[Cite as State v. Battles,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109265

v. :

LA’SHA BATTLES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 4, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634883-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Ashley Gilkerson, Assistant Prosecuting Attorney, for appellee.

Paul W. Flowers Co., L.P.A., and Louis E. Grube, for appellant.

SEAN C. GALLAGHER, P.J.:

Defendant-appellant La’Sha Battles (“Battles”) appeals her

conviction for felonious assault and aggravated menacing. Upon review, we affirm. Background

On December 7, 2018, Battles was indicted for felonious assault in

violation of R.C. 2903.11(A)(1), a felony of the second degree, and aggravated

menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree. The

charges arose from events occurring on or about June 24, 2017, during which Battles

was alleged to have “knowingly caused serious physical harm to [the victim]” and to

have “knowingly [caused the victim] to believe that [Battles would] cause serious

physical harm to [the victim] or the property of [the victim].” Battles entered a plea

of not guilty, and following discovery, the case proceeded to a jury trial.

The testimony revealed that on the date of the incident, Battles was

attempting to cash a check at a liquor store. The victim, who was the cashier and

the store manager, doubted the validity of the check. After some discussion, the

victim informed Battles that he could not cash the check. Battles took the check

back, cursed at the victim, and struck the victim in the face with a pen, which left a

mark under the victim’s left eye.

Next, Battles began to run out of the store, the victim gave chase,

Battles fell, and the two engaged in a scuffle, during which Battles shouted “I will

show you,” cursed at the victim, and kicked him with her leg. The victim testified

that Battles then threatened “I will send my men to finish with you” and left the

scene.

Five to seven minutes later, Battles’s brother and another man in a

blue hoodie entered the store. The victim tried to explain what happened and showed the men the video footage of his encounter with Battles. As this was

occurring, the man in the blue hoodie punched the victim in his face, the victim fell

and hit his head on a shelf, and the victim blacked out and lost consciousness. When

the victim regained consciousness, he was on the floor, his head and mouth were

hurting, and he could not stand up. His coworkers helped him off the ground and

onto a chair. He testified that he was “totally out of balance” and almost fell off the

chair. The incident was captured on surveillance video, and the video was played at

trial.

The victim did not call the police or seek medical attention right away,

and he finished working his shift. When a police officer entered the store, the victim

explained what happened and the officer instructed him to make a medical report.

The victim explained he did not understand how he could do that because he did not

have medical insurance and was relatively new to the United States.

The victim went to the hospital two days after the incident. The victim

reported to the nurses that he was experiencing issues with balance and had a

headache. The victim was diagnosed with a concussion and received discharge

instructions. The victim testified that he was unable to drive for about eight to nine

months, that he constantly had a light headache, and that he continued to have

issues with balance and vision. He testified that he continued to work because he

has a low income, and that he did not seek follow-up medical care because he did

not have medical insurance. At the time of trial, the victim testified that his vision was still

impacted, that he has a continuous light headache, and that if he moves quickly from

side to side he loses his balance. The victim also pointed to a residual mark under

his left eye where he was struck by the pen. The victim testified that Battles came

back to the store two months after the incident occurred and told him “you didn’t

learn.”

The state proceeded against Battles on a theory of complicity on

Count 1 for felonious assault. The jury returned a verdict of guilty on both counts.

The trial court sentenced Battles to one and one-half years of community control on

each count and advised Battles of the three years of mandatory postrelease control.

The court ordered no contact with the victim and stated a violation could result in

more restrictive sanctions or a prison term of two years. The court also ordered

Battles to perform 50 hours of community service. Battles timely filed this appeal.

While this appeal was pending, Battles’s probation was terminated.

However, the appeal is not moot and Battles need not present evidence that she will

suffer some collateral disability. See State v. Golston,

,

(1994). As the Supreme Court of Ohio has recognized, “[t]he collateral

legal consequences associated with a felony conviction are severe and obvious.”

Law and Analysis

Battles raises three assignments of error for our review. Under her

first assignment of error, Battles claims the trial court erred by failing to grant her

motion for judgment of acquittal for the offense of felonious assault.

A Crim.R. 29 motion for judgment of acquittal is governed by the

same standard as the one for determining whether a verdict is supported by

sufficient evidence. State v. Tenace,

,

,

, ¶ 37. “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. A

challenge to the sufficiency of the evidence presents a question of law. See State v.

Thompkins,

,

(1997).

Battles was found guilty of felonious assault in violation of R.C.

