STATE OF OHIO v. STEVE D. HENRY
No. 102634
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 25, 2016
[Cite as State v. Henry, 2016-Ohio-692.]
E.A. Gallagher, J., Celebrezze, P.J. and E.T. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-582467-A. JUDGMENT: AFFIRMED.
Michael J. Connick
Gary A. Vick, Jr.
Connick & Associates, Co., L.P.A.
25550 Chagrin Blvd. Suite 101
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Fallon Radigan
Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant Steve Henry, who was indicted for felonious assault in violation of
{2} On February 6, 2014 at approximately 12:30 p.m., Vincent Gatto went to the Henry residence in Broadview Heights, Ohio to collect money he was allegedly owed by Henry‘s son, Bret Henry (“Bret“). An argument ensued and, as Gatto was leaving the home, Henry struck him in the face, allegedly injuring his upper lip and teeth. On February 24, 2014, a Cuyahoga County Grand Jury indicted Henry on one count of felonious assault in violation of
{3} Gatto testified that, on January 31, 2014, he had agreed to purchase a $50 gift card from Bret, one of his classmates at Broadview Heights/Brecksville High School, for $35. At the time, Gatto was 18; Bret was 17. A paypal receipt allegedly evidencing the transaction was introduced into evidence.1 According to Gatto, approximately one week later, after he attempted to use the gift card to purchase gasoline for his vehicle, he discovered that only $.84 was left on the $50 gift card. Gatto texted Bret regarding the issue. On February 6, 2014, Bret texted Gatto and invited him to come to his home to collect his money.2 Gatto arrived at the Henry residence at approximately 12:25 p.m. He parked his car on the street in front of the house, left the engine running and walked to the front door. Gatto texted Bret that he had arrived and waited for him at the front door. Gatto denied ringing the door bell or knocking or pounding on the door. However, a minute later, Bret‘s father, Henry, came to the door. Gatto testified that Henry asked him why he was there and that he responded, “[Y]our son stole $50 from me. I‘m here
{4} After exchanging “a little more words,” Gatto stated that he was “upset” and “mad” but that he decided to leave and walked down the driveway towards his vehicle. Henry followed him. The pair continued to “exchange angry words” as Henry followed Gatto down the driveway; however, there was no physical contact between them.
{5} According to Gatto, as he stood in the street about to get into his car, Henry said something to him and Gatto turned around. Gatto testified that Henry then asked him if he had any drugs on him. After Gatto replied that he had no drugs, Henry threatened to make a “citizen‘s arrest,” and Gatto told Henry to “show me your badge.” Henry then asked Gatto what he was going to do to Bret. Gatto said, “[N]othing. I don‘t want to see him” and “I‘m done with him.”
{6} Gatto testified that after the two men exchanged these “final words,” Henry struck him in the mouth with his fist. Henry punched Gatto once, Gatto fell to the ground and Henry left and went back into the house. Gatto testified that, as a result of the punch, his upper lip was “split in two,” his two front teeth were “bent in” and blood was dripping on his cell phone.
{7} After Henry went back into the house, Gatto stood up, got into his car and called his mother who told him to come home. Gatto drove home and his parents drove him to the emergency room at Marymount Hospital.
{9} Gatto‘s medical records from Marymount Hospital were admitted into evidence. Although Gatto claimed to have received 30 stitches, the medical records do not confirm this. The medical records indicate only that a “Dr. Ulvi graciously came in and repaired the patient‘s laceration.” There is no reference in the medical records to the number of stitches, if any, Gatto received.
{10} With respect to the follow-up care he received, Gatto testified that his injuries did not require surgery but that a plastic surgeon removed his stitches. According to Gatto, he saw the “medical surgeon” “about five times” and his family dentist twice for the injuries he sustained in the altercation with Henry. No medical records documenting any of this alleged follow-up treatment were introduced into evidence. Gatto was not hospitalized, never lost consciousness and did not claim to have any scars or disfigurement as a result of the altercation. There was no evidence
{11} Troy Schonberger, a Broadview Heights patrol officer, testified that he responded to a call at the Henry residence regarding “a male threatening the caller‘s son.” When he arrived at the residence, he was met by Henry and Bret. Henry informed the officer that Gatto had come to the house and was “beating on the door trying to get a hold of his son Bret because of money that was owed.” Henry told Officer Schonberger that he believed Bret may have owed Gatto money for drugs, that he wanted “no part of that” and that he escorted Gatto off his property. Officer Schonberger testified that, according to Henry, when he and Gatto reached the end of the driveway and were standing in the street near Gatto‘s car, Gatto punched him in the face and that he “returned the punch.” Officer Schonberger took photographs of Henry, including one photo that showed a small spot of blood on the right side of his face below his lip, a photo of Henry‘s face showing “no visible injuries” and a photo of Henry‘s left hand showing a “small injury” to his knuckle “consistent * * * with a punch.” These photographs were admitted into evidence.
