State of Ohio, Plaintiff-Appellee, v. Mark A. Hill, Defendant-Appellant.
No. 19AP-711
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 21, 2021
[Cite as State v. Hill, 2021-Ohio-132.]
BEATTY BLUNT, J.
(REGULAR CALENDAR)
Rendered on January 21, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and Kimberly M. Bond, for appellee.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{1} Defendant-appellant, Mark A. Hill, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury verdict finding him guilty of felonious assault, a second-degree felony, and a trial court verdict finding him guilty of a repeat-violent-offender specification on the felonious assault conviction. For the following reasons, we affirm.
I. Facts and Procedural History
{2} On October 18, 2018, appellant was indicted on one count of aggravated burglary, in violation of
{3} On August 20, 2019, a jury trial commenced. At trial, the following evidence was adduced. In 2016, appellant Mark A. Hill began dating Brittany Hamm (“Ms. Hamm“), a woman who had been struggling with heroin addiction since 2013. (Aug. 20, 2019 Tr. Vol. I at 41, 57.) Ms. Hamm‘s grandmother, Rita Hamm (“Mrs. Hamm“), knew appellant through his association with Ms. Hamm and, for a brief period of time, Mrs. Hamm allowed appellant to live in her home. (Tr. Vol. I at 57, 59.)
{4} In August 2016, after appellant had moved out, Mrs. Hamm permitted Martie Jacobs (“Jacobs“), a long-time family friend and the victim in this case, to move into her home. (Tr. Vol. I at 35-37; Aug. 21, 2019 Vol. II at 7, 11.) Jacobs lived in the front bedroom of the home. (Tr. Vol. I at 40; Tr. Vol. II at 13-14.) Jacobs suffered from severe arthritis and degenerative disc disease stemming from a back injury he had sustained when he was younger. (Tr. Vol. II at 5, 9.) Due to his physical impairments, Jacobs had stopped working in 2011 or 2012. (Tr. Vol. II at 9.) At trial, Mrs. Hamm testified that Jacobs, then 53 years old, was frail due to his physical disabilities. (Tr. Vol. I at 51.) Mrs. Hamm and Jacobs both testified that Jacobs did odd jobs for Mrs. Hamm and he contributed to buying groceries by using his food stamps. (Tr. Vol. I at 38; Tr. Vol. II at 12.)
{5} Mrs. Hamm permitted Ms. Hamm to come to her home despite that Ms. Hamm would lie to her and had stolen her property. (Tr. Vol. I at 42-43.) On August 25, 2018, Ms. Hamm went to Mrs. Hamm‘s home to shower and get something to eat. (Tr. Vol. I at 44.) While Ms. Hamm was in the garage smoking a cigarette and talking on her phone, Mrs. Hamm heard her yell that Jacobs had hit her in the face. (Tr. Vol. I at 46.) Ms. Hamm was crying. Id. Neither Mrs. Hamm nor Ms. Hamm called the police, and Mrs. Hamm testified that Ms. Hamm did not have any noticeable injuries. (Tr. Vol. I at 46-47, 48, 52.)
{6} Earlier that afternoon, Jacobs had been at a neighbor‘s house drinking and watching pre-season football, and he testified that he had been drinking and was drunk.
{7} Jacobs testified that after he had finished his cigarette, he came inside, saw Ms. Hamm, who was in the kitchen, and confronted her about her behavior from two days earlier involving her bringing a man into the home. (Tr. Vol. II at 22-23.) He told her that if she did not stop this type of behavior, he was going to call the police. (Tr. Vol. II at 23.) In response, Ms. Hamm picked up a knife that had been laying on the table and threatened to kill or stab him. Id. Jacobs grabbed her hand, took the knife from her, “threw her into the living room on the floor,” and “fell down on top of her.” (Tr. Vol. II at 23-24.)
