[Cite as State v. Redman,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-15-54

v.

JASON D. REDMAN, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR20140443

Judgment Affirmed

Date of Decision: March 7, 2016

APPEARANCES:

Kenneth J. Rexford for Appellant

Jana E. Emerick for Appellee Case No. 1-15-54

PRESTON, J.

{¶1} Defendant-appellant, Jason D. Redman (“Redman”), appeals the

August 24, 2015 judgment entry of sentence of the Allen County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} On October 17, 2014, the Allen County Grand Jury indicted Redman

on two counts, including: Count One of assault in violation of R.C. 2903.13(A)

and 2903.11(D)(1)(a), a first-degree misdemeanor, and Count Two of felonious

assault in violation of R.C. 2903.11(A)(1) and 2903.11(D)(1)(a), a second-degree

felony. (Doc. No. 1). This case stems from an altercation between Redman and

four women—Sharon Fay Amanda Weaver (“Weaver”), Patricia McKinney

(“McKinney”), Shelly Vettori (“Vettori”), and Penni Cash (“Cash”)—that

occurred on August 8, 2014. On that night, while walking to an establishment in

Lima, Ohio, the women crossed paths with Redman. Words and mutual shoving

were exchanged, which escalated to Redman allegedly punching Vettori one time

and Cash multiple times. Redman’s alleged conduct toward Vettori created the

basis for Count One of the indictment and his alleged conduct toward Cash created

the basis for Count Two of the indictment. Vettori suffered a split lip and Cash

sustained multiple breaks and fractures to her face and a concussion. (July 14,

2015 Tr. at 121).

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{¶3} The case proceeded to a jury trial on July 14-15, 2015. On July 15,

2015, the jury found Redman guilty as to the counts in the indictment. (Doc. Nos.

95, 96); (July 15, 2015 Tr., Vol. II, at 294). The trial court filed its judgment entry

of conviction on July 16, 2015. (Doc. No. 97). On August 24, 2015, the trial

court sentenced Redman to 180 days in jail on Count One and 2 years in prison on

Count Two, and ordered that Redman serve the terms concurrently. (Doc. No.

102); (Aug. 24, 2015 Tr. at 22).

{¶4} On August 25, 2015, Redman filed his notice of appeal. (Doc. No.

104). He raises four assignment of error for our review. For ease of our

discussion, we will first address together Redman’s second and third assignments

of error, followed by his first and fourth assignments of error.

Assignment of Error No. II

The verdict for Count II was not supported by sufficient evidence of serious physical harm and was not supported by sufficient evidence that Mr. Redman knew the probable harm was to be serious when he acted.

Assignment of Error No. III

The verdict for Count II was against the manifest weight of the evidence.

{¶5} In his second and third assignments of error, Redman argues that his

felonious-assault conviction is not supported by sufficient evidence and is against

the manifest weight of the evidence. In particular, Redman argues that the State

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failed to prove that he knew that his conduct would result in serious physical harm

to the victim and that Cash suffered serious physical harm.

{¶6} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,

(1997). As such, we address each legal concept individually.

{¶7} “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.” State v. Jenks,

(1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds as stated in State v. Smith,

(1997).

Accordingly, “[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.”

“In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts

nor assess the credibility of witnesses, as both are functions reserved for the trier

of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

, citing State v. Williams,

,

(1st Dist.). See also State v. Berry, 3d Dist. Defiance No.

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4-12-03,

(“Sufficiency of the evidence is a test of adequacy

rather than credibility or weight of the evidence.”), citing

.

{¶8} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘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.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters

relating to the weight of the evidence and the credibility of the witnesses. State v.

DeHass,

(1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.”

State v. Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v.

Hunter,

,

.

{¶9} The criminal offense of felonious assault is codified in R.C. 2903.11,

which provides, in relevant part: “No person shall knowingly * * * [c]ause serious

physical harm to another * * *.” R.C. 2903.11(A)(1). The requisite culpable

mental state for felonious assault is “knowingly.” “A person acts knowingly,

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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). “Serious physical harm” is any of the following:

(a) Any mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial

incapacity;

(d) Any physical harm that involves some permanent

disfigurement or that involves some temporary, serious

disfigurement;

(e) Any 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.

R.C. 2901.01(A)(5).

{¶10} The State presented testimony from seven witnesses during trial.

First, Weaver testified that Redman, with a closed fist, punched Cash in the face

several times. (July 14, 2015 Tr., Vol. I, at 49-50). Weaver described, “[Cash]

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went down several times. I can’t tell you how many times. But every time she

went down he would stand over her and start to go back down after her.” (Id. at

50). According to Weaver, Cash fell to the sidewalk because Redman hit her so

hard. (Id.). Weaver testified, “At one point he did hit her and she turned her head

and blood was just pouring out of her face.” (Id. at 53). On cross-examination,

Weaver testified that Redman pushed Cash, Cash pushed him back, “and then he

started punching her.” (Id. at 64). Weaver testified, “He hit her. I don’t know

how many times he hit her. She went down; yes,” and when she went down, “[h]e

looks at her and then he comes back at her again” “[t]o punch her again; to

continue to beat her up.” (Id. at 66). According to Weaver, Redman continued to

punch Cash while she was on the ground and punched Cash when she was trying

to stand back up. (Id. at 66-67).