2903.11(A)(1) under a complicity theory. For felonious assault, R.C. 2903.11(A)(1)

provides that “[n]o person shall knowingly * * * [c]ause serious physical harm to

another * * *[.]” R.C. 2901.01(A)(5) defines “serious physical harm to persons” to

include “(c) [a]ny physical harm that involves some permanent incapacity, whether

partial or total, or that involves some temporary, substantial incapacity,” and “(e)

[a]ny 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.” Battles argues that the evidence at trial was not sufficient to sustain

the jury’s finding that the victim suffered serious physical harm when he was

assaulted by the man in the blue hoodie. Battles maintains that the mild concussion

and physical symptoms experienced by the victim do not constitute serious physical

harm and references selective evidence in the case. She states that the victim did

not seek immediate medical attention and that evidence in the record demonstrates

the victim was “well” and in “stable condition,” he was able to leave the hospital

within mere hours, he was given over-the-counter medication, and he did not miss

any work. However, upon our review of the entire record in this case, we find the

state presented sufficient evidence to prove serious physical harm.

The testimony and evidence showed that after the victim informed

Battles he could not cash her check, Battles struck the victim in the face with a pen,

cursed at the victim, and threatened the victim, stating she would “send my men to

finish with you.” Within minutes, two men entered the store. While the victim was

trying to clear up the matter by showing them the surveillance video, one of the men

punched the victim in the face. The victim blacked out and lost consciousness; he

was unable to get off the floor without assistance and was “totally out of balance”;

he went to the hospital two days later; and he was diagnosed with a concussion. He

testified that he experienced headaches and issues with balance; that he was unable

to drive for eight or nine months; and that he was still having issues with headaches,

eyesight, and balance at the time of trial. In State v. Clopton, 8th Dist. Cuyahoga No. 95297,

,

this court recognized that seeking medical treatment alone is not dispositive of

serious physical harm. Id. at ¶ 16. Although “serious physical harm” may involve

an injury or condition of such gravity as would normally require hospitalization, the

facts must establish one of the factors in R.C. 2901.01(A)(5)(a)-(e), such as

permanent incapacity, temporary substantial incapacity, acute pain of such duration

as to result in substantial suffering, or any harm that results in prolonged pain. Id.

at ¶ 12-14, citing R.C. 2901.01(A)(5)(c) and (e).

Sufficient evidence of serious physical harm has been found under

circumstances where the victim was knocked temporarily unconscious, the victim’s

injuries were serious enough to cause the victim to seek medical treatment, and the

victim suffered from persistent pain for months. See State v. Redman, 3d Dist. Allen

No. 1-15-54,

. In State v. Davis, 8th Dist. Cuyahoga No.

81170,

, this court found the state presented sufficient evidence of

serious physical harm where the victim suffered multiple punches and kicks to his

head and face, his head hit a steel post, he suffered a concussion as well as scrapes

and cuts, he sought medical treatment and remained at the hospital for several

hours, and he had fits of vomiting and experienced headaches for several days.

at ¶ 6-8 and ¶ 22-23; see also State v. Rogers, 8th Dist. Cuyahoga No. 105879, 2018-

Ohio-3495, ¶ 41-46 (finding sufficient evidence of serious physical harm where the

victim sustained a concussion, headaches, and head trauma as a result of a blow to

his head, and the victim testified that he received medical treatment for his injuries); In re E.B., 3d Dist. Auglaize No. 2-17-21,

(finding sufficient

evidence of serious physical harm where the victim suffered prolonged periorbital

pain and headaches, as well as a concussion); State v. Littlejohn, 8th Dist. Cuyahoga

No. 95380,

(finding sufficient evidence of serious physical

harm where a victim, who was punched and kicked by the defendant, became

disoriented and experienced blurred vision, sought medical treatment, and suffered

prolonged headaches).

Although Battles argues that the victim in this case did not seek

immediate medical attention, as determined by the First District Court of Appeals,

“the fact that the victim does not seek medical treatment after an assault does not

preclude a finding that the victim suffered serious physical harm.” Ohio v. Craig,

1st Dist. Hamilton No. C-160816,

(finding the state presented

sufficient evidence of serious physical harm where the victim was “knocked out”

after being repeatedly head-butted, suffered a temporary loss of consciousness, and

had a knot on her forehead that lasted for months); see also State v. Simpson, 8th

Dist. Cuyahoga No. 107407,

(finding sufficient evidence of serious

physical harm where the victim, who did not seek immediate medical attention, had

sustained a minor concussion, a minor neck sprain, and a back contusion).

We also decline to draw a distinction in this matter as advocated by

Battles.1 As this court has recognized, the degree of harm that constitutes “serious”

1 We do not find persuasive Battles’s arguments pertaining to Rogers and State v. Wyland, 8th Dist. Cuyahoga No. 94463,

. Neither case is inconsistent with the decision rendered herein. physical harm is not an exact science. State v. Mason, 8th Dist. Cuyahoga No.

109176,

, ¶ 11, citing State v. Montgomery, 8th Dist. Cuyahoga No.

102043,

, ¶ 11. The testimony and evidence in each case must be

considered to determine whether sufficient evidence exists.

The state was required to prove beyond a reasonable doubt that

Battles knowingly caused serious physical harm to another as that term is statutorily

defined. Included in the statutory definition of “serious physical harm” is any

physical harm that involves “some temporary, substantial incapacity,” R.C.

2901.01(A)(5)(c), or that involves “acute pain of such duration [that results] in

substantial suffering or that involves any degree of prolonged * * * pain.” R.C.

2901.01(A)(5)(e). The Supreme Court of Ohio has determined that R.C.

2901.01(A)(5)(e) provides “a precisely worded definition of ‘serious physical harm

to persons’ * * *.” State v. McKnight,

,

,

.

Upon our review, we find that the state presented sufficient evidence

to prove that the victim suffered serious physical harm. Moreover, viewing the

evidence in the light most favorable to the prosecution, a rational trier of fact could

have found the essential elements of felonious assault proven beyond a reasonable

doubt. We also find sufficient evidence was presented from which the jury could

infer Battles was complicit in the felonious assault. The first assignment of error is

overruled. Under her second assignment of error, Battles claims the verdict is

against the manifest weight of the evidence on both counts. When reviewing a claim

challenging the manifest weight of the evidence, the court, reviewing the entire

record, must 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. Thompkins,

,

, citing State v. Martin,

,

(1st Dist. 1983). When a court of appeals concludes that a verdict

is against the weight of the evidence, “the appellate court sits as the ‘thirteenth juror’

and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at

388. “An appellate court’s disagreement with the jurors’ weighing of the evidence

does not require the special deference accorded verdicts of acquittal.” Id. A

judgment of conviction should be reversed as against the manifest weight of the

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

the conviction. Id. at 387, citing

.

First, Battles claims that the weight of the evidence proves that the

victim did not suffer “serious” physical harm and that the victim’s conduct in waiting

to seek any medical testing, his treatment with over-the-counter medication, and his

discharge papers reflect that the degree of his injuries was not serious within the

meaning of R.C. 2901.01(A)(5). Our review of the entire record in this case reflects

evidence establishing serious physical harm. After being punched, the victim blacked out and was unconscious. The victim testified that he experienced

headaches and a loss of balance. He went to the hospital and was diagnosed with a

concussion. He further testified that he was unable to drive for months and that he

was still experiencing symptoms at the time of trial. This evidence demonstrates

that the victim suffered serious physical harm under R.C. 2901.01(A)(5)(c) and/or

(e), and we do not find the conviction for felonious assault to be against the manifest

weight of the evidence.

Second, Battles claims her conviction for complicity in the crime of

felonious assault is against the manifest weight of the evidence. Battles argues the

evidence suggests she was only angry with the victim when she left the store, she did

not share the criminal intent of the principal offender, and the principal offender

formed his intent while she was not present. In support of her argument, Battles

states the man in the blue hoodie did not assault the victim immediately upon

entering the store, the encounter started as a discussion, and the man did not act to

harm the victim until he saw the surveillance video. “[An] accomplice’s criminal

intent may be inferred, by direct or circumstantial evidence, and from the presence,

companionship, and conduct of the accomplice both before and after the offense is

committed.” State v. Shropshire, 8th Dist. Cuyahoga No. 85063,

, citing State v. Nievas,

,

(8th

Dist. 1997). Our review of the entire record reflects the jury heard evidence that

Battles struck the victim with a pen, cursed at the victim, kicked at the victim, and

threatened, “Okay, I will show you. I will send my men to finish with you.” Within minutes, the appellant’s brother and the other man entered the store. The victim

was struck while he was showing the surveillance video. The victim testified that a

couple of months after the incident, Battles came back to the store and said to him

“you didn’t learn.” Upon this evidence, the jury could infer that the men entered the

store with the criminal intent to “knowingly” cause serious physical harm to the

victim and that Battles shared the criminal intent.

Third, Battles claims the state failed to prove the crime of aggravated

menacing under R.C. 2903.21(A), which provides: “No person shall knowingly cause

another to believe that the offender will cause serious physical harm to the person

or the property of the other person * * *.” Pursuant to R.C. 2901.22(B), “[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.” Although the

state is not required to show that the offender intended to carry out the threat to

prove aggravated menacing, the state is required to show that the victim had a

subjective belief of serious physical harm, which can be proven with circumstantial

evidence. State v. Clemmons, 12th Dist. Butler No. CA2020-01-004, 2020-Ohio-

5394, ¶ 33, citing State v. Landrum, 1st Dist. Hamilton No. C-150718, 2016-Ohio-

5666, ¶ 9.

We recognize that the offense of aggravated menacing was alleged to

have occurred on or about June 24, 2017, which is the date the victim refused to cash

the check for Battles. Battles claims that the victim did not believe she would “cause

serious physical harm” to him and did not take the threat seriously. She points to evidence showing the victim chased her out of his store, did not call the police, and

returned to work. We are not persuaded by this argument. Our review shows that

at the time of the threat, Battles had already struck the victim in the face with a pen,

cursed at the victim, and kicked at the victim. The victim testified that Battles

threatened that she would send her men to “finish” with him as she left the scene.

Within minutes, two men associated with the victim entered the store. The victim

attempted to explain what happened and to defend himself by showing the men the

video footage of the encounter with Battles. When the surrounding circumstances

are considered, the record supports a determination that Battles knowingly

threatened to cause serious physical harm to the victim. Also, it can be reasonably

inferred from the circumstances that the victim took the threat seriously, was

concerned for his safety, and believed Battles would cause him serious physical

harm. There is no indication in the case before us that the jury lost its way, and we

do not find the conviction for aggravated menacing to be against the manifest weight

of the evidence.

The second assignment of error is overruled.

Under her third assignment of error, Battles claims the trial court

committed plain error and confused the jury by giving an incorrect and misleading

jury instruction on the definition of complicity by including a conspiracy instruction.

R.C. 2923.03(A), complicity, provides:

No person, acting with the kind or culpability required for the commission of an offense shall do any of the following: (1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;

(4) Cause an innocent or irresponsible person to commit the offense.

Because felonious assault in violation of R.C. 2903.11(A)(1) is not

among the crimes enumerated in the conspiracy statute, R.C. 2923.01(A), Battles

argues it was plain error to give an instruction on conspiracy. The jury instructions

provided by the trial court provided in part:

Complicity. The State of Ohio has presented a theory that the defendant acted in complicity with a principal offender in the commission of the felonious assault. A person who is complicit with another in the commission of a criminal offense is regarded as guilty as if she personally performed every act constituting the offense. This is true even if she did not personally perform every act constituting the offense or was not physically present at the time the offense was committed.

Before you can find the defendant guilty of complicity in the commission of a felonious assault, you must find beyond a reasonable doubt that * * * the defendant solicited or procured another to commit the offense of felonious assault, or aided or abetted another in committing the offense of felonious assault, or conspired with another to commit the offense of felonious assault.

The instructions proceeded to define “solicit,” “procure,” “aided or

abetted,” and “conspiracy.” Battles made no objection to these jury instructions or

to the inclusion of the instruction on conspiracy. “When a defendant fails to object

to the jury instructions, she waives all but plain error.” State v. Owens, Slip Opinion No.

, citing State v. Diar,

,

,

.

Under Crim.R. 52(B), “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

The Supreme Court of Ohio has recognized that a “plain error” is “‘an obvious defect

in the trial proceedings,’” and that to qualify as “plain error,” the defect “‘must have

affected “substantial rights,”’ which has been interpreted to mean that the error

“‘must have affected the outcome of the trial.’” State v. Kirkland,

,

,

, quoting State v. Barnes,

,

,

; see also State v. Hundley, Slip Opinion No.

.2 Further, “a defendant must ‘demonstrate a reasonable

probability that the error resulted in prejudice.’”

, quoting State v.

Rogers,

,

,

.

We find that even if there was error in providing the instruction, it did

not affect the substantial rights of Battles. Although the state concedes the

conspiracy instruction does not apply in this case, it argues that the jury could have

found Battles complicit in the felonious assault under other theories of complicity.

A jury instruction is not to be judged in artificial isolation but must be viewed in the

context of the overall charge. See State v. Price,

,

2 We note that Battles takes issue with whether State v. Long,

,

(1978), continues to be good law in Ohio. We need not make that determination and apply the standard of plain error as recently pronounced by the Supreme Court of Ohio. (1979), paragraph four of the syllabus. In this case, the definition of conspiracy was

read to the jury as part of the overall instruction on complicity, which encompasses

several different theories, and the trial court also instructed the jury on the actual

charge in the indictment for felonious assault. Under the facts presented at trial, it

cannot be said that including the instruction on conspiracy affected the outcome of

the case. Further, Battles has not demonstrated any reasonable probability that

including the conspiracy language confused the jury or that this formed the basis of

the jury’s decision on complicity. Accordingly, reversal is not warranted under the

plain error standard of review. See Shropshire, 8th Dist. Cuyahoga No. 85063,

. The third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

SEAN C. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and EILEEN T. GALLAGHER, J., CONCUR