STATE OF OHIO, PLAINTIFF-APPELLEE vs. CODY KOBALLA, DEFENDANT-APPELLANT
No. 100664
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 21, 2014
2014-Ohio-3592
BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-574524-A
Britta M. Barthol
P.O. Box 218
Northfield, OH 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Marcus A. Henry
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Cody Koballa, appeals from a judgment of the Cuyahoga County Court of Common Pleas that convicted him of assaulting a firefighter. On appeal, he claims he should not be found guilty of assault because he was highly intoxicated at the time of the incident. After a careful review of the record and applicable law, we find no merit to the appeal and affirm the trial court‘s judgment.
Testimony at Trial
{¶2} After a night of drinking, Koballa became highly intoxicated. His girlfriend was concerned and called 911. When the emergency crew attempted to transport him to the hospital, he punched one of the firefighters. He was charged with assault, and because the victim was a firefighter, his offense was elevated to a fourth-degree felony pursuant to
{¶3} At trial, the state presented testimony from four witnesses: a paramedic from the Cleveland Emergency Medical Services (“EMS“) and four firefighters from the Cleveland Fire Department (“CFD“). The defense called Koballa‘s girlfriend, his aunt, and the emergency room doctor who treated Koballa. Koballa also testified on his own behalf. The witnesses testified to the following events on the night of the incident.
{¶4} On the evening of November 10, 2012, Koballa, his girlfriend, and his aunt went to a club together. After the club closed at 4:00 a.m., they went to the aunt‘s house and met up with his aunt‘s brother and her boyfriend, and two of Koballa‘s friends. The
{¶5} While lying in the hallway asleep, Koballa appeared to stop breathing periodically. His girlfriend became concerned and called her sister, a nurse, who advised her to call 911. Koballa‘s girlfriend told the 911 operator that she thought Koballa had alcohol poisoning.
{¶6} Shortly after 7:00 a.m., members of the EMS and CFD arrived to find Koballa passed out on the floor with compromised breathing. Koballa‘s girlfriend told them that Koballa had been drinking and may have taken Vicodin for a collar bone injury he had sustained several weeks ago, and that she was concerned about the effect of the drug and alcohol. The EMS and CFD crew rolled Koballa over to straighten out his neck. His breathing significantly improved, and he woke up.
{¶7} Koballa then sat up, but was clearly intoxicated. Paramedic Jefferies described him as “aggressive, upset, and mumbling.” When he first approached Koballa and said “how are you,” Koballa swung at him, hitting the back of his hand. Out of caution, Jefferies called the police immediately.
{¶9} Once the chair arrived, the EMS and CFD crew carried Koballa to the chair to strap him in. He alternated between being loud and uncooperative to quiet and calm. When the crew were getting ready to strap him to the chair, he began to swear and spit at them, unhappy with their presence in the house. To protect the crew‘s faces, one of the them left to obtain a “spit sock” — a nylon mesh with a draw string — to place over Koballa‘s head.
{¶10} Before the “spit sock” arrived, several EMS and CFD workers began to strap him to the chair. Firefighter Mark Duhigg was kneeling in front of Koballa to secure his foot in the foot step of the chair, when, all of a sudden Koballa punched him in the face. The punch was hard enough that Duhigg‘s head snapped back. Firefighter Nielipinski, who was behind the chair, described the punch as close-fisted and “purposeful.”
{¶11} After Duhigg‘s head snapped back, paramedic Jefferies grabbed Koballa‘s right arm. Koballa swung again with his left arm at Duhigg, but it was blocked by Duhigg, who then hit Koballa in the face. Firefighter Heineke then grabbed Koballa‘s
{¶12} Dr. Haddad treated him in the emergency room but did not recall much about the event. The doctor‘s emergency room report indicated Koballa was unconscious when being examined, due to alcohol consumption.
{¶13} Firefighter Duhigg initially testified he went to the emergency room the next day to seek medical attention. He later corrected himself and stated that he had gone to a chiropractor‘s office instead of the emergency room, and that he actually sought medical attention several days after the incident, not the next day.