{8} Both Mrs. Hamm and Jacobs testified that at this point, Mrs. Hamm intervened in the altercation and pushed Jacobs off Ms. Hamm. (Tr. Vol. I at 49; Tr. Vol. II at 24.) Mrs. Hamm testified that although she did not see a knife during the altercation, she saw a knife on the living room floor. (Tr. Vol. I at 49-50.) It was a knife she kept in her kitchen. (Tr. Vol. I at 82-83; State‘s Ex. 22.) Jacobs testified the altercation between Ms. Hamm and himself took place in the early evening around 6:00 p.m. (Tr. Vol. II at 24.) Mrs. Hamm testified the altercation occurred around 9:00 p.m. (Tr. Vol. I at 52.) Both Mrs. Hamm and Jacobs testified that after the incident, Jacobs went to his room, shut his door, took his medications and went to bed. (Tr. Vol. I at 51; Tr. Vol. II at 24-25.)
{9} Mrs. Hamm testified that sometime between 10:30 and 11:00 p.m., appellant arrived at the residence. (Tr. Vol. I at 57, 60.) Appellant entered the home from the garage door leading into the kitchen and proceeded straight to Jacobs’ bedroom. (Tr. Vol. I at 60-61.) Appellant had been in Jacobs’ bedroom for five to seven minutes when Ms. Hamm came into the kitchen from the garage and entered Jacobs’ bedroom. (Tr. Vol. I at 61-62.) A few minutes later, both appellant and Ms. Hamm exited Jacobs’ bedroom and went out the front door of the home. (Tr. Vol. I at 62.) Mrs. Hamm did not hear anyone yelling while appellant and Ms. Hamm were in Jacobs’ bedroom. Id.
{11} Mrs. Hamm testified that after appellant and Ms. Hamm had left the house, she saw Jacobs go into the bathroom and soon heard Jacobs yelling for her. (Tr. Vol. I at 65.) She found him lying in a fetal position in the bathroom, with blood all over his face and arms and blood spatter on his pants. (Tr. Vol. I at 65-66.) She also saw blood in the bathroom, in the hallway, and in Jacob‘s bedroom on the runner carpet. (Tr. Vol. I at 67.) Mrs. Hamm further testified the runner was covered in blood and that she put it in the trash can. (Tr. Vol. I at 68.) She called 911 and Jacobs was transported to the hospital. (Tr. Vol. I at 66.)
{12} At the hospital, Jacobs underwent a 12-hour surgery to reconstruct one eye socket and his jaw. (Tr. Vol. II at 32.) He had to undergo rehabilitation to learn to walk and swallow again, and he still had problems walking which he might never recover from. (Tr. Vol. II at 33.) Jacobs also had to undergo 4 follow-up surgeries to address problems with his tear ducts and pain from one of the steel plates used in the reconstruction surgery. (Tr. Vol. II at 34.) He also had to see an eye specialist and a plastic surgeon. Id. As a result of the assault, a portion of the left side of Jacobs’ face is permanently concave. (Tr. Vol. II at 35.)
{13} Appellant testified at trial. According to appellant, at about 10:00 p.m. on August 25, 2018, Ms. Hamm called him to ask him to pick her up at Mrs. Hamm‘s home. (Tr. Vol. II at 90.) While he was driving to the residence, Ms. Hamm contacted him again via a video call. (Tr. Vol. II at 91-92.) Ms. Hamm was crying and hysterical and she told appellant that Jacobs had punched her in the eye. (Tr. Vol. II at 92.) Appellant testified he “could tell where she had been punched.” Id.