{¶11} Next, McKinney testified that, after Redman punched Vettori, Cash

stepped between Redman and Vettori to defend Vettori, and Redman began

punching Cash in her face. (Id. at 77). According to McKinney, Redman punched

Cash at least four times, and Cash “went down” more than one time. (Id. at 83).

McKinney testified that Cash was bleeding while Redman was punching her.

(Id.). On cross-examination, McKinney testified that Cash went down to the

ground on either the first or second punch and that Cash went down at least three

times. (Id. at 88-90).

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{¶12} Third, Vettori testified, “[Redman] punched [Cash] in the face. She

went down. She got up. He punched her again. She went down. She got back

up. He punched her again. Then, when she was down [on the ground] he punched

her three times back to back.” (Id. at 101). According to Vettori, she could hear

every punch hit Cash’s face. (Id. at 103). Vettori testified that Cash was bleeding

“like a faucet. It was pouring out. At one point she turned her head and the blood

just sprayed across.” (Id.). Vettori further testified that Cash began bleeding with

the first punch. (Id. at 104).

{¶13} Cash testified that Redman punched her with a “full fist,” but that she

does not remember anything after the first punch until she pulled out her cell

phone from her pocket to call the police. (Id. at 116-117). However, Cash

testified that she could not use her phone to call the police because it “was filled

with blood so [she] just put it back in [her] pocket.” (Id. at 118). According to

Cash, she was bleeding a lot, and, when the police were questioning her, she had

to spit blood out of her mouth onto the sidewalk or the grass to be able to speak

with them. (Id. at 119). Regarding her injuries, Cash testified that she

experienced “instant swelling; pain; it just felt, I don’t know it hurt pretty bad.”

(Id. at 120). According to Cash, she has a high pain tolerance, but her “face was

broken and, yes, it hurt, and it swelled [and b]y the time [she] got to the hospital

[she] was thinking ‘can they just help [her], please’.” (Id.).

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{¶14} Cash testified that she was diagnosed with “three breaks in [her]

maxillary sinus * * * [p]lus, multiple fractures * * * [and] a concussion.” (Id. at

121). Cash testified that she was treated and released from the hospital, but had to

return to the hospital later the next day because she “started coughing up blood.”

(Id. at 122). As part of her medical treatment, Cash was seen by a plastic surgeon

“because they were worried about the facial bones and if [she] needed to have

surgery or not.” (Id.). However, according to Cash, the plastic surgeon advised

her against surgery and suggested she let her face heal on its own. (Id. at 123).

Cash also testified, “I slept for three days straight. I could not drink. My face had

swollen real big. Also, my eye was swollen almost shut. I did miss about ten days

of work due to the fact that I couldn’t work with not being able to talk.” (Id.).

{¶15} According to Cash, she has not yet healed from her injuries. (Id. at

124). Specifically, she described that she experiences discomfort during weather

changes, that her face swells and her lip droops from that swelling after working

an eight-hour shift, that she slurs her speech, that she has difficulty drinking from

a straw, and that she has lost feeling in a portion of her face. (Id.). According to

Cash, she has permanent nerve damage in her face, which has required additional

treatment. (Id.). Cash testified that a nerve block was initially used to treat that

nerve damage, but it was unsuccessful, so she is going to try a course of treatment

involving Botox injections to relieve her pain. (Id.). Moreover, Cash described

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that she experiences migraine headaches and takes migraine pills and nerve-block

pills to relieve that pain. (Id. at 124-125). Cash identified State’s Exhibits 3 and 4

as true and accurate photographs taken of her facial injuries on August 8, 2014.

(Id. at 119-120). On cross-examination, Cash testified that she did not recall most

of her encounter with Redman because she lost consciousness after the first punch.

(Id. at 127, 131).

{¶16} Next, Patrolman Mark Link (“Patrolman Link”) of the Lima Police

Department testified that he and another Lima Police Department officer were

patrolling on Main Street in Lima when they were flagged down by the women.

(Id. at 146). He testified that Redman “had already walked past [him] on [his]

driver’s side and past the cruiser and was continuing to walk northbound” at the

time he arrived at the scene. (Id. at 149). Patrolman Link testified that he asked

Redman to stop and return to the area of his cruiser after he learned from the

women that Redman was involved in the altercation. (Id.). According to

Patrolman Link, Redman complied with his request. (Id.). Patrolman Link

testified that he arrested Redman for intoxication after he first encountered him.

(Id. at 150). Patrolman Link identified State’s Exhibits 3 and 4 as photographs

that he took depicting Cash’s injuries. (Id. at 151, 153). He testified that he called

for an ambulance to transport Cash and Vettori to the hospital. (Id. at 154). On

cross-examination, Patrolman Link testified that he examined Redman’s hands for

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evidence of a fist fight, but determined that “he had nothing on his hands”—that

is, that he had no abrasions or marks on his hands. (Id. at 160, 161). According

to Patrolman Link, he did not examine the women’s hands; rather, he took

photographs of Cash’s and Vettori’s injuries to their faces. (Id.).

{¶17} Michael Sandford (“Sandford”) testified that he witnessed the

altercation from his apartment, which is across the street from where the

altercation took place. (July 15, 2015 Tr., Vol. II, at 166-168). According to

Sandford, he “was just laying down * * * about to fall asleep and then [he] heard

something,” which caused him to look out his bedroom window that overlooks

Main Street. (Id. at 168). Specifically, Sandford testified that he “heard yelling

and then [he] heard a man’s voice and [he] heard a lady, a whole bunch of

women’s voices.” (Id. at 168-169). When Sandford looked out his window, he

saw “a man hit a taller woman – ‘cause [sic] there was a couple of them there –

and as soon as [he saw] him hit the woman [he] decided to run downstairs as fast

as possible to try to stop it.” (Id. at 169). He testified that he saw Redman walk

up to the women “as they were trying to tell him to go away” and then saw

Redman “swing at one of them.” (Id.). By the time Sandford exited his

apartment, the police arrived at the scene. (Id. at 170-171).

{¶18} As its final witness, the State presented the testimony of Detective

Robert Stoodt (“Detective Stoodt”) of the Lima Police Department who testified

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that he investigated the case. (Id. at 175-176). In particular, Detective Stoodt

testified that he interviewed the four women and Redman. (Id. at 177, 179).

Detective Stoodt did not interview Sandford because he was unable to contact

him. (Id. at 179). At Cash’s interview on August 11, 2014, Detective Stoodt

observed her injuries and described them as “swelling on the left side of her face, a

black eye, and it was very puffy.” (Id. at 177-178). Detective Stoodt testified that

he obtained Cash’s medical records and that those records confirmed what Cash

told him was her diagnosis. (Id. at 183). Detective Stoodt identified State’s

Exhibits 5 and 6 as photographs that he took depicting Cash’s injuries. (Id. at

178). Detective Stoodt identified State’s Exhibit 7 as a video recording of his

interview with Redman, which was subsequently played for the jury. (Id. at 180).

{¶19} Thereafter, the State moved to admit its exhibits, which were

admitted without objection, and rested. (Id. at 203-204). Next, Redman made a

Crim.R. 29(A) motion, which the trial court denied. (Id. at 204-205). Redman did

not provide any evidence, rested, and renewed his Crim.R. 29(A) motion, which

was denied. (Id. at 206). The matter was submitted to the jury, which found

Redman guilty as to Counts One and Two. (Id. at 291, 294).

{¶20} We first review the sufficiency of the evidence supporting Redman’s

felonious-assault conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10,

, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999

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, *1 (Mar. 26, 1999). Redman argues that the State did not prove

beyond a reasonable doubt that he knowingly caused Cash serious physical harm.

{¶21} We first address the sufficiency of the evidence as to whether

Redman acted knowingly. Redman argues that circumstantial evidence of intent is

insufficient to prove that he acted knowingly. However, “[p]roof of intent may be

derived from circumstantial evidence, as direct evidence will seldom be

available.” State v. Garrard,

,

(10th

Dist.), citing State v. Lott,

(1990) and State v. Tarver, 9th

Dist. Summit

. “Circumstantial evidence is the

‘proof of facts by direct evidence from which the trier of fact may infer or derive

by reasoning other facts in accordance with the common experience of mankind.’”

quoting State v. Bentz,

, (1st Dist. 1981), fn. 6, citing

Ohio Jury Instructions, Section 5.10(d) (1968). “Circumstantial evidence has

probative value equal to direct evidence.”

citing State v. Nicely,

(1988). As such, Redman’s argument is meritless.

{¶22} Nevertheless, Redman alleges that the testimony of the witnesses

was insufficient to establish that he knowingly caused Cash serious physical harm.

The State was not required to prove that Redman punched cash with the intent to

cause her serious physical harm; rather, the State was required to prove that

Redman was aware that his conduct would probably cause Cash serious physical

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harm. See State v. Kleekamp, 2d Dist. Montgomery No. 23533,

,

¶ 27. There is sufficient evidence that Redman acted knowingly. This court has

previously concluded that “[p]unching someone in the face satisfies the requisite

culpable mental state for felonious assault.” State v. Beaver, 3d Dist. Union No.

14-13-15,

(“Beaver was aware that punching [the victim] in

the face would probably cause her serious physical harm”), citing R.C. 2901.22(B)

and State v. Higgins, 9th Dist. Summit No. 26120,

(“[F]or

the law to hold him to have acted ‘knowingly,’ it is only necessary that the serious

physical harm is a ‘reasonable and probable’ result of his action.”), quoting State

v. Powell, 11th Dist. Lake No. 2007-L-187,

, ¶ 52.

{¶23} Indeed, Redman was aware that punching Cash in the face multiple

times would probably cause her serious physical harm. Moreover, Redman was

aware that his conduct was probably causing her serious physical harm because,

after the first punch, Cash fell to the ground and began bleeding. Despite Cash

falling to the ground bleeding, Redman continued to punch Cash in the face as she

tried to regain her balance and repeatedly punched Cash in the face when she was

on the ground and could not get up. Accordingly, a jury could reasonably

conclude that Redman knew that his conduct would probably result in serious

physical harm.

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{¶24} We next address the sufficiency of the evidence as to whether Cash

suffered serious physical harm. Similar to our conclusion in Beaver, the physical

evidence in the record supports that Redman caused serious physical harm to

Cash. See id. at ¶ 37. Nonetheless, Redman contends that the evidence presented

by the State insufficiently demonstrates that Cash suffered serious physical harm.

Instead, Redman argues that the State was required to introduce medical reports

and the testimony of a medical professional indicating that the injuries that Cash

sustained amounted to serious physical harm. Redman’s argument is meritless

because the record supports that Cash suffered serious physical harm. Compare

State v. Petty, 10th Dist. Franklin Nos. 11AP-716 and 11AP-766, 2012-Ohio-

2989, ¶ 29 (rejecting the defendant’s argument that “the state failed to establish the

victim suffered serious physical harm, because it offered no medical evidence to

document the victim’s injuries ‘or to substantiate that the same were serious’”).

{¶25} Serious physical harm includes any physical harm that involves

“some temporary, substantial incapacity,” “some temporary, serious

disfigurement,” or “acute pain of such duration as to result in substantial suffering

or that involves any degree of prolonged or intractable pain.” R.C.

2901.01(A)(5)(c), (d), (e). The record reflects that the responding officers called

an ambulance that transported Cash to the hospital, where medical professionals

took x-rays and an MRI. (July 14, 2015 Tr., Vol. I, at 120, 154). Cash was

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informed that she sustained three breaks to her maxillary sinus, multiple fractures,

and a concussion. (Id. at 121). After she was treated and released from the

hospital, Cash was required to seek further medical treatment when she began

expelling blood. (Id. at 122). Cash also consulted a plastic surgeon to ensure that

the bones in her face would heal properly, but opted against surgery after the

plastic surgeon advised against it. (Id. at 122-123). “When a victim’s injuries are

serious enough to cause [her] to seek medical treatment, the jury may infer that the

victim suffered serious physical harm.” State v. McCoy, 10th Dist. Franklin No.

99AP-1048,

, *2 (Sept. 7, 2000), citied in Petty at ¶ 30 and

State v. Drew, 10th Dist. Franklin No. 07AP-467,

. See also

State v. Scott, 8th Dist. Cuyahoga No. 81235,

, quoting State

v. Davis, 8th Dist. Cuyahoga No. 81170,

, ¶ 20 (noting that “a

[trier of fact] does not err in finding serious physical harm where the evidence

demonstrates the victim sustained injuries necessitating medical treatment”).

{¶26} Further, Redman’s conduct caused Cash to bleed significantly, and

caused her to bleed after the first punch. (July 14, 2015 Tr., Vol. I, at 53, 103,

118-119). See State v. Morris, 7th Dist. Monroe No. 03 MO 12,

(concluding that there was sufficient evidence of serious physical harm

because, in part, the victim testified that the first punch made his nose bleed). And

Cash testified that she cannot remember anything after the first punch until after

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Redman stopped assaulting her because she “was out, out cold.” (July 15, 2015

Tr., Vol. I, at 116-117). “A loss of consciousness, ‘irrespective of its duration,’

satisfies the requirements for a temporary, substantial incapacity.’” Petty at ¶ 34,

citing State v. Sales, 9th Dist. Summit No. 25036,

, State v.

Swank, 10th Dist. Franklin No. 81AP-749,

, *1 (Feb. 23, 1982)

(concluding that the State presented sufficient evidence of serious physical harm

because the victim was “knocked temporarily unconscious after being struck and

choked, and that her face was ‘pretty well battered and bleeding and her eye

required six stitches’”), State v. Redwine, 12th Dist. Brown No. CA2006-08-011,

(concluding that “[l]osing consciousness as a result of an

assault constitutes serious physical harm”), and State v. Booker, 2d Dist.

Montgomery No. 22990,

(concluding that “[t]emporary

unconsciousness constitutes a temporary substantial incapacity, and therefore

serious physical harm”).

{¶27} As a result of her injuries, Cash suffered significant bruising and

swelling to her face as evidenced by the photographs, which were admitted into

evidence. (See State’s Exs. 3-6); (July 14, 2015 Tr., Vol. I, at 120, 123-124, 151,

153, 177-178). See Beaver,

, citing State v. Stover, 3d

Dist. Union No. 14-12-24,

(finding that the victim suffered

serious physical harm under R.C. 2901.01(A)(5)(d) because his “face was

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extremely bruised and swollen”). She further described that she missed ten days

of work because she could not speak, that she could not drink, and that she slept

for three days after the altercation. (July 14, 2015 Tr., Vol. I, at 123). Cash also

testified that she had not yet healed from her injuries at the time of trial and

continued to experience discomfort. See

, citing State v. Lawson,

3d Dist. Union No. 14-06-13,

(concluding that the jury did

not lose its way in finding that two months of persistent pain constituted either

“acute pain of such duration as to result in substantial suffering” or “any degree of

prolonged or intractable pain” under R.C. 2901.01(A)(5)(e)). In particular, she

continues to experience swelling in her face, which causes her lip to droop, that

she slurs her speech, that she has difficulty drinking from a straw, that she lost

feeling in a portion of her face, and that she experiences migraine headaches.

(July 14, 2015 Tr., Vol. I, at 124). Cash is continuing to receive medical treatment

related to the pain she experiences from the nerve damage in her face and the

migraine headaches. (Id. at 124-125).

{¶28} Accordingly, a rational jury could find that Cash suffered some

temporary, substantial incapacity, some temporary, serious disfigurement, or a

duration of acute pain that resulted in substantial suffering or any degree of

prolonged intractable pain. Therefore, there is sufficient evidence that Redman

caused Cash serious physical harm.

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{¶29} Viewing this evidence in a light most favorable to the prosecution, a

rational trier of fact could find beyond a reasonable doubt that Redman knowingly

caused Cash serious physical harm, and therefore, committed felonious assault.

{¶30} Having concluded that Redman’s conviction is based on sufficient

evidence, we next address Redman’s argument that his conviction is against the

manifest weight of the evidence. Velez,

. On appeal,

Redman argues that the jury lost its way in concluding that Redman knew that his

conduct would cause Cash serious physical harm.1 In particular, Redman argues

that the lack of evidence of any marks or abrasions on his hands is weightier than

the testimony of the witnesses that he knew that he was causing Cash serious

physical harm when he was punching her in the face. He also argues that the

State’s witnesses lacked credibility.

{¶31} “Although an appellate court considers credibility in a manifest-

weight review, the trier of fact is in the best position to take into account

inconsistencies, along with the witnesses’ manner and demeanor, and determine

whether the witnesses’ testimony is credible. Petty,

, at ¶ 38,

citing State v. Williams, 10th Dist. Franklin No. 02AP-35,

, ¶ 58.

“Consequently, even though an appellate court must act as a ‘thirteenth juror’

when considering whether the manifest weight of the evidence requires reversal, it

1 Redman makes no argument with respect to the serious-physical-harm element of felonious assault in his third assignment of error. As such, we will not address it.

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must also give great deference to the fact finder’s determination of the witnesses’

credibility.”

citing

. “To that end, the fact finder is free to

believe all, part or none of the testimony of each witness appearing before it.”

citing State v. Raver, 10th Dist. Franklin No. 02AP-604,

, ¶ 21.

“Mere disagreement over the credibility of witnesses is not sufficient reason to

reverse a judgment.”

citing State v. Wilson,

, 2007-Ohio-

2202, ¶ 24.

{¶32} While Redman contends that “[t]he scene [as] described [by the

women as] resemble[ing] the most horrible of scenes in the movie Rocky” was not

plausible or credible, there is nothing that indicates that the jury lost its way in

considering the evidence. (Appellant’s Brief at 22). As we summarized in our

discussion of the sufficiency of the evidence above, Redman punched Cash in the

face with a closed fist multiple times causing her significant bleeding, multiple

breaks and fractures to her face, and a concussion. Cash testified that she lost

consciousness after the first punch. The other women—Weaver, McKinney, and

Vettori—testified that Redman punched Cash in the face multiple times. The jury

heard the witnesses testify that they saw Redman punch Cash in the face with

enough force to knock her to the ground several times, and that each time she

would try to regain her balance, he would assault her again. The jury also heard

the testimony of Vettori that Redman sequentially punched Cash in the face three

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times when she was on the ground. Vettori also testified that Cash began bleeding

after the first punch. The women further testified that Redman’s assault on Cash

caused her to bleed substantially. Indeed, Weaver described that the blood was

“pouring out of her face,” and Vettori described Cash as bleeding “like a faucet.”

(July 14, 2015 Tr., Vol. I, at 53, 103). Moreover, Cash described that she could

not use her cell phone to call the police after the assault because it “was filled with

blood” and that she had to spit blood out of her mouth to be able to speak with the

police. (Id. at 118-119).

{¶33} Also, as we summarized above, Cash’s testimony documented the

extent of her injuries. Cash’s diagnosis was corroborated by Detective Stoodt who

testified that he obtained Cash’s medical records. That Redman acted

knowingly—that he was aware that his conduct would probably cause Cash

serious physical harm—is further corroborated by the photographs of Cash’s

injuries.

{¶34} The only evidence to which Redman points, which he argues weighs

against that he acted knowingly, is the evidence that he lacked any marks of any

kind on his hands. Patrolman Link testified that he did not observe any marks or

abrasions on Redman’s hands when he examined them for evidence of a fist fight.

(Id. at 160-161). The State, however, introduced as evidence a video recording of

Redman’s statement that he provided to Detective Stoodt after the altercation,

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which was played for the jury. (See State’s Ex. 7). With regard to Redman’s

hands, the video depicts Detective Stoodt examining Redman’s hands and Redman

describing that the marks and abrasions present on his hands were the result of his

employment as a HVAC technician. (See id.). Furthermore, while Redman did

not testify in his defense, the jury was able to hear and weigh his version of events

from the video recording. (See id.).

{¶35} Accordingly, Redman’s argument is underwhelming compared to the

evidence that he knowingly caused Cash serious physical harm. After weighing

the evidence and evaluating the credibility of the witnesses, with appropriate

deference to the jury’s credibility determinations, we cannot conclude that the

jury, as the trier of fact, clearly lost its way and created a manifest injustice. As

such, we are not persuaded that Redman’s felonious-assault conviction must be

reversed and a new trial ordered.

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

Assignment of Error No. I

Mr. Redman was denied his right to trial by jury, as guaranteed by both the United States Constitution and the Ohio Constitution, when the Trial Court refused to instruct the jury as to or allow the jury to consider the lesser included offense of misdemeanor assault pursuant to R.C. §2903.13(B) as to Count II.

-22- Case No. 1-15-54

{¶37} In his first assignment of error, Redman argues that the trial court

erred by refusing to allow the jury to consider the lesser-included offense of

assault under R.C. 2903.13(B).

{¶38} “A jury instruction on a lesser-included offense is only required if

‘the evidence presented at trial would reasonably support both an acquittal on the

crime charged and a conviction on the lesser included offense.’” State v. Wine, 3d

Dist. Auglaize No. 2-12-01,

, quoting State v. Douglas, 3d

Dist. Marion No. 9-05-24,

, citing State v. Thomas,

(1988). “The trial court’s decision whether to instruct the jury on a

lesser included offense will not be reversed absent an abuse of its discretion.”

citing Douglas at ¶ 20, citing State v. Mitchell,

(8th

Dist. 1988). An abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Adams,

(1980).

{¶39} In determining whether a particular offense should be submitted to

the jury as a lesser-included offense, the Supreme Court of Ohio has set forth a

two-tiered analysis. State v. Singh, 3d Dist. Logan No. 8-15-04,

, citing State v. Deanda,

,

.

The first tier, also called the “statutory-elements step,” is a purely

legal question, wherein we determine whether one offense is

generally a lesser included offense of the charged offense. * * *

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The second tier looks to the evidence in a particular case and

determines whether “‘a jury could reasonably find the defendant not

guilty of the charged offense, but could convict the defendant of the

lesser included offense.’” * * * Only in the second tier of the

analysis do the facts of a particular case become relevant.

quoting

.

{¶40} “[A]ssault in violation of R.C. 2903.13(B) is a lesser included

offense of a felonious assault in violation of R.C. 2903.11(A)(1).” State v. Turks,

3d Dist. Allen Nos. 1-10-02 and 1-10-26,

. Since assault

under R.C. 2903.13(B) is a lesser-included offense of felonious assault, we turn to

whether “the facts in this case would support the trial court instructing the jury on

the additional offenses.” Singh at ¶ 7. “‘The mere fact that an offense is a lesser

included offense of the charged offense does not mean that the trial court must

instruct on both offenses.’”

quoting State v. Simonis, 3d Dist. Seneca No. 13-

14-05,

. “As noted by the Ohio Supreme Court, when

conducting this analysis, the evidence must be viewed in a light most favorable to

the defense.”

citing State v. Wine,

,

.

{¶41} As we noted above, R.C. 2903.11(A)(1) prohibits an actor from

knowingly causing serious physical harm to another. The definition of assault

under R.C. 2903.13(B) prohibits an actor from recklessly causing serious physical

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harm to another. Therefore, the distinguishing element between felonious assault

under R.C. 2903.11(A)(1) and assault under R.C. 2903.13(B) is whether the

defendant acted knowingly or recklessly. As we defined above, “[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.” R.C.

2901.22(B). “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the

person’s conduct is likely to cause a certain result or is likely to be of a certain

nature. A person is reckless with respect to circumstances when, with heedless

indifference to the consequences, the person disregards a substantial and

unjustifiable risk that such circumstances are likely to exist. Accordingly, the

relevant inquiry is whether Redman acted recklessly—that he was aware that his

conduct would likely result in serious physical harm—as opposed to knowingly—

that he was aware that his conduct would probably result in serious physical harm.

{¶42} Redman argues that the trial court abused its discretion by not

submitting to the jury the lesser-included offense of assault under R.C. 2903.13(B)

because the evidence presented at trial reasonably supports an acquittal of the

felonious-assault charge—that is, the evidence presented at trial reasonably

supports that he did not act knowingly. In support of his argument, Redman points

to the trial court’s comment that “‘maybe Mr. Redman didn’t expect to cause the

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serious harm that he did’” as evidence that the trial court’s decision not to instruct

the jury on the lesser-included offense of assault under R.C. 2903.13(B) is

unreasonable, arbitrary, or unconscionable. (Appellant’s Brief at 19, citing Aug.

24, 2015 Tr. at 19).

{¶43} In particular, Redman argues that the women’s testimony describing

the incident was implausible and “completely refuted as nonsense” because one of

the photographs depicting Cash’s injuries showed only “a small amount,

contextually, of blood dripping from Ms. Cash’s nose.” (See id. at 18-19, citing

State’s Ex. 4). Redman contends that the women’s description of the scene, which

made it seem like it was “bloody mayhem,” is contradicted by the lack of evidence

of any marks or abrasions or any blood on Redman’s hands. Therefore, Redman

argues, the lack of that type of evidence reasonably supports an acquittal of the

felonious-assault charge because there is a lack of evidence that he acted

knowingly. That is, Redman hypothesizes that if he were to have broken “‘the

hardest bone * * * in the human body’” as described by Cash, it would be

reasonable to expect to find bruising or blood from the victim on Redman’s hand

that delivered the punch. (Id. at 19, citing July 14, 2015 Tr., Vol. I, at 123).

Redman also points to the portion of State’s Exhibit 7, the video recording of his

statement to Detective Stoodt, showing his surprise that he caused the level and

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amount of injuries to Cash that she sustained because he was “‘shocked’ and did

not know that he hit Penni Cash that hard.” (Id. at 19, citing State’s Ex. 7).

