Opinion
2023CA00089
09-23-2024
STATE OF OHIO Plaintiff-Appellee v. TAYLOR LYNN JORDAN Defendant-Appellant
For Plaintiff-Appellee: KYLE L. STONE STARK CO. PROSECUTOR VICKI L. DESANTIS For Defendant-Appellant: GEORGE URBAN
Appeal from the Stark County Court of Common Pleas, Case No. 2022CR2745A
For Plaintiff-Appellee:
KYLE L. STONE
STARK CO. PROSECUTOR
VICKI L. DESANTIS
For Defendant-Appellant:
GEORGE URBAN
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.
OPINION
Delaney, P.J.
{¶1} Appellant Taylor Lynn Jordan appeals from the July 11, 2023 Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose following a melee between appellant, Jane Doe, Jane Doe's Aunt, Jane Doe's Daughter, appellant's Sister, and appellant's Friend. Appellant and her cohorts drive to Jane Doe's residence and a melee ensued.
{¶3} Appellant is the current paramour of the Father of Jane Doe's son. On December 21, 2022, Jane Doe posted a photo to social media and an online dispute resulted. Jane Doe believed appellant and her associates intended to seek out Jane Doe to fight, so Jane Doe pre-emptively posted an invitation on social media for the women to "pull up."
{¶4} Later that day, appellant, Sister, and Friend "pulled up" at Jane Doe's house. Jane Doe came outside; her Aunt was on the porch with her son, and two other children remained inside the house. Jane Doe used a red "Club" anti-car-theft wheel-locking device to strike the back window of the women's car. The car left, circled the block, and returned.
{¶5} Appellant's Sister walked down the street with a tire iron in her hand, followed by appellant. Jane Doe's Aunt warned Doe to come back to the house because she was outnumbered. Sister proceeded to break out the windows on Aunt's car with the tire iron. Doe approached to stop Sister, and saw appellant running toward her. Doe turned toward appellant.
{¶6} Appellant's video played at trial shows Doe and Sister near Aunt's car. Doe turns as she sees appellant approaching her, and swings the Club device twice.
{¶7} Appellant's Sister then struck Doe on the back of the head with the tire iron and jumped on her. Appellant recorded the fight with her phone, but Doe's attention was on Sister because Sister had the tire iron. Doe and Sister fell to the ground, struggling. Due to intervention of Friend, appellant's Sister wound up on top of Doe, pinning her arms down. Doe tried but was unable to push her off.
{¶8} Doe narrated the video as it was played for the jury. Doe said the video showed the latter part of the fight; the first part of the fight occurred in front of a neighbor's house when her children ran outside and appellant's Sister jumped on top of her. The video showed appellant in black; Doe on the ground in a white t-shirt; two children yelling for their mother; and Aunt wearing a toboggan hat. Appellant's Friend circled the fight.
{¶9} Doe testified Sister pinned her hands down and Doe was unable to push her off. As she was held on the ground by Sister, appellant struck Doe 10 to 15 times with the red Club that appellant originally carried. Doe testified appellant also hit one of her daughters and shoved Aunt. When the fight ended, Doe ran inside the house with her children.
{¶10} Doe recalled the arrival of police but said she was "out of it" because she "took so many blows to the head." She was transported to the hospital in an ambulance, but did not remember getting into the ambulance. Doe identified her own medical records and testified a CT scan revealed a severe concussion, a broken nose, and contusions to her knees. Surgery was recommended for Doe's nose, but she didn't pursue surgery because she couldn't take time off work. Doe further testified her pain lasted about two months and she was given pain pills and told to rest at home.
{¶11} Officers of the Canton Police Department responded to the assault call at the residence on Arlington Avenue Southwest. Upon arrival, the fight was over and only two victims were present, with a juvenile inside the house. Officers secured the scene, rendered aid, collected evidence, and contacted Detective Diels. Officers photographed Doe's injuries, collected the tire iron, took witness statements, obtained camera footage, and questioned neighbors to look for witnesses.
{¶12} Detective Diels responded to the scene and spoke to Doe's Aunt. He then responded to Aultman Hospital to speak to Doe, where he learned four people arrived at Doe's house to fight. He viewed videos of the incident and contacted the Prosecutor's Office seeking arrest warrants for appellant and two other individuals.
{¶13} The next day, Diels spotted appellant in her vehicle on the southeast side of Canton and arrested her. She was transported to the Canton Police Department and her purse was inventoried. Diels found 56 blue pills in a clear plastic baggie, $371 in cash, and someone else's driver's license. The pills were tested and determined to be fentanyl. Diels testified the amount of fentanyl in the purse was indicative of drug trafficking, not personal use.
{¶14} Diels interviewed appellant, who said Doe did not invite her to the house to fight; nor had the two ever fought before. Appellant refused to show Diels any phone video footage of the fight, and refused to provide the name of another person who purportedly had a video of the fight. Appellant also refused to tell Diels who was driving her car when they arrived at Doe's house.
{¶15} Diels identified photos of Doe's injuries and explained he did not charge Doe because she wasn't the aggressor in the fight. She did not fight back and was held down by someone else while appellant struck her repeatedly with the red Club. Diels watched the videos and opined this was not a case of self-defense.
{¶16} Appellant testified in her own defense and agreed the dispute began when Doe sent a screenshot of her daughter to appellant's boyfriend. Appellant stated Doe posted about "pulling up" and "let's shake some shit," leading to appellant's decision to go to Doe's house. Appellant admitted this was a poor decision.
{¶17} Appellant said they drove slowly down the street because she wasn't sure which house was Doe's, but then she spotted Doe and her Aunt outside in a yard. Doe had a red Club and hit the rear-passenger window with it, so appellant and her cohorts briefly drove off. The driver then returned and appellant, Sister, and Friend got out of the car.
{¶18} Appellant testified she began to argue with Doe immediately and recorded the argument with her phone. Appellant's Sister then struck the windows of Aunt's car, which was parked outside the house. Appellant testified she and Sister told Jane Doe to put her weapon down and fight, but Jane Doe ran toward appellant with the Club and hit appellant with it three or four times, breaking her fingers. Appellant and Jane Doe began fighting and appellant took the Club from her. Appellant's Sister and Jane Doe fought on the ground and appellant struck Jane Doe again with the Club to break up the fight.
{¶19} Appellant acknowledged she shoved Jane Doe's Aunt and daughter. Appellant and Sister left the scene when someone said a dog was coming.
{¶20} Appellant acknowledged she did not have to pursue the fight at Jane Doe's residence after the comments were made on Facebook. Appellant testified the driver of the car at first drove off, but Sister wanted to return and fight. Appellant followed her Sister and admitted Sister struck Aunt's car with a tire iron. Appellant acknowledged she could have walked away at any point and could have called police instead of filming the fight, but instead she struck Jane Doe multiple times with the Club.
{¶21} Appellant was charged by indictment with one count of felonious assault pursuant to R.C. 2903.11(A) and (D)(1)(a), a felony of the second degree; one count of trafficking in a fentanyl-related compound pursuant to R.C. 2925.03(A)(1) and (C)(9)(d), a felony of the third degree; and two counts of assault pursuant to R.C. 2903.13(A), both misdemeanors of the first degree. The trafficking count was accompanied by a forfeiture specification pursuant to R.C. 2941.1417(A).
{¶22} The matter proceeded to trial by jury. Appellant was found guilty upon the sole count of felonious assault and not guilty upon the misdemeanor counts of assault. The trial court entered a nolle prosequi upon the trafficking count pursuant to Crim.R. 29. At a subsequent sentencing hearing, the trial court imposed an indefinite prison term of 4 to 6 years.
{¶23} Appellant now appeals from the judgment entry of conviction and sentence.
{¶24} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶25} "I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST THE APPELLANT FOR FELONIOUS ASSAULT AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY VIOLAT[ING] APPELLANT'S GUARANTEES OF DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION, AND THE CONVICTION MUST BE REVERSED."
{¶26} "II. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST THE APPELLANT FOR FELONIOUS ASSAULT AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WHEN THE STATE FAILED TO DISPROVE THE SELF DEFENSE RAISED BY APPELLANT, THEREBY VIOLAT[ING] APPELLANT'S GUARANTEES OF DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION, AND THE CONVICTION MUST BE REVERSED."
{¶27} "III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO PRESENT A JURY INSTRUCTION ON A LESSER INCLUDED (OR INFERIOR-DEGREE) OFFENSE."
ANALYSIS
I., II.
{¶28} Appellant's first and second assignments of error are related and will be considered together. Appellant argues her conviction upon one count of felonious assault is not supported by sufficient evidence and is against the manifest weight of the evidence because appellee failed to prove appellant caused Jane Doe's injuries and failed to prove appellant was not acting in self-defense. We disagree.
{¶29} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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."
{¶30} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the "thirteenth juror," and after "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 overturned and a new trial ordered." State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.
{¶31} Appellant challenges her conviction upon one count of felonious assault pursuant to R.C. 2903.11(A)(1) and (2), which state in pertinent part:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another * * *;
(2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.
{¶32} First, appellant argues there is insufficient evidence that she caused Jane Doe's serious physical harm in the midst of the melee with other participants. We disagree; the jury could have reasonably found appellant was either the principal offender, or aided and abetted the principal offender, in commission of felonious assault. The jury was instructed on the definition of "aiding and abetting," to wit, that one aids or abets a crime when she supports, assists, encourages, cooperates with, advises, or incites the principal in the commission of the crime. T. II, 14; see, R.C. 2923.03.
{¶33} Appellee need not prove the accomplice and principal had a specific plan to commit a crime. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001). The fact that the defendant shares the criminal intent of the principal may be inferred from the circumstances surrounding the crime, which may include the defendant's presence, companionship, and conduct before and after the offense is committed. State v. Polite, 5th Dist. Stark No. 2017 CA 00129, 2018-Ohio-1372, ¶ 42, citing Johnson, supra, 93 Ohio St.3d at 245-246. This is a situation where "[c]ircumstantial evidence and direct evidence inherently possess the same probative value," State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus, because "[t]he intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person, and it need not be." Id., citing In re Washington, 81 Ohio St.3d 337, 340, 691 N.E.2d 285, 1998-Ohio- 627, internal citation omitted.
{¶34} In the instant case, the evidence established appellant was part of a group that "pulled up" at Doe's house looking for a fight; Doe willingly followed Sister's lead when she approached the scene with a tire iron. Once Sister had Doe on the ground, appellant admittedly struck Jane Doe repeatedly with the Club device; moreover, appellant actively assisted her Sister in striking Jane Doe in the back of the head with a tire iron by holding Jane Doe down and pinning her arms to the ground. The evidence was established not only through the testimony of Jane Doe and the admissions of appellant, but also by the Ring camera video showing appellant striking Jane Doe in the head repeatedly with the Club.
{¶35} As a result of appellant and Sister's attack, Doe sustained serious physical harm including, e.g., a broken nose and concussion.
{¶36} Appellant's argument seems to conflate the tire iron brandished by her Sister with the Club device brandished first by Jane Doe and later by appellant. Appellant argues no DNA evidence or fingerprints were taken from the "crow bar," but the video showed appellant using the Club to strike Jane Doe. Jane Doe testified it was Sister who carried a tire iron--a separate weapon--which she used to strike the windows of Aunt's car and to strike Jane Doe in the back of the head.
{¶37} We find the record is replete with evidence that appellant was both the primary offender in inflicting serious physical harm upon Jane Doe and also that the jury could have reasonably found she aided and abetted Sister in doing the same.
{¶38} Appellant also argues the jury's finding that she committed felonious assault against Doe and not simple assault against two other participants is inconsistent. The jury could reasonably have found, based on the video evidence and the testimony, that appellant caused serious physical harm to Doe but did not cause or attempt to cause physical harm to Aunt or any other purported victim.
Self-defense
{¶39} Appellant next argues appellee failed to disprove her claim of self-defense and therefore her conviction is against the manifest weight of the evidence. We disagree.
{¶40} Appellee's burden of disproving a defendant's self-defense claim beyond a reasonable doubt is subject to a manifest-weight review on appeal. State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653 ¶ 27. We therefore apply the manifest weight standard of review. State v. Hardman, 5th Dist. Stark No. 2023-CA-00046, 2024-Ohio-300, ¶ 22, motion for delayed appeal granted, 174 Ohio St.3d 1485, 2024-Ohio-1974, 234 N.E.3d 510, and cause dismissed, 174 Ohio St.3d 1510, 2024-Ohio-2536, 236 N.E.3d 234.
{¶41} R.C. 2901.05(B)(1) provides:
(B)(1) A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a person who is accused of an offense that involved the person's use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person's residence, as the case may be.
{¶42} The defendant has the initial burden of production, which is the burden of producing evidence "that tends to support" that the defendant used force in self-defense. Messenger, supra, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653 ¶ 21. The burden then shifts to the state under its burden of persuasion to prove beyond a reasonable doubt that the defendant did not use the force in self-defense. Id. at ¶ 24. In other words, if the evidence tends to support that the defendant acted in self-defense, then the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense. Id. at ¶26; State v. Gatewood, 1st Dist. Hamilton No. C-190654, 2021-Ohio-3325, ¶ 68. The state need only disprove one of the elements of self-defense beyond a reasonable doubt at trial to sustain its burden. State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986); State v. Staats, 5th Dist. Stark No. 2019CA00181, 2021-Ohio-1325 ¶ 28.
{¶43} In the instant case, appellee was required to disprove at least one of the following: 1) appellant was not at fault in creating the situation giving rise to the affray, 2) appellant had reasonable grounds to believe and an honest belief even if mistaken that she was in imminent danger of death or great bodily harm and that she did not use more force than necessary to defend against the attack, and 3) appellant must not have violated any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 79, 388 N.E.2d 755 (1979) (citations omitted). The jury in this matter was so instructed.
{¶44} Appellant argues she was not at fault in creating the situation giving rise to the affray, and had an honest belief she was in imminent danger of great bodily harm. It is undisputed that Jane Doe initiated an online social media dispute with appellant, but appellant brought the fight directly to Jane Doe's doorstep and brought reinforcements to back her up. While Jane Doe initially approached the vehicle with the Club, the car containing appellant drove off but returned. Sister struck Doe with the tire iron and pinned her to the ground, and the video evidence showed appellant strike Doe in the head repeatedly, while Doe was incapacitated. The jury could not reasonably believe appellant was in fear of death or imminent bodily harm as she struck Doe with her arms pinned, and the amount of blows demonstrated rage and an intent to cause serious bodily harm, not an intent to deflect a physical threat.
{¶45} The jury's conclusion finding that appellant did not act in self-defense is therefore not against the manifest weight of the evidence. The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. Indeed, the trier of fact need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Miller, 5th Dist. No. 17 CAA 08 0062, 2018-Ohio-3481, 118 N.E.3d 1129, ¶ 47, citing State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, internal citations omitted.
{¶46} We find that this is not an "'exceptional case in which the evidence weighs heavily against the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor created a miscarriage of justice in convicting appellant. Based upon the foregoing and the entire record in this matter, we find appellant's conviction is not against the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matter. The jury heard the witnesses, evaluated the evidence, and was convinced of appellant's guilt.
{¶47} Our review of the entire record reveals no significant inconsistencies or other conflicts in appellee's evidence which would demonstrate a lack of credibility of the witnesses sufficient to find the jury lost its way to finding appellant guilty. Miller, supra, 2018-Ohio-3481, ¶ 49.
{¶48} Appellant's first and second assignments of error are overruled.
III.
{¶49} In her third assignment of error, appellant contends the trial court should have instructed the jury upon the lesser offense of misdemeanor assault. We disagree.
Appellant first states the trial court should have provided an instruction on aggravated assault or misdemeanor assault, but proceeds to argue only in support of misdemeanor assault.
{¶50} "[A]fter arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder." State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. The facts of each case determine the necessity of instructing the jury on lesser crimes or lesser included offenses. State v. Kidder, 32 Ohio St.3d 279, 282, 513 N.E.2d 311 (1987); State v. Loudermill, 2 Ohio St.2d 79, 80, 206 N.E.2d 198 (1965).
{¶51} A party is not entitled to an instruction on a lesser included offense unless the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Black, 5th Dist. Stark No. 2011 CA 00175, 2012-Ohio-2874, ¶ 45, internal citation omitted. In making this determination, the court must view the evidence in the light most favorable to a defendant. Id. But an instruction on a lesser included offense is not warranted every time "some evidence" is presented to support the inferior offense. See State v. Shane (1992), 63 Ohio St.3d 630, 590 N.E.2d 272. There must be "sufficient evidence" to "allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior degree) offense." (Emphasis sic.) Id. at 632-633, 590 N.E.2d 272.
{¶52} At trial, appellant argued the jury could find the Club was not a deadly weapon "as well as the nature of the injuries." The trial court declined to give an assault instruction for the attack on Doe because the Club was capable of inflicting a concussion and broken nose, and we concur.
{¶53} Appellant further argues the jury could have found she inflicted only simple assault on Doe, while others in the melee inflicted serious physical harm. We find this argument unavailing based on our conclusion supra that the jury could reasonably find appellant to be the principal offender or accomplice in the infliction of serious physical harm.
{¶54} We turn then to whether the trial court should have given a misdemeanor assault instruction regarding appellant's actions toward Doe. The key factor of misdemeanor assault under R.C. 2903.13(A) is the element of causing "physical harm" as opposed to "serious physical harm." Black, supra, 2012-Ohio-2874, ¶ 46. R.C. 2901.01(A)(5) defines "serious physical harm to persons" to mean 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.
{¶55} In the instant case, appellee presented evidence that Jane Doe's injuries included a broken nose, concussion, and contusions to her knee, all of which caused her two months of pain. A broken nose is sufficient to constitute serious physical harm. State v. Noah, 8th Dist. Cuyahoga No. 110664, 2022-Ohio-1315, ¶ 10, citing State v. Daniels, 14 Ohio App.3d 41, 469 N.E.2d 1338 (1st Dist.1984) (evidence of broken nose and swollen face sufficient to support the element of "serious physical harm.").
{¶56} Appellant was not entitled to an instruction on simple assault because the evidence presented at trial would not reasonably support both an acquittal on felonious assault and a conviction upon simple assault. Doe sustained "serious physical harm" rather than simply "physical harm" and appellant repeatedly struck Doe's head and face with the Club, resulting in the serious physical harm. Black, supra, ¶ 52.
{¶57} We therefore find no error in the trial court's decision declining a misdemeanor assault instruction for the offense against Jane Doe. Appellant's third assignment of error is overruled.
CONCLUSION
{¶58} Appellant's three assignments of error are overruled and the judgment of the Stark County Court of Common Pleas is affirmed.
Delaney, P.J., Gwin, J. and Baldwin, J., concur