State v. Herrera , 2022 Ohio 4769 ( 2022 )

[Cite as State v. Herrera, 2022-Ohio-4769.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-014
Appellee Trial Court No. 2021CR0060
v.
Alejandro Herrera DECISION AND JUDGMENT
Appellant Decided: December 29, 2022
*****
Paul A. Dobson, Wood County Prosecuting Attorney,
David T. Harold, and James A. Hoppenjans, Assistant
Prosecuting Attorneys, for appellee.
Lawrence A. Gold, for appellant.
*****
OSOWIK, J.
A. Introduction
{¶ 1} Following a jury trial, the defendant-appellant, Alejandro Herrera, was
convicted by the Wood County Court of Common Pleas of committing felonious assault
against his girlfriend and then tampering with evidence of the assault. The trial court
sentenced him to serve between nine and twelve and one-half years in prison. On appeal,
appellant claims that the trial court erred in failing to declare a mistrial and that his
conviction is not supported by legally sufficient evidence and is against the manifest
weight of the evidence. As set forth below, we affirm the trial court’s judgment.
B. History
{¶ 2} On January 25, 2021, appellant stabbed the victim, S.S., multiple times in
the leg with a knife and then stabbed himself in the abdomen. The state alleged that
appellant then held the victim hostage by preventing her from leaving her apartment
unless accompanied by him and withholding her car keys and cell phone. On the third
day of the ordeal, appellant allowed the victim to go to work, where she reported her
injuries and was convinced to go to the hospital. The police arrested appellant early the
next morning.
{¶ 3} On February 18, 2021, appellant was indicted on charges of aggravated
burglary, kidnapping, felonious assault and two counts of tampering with evidence.
Appellant pled not guilty, and the case proceeded to a jury trial on December 8, 2021.
{¶ 4} At trial, the victim testified that the two had been dating a short time, since
December 25, 2020, i.e. Christmas Day. One month later, on the day of the stabbing, the
two argued about the victim’s relationship with another man, “C.C.” Appellant left the
victim’s Milbury, Ohio apartment, and when he returned, he “kicked the door in.” At the
time, the victim was sitting on her couch, talking on the phone to C.C., who was in jail.
The phone call—recorded by the jail—was played for the jury.
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{¶ 5} During the telephone conversation, a background noise can be heard, which
the victim testified was the sound made from appellant busting down her door. After
that, the victim can be heard saying, “[w]hat the fuck. You just kicked my fucking door.
Fuck. I gotta go. I gotta call the cops.” The victim testified that, after appellant barged
into the apartment, he “ran [into the] kitchen and grabbed a knife and came out and
basically started stabbing me. * * * I put my arms and legs up [motioning] to try to stop
him.” The victim identified “one [stab wound] of the side of [her] leg and one in the very
back of [her] knee” but could not recall “which stab wound came first.” During the
attack, appellant “had a very * * * weird look in his eyes,” and the victim yelled,
“[y]ou’re stabbing me. What are you doing?” and “stop.” Appellant then turned the
knife on himself, stabbing himself in the leg and the stomach. The moments that
followed were “very hectic,” and there was blood “everywhere.” The victim was certain
that she was “about [to] die” because she was “bleeding profusely.”
{¶ 6} Within five to seven minutes of the stabbing, appellant forced the victim to
leave the apartment because he was “worried” that another tenant would call the police.
Appellant forced her to drive him, in her car, to the “High Level Bridge.” Along the way,
the victim was “yelling and screaming” in pain. Appellant told the victim that he
intended to stab himself, again, at the bridge and that he wanted her to “push him in the
river” and to “tell his family he was sorry and [that] they weren’t there for him.” When
the victim refused, they left the bridge area and drove to two different gas stations, once
for gas and another time for water. The victim was not allowed to go inside the gas
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station and was forced to relieve herself outside, behind the gas station. The victim did
not try to escape because appellant “still had weapons on him,” and she was “afraid he
was going to stab [her] again,” including in public. She described her car as having
“blood everywhere.”
{¶ 7} Around midnight, the two returned to the victim’s apartment, where the
victim was forced to “shower right away and take [her] clothes off that [she] had on.”
Appellant took the victim’s clothes and “put them in a bag,” which he “threw * * * in the
[Maumee] River” the next day. Appellant forced her to sleep that night on the couch,
coiled “in between [his] legs” so that “he could see or hear or wake up if [the victim] got
up.” Appellant continued to maintain control of her car keys and phone.
{¶ 8} The victim described measures taken by appellant to remove the blood stains
from the apartment, which included stopping at Meijer to purchase cleaning supplies,
scrubbing the couch and wiping the floor. And, following a trip to Taco Bell—when the
victim’s blood spilled from her shoe onto the snow—appellant “got mad” and threw the
Taco Bell “on the ground and smashed it all over the blood to try to cover the pool up on
the ground.”
{¶ 9} Two days after the stabbing, appellant and the victim drove to the Home
Depot Distribution Center, where the victim works a second shift job. Appellant allowed
the victim to report for duty, while he stayed in her car. During the victim’s first break,
appellant demanded that she drive him back to the apartment. When the victim returned
to work, she reported her injuries to a co-worker and boss who instructed her to go to the
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hospital. Although the victim’s knife wounds were treated, they could not be closed,
because of the length of time that had elapsed since the stabbing, which had increased the
risk of infection. Ultimately, the victim’s leg swelled up, and she was forced to miss two
weeks of work.
{¶ 10} Lake Township Police Officer Kelly Clark took the victim’s statement at
the hospital. The victim told the officer that appellant would likely be at her apartment,
and she gave the officer her house key. Around 7 a.m., now January 28, 2022, Officer
Clark and Detective Matt Simon went to the apartment, while other officers provided
backup along “the perimeter.” The apartment door was broken and appeared to be
barricaded from inside, so the officers gained entry by kicking their way in and shoving
the barricade aside. The officers found appellant asleep in an upstairs bedroom. When
police pulled back the covers, they could see the appellant’s bandaged leg and a puncture
wound in his abdomen that was “not as deep as [the victim’s puncture wound].”
Appellant was taken into custody.
{¶ 11} In the upstairs bathroom, police found an “8-inch blade knife” in a “basket
with a towel draped over it,” which the victim told police was the knife appellant “used”
against her. The knife appeared to have blood on it, consisting of “a red spot on the tip
and a couple small spots throughout the knife.” Back downstairs, the officers observed a
bucket with a “bleach mixture” in it, near the couch where the stabbings occurred. Police
also observed “bloodstains” on the carpet and a bag “filled with clothes that [appellant]
attempted to scrub the floor with.” In the washing machine was a quilt that, despite
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having been washed, was also bloodstained. Outside the apartment, Officer Clark saw
“blood droplets and puddles of blood in the parking lot * * * in front of where [the
victim’s] car was parked. They also saw Taco Bell remnants with blood on them. The
officers observed a “significant” amount of blood in the victim’s car.
{¶ 12} After the state presented its case-in-chief, defense counsel moved for an
acquittal, which the trial court denied.
{¶ 13} Appellant testified in his own defense. According to him, the victim’s
testimony was riddled with “lie after lie.” Appellant specifically denied that he busted
into the victim’s apartment that evening, that he stabbed her, or that he held her captive
for three days. Appellant testified that he went to the victim’s apartment that night
merely to collect his coat and said that the victim was angry with him, not the other way
around. He claimed that the victim first stabbed herself, in the abdomen, and then turned
the knife on him. Appellant explained that “[s]he stabbed me because I was breaking up
[with her]. She stabbed me because I found out everything about her. That she was a
heroin user. That she was working [as a confidential informant for] the FBI.” And,
although appellant generally agreed on the events that occurred in the days that followed
the stabbings—such as the stores they visited and the time they spent in the apartment—
he disputed that he held the victim hostage or that he took control of her keys or phone.
As to the concealing evidence offenses, appellant testified that it was the victim who “did
most of the cleaning” in the apartment, and he specifically denied throwing her bloody
clothes into the Maumee River.
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{¶ 14} The jury found appellant not guilty of aggravated burglary, kidnapping, and
one count of tampering (as to the disposal of clothing). But, it found him guilty of
felonious assault, in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a felony of the second
degree (Count 3) and tampering with evidence, in violation of R.C. 2921.12(A)(1) and
(B), a felony of the third degree (Count 5). By judgment entry dated February 15, 2022,
and following a presentence investigation and hearing, the trial court sentenced appellant
to serve a minimum, definite term of seven years and a maximum, indefinite term of ten
and one half years in prison as to the felonious assault offense and a term of two years in
prison as to the tampering offense. The trial court ordered that the terms be served
consecutively to one another and consecutively to the sentences imposed in case Nos.
2021-CR-238 and 2021-CR-303. The total aggregate sentence imposed in this case was a
minimum, definite term of nine years and a maximum, indefinite term of 12 and one-half
years. The court also imposed a mandatory, minimum term of 18 months up to 36
months of post release control.
{¶ 15} Appellant appealed and raises three assignments of error for our review:
I. The trial court erred and abused its discretion by denying
Appellant’s motion for a mistrial.
II. The trial court erred in denying Appellant’s Crim.R. 29
motion.
III. The jury’s verdict was against the manifest weight of the
evidence.
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C. The trial court did not err in denying appellant’s request for a mistrial
{¶ 16} In his first assignment of error, appellant argues that the trial court erred
when it denied his request for a mistrial, following the victim’s testimony that appellant
had previously been “incarcerated.”
{¶ 17} Crim.R. 33(A)(1) provides, in relevant part, that “a new trial may be
granted on motion of the defendant for any of the following causes affecting materially
the defendant’s substantial rights: [i]rregularity in the proceedings, or in any order or
ruling of the court, or abuse of discretion by the court, because of which the defendant
was prevented from having a fair trial.” An error or irregularity in the proceedings
requires a mistrial “only if it affects a defendant’s substantial rights and prevents a fair
trial.” State v. Milligan, 6th Dist. Sandusky No. S-20-004, 2021-Ohio-1071, ¶ 31, citing
State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987); State v. Franklin, 62 Ohio
St.3d 118, 127, 580 N.E.2d 1 (1991). The grant or denial of a mistrial lies within the
sound discretion of the trial court. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-
2961, 911 N.E.2d 242, ¶ 173.
{¶ 18} “Courts do not declare a mistrial based on the mere mention of prison.”
State v. Milligan, 6th Dist. Sandusky No. S-20-004, 2021-Ohio-1071, ¶ 31, citing
Trimble. Absent evidence of “substantial prejudice,” the error may be remedied with a
curative instruction. Milligan at ¶ 31 citing Trimble at ¶ 175. “Whether the defendant’s
substantial rights were affected depends on whether the error was prejudicial, i.e.,
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whether it affected the outcome of the trial.” State v. Jones, 160 Ohio St. 3d 314, 2020-
Ohio-3051, 156 N.E.3d 872, ¶ 18.
{¶ 19} In this case, the reference to appellant’s previous incarceration came during
the victim’s direct examination by the state, as set forth below:
THE STATE: When was the first time you spoke to [appellant]?
WITNESS: He was incarcerated and we were talking through Facebook.
That was the first time I ever spoke to him or messaged him or whatever. And –
THE STATE: I’m going to have you hold on a second. (Emphasis added.)
{¶ 20} During a sidebar conference away from the jury, the prosecutor explained
that, despite “clear instructions * * * not [to] mention [defendant’s previous
incarceration], the victim had “slipped [up].” Defense counsel moved for a mistrial,
arguing that the damage could not be “undone.” The trial court denied the request but
found that a curative instruction would be appropriate and indicated that it would give the
instruction at a later time, to avoid drawing more attention to the issue. During the jury
instruction phase, and with the agreement of defense counsel, the trial court instructed the
jury that, “[e]vidence was received about the commission of other acts than the offenses
with which the defendant is charged in this trial. That evidence was received only for a
limited purpose. It was not received, and you may not consider it to prove the character
of the defendant in order to show that he acted in conformity or accordance with that
character.” See, generally, Evid.R. 404(B).
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{¶ 21} On appeal, appellant argues that the “taint from [the victim’s] testimony
jeopardized his ability to get a fair trial * * * that could not be undone by the court’s
[curative] instruction.” However, he points to no evidence that would suggest that the
victim’s comment affected the outcome of the trial, i.e. that but for that comment, he
would have been found not-guilty as to the felonious assault or concealing evidence
offenses. And, as argued by the state, appellant made repeated references at trial to his
criminal history, including that he spent time in jail. Indeed, while testifying under direct
examination, appellant insisted that the victim was a liar. To prove his point, he testified
that she had lied about when—not if—he was in jail. He testified, “Christmas Day I was
not in jail. * * * Christmas Day I was no longer not even at the halfway house. Christmas
Day I was out in society. My parole officer can testify to that.” On appeal, appellant
claims that his comments were “logically impacted” by the trial court’s refusal to grant a
mistrial, which he fails to explain. In any event, the transcript clearly shows that
appellant’s comments were incidental to his effort to portray the victim as a person who
told “lie after lie,” to try “to get [him] in trouble.”
{¶ 22} As in Milligan and Trimble, the victim’s reference to appellant’s
incarceration in this case was “brief” and “isolated” and was later followed by a curative
instruction, which appellant does not challenge on appeal. For these reasons, we find that
the mere mention of appellant’s incarceration, without more, did not unfairly prejudice
appellant so as to require a mistrial. Moreover, there is no likelihood that appellant was
prejudiced by the mention of his prior conviction, given his own testimony and due to
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other, overwhelming evidence of his guilt in this case. Accord Trimble at ¶ 175; see also
State v. Bell, 1st Dist. Hamilton No. C-140345, 2015-Ohio-1711, ¶ 43 (1st Dist.),
abrogated on other grounds, State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73
N.E.3d 365 (no error where trial court gave limiting instruction to disregard testimony
that defendant had been to prison); State v. Slaughter, 2d Dist. Montgomery No. 26135,
2015-Ohio-5303, ¶ 18 (passing reference to prison, without detail, properly addressed
with curative instruction considering the weight of admissible evidence of guilt); State v.
Morgan, 84 Ohio App.3d 229, 234, 616 N.E.2d 941 (5th Dist.1992) (mistrial not required
where comment isolated and defense rejected a curative instruction); State v. Ellison, 8th
Dist. Cuyahoga No. 16CA16, 2017-Ohio-284, ¶ 30-31 (8th Dist.) (statement isolated, not
specifically elicited by the state, and evidence of guilt overwhelming); State v. Pruiett,
9th Dist. Summit No. 21796, 2003-Ohio-3256, ¶ 6 (despite three references to prior
incarceration, evidence of guilt overwhelming and jury presumed to follow curative
instruction
{¶ 23} Accordingly, we find no abuse of discretion by the trial court in denying
appellant’s motion for a mistrial, and his first assignment of error is without merit and
found not well-taken.
D. Appellant’s convictions are supported by legally sufficient evidence.
{¶ 24} In his second assignment of error, appellant alleges that the trial
court erred in denying his motion for an acquittal as to the felonious assault and
tampering offenses.
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{¶ 25} Crim.R. 29(A) provides, in part, that, “[t]he court on motion of a defendant
* * * after the evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses.” A motion for acquittal
under Crim.R. 29(A) challenges the sufficiency of the evidence. State v. Brinkley, 105
Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39. The denial of a motion for
acquittal under Crim.R. 29(A) “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.
{¶ 26} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We examine the evidence in the light
most favorable to the state and decide whether any rational trier of fact could have found
that the state proved, beyond a reasonable doubt, all of the essential elements of the
crime. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78.
We will not disturb the verdict unless we determine that reasonable minds could not
arrive at the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460,
484, 739 N.E.2d 749 (2001); Jenks at 273. Whether the evidence is legally sufficient to
sustain a verdict is a question of law. Thompkins at 386.
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{¶ 27} We begin with appellant’s felonious assault conviction. R.C. 2903.11
provides, in part, that
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another * * *;
(2) Cause or attempt to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance.
{¶ 28} Appellant states, incorrectly, that he was convicted of committing a
felonious assault under Section (A)(1) of the statute. In fact, appellant was indicted and
convicted under Section (A)(2). Thus, the state did not have to show that appellant
caused “serious physical harm,” but rather “physical harm.” Physical harm to a person is
defined as “any injury, illness, or other physiological impairment, regardless of its gravity
or duration.” R.C. 2901.01(A)(3). The state was also required to show that appellant
caused such harm “by means of a deadly weapon or dangerous ordnance.” A “deadly
weapon” is defined as “any instrument, device, or thing capable of inflicting death, and
designed or specially adapted for use as a weapon, or possessed, carried or used as a
weapon.” R.C. 2923.11. A knife is not presumed to be a deadly weapon. Columbus v.
Dawson, 28 Ohio App.3d 45, 46, 501 N.E.2d 677 (10th Dist.1986). Rather, the
prosecution must prove that the knife was designed or specially adapted for use as a
weapon or, alternatively, that the defendant possessed, carried or used the knife as a
weapon. Id.13
{¶ 29} In challenging the sufficiency of the evidence, appellant fails to address the
elements required to sustain a conviction under R.C. 2923.11. Instead, he complains that
the state’s case “rested solely on the credibility of the alleged victim,” and that his
testimony was “at least as compelling” as the victim’s such that it was “at best, a toss-up
as to who was telling the truth.” (Emphasis added.)
{¶ 30} Setting aside appellant’s near-admission that he may have perjured himself,
his argument speaks to the weight, not the sufficiency, of the evidence. In a sufficiency
analysis, an appellate court does not assess whether the evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction. See
Jenks, paragraph two of the syllabus; Yarbrough at ¶ 79 (noting that courts do not
evaluate witness credibility when reviewing a sufficiency of the evidence claim).
{¶ 31} Upon review, the victim testified that, after appellant busted down her
door, he “ran [into her] kitchen and grabbed a knife.” When appellant returned, he
“started stabbing [the victim],” striking her on “the side of [the] leg and * * * the very
back of [her] knee.” At trial, the victim identified an “8-inch blade knife” as “the knife
he stabbed me with.” And, as a result of her wounds, the victim bled “profusely” and
thought she was “about [to] die.” Three days later, she continued to “limp,” and her
wounds continued to seep blood through bandages, ultimately swelling so much that she
missed two weeks of work.
{¶ 32} Contrary to appellant’s claim, we find that the state produced evidence “to
link” appellant to the knife and to the stabbing. And, this evidence, if believed,
14
established that the state proved beyond a reasonable doubt that appellant caused physical
harm to the victim, by means of a knife that he used as a weapon. Therefore, we find that
the record contains sufficient evidence to support appellant’s felonious assault
conviction. Accord State v. Rivers, 8th Dist. Cuyahoga No. 81929, 2003-Ohio-3670, ¶ 32
(Sufficient evidence to support felonious assault conviction where victim testified that
defendant wielded a five-to-six inch butcher knife that was “most assuredly capable of
inflicting death.”).
{¶ 33} Appellant also complains that the state did not present any “forensic
evidence” that he “had the knife.” The fact that the state did not present a particular type
of evidence, including DNA evidence, does not negate the sufficiency of the evidence
that the state did present. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114
N.E.3d 1562, ¶ 165-167, quoting Jenks at paragraph two of the syllabus (Rejecting a
sufficiency challenge where the defendant argued that the state presented no DNA
evidence linking him to the murder). We find that the absence of DNA evidence fails to
negate the sufficiency of the evidence presented in this case. Accord State v. Turner, 9th
Dist. Summit No. 28775, 2018-Ohio-3898, ¶ 24.
{¶ 34} Appellant was also convicted of tampering with evidence by cleaning and
sanitizing the area in and around the victim’s apartment. R.C. 2921.12(A)(1) provides, in
part, that “[n]o person, knowing that an official proceeding or investigation is in progress,
or is about to be or likely to be instituted, shall do any of the following: [a]lter, destroy,
conceal, or remove any record, document, or thing, with purpose to impair its value or
15
(availability as evidence) in such proceeding or investigation.” There are three elements
of the offense of tampering with evidence: “(1) the knowledge of an official proceeding
or investigation in progress or likely to be instituted, (2) the alteration, destruction,
concealment, or removal of the potential evidence, (3) the purpose of impairing the
potential evidence’s availability or value in such proceeding or investigation.” State v.
Straley, 139 Ohio St. 3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11. “[K]nowledge of a
likely investigation may be inferred when the defendant commits a crime that is likely to
be reported.” (Emphasis omitted.) State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-
7556, 90 N.E.3d 857, ¶ 118. Moreover, “the evidence tampered with must have some
relevance to an ongoing or likely investigation to support a tampering charge.” Straley at
¶ 16.
{¶ 35} In this case, appellant admits to “scrubbing the carpet and cushions,” and,
importantly, he also admits that the record contains evidence that “[he] tried to disguise
or conceal [the victim’s] blood outside in the snow on the ground.” (Appellant’s brief at
15). The record also contains evidence that appellant did “most[]” of the cleaning, and
although the victim helped, it was at appellant’s instruction. Also, when police arrested
appellant in the victim’s apartment, they observed a scrub brush with blood on it, a
bucket filled with bleach and rags near the couch and surrounding carpet, both of which
looked as though they had been cleaned, as well as a quilt and rug in the washing
machine that “had bloodstains * * * even after attempting to wash [them].”
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{¶ 36} We conclude that the evidence in this case supports the jury’s finding,
beyond a reasonable doubt, that appellant cleaned the bloodied areas of the apartment and
near the victim’s car, and that he did so for the purpose of altering, destroying, concealing
or removing evidence of the assault, knowing that “an official * * * investigation [was] *
* * about to be or likely to be instituted, R.C. 2921.12(A).” Accord Martin at ¶ 118
(Noting that the crime in that case, a homicide, is “likely to be discovered and
investigated,” which a “jury may reasonably believe that a murderer knows.”);
see also State v. Ellis, 10th Dist. Franklin No. 16AP-279, 2017-Ohio-1458, ¶ 27-29
(Sufficient evidence to support tampering conviction where defendant admitted that “she
cleaned anything she touched in * * * the apartment to remove her fingerprints, cleaned
off and disposed of the baseball bat and the knife used to kill [the victim], and cleaned off
and dumped the victim’s car.”). Accordingly, we find that the state produced legally
sufficient evidence to support the tampering offense set forth in Count 5. Therefore,
appellant’s second assignment of error lacks merit and is found not well-taken.
E. The verdict was not against the manifest weight of the evidence.
{¶ 37} While sufficiency of the evidence examines whether the evidence is legally
sufficient to support the verdict as a matter of law, the criminal manifest weight of the
evidence standard addresses the evidence’s effect of inducing belief. State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386, 678
N.E.2d 541. Under the manifest weight of the evidence standard, a reviewing court must
ask the following question: whose evidence is more persuasive—the state’s or the
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defendant’s? Id. at ¶ 25. Although there may be legally sufficient evidence to support a
judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins
at 387.
{¶ 38} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“thirteenth juror” and disagrees with the fact finder’s resolution of the conflicting
testimony.” Wilson at ¶ 25, quoting Thompkins at 387. In determining whether a
conviction is against the manifest weight of the evidence, the appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses and determine whether, in resolving any conflicts in the
evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial must be ordered. Thompkins
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). A conviction should be reversed on manifest weight grounds only in the
most “’exceptional case in which the evidence weighs heavily against conviction.’”
Thompkins at 387 citing Martin at 175.
{¶ 39} Here, appellant asserts that this case “is all about witness credibility. Who
is telling the truth?” Appellant complains that the victim’s testimony was “rife with
inconsistencies and untruths,” and he specifically takes issue with evidence, or lack
thereof, that the state relied upon to support the kidnapping and burglary counts. But, the
jury found appellant not guilty of those offenses. Thus, the jury—like appellant—may
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indeed have discredited the victim’s testimony that she could not escape from appellant,
despite many “public stops at various stores and locations” or that she could not have
called her “long-term FBI contact” for help. The jury may have also questioned the
absence of surveillance videos that could have supported the victim’s testimony that she
remained under appellant’s control. Moreover, considering that appellant was also found
not guilty of burglary, it is likely that the jury was unconvinced that the audio from the
victim’s phone call with C.C. showed that it was appellant “kick[ing] in” her door. In
sum, as to the burglary and kidnapping offenses, the jury appears to have found the
victim’s testimony less credible than appellant’s. Such was the province of the jury,
which was “free to accept or reject evidence, to note ambiguities and inconsistencies in
testimony—whether between several witnesses or in the conflicting statements of a single
witness—and to resolve or discount them accordingly. Jurors may accept as true all,
some or none of what a witness tells them.” State v. Fell, 6th Dist. Lucas No. L-10-1162,
2012-Ohio-616. And, finally, we note that appellant does not specifically challenge the
evidence relied upon by the state to support its felonious assault or tampering
convictions, other than to characterize the victim as a “proven liar.” “We are not
persuaded that an errant verdict resulted merely because the jury believed the victim
rather than [the appellant].” Id.{¶ 40} A review of the record shows that there was credible evidence to support
appellant’s conviction for felonious assault and tampering with evidence, and we cannot
find the evidence weighed heavily against the conviction, or that a manifest miscarriage
19
of justice occurred. Accordingly, we find appellant’s third assignment of error not well-
taken.
F. Conclusion
{¶ 41} We conclude that appellant’s conviction for felonious assault and
tampering with evidence were not against the weight or sufficiency of the evidence.
Similarly, we find that the trial court did not err in denying appellant’s request for a
mistrial. Accordingly, we find appellant’s assignments of error not well-taken, and we
affirm the February 15, 2022 judgment of the Wood County Court of Common Pleas.
Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
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.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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