[Cite as State v. Feagin,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 14CA11 : TERRY J. FEAGIN : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2013 CR 0728 D

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 14, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JAMES J. MAYER, JR. WILLIAM T. CRAMER RICHLAND CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200 JOHN C. NIEFT Westerville, OH 43082 38 South Park St. Mansfield, OH 44902 Richland County, Case No. 14CA11 2

Delaney, J.

{¶1} Appellant Terry J. Feagin appeals from the Sentencing Entry of January

23, 2014 of the Richland County Court of Common Pleas. Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on October 12, 2013 around 12:30 a.m. in the Richland

County Jail during “commissary,” a time period when inmates are permitted to buy food

and supplies. Inmates often stay up all night talking and drinking coffee during

commissary. Appellant, Jason Jarvis, and Austin Risner were inmates in the jail, in the

same pod.

{¶3} Earlier that day, appellant was in the shower when Risner was “doing

squats” in the bathroom outside the shower. Appellant confronted Risner and asked

why he was working out in the bathroom while someone else was showering. Risner

left the bathroom and the confrontation ended without further incident.

The Assaults

{¶4} Later, during commissary, an inmate remarked upon a newspaper

photograph of a high-school girls’ volleyball team, stating the girls would be 18 when

he got out of jail. In reply, Risner stated something along the lines of “don’t judge a

book by its cover” because “his neighbor was 12 years old but looked like she was in

high school.” Appellant approached Risner, stating he had a 12-year-old daughter and

accusing Risner of being a pedophile. Risner stated he meant nothing by the

statement. As Risner sat at a table eating, appellant approached him and punched him

several times in the left side of his face. Richland County, Case No. 14CA11 3

{¶5} During this altercation, a group of inmates sat nearby playing cards.

Shortly after the assault by appellant, one of those inmates, Jason Jarvis, stood up,

grabbed Risner by the back of the head, and struck him repeatedly with uppercut

punches from behind.

{¶6} Reportedly Risner did not immediately report the assaults. He cleaned

himself up and went about his business, but soon the pain around his eye socket

became worse and other inmates told him “something was wrong with [his] face.”

Risner initially told corrections officers he fell in the shower, but after he was separated

from other inmates he reported the assaults.

{¶7} Risner was transported to MedCentral Hospital where he was found to

have “complex facial fractures,” meaning multiple bones of his face were moved out of

place. He was transported to Grant Hospital in Columbus for specialized facial

surgery.

The Jail Investigation Yields Video of the Incident

{¶8} Most areas of the Richland County Jail are on camera and corrections

officers were able to find film of the assaults. Appellant and Jarvis were identified from

the videotape by corrections officers and by Risner. Appellant was disciplined with 10

days in “lockdown” and was moved to a maximum-security pod.

{¶9} During the jail discipline process, appellant was granted a hearing with

Sgt. James. Appellant told James he pushed Risner but did not hit him and Risner was

fine when appellant walked away from him. James watched the jail video, however,

and determined appellant assaulted Risner by punching him. Richland County, Case No. 14CA11 4

Indictment, Trial, and Conviction

{¶10} Appellant was charged by indictment with one count of aiding and

abetting felonious assault pursuant to R.C. 2903.11(A)(1), a felony of the second

degree. Appellant entered a plea of not guilty and the case proceeded to trial by jury.

{¶11} Appellee’s evidence at trial consisted of the testimony of several

corrections officers, Risner, and the doctor who evaluated Risner at MedCentral.

Appellee’s exhibits included the videotape of the incident at the jail, Risner’s medical

records, and photos of his injuries.

{¶12} Appellant was the only witness in his own defense. He testified to the

verbal confrontations with Risner which culminated when he “mugged [Risner’s] face”

with his finger, causing him to fall back. On direct, appellant testified he walked away

and later heard the sounds of a fight, looked up, saw Jarvis assaulting Risner, and

heard a loud crack. Appellant stated he had no contact with Jarvis regarding the

incident and did not encourage him to assault Risner.

{¶13} On cross examination, appellant was confronted with the jail video and

admitted he, too, punched Risner in the face.

Corrections Officer James is Voir Dired by the Trial Court

{¶14} Outside the presence of the jury, after appellant’s testimony, Sgt. James

was brought back to be voir dired by the trial court over the matter of lockdown. During

his testimony, James was asked whether he told appellant Jarvis received more

lockdown time than he did. James responded he didn’t know how much lockdown time

Jarvis received because he didn’t recall investigating Jarvis. Richland County, Case No. 14CA11 5

{¶15} During the voir dire outside the presence of the jury, the trial court stated

appellant alleged James had changed his testimony. James explained he was

confronted by appellant at the jail after his testimony and called a liar, so he reviewed

the discipline records and discovered a different corrections officer had investigated

Jarvis. Thus, James had testified truthfully he did not know the outcome of the Jarvis

investigation or how much lockdown time each received.

{¶16} During this voir dire, James stated he asked other inmates present if

anyone had anything to say in defense of appellant, and no one came forward.

Several days later, however, an inmate trustee named Williams told him Risner’s face

made a cracking sound when he was struck by Jarvis.

{¶17} Defense counsel stated this was the first time he was told the trustee’s

name and requested a continuance, which was denied. (T. 244).

Jury Question and Verdict

{¶18} The trial court instructed the jury upon aiding and abetting felonious

assault and the lesser included offense of simple assault. During deliberations, the jury

asked whether they could “seperate (sic) the felonious assault from the aiding and

abetting in the charge or do we have to find the * * * entire charge.” The trial court

responded, over objection by appellant, “ * * * [Y]ou may return a verdict of guilty for

aiding and abetting felonious assault if you find beyond a reasonable doubt that

[appellant] either knowingly caused * * * the serious physical harm to Mr. Risner

himself or that he aided and abetted, under the definition in your instructions, Mr. Jarvis

in causing serious physical harm to Mr. Risner.” Richland County, Case No. 14CA11 6

{¶19} The jury found appellant guilty of felonious assault and the trial court

sentenced him to a prison term of 6 years.

{¶20} Appellant now appeals from the judgment entry of his conviction and

sentence.

{¶21} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶22} “I. APPELLANT WAS DEPRIVED OF HIS RIGHT TO A UNANIMOUS

VERDICT UNDER PRINCIPLES OF DUE PROCESS AND CRIM.R. 31(A) WHEN THE

TRIAL COURT INSTRUCTED THE JURY THAT THEY COULD FIND HIM GUILTY OF

AIDING AND ABETTING FELONIOUS ASSAULT IF THEY FOUND THAT HE WAS

EITHER THE PRINCIPAL OR HE AIDED THE PRINCIPAL.”

{¶23} “II. APPELLANT’S STATE AND FEDERAL DUE PROCESS RIGHTS

WERE VIOLATED BY HIS CONVICTION FOR AIDING AND ABETTING FELONIOUS

ASSAULT BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE

CONVICTION.”

{¶24} “III. APPELLANT’S CONVICTION FOR AIDING AND ABETTING

FELONIOUS ASSAULT WAS NOT SUPPORTED BY THE WEIGHT OF THE

EVIDENCE.”

{¶25} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO

ALLOW A CONTINUANCE SO THAT THE DEFENSE COULD SUBPOENA A

RELEVANT WITNESS.” Richland County, Case No. 14CA11 7

ANALYSIS

II., III.

{¶26} In his second and third assignments of error, appellant argues his

conviction is against the manifest weight and sufficiency of the evidence. We disagree.

{¶27} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins,

,

,

, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in State

v. Jenks,

,

(1991) at paragraph two of the syllabus,

in which the Ohio Supreme Court held, “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.”

{¶28} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the Richland County, Case No. 14CA11 8

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶29} The jury found appellant guilty of one count of aiding and abetting

felonious assault pursuant to R.C. 2903.11(A)(1): “No person shall knowingly * * *

[c]ause serious physical harm to another * * *.” R.C. 2923.03(A)(2) states: “No person,

acting with the kind of culpability required for the commission of an offense, shall * * *

[a]id or abet another in committing the offense.” We further note R.C. 2923.03(F)

states, “Whoever violates this section is guilty of complicity in the commission of an

offense, and shall be prosecuted and punished as if he were a principal offender. A

charge of complicity may be stated in terms of this section, or in terms of the principal

offense.”

{¶30} Appellant’s arguments are premised upon the following characterization

of the evidence: Jarvis was the “principal offender” whose “more vicious and sustained

assault” upon Risner caused the serious physical harm. Upon our review of the record,

however, we find the evidence belies this assumption, most notably in the video

showing appellant striking Risner not once but multiple times. Appellant’s arguments

here are based upon his own self-serving testimony which the jury was free to accept

or reject.