{14} According to appellant, when he arrived at the residence, Ms. Hamm was in the garage smoking a cigarette and still crying. (Tr. Vol. II at 93.) After speaking with
{15} In contrast to Jacobs’ testimony describing the assault, appellant testified that it was Jacobs who first took a swing at appellant, but appellant dodged the blow. (Tr. Vol. II at 95-96.) Appellant testified that he was shocked by Jacobs’ actions and “wasn‘t expecting to get into no physical confrontation with him, you know.” (Tr. Vol. II at 95.) Appellant further testified that in response, he hit Jacobs about four times using only his fist and that Jacobs fell back on the bed. (Tr. Vol. II at 96.) Appellant denied having a sledgehammer or any other kind of hammer with him during the incident. (Tr. Vol. II at 90-91.) He further testified that he did not see any blood or pay any attention to Jacobs’ face. (Tr. Vol. II at 96-97.) After reiterating his warning to “[k]eep your fucking hands off my girl,” appellant and Ms. Hamm left. (Tr. Vol. II at 97.) Later that night, appellant took photographs of Ms. Hamm‘s black eye using his phone. (Tr. Vol. II at 98.)
{16} When Columbus Police subsequently investigated the incident, appellant waived his Miranda rights and voluntarily spoke with Detective Kathy Zimmer. (Tr. Vol. I at 119-20.) Appellant showed the police the photographs of Ms. Hamm‘s face he had taken, copies of which were admitted into evidence at trial. (Tr. Vol. I at 121; Tr. Vol. II at 98; Def. Exs. A1-A5.) Appellant also showed the police text messages between himself and Ms. Hamm. (Tr. Vol. II at 98.)
{17} At the close of the state‘s case, outside of the presence of the jury, defense counsel moved for acquittal pursuant to
{18} At the conclusion of the trial, the jury returned a verdict acquitting appellant of aggravated burglary and finding him guilty of felonious assault, a second-degree felony.
{19} This timely appeal followed.
II. Assignments of Error
{20} Appellant asserts the following three assignments of error for our review:
- [I.] The trial court erred when it denied Defendant-Appellant‘s R.29 motion for acquittal.
- [II.] The verdict of felonious assault was against the manifest weight of the evidence.
- [III.] The trial court abused its discretion in allowing the state to present evidence of other acts/crimes/convictions.
III. Discussion
A. First and Second Assignments of Error Motion for Acquittal (Sufficiency of the Evidence) and Manifest Weight of the Evidence
{21} Appellant‘s first two assignments of error are interrelated, and we address them together. In his first assignment of error, appellant argues that the trial court erred when it denied his motion for acquittal. In his second assignment of error, appellant argues that the verdict of felonious assault2 was against the manifest weight of the evidence. We find no merit in either of appellant‘s contentions.
{22}
{24} In contrast, “[w]hile sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief.” Cassell, at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing Thompkins, at 386. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). ” ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). This discretionary authority ” ‘should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id., quoting Martin at 175.
{25} Furthermore, ” ‘[w]hile the jury may take note of inconsistencies and resolve or discount them accordingly, * * * such inconsistences do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence.’ ” State v. Gullick, 10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). “A jury, as the finder of fact and the sole judge of the weight
{26} A conviction is not against the manifest weight of the evidence simply because the jury believed the state‘s version of events over the appellant‘s version. Gullick at ¶ 11, citing State v. Houston, 10th Dist. No. 04AP-875, 2005-Ohio-449, ¶ 38 (reversed and remanded in part on other grounds). Rather, a reviewing court must give great deference to the jury‘s determination of witness credibility. Id., citing State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 19. This is so because the jury ” ’ “is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” ’ ” State v. Huber, 10th Dist. No. 18AP-668, 2019-Ohio-1862, ¶ 32, quoting State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{27} Appellant was convicted on one count of felonious assault, in violation of
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another‘s unborn;
(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.
(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.
