STATE OF OHIO Plaintiff-Appellee -vs- ADRIAN A. SMITH Defendant-Appellant
Case No. 14 CA 83
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 24, 2015
[Cite as State v. Smith, 2015-Ohio-1610.]
Hon. William B. Hoffman, P .J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 13 CR 625 JUDGMENT: Affirmed
For Plaintiff-Appellee
KENNETH W. OSWALT LICKING COUNTY PROSECUTOR RACHEL E. DAEHLER ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055
For Defendant-Appellant
STEPHEN T. WOLFE WOLFE VAN WEY & ASSOCIATES 1350 West 5th Avenue Suite 124 Columbus, Ohio 43212
Wise, J.
{¶1}. Appellant Adrian A. Smith appeals his conviction, in the Court of Common Pleas, Licking County, on one count of felonious assault. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2}. Appellant Adrian Smith and Destiny Daniels, the victim in this matter, started dating in March 2013. According to Destiny, they had “trust issues” and both had “cheated” in the relationship. Tr. at 247-248. From late in the evening on October 13, 2013, into the early morning of October 14, 2013, appellant and Destiny engaged in several argument-filled telephone conversations, during which appellant inter alia threatened to harm Destiny by hitting her with a bat.
{¶3}. On October 14, 2013, at approximately 7:00 AM, Destiny left for work. As she walked to her car, she saw a shadowy figure nearby to her right, standing up from a crouched position. Frightened, she began running toward the safety of a group of students waiting for a bus near the corner of Eddy and Hoover. She was chased by someone wearing all black, who eventually struck on her shins and thighs with a crowbar. It was still dark outside; Destiny could only see the eyes of her attacker, but she recognized the man as appellant. Tr. at 253-254. As a result of the crowbar assault, Destiny suffered bruises on her legs. When Destiny‘s mother, Angela Martin, came out to assist after the attack, she observed that Destiny could not walk. Tr. at 174. Destiny for a time told her she thought her leg was broken. Id.
{¶4}. Two teenage minors, G.B. and T.J., were waiting at the bus stop near where the incident took place. However, neither one could later identify the assailant. See Tr. at 113, 126. A neighbor, Joseph Corathers, later found a crowbar in the street.
{¶6}. At the close of the State‘s case, appellant unsuccessfully moved for acquittal pursuant to Crim.R. 29. Tr. at 300. The motion for acquittal was renewed at the close of appellant‘s case and again after closing. The trial court denied the motion in both instances. The jury found appellant guilty of the count of felonious assault. The trial court thereupon sentenced appellant to three years in prison, to be served consecutive to his prison term in another case, as well as three years of post-release control.
{¶7}. On October 3, 2014, appellant filed a notice of appeal. He herein raises the following three Assignments of Error:
{¶8}. “I. THE JURY‘S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9}. “II. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.
{¶10}. “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29.”
{¶11}. We will address the above assigned errors out of sequence.
II., III.
{¶12}. In his Second and Third Assignments of Error, appellant contends his conviction was not supported by sufficient evidence and that the trial court erred in
{¶13}. An appellate court reviews a denial of a Crim.R. 29 motion for acquittal using the same standard used to review a sufficiency of the evidence claim. See State v. Carter (1995), 72 Ohio St.3d 545, 553, 651 N.E.2d 965, 1995-Ohio-104. Thus, “[t]he 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶14}. Appellant was convicted of felonious assault under
{¶15}. Appellant first directs us to the element of physical harm in the felonious assault statute at issue. At trial, the State called a physician and a nurse who had both treated Destiny at the emergency room. Each testified that she had suffered a bruise to her leg. See Tr. at 199, 211. The jury was also shown photographs of the bruising. Furthermore, although Destiny was able to return to work the day after the attack, she had extreme difficulty walking for three or four days. Tr. at 284-285. Thus, we first conclude that sufficient evidence was presented to demonstrate “physical harm” beyond a reasonable doubt.
{¶17}. Appellant points out that the treating physician. Dr. Matthew Bromley, testified that an attack of the type brought against Destiny, i.e., a crowbar strike to the legs, would be unlikely to cause death. Tr. at 213-214. Appellant thus urges that the crowbar in the case sub judice cannot be a deadly weapon when used in such a manner. However, we find no merit in this claim. “A crowbar is a solid iron or steel bar with a wedged end, commonly used as a pry or lever.” Commonwealth v. McCombs, 304 S.W.3d 676, 681 (Ky. 2009), citing Merriam-Webster‘s Collegiate Dictionary (10th Ed. 2002). Clearly, according to the victim‘s testimony, the crowbar in question was not being used for its normal mechanical purposes and was instead being utilized as a weapon nonetheless “capable of” inflicting death.
{¶18}. Upon review, viewing the evidence in a light most favorable to the prosecution, we hold there was sufficient testimony and evidence to support a conclusion by the jury, beyond a reasonable doubt, that appellant caused physical harm to Destiny by means of a deadly weapon.
{¶19}. Appellant‘s Second and Third Assignments of Error are therefore overruled.
{¶20}. In his First Assignment of Error, appellant contends his conviction for felonious assault was against the manifest weight of the evidence. We disagree.
{¶21}. Our standard of review on a manifest weight challenge to a criminal conviction is stated as follows: “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.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶22}. In the case sub judice, the State called ten witnesses, including the victim, Destiny. She agreed that she had previously told the grand jury she was “99.9 percent” sure it was appellant, who ultimately apologized to her for what had happened. Tr. at 259, 294. As mentioned in our recitation of facts, two teenage minors, G.B. and T.J., testified they were waiting at the bus stop near where the incident took place. G.B. heard a scream and saw a female get hit by “that metal thing“, but he could not identify the assailant due to the pre-dawn darkness. Tr. at 114, 118-119. T.J. could not identify the assailant and did not actually see the attack, although he observed a figure running from the scene. Tr. at 126, 135. A neighbor, Joseph Corathers, found a crowbar in the street (which ultimately showed no fingerprints), but he did not see the attack or the attacker. Tr. at 144-148, 227.
{¶24}. Even in addressing a manifest weight claim, we remain mindful that the jurors, as the firsthand triers of fact, are patently in the best position to gauge the truth. See State v. Durbin, 5th Dist. Holmes No. 13 CA 2, 2013-Ohio-5147, ¶ 53. Upon review, we hold the jury‘s decision and its rejection of an alibi did not create a manifest miscarriage of justice requiring that appellant‘s conviction be reversed and a new trial ordered.
{¶26}. For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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