State v. Huston, Ca2006-05-021 (8-13-2007)State v. Huston, Ca2006-05-021 (8-13-2007)
- Reporters:
- ,
- Before:
- Bressler, Powell
{¶ 2} Appellant was indicted in August 2005 on one count of complicity to felonious assault. The charge stemmed from allegations that in the early hours of February 5, 2005, appellant helped his wife Christine Huston (“Christie“) assault Donald Majors (“Donald“) with
{¶ 3} Assignment of Error No. 2:
{¶ 4} “THE COURT ERRED IN OVERRULING A [CRIM.R. 29(A)] MOTION MADE AT THE CLOSE OF THE STATE‘S CASE.”
{¶ 5}
{¶ 6} Appellant was convicted of complicity to felonious assault, in violation of R.C.
{¶ 7} Donald testified that he met Christie at the RendezVous Room, a bar in Washington Court House, on February 4, 2005. They later went to the Country Connection, another local bar. They left that bar around 1:30 or 2:00 in the morning; Christie was driving. Instead of going to Donald‘s house as planned, Christie pulled over in a parking lot near the city swimming pool and parked. Soon after, another vehicle pulled in the parking lot and up to Christie‘s car, blocking Donald‘s passenger door. Unable to leave through that door, Donald climbed over Christie to exit the car. Once out of the car, he saw appellant come running around the car, telling Christie “to do it, do it now.” Donald testified that he was then struck several times with what he believed to be a baseball bat by both appellant and Christie. During the assault, he heard appellant tell Christie “to hit him, get him now.”
{¶ 8} After appellant and Christie drove off, Donald went to some friends’ house, Sarah and Gordon Kratzer, that was close by. Donald told them that he had just been assaulted by appellant and Christie. Donald refused to go to the hospital but eventually relented after they all agreed he would make up a story as to what had happened to him (to wit, he had slipped and fell on the ice and hit his head on the concrete ground). At the hospital, at the prompting of the Kratzers, Donald eventually told the hospital personnel the truth. Donald testified it took him about three weeks before he could go back to a normal routine at work. On cross-examination, Donald admitted that although he was on probation at the time, he went to the foregoing bars where he drank alcohol, and that he was “drunk pretty good” that night.
{¶ 9} Donald also testified about two other incidents involving appellant. The first incident involved appellant leaving a message on Jesse Wheaton‘s cell phone in early 2005, asking Wheaton to tell Donald he “was a pussy, pussy, pussy.” Wheaton played the message for Donald. Wheaton, Donald, and appellant at one time worked together for the same company. The other incident took place in the late summer of 2005 at the Chillicothe Biker Rodeo. Donald testified that the second time he and his friend Anthony Adkins walked by appellant‘s campsite, appellant, holding a ball bat, said: “I thought I killed you, you S.O.B.”
{¶ 10} In addition to Donald‘s testimony, the state presented the testimony of Jesse Wheaton, Anthony Adkins, Sarah and Gordon Kratzer, Dr. Robert Richter, and three Washington Court House police officers. Wheaton testified that in early 2005, appellant left a voice mail on his cell phone stating: “Jesse this is Todd Huston. Tell Donnie he‘s a pussy. * * * I challenged him the other night and he wouldn‘t fight me. [W]e can still be buds * * * just tell Donnie he‘s a pussy, pussy, pussy, pussy.” Wheaton played the message for several people, including Donald. Appellant “didn‘t sound like he was upset, didn‘t sound like he was joking around[.]”
{¶ 11} Anthony Adkins and Donald went to the Chillicothe Biker Rodeo in the summer of 2005. Adkins testified they were walking around when they came upon appellant‘s campsite. Once appellant and Donald recognized one another, “[appellant] jumped up and went to the back of his van and grabbed a baseball bat and he looked at him and he said I thought I killed you, you S.O.B. and Donnie said no I‘m here and he said well if I didn‘t succeed the first time I will this time, and at that time I was trying to watch my back and keep Donnie away from him[.]” The police were notified and appellant and Donald were both ejected from the rodeo.
{¶ 12} Sarah and Gordon Kratzer testified they were awakened on February 5, 2005
{¶ 13} Appellant was related by marriage to the Kratzers; Christie was their niece. Sarah admitted she did not like appellant. Gordon testified that he went to the scene of the assault to help Donald find his hat and cell phone. There, next to Donald‘s hat, Gordon observed a six-inch puddle of what he assumed was blood.
{¶ 14} Dr. Robert Richter, an emergency room physician, treated Donald on February 5, 2005 around 3:00 a.m. Donald had a “four inches long gaping, wide” laceration on the back of his head as well as some contusions and a small laceration over the left hip area. Dr. Richter testified that Donald first told him the concocted story but eventually told him the truth about his injuries at the insistence of family members. Dr. Richter also testified that Donald‘s head laceration was not consistent with a fall. Rather, the laceration “looked more like a laceration from a blunt object.”
{¶ 15} The Washington Court House police officers involved in the investigation of the
{¶ 16} Upon reviewing all of the foregoing evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could find that the elements of the offense were proved beyond a reasonable doubt, that is, that appellant knowingly aided or abetted Christie in the felonious assault of Donald. We therefore find that appellant‘s conviction for complicity to felonious assault was supported by sufficient evidence. Appellant‘s second assignment of error is overruled.
{¶ 17} Assignment of Error No. 1:
{¶ 18} “THE DECISION OF THE COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE JURY‘S VERDICT WAS INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTED AT TRIAL.”
{¶ 19} Appellant argues that in light of the fact that (1) the only witness to the alleged assault was Donald, (2) because Donald was “drunk pretty good” during the assault, his testimony was not credible, and (3) appellant presented testimony he was not involved with the assault because he was playing cards in a different city, the jury clearly lost its way and created a miscarriage of justice when it found him guilty as charged.
{¶ 20} A challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 1997-Ohio-52. When reviewing whether a conviction is against the manifest weight of the evidence, an appellate 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. An appellate court should vacate a conviction and grant a new trial only when the evidence weighs heavily against the conviction. Id. at 387. An appellate court will not reverse a judgment as against the manifest weight of the evidence in a jury trial unless it unanimously disagrees with the jury‘s resolution of any conflicting testimony. Id. at 389. When reviewing the evidence, an appellate court must be mindful that the original trier of fact was in the best position to judge the credibility of witnesses and the weight to be given the evidence. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶ 21} Following the close of the state‘s case and the denial of his
{¶ 22} Price also testified that (1) during the card game which ended in the early hours of February 5, 2005, he drank about a 12-pack of beer; (2) if he is in a rush, he can drive the distance between Waverly and Washington Court House (the city where the assault took
{¶ 23} Appellant testified on his own behalf. Appellant denied any involvement in the assault incident, denied giving a bat to Christie, and denied being at the scene of the assault. Appellant testified that (1) in the early morning hours of February 5, 2005, he was playing cards in Waverly; (2) they played cards that morning until about 2:30 a.m.; (3) he was back in Chillicothe, Ohio at about 3 a.m.; and (4) he remembered that card game because later that day, Christie‘s car was searched by the police. Appellant denied leaving the “pussy” voice mail on Wheaton‘s cell phone. With regard to the rodeo, appellant testified that he was threatened by Donald and Donald‘s friend and that he stepped behind his couch to get away from Donald. Appellant testified he had a walking cane in his hand, not a bat.
{¶ 24} After a careful review of the record, we cannot conclude that the jury lost its way and committed a manifest miscarriage of justice in convicting appellant of complicity to felonious assault. Although appellant denied any involvement in the assault or that he was in Washington Court House at the time of the assault, and presented testimony he was playing cards with friends in Waverly, we refuse to overturn the verdict because the jury did not believe the testimony presented on appellant‘s behalf. “[W]hen conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.” State v. White, Butler App. No. CA2003-09-240, 2004-Ohio-3914, ¶ 28. Appellant‘s conviction for complicity to felonious assault is not against the manifest weight of the evidence. Appellant‘s first assignment of
{¶ 25} Assignment of Error No. 3:
{¶ 26} “THE COURT ERRED BY OVERRULING DEFENDANT‘S OBJECTION AND ADMITTING INTO EVIDENCE A STATEMENT OF THE DECEASED CO-DEFENDANT CONTRARY TO EVIDENCE RULE.”
{¶ 27} Several hours after the assault incident, Christie provided a written statement to the police. The statement is short and states that after briefly staying at the RendezVous Room with Donald, the two of them went to the Country Connection where they stayed until about 2 a.m. on February 5, 2005; they then drove to the pool parking lot where they had an argument; Donald got out of her car and she drove back home where she arrived at about 2:30 a.m. Christie died in a car accident in March 2006 before appellant‘s trial. At trial, the parties stipulated to her obituary as evidence of her death.
{¶ 28} At trial, the state sought to admit her statement under
{¶ 29}
{¶ 30}
{¶ 31} Judgment affirmed.
BRESSLER and POWELL, JJ., concur.