{28} In his challenge to the sufficiency of the evidence, appellant argues that the state failed to meet its burden of proving that appellant caused the injuries suffered by Jacobs as required by
{29} Appellant also challenges the testimony of Jacobs as being unreliable due to Jacobs’ admitted intoxication. But the mere fact that Jacobs had been drinking or was intoxicated does not automatically negate his testimony. See State v. Word, 10th Dist. No. 17AP-367, 2019-Ohio-1733, ¶ 40. Furthermore, appellant‘s challenge to the credibility of Jacobs’ testimony goes to the weight of the evidence, not the sufficiency of the evidence. (Citations omitted.) State v. Cervantes, 10th Dist. No. 18AP-505, 2019-Ohio-1373, ¶ 33 “[I]n a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state‘s witnesses testified truthfully and determines if that testimony satisfies each element of the crime.” State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{30} The evidence presented by the state included Jacobs’ testimony that appellant hit him in his face near his left eye with a sledgehammer, that he fell to the ground, and that appellant hit him in the face on the other side with the sledgehammer3 while Jacobs was still on the ground. (Tr. Vol. II at 29-30.) Jacobs also testified regarding his extensive injuries and multiple surgeries, as well as the fact that the left side of his face is permanently concave. (Tr. Vol. II at 32-35.) Jacobs’ medical records, including an x-ray,
{31} Additionally, Mrs. Hamm testified that she saw blood in Jacobs’ bedroom and there was a trail of blood leading into bathroom. (Tr. Vol. I at 67-68, 79.) Mrs. Hamm specifically testified that there was a lot of blood in the bedroom, and that it was all over the carpet runner kept in the front of Jacobs’ bedroom. (Tr. Vol. I at 67, 99.) Mrs. Hamm also testified that she disposed of the runner in the trash because “it was pretty heavy with blood.” (Tr. Vol. I at 96, 99.)
{32} The foregoing evidence, particularly in light of appellant‘s admission that he repeatedly hit Jacobs in the face in Jacobs’ bedroom, is entirely consistent with a jury finding that Jacobs’ injuries were caused by appellant and not by a fall in the bathroom. Construing the evidence in favor of the state, we conclude it was sufficient to allow the jury to infer that appellant knowingly caused physical harm to Jacobs and/or that appellant knowingly caused or attempted to cause serious physical harm to Jacobs by means of a deadly weapon as required by
{33} The manifest weight of the evidence also supports appellant‘s conviction for felonious assault. Although appellant argues that his testimony concerning his claim of self-defense was more believable than the testimony of the state‘s witnesses, the evidence provided the jurors with myriad reasons to find appellant‘s testimony less than credible. First, appellant was the only person who testified that Jacobs swung at him first; there was no corroborating testimony on this point. In contrast, Jacobs was unwavering in his testimony that appellant was the aggressor in the incident. In addition, given the testimony by both Mrs. Hamm and Jacobs set forth previously concerning Jacobs’ physical disabilities and impairment due to his drinking on the date of the incident, the jury could easily have decided appellant‘s claim of self-defense was incredible for those reasons alone.
{34} Furthermore, appellant‘s claim that he only used his fist to hit Jacobs was easily belied by Jacobs’ testimony concerning the extent of Jacobs’ injuries and surgeries, the fact that the jury could plainly see the permanent disfigurement to Jacobs’ face, and the medical records of Jacobs admitted into evidence. Simply put, the jury was not obligated to accept appellant‘s testimony as truthful, and instead was entirely free to resolve the
{35} As set forth above, under a manifest weight of the evidence analysis, although we are able to consider the credibility of the witnesses in conducting our review, ” we are guided by the presumption that the jury * * * ’ is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ ” Cattledge, at ¶ 6, quoting Seasons Coal at 80. In engaging in the limited weighing of the evidence which we are permitted, we cannot say the jury clearly lost its way when it rejected appellant‘s claim of self-defense and found appellant guilty of felonious assault beyond a reasonable doubt. Accordingly, we find that the manifest weight of the evidence supports appellant‘s conviction.
{36} In sum, appellant has failed to demonstrate that the evidence was insufficient or that the jury clearly lost its way and created such a manifest miscarriage of justice that his conviction on the felonious assault count must be reversed and a new trial ordered. Because appellant‘s conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, his first and second assignments of error are overruled.
