State v. JonesState v. Jones
Daniel H. Grna, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, which found appellant guilty of one count of felonious assault and sentenced him to seven years imprisonment. For the reasons set forth below, the judgment of the trial court is affirmed.
{¶ 3} On April 30, 2007, appellant was indicted for rape, kidnapping and felonious assault. Appellant entered pleas of not guilty and the matter was set for trial. For reasons unrelated to this appeal, this case came to trial two times and both times a mistrial was declared. A third trial commenced on October 24, 2007. At the conclusion of the trial, the jury found appellant not guilty of the charges of rape and kidnapping and guilty of felonious assault. Appellant was subsequently sentenced to seven years imprisonment.
{¶ 4} Appellant sets forth the following assignments of error:
{¶ 5} “Assignment of Error Number One
{¶ 6} “Insufficient evidence was presented at trial by the State of Ohio to convict the appellant of felonious assault.
{¶ 7} “Assignment of Error Number Two
{¶ 9} “Argument Three
{¶ 10} “The trial court erred when it denied the appellant‘s motion for a directed verdict of acquittal.
{¶ 11} “Argument Four
{¶ 12} “The trial court committed plаin error when it failed to instruct the jury on the lesser included offense of assault and also when it failed to provide the jury with a definition of the word disfigurement in its instructions.
{¶ 13} “Argument Five
{¶ 14} “The appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution as well as under Section 10, Article I, of the Ohio Constitution.”
{¶ 15} In his first assignment of error, appellant asserts that his conviction for felonious assault was not supported by sufficient evidence. As his second assignment of error, appellant asserts that his conviction was against the manifest wеight of the evidence. These arguments will be considered together as both can be resolved by examining the evidence presented at trial.
{¶ 16} “Sufficiency” of the evidence is a question of law as to whether the evidence is legally adequate to support a jury verdict as to all еlements of the crime. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. When reviewing the sufficiency of
{¶ 17} In contrast, a manifest weight challenge questions whether the state has met its burden of persuasion. Thompkins at 387. In making this determination, the court of appeals sits as a “thirteenth juror” and, after “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.” Thompkins, supra, at 387, citing State v. Martin (1983), 20 Ohio App.3d 172.
{¶ 18} Appellant was convicted of felonious assault in violation of
{¶ 19} Pursuant to
{¶ 21} “(b) Any physical harm that carries a substantial risk of death;
{¶ 22} “(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
{¶ 23} “(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
{¶ 24} “(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.”
{¶ 25} In support of his first and sеcond assignments of error, appellant cites a decision from this court in which the defendant‘s conviction for felonious assault was reversed. In the Matter of Delayn K. (Dec. 15, 2000), 6th Dist. No. H-00-029. Appellant argues that in Delayn K., we found as a matter of law that serious physical harm cannot be found if stitches are not needed to treat a victim‘s wound and no medicаl evidence is presented regarding the injury. However, contrary to appellant‘s argument herein, this court made no such finding in that case. Our decision in Delayn K. that there was no serious physical harm was based on the evidence in the record of that case and our conclusion that the wound on the victim‘s neck appeared to be “more of a scratch or scrape, than a ‘slash‘.”
{¶ 26} More recently, in determining whether the state proved the “serious physical harm” element, Ohio appellate courts have held that “[w]here injuries are serious
{¶ 27} At trial, the victim testified that she was taken to the hospital for treatment. The hospital records admitted into evidence indicate that the victim suffered “two parallel lacerations” on the left side of her neck. Photographs taken at the hospital and admitted into evidence show the victim‘s bleeding wound. One of the nurses who cared for the victim at the hospital testified that the treating physician cleaned thе lacerations, pulled the edges of the wound together, applied Dermabond glue to pull the edges together, and then applied adhesive strips across the wound to close it so that it would heal without leaving too much of a scar. At trial, ten months after the attack, the victim indicated that the cut on her neck had left a scar.
{¶ 28} This court has thoroughly considered the entire record of proceedings in the trial court and the testimony as summarized above and finds that the state presented sufficient evidence from which, when viewed in a light most favorable to the state, а rational trier of fact could have found that the force exerted against the victim caused serious physical harm and that appellant was guilty beyond a reasonable doubt of felonious assault in violation of
{¶ 30} Accordingly, we find that appellant‘s first and second assignments of error are not well-taken.
{¶ 31} In his third assignment of error, appellant asserts that the trial court erred when it denied his motion for a directed verdict of acquittal pursuant to
{¶ 32} An appellate сourt reviews a trial court‘s decision on a
{¶ 34} The record reflects that counsel did not request an instruction on the lesser included offense of assault and did not object to the instructions given to the jury.
{¶ 35}
{¶ 36} “On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdiсt, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.”
{¶ 37} It is well-settled that, absent plain error, failure to object to a jury instruction, as required by
{¶ 39} In State v. Clayton, the Ohio Supreme Court considered the issue of whether the trial court committed plain error when it failed to instruct the jury on lesser included offenses to attempted murder. In that case, counsel specifically requested that therе be no instructions on lesser included offenses. The court in Clayton considered the decision not to request instructions on lesser included offenses a matter of trial strategy, designed to secure a complete acquittal rather than invite conviction for a lesser included offense. Id. at 46.
{¶ 40} The Supreme Court concluded in Clayton: “Counsel‘s decision to limit the instruction to attempted murder and his client‘s subsequent conviction do not amount to a manifest miscarriage of justice and are not plain error.” Id. at 47-48.
{¶ 41} As this court noted in State v. White, supra, at ¶ 55, “[d]ecisions following Clayton have precluded defendants from avoiding the consequences of unsuccessful tactical decisions at trial by arguing that failure to instruct on lesser included offenses constitutes plain error.”
{¶ 42} We find that appellant made a tactical choice not to request a jury instruction on lesser included offenses in an effort to secure a total acquittal based upon his argument that he did not commit the offensе. Under State v. Clayton, we conclude
{¶ 43} Appellant also argues that the trial court‘s failure to provide the jury with a definition of “disfigurement” as used in
{¶ 44} Basеd on the foregoing, we find appellant‘s fourth assignment of error not well-taken.
{¶ 45} In his fifth assignment of error, appellant asserts that he was denied effective assistance of counsel. Appellant asserts that trial counsel was ineffective on two grounds: first, because he did not ask the court to instruct the jury on the definition of “disfigurement,” and secondly, because he did not argue in closing that there was a lack of evidence that the victim suffered serious physical harm.
{¶ 46} To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied upon as having produced a just result. The standard requires appellant to satisfy a two-prong test. First, appellant must show that counsel‘s representation fell below an objective standard of reasonableness. Second,
{¶ 47} Appellant‘s sole argument in support of his claim that trial counsel should have requested an instruction on the definition of “disfigurement” is that the outcome of the case would have been different had the jury been given such an instruction. Hоwever, based on our findings under appellant‘s first and second assignments of error as to the sufficiency and weight of the evidence, we find this argument to be without merit.
{¶ 48} As to appellant‘s second argument, “opening and closing statements fall under the rubric of ‘trial strategy.‘” State v. Robinson, 6th Dist. No. L-06-1182, 2008-Ohio-3498, at ¶ 245, quoting State v. Baker, 7th Dist. No. 03 CO 24, 2003-Ohio-7008, ¶ 14, 18. Further, “[a] reviewing court must refrain frоm second-guessing trial strategy decisions.” Robinson, supra, at ¶ 245.
{¶ 49} Accordingly, we find that appellant has not demonstrated ineffective assistance of counsel and, accordingly, his fifth assignment of error is not well-taken.
{¶ 50} On consideration whereof, we find that appellant was not prejudiced and the judgment of the Luсas County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to
JUDGMENT AFFIRMED.
Peter M. Handwork, P.J. JUDGE
Arlene Singer, J. JUDGE
Thomas J. Osowik, J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.