{12} Officer Schonberger also spoke with Bret. Officer Schonberger testified that Bret told him that the incident was the result of “a drug deal gone bad,” i.e., that Gatto had given Bret inferior marijuana so he decided not to pay for it. Officer Schonberger testified that he had no evidence that there had been a drug deal and that if there had been evidence of a drug deal, he “he would have made arrests.”
{14} Officer Schonberger testified that Gatto had a large split in his upper lip “that was going to require a plastic surgeon” and that Gatto was “irate” and “very, very upset,” “lashing out at everybody around him,” “verbally abusive to the hospital staff” and “standoffish” to the officer, cursing at him several times. He took pictures of Gatto‘s injuries, which were admitted into evidence. Officer Schonberger stayed at the hospital with Gatto for an hour and a half, then, “because of the injuries Mr. Gatto had received,” he returned to Henry‘s residence.
{15} When Officer Schonberger returned to the Henry residence, he looked in the area where the altercation occurred but did not see any blood, blood marks or blood splatter. He then spoke briefly with Henry a second time. Henry denied that he had been injured when Gatto punched him and refused to speak further with Officer
{16} Bret also testified. He admitted that he had invited Gatto over to his house on February 6, 2014 because he “was going to give [Gatto] his money that he wanted.” Bret testified that he had sold Gatto a gift card in exchange for marijuana. Bret stated that Gatto had come over on February 5, 2014, when just he and his mother were home and that Gatto had banged on the front door, rang the doorbell repeatedly and had been screaming, swearing and threatening Bret that he was going to “get him” at school. Bret testified that he did not answer the door that day because his mother was crying and he was afraid Gatto was going to cause him harm. He told his mother not to call the police because he “didn‘t want to get in trouble for the transaction and everything.” Bret testified that he told Gatto to come over the following day to get his money because he wanted it “to be over with” and for Gatto to “leave [him] alone.”
{17} When Gatto arrived at the Henry‘s residence on February 6, 2014, Bret was in his room. Gatto banged on the door and rang the doorbell, screaming for Bret to come outside. Bret testified that when he looked out the window, he saw his dad answer the door and that the two men were talking. He then saw Gatto walk down the driveway followed by Henry. He testified that his view of the driveway was “partially limited” by trees in the front yard but that two or three times he saw Gatto turn around and take steps back towards Henry as they walked down the driveway. After that, he “really didn‘t see anything” because Gatto and Henry “disappeared behind the trees.”
{19} Henry, a pediatric home health care nurse, testified that he was in his garage after snow blowing the driveway when he heard the doorbell ringing and someone pounding on the front door. He stated that he heard someone yelling in an “erratic” and “threatening” manner, “Bret. Come out here. Bret. * * * I‘m going to kick you‘re a**. Come out here. I want my money.” Henry indicated that he was aware that Gatto had come to the house the day before and threatened his son but that he had done nothing about it.
{20} Henry stated that he answered the door and said, “Yes?” and that Gatto replied, “Where‘s Bret. I want my f****** money.” He testified that he told Gatto to leave and that he was not giving him “any drug money” and stepped out onto the front porch. Gatto raised his voice, “very adamant about this $50.” After Henry again directed Gatto to leave, he started walking away, and Henry told him, “I‘m calling your mother, the school, and the police.” According to Henry, Gatto‘s behavior changed “for the worst.” Gatto turned around and was “erratic, scary looking [and] aggressive.”
{21} Henry testified that he again told Gatto to leave and began to follow him down the driveway. As the two men walked down the driveway, Henry told Gatto repeatedly that he was not to come back. Gatto responded, “I want my money. I always get my money. I‘m going [to] kick Bret‘s a** tomorrow.” Henry stated that he
{22} Twenty feet before the end of the driveway, Gatto turned around again. According to Henry, Gatto was “being very aggressive, posturing, threatening” and “disrespectful” and was “out of control.” Henry testified that when they reached the street, Gatto threw a right punch at Henry. The punch connected “[s]lightly” and Henry responded, punching Gatto once. Gatto fell down, then got up and started yelling and screaming. Henry walked away, went into the house and called the police. Henry testified that punching Gatto was simply “a reaction” and that he did not intend to cut Gatto‘s lip. He acknowledged, however, that he knew there was “a chance” Gatto could get hurt.
{23} Gatto denied that he had ever sold marijuana to Bret, that he had been at Henry‘s residence the day before or that he, “at any point in time,” threw a punch at Henry “or anything like that.”
{24} After Henry completed his testimony, the defense rested and Henry renewed his Crim.R. 29(A) motion. Once again, the trial court denied the motion.
{25} In his closing argument, defense counsel argued that the state had failed to prove mens rea or that Henry had caused Gatto serious physical harm, beyond a
{26} On January 6, 2015, Henry filed a motion to vacate the finding of guilt arguing that a conviction for aggravated assault requires the use of deadly force and that a “one-punch situation cannot, as a matter of law, ever constitute deadly force.” After hearing argument on the issue, the trial court denied the motion, sentenced Henry to one year of community control and ordered him to pay $75 in restitution.
{27} This appeal followed. Henry has raised the following three assignments of error for review:
ASSIGNMENT OF ERROR NO. 1:
The trial court erred in finding the defendant guilty of aggravated assault which requires the use of deadly force, when the law states that a one-punch felonious assault does not rise to the level of deadly force.ASSIGNMENT OF ERROR NO. 2:
The trial court erred in finding serious provocation.ASSIGNMENT OF ERROR NO. 3:
The trial court erred in finding that the victim suffered serious physical harm.
Law and Analysis
{28} Henry was convicted of aggravated assault in violation of
No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly * * * [c]ause serious physical harm to another * * *.
{29} Aggravated assault is an inferior offense of felonious assault. Its elements are identical to felonious assault except its nature and penalty are mitigated by one or two mitigating circumstances, i.e., sudden passion and/or a sudden fit of rage brought on by serious provocation occasioned by the victim. See, e.g., State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph four of the syllabus; State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 21; State v. Searles, 8th Dist. Cuyahoga No. 96549, 2011-Ohio-6275, ¶ 18; see also
{30} Henry‘s first two assignments of error are interrelated and will, therefore, be addressed together. In his first assignment of error, Henry argues that his conviction for aggravated assault should be overturned because no evidence was presented “as to the critical element of deadly force.” Henry contends that it was undisputed that he punched Gatto only once and that one punch is insufficient as a matter of law to constitute “deadly force.” In his second assignment of error, Henry argues that his conviction should be overturned because the trial court‘s finding of serious provocation was not based on sufficient evidence and was against the manifest weight of the evidence. Henry‘s arguments are meritless.
{31} A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state met its burden of production. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1977). When reviewing sufficiency of the evidence, an appellate court must determine “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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v.Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387; Jenks at paragraph two of the syllabus. In considering whether the evidence at trial was sufficient to support a conviction, “[a]n appellate court must review ‘all of the evidence’ admitted at trial,” including the evidence offered by defense. (Emphasis omitted.) State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 18 (appellate court was required to consider the defendant‘s own testimony in evaluating sufficiency of evidence to support his convictions following bench trial), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979).