{¶31} Appellant further argues aiding and abetting requires “some sort of active

involvement beyond mere presence at the crime scene” while acknowledging “the

evidence must show that the defendant supported, assisted, encouraged, cooperated

with, advised, or incited the principal in the commission of the crime, and that the

defendant shared the criminal intent of the principal. Such intent may be inferred from Richland County, Case No. 14CA11 9

the circumstances surrounding the crime.” (Emphasis added.) State v. Johnson,

, 245,

,

(2001). “Incite” means “[t]o

provoke or stir up (someone to commit a criminal act, or the criminal act itself).” Black's

Law Dictionary (9th ed. 2009). Viewing the evidence in the light most favorable to the

prosecution, the jury could reasonably find appellant incited Jarvis to the subsequent

attack on Risner.

{¶32} Appellant directs our attention to a “mob fight” rule first articulated by the

Ohio Supreme Court in Woolweaver v. State,

,

(1893),

arguing his mere presence at the scene does not rise to the level of the cooperation,

connection, or conspiracy required for aiding and abetting. We note, though,

Woolweaver holds “In such case, to constitute the person engaged in the fight an aider

or abettor of the homicide, it should appear, either that there was a prior conspiracy, or

that he purposely incited or encouraged the slayer, or did some overt act himself

with an intent to cause the death of his antagonist.” (Emphasis added.)

Woolweaver v. State,

,

(1893), paragraph two of the

syllabus. In the instant case, appellant was not merely present at the scene when an

independent actor suddenly inflicted serious physical harm upon the victim. The video

depicts what is in fact a sustained assault first by appellant, followed shortly thereafter

by Jarvis; the ferocity of appellant’s attack is such that the jury could reasonably

conclude he caused the serious physical harm.

{¶33} We have previously concluded “* * * a defendant violently striking the eye

area of another person, who had already been knocked to the ground, must be held to

know that this action will probably cause serious physical harm to such person.” State Richland County, Case No. 14CA11 10

v. Freeman, 5th Dist. Stark No. 2010 CA 00019,

, ¶ 16. Such is the

case here.

{¶34} We find reasonable triers of fact could have found, beyond a reasonable

doubt, appellant knowingly caused serious physical harm to Risner for purposes of

R.C. 2903.11(A)(1). Appellant's conviction upon felonious assault is supported by

sufficient evidence.

{¶35} Further, upon review of the trial record, including the video of the incident,

we find the jury did not clearly lose its way and create a manifest miscarriage of justice

requiring that appellant's conviction be reversed and a new trial ordered.

{¶36} Appellant’s second and third assignments of error are overruled.

I.

{¶37} In his first assignment of error, appellant argues the trial court erred in its

response to the jury question stating appellant is guilty of aiding and abetting felonious

assault if they found him either to be the principal or that he aided the principal. We

disagree.

{¶38} Appellant asserts he was denied a unanimous verdict because the jury

could find he was either the principal or and aider and abettor. A unanimous jury

verdict is required by Crim.R. 31(A). “Although Crim.R. 31(A) requires juror unanimity

on each element of the crime, jurors need not agree to a single way by which an

element is satisfied.” State v. Gardner,

,

,

, ¶ 38, citing Richardson v. United States,

,

,

(1999). “[A] ‘jury need not always decide unanimously which of

several possible sets of underlying brute facts make up a particular element, say, Richland County, Case No. 14CA11 11

which of several possible means the defendant used to commit an element of the

crime.’ ”

quoting Richardson.

{¶39}

does not support appellant’s argument. In that case, the

defendant’s aggravated-burglary conviction was vacated at the appellate level because

“the jury instructions did not specify that the jury needed to agree unanimously as to

which criminal offense [the defendant] intended to commit during the course of the

aggravated burglary.”1 Id. at ¶ 2. The Ohio Supreme Court’s analysis focuses on the

third element of “any criminal offense,” the issue being whether jurors must agree

unanimously which criminal offense a defendant intended to commit during a burglary.

Gardner,

at ¶ 32, 37. The Court observed that although Crim.R. 31(A)

requires juror unanimity on each element of the crime, jurors need not agree to a single

way by which an element is satisfied.

at ¶ 38, citing Richardson v.

United States,

,

,

(1999). The Court

reinstated the defendant’s conviction for aggravated burglary, distinguishing between

“alternative-means” and “multiple-acts” fact scenarios:

In an alternative means case, where a single offense may

be committed in more than one way, there must be jury unanimity

as to guilt for the single crime charged. Unanimity is not required,

however, as to the means by which the crime was committed so

long as substantial evidence supports each alternative means. In

1 To convict the defendant of aggravated burglary pursuant to R.C. 2911.11(A)(2), the state was required to establish (1) he trespassed in the victim’s home by use of force, stealth, or deception, (2) while someone other than his accomplice was present, (3) with the purpose to commit “any criminal offense” inside, (4) while carrying a deadly weapon or dangerous ordnance. Richland County, Case No. 14CA11 12

reviewing an alternative means case, the court must determine

whether a rational trier of fact could have found each means of

committing the crime proved beyond a reasonable doubt.

In multiple acts cases, on the other hand, several acts are

alleged and any one of them could constitute the crime charged. In

these cases, the jury must be unanimous as to which act or incident

constitutes the crime. To ensure jury unanimity in multiple acts

cases, we require that either the State elect the particular criminal

act upon which it will rely for conviction, or that the trial court

instruct the jury that all of them must agree that the same

underlying criminal act has been proved beyond a reasonable

doubt. (Citations omitted.)

State v. Gardner,

,

,

, ¶ 49-50.

{¶40} We find the instant case to be an alternative-means case, not a multiple-

acts case, the issue being what caused the victim’s serious physical harm. See State

v. Jeffery,

,

, ¶ 34-35 (2nd Dist.). The jury was not

required to agree whether appellant’s punches caused the serious physical harm (his

own conduct) or whether Jarvis’ punches caused the serious physical harm (appellant

complicit in Jarvis’ conduct) because each is an alternative form of aiding and abetting

felonious assault.

There is no distinction between a defendant convicted of

complicity or as a principal offender.

citing R.C. 2923.03(F). Richland County, Case No. 14CA11 13

{¶41} Having found this case to be an alternative means case, we “must

determine whether a rational trier of fact could have found each means of committing

the crime proved beyond a reasonable doubt.” Jeffery, supra,

,

citing Gardner at ¶ 49. As we have already determined in our analysis of appellant’s

second and third assignments of error, supra, we conclude a rational trier of fact could

have found each means of committing complicity to felonious assault proved beyond a

reasonable doubt.

{¶42} Appellant was not deprived of a unanimous jury verdict and his first

assignment of error is therefore overruled.

IV.

{¶43} In his fourth assignment of error, appellant argues the trial court should

have permitted a continuance so he could subpoena an alleged witness to the assault.

We disagree.

{¶44} Sgt. James identified the alleged witness during the voir dire after

appellant’s testimony. Defense trial counsel stated this was the first he heard of the

statement and the trustee’s name (Williams). Specifically, counsel stated: “Well, I

didn’t know. I don’t know. All I knew was [the corrections officer] told [appellant] that

somebody told him they heard a crack. And [appellant] said, well, Sergeant James told

him that. I never heard anybody’s name.” T. 243. The trial court denied the request

for continuance because appellant was aware of Williams’ statement and identity well

in advance of trial although he did not communicate the information to counsel.

{¶45} A trial court's decision to deny a continuance which would otherwise

enable a defendant to exercise his constitutionally-protected right to offer the testimony Richland County, Case No. 14CA11 14

of witnesses and compel their attendance may, in some circumstances, constitute a

denial of due process and we review the decision for an abuse of discretion. State v.

Blankenship, 5th Dist. Licking No. 2010-CA-118,

. First, though,

“[w]hen the reason for a continuance is to secure the attendance of a witness, ‘it is

incumbent upon the moving party to show that such witnesses would have given

substantial favorable evidence and that they were available and willing to testify.’”

citations omitted.

{¶46} In the instant case, defense trial counsel was admittedly aware, prior to

trial, someone made a statement about the victim’s face “cracking.” James testified

and was cross-examined, but no one asked him about witness statements. No

explanation was offered why appellant could not have learned Williams’ identity by

asking James prior to trial or even on the stand. The Williams matter only came up at

all because James was brought back, outside the presence of the jury, to explain a

discrepancy about which corrections officer investigated and disciplined Jarvis.

{¶47} Moreover, no proffer of anticipated testimony was made for the trial court

to weigh in determining whether appellant's rights would be jeopardized if the

continuance was not granted.

. It is not

evident from the record that Williams would have been willing to testify or what his

testimony would have been; the statement about the “crack” was hearsay as presented

by James.

{¶48} Under these circumstances, we are unable to find the trial court abused

its discretion in denying appellant’s motion for continuance. Appellant’s fourth

assignment of error is overruled. Richland County, Case No. 14CA11 15

CONCLUSION

{¶49} Appellant’s four assignments of error are overruled and the judgment of

the Richland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.