Opinion
No. 106214
06-07-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. CURTIS W. BENSON DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Britta M. Barthol P.O. Box 670218 Northfield, Ohio 44067 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Lindsay Raskin Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-607449-A BEFORE: Jones, J., E.T. Gallagher, P.J., and S. Gallagher, J.
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor BY: Lindsay Raskin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Curtis Benson ("Benson") appeals his felonious assault conviction. For the reasons that follow, we affirm.
{¶2} In 2016, Benson was charged with one count of felonious assault. The matter proceeded to a bench trial after which the trial court found Benson guilty as charged.
{¶3} The following pertinent testimony was presented at trial.
{¶4} On June 1, 2016, the Euclid Police Department responded to a call for service at a Euclid Avenue apartment complex. When Officer David Olszewski ("Officer Olszewski") arrived on scene, Octavious Hall ("Hall") was being transported to the hospital. Officer Olszewski was told by witnesses that Hall had fallen. He observed that the sidewalk or walkway where Hall fell had a ledge on it and was located between two apartment buildings. Officer Olszewski met with a maintenance worker who had access to the security system for the building complex. Officer Olszewski reviewed video footage of the incident and the events leading up to it and saw that Hall had not fallen down, but had been pushed by a man the officer later identified as Benson. Hall hit his head on the concrete ledge and lay unconscious for several minutes; Benson bent over him and then left the scene.
{¶5} Hall testified that on the morning of June 1, 2016, he was waiting outside his apartment building to meet his mother and sister. Hall admitted he had been drinking and testified he stopped about midnight the night before, although his medical records indicated his blood alcohol level was three times above the legal limit upon admission to the hospital. He further admitted he had smoked some cocaine-laced marijuana cigarettes the prior evening. According to Hall, he "self-medicated" to deal with the death of his brother, who was murdered in 2005.
{¶6} Hall knew Benson from the apartment complex. Sometime during the morning, the two men got into a verbal confrontation. Hall testified he did not want the argument to escalate because he did not want his mother and sister to see him fighting. According to Hall, he did not remember Benson approach him; the next thing he remembered was waking up in the hospital two days after the incident. Hall spent a month in the hospital and was diagnosed with a traumatic brain injury.
{¶7} Hall's mother, Charity Hall ("Charity"), testified her son was unconscious for two days and could not sit up unassisted when he initially regained consciousness. Hall was still suffering from his injuries at the time of trial, more than a year after the incident. According to Charity, Hall's injuries had adversely affected his memory, ability to control his bowels, sleep patterns, and personality. Hall had to move in with his mother so she could take care of him.
{¶8} Detective Greg Costello ("Detective Costello"), who also viewed the surveillance video, described that at the time of the incident, Hall was in a passive posture: "His hands [were] at his sides or almost behind his back, and it appear[ed] that he might [have taken] a step backwards with his right leg." Detective Costello testified: "He's [Benson] pushing Octavious Hall in the chest with his left hand, holding the chair in his right hand. Hall is going backwards. Benson is moving forward. He's definitely lowering his center of gravity and he's producing energy in a forward motion."
{¶9} Detective Costello contacted Benson for an interview. Benson initially told the detective that he never "put my hands on that man. He knocked himself out." After being confronted with the surveillance video, Benson blamed the fall on Hall's shoes. Benson then told the detective he had blacked out and could not recall what actually happened.
{¶10} Rochele Avearyhert ("Avearyhert") testified she was watching her grandchild when she heard Benson and Hall arguing through her apartment window. She then saw Benson "looking upset" and walking toward Hall, so she told Benson "to stop. I said 'don't do it. Stop.'" She stated these things, she testified, because Benson was much bigger than Hall. Avearyhert testified that she saw Hall try to "push or nudge" Benson with his shoulder and that push or nudge in combination with Hall wearing shoes that were too big for him were what caused Hall's fall.
{¶11} Paul Weinberg ("Weinberg"), a resident of the complex, testified that Hall had stumbled and fell backwards. According to Weinberg, Hall was yelling and screaming that he was going to cut Benson's throat and kill him. Weinberg claimed that Benson was not acting aggressively; it was Hall who ran up on Benson. Weinberg testified:
And then I heard Curt [Benson] yelling back at him, but it was only for two or
three seconds. I think Curt was trying to warn him like, you know, back off or leave me alone or get away, or whatever. And all of a sudden, Octavious [Hall] fell backwards.