B. Third Assignment of Error Evidence of Prior Acts/Crimes/Convictions
{37} In his third assignment of error, appellant argues that the trial court abused its discretion in allowing the state to present evidence of his prior conviction of felonious assault. We do not agree.
{38} In general, “the admission or exclusion of evidence lies in the sound discretion of the trial court.” State v. Walker, 10th Dist. No. 17AP-588, 2019-Ohio-1458, ¶ 42, citing State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33, citing State v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-3086, ¶ 24. Because a trial court has broad discretion over the admission or exclusion of evidence, a reviewing court ” ‘will not reverse an evidentiary ruling absent an abuse of discretion that materially prejudices the affected party.’ ” Id. at ¶ 48, quoting State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 41, quoting Darazim at ¶ 16. An abuse of discretion implies that the court‘s attitude
{39} In this case, appellant testified at trial. (Tr. Vol. II at 84-146.) “When an accused testifies at trial,
{40} Pursuant to
{41} We have previously stated when a defendant‘s version of events is contradicted by other witnesses, the defendant‘s credibility is at issue. State v. D.H., 10th Dist. No. 16AP-501, 2018-Ohio-559, ¶ 72. Under such circumstances, it is appropriate for the state to impeach the defendant‘s credibility by introducing testimony regarding prior convictions of the defendant. Id., citing State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 27. Evidence of prior convictions may be introduced under
{42} Here, as discussed previously, appellant asserted he acted in self-defense and he testified to that. He further testified that he used only his fist to strike Jacobs, in contrast to Jacobs’ testimony that appellant hit him with a sledgehammer. Appellant‘s version of the events was contradicted by both Jacobs’ testimony and some of Mrs. Hamm‘s testimony. Therefore, appellant‘s credibility was directly at issue and it was entirely appropriate for the state to use evidence of appellant‘s prior conviction for purposes of impeachment.
{43} Furthermore, as required by
{44} We find no abuse of discretion in the trial court‘s assessment that the probative value of the evidence of appellant‘s prior conviction outweighed the danger of unfair prejudice to him in admitting the evidence. While the evidence was certainly unfavorable to appellant, we do not find its admission into evidence prejudiced appellant
{45} Likewise, it was not error to admit it under
{46} Here, as argued by the state both in the trial court and now, the record supports a finding that it was introducing the evidence of the prior conviction to impeach appellant‘s credibility, not to show appellant‘s propensity to commit similar crimes. (Tr. Vol. II at 136.) In addition, as the trial court aptly observed, there were other reasons supporting the state‘s admission of this evidence under
{47} Furthermore, appellant‘s argument that the evidence of his prior conviction was introduced as improper propensity evidence and resulted in tainting the jury is undermined by the trial court‘s instruction to the jury they may only consider evidence of any witness‘s prior convictions “to the extent they bear on the witness‘s believability or credibility as a witness in this trial.” (Tr. Vol. II at 194.) The jury is presumed to have followed the trial court‘s instruction. State v. Brown, 10th Dist. No. 15AP-935, 2016-Ohio-7944, ¶ 18, citing State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-4762, ¶ 53, citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 39. In light of the instruction given, we find the trial court did not abuse its discretion in allowing the evidence of appellant‘s prior conviction.
{48} Moreover, even if the trial court erred in admitting the evidence of appellant‘s prior conviction, we find any such error to be harmless. As we have previously observed, “an improper evidentiary admission under
{49} In sum, we find the trial court did not err when it permitted the state to introduce evidence of appellant‘s prior conviction of felonious assault for purposes of impeaching the credibility of appellant, and that even if there was any error, it was harmless. Accordingly, appellant‘s third assignment of error is overruled.
IV. Disposition
{50} Having overruled appellant‘s first, second, and third assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, PJ. and SADLER, J., concur.