Opinion
No. 107320
04-11-2019
STATE OF OHIO, Plaintiff-Appellee, v. ANDRE QUINN, Defendant-Appellant.
Appearances: Michaele Tyner, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623721-A Appearances: Michaele Tyner, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee. EILEEN A. GALLAGHER, J.:
{¶ 1} A jury found defendant-appellant Andre Quinn guilty of four counts of aggravated assault in violation of R.C. 2903.12(B) following an incident where Quinn, by way of a brick, sent two women to the hospital. Although Quinn was initially charged with five counts of felonious assault, the trial court dismissed one count as lacking sufficient evidence. The remaining four counts were submitted to the jury and it found Quinn guilty of four counts of the inferior-degree offense, aggravated assault. At sentencing, the court merged two counts and sentenced Quinn on the remaining two counts imposing consecutive terms of 18 months in prison for a total of 36 months.
{¶ 2} Quinn appeals, raising two assignments of error. He argues that the state presented insufficient evidence for conviction and that his convictions are against the manifest weight of the evidence. We affirm.
Factual and Procedural Background
{¶ 3} Following a morning of partying, Quinn and four other people entered Quinn's truck to go for some supplies. Quinn was the driver and the other male in the group, Jamar LNU, was in the front passenger seat. Three women, Latesha Dotson, Shermaine Wagner and MiKeisha Edwards sat in the back. There was testimony presented that all had been drinking that morning and that Jamar and Dotson had also been smoking marijuana.
{¶ 4} As he drove, Quinn and Jamar got into an argument. Quinn pulled into a parking lot and the two men got out of the car to continue their argument. The women exited the vehicle as well. Dotson intervened, and in an attempt to break up the argument instead, escalated it. Quinn slapped her in the face. This escalated into a fist fight between Quinn and Dotson. Edwards picked up a brick and threw it into the fray. There is conflicting testimony about whether the brick hit Quinn before it landed on the ground. Once the brick was on the ground, Wagner attempted to kick it out of the way.
{¶ 5} Nevertheless, Quinn picked up the brick and began swinging it. He connected, hitting Dotson in the nose which rendered her unconscious. Quinn then hit Wagner with the brick twice, striking her in the head and shoulder before he got into the car and fled the scene.
{¶ 6} Dotson suffered a broken nose and was transported to MetroHealth Hospital where she underwent surgery. Wagner was also transported to MetroHealth for treatment, requiring three or four staples in her head and one in her shoulder. Both women testified about the incident and their injuries and both women's medical records were received into evidence.
{¶ 7} Quinn was charged with five counts of felonious assault, two for each of the victims who required medical treatment and one for Edwards who initially threw the brick. The court dismissed one count after finding insufficient evidence to establish that Quinn assaulted Edwards. The court submitted the remaining four counts to the jury along with instructions as to both felonious assault and the inferior-degree offense of aggravated assault. The jury found Quinn guilty of four counts of aggravated assault.
Sufficiency of the Evidence
{¶ 8} In his first assignment of error, Quinn argues that the state did not present sufficient evidence to convict him of aggravated assault for two reasons. He complains that the state "did not present sufficient evidence to negate the mitigating factors set out by the statute" and he argues that the state did not prove he acted with the requisite state of mind.
{¶ 9} A challenge to the sufficiency of the evidence requires this court to view the evidence in a light most favorable to the prosecution and determine whether 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), at paragraph two of the syllabus.
{¶ 10} As noted, aggravated assault is an inferior-degree offense of felonious assault. State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 11. Both offenses require the prosecution to prove the same elements: a person commits both felonious and aggravated assault where that person "knowingly * * * [c]ause[s] serious physical harm to another" person. Compare R.C. 2903.11(A)(1) with 2903.12(A)(1). However, the nature and penalty of aggravated assault are mitigated by proof of one or two mitigating circumstances, namely, sudden passion or a sudden fit of rage brought on by serious provocation occasioned by the victim. State v. Henry, 8th Dist. Cuyahoga No. 102634, 2016-Ohio-692, ¶ 29.
{¶ 11} The prosecution must prove the elements of felonious assault beyond a reasonable doubt. However, it is the defendant who bears the burden of proving one or both mitigating circumstances in order to mitigate a felonious assault to an aggravated assault. Id. To the extent that Quinn suggests that it was the state who was required to prove mitigation, his argument misses the mark.
{¶ 12} Quinn argues that the state failed to prove that he acted knowingly. He complains that he could not have knowingly caused the victims serious physical harm because he was (1) "inebriated" and (2) "fending off verbal and physical attacks."
{¶ 13} We note that voluntary intoxication is not an affirmative defense in Ohio. See R.C. 2901.21(E) ("Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense."). Moreover, even if it were a defense here, Quinn nevertheless did not raise it at trial. See State v. Melchior, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978), quoting R.C. 2901.05(A) ("The burden of going forward with the evidence of an affirmative defense is upon the accused."). Accordingly, we will not address it now.
{¶ 14} "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." R.C. 2901.22(B). "Serious physical harm" includes "[a]ny physical harm that carries a substantial risk of death," "some temporary, serious disfigurement" or "involves any degree of prolonged or intractable pain." R.C. 2901.01(A)(5). A rational trier of fact would foresee that picking up a brick, wielding it as a weapon and striking a person in the head would likely cause serious physical harm. That is exactly what happened here. Quinn's claim that he was fending off verbal and physical attacks does not change the analysis. Quinn picked up a brick and used it as a weapon. He struck two women in the head and elsewhere, sending them both to the hospital. See State v. Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390, ¶ 22 (citing cases) ("This court has repeatedly determined that a factfinder does not err in finding serious physical harm where the evidence establishes the victim suffered injuries necessitating medical treatment."). There was sufficient evidence for conviction. We overrule Quinn's first assignment of error.
Manifest Weight of the Evidence
{¶ 15} In his second assignment of error, Quinn argues that his convictions are against the manifest weight of the evidence. He complains that the two victim-witnesses gave conflicting and self-serving testimony.
{¶ 16} A manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26. In conducting such a review, this court remains mindful that the credibility of witnesses and the weight of the evidence are matters primarily for the trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the syllabus. Reversal on manifest weight grounds is thus reserved for the "exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶ 17} Quinn asserts, without providing any support, that both victim-witnesses gave conflicting, speculative and untrue testimony. He states that both testified in a self-serving manner in order to minimize their role in the fight. "'When an appellant attacks the credibility of a witness on manifest weight grounds, it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact which accepted the testimony of such witness unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.'" State v. Brown, 10th Dist. Franklin No. 02AP-11, 2002-Ohio-5345, ¶ 10, quoting State v. Long, 10th Dist. Franklin No. 96 APA04-511, 1997 Ohio App. LEXIS 416 (Feb. 6, 1997). We make no such finding here.
{¶ 18} Quinn also makes the baseless claim that he "tried to get the brick away from any of the women to protect himself * * * and in doing so, may have hit both [of the victims] with the brick." Nevertheless, the uncontroverted testimony presented at trial was that Quinn picked up the brick, struck both women with it and injured them both. Their medical records confirmed their injuries. Quinn's convictions are not against the manifest weight of the evidence. We overrule this assignment of error.
{¶ 19} 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 of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending 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/_________
EILEEN A. GALLAGHER, JUDGE SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR