State v. Mobley-MelbarState v. Mobley-Melbar
JUDGMENT: CONVICTION AFFIRMED; VACATED IN PART AND REMANDED
Charles M. Morgan, Jr.
11510 Buckeye Road
Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Teresa Dirksen
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Defendant-appellant, Carol Mobley-Melbar (“appellant”), appeals her conviction for aggravated assault. After reviewing the record and pertinent case law, we affirm appellant’s conviction, but vacate the restitution order and remand for further proceedings regarding restitution and sentencing.
{¶ 2} Appellant’s conviction resulted from an incident that occurred on September 28, 2007 at Bum’s Saloon in Cleveland, Ohio. Appellant and Christina Workman (“the victim”) were patrons at the bar, and each presents a slightly different version of the events.
{¶ 3} The victim testified that she arrived at Bum’s Saloon and had two beers before speaking with appellant. She approached appellant to say hello when appellant, who was apparently upset about rumors the victim was allegedly spreading, told her to stay away. The viсtim testified that she turned to walk away from appellant when appellant hit her in the head with the bar glass she was holding. The glass shattered and cut open the victim’s face, causing extensive injuries to her eye. The victim and her cousin, George McClure, who was at the bar with her that night, testified that the victim was not drunk when the incident occurred and, according to the victim,
{¶ 4} Heather Williams (“Williams”) testified on behalf of appellant. According to Williams, when she first arrived at the bar, she saw the victim riding “piggy-back” on another patron and being very loud. Her first reaction was to assume the victim was intoxicated. She later saw the victim approach appellant. Although she could not hear what the victim was saying, she heard appellant tell the victim to walk away numerous times. Williams testified that the victim was in appellant’s face, swearing and cаlling her names. According to Williams, the victim never turned away from appellant. Appellant reached straight up in a defensive motion and hit the victim with the glass she was holding. Shortly after the altercation, appellant left with her husband and another friend because the victim’s friends were threatening her.
{¶ 5} Appellant’s version of events is substantially similar to that offered by Williams. Appellant, who was three months pregnant at the time of the incident, was holding a glass of water. When the victim approached her, she asked the victim to leave her alone because she believed the victim was spreading rumors about her. According to appellant, the victim was raising her hand and, fearing that the victim was going to hit her and hurt her or her unborn child, appellant instinctively reached up and hit the victim.
{¶ 6} Appellant was indicted in a two-count indictment on one count of felonious assault in violation of
{¶ 7} Appellant presents five assignments of error for our review. For ease of discussion, they will be addressed out of order.
{¶ 8} I. “Appellant’s conviction for aggravated assault is not supported by sufficient evidence where the state failed to demonstrate that the appellant acted knowingly.”
{¶ 9} II. “The jurors’ verdict is against the manifest weight of the evidence.”
{¶ 10} III. “The trial court erred in failing to instruct the jury on the offense of negligent assault.”
{¶ 11} IV. “The trial court erred when it calculated the amount of restitution due.”
{¶ 12} V. “The trial court erred in providing the jury with additional factual evidence during deliberations that was not presented during the trial.”
Law and Analysis
Sufficiency and Manifest Weight
{¶ 13} Appеllant argues that the evidence presented at trial was insufficient to show that she acted knowingly as required for a conviction of aggravated assault. She also relies on this argument to claim that her conviction is against the manifest weight of the evidence. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 486, 124 N.E.2d 148. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the trier of fact as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147, 156, 529 N.E.2d 1236.
{¶ 14} The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 N.E.2d 212. On review, the appellate court must determine, after viewing the evidence in a light most favorable to
{¶ 15} The United States Supreme Court recognized the distinction in cоnsidering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The Court held in Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652, that, unlike a reversal based upon the insufficiency of the evidence, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require special deference accorded verdicts of acquittal. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stаted that “[t]he 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. at 720.
{¶ 16} Appellant was convicted of aggravated assault in violation of
{¶ 17} “(1) Cause serious physical harm to another or to another’s unborn[.]”
{¶ 18} Appellant argues there was insufficient evidence to prove that she acted knowingly. “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.”
{¶ 19} The testimony at trial showed that appellant hit the victim with a bar glass. Appellant did so with such force that the glass broke and the victim suffered serious injuries, including the loss of vision in her right eye. “It is not necessary that the accused be in a position to foresee the precise consequence of his conduct; only that the consequence be foreseeable in the sense thаt what actually transpired was natural and logical in that it was within the scope of the risk created by his conduct.” State v. Losey (1985), 23 Ohio App.3d 93, 96, 491 N.E.2d 379.
{¶ 20} The jury relied on the testimony presented in finding appellant guilty of aggravated assault. In her appellate brief, appellant makes much of the fact that she feared for her personal safety when she hit the victim with the glass. This argument is inconsequential to whether appellant acted knowingly. The jury
{¶ 21} Appellant relies on the victim’s admitted cocaine use to argue that she is unreliable and should not have been believed by the jury. She also relies on the fact that the victim’s story differs from the version of events presented by appellant and Williams. The victim willingly admitted her cocaine addiction before the jury and was rigorously cross-examined. She did not contradict herself in her testimony in any significant fashion, and whether to believe her version of events was left entirely within the purview of the jury.
{¶ 22} The evidence presented unequivocally showed that appellant and the victim engaged in a verbal altercation that resulted in appellant hitting the victim in the side of the head with a bar glass, causing extensive injuries. Considering this evidence, including any inconsistencies, we cannot find that a manifest miscarriage of justice occurred in this case. Appellant’s conviction is not against the manifest weight of the evidence. Appellant’s first and second assignments of error are overruled.
{¶ 23} In her third assignment of error, appellant argues that the trial court erred in refusing to instruct the jury on the lesser included offense of negligent assault. We disagree.
{¶ 24} “A jury instruction on a lesser included offense ‘is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.’ The evidence must be reviewed in the light most favorable to the appellant in this situation.” (Internal citations omitted.) State v. Dunlap, Cuyahoga App. No. 84440, 2004-Ohio-6652, ¶35.
{¶ 25} It is undisputed that negligent assault is a lesser included offense of felonious assault. Id. We are left only to determine whether a negligent assault instruction was warranted given the evidence presented. The crux of appellant’s argument is that her actions were merely instinctive, and she acted negligently rather than knowingly.
{¶ 26}
{¶ 27} The testimony at trial showed that appellant intentionally reached up to hit the victim with a bar glass. An individual who undertakes such an action does so knowing that hitting someone with a heavy glass will probably cause a certain result. The evidence presented does not support appellant’s contention that she should have been acquitted of aggravated assault and found guilty of the lesser included offense of negligent assault. As such, her argument lacks merit.
{¶ 28} Additionally, appellant’s self-defense argument negates her claim that the jury should have been instructed on the lesser included offense of negligent assault. See State v. Coleman, Cuyahoga App. No. 80595, 2002-Ohio-4421, ¶25 (“because the claim of self-defense is inconsistent with an unintentional shooting, an instruction on negligent assault where the defendant claims self-defense would be unwarranted.”).1
{¶ 29} We also note that any error in failing to instruct the jury on the lesser included offense of negligent assault would be harmless at best. As previously stаted, negligent assault requires the offender to use a deadly weapon in causing injury to the victim.
{¶ 30} Since the jury determined that the bar glass used in this case was not a deadly weapon, appellant’s argument that the jury would have found her guilty of negligent assault, which also requires a deadly weapon, lacks merit. Appellant’s third assignment of error is overruled.
Additional Factual Evidence Presented to the Jury
{¶ 31} In her fifth assignment of error, appellant argues that the trial court improperly provided the jury with factual evidence in addition to that presented at trial when it provided the definition of a “ruptured eye globe.” We disagree.
{¶ 32} During its deliberations, the jury posed two questions to the court. First, they asked for additional information on the phrase “knowingly,” and the court advised them to refer to thе definition provided in the jury charge. The jury also asked the court to provide a definition of the term “ruptured eye globe.” At that point, some discussion was held on the record with regard to whether the phrase “ruptured eye globe” was used during trial. Over defense counsel’s objection, the court gave the jury the following definition: “‘Eye globe’ refers to the globe of the eye, the spherical body of the round solid eye. The meaning of the term ‘rupture’ is obvious; that is a tear to the eyeball.”
{¶ 33} A review of thе record reveals that the phrase “ruptured eye globe” was used at least two times during the trial. The phrase was first used in the
{¶ 34} We need not determine whether the trial court improperly provided the jury with a definition of the phrase “ruptured eye globe” because appellant conceded that the victim’s injuries were serious in nature, and any error in providing such a definition would have been harmless. In his opening statement, appellant’s counsel said “there’s going to be no dispute that [the victim] was hurt and the injury was serious, so don’t even really waste your time on that. I’m conceding that aspect, that she was hurt and hurt badly at Bum’s Saloon.” In his closing statement, counsel also stated: “This is a case where you have an individual that received serious physical harm. I’m not disputing that. That element in here, I’m not disputing that. So when the prosecutors, after I’m done, want to get up and talk about the serious physical harm, remember, A, I’m saying they’ve already proved it, there’s no need to go into it further.”
{¶ 35} Even if appellant had not conceded the issue of the victim’s serious physical harm, ample evidence existed to find that the victim suffered serious physical harm at the hands of appellant. The victim’s medical records were provided to the jury during deliberations and contained information related to the multiple surgical procedures the victim underwent as a result of the injuries she
Restitution
{¶ 36} In her fourth assignment of error, appellant argues that the trial court erred in calculating the amount of restitution she is required to pay the victim. Appellant’s argument in this respect is threefold: 1) the trial court failed to conduct a meaningful hearing оn restitution; 2) the trial court relied solely on a letter from the victim’s civil attorney in determining what amount of restitution appellant should be required to pay; and 3) the trial court failed to consider how much of the victim’s medical expenses were paid by her insurance carrier. In contrast, the state argues that appellant never requested a hearing on restitution and did not object at trial to the lower court’s decision with regard to how much restitution appellant should be required to pаy.
{¶ 37} Although a restitution award is ordinarily reviewed using an abuse of discretion standard, appellant failed to object below with regard to the restitution determination, and thus she waived all but plain error. State v. Myrick, Cuyahoga App. No. 91492, 2009-Ohio-2030, ¶30.
{¶ 39} In the case sub judice, appellant did not request an evidentiary hearing, nor did she dispute the amount of restitution. In fact, neither appellant nor her attorney made any comment or objection when the trial judge was determining the amount of restitution due.
{¶ 40} We are concerned, however, with appеllant’s argument that the trial court awarded the victim $81,123 based on her medical bills without considering any insurance payments the victim had received. The transcript reveals that the victim presented a “packet” prepared by her civil attorney that contained her medical bills from September 2007 through mid-October 2007. When presented with this packet, the trial court stated, “$81,123 is the records from September through mid-October ‘07, medical bills, mainly hospital bills.” The trial judge made no indication that he considered, or that the packet contained, information
{¶ 41}
{¶ 42} Because the trial court failed to consider any insurance payments made with regard to the victim’s total medical bills, this case must be remanded for a hearing on restitution. Although the trial court must consider the insurance payments made with regard to the victim’s medical bills,
Other Sentencing Issues
{¶ 43} A thorough review of the record in this case reveals other problems with appellant’s sentencing hearing. Because appellant did not raise these issues below or on appeal, she waived all but plain error.
{¶ 44}
{¶ 45} At the sentencing hearing, the trial judge made no attempt to inform appellant what repercussions would follow a violation of her community control sanctions. The court initially imposed a one-year sentencе at Marysville Correctional Institution, but suspended that sentence and imposed a 6-month term of incarceration in the county jail with appellant being enrolled in the work-release program. The court finally sentenced appellant to five years of community control sanctions. The court did address what sanctions would be imposed if appellant violated community control in its sentencing entry, which provided that “[v]iolation of the terms and conditions may result in more restrictive sanctions, or a prison term of 1 year(s) as approved by law.”
{¶ 46} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶15, the Ohio Supreme Court held that a trial court must comply with
Conclusion
{¶ 48} Because ample evidence existed to find that appellant hit the victim with a heavy bar glass knowing that it would probably cause serious injury, her conviction for aggravated assault was not based on insufficient evidence nor was it against thе manifest weight of the evidence. The trial court did not err in refusing to give the jury an instruction on negligent assault since the evidence did not support such a charge. The court did, however, err in failing to consider any payments made by the victim’s insurance carrier when determining the restitution amount. The court also erred in failing to inform appellant at sentencing of the repercussions that would follow a community control violation.
{¶ 49} Conviction affirmed; cause vacated in part and remanded tо the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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.
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO, P.J., and
JAMES J. SWEENEY, J., CONCUR