STATE OF OHIO, PLAINTIFF-APPELLEE vs. ANGELA M. LYNCH, DEFENDANT-APPELLANT
No. 95770
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 23, 2011
2011-Ohio-3062
BEFORE: E. Gallagher, J., Sweeney, P.J., and Rocco, J.
Criminal Appeal from the Cleveland Heights Municipal Court Case No. CRB 0901993
75 Public Square
Suite 1111
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Kim T. Segebarth
City Prosecutor
City of Cleveland Heights
40 Severance Circle
Cleveland Hts., Ohio 44118
EILEEN A. GALLAGHER, J.:
{¶ 1} Angela M. Lynch appeals her conviction entered in the Cleveland Heights Municipal Court. Lynch argues the trial court erred when it provided a lesser included offense instruction to the jury, and when it failed to charge the jury on sеlf-defense and mutual combat. For the following reasons, we affirm the judgment of the trial court.
{¶ 2} On September 15, 2009, Lynch attended an emergency sports meeting at Lutheran East High School for her son, J.L. At that time, J.L. lived with his father, James Hudson-Bey and his live-in girlfriend, Rosalyn Stewart. J.L. attended Lutheran East High School and was a member of
{¶ 3} Unbeknownst to J.L., Lynch arrived at the high school to attend the meeting. She sat near Stewart and the two women immediately engaged in a verbal confrontation. Lynch and Stewart sat through the remainder of the meeting without further incident, but then continued their confrontation as they, along with J.L., left the schoоl. Stewart was walking ahead of Lynch and J.L. when Lynch began yelling at her. Stewart responded and as the women exited the double set of doors that led to a parking area, Lynch grabbed Stewart by the hair and struck her. Stewart fought back and during the fight, Lynch bit Stewart‘s left hand. The fight was broken up by Andrew Pearson, a concessioner, who wаs in the area.
{¶ 4} Stewart walked to the Cleveland Heights Police Department and filed a complaint for assault against Lynch. The officers photographed Stewart‘s hand and then Stewart sought medical attention for her injury.
{¶ 5} On September 15, 2009, the Cleveland Heights Police Department issued a warrant charging Lynch with one count of assault, a
{¶ 6} At the close of the evidence, the defense requested three jury instructions. First, defense counsel requested a jury instruction on the lesser inсluded offense of disorderly conduct, a request with which the city prosecutor agreed. Defense counsel then requested jury instructions on self-defense and mutuаl combat. The trial court granted defense counsel‘s request as to the lesser included offense charge and to the self-defense charge but denied сounsel‘s request for a charge on mutual combat. Defense counsel objected.
{¶ 7} The jury returned a verdict of guilty on the charge of disorderly conduct, in violation of Cleveland Heights City Ordinances 509.03(A)(1). The trial court sentenced Lynch to a suspended jail term of sixty days, active probation for two months, inactive prоbation for four months, and imposed a fine of five-hundred dollars, of which all but one hundred and twenty-five dollars was suspended. On September 22, 2010, Lynch appealed, raising
{¶ 8} In her first assignment of error, Lynch argues the trial court erred when it charged the jury on the lеsser included offense of disorderly conduct, as disorderly conduct is not a lesser included offense of assault. This assignment of error lacks merit.
{¶ 9} Initially, we note thаt Lynch‘s trial counsel requested the charge of disorderly conduct. Prior to the commencement of trial, Lynch‘s trial counsel provided the City Prosecutor with his рroposed jury instructions, and the court had an opportunity to review those proposed instructions, which included the lesser included offense of disorderly сonduct. (Tr. 3.) At the conclusion of the evidence, Lynch‘s counsel again requested of the court that instruction on the lesser included offense of disorderly conduct be provided to the jury. Tr. 124-125.
{¶ 10} Accordingly, the record reflects that not only did Lynch‘s trial counsel fail to object to the lesser included offense instruction, but that he, in fact, requested it in writing and in open court. We, therefore, review the given instructions for plain error. State v. Darkenwald, Cuyahoga App. No. 83440, 2004-Ohio-2693. The standard for plain error is “but for the error, the outcоme of the trial clearly would have been otherwise.” State v. McKee (2001), 91 Ohio St.3d 292, 294, 744 N.E.2d 737, citing
{¶ 11} We decline to find plain error in this case. In State v. Young, Cuyahoga App. No. 79779, 2002-Ohio-1274, this court held that disorderly conduct, as defined in
“(a) Nо person shall recklessly cause inconvenience, annoyance or alarm to another, by doing any of the following:
“(1) Engaging in fighting, in threatening harm to persоns or property, or in violent or turbulent behavior.”
{¶ 12}
“(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
“(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”
{¶ 14} In her second assignment of error, Lynch argues the trial court errеd in failing to instruct the jury on self-defense and mutual combat. We disagree with Lynch‘s argument.
{¶ 15} The trial court did instruct the jury on self-defense. (Tr. 169.) Accordingly, we will limit our discussion in this assigned error to Lynch‘s argument that the court failed to give an instruction on mutual combat.
{¶ 16} In putting forth this argument, Lynch fails to cite to any legal authority in support of her claim thаt the jury should have been instructed on mutual combat. Moreover, this court is unable to locate any evidence that the defense of mutual combat exists. In State v. Milling, Summit App. No. 24402, 2009-Ohio-3002, thе ninth appellate district noted that the situations of assault and battery, mutual combat, illegal arrest, and discovering a spouse in the act of adultery arе cases in which the jury instruction of voluntary manslaughter is appropriate. The court then cited
{¶ 17} This linе of case law is the only place we find mention of the term mutual combat. Clearly, the facts as outlined above do not apply to the instant casе. We find no other authority in support of Lynch‘s claim.
{¶ 18} An appellate court may disregard an assignment of error pursuant to App.R. 12(A)(2) if an appellant fails to cite to any legal authority in support of an argument as required by App.R. 16(A)(7). State v. Martin (July 12, 1999), Warren App. No. CA99-01-003, citing Meerhoff v. Huntington Mtge. Co. (1995), 103 Ohio App.3d 164, 658 N.E.2d 1109; Siemientkowski v. State Farm Ins., (Aug. 18) Cuyahoga App. No. 85323, 2005-Ohio-4295. “If an argument exists that can support this assigned error, it is not this court‘s duty to root it out.” Cardone v. Cardone (May 6, 1998), Summit App. Nos. 18349 and 18673.
{¶ 19} Basеd on the foregoing, we overrule Lynch‘s second assignment of error.
Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower 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.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and KENNETH A. ROCCO, J., CONCUR
Appendix
Assignments of Error:
“I. The trial court erred and abused its discretion in its charge to the jury resulting in the jury finding appellant guilty of disorderly conduct, a third degree misdemeanor, as a lеsser included offense of assault under
R.C. 2903.13(A) .”“II. The trial court erred and abused its discretion by not granting defendant‘s requested charge on self-defense and mutual combat.”