{¶12} On cross-examination, however, Weinberg acknowledged:
Weinberg: There's a tree blocking when Curt and Octavious were at the top of that concrete horizontal plane. The point behind it is I couldn't see when Octavious and Curt were within an inch of each other because the tree blocked it. I know there were [surveillance] tapes. I know there are tapes.
State: I'm sorry. Did you say you couldn't see the whole event?
Weinberg: I said that.
{¶13} Evie Lamar ("Lamar"), the maintenance worker who pulled the surveillance video for the police, provided a statement on the scene. Lamar testified that Hall was yelling at and threatening Benson. Lamar denied hearing Benson threatening Hall; Benson told him (Lamar) to get Hall under control because Hall was intoxicated. Lamar testified that Hall and Benson ran up on each other and "just clashed and he [Hall] fell right back." After viewing the surveillance video in court, he admitted Benson "ran into" Hall.
{¶14} The trial court accepted the stipulation that Hall suffered from serious physical harm and accepted the request from both parties to consider lesser included offenses. The trial court returned a verdict of guilty of felonious assault, finding that Benson acted knowingly in causing serious physical harm to Hall. The court sentenced Benson to two years of community control sanctions and 32 days in jail.
{¶15} Benson appeals and raises three assignments of error for our review:
I. The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that appellant was guilty of felonious assault.
II. The trial court erred when it failed to find appellant guilty of the lesser included offense of assault.
III. The appellant's conviction was against the weight of the evidence.
{¶16} In the first assignment of error, Benson claims that his felonious assault conviction was supported by insufficient evidence.
{¶17} A motion for judgment of acquittal under Crim.R. 29(A) requires a court to consider if the evidence is insufficient to sustain a conviction. "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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶18} The court found appellant guilty of felonious assault in violation of R.C. 2903.11(A)(1), which provides that no person shall knowingly cause serious physical harm to another.
{¶19} Benson claims that there was insufficient evidence that he acted "knowingly." R.C. 2901.22(B) states: "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist."
{¶20} The state is not required to show that the defendant knew the specific nature or extent of the injuries that would result from the defendant's actions. State v. Luna, 6th Dist. Lucas No. L-14-1 172, 2015-Ohio-3079, ¶ 16, citing State v. Witt, 6th Dist. Williams No. WM-04-007, 2005-Ohio-1379, ¶ 27. It is not necessary that a defendant be able to foresee the precise consequences of his or her conduct; only that the consequences be foreseeable in the sense that what actually transpired was natural and logical in that it was within the scope of the risk that the defendant created. State v. Dykas, 185 Ohio App.3d 763, 2010-Ohio-359, 925 N.E.2d 685, ¶ 28 (8th Dist.).
{¶21} In Dykas, this court held that it is a foreseeable consequence for someone to fall to the ground after being punched in the head. Id. Likewise, in this case, there was sufficient evidence that Benson charged at Hall and pushed him, and it was foreseeable that Benson's push could cause Hall to fall onto the concrete walkway and hit his head. Benson stipulated that Hall received serious physical injuries as a result of the fall. Thus, in viewing the evidence in the light most favorable to the state, a rational trier of fact could have found beyond a reasonable doubt that Benson acted knowingly and, thus, committed felonious assault.
{¶22} The first assignment of error is overruled.
{¶23} We consider the second and third assignments of error together. In the second assignment of error, Benson claims that the trial court erred when it convicted him of felonious assault instead of simple assault.
{¶24} R.C. 2903.13(B), assault, provides that no person shall recklessly cause serious physical harm to another. Assault pursuant to R.C. 2903.13(B) is a lesser included offense of felonious assault as defined in R.C. 2903.11(A)(1). State v. Hartman, 130 Ohio App.3d 645, 646-647, 720 N.E.2d 971 (1st Dist.1998); State v. Vera, 8th Dist. Cuyahoga No. 79367, 2002-Ohio-974. As mentioned, the trial court considered the crime of assault at the request of both parties.
{¶25} Benson contends, as he did under the first assignment of error, that there was insufficient evidence that he acted knowingly and, instead, the evidence showed that he caused Hall's injuries recklessly. We have already found, however, that there was sufficient evidence that Benson acted knowingly.
{¶26} Our analysis does not end there, however. In Ohio, an instruction on a lesser included offense is only warranted if the evidence presented at trial would reasonably support both an acquittal on the crime charged (felonious assault) and a conviction on the lesser included offense (assault). See State v. Gunther, 125 Ohio App.3d 226, 240, 708 N.E.2d 242 (11th Dist.1997), citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus.