{¶44} As we summarized in Redman’s second and third assignments of

error, the evidence presented at trial revealed that Redman with a closed fist

punched Cash in the face multiple times. After the first punch, Cash fell to the

ground and began bleeding, yet Redman continued to punch Cash in the face as

she tried to regain her balance and repeatedly punched Cash in the face when she

was incapacitated on the ground. Nonetheless, Redman attempts to discount that

evidence by discrediting the women’s testimony regarding the “blood evidence.”

Regardless of whether the scene could be described as “bloody mayhem” or

whether there was only “a small amount, contextually, of blood dripping from Ms.

Cash’s nose,” Redman ignores the evidence that, despite that she was bleeding

after the first punch, he continued to punch her in the face. This evidence, coupled

with the evidence that he continued to punch her after she fell to the ground and

attempted to regain her balance and after she remained incapacitated on the

ground, demonstrates that Redman was aware that his conduct would probably

cause Cash serious physical harm. Compare State v. Lewis, 7th Dist. Mahoning

No. 01-CA-59,

, ¶ 58 (concluding that the trial court did not abuse

its discretion by not submitting to the jury the lesser-included offense of assault

under R.C. 2903.13(B) because the record demonstrated that Lewis “knew” he

-27- Case No. 1-15-54

would cause serious physical harm because he “repeatedly struck [the victim’s]

face with his closed fist”). Thus, even viewing this evidence in a light most

favorable to Redman, it does not reasonably support an acquittal on the felonious-

assault charge.

{¶45} Moreover, despite Redman’s contention regarding the lack of

evidence of marks, or abrasions, or blood on his hands, State’s Exhibit 7 reflects

Redman explaining to Detective Stoodt that the marks and abrasions observed by

Detective Stoodt on Redman’s hands were work-related injuries. Therefore, even

though Patrolman Link testified that “he had nothing on his hands,” the jury saw

Redman explaining the marks and abrasions that Detective Stoodt observed on his

hands.

{¶46} Viewing this evidence in a light most favorable to Redman, we

cannot conclude that a jury could reasonably find him not guilty of felonious

assault. That is, it is clear that a reasonable juror could conclude that Redman

acted knowingly. Because we conclude that the evidence does not reasonably

support an acquittal for felonious assault, we need not examine whether the

evidence reasonably supports a conviction for assault under R.C. 2903.13(B).

Therefore, the trial court did not abuse its discretion by not submitting to the jury

the lesser-included offense of assault under R.C. 2903.13(B).

{¶47} Redman’s first assignment of error is overruled.

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Assignment of Error No. IV

The Trial Court erred in sentencing Mr. Redman.

{¶48} In his fourth assignment of error, Redman argues that the trial court

erred in sentencing him to two years in prison as opposed to imposing only

community control sanctions. In particular, Redman argues that the trial court

erred in concluding that he did not overcome the presumption in favor of prison.

{¶49} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-

Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed

under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.

Rhodes, 12th Dist. Butler No. CA2005-10-426,

; State v.

Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39,

, citing

R.C. 2953.08(G).

{¶50} “R.C. Chapter 2929 governs sentencing.” State v. Smith, 3d Dist.

Seneca No. 13-15-17,

. “R.C. 2929.11 provides, in pertinent

part, that the ‘overriding purposes of felony sentencing are to protect the public

-29- Case No. 1-15-54

from future crime and to punish the offender.’”

quoting R.C. 2929.11(A). “In

advancing these purposes, sentencing courts are instructed to ‘consider the need

for incapacitating the offender, deterring the offender and others from future

crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.’”

quoting R.C. 2929.11(A). “Meanwhile, R.C.

2929.11(B) states that felony sentences must be ‘commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the

victim’ and also be consistent with sentences imposed in similar cases.”

quoting R.C. 2929.11(B). “In accordance with these principles, the trial court

must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the

seriousness of the offender’s conduct and the likelihood of the offender’s

recidivism.”

citing R.C. 2929.12(A).

{¶51} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’”

quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-

Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-

Ohio-1122, ¶ 20. As a second-degree felony, felonious assault carries a non-

mandatory presumption of two to eight years imprisonment. State v. Davis, 8th

Dist. Cuyahoga No. 81170,

, ¶ 25, citing R.C. 2903.11,

2929.13(D), and 2929.14(A)(2). That presumption may be overcome, and “the

sentencing court may impose * * * community control sanctions instead of a

-30- Case No. 1-15-54

prison term” if the trial court concludes that “community control sanctions would

adequately punish the offender and protect the public from future crime” and

“would not demean the seriousness of the offense.” R.C. 2929.13(D)(2). “As the

plain statutory language indicates, the sentencing court is under no obligation to

impose community control sanctions simply because the offender meets the

eligibility requirements.” Davis at ¶ 25. “Rather, community control sanctions

are an alternate means of effectuating justice if such means satisfy statutory

requirements and are deemed appropriate by the trial court.”

{¶52} “Despite the sentencing discretion afforded to a trial court, the

imposition of a non-mandatory term of imprisonment requires the trial court to

review certain R.C. 2929.12 factors which involve the seriousness of the

offender’s conduct and the likelihood of the offender committing future crimes.”

