and the third set was taken the following day (April 19). The photos show numerous bruises on Lawson‘s body, including the imprint of a belt buckle above her left breast and on her back, a bite mark on her left arm, and rug burns on her knees and shoulders. The photos also show extensive bruising and swelling on her face and the progression of these injuries over three days, as follows.
{¶ 16} Immediately after the attack, Lawson had redness across her face, both her eyes were severely bruised and swollen, and her left eye was almost swollen shut. The next day, the bruising and swelling had progressed and were now covering her entire left cheek. The area around her eyes wаs deep red in color, her left eye was now completely swollen shut, and her right eye was almost swollen shut. Three days after the attack, Lawson could open her eyes but she had two swollen black eyes and the outside of the whites of each eye had turned red. The swelling and bruising on the left side of her face was darker and extended down to her jaw line.
{¶ 17} Lawson testified that for a few days after the attack, she had blurred vision and could not see because of the swelling on her face and eyes. She also had difficulty walking. She also testified that her injuries took “a good three to four weeks to heal,” and that she is still experiencing lasting effects from the attack, to wit: she gets migraines easily, one eye still gets blurry, and the left side of her face where appellant struck her with the phone receiver, protrudes out further than her right side.
{¶ 18} Given the foregoing evidence, Lawson‘s injuries fall within most of the circumstances constituting serious physical harm as defined in
{¶ 19} After a thorough review of the record, we cannot say that the jury lost its way in finding that Lawson sustained serious physical harm as a result of appellant‘s attack. We thus find that appellant‘s felonious assault conviction is not against the manifest weight of the evidence. Our determination that appellant‘s conviction is supported by the weight of the evidence is also dispositive of the issue of sufficiency. Rodriguez, 2009-Ohio-4460 at ¶ 62. Appellant‘s second and third assignments of error are overruled.
{¶ 20} Assignment of Error No. 1:
{¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT WHEN IT DENIED HIS MOTION FOR JURY INSTRUCTIONS ASKING FOR LESSER INCLUDED OFFENSE OF ASSAULT.
{¶ 22} Appellant argues that the trial court erred by refusing to instruct the jury on the lesser included offense of assault. Appellant again asserts that given Lawson‘s temporary bruising and swelling and superficial scrapes and rug burns, she did not suffer serious physical harm. In support of his argument, appellant cites this court‘s decision in State v. Brooks, 12th Dist. No. CA2001-01-001, 2001 WL 1525358 (Dec. 3, 2001).
{¶ 23}
{¶ 24} A jury instruction on а lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser included offense. State v. Wyatt, 12th Dist. No. CA2010-07-171, 2011-Ohio-3427, ¶ 30. An instruction is not warranted, however, simply because the defendant offers “some evidence” to establish the lesser included offense. Id. Instead, “there must be ‘sufficient evidence’ to ‘allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior-degree) offense.‘” (Emphasis sic.) State v. Anderson, 12th Dist. No. CA2005-06-156, 2006-Ohio-2714, ¶ 11, quoting State v. Shane, 63 Ohio St.3d 630, 632-633 (1992). In making this determination, the trial court must consider the evidence in a light most favorable to the defendant. Wyatt at ¶ 30. We review the trial court‘s decision refusing to give а requested jury instruction for an abuse of discretion. State v. Gray, 12th Dist. No. CA2010-03-064, 2011-Ohio-666, ¶ 23.
{¶ 25} In light of the evidence of Lawson‘s injuries, we cannot say that the jury could have reasonably concluded that appellant was guilty only of the lesser included offense of assault, but not of the greater offense of felonious assault. It is clear from Lawson‘s testimony, the testimony of the E.R. nurse and Sergeant Cresap, and the state‘s photographs of Lawson‘s injuries that Lawson sustained serious physical harm as a result of appellant‘s attack.
{¶ 26} Upon reviewing this court‘s decision in Brooks, we find that it is inapplicable here. In Brooks, the victim sustained a broken jaw as a result of being struck in the face. At trial, the state argued that the defendant and another man, “John-John,” conspired to assault the victim and that the two men caused serious рhysical harm to the victim. In contrast, the defense‘s theory of the case was that the defendant did not conspire with John-John and that
{¶ 27} The defendant appealed the trial court‘s denial of his request. This court held that the trial court erred by refusing to instruct the jury on the lesser included offense of assault. Brooks, 2001 WL 1525358 at *6. Specifically, this court found that based on the defendant‘s testimony, the jury could have found that John-John, and not the defendant, was responsible for the victim‘s serious physical injuries, and that the defendant‘s involvement ended before John-John‘s assault of the victim. Id. That is, the jury could have reasonably found that the defendant committed an assault but not a felonious assault. Id.
{¶ 28} In the case at bar, appellant was the only person who assaulted Lawson. The facts in Brooks are therefore distinguishable and its holding is inappliсable here.
{¶ 29} We therefore find that the trial court did not err in refusing to instruct the jury on the lesser included offense of assault. Appellant‘s first assignment of error is overruled.
{¶ 30} Assignment of Error No. 4:
{¶ 31} THE COURT VIOLATES A DEFENDANT‘S RIGHT TO A FAIR TRIAL BY ADMITTING CUMULATIVE AND REPETITIVE PHOTOGRAPHS INTO EVIDENCE.
{¶ 32} Appellant argues that the trial court violated his right to a fair trial by admitting cumulative and repetitive photographs into evidence. The 95 photos challenged by appellant were divided into three sets and depicted Lawson‘s injuries over the course of three days, and the condition of her clothes and of the motel room following the attack.
{¶ 33} There were no objections at trial to the photos appellant is now challenging on appeal, and therefore he has waived all but plain error with respect to those. State v. Jones, 12th Dist. No. CA2009-05-140, 2011-Ohio-2097, ¶ 57. An alleged error does not constitute plain error unless, but for the error, the outcome of the trial clearly would have been different.
{¶ 34} The admission or exclusion of photоgraphic evidence is left to the discretion of the trial court. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 91 (12th Dist.). Under Evid.R. 403, a trial court may reject an otherwise admissible photograph that, because of its inflammatory nature, creates a danger of prejudice that substantially outweighs the probative value of the photograph as evidence, but absent such danger, the photogrаph is admissible. State v. Morales, 32 Ohio St.3d 252, 257 (1987).
{¶ 35} “While the sheer number of photographs admitted may constitute error when they are needlessly cumulative, ‘the mere fact that there are numerous photos will not be considered reversible error unless the defendant is prejudiced thereby,’ and ‘[a]bsent gruesomeness or shock value, it is difficult to imagine how the sheer number of photographs admitted can result in prejudice requiring reversal.‘” Blankenburg at ¶ 96, quoting State v. DePew, 38 Ohio St.3d 275, 281 (1988); State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 26 (reversal is not required merely because a large number of photos were admitted).
{¶ 36} Upon reviewing the 95 photographs, we hold there was no plain error in admitting them. Twenty photos depicted the condition of the motel room after the attack and illustrated the testimony of a poliсe officer that the room “was in disarray” with “a lot of bloody stuff around the room.” The photos showed different parts of the room; some of the photos showed the presence of blood on several items throughout the room.
{¶ 37} The other 75 photos depicted the extent and severity of Lawson‘s numerous injuries and their dramatic progression оver the course of three days, and illustrated the testimony of Lawson, the E.R. nurse, and Sergeant Cresap with regard to the injuries. These photos were taken from different angles and depicted different views of Lawson‘s injuries.
{¶ 38} The 95 photographs were either scene photos or photographs of Lawson‘s injuries. We find that the admission of each photo was justified and proper as they gave the jury an “appreciation of the nature and circumstances of the crime.” State v. Evans, 63 Ohio St.3d 231, 251 (1992). Appellant‘s fourth assignment of error is accоrdingly overruled.
{¶ 39} Assignment of Error No. 5:
{¶ 40} APPELLANT‘S CONSTITUTIONAL RIGHT TO COUNSEL WAS PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
{¶ 41} Appellant argues that his trial counsel was ineffective for failing to object to any of the 95 photographs presented to the jury by the state. Appellant again asserts that the photographs were repetitive and cumulative.
{¶ 42} To prevail on an ineffective assistance claim, an appellant must show that his trial counsel‘s performance fell below an objective standard of reasonableness and that appellant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104 S.Ct. 2052 (1984); Layne, 2010-Ohio-2308 at ¶ 42.
{¶ 43} Regarding the first prong, there is “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland at 689. There is also a presumption that the challenged action may be “sound trial strategy” that the defendant must overcome. State v. Gilbert, 12th Dist. No. CA2010-09-240, 2011-Ohio-4340, ¶ 72. Failure to raise objections “‘is not a per se indicator of ineffective assistance of counsel, because counsel may refuse to object for tactical reasons.‘” Layne at ¶ 49, quoting State v. Nowlin, 5th Dist. No. CT2007-0008, 2008-Ohio-2830, ¶ 32.
{¶ 45} Assuming arguendo that counsel should have objected to some or all of the 95 photographs, we find that appellant cannot meet the prejudice prong under Strickland that there exists “a reasonable probability that absent [defense counsel‘s] errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. Even if some or all of the photographs had been excluded, compelling evidence against appellant still existed.
{¶ 46} The record shows that at the crime scene, and later at the police station, appellant made several statements, to wit: he was a coward; he “fucked up;” what happened that day was not like him; and he took responsibility for what happened to Lawson. Given appellant‘s incriminating statements, Lawson‘s description of the attack and the injuries and pain she sustained as a result, and the testimony of the E.R. nurse and Sergeant Cresap, the exclusion of some or all of the 95 photographs would not have changed the outcome of the proceeding.
{¶ 47} Appellant‘s fifth assignment of error is accordingly overruled.
{¶ 48} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.