State v. Mason

2020 Ohio 4998

STATE OF OHIO, Plaintiff-Appellee, v. CLINTON MASON, III, Defendant-Appellant.

No. 109176

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

October 22, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-19-640761-A

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carl J. Mazzone, Assistant Prosecuting Attorney, for appellee.

Buckeye Law Office and P. Andrew Baker, for appellant.

ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Clinton Mason, III ("Mason") appeals his conviction, and asks this court to vacate and reverse his conviction. We affirm.

{¶ 2} Mason was found guilty of one count of felonious assault, a second-degree felony, in violation of R.C. 2903.11(A)(1). The trial court sentenced Mason to two years in prison.

I. Facts and Procedural History

{¶ 3} On March 21, 2019, Andre Davis ("Davis") borrowed his employer's car and went to a gas station, where he accidently locked the keys inside of the car. Davis testified that after he realized that the keys were inside of the car, he made several attempts to contact his employer. Because Davis is blind in his left eye, he did not see Mason walk past him on his left side. Davis testified that he has lived across the street from Mason's family for approximately five years, and had a strained relationship with them. (Tr. 253, 254.) Davis testified that Mason and two other women exited the gas station convenience store and approached him, and Mason stated that he was going to steal Davis's car. (Tr. 256.) Davis testified that he told Mason that he was not going to steal his car, and then Mason hit him with a stick. One of the women that was with Mason was his sister, and she begin choking Davis. Davis testified that all he felt was pain in his left rib, lung, and nose.

{¶ 4} Davis testified that he could feel his bones breaking and could not breathe. (Tr. 261.) Once Mason and the women stopped beating him, they entered their vehicle and started to drive away. Davis got off of the ground and threw a trash can at the car while it exited the gas station. Davis called his employer, who came to gas station and took him to Euclid Hospital's emergency room where he receivedpainkillers. Davis provided an initial statement to police while at the hospital emergency room, during which he identified Mason as his attacker.

{¶ 5} Davis was then transferred to MetroHealth Hospital, where he was diagnosed with "busted ribs, puncture lung, and fracture nose." (Tr. 265.) Davis, again, identified Mason as his attacker to Detective Michael Benz ("Detective Benz"), and Davis showed him a picture of Mason. The police obtained video surveillance from the gas station and Davis's hospital records, and the state charged Mason with felonious assault.

{¶ 6} Before trial, Mason's attorney had some discussion with the state regarding amending the charge from felonious assault to aggravated assault, and continued to pursue the argument during the trial. (Tr. 4.) The trial court did not provide such jury instructions as to the charge of simple assault, nor did Mason's trial counsel ask for the court to provide jury instructions.

{¶ 7} Mason concedes the facts in this case, including that he assaulted Davis and that video surveillance evidence is an accurate account of events as they happened. However, Mason has filed this appeal and assigned four errors for our review:

I. The trial court erred when it convicted defendant-appellant of felonious assault when the conviction was not supported by sufficient evidence;

II. Defendant-appellant's conviction must be reversed because it is against the manifest weight of the evidence;

III. Defendant-appellant's convictions must be reversed due to ineffective assistance of counsel; andIV. The trial court erred when it declined to instruct the jury as to misdemeanor assault.

II. Sufficiency of the Evidence

A. Standard of Review

{¶ 8} Mason challenges the sufficiency of the evidence presented to convict him of felonious assault.

Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency is a test of adequacy. Id. We construe the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 55 (8th Dist.).

B. Law and Analysis

{¶ 9} Mason was charged with one count of felonious assault, in violation of R.C. 2903.11(A)(1), which states, in part, "[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *." Mason argues that the evidence was insufficient to prove that he caused serious physical harm to Davis because the state did not provide expert medical testimony to substantiate the medical records that were submitted by the state. The medical records reflected that Davis suffered from three cracked ribs, a broken nose, and a punctured lung. (Tr. 245, 326-327, and 424.)

{¶ 10} Serious physical harm is defined in R.C. 2901.01(A)(5) as 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.

{¶ 11} Defense counsel insinuated during cross-examination that although Davis has a fractured rib that the injury may not constitute a serious physical harm. Counsel asked Davis was he "put in any kind of cast?"; "ribs didn't actually go through your lungs"; and "did you need surgery?" (Tr. 283.) Although the definition of serious physical harm is given in the statute, "[t]he degree of harm that rises to the level of 'serious' physical harm is not an exact science, particularly when the definition includes such terms as 'substantial,' 'temporary,' 'acute,' and 'prolonged.'" State v. Montgomery, 8th Dist. Cuyahoga No. 102043, 2015-Ohio-2158, ¶ 11, quoting State v. Miller, 8th Dist. Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18, quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996, ¶ 37.

{¶ 12} As this court stated in Montgomery, since the injuries to Davis are serious enough that he sought medical treatment, it was reasonable for the jury toinfer that "the force exerted on the victim caused serious physical as defined by R.C. 2901.01(A)(5)." Montgomery at ¶ 12. Additionally, if "the assault causes a bone fracture, the element of serious physical harm is met." Id. at ¶ 13.

{¶ 13} Mason argues that the state did not provide expert medical testimony to verify Davis's medical report and injuries. During Mason's counsel Crim.R. 29 request for acquittal he stated:

The testimony in this case has been sparse at best. There has been no expert testimony, no medical testimony. A detective has introduced a medical record with no explanation or interpretation of what has happened. There's been very sparse testimony as to what, if any, effects that this has had long term on the alleged victim in this case, and none of that has been supported by any corroborating evidence such as additional records.

(Tr. 352-353.)

{¶ 14} However, in Montgomery, this court ruled that the victim established the element of serious physical harm, in part, through her medical records. Montgomery at ¶ 14. Thus, "the State need not present expert medical testimony to establish the element of serious physical harm." State v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 24. See, e.g., State v. Leigh, 8th Dist. Cuyahoga No. 99181, 2013-Ohio-3243, ¶ 18 (court held that "the victim's testimony alone establishes the causal connection between the assault and her injuries diagnosed at the hospital shortly after the assault").

{¶ 15} Furthermore, Mason does not cite any legal authority to support his contention that the state was required to present expert medical testimony. "The burden of affirmatively demonstrating error on appeal rests with the [appellant]."Miller v. Johnson & Angelo, 10th Dist. Franklin No. 01AP-1210, 2002-Ohio-3681, ¶ 2. See App.R. 16(A)(7). Thus, we have determined the evidence was sufficient to demonstrate that serious physical harm was inflicted upon Davis.

{¶ 16} Therefore, Mason's first assignment of error is overruled.

III. Manifest Weight of the Evidence

A. Standard of Review

{¶ 17} Mason argues that his conviction was against the manifest weight of the evidence. "Unlike sufficiency of the evidence, 'a manifest weight challenge questions whether the state met its burden of persuasion.'" Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 69 (8th Dist.), quoting State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.

"The court, 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 [fact finder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction."

Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

B. Law and Analysis

{¶ 18} Mason's argument lacks citing of legal authority, in violation of App.R....