Opinion
No. 19AP-367
11-10-2020
State of Ohio, Plaintiff-Appellee, v. Sylvester N. Cowans, Defendant-Appellant.
On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee. On brief: Yavitch & Palmer, Co. LPA, and Jeffery A. Linn, II, for appellant.
(C.P.C. No. 17CR-6148) (REGULAR CALENDAR) DECISION On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee. On brief: Yavitch & Palmer, Co. LPA, and Jeffery A. Linn, II, for appellant. APPEAL from the Franklin County Court of Common Pleas BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Sylvester N. Cowans, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury verdict finding him guilty of felonious assault, a second-degree felony. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On November 13, 2017, appellant was indicted on one count of felonious assault, in violation of R.C. 2903.11, a second-degree felony. The indictment alleged the foregoing offense occurred on or about October 26, 2017. Appellant entered a not guilty plea to the charges and requested a jury trial.
{¶ 3} On April 30, 2019, a jury trial commenced. At trial, the following evidence was adduced. In the early morning hours of October 26, 2017, Columbus Police responded to a report of an assault at 1514 Nightfall Circle, Columbus, Ohio. (Tr. at 199-201.) The victim, J.J., testified she had been friends with appellant for several years, although she knew him by a different name. (Tr. at 130-132.) On the day before the assault, J.J. attended a family gathering where she consumed alcohol. (Tr. at 133-134.) At some point between two and three in the morning on October 26, 2017, J.J. headed home. (Tr. at 135.) Upon reaching her home and exiting the car in which she was traveling, J.J. came upon her neighbor, Shanell. (Tr. at 135-136.) Shanell invited J.J. to come to her house to have some drinks, and J.J. accepted the invitation. (Tr. at 137.) There were several people at the house, including appellant, and there were a lot of liquor bottles. Id.
{¶ 4} Appellant was selling shots from bottles of liquor at the party at Shanell's house, and J.J. chose to drink Black Hennessy. (Tr. at 138, 145.) Everyone at the party was drinking, including J.J. and appellant. (Tr. at 139.) J.J. also used cocaine at Shanell's house. (Tr. at 141.) J.J. testified that she was "really drunk," but that she was coherent, able to walk, and aware of her surroundings. (Tr. at 141-142.)
{¶ 5} J.J. left Shanell's house to check on her own two children who were at J.J.'s house. (Tr. at 139-140.) The children were upstairs with her nephew, Michael White ("Mr. White"). (Tr. at 140, 169.) A short time later, appellant knocked on J.J.'s door and she permitted appellant to enter. (Tr. at 140.) Appellant had the bottle of Hennessy with him. (Tr. at 146.)
{¶ 6} J.J. testified that she and appellant were talking, but appellant became aggressive and was touching, grabbing, and holding her. (Tr. at 141, 144.) J.J. told him to stop. (Tr. at 141.) Appellant wanted to go upstairs with J.J. but she said no and asked him to leave the house. (Tr. at 143-144.) Appellant did not leave. (Tr. at 144.) J.J. testified that instead, appellant hit her on the right side of her face with the bottle of Hennessy. (Tr. at 144, 146.) Appellant then hit her a second time, breaking the glass bottle. (Tr. at 147.) As a result, J.J. was knocked unconscious. (Tr. at 147-148.)
{¶ 7} J.J. regained consciousness as a police officer shined a light in her eyes. (Tr. at 147.) She testified that she recalled going in and out of consciousness and being frustrated with police questioning. (Tr. at 149-150.) She further testified that she told police she had fallen and explained that she meant that she fell after being struck with the bottle by appellant. (Tr. at 148.) J.J. also recalled that she identified appellant to the police while they were outside of her house. (Tr. at 149.)
{¶ 8} At trial, Mr. White provided testimony corroborating portions of J.J.'s testimony. Mr. White testified that he came downstairs while appellant was in the house, and he saw J.J. and appellant sitting at the table in the kitchen and talking. (Tr. at 221.) Mr. White went back upstairs and subsequently heard J.J. saying "stop" several times. (Tr. at 221.) Mr. White then went to the top of the stairs and down the steps, and he saw appellant in J.J.'s "personal space," touching her, and trying to lead her out of the kitchen. (Tr. at 222.) Mr. White testified it appeared J.J. did not want to be touched, and he told appellant he could not come upstairs. (Tr. at 223.) Mr. White then went back upstairs. (Tr. at 223-224.)
{¶ 9} After about five or six minutes, Mr. White heard more noise coming from downstairs. (Tr. at 224.) He went to the steps and observed J.J. appearing to block the bottom of the stairway to prevent appellant from going upstairs. Id. Mr. White went downstairs and asked appellant to leave, at which point appellant stated "All right, little bro." (Tr. at 224-225.) Mr. White proceeded to get something to drink in the kitchen and then he went back upstairs. (Tr. at 225.)
