2004 Ohio 3398 | Ohio Ct. App. | 2004
{¶ 2} On November 2, 2002 an argument took place between Moore and Patricia Grigsby inside an apartment at the Dugger Road Apartments. Grigsby saw her cousin, Charles Sumlin outside. Grigsby left the apartment, but Moore followed her. Sumlin heard the two continuing to argue, so he asked what was going on. Rather than respond to the question, Moore chose to taunt Sumlin, calling him a punk and bragging about his own "skills." Sumlin rose to the bait and said, ". . . hit me then." Moore threw a bottle at Sumlin and tried to punch him, but missed. Moore and Sumlin began to swing at each other, and Sumlin fell to the ground. Moore proceeded to repeatedly kick Sumlin in the face while continuing to brag about his "skills."
{¶ 3} In his own defense, Moore claimed that Grigsby told Sumlin to get Moore and that Sumlin reached into his jacket pocket as he asked what was going on. Moore insisted that Sumlin was "jumping around like he had a weapon" and that Sumlin attacked him. Moore hit Sumlin, who fell to the ground and grabbed Moore's legs. Moore admitted kicking Sumlin in the face once or twice, stating that he only did what he had to do to get Sumlin off of him. Moore claimed to have been afraid of the man that he had been taunting.
{¶ 4} Moore also offered the testimony of a supposed eyewitness, James Leigh, who also testified that Sumlin was wearing a jacket and that he attacked Moore. However, Leigh left the scene before police arrived, and he never gave a statement to the police.
{¶ 5} Following the fight, Sumlin was dragged into an apartment, and the police were called. Grigsby fled because she was not supposed to be on the premises. Officer David Blackburn arrived and saw Sumlin's injuries. He noted that Sumlin was not wearing a jacket, and no weapons were found either in Sumlin's possession or at the scene of the fight. Grigsby also testified that Sumlin was not wearing a jacket and that he was unarmed.
{¶ 6} Sumlin sustained severe injuries as a result of the fight. Several bones in Sumlin's face were broken; his ankle was broken; he had to have his left eye surgically removed; and he sustained severe damage to his right eye. Sumlin's memory was impaired, and he had no recollection of the fight.
{¶ 7} Officer Christen Beane arrested Moore on January 9, 2003. Moore voluntarily admitted that he fought with Sumlin and that he kicked Sumlin in the face after he fell. Although Moore alleged that Sumlin first came after him, he made no mention of Sumlin wearing a jacket or any fear of weapons. The following day, Moore expanded on his story to include these details, but he refused to give a written statement.
{¶ 8} Moore was indicted for one count of felonious assault on February 4, 2003. Following a jury trial, Moore was found guilty as charged. The trial court sentenced Moore to four years imprisonment. Moore filed a timely notice of appeal.
{¶ 9} Moore's second assignment of error:
{¶ 10} "It was plain error for the trial court to, sua sponte, fail to give an instruction for aggravated assault."
{¶ 11} In his second assignment of error, Moore argues that the trial court should have sua sponte given the jury an instruction for aggravated assault and that the court's failure to do so rose to the level of plain error. We disagree.
{¶ 12} Failure to raise objections to a trial court's jury instructions waives all but plain error. Crim.R. 30(A). See, e.g., Statev. Stallings,
{¶ 13} A trial court must give an instruction on aggravated assault only when there is sufficient evidence of serious provocation by the victim. State v. Deem (1988),
{¶ 14} To be serious, the provocation "must be reasonably sufficient to incite or arouse the defendant into using deadly force." Deem, supra, at paragraph five of the syllabus, citation omitted. In the context of aggravated assault, the evaluation of whether provocation is reasonably sufficient to constitute serious provocation is a two-part analysis.State v. Mack,
{¶ 15} Here the evidence supports the State's claim that Moore was the one who provoked the fight, not Sumlin. Moore chose to follow Grigsby when she tried to walk away from their argument. Moore then chose to taunt Sumlin before throwing a bottle and a punch at him, which started the physical fight. There was nothing reasonable about Moore's actions or reactions when, during the course of that fight, he repeatedly kicked Sumlin in the face. Moore claimed that he was acting out of fear, but "[f]ear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage." Mack, supra, at 201, citations omitted.
{¶ 16} In fact, the only evidence of provocation by Sumlin was some vaguely described hand gestures and his response to Moore's taunts that if Moore was so skilled, he should hit Sumlin. This evidence does not even begin to approach the level of serious provocation required to warrant an aggravated assault instruction. Because Sumlin's words and actions would not arouse the passions of an ordinary person beyond his ability to control himself, the first part of the analysis is not met, and we need not consider the second. Accordingly, the trial court did not need to instruct on aggravated assault.
{¶ 17} Moore's second assignment of error is without merit and is overruled.
{¶ 18} Moore's third assignment of error:
{¶ 19} "Improper prosecutorial statements during closing argument including police testimony and the weight to be given same served to deny appellant due process."
{¶ 20} In his third assignment of error, Moore claims that he was denied a fair trial due to the cumulative effect of improper comments made by the prosecutor during her closing argument. Specifically, Moore insists that the prosecutor improperly established a pattern of appealing to the feelings and emotions of the jury. However, when each of the prosecutor's isolated comments are considered in the context of the entire closing argument, we find no misconduct.
{¶ 22} In considering claims of prosecutorial misconduct, an appellate court must determine whether the prosecutor's conduct at trial was improper, and, if so, whether the conduct affected any of the defendant's substantial rights. State v. Lott (1990),
{¶ 23} Generally, prosecutors are entitled to considerable latitude in closing argument. Sate v. Ballew,
{¶ 25} During the trial Moore strongly attacked Grigsby's credibility. The State responded by stating that "Charles can't sit up there and tell you what really happened. He has amnesia; but Patricia told you what really happened, and Blackburn told you what physical, tangible evidence existed at that scene. The defendant is banking on you not believing Patricia because she's possessed drugs before. * * * The defendant's banking on you not believing her. You know what? She's in the same category with Officer Blackburn. What does she have to gain by lying in here? She's already been in and out of prison at least once. Why would she come in here and make this whole thing up? She doesn't want to be here. She didn't want this to happen. She knew she was gonna get scorched for being a convicted felon. The defendant's banking on you not believing [her] because [s]he has a drug conviction. You must believe her. You've got to believe her. Common sense and reason tells you this gal didn't come down here and lie to you. What could she possibly gain from this? What good is it gonna do Patricia Grigsby if Deandre Moore gets convicted for felonious assault?"
{¶ 26} Thus, when viewed in its proper context, it appears that the prosecutor was arguing that Grigsby was a reliable witness and that she lacked a motive to lie. A prosecutor is permitted to argue facts that support a witness' credibility when that credibility has been attacked.Green, supra, at 373-74.
{¶ 28} Blackburn and Grigsby testified that Sumlin was not wearing a coat, in conflict with testimony offered by Moore. In closing argument the prosecutor first pointed out the differences in testimony and then argued that Blackburn was an unbiased reliable officer who had responded to the scene as a result of a 911 call. A prosecutor is free to argue that certain evidence tends to make a particular witness more credible.State v. Carpenter (1996),
{¶ 33} Moore's first assignment of error:
{¶ 34} "Appellant was denied effective assistance of counsel when his trial counsel failed to request a jury instruction for aggravated assault despite extensive evidence of provocation by the victim."
{¶ 35} Moore's fourth assignment of error:
{¶ 36} "Appellant was denied effective assistance of trial counsel by a series of failings which denied him due process of law."
{¶ 37} In his first and fourth assignments of error, Moore claims that he was denied the effective assistance of counsel. In support he offers several reasons, none of which we believe rise to the level of ineffective assistance of counsel.
{¶ 39} Even assuming that counsel's performance was ineffective, the defendant must still show that the error had an effect on the judgment.State v. Bradley (1989),
{¶ 41} On the other hand, counsel also could have reasonably hoped that the jury would believe Moore's testimony that he was acting in self-defense. Surely, trial counsel was well aware that "[i]t is difficult to persuade a jury with inconsistent theories of defense."Catlin, supra, at 79. The fact that Moore now feels that there was another, possibly better defense strategy available does not mean that trial counsel breached his essential duty by not presenting that alternative defense. See, e.g., Clayton, supra, at 49; State v. Brown
(1988),
{¶ 42} Furthermore, as discussed above, there was not sufficient evidence of serious provocation to warrant an instruction for aggravated assault. Accordingly, we cannot say that counsel was ineffective for failing to ask for such an instruction.
{¶ 47} Moore's fifth assignment of error:
{¶ 48} "The trial court committed prejudicial [error] by entering a finding of guilty which finding was against the manifest weight of the evidence."
{¶ 49} Finally, Moore alleges that his conviction was against the manifest weight of the evidence. Once again, we disagree.
{¶ 50} When reviewing a judgment under a manifest weight standard of review "`[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 [factfinder] 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 evidence weighs heavily against the conviction.'" State v. Thompkins,
{¶ 51} In this case Moore was convicted of felonious assault in violation of R.C. §
{¶ 52} "[W]hen conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the [trier of fact] believed the prosecution testimony." Statev. Gilliam (Aug. 12, 1998), Lorain App. No. 97CA006757, citation omitted. After all, the jury was free to believe and credit each witness' testimony as it saw appropriate. State v. Antill (1964),
{¶ 53} In this case the State offered evidence as to each element of the crime of felonious assault, including evidence of Moore's own statements that he had intentionally kicked Sumlin in the face at least twice. The jury simply chose to believe the State's case rather than Moore's defense. There is no reason to believe that the jury lost its way. Accordingly, Moore's conviction for felonious assault was not against the manifest weight of the evidence, and his fifth assignment of error is overruled.
{¶ 54} Having overruled all five of Moore's assignments of error, the judgment of the trial court is affirmed.
Brogan, J. and Grady, J., concur.