Opinion
No. 109176
10-22-2020
STATE OF OHIO, Plaintiff-Appellee, v. CLINTON MASON, III, Defendant-Appellant.
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.
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 received painkillers. 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; and
IV. 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 to infer 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. 16(A)(7), however in the interest of justice, we will briefly address this assignment of error. See Perk v. Tomorrows Home Solutions, 8th Dist. Cuyahoga No. 107012, 2019-Ohio-103, ¶ 17.
{¶ 19} Mason argues that based on a lack of substantiated evidence that he caused Davis serious physical harm, his convictions were against the manifest weight of the evidence. Previously, we discussed and determined that Mason, based on the medical report and Davis's testimony, caused serious physical harm to Davis. Davis suffered cracked ribs, a punctured lung, and a broken nose as a result of Mason attacking him. Mason admitted that he assaulted Davis. The medical records, the police reports, and the video surveillance footage all support the fact that Mason assaulted Davis and as a result caused serious physical harm. Having reviewed the evidence presented by the state, we are not persuaded that the jury created a manifest miscarriage of justice by convicting Mason of felonious assault.
{¶ 20} Mason's second assignment of error is overruled.
IV. Ineffective Assistance of Counsel
A. Standard of Review
{¶ 21} Mason asks this court to reverse his convictions because he was provided with ineffective assistance by his trial counsel.
To succeed on a claim of ineffective assistance, a defendant must establish that counsel's performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Prejudice is established if the defendant proves the existence of a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Bradley at 143. In evaluating a claim of ineffective assistance of counsel, a court must give great deference
to counsel's performance. Strickland at 689. "A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.State v. Sowell, 8th Dist. Cuyahoga No. 108018, 2020-Ohio-2938, ¶ 40.
B. Law and Analysis
{¶ 22} Mason argues that his trial counsel was ineffective because (1) trial counsel did not present a valid reason for the inferior offense of aggravated assault, and (2) trial counsel did not present an effective trial strategy and admitted that to the jury. Throughout the proceedings, Mason's trial counsel argued that the state should have charged Mason with aggravated assault instead of felonious assault. R.C. 2903.12(A)(1) and 2903.12(A)(2), aggravated assault, state,
(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:
(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, as defined in section 2923.11 of the Revised Code.
{¶ 23} In Mason's trial counsel's statement to the court before trial, he requested that the state reduce the charge to aggravated assault, and asked that the state explain to the trial court on the record why the state would not reduce the charge. (Tr. 4-5.) During opening statement, defense counsel stated that there was some provocation for the attack due to the acrimonious relationship between Davis and Mason's family. (Tr. 248.) Mason's trial counsel then claimed that Davis said something insulting to Mason's sister that caused Mason to react. (Tr. 250.) During the trial, Mason's trial counsel asked Detective Benz about the varying degrees of assault, including aggravated assault. (Tr. 331.) However, the trial court explained to Mason's trial counsel that a charge of a lesser included offense was not supported by the evidence. (Tr. 359-360.)
{¶ 24} At the end of the trial, Mason's trial counsel stated,
I want to start today with a confession. I stood in front of you at the beginning of this case on Tuesday and I told you that there were going to be two issues. I told you that first of all the State was going to fail to prove that the evidence in this case shows beyond a reasonable doubt that there was serious physical harm. That is still spot on.(Tr. 388-389.)
The other thing, though, that I told you was that the evidence would show that the history between Mr. Mason and Mr. Davis, the testimony that I predicted you would hear from his family would be relevant to the mental state that Mr. Mason had at the time of this incident. And I'm going to recognize up front that has not been borne out by the evidence. It was a trial strategy. It was not effective. It didn't pan out.
{¶ 25} Mason must demonstrate that his trial counsel's performance was deficient. "Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance." State v. Maxwell, 8th Dist. Cuyahoga No. 107758, 2020-Ohio-3027, ¶ 54, citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). "'Rather, the errors complained of must amount to a substantial violation of counsel's essential duties to his client.'" Id., quoting State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).
{¶ 26} Mason contends that his trial counsel did not provide a valid reason for the inferior offense of aggravated assault, however, his trial counsel stated during closing statements that the reason was "that has not been borne out of evidence." (Tr. 388-389.) In other words, the evidence did not support a charge of a lesser included offense. Mason wanted his trial counsel to use the rancorous history between Davis and Mason's family as a reason for his attack on Davis. However,
[e]ven if there was no presumption of trial strategy, there was not sufficient evidence presented of serious provocation to warrant an instruction on aggravated assault. An instruction on an inferior degree or lesser included offense is only required when the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser-included offense. State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 34. An instruction on a lesser-included offense is not warranted every time "some evidence" is presented to support the lesser offense. State v. Shane, 63 Ohio St.3d at 632, 590 N.E.2d 272 (1992); State v. Grube, 2013-Ohio-692, 987 N.E.2d 287, ¶ 74 (4th Dist.).State v. Murray, 7th Dist. Mahoning No. 18 MA 0031, 2019-Ohio-5459, ¶ 45.
{¶ 27} "Serious provocation requires that the provocation be reasonably sufficient to arouse the passions of an ordinary person beyond the power of his or her control." State v. West, 8th Dist. Cuyahoga No. 101133, 2014-Ohio-5143, ¶ 18, citing State v. Shane, 63 Ohio St.3d 630, 635, 590 N.E.2d 272 (1992). Mason's trial counsel provided two trial strategies at the beginning of the trial; (1) Mason did not cause Davis serious physical harm; and (2) Mason should have been charged with aggravated assault. Both trial strategies failed because the evidence was sufficient to prove that Mason did cause Davis serious physical harm, and that the evidence was insufficient for a charge of aggravated assault where serious provocation is not shown. Thus, Mason has not demonstrated that his trial counsel's performance was deficient and that deficiency prejudiced him at trial.
{¶ 28} Mason's third assignment of error is overruled.
V. Jury Instruction for Misdemeanor Assault
A. Standard of Review
{¶ 29} Mason asserts that the trial court erred when it denied giving the jury instruction for misdemeanor assault. A trial court has broad discretion to determine whether the trial evidence "'was sufficient to warrant a jury instruction.'" State v. Torres, 8th Dist. Cuyahoga No. 99596, 2013-Ohio-5030, ¶ 51, quoting State v. Mitts, 81 Ohio St.3d 223, 228, 690 N.E.2d 522 (1998). "We review a trial court's refusal to give a requested jury instruction for abuse of discretion." State v. Scarton, 8th Dist. Cuyahoga No. 108474, 2020-Ohio-2952, ¶ 106, citing State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240.
{¶ 30} An "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. (Citations omitted.) State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
B. Law and Analysis
{¶ 31} Mason argues that the trial court erred when it denied trial counsel's request to instruct the jury on the lesser included offense of misdemeanor assault. "Simple assault, in violation of R.C. 2903.13(A), is a lesser-included offense of felonious assault." State v. Addison, 8th Dist. Cuyahoga No. 96514, 2012-Ohio-260, ¶ 34, citing State v. Caster, 8th Dist. Cuyahoga No. 87783, 2006-Ohio-6594, ¶ 6. The charge of simple assault requires a person to knowingly cause physical harm rather than serious physical harm, as in felonious assault.
{¶ 32} We have previously noted, "if the assault causes a bone fracture, the element of serious physical harm is met." Montgomery, 8th Dist. Cuyahoga No. 02043, 2015-Ohio-2158, at ¶ 13. "Jury instructions are a statement of the law applicable to the particular facts of the case, based on the evidence presented at trial. It is within the discretion of the trial court to determine whether the evidence presented at trial is sufficient to warrant a particular jury instruction." State v. Wiley, 8th Dist. Cuyahoga No. 99576, 2014-Ohio-27, ¶ 45, citing State v. Singleton, 8th Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 35. The evidence presented at trial was not sufficient to warrant a jury instruction for simple assault because the evidence demonstrated that serious physical harm was inflicted upon Davis, not just physical harm. Davis suffered a black eye, "busted ribs, punctured lung, and fractured nose." (Tr. 265.) We find that the trial court did not abuse its discretion by not instructing the jury on misdemeanor assault.
{¶ 33} Therefore, Mason's fourth assignment of error is overruled.
{¶ 34} 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 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
ANITA LASTER MAYS, JUDGE SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR