STATE OF OHIO, PLAINTIFF-APPELLEE, v. ANDREW CURTIS WORTHINGTON, DEFENDANT-APPELLANT.
CASE NO. 6-15-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY
February 16, 2016
[Cite as State v. Worthington, 2016-Ohio-530.]
Appeal from Hardin County Common Pleas Court Trial Court No. 20142152-CRI Judgment Affirmed
Michael J. Short for Appellant
Jason M. Miller for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-appellant Andrew Worthington (“Worthington”) brings this appeal from the judgment of the Court of Common Pleas of Hardin County convicting him of Kidnapping and Felonious Assault of a Peace Officer. Worthington claims that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Worthington also claims that he was denied effective assistance of counsel. For the reasons set forth below, the judgment is affirmed.
Procedural Background
{¶2} On September 24, 2014, the Hardin County Grand Jury indicted Worthington on eight counts: 1) Abduction in violation of
{¶3} A sentencing hearing was held on May 12, 2015. Doc. 58. The trial court sentenced Worthington to four years in prison on each count and ordered that the sentences be served consecutive to each other. Id. Worthington filed a timely notice of appeal. Doc. 63. On appeal he raises the following assignments of error.
First Assignment of Error
[Worthington] received ineffective assistance of trial counsel.
Second Assignment of Error
The convictions are not supported by the weight of the evidence.
Third Assignment of Error
The convictions were not based on sufficient evidence.
For the purpose of clarity, the assignments of error will be addressed out of order.
{¶4} Both the second and third assignments of error challenge the conviction based on the evidence. Thus, the first step is to address what the evidence at trial was.
{¶5} The first witness for the State was Worthington’s mother, Helen Worthington (“Helen”). Helen testified that on the day in question, she took Mandy Steele (“Steele”) into the home to retrieve her belongings. Vol. I Vol. 1 Tr. 34. Steele wished to retrieve her belongings because she had ended her relationship with Worthington. Vol. I Vol. 1 Tr. 35. When Worthington started talking with Steele, he seemed upset. Vol. I Vol. 1 Tr. 42-43. Then Worthington pushed Steele. Vol. I Vol. 1 Tr. 43. Later the matter escalated, Helen was locked out of the house, and Steele was still in the house with Worthington. Vol. I Vol. 1 Tr. 48-49. Helen testified that although she never saw a knife, she believed that Worthington had one because he had a cut on his neck. Vol. I Vol. 1 Tr. 57-58.
{¶6} On cross-examination, Helen testified that Steele was already upstairs retrieving her belongings when Worthington arrived at the home. Vol. 1 Tr. 67. Worthington then went upstairs where Steele was. Vol. 1 Tr. 68. When Steele and Worthington started coming down the stairs, they were arguing and she attempted to stop the argument. Vol. 1 Tr. 72-73. According to Helen, she had the police called because she was worried about Worthington and his behavior had been odd recently. Vol. 1 Tr. 74. When Helen and the police entered the home, she saw Worthington at the top of the stairs, but did not see Steele. Vol. 1 Tr. 75. Helen testified that Worthington had his hand to his neck as if he were going to
{¶7} Charles Mulligan (“Mulligan”) testified that he is a deputy with the Hardin County Sheriff’s Department. Vol. 1 Tr. 113. He went to the Worthington house in response to a reported domestic dispute. Vol. 1 Tr. 114. Worthington was behind a closed door speaking to them. Vol. 1 Tr. 118. Worthington refused to come out and stated that he was afraid the officers would kill him. Vol. 1 Tr. 119. Mulligan testified that Worthington threatened them with a pit bull and stated they would have to “come in to kill him.” Vol. 1 Tr. 119. When they forcefully entered the room, they found Worthington hiding behind the door with his hands to his throat. Vol. 1 Tr. 130. Worthington was repeatedly asked to show his hands, but he refused to do so. Vol. 1 Tr. 130-31. While trying to approach Worthington, he was kicking at the officers, so another officer “tased” him. Vol. 1 Tr. 132. Worthington then reached around with the knife and Mulligan reached for the hand holding the knife. Vol. 1 Tr. 133. Mulligan received a cut on his thumb while removing the knife from Worthington’s hand. Vol. 1 Tr. 134. Mulligan believed that Worthington had been attempting to stab Mulligan’s leg when the hand was grabbed. Vol. 1 Tr. 133. The State also had Mulligan identify the video from his body camera and the video was played for the jury. Vol. 1 Tr. 144, 148.
{¶10} Lieutenant Robert Lutes (“Lutes”) of the Kenton City Police Department was the final witness for the State. Vol. 2 Tr. 60. Lutes testified that he was sent to the home because “a man was acting out.” Id. Upon his arrival, Helen met him and told him that Worthington was “going crazy.” Vol. 2 Tr. 61. They then entered the home and Helen screamed that he had a knife. Vol. 2 Tr. 62. Lutes looked up and saw Worthington at the top of the stairs with “his hand to his throat”, so Lutes drew his weapon. Id. Lutes tried to speak with Worthington, but he kept refusing and told Lutes “I’m not coming down, you better come up here locked and loaded.” Vol. 2 Tr. 65. Lutes then waited for back-up to arrive and continued talking to Worthington. Vol. 2 Tr. 66. Worthington kept refusing to come out and telling Lutes that “you’re gonna have to kill me.” Vol. 2 Tr. 68. At that time Lutes did not know Steele was upstairs until he heard her talking. Id. Several times Lutes asked Steele to come out, but she responded with “I can’t”. Vol. 2 Tr. 69-70. When the room was breached, his sole responsibility was to remove Steele from the room, so he was not part of the group that dealt with Worthington. Vol. 2 Tr. 76. After the door was kicked open, Steele came out when asked and she was very scared. Vol. 2 Tr. 77.
Sufficiency of the Evidence
{¶12} Worthington claims in the third assignment of error that the convictions are not supported by sufficient evidence. A claim of sufficiency of the evidence raises a due process question concerning whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶219, 954 N.E.2d 596 (citing State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541). “On review of the sufficiency of the evidence to support a criminal 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.’” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶34, 840 N.E.2d 1032 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
{¶14} In Count Four Worthington was charged with Felonious Assault of a Peace Officer, so the State was required to prove that Worthington 1) knowingly 2) caused physical harm to another with a deadly weapon and 3) that the victim was a police officer. The evidence in this case was that Worthington had a knife, that Mulligan was cut with the knife while attempting to remove it from Worthington’s hand, and that Mulligan was a peace officer. Mulligan testified that it appeared to him that Worthington was attempting to cut him with the knife when he was injured. Viewing this evidence in a light most favorable to the State, a reasonable juror could include that Worthington knowingly cut Mulligan with the knife causing physical harm to Mulligan and that Mulligan was a peace officer.
Manifest Weight of the Evidence
{¶15} Worthington alleges in his second assignment of error that his convictions are against the manifest weight of the evidence. Unlike sufficiency of the evidence, the question of manifest weight of the evidence does not view the evidence in a light most favorable to the prosecution.
Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (1997) (citing Black‘s Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the exceptional case in which the evidence weighs heavily against conviction. Id. Although the appellate court acts as a thirteenth juror, it still must give due deference to the findings made by the jury.
The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’ reaction to exhibits and the
like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact-finder.
State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist. 1998).
{¶16} At first glance, the evidence in this case may not appear to be overwhelmingly in support of conviction on the charges. There is no evidence that Steele was forced to go into the room and the testimony appears to indicate that she was willingly in the room prior to Worthington’s entry into the room. Despite Steele’s statements on the tape that she could not leave the room, she does not claim that the inability to leave is a result of any threat to her safety made by Worthington or that Worthington is restraining her. Other than the circumstances, there is no indication that Steele was being used as a hostage. To the contrary, Steele on numerous occasions indicates that she does not want to leave, that she is safe, but that she is concerned for Worthington’s safety. She even indicates at one time that she is free to leave, but is staying. When the officers entered the room, Steele was on the opposite side of the room from Worthington and was able to easily walk out the door. However, there was evidence that Worthington did have a knife and that the door was locked. The officers testified that she was in the room for over an hour and sounded scared. The incident lasted for approximately ninety minutes and on multiple occasions Steele indicated she could not leave the room. The jurors heard the tape where Steele made the comments and were able
{¶17} As to the conviction for Felonious Assault of a Peace Officer, the evidence at first glance does not appear to be overwhelming. At the time of the injury, Worthington was being “tased” and Mulligan himself testified that it was occurring because he was shocked as well. Mulligan also testified that the effect of the taser would be to cause muscles to contract and prevent Worthington from being able to move. Although Mulligan claimed at trial that Worthington lunged at him, the tape does not appear to indicate such an activity. However, on the tape, Mulligan is also heard to say that Worthington came at him. Worthington had made numerous threats of harm to law enforcement and had failed to comply with commands to show his hands and release the knife. He struggled to hang on to the knife while Mulligan tried to take it away from him and as a result, Mulligan was cut by the knife. Based upon the evidence before it, a reasonable juror could determine that Worthington had acted in a manner that he should have known would result in injury to a police officer. Thus, the conviction is not against the manifest weight of the evidence. Having determined that the convictions are not
Ineffective Assistance of Counsel
{¶18} Finally Worthington claims in the first assignment of error that he was denied the effective assistance of counsel because counsel failed to request a new trial.
In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel‘s essential duties to his client. Next, and analytically separate from the question of whether the defendant‘s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel‘s ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel‘s ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; * *915 State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905.
{¶19} Worthington argues that trial counsel should have requested a new trial due to Steele’s failure to appear at trial to testify after being subpoenaed by
{¶20} Having found no errors in the particulars assigned and argued, the judgment of the Court of Common Pleas of Hardin County is affirmed.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/hlo