{¶27} Here, as mentioned, the parties requested the court consider lesser included offenses. In order for an instruction on assault to be allowed, the court had to believe the instruction was warranted because the evidence presented would reasonably support both an acquittal on felonious assault and a conviction on assault.
{¶28} Benson argues in his second assignment of error that the trial court, as finder of fact, should have convicted him of assault instead of felonious assault; therefore, although not worded as such, Benson is arguing that his felonious assault conviction is against the manifest weight of the evidence. In his third assignment of error, he argues that his felonious assault conviction is against the manifest weight of the evidence and his conviction should be vacated in toto. In other words, he should not have been found guilty of even simple assault. Thus, we will consider whether his conviction was against the manifest weight of the evidence and/or whether he should have been convicted of simple assault.
{¶29} Unlike sufficiency of the evidence, manifest weight of the evidence raises a factual issue. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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 reversed and a new trial ordered.State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶30} "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." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶31} "The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. When examining witness credibility, "the choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some, or none of the testimony of each witness appearing before it. State v. Thomas, 11th Dist. Lake No. 2004-L-176, 2005-Ohio-6570, ¶ 29.
{¶32} Benson claims that Hall lost his balance due to his intoxicated state and fell backwards, causing his own injuries. He argues that Hall had been yelling, cursing, threatening, and taunting him, and Benson "rapidly approache[d] Hall pushing him in the chest in an attempt to quiet him."
{¶33} The court found:
Benson is physically more imposing than Hall. The video shows Benson running at Hall and using both hands to violently blast Hall's chest. Although a purpose to cause harm is not an element of felonious assault — purposely is a more culpable criminal mens rea than knowingly — Benson clearly intended to cause injury. That intent — even though it is not an element of the crime charged — and the force of the blow, plus the fact that Benson knew Hall was on a concrete sidewalk, all combine to convince me beyond a reasonable doubt that Benson knew serious physical harm was probable even if he did not foresee exactly how the injury would be sustained.
{¶34} "There may be one or more causes of an event. However, if a defendant's act or failure to act was one cause, then the existence of other causes is not a defense." See 4 Ohio Jury Instructions, Section 417.25 (2010). A defendant cannot be held responsible for consequences that no reasonable person could expect to follow from his or her conduct, but he or she will be held responsible for consequences that are direct, normal, and reasonably inevitable when viewed in the light of ordinary experience. Dykas, 185 Ohio App.3d 763, 2010-Ohio-359, 925 N.E.2d 685, at ¶ 27. Again, it is not necessary that Benson be in a position to foresee the precise consequence of his conduct in pushing Hall; only that Hall's falling and hitting his head on the concrete be foreseeable in the sense that what actually transpired was natural and logical in that it was within the scope of the risk created by Benson, a larger man, rushing at Hall and pushing him. See State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912 N.E.2d 133, ¶ 26 (8th Dist.), State v. Losey, 23 Ohio App.3d 93, 491 N.E.2d 379 (10th Dist.1985).
{¶35} We further note that even if Hall's intoxication somehow contributed to his injuries, as Benson alleges, i.e. that Hall might not have fallen down if he had not been under the influence of drugs and alcohol, Hall's intoxication is not a defense Benson can use to absolve him of culpability.
{¶36} Finally, allegations that Hall had been yelling, cursing, and threatening Benson also do not justify Benson's decision to shove him to "keep him quiet," because, in Ohio, words alone do not generally constitute evidence of serious provocation. See State v. Mowls, 5th Dist. Stark No. 2017CA00019, 2017-Ohio-8712, ¶ 30.
We note that "serious provocation" is relevant here only in an instruction on aggravated assault pursuant to R.C. 2903.12(A). It appears the parties asked the trial court to consider aggravated assault; however, Benson has not raised the issue on appeal. We mention it only because Benson claims that Hall provoked him to act. --------
{¶37} In light of the above, we do not find that this is a case where the trial court clearly lost its way in convicting Benson of felonious assault. Although we note that it appears from the surveillance video that Benson only used one hand to shove Hall, not two hands as the trial court found, that minor discrepancy does not change our conclusion that the court could have found beyond a reasonable doubt that Benson acted knowingly, and not recklessly. The video clearly shows Benson charging at Hall and Hall attempting to retreat before Benson shoved him and Hall fell.
{¶38} The second and third assignments of error are overruled.
{¶39} The trial court did not err when it found beyond a reasonable doubt that Benson committed the crime of felonious assault. The assignments of error are hereby overruled.
{¶40} Judgment affirmed.
It is ordered that appellee recover of 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. /s/_________
LARRY A. JONES, SR., JUDGE EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR