State v. Ford , 2021 Ohio 3058 ( 2021 )

[Cite as State v. Ford, 2021-Ohio-3058.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
STATE OF OHIO COURT OF APPEALS NO. {48}L-20-1054
{48}L-20-1112
APPELLEE
TRIAL COURT NO. CR0201902995
V. CR0201902836
STEVEN FORD, JR. DECISION AND JUDGMENT
APPELLANT
Decided: September 3, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
MAYLE, J.
I. Introduction
{¶ 1} Following separate altercations with two former girlfriends—C.F. and
M.M.—the defendant-appellant, Steven Ford, Jr., was charged with multiple felonies in
two separate cases. Those cases were tried jointly before a jury in the Lucas County
Court of Common Pleas. The jury convicted him of aggravated burglary with respect to
C.F., and robbery and felonious assault with respect to M.M. For the following reasons,
we affirm.
II. Background
{¶ 2} The first victim, C.F., testified that she and Ford were in a relationship from
2014 until 2016 and have a four year-old daughter. By the summer of 2018, C.F. and
Ford had very little contact, and when they did speak, it was “rocky.” Ford was
reportedly living in Southern Ohio to be near another woman, M.M., who is the victim in
the second case.
{¶ 3} At approximately 7:00 am on July 30, 2018, Ford went to C.F.’s apartment,
located on Airport Highway in Lucas County, to see their daughter. C.F. was “shocked”
to see him and told Ford “to come back later” because she and her daughter were
preparing to leave for work and school. When Ford returned, he played with their
daughter and also “play[ed] his Play Station” and “just [hung] out.” During the visit,
C.F. and Ford “bicker[ed]” about parenting issues. C.F. told him that she did not
appreciate him “just popping up” and that he “couldn’t just be a dad when it is convenient
for [him].” Eventually, C.F. asked Ford to leave, but he refused. Ford told her that he
would leave when he was ready.
{¶ 4} To hurry him along, C.F. turned off the wifi to the apartment and changed
the password because she assumed that “if he could not play his game he would leave.”
Ford became “pissed” and “finally left.” But, as soon as C.F. had closed and locked the
apartment door, Ford “kicked it back in.” As C.F. described it,
2.
A piece of the door came flying at me and my daughter because we
were standing there. He came in and [was] like, bitch, do you really want
to do this right now? And he put both his hands around my neck. * * * It
was really tight * * * on the back of my neck.
{¶ 5} The assault lasted “a couple of seconds, maybe five seconds,” before C.F.
was able to get him off of her. By that time, the two were outside the apartment in the
hallway. C.F. reentered her apartment, but Ford followed her and “choked” her again.
The two drifted back into the hallway yet again, before Ford finally “took off.” C.F.
called 911.
{¶ 6} Toledo Police Officer Dwight Daniel, Jr. was dispatched to C.F.’s
apartment, and he observed that C.F. was in distress. C.F. reported that Ford had choked
her, that she had fallen down on the floor, that he had “choked her again,” and then fled
the scene. Because the potential charges involved felonies, Officer Daniel contacted the
detective bureau, and a warrant was issued for Ford’s arrest.
{¶ 7} Pictures taken of C.F.’s apartment door showed a mangled handle and
splintered wood. The door was so badly damaged that it could not be secured, and a new
door had to be installed that night.
{¶ 8} After the July 30, 2018 assault, C.F had no contact with Ford until May of
2019 when he called to ask “what’s my kid been up to?” Over the coming weeks, C.F.
allowed Ford to visit with his daughter five or six times at a public place, but after that,
he “disappeared.”
3.
{¶ 9} At trial, Ford testified in his own defense. Ford admitted that C.F. asked
him to leave the apartment that night, he kicked in her door, and he caused the damage
depicted in the photos. But, Ford denied strangling C.F.
{¶ 10} The victim in the second case, M.M., did not testify. Without M.M.’s
testimony, the state relied upon other evidence to build its case against Ford. First, the
state played a 911 call, placed by M.M.’s neighbor at 7:21 p.m. on May 6, 2019. The
neighbor reported that M.M. had just called him, asking that he contact the police
because “she just got beat up by her boyfriend.” The neighbor was calling from outside
the apartment complex where he and M.M. each lived, on Collingwood Blvd. in Toledo.
Later in the call, the neighbor reported that M.M. and Ford were in the hallway of the
apartment complex, in full view, that the assault was continuing “right now,” and that the
police needed to “hurry.” M.M. was reportedly “half naked” and “look[ed] pretty bad.”
Finally, the neighbor reported that the boyfriend, identified as “Steve,” was leaving with
a “T.V. in his hand” and was walking down Collingwood Blvd.
{¶ 11} Toledo Police Officer Michelle Sterling and her partner arrived at the scene
at 7:39 p.m. At trial, Officer Sterling described M.M. as “crying” and “very shaken up”
with “marks” on her neck and chest due to an “altercation in front of the child.” The
police interview of M.M. was recorded by a body camera attached to Officer Sterling’s
uniform, and the nearly eight-minute video was also played for the jury.
{¶ 12} During the video, M.M. identified Ford as her former boyfriend and father
to her nine month-old daughter. M.M. told police that Ford was there to watch their
4.
daughter while she went to work. She reported that the two had argued “a lot lately”
because Ford accused her of “talking” to someone else at work and because Ford “kept
snooping around” for money. M.M. told police that she “want[ed] him to leave” but that
he would not.
{¶ 13} The altercation turned violent when Ford began choking her. According to
M.M., Ford “wouldn’t let go” of her neck, to the point that she “couldn’t breathe” and
lost consciousness. M.M. thought she would die as her daughter watched from her
pack’n’play. As a result of the attack, M.M reported that her face had “turned brown,”
that her shoulder “popped” out of its socket—which took “forever” to get “back in” and
“hurt so bad.” M.M. also reported that she had carpet burns “everywhere,” from being
dragged.
{¶ 14} At trial, Ford acknowledged he did not want to leave the apartment—even
though M.M. wanted him to go. Ford said that the two had gotten into a “heated
argument” that turned physical when M.M. hit him with a “little wrench * * * two or
three times,” and a “tussle” ensued, which led them to fall to the floor. Once they stood
up, the “arguing [continued] outside the house.” Ford testified that he then left the
apartment to “diffuse the situation.” Ford admitted that he took the television, but
claimed that they co-owned that item. He specifically denied strangling M.M. or causing
the marks on her neck, but acknowledged that what he “did” that day was “probably
serious.”
5.
1. The charges against Ford
{¶ 15} With respect to C.F., Ford was indicted on a single count of aggravated
burglary, in violation of R.C. 2911.11(A)(1) and (B), a felony of the first degree, in case
No. CR2019-2836.
{¶ 16} With respect to M.M., Ford was indicted for committing the offense of
robbery, in violation of R.C. 2911.02(A)(2) and (B), a felony in the first degree, and
felonious assault, in violation of R.C. 2903.11(A)(1) and (D), a felony of the second
degree, in case No. CR01902995.
{¶ 17} Following a two-day jury trial and guilty verdicts, Ford was convicted on
all counts. As to the aggravated burglary conviction, the trial court sentenced Ford to
serve three years in prison. It sentenced him to two years as to the robbery offense and
an additional two years as to the felonious assault offense, to be served concurrently to
one another, and concurrently to the three-year sentence ordered in the other case, for a
total prison term of three years.
{¶ 18} Ford appealed and raises two assignments of error with respect to the
aggravated burglary case, and five assignments of error with respect to the robbery and
felonious assault case. We consolidated the appeals and have renumbered the
assignments of error as follows:
I. The evidence presented at trial was insufficient to support a
conviction for aggravated burglary.
II. The Jury’s finding of guilty for Aggravated Burglary was against
the manifest weight of the evidence.
6.
III. It was a violation of Appellant’s rights under the Confrontation
Clause for the Trial Court to allow the body camera footage to be shown to
the jury as [M.M.] was not present in Court and available for cross-
examination.
IV. The body camera footage was hearsay and no exception or
exclusion applies that would permit its admission as [M.M.] failed to
appear for trial.
V. The Trial Court committed reversible error when it permitted the
jail phone call to be played to the jury as the phone call was inadmissible
hearsay due to [M.M.’s] failure to appear at trial and further committed
reversible error in finding that [M.M.] failed to appear due to Appellant’s
wrongdoing.
VI. The evidence presented at trial was insufficient to support a
conviction for Robbery and Felonious Assault.
VII. The Jury’s finding of guilty for Robbery and Felonious Assault
was against the manifest weight of the evidence. 1
III. Law and Analysis
{¶ 19} For ease of discussion, we address Ford’s assignments of error out of order.
1
We remind appellate counsel of 6th Dist.Loc.App.R. 10(C), pertaining to appellate
briefs, which provides that “[v]ictims of criminal offenses shall be referred to by the
victim’s initials or generic term or abbreviation.” (Emphasis added).
7.
1. The victim’s out-of-court statements were nontestimonial.
{¶ 20} In his third assignment of error, Ford argues that the trial court erred in
allowing the jury to view Officer Sterling’s body camera video, which contained M.M.’s
statements to police after they responded to the 911 call. Ford argues that M.M.’s
recorded comments were testimonial in nature and, therefore, M.M.’s out-of-court
statements violated his Sixth Amendment right to confront the witness against him.
{¶ 21} The Sixth Amendment to the United States Constitution provides, in
relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to
be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the
Confrontation Clause bars “admission of testimonial statements of a witness who did not
appear at trial unless [she] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Id. at 53-54. “[T]he proper analysis for determining
whether out-of-court statements violate the Confrontation Clause is * * * whether they
are testimonial in nature.” Toledo v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904
N.E.2d 543, ¶ 13 (6th Dist.), citing Crawford at 61. We conduct a de novo review of
evidentiary rulings that implicate the Confrontation Clause. State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97.
{¶ 22} Statements are nontestimonial when made “in the course of police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.” Davis v.
8.
Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). By contrast,
statements are testimonial when “the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later prosecution.” Id. at 822; Accord, State v.
Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028 (A statement will be said
to be “testimonial” if “it is made with a primary purpose of creating an out-of-court
substitute for trial testimony.”). Whether an emergency exists and is ongoing “is a highly
context-dependent inquiry.” Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179
L.Ed.2d 93 (2011).
{¶ 23} Ford argues that, based on the evidence in the case, there was no ongoing
emergency because he had already left the scene and therefore posed “no immediate[]
threat” to M.M. Ford likens his case to State v. Smith, 1st Dist. Hamilton No. C-180499,
2019-Ohio-3257, where the court found that the victim’s responses under police
questioning were testimonial and therefore subject to the protections of the Confrontation
Clause.
{¶ 24} In Smith, police questioned the victim after the defendant was already in
custody and approximately two or more hours after the criminal offense had been
committed. Here, the police arrived on the scene just minutes after the assault had
occurred and while Ford’s whereabouts were unknown. Moreover, in White, the court
found that the police questioning did not focus on any “exigent threat or safety concern.”
Here, the questions the police asked M.M. indicate that their primary purpose was to
9.
enable the police to assess the extent of the emergency. As Officer Sterling testified at
trial, when police found “a very shaken up” and “crying” M.M. at the scene, they asked
M.M. if she had been “hit.” They also asked a series of questions about her attacker
including his name, his date of birth and social security number, where “would he go,”
whether he knew anyone in the area, whether he “had a key to get in here” and whether
M.M. “could lock the door” after police had gone. Moreover, this questioning occurred
at M.M.’s apartment, not police headquarters. Ohio v. Clark, 576 U.S. 237, 135 S.Ct.
2173, 192 L.E.2d 306 (2015) (“A formal station-house interrogation * * * is more likely
to provoke testimonial statements, while less formal questioning is less likely to reflect a
primary purpose aimed at obtaining testimonial evidence against the accused.”).
{¶ 25} Although Ford claims that any “threat” posed by him subsided once he left,
there was no way for the police or M.M. to know whether he would return—a fact that
was made abundantly clear in the video when, after a sudden noise can be heard, Officer
Sterling asked, “[n]obody’s coming up the stairs are they?” and the camera pans to the
apartment staircase.
{¶ 26} Finally, Ford complains that Officer Sterling’s questions “about a loss of
consciousness” were designed to assist the state in establishing a case of felonious
assault. But, the context of the questions indicate a different purpose. In the video, M.M.
declined medical attention because she needed to go to work. In response, Officer
Sterling instructed M.M. “to be careful” in light of the assault and asked, “[d]id you pass
out? Did you lose consciousness?” Thus, Officer Sterling was making sure that M.M. did
not forego any necessary medical attention.
10.
{¶ 27} In sum, we find that the primary purpose of the dialogue between police
and M.M., as captured by Officer Sterling’s body cam video, was to assess the threat and
to meet an ongoing emergency. Accordingly, M.M.’s statements were nontestimonial in
nature and not subject to the Confrontation Clause. Accord, State v. Tomlinson, 8th Dist.
Cuyahoga No. 109614, 2021-Ohio-1301, ¶ 43 (Finding body-camera statements were not
testimonial because they were made to law enforcement in the course of responding to an
emergency situation and because the victims “had just been shot at and called the police
to seek protection and medical treatment.”).
{¶ 28} Ford’s third assignment of error is found not well-taken.
2. M.M.’s out-of-court statements were admissible
pursuant to hearsay exceptions.
{¶ 29} In his fourth assignment of error, Ford argues that even if M.M.’s out-of-
court statements were nontestimonial, they were inadmissible hearsay and therefore
should not have been admitted through the body camera video.
{¶ 30} Given that M.M.’s out-of-court statements were nontestimonial, they were
admissible only if they were not hearsay or subject to “an applicable exception to the
normal hearsay rule.” State v. Reardon, 168 Ohio App.3d 386, 2006-Ohio-398, 4860
N.E.2d 141, ¶ 15 (6th Dist.). “On appeal, challenged hearsay is subject to de novo review
under the applicable hearsay rule, rather than the more deferential review employed for
discretionary rulings” because “[w]hile there is discretion to admit or exclude relevant
evidence, there is no ‘discretion’ to admit hearsay.” State v. Richcreek, 196 Ohio App.
11.
3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 32 (6th Dist.) quoting State v. Sutorius, 122
Ohio App.3d 1, 7, 701 N.E.2d 1 (1st Dist.1997), and State v. Sorrels, 71 Ohio App.3d
162, 165, 593 N.E.2d 313 (1st Dist.1991).
{¶ 31} In this case, the trial court found that M.M.’s recorded statements to police
were admissible under two separate exceptions to the hearsay rule: forfeiture by
wrongdoing under Evid. R. 804(B)(6), and excited utterance under Evid. R. 803(2). We
agree.
{¶ 32} Under Evid.R. 804(B)(6), a statement offered against a party is not
excluded by the hearsay rule “if the unavailability of the witness is due to the wrongdoing
of the party for the purpose of preventing the witness from attending or testifying.” To
qualify for this exception, the state must show by a preponderance of the evidence that
(1) the defendant’s wrongdoing resulted in the witness’s unavailability; and (2) “one
purpose was to cause the witness to be unavailable at trial.” State v. Hand, 107 Ohio
St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84.
{¶ 33} Before trial, the state filed its notice of intent to use M.M.’s out-of-court
statements under Evid.R. 804(B)(6). It claimed that Ford, while incarcerated and
awaiting trial, contacted M.M. by phone and instructed her not to testify. During the ten-
minute phone call between Ford and M.M., this brief exchange took place:
Ford: Just don’t appear in court cuz they gonna be calling for you.
M.M.: So, I can’t go?
Ford: No man. Don’t appear in court when they call for you. * * *
Cuz your case on my shit too. * * *
12.
The state further alleged that its efforts to reach M.M. before trial were unsuccessful, and
that it anticipated she would not appear at trial, despite being subpoenaed. The state
argued that M.M. was acting under Ford’s directive not to testify.
{¶ 34} On appeal, Ford argues that the trial court erred in “casting [his]
comments” as a “threat, let alone a ‘subtle’ threat.” Ford argues that the “wrongdoing”
required by Evid.R. 804(B)(6) requires a showing of harm or a threat of physical harm.
To the contrary, Evid.R. 804(B)(6) “covers a variety of wrongdoing beyond the murder
or physical assault of the declarant.” State v. Harper, 6th Dist. Lucas No. L-15-1310,
2017-Ohio-1395, ¶ 30. In Harper, we found that the state demonstrated that the victim’s
unavailability was due to appellant’s wrongdoing and was designed to prevent her from
testifying where there was evidence of the defendant “pleading with ‘C’ to convince the
victim not to appear at trial.” Id. The staff notes to Evid.R. 804(B)(6) also make clear
that, “the wrongdoing need not consist of a criminal act.” Thus, “[e]ncouraging a witness
to leave the state is wrongdoing * * * because no one has the legal right to refuse to
provide testimony in the absence of a privilege or other rule of evidence.” Id
{¶ 35} Given the substance of the phone call between Ford and M.M., we find that
the state satisfied its burden to show by a preponderance of the evidence that M.M.’s
failure to appear in court was due to Ford’s wrongdoing, and that Ford’s conduct was
designed, at least in part, to prevent her from testifying. Accordingly, M.M.’s statements
were admissible under Evid.R. 804(B)(6).
13.
{¶ 36} In addition, M.M.’s comments were excited utterances under Evid.R.
803(2). A statement which is otherwise considered hearsay may be admissible as an
excited utterance when the following four criteria are met: “(1) a startling event, (2) a
statement relating to that event, (3) a statement made by a declarant with firsthand
knowledge, and (4) a statement made while the declarant was under the stress of the
excitement caused by the event.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-
4347, 54 N.E.3d 80, ¶ 123. An excited utterance is not excluded by the hearsay rule
“regardless of whether the declarant is available as a witness.” Evid.R. 803.
{¶ 37} Here, M.M. had experienced a startling event (i.e. being strangled, dragged
and robbed by Ford); her comments to the police related to that event; she had first-hand
knowledge of the startling event; and she remained under the stress of the excitement
throughout the entire interaction with the police, without time for thought or reflection.
Under such circumstances, the statements have the requisite degree of trustworthiness to
qualify as excited utterances. State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316(1993) (An excited utterance is considered “more trustworthy” than other hearsay
because the startling event “renders the declarant incapable of fabrication” and because
the impression on the declarant’s memory “is still fresh and intense.”).
{¶ 38} For these reasons, we find that the trial court did not err in admitting the
body camera footage, and Ford’s fourth assignment of error is found not well-taken.
3. The phone call between Ford and M.M. was admissible.
{¶ 39} In his fifth assignment of error, Ford claims that the trial court erred in
admitting the recorded phone call because “the State failed to show that Appellant
14.
committed any wrongdoing in his conversation with [M.M.]” His argument is based
upon the incorrect assumption that the phone call was admitted under the forfeiture-by-
wrongdoing hearsay exception of Evid.R. 804(B)(6). Although M.M.’s recorded
statements to police were admitted under Evid. R. 804(B)(6), there was no discussion
regarding which evidentiary rule applied to Ford’s recorded statements to M.M. during
the jail-house phone call. This is likely because Ford did not object to the admission of
the phone call —in fact, Ford asked the trial court to play the entire phone call for the
jury (rather than just the excerpt relating to M.M.’s testimony in court).
{¶ 40} Thus, to the extent there was any error here, it was invited error and Ford
“will not be permitted to take advantage of an error which he himself invited or
induced.’” State v. Bey, 85 Ohio St.3d 487, 493, 709 N.E.2d 484 (1999). See, e.g., State
v. Roulette, 4th Dist. Scioto No. 10CA3364, 2011-Ohio-6993, ¶ 14 (Defendant precluded
from challenging admissibility of a photograph shown to the jury after trial court
consulted with him before allowing jury to see it). Regardless, Ford’s statements were
properly admissible under Evid.R. 801(D)(2)(a) as statements against interest. State v.
Pryor, 5th Dist. Stark No. No. 2013CA00016, 2013-Ohio-5693, ¶ 32.
{¶ 41} For these reasons, Ford’s fifth assignment of error is found not well-taken.
4. There was sufficient evidence to support the aggravated burglary
conviction, and it was not against the manifest weight of the evidence.
{¶ 42} Ford’s remaining assignments of error challenge the legal sufficiency and
weight of the evidence supporting his convictions for aggravated burglary, robbery, and
15.
felonious assault. We will begin by discussing his aggravated burglary conviction—in
the case involving C.F.—which is the subject of his first and second assignments of error.
{¶ 43} When reviewing the sufficiency of the evidence, “[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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1981), paragraph
two of the syllabus.
{¶ 44} R.C. 2911.11, the aggravated-burglary statute, provides as follows:
(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied portion
of an occupied structure, when another person other than an accomplice of
the offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical
harm on another; * * *
(B) Whoever violates this section is guilty of aggravated burglary, a
felony of the first degree. R.C. 2911.11(A)(1) and (B).
{¶ 45} In his first assignment of error, Ford argues that his aggravated
burglary conviction should be vacated because the state failed to produce sufficient
“proof of injuries to [C.F.].”
16.
{¶ 46} To begin, R.C. 2911.11(A)(1) does not require actual physical harm—that
is, an attempt or threat to inflict physical harm is sufficient to sustain a conviction for
aggravated burglary. Accord, State v. Spears, 3d Dist. Crawford No. 3-07-32, 2008-
Ohio-2408, ¶ 19; State v. Dobbins, 8th Dist. Cuyahoga No. 84155, 2004-Ohio-5738,
¶ 13-14. Here, the state presented evidence that Ford “put both his hands * * * on the
back of [C.F.’s] neck” in a “really tight” manner that lasted “maybe five seconds,” and
then “choked” her a second time before fleeing. Based on this testimony, the jury could
infer that Ford attempted to physically harm C.F., which is sufficient to sustain his
conviction for aggravated burglary. Accord Spears at ¶ 20 (Jury could infer that
defendant attempted to physically harm victim where evidence established that he
“shoved or pushed [the victim] more than three different times.”).
{¶ 47} Regardless, the record contains sufficient evidence that C.F. suffered actual
physical harm as well. “When there is no tangible, physical injury such as a bruise or cut,
it becomes the province of the [trier of fact] to determine whether, under the
circumstances, the victim was physically injured, after reviewing all of the evidence
surrounding the event.” (Quotation omitted.) State v. Collier, 9th Dist. Lorain No.
07CA009115, 2008-Ohio-826, ¶ 14. As used in the relevant statute, “‘[p]hysical harm to
persons’ means any injury, illness, or other physiological impairment, regardless of its
gravity or duration.” R.C. 2901.01(A)(3). Here, C.F. testified that, as a result of the
assault, she experienced headaches, her neck was “sore to the touch,” and her nose was
bruised. See State v. Adams, 12th Dist. Butler No. CA2006-07-160, 2007-Ohio-2583, ¶
17.
50 (Victim’s description of having a “sore face” and “kind of like a bruised feeling”
establishes “physical harm” under R.C. 2901.01(A)(3)); State v. Reese, 8th Dist.
Cuyahoga No. 85902, 2005-Ohio-5724, ¶ 12 (“Bruising constitutes ‘physical harm’”).
We find this is sufficient evidence of physical harm.
{¶ 48} Accordingly, we find Ford’s first assignment of error not well taken.
{¶ 49} In his second assignment of error, Ford claims that his aggravated burglary
conviction is against the manifest weight of the evidence.
{¶ 50} When reviewing a claim that a verdict is against the manifest weight of the
evidence, we do not view the evidence in a light most favorable to the state. “Instead, we
sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder's resolution of the conflicting
testimony.’” State v. Robinson, 6th Dist. Lucas No. L–10–1369, 2012–Ohio–6068, ¶ 15
quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Reversal on
manifest weight grounds is reserved for “the exceptional case in which the evidence
weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 51} Here, Ford argues that the aggravated burglary conviction is against the
manifest weight of the evidence because the record does not contain any photographs of
C.F.’s physical injuries. We find that the lack of photographic evidence of C.F.’s
physical injuries does not diminish or discredit C.F.’s testimony, and the totality of the
evidence does not weigh heavily against conviction.
{¶ 52} Accordingly, we find Ford’s second assignment of error not well taken.
18.
5. The robbery and felonious assault convictions are supported by sufficient
evidence and are not against the manifest weight of the evidence.
{¶ 53} Ford also challenges his robbery and felonious assault convictions in the
case involving the other victim, M.M. In his sixth assignment of error, he argues these
convictions are not supported by sufficient evidence. In his seventh assignment of error,
he argues that these convictions are against the manifest weight of the evidence.
{¶ 54} We begin with the robbery conviction. R.C. 2911.02(A)(2) provides that,
“(A) No person, in attempting or committing a theft offense or in fleeing immediately
after the attempt or offense, shall do any of the following: * * * (2) Inflict, attempt to
inflict, or threaten to inflict physical harm on another.”
{¶ 55} On the body camera video, M.M. tells police that “he took my T.V.” Ford
argues that if the body camera footage was inadmissible, then the record would contain
no admissible evidence that he committed a theft offense. A sufficiency review,
however, considers all of the evidence at trial—whether admissible or not. State v.
Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20, citing Lockhart v.
Nelson, 488 U.S. 33, 35, 38, 40-42, 109 S.Ct. 284, 102 L.Ed.2d 265 (1988). Regardless,
we have already concluded that the body camera video was properly admitted at trial.
M.M.’s statement that she owned the T.V. was sufficient to establish a theft offense.
{¶ 56} Ford also claims that the state failed to show that Ford caused M.M.
physical harm “in order to help him commit a theft.” But, “[t]he [robbery] statute plainly
does not require that the force attendant to the theft offense be inflicted in furtherance of
a purpose to deprive another of property.” (Quotation omitted.) State v. Thomas, 106
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Ohio St.3d 133, 2005-Ohio-4106, 832 N.E.2d 1190, ¶ 13. Thus, it was not necessary that
Ford have inflicted physical harm against M.M. in order to obtain possession of the T.V.
The state need only have shown that there was “no significant lapse of time or
intervening act or event that occurred between” Ford’s theft and his infliction of physical
harm. State v. Hoskins, 12th Dist. Warren No. 2013-Ohio-3580, ¶ 20. Here, the evidence
established that Ford fled from the apartment complex immediately after the assault, with
the T.V. in hand.
{¶ 57} Viewing the foregoing evidence in a light most favorable to the
prosecution, we find sufficient evidence to support the robbery conviction.
{¶ 58} Ford also argues that the robbery conviction was against the manifest
weight of the evidence because the jury should have deemed his testimony—that the T.V.
belonged to “both of [them]”— credible. Although under a manifest weight standard we
consider the credibility of witnesses, we extend special deference to the jury’s credibility
determinations given that it is the jury that has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L–10–1162, 2012–Ohio–616, ¶ 14. Here, the jury found M.M.’s excited
utterance to the police (“he took my T.V.”) to be more credible than Ford’s testimony at
trial, and we see no reason to undo the jury’s credibility determination.
{¶ 59} Accordingly, we find that Ford’s robbery conviction is not against the
manifest weight of the evidence.
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{¶ 60} Ford also argues that his conviction for felonious assault against M.M. was
not supported by sufficient evidence and was against the manifest weight of the evidence.
We disagree.
{¶ 61} Under the felonious-assault statute, R.C. 2903.11(A)(1), “[n]o person shall
knowingly * * * cause serious physical harm to another * * *.” Here, Ford argues that
the state met its burden of proving “serious” harm to M.M. through the body camera
video, which should have been excluded. According to Ford, without the body camera
video, there was no admissible evidence that Ford caused serious physical harm to M.M.
Again, we consider all the evidence—not just properly-admitted evidence—in a
sufficiency review. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284 at ¶
16-20. Regardless, as discussed, the body camera video was properly admissible. On
that video, M.M. told police that Ford choked her to the point of unconsciousness—
which is “serious physical harm” under the statute. State v. Thomas, 6th Dist. Lucas No.
L-17-1266, 2019-Ohio-1916, ¶ 58, appeal not allowed, 156 Ohio St.3d 1487, 2019-Ohio-
3331, 129 N.E.3d 457, and appeal not allowed, 2020-Ohio-2819, ¶ 58-59, 158 Ohio St.3d
1506, 144 N.E.3d 447 (Citing cases).
{¶ 62} Accordingly, we find that the Ford’s conviction for felonious assault is
supported by sufficient evidence.
{¶ 63} Finally, Ford argues that his conviction for felonious assault is against the
manifest weight of the evidence because Ford “testified there was mutual combat, which
started when M.M. hit him with a tool” and he “attempted to defend himself.” We reject
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Ford’s attempt to argue self-defense for the first time on appeal. Ford did not request a
self-defense jury instruction at trial. Instead, Ford requested and was granted an
instruction for aggravated assault, which is appropriate where the defendant presents
sufficient evidence of serious provocation. State v. Deem, 40 Ohio St.3d 205, 211, 533
N.E.2d 294 (1988). An aggravated-assault instruction and a self-defense instruction are
considered inconsistent defenses, and courts are reluctant to give both in a prosecution for
felonious assault. State v. Smith, 168 Ohio App.3d 141, 2006-Ohio-3720, 858 N.E.2d
1222 (1st Dist.).
{¶ 64} The jury rejected Ford’s testimony that M.M. provoked him—by hitting
him with a wrench—into acting in a sudden passion or fit of rage. Once again, we see no
reason to overturn the jury’s credibility determinations. Like the jury, we find M.M.’s
statements to police to be more credible than Ford’s testimony at trial. Accordingly, we
find the felonious assault conviction was not against the weight of the evidence.
{¶ 65} In sum, because Ford’s convictions for robbery and felonious assault are
supported by legally sufficient evidence, we find his sixth assignment of error not well-
taken. And, because Ford’s convictions for robbery and felonious assault are not against
the manifest weight of the evidence, we find his seventh assignment of error not well-
taken.
III. Conclusion
{¶ 66} For all the foregoing reasons, we find Ford’s assignments of error not well-
taken. The February 10, 2020 judgments of the trial court, in case No. CR2019-2836 and
22.
case No. CR2019-2995, are affirmed. Ford is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. [[Applied Signature]]
JUDGE
Christine E. Mayle, J. [[Applied Signature 2]]
JUDGE
Myron C. Duhart, J. [[Applied Signature 3]]
CONCUR JUDGE
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