Id. at ¶ 26. “‘A sentencing court has broad discretion to determine the relative

weight to assign the sentencing factors in R.C. 2929.12.”

, quoting

State v. Brimacombe,

,

, ¶ 18 (6th Dist.),

citing State v. Arnett,

(2000). At Redman’s sentencing

hearing and in its sentencing entry, the trial court considered the R.C. 2929.12

factors. (Aug. 24, 2015 Tr. at 17-21); (Doc. No. 102).

{¶53} In assessing whether Redman was likely to commit future crimes, the

trial court concluded that Redman “demonstrated a pattern of drug or alcohol

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abuse that related to the offense and that [Redman] refuses to acknowledge that

[he] has demonstrated that pattern, or [Redman] refuses treatment for the drug or

alcohol abuse.” (Doc. No. 102, quoting R.C. 2929.12(D)(4)). (See also Aug. 24,

2015 Tr. at 19-20). Weighing in Redman’s favor, the trial court found the

following factors indicating that Redman is not likely to commit future crimes:

“[(1)] Prior to committing the offense [Redman] had not been adjudicated a

delinquent child[; (2)] Prior to committing the offense [Redman] had not been

convicted or pleaded guilty to a criminal offense[; (3)] Prior to committing the

offense [Redman] had led a law-abiding life for a significant number of years[;

and (4) Redman] shows a genuine remorse for the offense.” (Doc. No. 102,

quoting R.C. 2929.12(E)(1), (2), (3), and (5)). (See also Aug. 24, 2015 Tr. at 19-

20).

{¶54} In addressing the seriousness of Redman’s conduct, the trial court

concluded that Redman’s “conduct is more serious than conduct normally

constituting the offense” because the victim “suffered serious physical,

psychological, or economic harm as a result of the offense.” (Doc. No. 102,

quoting R.C. 2929.12(B)(2)). (See also Aug. 24, 2015 Tr. at 17). The trial court

did not find any of the factors under R.C. 2929.13(C) indicating that Redman’s

conduct is less serious than the conduct normally constituting the offense. (Aug.

24, 2015 Tr. at 21).

-32- Case No. 1-15-54

{¶55} After finding and weighing those factors, the trial court concluded

that Redman did not overcome the presumption in favor of prison and imposed the

minimum prison sentence—two years. Under R.C. 2929.13(D), the trial court

may find that the presumption in favor of prison is rebutted only if it finds both of

the following:

(a) A community control sanction or a combination of community

control sanctions would adequately punish the offender and protect

the public from future crime, because the applicable factors under

section 2929.12 of the Revised Code indicating a lesser likelihood of

recidivism outweigh the applicable factors under that section

indicating a greater likelihood of recidivism.

(b) A community control sanction or a combination of community

control sanctions would not demean the seriousness of the offense,

because one or more factors under section 2929.12 of the Revised

Code that indicate that the offender’s conduct was less serious than

conduct normally constituting the offense are applicable, and they

outweigh the applicable factors under that section that indicate that

the offender’s conduct was more serious than conduct normally

constituting the offense.

-33- Case No. 1-15-54

R.C. 2929.13(D)(2)(a)-(b). The trial court concluded “that the factors indicating

that it’s less likely that [Redman will] commit future crimes certainly outweigh the

factors indicating that it’s likely that he’s going to reoffend.” (Aug. 24, 2015 Tr.

at 20-21). However, the trial court concluded that Redman’s conduct was more

serious conduct than conduct normally constituting the offense—that is, the trial

court found one factor indicating that Redman’s conduct was more serious than

conduct normally constituting felonious assault and none of the factors indicating

that Redman’s conduct was less serious than the conduct normally constituting

felonious assault. (Id. at 21). Indeed, the trial court concluded that imposing

community control sanctions would demean the seriousness of the offense. (Doc.

No. 102); (Aug. 24, 2015 Tr. at 21).

{¶56} Accordingly, the relevant inquiry is whether Redman clearly and

convincingly established that his sentence is unsupported by the record—namely

whether Redman clearly and convincingly established that the record does not

support the trial court’s conclusion that his conduct is more serious than conduct

that normally constitutes the offense because Cash suffered serious physical harm

as a result of the offense.

{¶57} As we summarized above, Cash testified to the extent of her injuries.

Moreover, as we also illustrated, Detective Stoodt testified that the diagnosis Cash

reported to him when Detective Stoodt interviewed Cash was corroborated by

-34- Case No. 1-15-54

Cash’s medical records, which Detective Stoodt testified that he obtained. In

addition, Cash submitted to the trial court a victim impact statement detailing the

harm that she suffered. Thus, Redman failed to clearly and convincingly establish

that the record does not support the trial court’s conclusion that Cash suffered

serious physical harm as a result of the offense—one of the factors under R.C.

2929.12(B) that the trial court is to consider when determining if an offender’s

conduct is more serious than conduct normally constituting the offense. The trial

court must have afforded more weight to that factor than any of the mitigating

factors. See Smith,

. As we noted above, because a

sentencing court has broad discretion to determine the relative weight to assign the

R.C. 2929.12 sentencing factors, the trial court did not err by sentencing Redman

to a term of imprisonment rather than community control sanctions. See

See

also Davis,

, at ¶ 27.

{¶58} Redman’s fourth assignment of error is overruled.

{¶59} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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