{¶ 10} After about twenty more minutes, Mr. White no longer heard noises coming from downstairs. (Tr. at 225.) He began to doze off. Id. As he was just closing his eyes, he heard a noise he described as a "boom," and the sound of dishes or glass breaking. (Tr. at 226.) He ran down the steps and found J.J. lying face down on the kitchen floor with "big chunks of glass near her and like a whole bunch of glass spread all over the kitchen floor." Id. J.J. was unconscious, and appellant was no longer in the house. Id.
{¶ 11} Mr. White looked for appellant and found him outside nearby in a truck that was running. (Tr. at 227.) There was a lady in the truck as well, and appellant was talking to her. Id. Mr. White asked appellant what happened to J.J., and after about three minutes appellant told him that "she fell." Id.
{¶ 12} Mr. White went back inside the house and awoke J.J.'s son, whereupon the two of them went back outside to speak to appellant. (Tr. at 228.) The three returned to the inside of the house, and J.J.'s son called 911. Id. Appellant stayed in the house with Mr. White and J.J.'s son until help arrived. Id. J.J. remained unconscious until police arrived. (Tr. at 226-227, 229.)
{¶ 13} Officer Schlaegel testified that he was one of the first police officers to respond on the scene. (Tr. at 200.) He testified that his observations of "the evidence we had there with the broken Hennessy bottle wasn't - didn't indicate a fall to me." (Tr. at 208.)
{¶ 14} J.J. was transported to the hospital and remained hospitalized for three or four days. (Tr. at 150.) Photographs taken at the hospital showed significant swelling and a large laceration over her right eye. (Tr. at 157-158; State's Exs. B-1 through B-4.) Her right orbit was fractured, and a metal plate was used to reconstruct that area. (Tr. at 150.) J.J. testified she experiences pain in her face when it rains or is cold outside. (Tr. at 150-151.) Further, the injury caused her eyes to become more sensitive to light and she now gets migraine headaches that she never suffered from prior to the assault. (Tr. at 151.) J.J. also testified that it feels like glass is still in her face. Id. As a result of the assault, J.J. had to go to therapy and counseling to help her recover. (Tr. at 151-152.) Her memory has been impacted and she was unable to work for almost a year. Id.
{¶ 15} At the close of the state's case, outside of the presence of the jury, defense counsel moved for acquittal pursuant to Crim.R. 29. (Tr. at 285.) The trial court denied the motion. Id. Subsequently, at the close of the defense's case, again outside of the presence of the jury, defense counsel renewed his motion for acquittal based on Crim.R. 29. (Tr. at 290.) The trial court again denied the motion. Id.
{¶ 16} At the conclusion of the trial, the jury returned a verdict finding appellant guilty of felonious assault, a second-degree felony. On May 20, 2019, the trial court issued a judgment entry which reflected the verdict of the jury and imposed a four-year prison sentence.
{¶ 17} This timely appeal followed.
II. Assignments of Error
{¶ 18} Appellant asserts the following two assignments of error for our review:
[I.] The trial court erred and thereby deprived appellant of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution by overruling appellant's Crim.R. 29 motion for judgment of acquittal, as the State failed to offer
sufficient evidence to prove each and every element of the charge beyond a reasonable doubt.
[II.] The trial court erred by finding appellant guilty and thereby deprived appellant of due process of law as guaranteed by provisions of the Ohio Constitution because the verdict of guilty was against the manifest weight of the evidence.
III. Discussion
A. First and Second Assignments of Error — Motion for Acquittal/Sufficiency of the Evidence and Manifest Weight of the Evidence
{¶ 19} Appellant's two assignments of error are interrelated in that they challenge both the sufficiency and weight of the evidence; therefore, we address them together. In his first assignment of error, appellant argues that the trial court erred when it denied his motion for acquittal. In his second assignment of error, appellant argues that the verdict of felonious assault was against the manifest weight of the evidence. We find no merit in either of appellant's contentions.
{¶ 20} Crim.R. 29(A) provides, in relevant part, "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." Crim.R. 29(A). "Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether a conviction is supported by legally sufficient evidence is a question of law. State v. Flood, 10th Dist. No. 18AP-206, 2019-Ohio-2524, ¶ 16, citing Thompkins at 386.
{¶ 21} In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine "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 (1991), paragraph two of the syllabus. In conducting a review of the sufficiency of the evidence, " 'an appellate court does not engage in a determination of witness credibility; rather it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime.' " Flood, 2019-Ohio-2524, at ¶ 16, quoting State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4, citing State v. Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418, ¶ 16.
{¶ 22} Comparatively, "[w]hile sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell, 2010-Ohio-1881, at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing Thompkins, 78 Ohio St.3d 380, at 386. "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). " '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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " Id., quoting Martin at 175.
{¶ 23} Furthermore, " '[w]hile the jury may take note of inconsistencies and resolve or discount them accordingly, * * * such inconsistences do not render defendant's conviction against the manifest weight or sufficiency of the evidence.' " State v. Gullick, 10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). "A jury, as the finder of fact and the sole judge of the weight of the evidence and the credibility of the witnesses, may believe or disbelieve all, part, or none of a witness's testimony." Id., citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 24} A conviction is not against the manifest weight of the evidence simply because the jury believed the state's version of events over the appellant's version. Gullick at ¶ 11, citing State v. Houston, 10th Dist. No. 04AP-875, 2005-Ohio-449, ¶ 38, rev'd and remanded in part on other grounds. Rather, a reviewing court must give great deference to the jury's determination of witness credibility. Id., citing State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 19. This is so because the jury " ' "is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." ' " State v. Huber, 10th Dist. No. 18AP-668, 2019-Ohio-1862, ¶ 32, quoting State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 25} Appellant was convicted on one count of felonious assault, in violation of R.C. 2903.11. R.C. 2903.11 defines felonious assault and provides, in relevant part:
(A) No person shall knowingly do either of the following:R.C. 2903.11(A)(1) and (2). In turn, "serious physical harm" is defined as:
(1) Cause serious physical harm to another or to another's unborn;
(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance.
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;R.C. 2901.01(A)(5).
(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.
{¶ 26} In his challenge to the sufficiency of the evidence, appellant argues that the state failed to meet its burden of proving that appellant caused the injuries suffered by J.J. as required by R.C. 2903.11. Specifically, appellant asserts that the evidence showed that J.J.'s injuries were caused not by appellant, but by a fall in the kitchen.
{¶ 27} Appellant also challenges the testimony of J.J. as being unreliable due to J.J.'s admitted intoxication. But the mere fact that J.J. had been drinking, used drugs, or was intoxicated does not automatically negate her testimony. See State v. Word, 10th Dist. No. 17AP-367, 2019-Ohio-1733, ¶ 40. Furthermore, appellant's challenge to the credibility of J.J.'s testimony goes to the weight of the evidence, not the sufficiency of the evidence. (Citations omitted.) State v. Cervantes, 10th Dist. No. 18AP-505, 2019-Ohio-1373, ¶ 33. "[I]n a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 28} The evidence presented by the state included J.J.'s testimony that appellant hit her in her face with a liquor bottle two times and that she fell to the ground. (Tr. at 144, 146-147.) J.J. also testified regarding her extensive injuries and ongoing physical and psychological difficulties. (Tr. at 150-152.) J.J.'s medical records also demonstrated significant trauma and damage to her face. (Tr. at 157-158; State's Exs. B-1 through B-4.) Additionally, Mr. White testified that when he discovered J.J. lying on the kitchen floor, there were large chunks of glass near her and "a whole bunch of glass spread all over the kitchen floor." (Tr. at 226.)
{¶ 29} The foregoing evidence is entirely consistent with a jury finding that J.J.'s injuries were caused by appellant and not by a fall. Construing the evidence in favor of the state, we conclude it was sufficient to allow the jury to infer that appellant knowingly caused physical harm to J.J. and/or that appellant knowingly caused or attempted to cause serious physical harm to J.J. by means of a deadly weapon as required by R.C. 2903.11(A)(1) and (2). Therefore, the trial court properly overruled appellant's motion for acquittal made pursuant to Crim.R. 29.
{¶ 30} The manifest weight of the evidence also supports appellant's conviction for felonious assault. Although appellant argues that the evidence "supports an accidental fall rather than an intentional act" (Appellant's Brief at 17), as discussed above, the record shows J.J. was consistent in her testimony that appellant had assaulted her by hitting her in the face twice with a liquor bottle. J.J. further explained that when she told the police at the scene that she had fallen, she meant she had fallen after being struck with the liquor bottle by appellant. (Tr. at 148.) J.J. also identified appellant as her assailant on the night of the incident. (Tr. at 149.) Furthermore, the testimony of Mr. White corroborated key portions of J.J.'s testimony of the events.
{¶ 31} As set forth above, under a manifest weight of the evidence analysis, although we are able to consider the credibility of the witnesses in conducting our review, " 'we are guided by the presumption that the jury * * * is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proferred testimony.' " Cattledge at ¶ 6, quoting Seasons Coal Co. at 80. In this case, the jury was entirely free to believe J.J., the victim, and appellant's conviction is not against the manifest weight of the evidence merely because the jury found her testimony credible. See Gullick, 2014-Ohio-1642, at ¶ 11. Indeed, "the testimony of one witness, if believed by the jury, is enough to support a conviction." State v. Hood, 10th Dist. No. 15AP-656, 2015-Ohio-5373, ¶ 11, citing State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42. In short, in engaging in the limited weighing of the evidence which we are permitted, we cannot say the jury clearly lost its way when it found appellant guilty of felonious assault beyond a reasonable doubt. Accordingly, we find that the manifest weight of the evidence supports appellant's conviction.
{¶ 32} In sum, appellant has failed to demonstrate that the evidence was insufficient or that the jury clearly lost its way and created such a manifest miscarriage of justice that his conviction on the felonious assault count must be reversed and a new trial ordered. Because appellant's conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, his first and second assignments of error are overruled.
IV. Disposition
{¶ 33} Having overruled both appellant's two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.