{¶14} Koballa himself testified he did not recall much from the evening. He remembered going with his girlfriend and a few others to his aunt‘s house. He took two shots from a bottle of Three Olives Vodka, and the next thing he remembered was waking up in the hospital. He also testified that two weeks before the incident, he was treated for a broken collar bone, which he incurred while “wrestling” with someone. He was given pain medication and a sling to wear. He remembered he had the sling on that night, but did not remember what happened to it, nor did he remember whether he had taken the pain medication.
{¶15} After trial, the jury found Koballa guilty of assault. The trial court sentenced him to six months of incarceration for his fourth-degree felony offense. On
Standard of Review for Sufficiency and Manifest Weight of Evidence
{¶16} When assessing a challenge of sufficiency of the evidence, a reviewing court examines the evidence admitted at trial and determines whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is 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.” Id. A reviewing court is not to assess “whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶17} Unlike sufficiency of the evidence, manifest weight of the evidence raises a factual issue.
“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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “[T]he weight to be given the evidence and the credibility of the
Mens Rea and Actus Reus
{¶18} Criminal liability is based upon the concurrence of two factors, “an evil-meaning mind” and an “evil-doing hand.” United States v. Bailey, 444 U.S. 394, 402-410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). In other words, a criminal act contains a “mens rea” and an “actus reus.” The Ohio Revised Code embodies these concepts in
(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:
(1) The person‘s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;
(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.
{¶19} Pursuant to the statute, the two essential ingredients of a crime are a voluntary physical act and a culpable mental state. Paragraph (D)(2) of the statute
{¶20} Here, Koballa was convicted of assault.
Whether Voluntary Intoxication Negates A Culpable Mental State
{¶21} As a general principle, self-induced intoxication would not be a defense to any crime. However, an exception to the principle had been developed in the case law: where a “specific intent” was an essential element of the crime charged, a defendant could introduce evidence of voluntary intoxication to show the act was done without the requisite intent. State v. Fox, 68 Ohio St.2d 53, 428 N.E.2d 410 (1981). Thus, under the case law, voluntary intoxication may be available as an affirmative defense, depending on whether the crime charged was a “specific intent” crime or a “general intent” crime. Voluntary intoxication was a defense for a “specific intent” crime, but not a “general intent” crime.
{¶23} In 2000, the General Assembly resolved any doubt about whether voluntary intoxication could negate a culpable state of mind by amending
{¶25} In State Milton, 8th Dist. Cuyahoga No. 97245, 2012-Ohio-2386, the appellant was convicted of assaulting a police officer, and he claimed his (self-induced) intoxication prevented him from forming the “knowing” state of mind necessary to have committed the crime of assault. This court held that under the amended
Whether Defendant‘s Act was Involuntary Precluding Conviction of Assault
{¶27} Koballa argues that his act of punching the firefighter was an involuntary act because he was in a state of alcohol-induced unconsciousness during the incident. He presents this claim both as a sufficiency challenge (under the first assignment of error) and a manifest-weight challenge (under the second assignment of error). We first clarify whether these challenges are properly raised.
{¶28} As stated earlier, in reviewing a claim that the evidence is not sufficient to sustain a conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A sufficiency review thus addresses “the sufficiency of the state‘s evidence, not the strength of defense evidence.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 38. Therefore, Koballa‘s claim that he should not have been convicted of assault because his intoxication rose to the level of unconsciousness precluding him from acting voluntarily is a manifest-weight issue, not a sufficiency issue.
{¶30} Appropriately, the trial court here instructed the jury on involuntary acts, stating that an act is not a criminal offense “where a person commits an act while unconscious as in a blackout convulsion due to sleep or injury” — a definition substantially similar to
{¶31} The first and second assignments of error are without merit, and the judgment of the Cuyahoga County Court of Common Pleas is affirmed.
It is ordered that appellee recover of appellant 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR