State v. McCurdy , 2013 Ohio 5710 ( 2013 )

[Cite as State v. McCurdy, 2013-Ohio-5710.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 13AP-321
(C.P.C. No. 10CR-3477)
v. :
(REGULAR CALENDAR)
Charlene A. McCurdy, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 24, 2013
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.
Todd W. Barstow & Associates and Todd W. Barstow, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Charlene A. McCurdy ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas convicting her of felonious
assault, a second-degree felony, and sentencing her to three years of community control.
We affirm.
I. Case History
{¶ 2} Appellant was indicted and charged with a violation of R.C. 2903.11, the
felonious assault statute. The indictment accused appellant of knowingly causing serious
physical harm to L.L. by means of a deadly weapon or dangerous ordnance, i.e., a knife
and/or cutting instrument. Appellant entered a not guilty plea.
{¶ 3} The case was tried to a jury. At the conclusion of the state's case, appellant
moved for dismissal of the charge pursuant to Crim.R. 29, contending that the state had
No. 13AP-321 2
not produced sufficient evidence to support a finding of guilt. The trial court granted the
motion in part, finding that the state had produced insufficient evidence that appellant
had used a knife or other cutting instrument, or any other deadly weapon or dangerous
ordnance, to wound L.L. However, it instructed the jury that it could find appellant guilty
of felonious assault if it found that she had knowingly caused serious physical harm to
L.L. The jury returned a guilty verdict. The court sentenced appellant to three years of
community control.
{¶ 4} This case is now before this court pursuant to our grant of a motion for leave
to file a delayed appeal.
II. Assignments of Error
{¶ 5} Appellant timely appealed from her conviction, raising a two-pronged
assignment of error. The assignment of error raises issues of the sufficiency of the
evidence and the manifest weight of the evidence, as follows:
THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
OF DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION TEN OF
THE OHIO CONSTITUTION BY FINDING HER GUILTY OF
FELONIOUS ASSAULT AS THAT VERDICT WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. Analysis
A. Sufficiency of the Evidence
{¶ 6} Appellant first argues that her conviction of felonious assault was not
supported by sufficient evidence.
Sufficiency of the evidence is a legal standard that tests
whether the evidence is legally adequate to support a
verdict. * * * Whether the evidence is legally sufficient to
support a verdict is a question of law, not fact. * * * In
determining whether the evidence is legally sufficient to
support a conviction, "[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." * * * A verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the
No. 13AP-321 3
prosecution, it is apparent that reasonable minds could not
reach the conclusion reached by the trier of fact.
(Citations omitted.) State v. Ingram, 10th Dist. No. 11AP-1124, 2012-Ohio-4075, ¶ 18-19.
{¶ 7} In reviewing the sufficiency of the evidence, a court must not evaluate the
credibility of witnesses but, rather, must assume that the state's witnesses testified
truthfully and determine if that testimony satisfies each element of the crime. Id.,citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80, and State v.
Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 8} We turn to examination of the testimony offered by the state's witnesses to
determine whether the state produced sufficient evidence to support a jury's finding of the
existence of the elements of felonious assault. Those elements, as relevant to appellant's
conviction, are stated in R.C.2903.11(A)(1):
No person shall knowingly * * *
(1) Cause serious physical harm to another or to another's
unborn[.]
{¶ 9} The state was therefore required to introduce evidence that appellant
caused serious physical harm to the victim and did so knowingly.
{¶ 10} The state called as its first witness the victim, L.L. L.L. testified that, on
May 15, 2010, she was living in a home on South Oakley Avenue in Columbus with her
boyfriend and son. She stated that, on that afternoon, appellant had made repeated
telephone calls to her for approximately one hour before repeatedly driving by the house
and blowing the horn and cursing. After exchanging words, L.L. eventually approached
appellant, and the two women began fighting. L.L. testified that, when she approached
appellant, appellant grabbed her by the neck and they began to tussle and fight. The
women eventually ended up in the middle of the street near appellant's car. During the
fight, appellant was slammed against her car and to the ground. The fight ended when
L.L.'s boyfriend broke it up. Appellant then drove off.
{¶ 11} After the fight, L.L. became aware that she was bleeding. She went to the
hospital and called the police. At the hospital, she received multiple stitches which closed
cuts on her cheek and on her upper chest near her neck. The state introduced photos
No. 13AP-321 4
showing the wounds sutured by approximately six stitches on L.L.'s left lower cheek and
eleven stitches on her chest. L.L. testified that she had permanent scars on both her chest
and cheek and showed those scars to the jury.
{¶ 12} The state also called a Columbus police officer, Nicholas Sears, as a witness.
On the day of the incident, Officer Sears interviewed appellant at a local hospital.
Appellant had been transported to the hospital by Columbus Fire Department medics,
and hospital staff called the police. Appellant told Officer Sears that she had been driving
on Oakley Street and honking because she intended to pick up someone, but she denied
knowing L.L. After speaking with appellant, Officer Sears also spoke with L.L., who
played a voicemail for him and observed her cuts. After also speaking to a witness who
lived across the street from L.L., Officer Sears placed appellant in custody and arrested
her for telephone harassment. He referred the incident to the police department's assault
squad.
{¶ 13} The state's final witness was a neighbor, who testified that he had observed
the two women fighting on May 15. He testified that appellant had told the second
woman involved in the fight to come out of her house, which she did, and the fight then
started.
{¶ 14} The defense did not call any witnesses.
{¶ 15} We first consider whether the evidence was sufficient to support a finding
that appellant possessed the requisite mental state required for conviction of felonious
assault. That is, we must determine whether appellant knowingly caused serious physical
harm to L.L.
{¶ 16} We determine that sufficient evidence was produced to support the jury's
finding that appellant acted knowingly. "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. A person has knowledge of circumstances when he is
aware that such circumstances probably exist." R.C. 2901.22(B). "[F]elonious
assault under R.C. 2903.11, combined with the definition of "knowingly" found in R.C.
2901.22(B), does not require that a defendant intended to cause 'serious physical harm,'
but rather, that the defendant acted with an awareness that the conduct probably would
No. 13AP-321 5
cause such harm." (Emphasis added.) State v. Smith, 10th Dist. No. 04Ap-726, 2005-
Ohio-1765, ¶ 28, citing State v. Lee, 10th Dist. No. 97APA12-1629 (Sept. 3, 1998).
{¶ 17} In a case similar to that now before us, this court observed over 20 years
ago that a defendant who knowingly participated in a fight and struck repeated blows to
the face of another acted with knowledge that serious physical harm was a likely result.
State v. Edwards, 83 Ohio App.3d 357 (10th Dist.1992). In this case, the jury saw
photographs of L.L.'s cheek, a part of her face which had sustained a cut that required
suturing. They also saw a photograph of a significantly longer cut on the victim's chest.
The jury heard evidence that appellant had been engaged in a physical fight with L.L. over
a period of time before the fight was broken up. Construing the evidence, as we must, in a
light most favorable to the prosecution, the jury could rationally reach the conclusion that
appellant acted with an awareness that her conduct probably would cause serious harm to
L.L. and, therefore, acted knowingly.
{¶ 18} Similarly, the evidence was sufficient to support the second element of
felonious assault at issue in this case, i.e., that L.L. suffered serious physical harm. We
note that "serious physical harm" is defined to include "any physical harm which involves
some permanent disfigurement." R.C. 2901.01(A)(5)(d). As in Edwards, the victim in
this case suffered cuts in the fight, which required multiple stitches and left a scar or
scars. As in Edwards, "a jury could reasonably find [the victim] sustained some
permanent disfigurement constituting 'serious physical harm.' " Edwards at 360.
{¶ 19} This court has more recently overruled a sufficiency-of-the-evidence
argument where an assault victim testified that she sustained a laceration on her forehead
and scalp during a fight and had been treated at the hospital. We cited with approval an
Eighth District Court of Appeals decision holding that "where injuries are serious enough
to cause a victim to seek medical treatment, a jury may reasonably infer that the force
used by a defendant caused serious physical harm." State v. Johns, 10th Dist. No. 11AP-
203, 2011-Ohio-6823, ¶ 15, citing State v. Walker, 8th Dist. No. 52391 (June 18, 1987).
The jury could reasonably infer that those injuries were caused by appellant's actions
during the fight. Accord State v. Dunham, 118 Ohio App.3d 724, 729-30 (1st Dist.1997)
("The photographs of [the victim's] appearance immediately after the brawl, introduced
No. 13AP-321 6
as evidence in the trial, demonstrate conclusively the severity and the probable
permanent effects of the trauma inflicted upon him.").
{¶ 20} Appellant argues that the evidence was insufficient because the state did not
produce specific evidence as to how L.L. sustained lacerations, noting that no witness saw
appellant holding or using a knife or other cutting instrument. The jury, however, was
entitled to draw reasonable inferences from the evidence. The state's witnesses testified
that L.L. was cut and bleeding immediately after the fight, requiring medical treatment.
Moreover, Officer Sears testified that appellant also had blood all over her after the fight.
It was reasonable for the jury to infer that L.L.'s injuries were caused by appellant's
conduct during the fight, regardless of the precise way in which the injuries were caused.
L.L. specifically testified that she did not cut herself.
{¶ 21} Appellant further argues that L.L. acknowledged that she willingly engaged
in mutual combat with appellant. But where two persons agree to fight each other in a
non-competitive boxing situation, each may be held guilty of assault and guilty of
felonious assault in violation of R.C. 2903.11(A)(1) where the harm visited upon one of the
fighters constitutes serious physical harm. Id. "The fact that street fighters agree to
engage in a public brawl to settle old or current differences cannot and does not negate
the penal consequences." Id. at 729.
{¶ 22} We therefore overrule appellant's contention in her assignment of error that
her conviction should be reversed because it is not supported by sufficient evidence.
B. Manifest Weight of the Evidence
{¶ 23} Appellant further argues that her conviction was against the manifest
weight of the evidence. We begin by considering the governing legal standards for a
manifest-weight challenge:
"While sufficiency of the evidence is a test of adequacy
regarding 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." * * * "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
factfinder's resolution of the conflicting testimony." * * *
" 'The court, reviewing the entire record, weighs the evidence
No. 13AP-321 7
and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in
the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.' " * * * This discretionary
authority " 'should be exercised only in the exceptional case
in which the evidence weighs heavily against the
conviction.' " * * *
(Citations omitted.) State v. McClendon, 10th Dist. No. 11AP-354, 2011-Ohio-6235, ¶ 7.
{¶ 24} In light of the evidence discussed above, including the photographs of L.L.'s
injuries, and her testimony concerning her encounter with appellant on May 15, 2010, and
applying the standard stated above, we do not find that the jury clearly lost its way in
resolving conflicts and assessing the credibility of witnesses. The jury did not create a
manifest miscarriage of justice, nor did it lose its way, in finding appellant guilty of
felonious assault.
{¶ 25} We therefore overrule appellant's contention in her assignment of error that
her conviction should be reversed as being against the manifest weight of the evidence.
IV. Conclusion
{¶ 26} For the foregoing reasons, we overrule appellant's assignment of error and
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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