State v. Pearson , 2017 Ohio 8396 ( 2017 )

[Cite as State v. Pearson, 2017-Ohio-8396.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
TYREE PEARSON : Case No. 2017CA00013
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2016CR1775
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 30, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JACOB T. WILL
Prosecuting Attorney 116 Cleveland Ave NW, Suite 808
Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00013 2
Baldwin, J.
{¶1} Appellant Tyree Pearson appeals from the December 22, 2016 Judgment
Entry of the Stark County Court of Common Pleas. Appellant was found guilty of one
count of Felonious Assault and one Count of Domestic Violence and sentenced to an
aggregate term of five years. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} This case arose on September 12, 2016, when Appellant confronted
Antoinette Law near the 12th Street Market in Canton, Stark County, Ohio and struck her
with a piece of pavement.
{¶3} Antoinette Law and Appellant had known each other for approximately
seven years prior to the assault. They had lived together for a short time and the
relationship ended less than two months prior to September 12, 2016.
{¶4} On September 12, 2016 Ms. Law walked to the 12th Street Market and saw
Appellant in an alley, but they did not speak. While in the Market she noticed Appellant
outside the Market and when she left, he was shouting and threatening someone in the
Market. Ms. Law attempted to calm Appellant, but she was unsuccessful and decided to
leave the scene. Appellant began to shout at her as she walked away. As she walked
from Appellant, Ms. Law saw him pick up a piece of the asphalt pavement. He struck her
on the right ear with the piece of pavement and she fell to the ground. Ms. Law’s memory
is not clear regarding the events immediately after she was struck, but she recalls voices,
people near her and someone telling Appellant to move away from her. She was able to
stand and walk to a Circle K and call 911. The Canton Police Department and the Medical
Squad responded to the scene.
Stark County, Case No. 2017CA00013 3
{¶5} Ms. Law was transported to Aultman hospital where she was treated for a
laceration to her right ear and scalp as well as a concussion. The treating physician
placed fifteen sutures and five staples in her ear and scalp to treat the wounds. Ms. Law
was discharged from the hospital and had no further treatment. Her wounds have healed
but she has scars in her scalp and right ear.
{¶6} On, November 1, 2016, the Stark County Grand Jury indicted Mr. Tyree
Pearson on one count of Felonious Assault (R.C. 2903.11(A) (1) and/or (A) (2)), alleging
that on September 12, 2016, Appellant did knowingly cause serious physical harm to Ms.
Antoinette Law and/or did cause or attempt to cause physical harm to Ms. Antoinette Law
by means of a deadly weapon or dangerous ordnance. Appellant was also indicted on
one count of Domestic Violence (R.C. 2919.25(A)) based on the same set of facts with
the allegation that Appellant had previously pleaded guilty to or had been convicted of
two or more violations of Domestic Violence.
{¶7} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. The State offered the testimony of Ms. Law and the arresting Officer, Michael
Herrera. Ms. Law confirmed that the Appellant struck her with a piece of pavement. The
state offered the testimony of Samuel Hoefler, an eye witness who confirmed that
Appellant struck Ms. Law with a piece of pavement and that she fell to the ground. Mr.
Heffler and Officer Herrera identified Exhibit 2 as the piece of pavement used in the
assault.
{¶8} The State offered Appellant’s two prior convictions for domestic violence
(RC 2919.25), the piece of pavement used in the assault, three photographs of the
Stark County, Case No. 2017CA00013 4
wounds and the medical records regarding Ms. Law’s treatment as exhibits, and without
objection by Defendant, the exhibits were accepted into evidence.
{¶9} After consultation with his counsel, Appellant testified on his own behalf at
trial and presented no additional evidence. Appellant admitted that he was at the 12th
Street Market on September 12, 2016 trying to start a fight with someone in the Market
with the intent to entice them to come into the alley. He acknowledged that he had known
Ms. Law for several years, had lived with her for a short time and that the relationship
ended weeks prior to September 12, 2016. He denies seeing her at the Market and
specifically denied striking her.
{¶10} Upon cross-examination Appellant admitted the two prior domestic violence
convictions as well as felony convictions for receiving stolen property, possession of
cocaine and theft convictions in 2012 and 2013.
{¶11} The jury found Appellant guilty of felonious assault and domestic violence.
The trial court sentenced Appellant to a prison term of five years for the felonious assault
and thirty six months for the domestic violence, to be served concurrently
{¶12} Appellant now appeals from the judgment entries of conviction and
sentence.
{¶13} Appellant raised one assignment of error.
{¶14} I. APPELLANT'S CONVICTIONS WERE AGAINST THE SUFFICIENCY
AND MANIFEST WEIGHT OF THE EVIDENCE.
{¶15} In his sole assignment of error, Appellant argues his conviction is against
the manifest weight and sufficiency of the evidence.
Stark County, Case No. 2017CA00013 5
{¶16} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus, in which the Ohio Supreme Court held as follows:
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable
doubt. The 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.
{¶17} Pearson was convicted of Felonious Assault and Domestic Violence. To
find Pearson guilty of felonious assault, the jury must find that Appellant did knowingly
cause serious physical harm to Ms. Antoinette Law and/or did cause or attempt to cause
physical harm to Ms. Law by means of a deadly weapon or dangerous ordinance. (R.C.
2903.11(A) (1) and/or (A) (2))
{¶18} Ohio Revised Code Section 2901.22(B) provides the definition of how and
when a person acts knowingly:
A person acts knowingly, regardless of purpose, when the person is
aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
Stark County, Case No. 2017CA00013 6
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶19} “Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Huff (2001), 145 Ohio App.3d 555, 563, 763 N.E.2d 695.
(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.” State v. McDaniel (May 1, 1998),
Montgomery App. No. 16221, 1998 WL 214606 *7, citing State v. Elliott (1995), 104 Ohio
App.3d 812, 663 N.E.2d 412.
{¶20} Ms. Law testified that she attempted to calm an angry Appellant and when
she began to walk away, Appellant picked up a piece of pavement and struck her. Mr.
Hoefler witnessed Appellant strike Ms. Law. From this testimony the trier of fact could
find beyond a reasonable doubt that Appellant acted with the knowledge that his action
would cause a certain result.
{¶21} The jury must also find that Appellant knowingly caused serious physical
harm to Ms. Law and/or that he knowingly caused or attempted to cause physical harm
to Ms. Law by means of a deadly weapon.
{¶22} “Serious physical harm to persons” as defined in R.C. 2901.01(A) (5) (c)
means “[A]ny physical harm that involves some permanent incapacity, whether partial or
total, or that involves some temporary, substantial incapacity.”
{¶23} “Physical harm to persons” means any injury, illness, or other physiological
impairment, regardless of its gravity or duration. R.C. 2901.01(A)(3) “Deadly weapon”
means any instrument, device, or thing capable of inflicting death, and designed or
Stark County, Case No. 2017CA00013 7
specially adapted for use as a weapon, or possessed, carried, or used as a weapon. R.C.
2923.11 (A)
{¶24} Ms. Law testified to suffering lacerations requiring fifteen sutures and five
staples and noted that the wounds left scars. She also complained of suffering a
concussion. That testimony, combined with the photographs and medical records
provided sufficient evidence from which the jury could find she suffered serious physical
harm. State v. Combs, 5th Dist. Stark No, 2001CA00222, 2002 WL 391688 (March 11,
2002)
{¶25} The piece of pavement described by Ms. Law and Mr. Hoefler was used
and possessed by Appellant as a bludgeon and could be considered a deadly weapon
capable of inflicting death. State v. Thomas, 5th Dist. Stark No. 2015CA000377 2015-
Ohio-4932, ¶ 70-71 citing In re J.T., 143 Ohio St.3d 516, 2015-Ohio-3654, 39 N.E.3d 124,
State v. Coleman, 1st Dist. Hamilton No. C-900872, 1992 WL 45955, at *3 (Mar. 11, 1992)
“The Committee Comments to R.C. 2923.11 provide that a deadly weapon is defined as
“any device capable of causing death, and which is either designed or specially adapted
for use as a weapon such as a gun, knife, billy or brass knuckles), or is carried,
possessed, or used as a weapon (such as a rock or cane when used for offensive
purposes).” State v. Twinam, 2nd Dist. Montgomery No 25153, 2013-Ohio-720 ¶13.
Where the instrument involved is not a deadly weapon per se, the question of its capability
as a deadly weapon is ordinarily one for the jury. State v. Clark, 2nd Dist. Clark No. 1298,
1979 WL 208322. *2 (May 23, 1979) There was sufficient evidence for the jury to
determine that the piece of pavement was a deadly weapon and that Ms. Law suffered
physical harm.
Stark County, Case No. 2017CA00013 8
{¶26} Appellant was also convicted of Domestic Violence with the specification
that he had previously been convicted of domestic violence on two occasions prior to the
date of the current offense. The prior convictions were stipulated, so the jury’s finding
that the two prior convictions occurred is supported by the evidence. Because this count
was based upon the incident that formed the basis for the charge of felonious assault, the
issue of physical harm and whether Appellant acted knowingly has been resolved against
Appellant and the only remaining issue is whether Ms. Law is a family or household
member.
{¶27} Ms. Law testified that she had a long term relationship with Appellant, that
they lived together for a short time and that the relationship had terminated weeks before
the assault. Appellant corroborated her testimony regarding their relationship. The
phrase “family or household member” is defined as:
(F) As used in this section and sections 2919.251 and 2919.26 of the
Revised Code:
(1) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the
offender;
…
(2) “Person living as a spouse” means a person who is living or has lived
with the offender in a common law marital relationship, who otherwise is
cohabiting with the offender, or who otherwise has cohabited with the
Stark County, Case No. 2017CA00013 9
offender within five years prior to the date of the alleged commission of the
act in question.
{¶28} The testimony of Appellant and Ms. Law provided sufficient evidence that
Ms. Law cohabited with the “offender within five years prior to the date of the alleged
commission of the act in question” when they admitted they had lived together and Ms.
Law testified that the cohabitation occurred within two years of the date of the incident.
{¶29} We conclude that a reasonable person could have found beyond a
reasonable doubt that Pearson committed the crimes of felonious assault and domestic
violence. We hold, therefore, that the state met its burden of production regarding each
element of the crimes of felonious assault and domestic violence and, accordingly, there
was sufficient evidence to support Pearson’s convictions.
{¶30} We now turn to Appellant’s contention that the verdict was against the
manifest weight of the evidence. In determining whether a conviction is against the
manifest weight of the evidence, the court of appeals functions as the “thirteenth juror,”
and after “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 overturned and a new trial ordered.” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E. 2nd 541 (1997) superseded by constitutional amendment
on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.Stark County, Case No. 2017CA00013 10
{¶31} Appellant’s argument focuses on the credibility of the witnesses, but the
weight to be given to the evidence and the credibility of the witnesses are issues for the
trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 237 N.E.2d 212 (1967). The trier
of fact “has the best opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page.” Davis v. Flickinger,
77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997) The jury as the trier of fact was free to
accept or reject any and all of the evidence offered by the parties and assess the witness's
credibility. “While the jury may take note of the inconsistencies and resolve or discount
them accordingly * * * such inconsistencies do not render defendant's conviction against
the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No.
99AP–739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No.
95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all
of a witness' testimony, but may accept only portions of it as true. State v. Raver, 10th
Dist. Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61,
67, 197 N.E.2d 548 (1964).
{¶32} Based upon the foregoing and the entire record in this matter, we find that
the jury neither lost its way nor created a miscarriage of justice in convicting Pearson of
the charges and the verdict is not against the manifest weight of the evidence. To the
contrary, the jury appears to have fairly and impartially decided the matters before them.
The jury as a trier of fact can reach different conclusions concerning the credibility of the
testimony of the state's witnesses and Appellant. The jury heard the witnesses, evaluated
the evidence, and was convinced of Pearson's guilt.
{¶33} Appellant's sole assignment of error is overruled.
Stark County, Case No. 2017CA00013 11
{¶34} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed. Costs are assessed to Appellant.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur.