State v. Battles , 2021 Ohio 310 ( 2021 )

[Cite as State v. Battles, 2021-Ohio-310.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109265
v. :
LA’SHA BATTLES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 4, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634883-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ashley Gilkerson, Assistant Prosecuting
Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for
appellant.
SEAN C. GALLAGHER, P.J.:
Defendant-appellant La’Sha Battles (“Battles”) appeals her
conviction for felonious assault and aggravated menacing. Upon review, we affirm.
Background
On December 7, 2018, Battles was indicted for felonious assault in
violation of R.C. 2903.11(A)(1), a felony of the second degree, and aggravated
menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree. The
charges arose from events occurring on or about June 24, 2017, during which Battles
was alleged to have “knowingly caused serious physical harm to [the victim]” and to
have “knowingly [caused the victim] to believe that [Battles would] cause serious
physical harm to [the victim] or the property of [the victim].” Battles entered a plea
of not guilty, and following discovery, the case proceeded to a jury trial.
The testimony revealed that on the date of the incident, Battles was
attempting to cash a check at a liquor store. The victim, who was the cashier and
the store manager, doubted the validity of the check. After some discussion, the
victim informed Battles that he could not cash the check. Battles took the check
back, cursed at the victim, and struck the victim in the face with a pen, which left a
mark under the victim’s left eye.
Next, Battles began to run out of the store, the victim gave chase,
Battles fell, and the two engaged in a scuffle, during which Battles shouted “I will
show you,” cursed at the victim, and kicked him with her leg. The victim testified
that Battles then threatened “I will send my men to finish with you” and left the
scene.
Five to seven minutes later, Battles’s brother and another man in a
blue hoodie entered the store. The victim tried to explain what happened and
showed the men the video footage of his encounter with Battles. As this was
occurring, the man in the blue hoodie punched the victim in his face, the victim fell
and hit his head on a shelf, and the victim blacked out and lost consciousness. When
the victim regained consciousness, he was on the floor, his head and mouth were
hurting, and he could not stand up. His coworkers helped him off the ground and
onto a chair. He testified that he was “totally out of balance” and almost fell off the
chair. The incident was captured on surveillance video, and the video was played at
trial.
The victim did not call the police or seek medical attention right away,
and he finished working his shift. When a police officer entered the store, the victim
explained what happened and the officer instructed him to make a medical report.
The victim explained he did not understand how he could do that because he did not
have medical insurance and was relatively new to the United States.
The victim went to the hospital two days after the incident. The victim
reported to the nurses that he was experiencing issues with balance and had a
headache. The victim was diagnosed with a concussion and received discharge
instructions. The victim testified that he was unable to drive for about eight to nine
months, that he constantly had a light headache, and that he continued to have
issues with balance and vision. He testified that he continued to work because he
has a low income, and that he did not seek follow-up medical care because he did
not have medical insurance.
At the time of trial, the victim testified that his vision was still
impacted, that he has a continuous light headache, and that if he moves quickly from
side to side he loses his balance. The victim also pointed to a residual mark under
his left eye where he was struck by the pen. The victim testified that Battles came
back to the store two months after the incident occurred and told him “you didn’t
learn.”
The state proceeded against Battles on a theory of complicity on
Count 1 for felonious assault. The jury returned a verdict of guilty on both counts.
The trial court sentenced Battles to one and one-half years of community control on
each count and advised Battles of the three years of mandatory postrelease control.
The court ordered no contact with the victim and stated a violation could result in
more restrictive sanctions or a prison term of two years. The court also ordered
Battles to perform 50 hours of community service. Battles timely filed this appeal.
While this appeal was pending, Battles’s probation was terminated.
However, the appeal is not moot and Battles need not present evidence that she will
suffer some collateral disability. See State v. Golston, 71 Ohio St.3d 224, 227, 643
N.E.2d 109 (1994). As the Supreme Court of Ohio has recognized, “[t]he collateral
legal consequences associated with a felony conviction are severe and obvious.” Id.Law and Analysis
Battles raises three assignments of error for our review. Under her
first assignment of error, Battles claims the trial court erred by failing to grant her
motion for judgment of acquittal for the offense of felonious assault.
A Crim.R. 29 motion for judgment of acquittal is governed by the
same standard as the one for determining whether a verdict is supported by
sufficient evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847
N.E.2d 386, ¶ 37. “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.” State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A
challenge to the sufficiency of the evidence presents a question of law. See State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
Battles was found guilty of felonious assault in violation of R.C.
2903.11(A)(1) under a complicity theory. For felonious assault, R.C. 2903.11(A)(1)
provides that “[n]o person shall knowingly * * * [c]ause serious physical harm to
another * * *[.]” R.C. 2901.01(A)(5) defines “serious physical harm to persons” to
include “(c) [a]ny physical harm that involves some permanent incapacity, whether
partial or total, or that involves some temporary, substantial incapacity,” and “(e)
[a]ny physical harm that involves acute pain of such duration as to result in
substantial suffering or that involves any degree of prolonged or intractable pain.”
Battles argues that the evidence at trial was not sufficient to sustain
the jury’s finding that the victim suffered serious physical harm when he was
assaulted by the man in the blue hoodie. Battles maintains that the mild concussion
and physical symptoms experienced by the victim do not constitute serious physical
harm and references selective evidence in the case. She states that the victim did
not seek immediate medical attention and that evidence in the record demonstrates
the victim was “well” and in “stable condition,” he was able to leave the hospital
within mere hours, he was given over-the-counter medication, and he did not miss
any work. However, upon our review of the entire record in this case, we find the
state presented sufficient evidence to prove serious physical harm.
The testimony and evidence showed that after the victim informed
Battles he could not cash her check, Battles struck the victim in the face with a pen,
cursed at the victim, and threatened the victim, stating she would “send my men to
finish with you.” Within minutes, two men entered the store. While the victim was
trying to clear up the matter by showing them the surveillance video, one of the men
punched the victim in the face. The victim blacked out and lost consciousness; he
was unable to get off the floor without assistance and was “totally out of balance”;
he went to the hospital two days later; and he was diagnosed with a concussion. He
testified that he experienced headaches and issues with balance; that he was unable
to drive for eight or nine months; and that he was still having issues with headaches,
eyesight, and balance at the time of trial.
In State v. Clopton, 8th Dist. Cuyahoga No. 95297, 2011-Ohio-2392,
this court recognized that seeking medical treatment alone is not dispositive of
serious physical harm. Id. at ¶ 16. Although “serious physical harm” may involve
an injury or condition of such gravity as would normally require hospitalization, the
facts must establish one of the factors in R.C. 2901.01(A)(5)(a)-(e), such as
permanent incapacity, temporary substantial incapacity, acute pain of such duration
as to result in substantial suffering, or any harm that results in prolonged pain. Id.
at ¶ 12-14, citing R.C. 2901.01(A)(5)(c) and (e).
Sufficient evidence of serious physical harm has been found under
circumstances where the victim was knocked temporarily unconscious, the victim’s
injuries were serious enough to cause the victim to seek medical treatment, and the
victim suffered from persistent pain for months. See State v. Redman, 3d Dist. Allen
No. 1-15-54, 2016-Ohio-860, ¶ 25-28. In State v. Davis, 8th Dist. Cuyahoga No.
81170, 2002-Ohio-7068, this court found the state presented sufficient evidence of
serious physical harm where the victim suffered multiple punches and kicks to his
head and face, his head hit a steel post, he suffered a concussion as well as scrapes
and cuts, he sought medical treatment and remained at the hospital for several
hours, and he had fits of vomiting and experienced headaches for several days. Id.at ¶ 6-8 and ¶ 22-23; see also State v. Rogers, 8th Dist. Cuyahoga No. 105879, 2018-
Ohio-3495, ¶ 41-46 (finding sufficient evidence of serious physical harm where the
victim sustained a concussion, headaches, and head trauma as a result of a blow to
his head, and the victim testified that he received medical treatment for his injuries);
In re E.B., 3d Dist. Auglaize No. 2-17-21, 2018-Ohio-1683, ¶ 22-23 (finding sufficient
evidence of serious physical harm where the victim suffered prolonged periorbital
pain and headaches, as well as a concussion); State v. Littlejohn, 8th Dist. Cuyahoga
No. 95380, 2011-Ohio-2035, ¶ 22-23 (finding sufficient evidence of serious physical
harm where a victim, who was punched and kicked by the defendant, became
disoriented and experienced blurred vision, sought medical treatment, and suffered
prolonged headaches).
Although Battles argues that the victim in this case did not seek
immediate medical attention, as determined by the First District Court of Appeals,
“the fact that the victim does not seek medical treatment after an assault does not
preclude a finding that the victim suffered serious physical harm.” Ohio v. Craig,
1st Dist. Hamilton No. C-160816, 2020-Ohio-3103, ¶ 30 (finding the state presented
sufficient evidence of serious physical harm where the victim was “knocked out”
after being repeatedly head-butted, suffered a temporary loss of consciousness, and
had a knot on her forehead that lasted for months); see also State v. Simpson, 8th
Dist. Cuyahoga No. 107407, 2019-Ohio-2912 (finding sufficient evidence of serious
physical harm where the victim, who did not seek immediate medical attention, had
sustained a minor concussion, a minor neck sprain, and a back contusion).
We also decline to draw a distinction in this matter as advocated by
Battles.1 As this court has recognized, the degree of harm that constitutes “serious”
1 We do not find persuasive Battles’s arguments pertaining to Rogers and State v.
Wyland, 8th Dist. Cuyahoga No. 94463, 2011-Ohio-455. Neither case is inconsistent with
the decision rendered herein.
physical harm is not an exact science. State v. Mason, 8th Dist. Cuyahoga No.
109176, 2020-Ohio-4998, ¶ 11, citing State v. Montgomery, 8th Dist. Cuyahoga No.
102043, 2015-Ohio-2158, ¶ 11. The testimony and evidence in each case must be
considered to determine whether sufficient evidence exists.
The state was required to prove beyond a reasonable doubt that
Battles knowingly caused serious physical harm to another as that term is statutorily
defined. Included in the statutory definition of “serious physical harm” is any
physical harm that involves “some temporary, substantial incapacity,” R.C.
2901.01(A)(5)(c), or that involves “acute pain of such duration [that results] in
substantial suffering or that involves any degree of prolonged * * * pain.” R.C.
2901.01(A)(5)(e). The Supreme Court of Ohio has determined that R.C.
2901.01(A)(5)(e) provides “a precisely worded definition of ‘serious physical harm
to persons’ * * *.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837
N.E.2d 315, ¶ 239.
Upon our review, we find that the state presented sufficient evidence
to prove that the victim suffered serious physical harm. Moreover, viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could
have found the essential elements of felonious assault proven beyond a reasonable
doubt. We also find sufficient evidence was presented from which the jury could
infer Battles was complicit in the felonious assault. The first assignment of error is
overruled.
Under her second assignment of error, Battles claims the verdict is
against the manifest weight of the evidence on both counts. When reviewing a claim
challenging the manifest weight of the evidence, the court, reviewing the entire
record, must weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). When a court of appeals concludes that a verdict
is against the weight of the evidence, “the appellate court sits as the ‘thirteenth juror’
and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at
388. “An appellate court’s disagreement with the jurors’ weighing of the evidence
does not require the special deference accorded verdicts of acquittal.” Id. A
judgment of conviction should be reversed as against the manifest weight of the
evidence only in the exceptional case in which the evidence weighs heavily against
the conviction. Id. at 387, citing Martin at 175.
First, Battles claims that the weight of the evidence proves that the
victim did not suffer “serious” physical harm and that the victim’s conduct in waiting
to seek any medical testing, his treatment with over-the-counter medication, and his
discharge papers reflect that the degree of his injuries was not serious within the
meaning of R.C. 2901.01(A)(5). Our review of the entire record in this case reflects
evidence establishing serious physical harm. After being punched, the victim
blacked out and was unconscious. The victim testified that he experienced
headaches and a loss of balance. He went to the hospital and was diagnosed with a
concussion. He further testified that he was unable to drive for months and that he
was still experiencing symptoms at the time of trial. This evidence demonstrates
that the victim suffered serious physical harm under R.C. 2901.01(A)(5)(c) and/or
(e), and we do not find the conviction for felonious assault to be against the manifest
weight of the evidence.
Second, Battles claims her conviction for complicity in the crime of
felonious assault is against the manifest weight of the evidence. Battles argues the
evidence suggests she was only angry with the victim when she left the store, she did
not share the criminal intent of the principal offender, and the principal offender
formed his intent while she was not present. In support of her argument, Battles
states the man in the blue hoodie did not assault the victim immediately upon
entering the store, the encounter started as a discussion, and the man did not act to
harm the victim until he saw the surveillance video. “[An] accomplice’s criminal
intent may be inferred, by direct or circumstantial evidence, and from the presence,
companionship, and conduct of the accomplice both before and after the offense is
committed.” State v. Shropshire, 8th Dist. Cuyahoga No. 85063, 2005-Ohio-3588,
¶ 15, citing State v. Nievas, 121 Ohio App.3d 451, 456-457, 700 N.E.2d 339 (8th
Dist.1997). Our review of the entire record reflects the jury heard evidence that
Battles struck the victim with a pen, cursed at the victim, kicked at the victim, and
threatened, “Okay, I will show you. I will send my men to finish with you.” Within
minutes, the appellant’s brother and the other man entered the store. The victim
was struck while he was showing the surveillance video. The victim testified that a
couple of months after the incident, Battles came back to the store and said to him
“you didn’t learn.” Upon this evidence, the jury could infer that the men entered the
store with the criminal intent to “knowingly” cause serious physical harm to the
victim and that Battles shared the criminal intent.
Third, Battles claims the state failed to prove the crime of aggravated
menacing under R.C. 2903.21(A), which provides: “No person shall knowingly cause
another to believe that the offender will cause serious physical harm to the person
or the property of the other person * * *.” Pursuant to R.C. 2901.22(B), “[a] person
acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature.” Although the
state is not required to show that the offender intended to carry out the threat to
prove aggravated menacing, the state is required to show that the victim had a
subjective belief of serious physical harm, which can be proven with circumstantial
evidence. State v. Clemmons, 12th Dist. Butler No. CA2020-01-004, 2020-Ohio-
5394, ¶ 33, citing State v. Landrum, 1st Dist. Hamilton No. C-150718, 2016-Ohio-
5666, ¶ 9.
We recognize that the offense of aggravated menacing was alleged to
have occurred on or about June 24, 2017, which is the date the victim refused to cash
the check for Battles. Battles claims that the victim did not believe she would “cause
serious physical harm” to him and did not take the threat seriously. She points to
evidence showing the victim chased her out of his store, did not call the police, and
returned to work. We are not persuaded by this argument. Our review shows that
at the time of the threat, Battles had already struck the victim in the face with a pen,
cursed at the victim, and kicked at the victim. The victim testified that Battles
threatened that she would send her men to “finish” with him as she left the scene.
Within minutes, two men associated with the victim entered the store. The victim
attempted to explain what happened and to defend himself by showing the men the
video footage of the encounter with Battles. When the surrounding circumstances
are considered, the record supports a determination that Battles knowingly
threatened to cause serious physical harm to the victim. Also, it can be reasonably
inferred from the circumstances that the victim took the threat seriously, was
concerned for his safety, and believed Battles would cause him serious physical
harm. There is no indication in the case before us that the jury lost its way, and we
do not find the conviction for aggravated menacing to be against the manifest weight
of the evidence.
The second assignment of error is overruled.
Under her third assignment of error, Battles claims the trial court
committed plain error and confused the jury by giving an incorrect and misleading
jury instruction on the definition of complicity by including a conspiracy instruction.
R.C. 2923.03(A), complicity, provides:
No person, acting with the kind or culpability required for the
commission of an offense shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section
2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
Because felonious assault in violation of R.C. 2903.11(A)(1) is not
among the crimes enumerated in the conspiracy statute, R.C. 2923.01(A), Battles
argues it was plain error to give an instruction on conspiracy. The jury instructions
provided by the trial court provided in part:
Complicity. The State of Ohio has presented a theory that the
defendant acted in complicity with a principal offender in the
commission of the felonious assault. A person who is complicit with
another in the commission of a criminal offense is regarded as guilty as
if she personally performed every act constituting the offense. This is
true even if she did not personally perform every act constituting the
offense or was not physically present at the time the offense was
committed.
Before you can find the defendant guilty of complicity in the
commission of a felonious assault, you must find beyond a reasonable
doubt that * * * the defendant solicited or procured another to commit
the offense of felonious assault, or aided or abetted another in
committing the offense of felonious assault, or conspired with another
to commit the offense of felonious assault.
The instructions proceeded to define “solicit,” “procure,” “aided or
abetted,” and “conspiracy.” Battles made no objection to these jury instructions or
to the inclusion of the instruction on conspiracy. “When a defendant fails to object
to the jury instructions, she waives all but plain error.” State v. Owens, Slip Opinion
No. 2020-Ohio-4616, ¶ 7, citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, ¶ 127.
Under Crim.R. 52(B), “plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
The Supreme Court of Ohio has recognized that a “plain error” is “‘an obvious defect
in the trial proceedings,’” and that to qualify as “plain error,” the defect “‘must have
affected “substantial rights,”’ which has been interpreted to mean that the error
“‘must have affected the outcome of the trial.’” State v. Kirkland, 160 Ohio St.3d
389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 72, quoting State v. Barnes, 94 Ohio St.3d
21, 27, 2002-Ohio-68, 759 N.E.2d 1240; see also State v. Hundley, Slip Opinion No.
2020-Ohio-3775, ¶ 116.2 Further, “a defendant must ‘demonstrate a reasonable
probability that the error resulted in prejudice.’” Kirkland at ¶ 72, quoting State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
We find that even if there was error in providing the instruction, it did
not affect the substantial rights of Battles. Although the state concedes the
conspiracy instruction does not apply in this case, it argues that the jury could have
found Battles complicit in the felonious assault under other theories of complicity.
A jury instruction is not to be judged in artificial isolation but must be viewed in the
context of the overall charge. See State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 7722 We note that Battles takes issue with whether State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), continues to be good law in Ohio. We need not make that
determination and apply the standard of plain error as recently pronounced by the
Supreme Court of Ohio.
(1979), paragraph four of the syllabus. In this case, the definition of conspiracy was
read to the jury as part of the overall instruction on complicity, which encompasses
several different theories, and the trial court also instructed the jury on the actual
charge in the indictment for felonious assault. Under the facts presented at trial, it
cannot be said that including the instruction on conspiracy affected the outcome of
the case. Further, Battles has not demonstrated any reasonable probability that
including the conspiracy language confused the jury or that this formed the basis of
the jury’s decision on complicity. Accordingly, reversal is not warranted under the
plain error standard of review. See Shropshire, 8th Dist. Cuyahoga No. 85063,
2005-Ohio-3588, at ¶ 27-31. The third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
EILEEN T. GALLAGHER, J., CONCUR