{32} In contrast to a challenge based on sufficiency of the evidence, a manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio St.3d at 387; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When considering an appellant‘s claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a “thirteenth juror” and may disagree “with the factfinder‘s resolution of conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Weight of the evidence involves “the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing at Thompkins at 386-387. “In other words, a reviewing court asks whose evidence is more persuasive the state‘s or the defendant‘s?” Wilson at ¶ 25. The reviewing court must examine the entire record,
{33} Citing this court‘s decision in State v. Triplett, 192 Ohio App.3d 600, 2011-Ohio-816, 949 N.E.2d 1058 (8th Dist.), Henry argues that “deadly force” is an element of aggravated assault under
{34} In Triplett, the defendant punched the victim once. Id. at ¶ 4. The victim suffered a head injury and died later that day. Id. The defendant claimed he was acting in defense of his sister. Id. A jury found him guilty of felonious assault. Id. at ¶ 3. The defendant asserted (among other alleged errors) that the trial court erred in failing to instruct the jury regarding the defense of another involving the use of non-deadly force. This court agreed, stating, “[w]e do not agree that one punch, even when a death occurs,
{35} Triplett addressed whether the trial court was required to give a self-defense jury instruction regarding the use of non-deadly force where the defendant threw a single punch. It does not stand for the proposition that deadly force is an element of the offense of aggravated assault. To the contrary, the court held that “‘the serious harm’ required for felonious assault does not equal deadly force” and that “‘knowingly’ causing ‘serious harm’ does not automatically equate to ‘deadly force.‘” Triplett at ¶ 14, quoting State v. Pannetti, 8th Dist. Cuyahoga No. 73044, 1998 Ohio App. LEXIS 4123 (Sept. 3, 1998). Accordingly, Triplett does not support Henry‘s contention that proof of the use of “deadly force” was required to sustain his conviction for aggravated assault.
{36} As stated above, the elements of the offense of aggravated assault under
{37} The deficiency about which Henry complains both with respect to his “deadly force” argument and his broader claim that his conviction should be overturned because the trial court‘s finding of serious provocation was not based on sufficient evidence and was against the manifest weight of the evidence is not the absence of evidence (or the absence of credible evidence) of a necessary element of the offense of aggravated assault upon which the state has the burden of proof, but rather, the absence of evidence of a mitigating circumstance upon which he has the burden of proof. Because serious provocation is a component of the mitigating circumstances rather than an element of the offense, there was no obligation on the part of the state to prove serious provocation in order to obtain a conviction for aggravated assault. See State v. Hayes, 11th Dist. Ashtabula No. 97-A-0667, 1999 Ohio App. LEXIS 4645, *12 (Sept. 30, 1999) (“[T]he mitigating language contained in the aggravated assault statute does not constitute an element of the crime for which the burden of proof is ever placed upon the prosecution * * *.“); Rhodes at 617, 620, fn. 2.
{38} Even if, as Henry has argued, there was insufficient evidence (or insufficient credible evidence) to support a finding that Henry acted under the influence of a sudden
Serious Physical Harm
{39} In his third assignment of error, Henry contends that his aggravated assault conviction should be overturned because there is no evidence that Gatto suffered “serious physical harm.”3
(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 suffering or that involves any degree of prolonged or intractable pain.
{40} “Physical harm to persons” means “any injury, illness, or other physiological impairment, regardless of its gravity or duration.”
{41} In considering whether the record supports the trial court‘s finding that Gatto sustained “serious physical harm,” we are mindful of the fact that this court has “historically applie[d] a liberal interpretation of ‘serious physical harm to persons.‘” State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068, ¶ 20. This court has held that, in general, a trial court does not err in finding serious physical harm where the evidence demonstrates that the victim sustained injuries necessitating medical treatment. Id.; see also Miller at ¶ 18 (“when a victim‘s injuries are serious enough to cause the victim to seek medical treatment, it may be reasonably inferred that the force exerted on the victim caused serious physical harm“), quoting State v. Melendez, 8th Dist. Cuyahoga No. 97175, 2012-Ohio-2385, ¶ 14; State v. Littlejohn, 8th Dist. Cuyahoga No. 95380, 2011-Ohio-2035, ¶ 21 (citing cases). However, this court has also stated that the fact that a victim seeks medical treatment does not alone “substantiate[] an inference that the victim suffered serious physical harm” and that although “[t]he inference derived from a victim seeking medical treatment is a proper factor to consider,” it is “not a dispositive one.” State v. Clopton, 8th Dist. Cuyahoga No. 95297, 2011-Ohio-2392, ¶ 14-16. For
{42} We are also mindful that “[t]his court has consistently held that the need for stitches constitutes serious physical harm for purposes of a felonious assault conviction.” State v. Studgions, 8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10; see also State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 19 (observing that “[t]his court has repeatedly held that the element of serious physical harm is satisfied when the evidence shows that the victim sustained injuries requiring medical treatment, including stitches“). However, in most cases, it appears that it was not simply the fact that the victim received stitches that led the court to conclude that the victim sustained “serious physical harm” within the meaning of
{43} In this case, there was no evidence that Gatto sustained any mental illness, was hospitalized or sustained any physical harm that carried a substantial risk of death.
{44} The photographs taken by Officer Schonberger at the hospital show Gatto with a bloodied, swollen upper lip that appears to be cut in two places. Gatto testified that he was in “excruciating pain” when he arrived at the hospital and the medical records reflect that Gatto told the hospital staff that his pain level was six out of ten at that time. Gatto testified that, as result of Henry‘s punch, his front teeth were “bent in,” that he received 30 stitches and that he saw the “medical surgeon” “about five times” and his
{45} Henry‘s manifest weight challenge is based on the same arguments and evidence (or lack thereof) as his sufficiency challenge i.e., the absence of medical evidence corroborating Gatto‘s testimony regarding the severity of his injuries and the treatment he received, the lack of evidence of any permanent scarring and criticisms regarding inconsistencies in, and the lack of credibility of, Gatto‘s testimony.
{46} The severity of Gatto‘s injury is unclear based on the photographs alone. Although Gatto claimed to have needed 30 stitches in and around his lip to repair the injury, there is no reference to Gatto having received any stitches in the medical records. Rather, the notes from the attending emergency room physician regarding the course of treatment for Gatto‘s injury, simply state, in relevant part:
Because of the complexity of the repair I recommended plastic surgery. I spoke with Dr. Ulvi who stated after office hours he would come over to assess the laceration and repair. * * * Dr. Ulvi graciously came in and repaired the patient‘s laceration.
{47} Gatto testified that as a result of the punch he received from Henry his two front teeth were also “bent in“; however, there are no photographs of any damage to Gatto‘s teeth and no testimony or other evidence in the record explaining what Gatto
{48} Likewise, although Gatto claimed to have seen the “medical surgeon” “about five times” and his family dentist twice for the injuries he sustained, there are no medical records documenting any of this alleged follow-up treatment and, other than Gatto‘s testimony that a “plastic surgeon” removed his stitches, no evidence as to what this alleged treatment entailed or when it occurred. The record contains only Gatto‘s medical records from the emergency room at Marymount Hospital. None of Gatto‘s medical providers testified.
{49} Based on our review of the record in this case, we acknowledge that there are a number of credibility issues with Gatto‘s testimony. For example, Gatto‘s version of the events — i.e., that Henry, without any provocation, threw the first and only punch as soon as Gatto left his property – certainly strains credulity. It makes little sense that Henry would have had no physical contact with Gatto as he “escorted” him off his property and then, only after Gatto assured Henry that he wanted “nothing” more to do with Bret and was in the street “try[ing] to get in[to] [his] car,” that Henry “out of nowhere” struck Gatto in the mouth.
{50} However, a defendant is not entitled to reversal on manifest weight grounds merely because certain aspects of a witness‘s testimony are not credible or were inconsistent or contradictory. See, e.g., State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11. The decision whether, and to what extent, to believe the testimony of a particular witness is “within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 54. It was, therefore, within the province of the trial court, as the trier of fact, to believe Gatto‘s testimony regarding the severity of his injuries and to find that he sustained serious physical harm as a result of Henry‘s actions. It is not our role to substitute our judgment for that of the trial judge.
{51} After a careful review of the record in its entirety, weighing the strength and credibility of the evidence presented and the inferences to be reasonably drawn therefrom, we cannot say that this is one of those “exceptional cases” in which the trial court clearly lost its way and created such a manifest miscarriage of justice that Henry‘s conviction for aggravated assault was against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. Accordingly, Henry‘s third assignment of error is overruled, and we affirm his conviction.
{52} Judgment affirmed.
It is ordered that appellee recover from appellant the 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.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR
Notes
you comin or not
Yes I am. Do you have my money
yea i got it.
I‘m here
come to the front
Here
Come to the door
Although Gatto claimed to have had other text message communications with Bret, he testified that these were the only text messages they exchanged that day and that he “deleted [Bret‘s] number and any text messages after or before this incident.”