[Cite as State v. Du,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2010-CA-27 : v. : Trial Court Case No. 06-CR-389 : CHI Q. DU : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 9th day of December, 2011.

.........

STEPHEN K. HALLER, Atty. Reg. #0009172, by ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. #0072135, 424 Patterson Road, Dayton, Oho 45419 Attorney for Defendant-Appellant

.........

HALL, J.

{¶ 1} Chi Q. Du appeals from his conviction and sentence on two counts of

attempted aggravated murder.

{¶ 2} Du advances four assignments of error on appeal. First, he claims one 2

of the two convictions is against the manifest weight of the evidence. Second, he

challenges the legal sufficiency of the evidence to support that conviction. Third, he

contends the trial court erred in admitting evidence of injuries involving a charge to

which he had pleaded guilty. Fourth, he asserts that the trial court erred in imposing

maximum, consecutive sentences without making required findings.

{¶ 3} The charges against Du stemmed from a knife attack in a Wright State

University parking lot on October 28, 1997. Late that evening, Du accompanied his

former girlfriend, Thuy Mai, and her new boyfriend, Eric Borton, out of a campus

building and into the parking lot. Borton walked in front as Du and Mai followed a

short distance behind and talked. Borton then heard Mai scream. He looked back

and saw Du holding a knife to her throat. Du proceeded to cut Mai’s neck and stab

her several times. Borton removed his jacket and charged Du, who side-stepped the

advance, cut Borton’s face, and stabbed him in the chest and abdomen. After Borton

fell, Du returned to Mai, stabbing her several more times and cutting her neck while

saying, “die, die.” Du then fled the scene. He was arrested years later in Canada and

returned to Ohio.

{¶ 4} On March 15, 2010, Du pleaded guilty to attempted aggravated murder

of Mai. He pleaded not guilty to attempted aggravated murder of Borton. Following a

jury trial, Du was convicted of that offense. The trial court imposed consecutive

ten-year prison sentences for the two convictions. This appeal followed.

{¶ 5} As set forth above, Du’s first two assignments of error challenge the

legal sufficiency and manifest weight of the evidence to support his conviction for

attempted aggravated murder of Borton. In these assignments of error, Du disputes 3

whether the State established that he “purposefully” and with “prior calculation and 1 design” attempted to cause Borton’s death.

{¶ 6} When a defendant challenges the sufficiency of the evidence, he is

arguing that the State presented inadequate evidence on an element of the offense

to sustain the verdict as a matter of law. State v. Hawn (2000),

. “An appellate court’s function when reviewing the sufficiency of the evidence to

support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks (1991),

, paragraph two of the

syllabus.

{¶ 7} Our analysis is different when reviewing a manifest-weight argument.

When a conviction is challenged on appeal as being against the weight of the

evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, 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.” State v. Thompkins,

,

. A

judgment should be reversed as being against the manifest weight of the evidence

1 R.C. 2903.01, the aggravated murder statute, provides that “[n]o person shall purposely, and with prior calculation and design, cause the death of another[.]” R.C. 2903.01(A). Du was convicted of attempting to violate R.C. 2903.01(A). 4

“only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Martin (1983),

.

{¶ 8} With the foregoing standards in mind, we turn to the evidence before

us. Trial testimony established that Du and Mai dated for one and a half to two years

while they were students at Wright State. Their relationship became “rocky,” and they

eventually quit dating. (Trial transcript at 195). After the break up, Du’s behavior

gradually changed. He began following Mai everywhere. (Id.). He would show up

outside her classes even though he no longer was a student. Mai also saw Du

appear other places, including the library, a restaurant, on the highway, and even at

her house. (Id. at 197-203). Mai testified that it was as if Du had her schedule and

showed up everywhere she went. (Id. at 203). Whenever Du appeared, he would

attempt to talk to Mai about reviving their relationship. (Id.). At one point, Du admitted

to Mai that he had been watching her sleep. (Id. at 197, 199). Mai found a shopping

cart underneath her bedroom window and assumed that Du had used it to look in her

room. (Id. at 199).

{¶ 9} Du’s behavior toward Mai “got worse” after she began dating Borton.

(Id. at 205-206). He appeared with more frequency and continued trying to talk to her

about reconciling. Mai discussed Du’s “stalking behavior” with Borton, but she

decided not to report it to police, fearing that it would get even worse. (Id. at 207).

About a week before the incident at issue, Du appeared in a computer lab where Mai

and Borton were working together. (Id. at 278). Du began pleading with Mai about

getting back together. (Id. at 279). When Mai briefly left the room, Borton confronted

Du, asking him to leave Mai alone. Du did not respond. (Id. at 280-281). Later that 5

day, Du approached Borton alone in a campus parking lot. After inquiring about Mai’s

whereabouts, Du told Borton, “You’re a pretty nice guy. I would hate to see

something happen to you but I won’t give up on getting her back.” (Id. at 281-282).

{¶ 10} Borton next encountered Du on the day of the knife attack. That

afternoon, Borton saw Du talking to Mai in the school library. Du once again was

pleading to get back together with Mai. Borton and Mai decided to leave, and they

began walking to Borton’s car. Du followed them and asked Borton whether he would

be willing to die for Mai. Borton said that he would. (Id. at 287). Du responded by

becoming “visibly upset” and cursing at Borton. (Id. at 288). Du continued following

Borton and Mai. When they reached Borton’s car, Mai rebuffed Du’s attempt to kiss

her. (Id.). Later that evening, Borton and Mai were watching a movie at Borton’s

apartment when they heard a knock on the door. Fearing that it might be Du, they did

not answer the door. (Id. at 290).

{¶ 11} Between 7:00 p.m. and 9:00 p.m. that evening, another Wright State

student, Bichnhu Nguyen, was studying in the school library. Du approached her and

asked where Borton and Mai were. (Id. at 180). Du appeared “agitated” and “anxious

to find them.” (Id.). Shortly thereafter, Nguyen called Borton and told him about her

encounter with Du. (Id. at 181). Later that night, sometime after 11:00 p.m., Borton

and Mai returned to Wright State so Mai could retrieve a jacket. (Id. at 291). While

they were at the school, Du arrived and found them. (Id. at 292). As he had

previously, Du began pleading with Mai to return to him. During the encounter, Du

mentioned having been to Borton’s apartment looking for them. (Id.). Borton and Mai

proceeded to leave the building and head toward Borton’s car. (Id. at 300-302). Du 6

followed them to the parking lot. At some point, Borton got ahead of Du and Mai. He

then heard Mai scream. (Id. at 303).

{¶ 12} Borton turned and saw Du holding a knife under her throat. (Id.). Du

threatened to kill Mai if Borton moved. (Id. at 303). In response, Borton tried talking

to Du to diffuse the situation. Du told Borton to shut up and stated, “If I can’t have her

th[e]n no one can.” (Id. at 304). Du then cut Mai’s neck and began stabbing her. Mai

fell to the ground. (Id. at 304-307). Borton rushed to Mai’s defense. He charged

toward Du, who grabbed his shirt and stabbed him. The attack left Borton with

multiple stab wounds to the right and left sides of his chest and abdomen. (Id. at 42).

Borton fell to the ground and pretended to be dead. (Id. at 307-309). He then

watched as Du returned to Mai and continued stabbing her. (Id. at 310). When Mai

stopped moving, Du fled on foot. (Id.).

{¶ 13} On cross-examination, Borton provided additional testimony about the

incident. He agreed with defense counsel that when he turned and saw Du holding a

knife at Mai’s throat Du advised him to leave or “get out of here.” (Id. at 337). When

questioned further by defense counsel, Borton then denied that Du warned him to

“back off” or to “stay away.” Instead, Borton recalled Du telling him not to move. (Id.

at 338). For her part, Mai recalled Du telling Borton to “[g]o away.” (Id. at 226). Mai’s

impression was that Du wanted Borton to leave them alone. (Id. at 261-262).

{¶ 14} In light of the foregoing evidence, Du disputes whether the State

established that he “purposefully” and with “prior calculation and design” attempted

to cause Borton’s death. With regard to purposefulness, Du claims that the stab

wounds he made to Borton do not indicate a specific intent to cause death because 7

they were not directed at the throat, heart, or spine. Du also stresses that he

discontinued the stabbing when Borton collapsed. With regard to prior calculation

and design, Du contends the evidence does not suggest a scheme to implement a

calculated decision to kill Borton. Du notes that he did not act aggressively toward

Borton until after Borton charged him. Du also points to the testimony that he told

Borton to leave him alone with Mai. According to Du, events in the parking lot

“unfolded quite quickly,” leaving him with insufficient time to form a plan to kill Borton.

{¶ 15} Upon review, we find Du’s arguments to be unpersuasive. A person

acts purposely “when it is his specific intention to cause a certain result[.]” R.C.

2901.22(A). A jury may infer purpose to cause death when a defendant inflicts a

wound with a deadly weapon in a manner that appears to be calculated to kill. State

v. Stallings,

, 291,

. The number and location of a

victim’s stab wounds, and the manner in which they were inflicted, may support an

inference of a specific intent to kill. State v. Hayden (Sept. 16, 1997), Franklin App.

No. 95APA05-559. A defendant need not stab his victim in the throat, heart, or spine

to support a finding of purposefulness. In State v. Luster (July 25, 1985), Franklin

App. No. 84AP-729, the Tenth District held that intent to kill could be inferred where

the defendant stabbed the victim in the abdomen. We agree. The record reflects that

Du drove a serrated knife into Borton’s chest and abdomen multiple times. In light of

this evidence, the jury reasonably could have inferred that Du purposefully attempted

to cause Borton’s death. Such a conclusion is supported by legally sufficient

evidence and is not against the weight of the evidence.

{¶ 16} We reach the same conclusion with regard to prior calculation and 8

design. “There is no bright-line test to determine whether prior calculation and design

are present. Rather, each case must be decided on a case-by-case basis.” State v.

Braden,

,

, ¶61. “However, where the evidence

presented at trial ‘reveals the presence of sufficient time and opportunity for the

planning of an act of homicide to constitute prior calculation, and the circumstances

surrounding the homicide show a scheme designed to implement the calculated

decision to kill, a finding by the trier of fact of prior calculation and design is justified.’”

State v. Fry,

,

, quoting State v. Cotton

(1978),

, paragraph three of the syllabus.

{¶ 17} Here the evidence supports a finding that Du acted with prior

calculation and design when he attempted to kill Borton. The record reveals that Du

and Borton were rivals for Mai’s affection. Du’s stalking behavior intensified after Mai

began dating Borton, whose involvement with her angered Du. Approximately one

week before the knife attack, Du made a veiled threat to Borton, telling him, “I would

hate to see something happen to you but I won’t give up on getting [Mai] back.” On

the afternoon of the attack, Du became “visibly upset” and cursed when Borton

stated that he would die for Mai. That evening, Du sought a confrontation at Borton’s

apartment but was unsuccessful. Shortly thereafter, Du asked Wright State student

Nguyen if she knew where Borton and Mai were. Du seemed “agitated” and “anxious

to find them.” This evidence supports a finding that Du was planning a confrontation

with both of his victims.

{¶ 18} We note, too, that Du, armed with a knife, followed both Borton and

Mai to a poorly lit parking lot that evening. He then viciously attacked Mai, despite 9

having been advised earlier in the day that Borton was willing to die for her.

Therefore, the jury reasonably could have inferred that Du’s attack on Mai was part

of a tactic calculated to engage Borton as well. The record also contains testimony

that Du told Borton not to move during the initial knife attack on Mai. This act of

ordering Borton to remain present during the assault on Mai supports an inference

that he planned to attack Borton next.

{¶ 19} In reaching the foregoing conclusion, we recognize the existence of

seemingly conflicting testimony about whether Du ordered Borton not to move or, in

fact, advised him to go away. The jury was instructed on the lesser charge of

attempted murder, and it could have found Du guilty of that crime, in the absence of

prior calculation and design, if it believed that he simply wanted Borton to go away

and did not plan to attack him. Based on all of the evidence before us, however, the

jury’s finding of prior calculation and design, and the corresponding finding of guilty

for the attempted aggravated murder of Borton, is supported by legally sufficient

evidence and is not against the manifest weight of the evidence. The evidence

presented at trial supports a finding of guilt beyond a reasonable doubt, and the

evidence does not weigh heavily against Du’s conviction. Accordingly, his first two

assignments of error are overruled.

{¶ 20} In his third assignment of error, Du claims the trial court erred in

allowing testimony regarding Mai’s injuries and in allowing the State to display

pictures of those injuries. Given that he already had pleaded guilty to attempted

aggravated murder of Mai, Du contends any probative value of the testimony and

pictures was substantially outweighed by the danger of unfair prejudice, confusion of 10

the issues, or misleading the jury. Therefore, he argues that the testimony and

pictures should have been excluded under Evid.R. 403(A).

{¶ 21} When determining whether the probative value of evidence is

outweighed by its prejudicial effects, the evidence is viewed in a light most favorable

to the proponent, maximizing its probative value and minimizing any prejudicial effect

to the party opposing admission. State v. Lakes, Montgomery App. No. 21490,

. The decision to admit or exclude relevant evidence is

committed to the sound discretion of the trial court.

We will not disturb a trial

court’s ruling on the admissibility of evidence under Evid.R. 403(A) absent an abuse

of discretion.

{¶ 22} We find no abuse of discretion here. Evidence regarding the nature

and extent of Mai’s injuries was admissible for at least two reasons. First, it was

relevant for the State to establish Du’s murderous intent when he stabbed Borton.

Indeed, Du’s intent when he attacked Mai was indicative of his intent when he

stabbed Borton because the two incidents occurred almost simultaneously. We

hesitate to characterize the attack on Mai as other “crimes, wrongs or acts” evidence

as included in Evid. R. 404(B) because the attack on Mai is a cohesive part of the

same event. However, 404(B) is at least instructive to indicate that other acts

evidence of one’s “motive,* * * intent, * * * [and] plan” may be admitted to prove those

components when relevant. The vicious nature of the attack on Mai, as shown

through the disputed evidence, was relevant to prove motive and intent. Second, as

noted above, evidence regarding the nature and extent of Mai’s injuries was relevant

to the issue of prior calculation and design. The fact that Du violently attacked Mai in 11

Borton’s presence, despite knowing that Borton was willing to die for her, supports an

inference that the jury could draw that the attack on Mai was calculated to result in

Borton’s death as well. The trial court did not act unreasonably or arbitrarily in finding

that the probative value of the disputed evidence was not substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The

third assignment of error is overruled.

{¶ 23} In his fourth assignment of error, Du asserts that the trial court erred in

imposing maximum, consecutive sentences without making findings under R.C.

2929.14(E)(4). We disagree. As an initial matter, we note that the provision does not

address maximum sentences. It addresses only consecutive sentences. Although

the language of R.C. 2929.14(E)(4) does require certain findings before a trial court

may impose consecutive sentences, the statute had no applicability here. In State v.

Foster,

,

, the Ohio Supreme Court declared the

requirements imposed by R.C. 2929.14(E)(4) unconstitutional and held that “judicial

fact-finding is not required before imposition of consecutive prison terms.” Id. at ¶99.

Thereafter, in State v. Hodge,

,

, the Ohio Supreme

Court “reiterated that R.C. 2929.14(E)(4) remained unconstitutional and imposed no

fact-finding obligation on Ohio’s trial courts.” State v. Ford, Clark App. No. 11-CA-26,

. The General Assembly recently amended R.C. 2929.14(E)(4)

and enacted new language requiring fact-finding for consecutive sentences. See

Am.Sub.H.B. No. 86. This legislation, which had an effective date of September 30,

2011, was not applicable to Du, who received his sentence in March 2010.

Accordingly, his fourth assignment of error is overruled. 12

The judgment of the Greene County Common Pleas Court is affirmed.

..............

GRADY, P.J., and DONOVAN, JJ., concur.

Copies mailed to:

Stephen K. Haller Elizabeth A. Ellis Jay A. Adams Hon. Michael A. Buckwalter