[Cite as State v. Garner,
2020-Ohio-4234.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-10
:
v. : Trial Court Case No. 2018-CR-122
:
STEPHEN A. GARNER, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of August, 2020.
...........
JAMES D. BENNETT, Atty. Reg. No. 0022729, Darke County Prosecutor’s Office, 504
South Broadway, Greenville, Ohio 45331
Attorney for Plaintiff-Appellee
RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} Stephen A. Garner, Jr. appeals his convictions for felonious assault, assault,
and vandalism. He contends that the convictions must be reversed because the State did
not present sufficient evidence to support them. He further contends the convictions were
against the manifest weight of the evidence. We disagree with both contentions, so we
affirm.
I. Factual and Procedural Background
{¶ 2} On May 25, 2018, Garner was indicted on 19 counts related to contaminating
the Darke County Jail with methamphetamine: three counts of felonious assault,1 twelve
counts of assault,2 and one count each of tampering with evidence,3 illegal conveyance
of weapons or prohibited items onto grounds of specified governmental facility, 4
aggravated possession of drugs,5 and vandalism (cost of damages $7,500 to $150,000).6
Garner pleaded guilty to tampering, illegal conveyance, and possession. The remaining
charges were tried to a jury, which was presented with evidence showing the following
facts.
1 Counts 1 and 2 charged violations of R.C. 2903.11(A)(1), first-degree felonies; Count
3 charged a violation of R.C. 2903.11(A)(1), a second-degree felony.
2 Counts 4, 5, 6, 7, and 8 charged violations of R.C. 2903.13(B) as fourth-degree
felonies; Counts 9, 10, 11, 12, 13, 14, and 15 charged violations of R.C. 2903.13(B) as
fifth-degree felonies.
3 Count 16 charged a violation of R.C. 2921.12(A)(1), a third-degree felony.
4 Count 17 charged a violation of R.C. 2921.36(A)(2), a third-degree felony.
5 Count 18 charged a violation of R.C. 2925.11(A), a third-degree felony.
6 Count 19 charged a violation of R.C. 2909.05(B)(2), a fourth-degree felony because
the cost of the damage was alleged to be $7,500 to $150,000.
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{¶ 3} Around 12:30 p.m. on April 17, 2018, Garner was brought to the Darke
County Jail. (The reason is not in the record and is not relevant.) As he entered, Garner
said that he had no drugs or other contraband on him, and he was taken to the inmate
processing room by Deputy Sheriff Christine Buchert. After processing him, Buchert
asked Corrections Officer Jose Anglero to take Garner to the adjoining locker room and
have him change into a jail uniform.
{¶ 4} While Anglero watched, Garner took off his street pants and pulled on jail
pants. As he did so, Officer Anglero saw something fall to the floor from Garner’s rectal
area. Garner dropped the jail shirt on the floor, and retrieving it, he also picked up the
objects—several small baggies. Anglero immediately radioed for assistance. Deputy
Buchert entered the locker room, and Anglero told her that Garner had drugs in his hand.
Buchert ordered Garner to drop the drugs, but he refused, stuffing the baggies in his
mouth instead. Buchert ordered him to spit them out. Captain Ted Bruner then entered
the locker room. Garner eventually spit the baggies into his hand, and Bruner ordered
him to drop the baggies and slide them over to him. Garner asked Bruner “if this is going
to be a felony,” and Bruner said that he did not know. Garner then “flipped through” the
four or five baggies in his hand and turned around, resting his elbows on a file cabinet
with his hands clasped together, like he was contemplating what to do. After a few
seconds, Garner turned back toward the officers and moved his hand toward Captain
Bruner, as if to hand him the baggies. Suddenly, Garner brought up his other hand, ripped
the baggies open, and threw the open baggies down in Bruner’s direction. The baggies
and some of their powdery contents hit Captain Bruner’s hand. After subduing Garner,
Deputy Buchert and Officer Anglero brought him to holding cell number two. Buchert
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asked Garner what the substance was, and he replied that it was just salt. When Anglero
asked him what it was, Garner retorted: “You’ll find out.” (Tr. 261). Captain Bruner ordered
Deputy Buchert to photograph the scene, while he contacted a drug-unit detective. Bruner
then ordered everyone to resume their duties.
{¶ 5} Not long after, the three officers involved began feeling unwell. Deputy
Buchert was doing her jail check when she felt lightheaded and dizzy and felt some
tingling and numbness. Her heart was racing, and she felt nauseated. Collapsing against
a wall, Buchert felt that her life was in danger and called for help. Corporal Tim Nichols
found her and helped her to the medical office, where Buchert vomited. When the drug-
unit detective arrived, Captain Bruner went to the medical office. He too had begun to feel
unwell. He had a headache and felt that his blood pressure had increased. He also felt a
tingling sensation throughout his body, heat radiating from his chest, and an overall
general weakness come over him. Around the same time, Officer Anglero too began
suffering elevated blood pressure, nausea, and lightheadedness. None of the three
officers could continue working. An ambulance was called, and all three were transported
to the local hospital.
{¶ 6} When the officers arrived at the hospital, they were treated for possible drug
exposure. Each officer was decontaminated and given a urine test for methamphetamine.
The tests came back negative. After a couple of hours, the officers’ symptoms began to
subside, and they were released to go home. By the next day, all three had recovered.
But later that day, Captain Bruner experienced the same symptoms as he had the day
before and returned to the hospital for treatment.
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{¶ 7} Corporal Nichols was never in the locker room, but not long after helping
Deputy Buchert to the medical office, Nichols too began feel his blood pressure increase
and a tingling in his face and mouth. He also had a headache. Nichols felt unable to work,
and another deputy drove him to the hospital for treatment. After a couple of hours, he
was released to go home. Although Nichols was not scheduled to work the next day, he
was called in because other officers at the jail were unwell and were seeking treatment
at the hospital. At some point during the day, Nichols, like Bruner, began experiencing
the same symptoms as he had the day before—elevated blood pressure, headache, and
tingling sensations -- so he returned to the hospital for treatment and then went home.
{¶ 8} Two witnesses from the hospital testified. The hospital’s lab director, Matt
Kiehl, testified about the methamphetamine test. He explained that the methamphetamine
test returns a positive result only when the level of methamphetamine in the urine reaches
a certain threshold, so a negative result did not necessarily mean that the drug was not
present. The emergency-room physician who treated the officers also testified. Dr. Robert
Girman testified that the officers were brought in for possible drug exposure. Based on
their symptoms, it was his opinion that the officers had been exposed to
methamphetamine or another stimulant. He explained that symptoms develop within
minutes of inhaling such a drug and that exposure could incapacitate a person such that
the person would be unable to work. Dr. Girman agreed with the lab director that a
negative urine test did not mean no exposure. Dr. Girman said a urine test is helpful only
if it is positive. He noted that the officers’ symptoms had the “[p]otential to be serious.”
(Tr. 327).
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{¶ 9} The day after Garner threw the open baggies of meth, several corrections
officers (Corporal Nichols and Captain Bruner among them) began experiencing
symptoms of methamphetamine exposure and were taken to the hospital. No inmate
experienced symptoms. Testing showed that the substance in the baggies was in fact
methamphetamine. The decision was made to shut down the entire jail for
decontamination. A bio-hazard cleanup company and various other contractors were
hired to decontaminate and clean the jail. They swabbed various areas of the jail, and the
test results showed methamphetamine in the booking area, the locker room, and holding
cell number two. The air handler that served the administrative and processing area of
the jail was also decontaminated; parts of it were cleaned, but the duct work could not be
cleaned and was replaced. The jail was shut down for around 24 days. The Darke County
Auditor, Carol Ginn, testified that the total cost of the decontamination was $123,181.50.
The State presented two exhibits showing that $50,100.00 was spent to house the
inmates elsewhere and $73,081.50 was paid to vendors. Ginn testified that a “good
chunk” of the amount was reimbursed to the county by the State of Ohio.
{¶ 10} After hearing the evidence, the jury found Garner guilty on the three charges
of felonious assault and on one assault charge, the one involving Corporal Nichols. The
jury also found Garner guilty of vandalism but found that the State had not proven the
alleged cost of damages ($7,500 to $150,000), making the offense a felony of the fifth
degree rather than one of the fourth degree. As for the other assault charges, the jury
found Garner not guilty on seven of the charges, the State dismissed two, and no verdict
was rendered on two, because they were submitted as alternatives to two felonious-
assault charges. The trial court sentenced Garner to a total of six years in prison.
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{¶ 11} Garner appeals.
II. Analysis
{¶ 12} Garner assigns two errors to the trial court that challenge the sufficiency
and manifest weight of the evidence for his convictions of felonious assault, assault, and
vandalism:
THE JURY VERDICT RESULTING IN THREE FELONIOUS
ASSAULT CONVICTIONS, ONE ASSAULT CONVICTION AND A
VANDALISM CONVICTION [WAS} NOT SUPPORTED BY SUFFICENT
EVIDENCE.
THE JURY VERDICT RESULTING IN THREE FELONIOUS
ASSAULT CONVICTIONS, ONE ASSAULT CONVICTION AND
A VANDALISM CONVICTION [WAS] AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 13} Our review of these two evidentiary challenges differs. In reviewing a claim
of insufficient evidence, “[t]he 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. “Where
reasonable minds can reach different conclusions upon conflicting evidence,
determination as to what occurred is a question for the trier of fact. It is not the function
of an appellate court to substitute its judgment for that of the factfinder. Rather, upon
appellate review, the evidence must be viewed in the light most favorable to the
prosecution.”
Id. at 279.
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{¶ 14} A different test is used in reviewing a claim that a jury verdict is against the
manifest weight of the evidence. “ ‘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. 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. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997), quoting State v.
Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
A. The felonious-assault convictions
{¶ 15} Garner’s convictions for felonious assault were for violating R.C.
2903.11(A)(1), which provides that “[n]o person shall knowingly … [c]ause serious
physical harm to another ….” Garner challenges the evidence that the harm he caused
the three officers constituted “serious physical harm” and the evidence that he caused the
harm “knowingly.”
{¶ 16} There is no dispute that Garner caused the officers physical harm. See R.C.
2901.01(A)(3) (pertinently defining “physical harm to persons” as “any injury, illness, or
other physiological impairment”). The question is whether the harm was “serious.”
“Serious physical harm to persons” is statutorily defined and has several meanings. See
R.C. 2901.01(A)(5). The relevant one here is physical harm “that involves some
temporary, substantial incapacity.” R.C. 2901.01(A)(5)(c).
{¶ 17} The felonious assault victims were Deputy Buchert, Captain Bruner, and
Officer Anglero. Deputy Buchert testified that she felt nauseated, dizzy, and light-headed
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and noticed tingling and numbness. She collapsed against a wall and had to be helped
to the jail’s medical office. She was unable to continue working and sought emergency
medical treatment at the hospital. Captain Bruner testified that he developed a headache,
noticed a tingling sensation, had elevated blood pressure, and felt heat radiating from his
chest. He too was unable to work and sought emergency medical treatment at the
hospital. As for Officer Anglero, he testified that he felt lightheaded and nauseated and
had elevated blood pressure. Like Buchert and Bruner, he was unable to work and sought
emergency medical treatment at the hospital. Dr. Girman, the emergency room physician
who examined the officers, testified that each of them had suffered methamphetamine
exposure.
{¶ 18} “ ‘The 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,”
[and] “temporary[.]” ’ ” State v. Bootes, 2d Dist. Montgomery No. 23712, 2011-Ohio-874,
¶ 19, quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20,
2007-Ohio-4996.
“ ‘Serious physical harm may be shown by testimony of medical treatment.’ ” State v.
Morgan, 2d Dist. Clark No. 2018-CA-103,
2019-Ohio-3691, ¶ 55, quoting State v.
Huckabee, 8th Dist. Cuyahoga No. 67588,
1995 WL 628374, *4 (Oct. 26, 1995). The note
on the definition of “serious physical harm” gives as an example, “an injury or illness
requiring more or less prolonged hospitalization or bed rest which temporarily interferes
with the victim’s ability to work.” 1973 Legislative Service Commission Note, R.C.
2901.01.
{¶ 19} After viewing the evidence in the light most favorable to the State, a
reasonable trier of fact could have found that the physical harm caused by Garner was
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“serious.” The evidence showed that Garner threw open baggies of methamphetamine in
the direction of the three officers and that all three officers suffered injury, illness, or other
physiological impairment. All three officers went to the hospital for treatment and
decontamination, and the medical testimony showed that they were treated for exposure
to meth. We conclude that the officers’ physical harm temporarily and substantially
incapacitated them by rendering them unable to work. See In re Reed, 147 Ohio App.3d
182,
2002-Ohio-43,
769 N.E.2d 412, ¶ 37-38 (8th Dist.) (concluding that evidence that
the victim was dizzy and fell while walking could fit the “temporary, substantial incapacity”
definition of “serious physical harm to persons,” where the defendant dropped the victim
on her head and the victim did not seek medical treatment).
{¶ 20} In regard to Garner’s culpable mental state, a felonious assault conviction
under R.C. 2903.11(A)(1) requires evidence that the offense is committed with
knowledge. “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).
{¶ 21} At the time of the offense, Officers Buchert, Bruner, and Anglero were
standing in front of Garner trying to get him to hand over the baggies. Garner moved like
he was going to hand them to Bruner. Instead, Garner quickly ripped open the baggies
and threw them in the officers’ direction, hitting Bruner’s hand before spilling the powdery
contents on the floor. Later, when Anglero asked him what it was, Garner retorted, “You’ll
find out.” (Tr. 261.)
{¶ 22} It was reasonable to infer that Garner was aware that throwing open
baggies of a powdery drug like methamphetamine would probably seriously harm the
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officers. Indeed, it would appear from the evidence that that was precisely Garner’s intent.
See Reed, 147 Ohio App.3d 182,
2002-Ohio-43,
769 N.E.2d 412, at ¶ 39 (After dropping
the victim on her head, the defendant said that he was just fooling around, that he had
executed a move that he had frequently seen wrestlers on television do. The appellate
court found that, though there was no direct evidence that the defendant considered the
move dangerous, an intent to harm could be inferred from his actions, and the factfinder
could have reasonably concluded that the defendant could have foreseen some harm
would result from dropping the victim on her head.). Garner’s “you’ll find out" statement,
though non-specific, could be interpreted to mean that he knew he was exposing the
officers to meth and knew it would have consequences. We conclude that the evidence
was sufficient for the trier of fact to conclude that Garner acted with knowledge.
{¶ 23} As to Garner’s manifest-weight challenge, the jury instructions on “serious
physical harm” and “knowingly” correctly track the relevant statutory language. This is
not an “ ‘exceptional case in which the evidence weighs heavily against the
conviction.’ ” Thompkins, 78 Ohio St.3d at 387,
678 N.E.2d 541, quoting Martin,
20 Ohio
App.3d at 175,
485 N.E.2d 717. We conclude that the jury neither lost its way nor created
a miscarriage of justice in finding Garner guilty on the three counts of felonious assault.
B. The assault conviction
{¶ 24} Garner was convicted of assaulting Corporal Nichols under R.C.
2903.13(B), which provides that “[n]o person shall recklessly cause serious physical harm
to another.” Like his challenges to the felonious assault convictions, Garner challenges
whether the harm he caused was serious and whether he acted with the culpable mental
state, which for assault is “recklessly.”
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{¶ 25} Although Corporal Nichols was not in the locker room when Garner threw
the open baggies, Nichols was in the attached processing room, where traces of meth
were found. Later, after helping Deputy Buchert when she collapsed, Nichols developed
a headache, felt tingling in his face and mouth, and experienced elevated blood pressure.
He sought treatment at the hospital.
{¶ 26} Based on our earlier serious-harm analysis, and viewing the evidence in a
light most favorable to the prosecution, we think that a rational trier of fact could have
reasonably found that Corporal Nichols too suffered “serious physical harm.” Like the
three other officers, he suffered injury, illness, or other physiological impairment, was
unable to continue working, and sought treatment at the hospital for symptoms of
methamphetamine exposure, which was sufficient to find that the harm involved a
“temporary, substantial incapacity.”
{¶ 27} The culpable mental state for assault is recklessness. “A person acts
recklessly when, with heedless indifference to the consequences, the person disregards
a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain
result or is likely to be of a certain nature.” R.C. 2901.22(C). “Risk” is pertinently defined
as “a significant possibility, as contrasted with a remote possibility, that a certain result
may occur.” R.C. 2901.01(A)(7).
{¶ 28} Potentially, any officer in the jail could have been indirectly exposed to the
methamphetamine that Garner threw. The powdery nature of the drug allowed it to get
into the air easily and land on any of the three officers’ clothing, which appears to be what
happened here. It could reasonably be inferred that, when Garner threw the open
baggies, some of the drug got on Deputy Buchert. This created a significant possibility
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that another officer who came in contact with her would be exposed. Corporal Nichols
helped Buchert to the medical office and likely inhaled the meth that was on her clothing.
We think that a rational juror could have found that, by throwing open baggies of
methamphetamine, Garner acted with heedless indifference to the consequences and
disregarded a significant possibility that another officer, like Corporal Nichols, would be
seriously harmed.
{¶ 29} As to the manifest weight of the evidence, this is not an “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d
at 387,
678 N.E.2d 541, quoting Martin,
20 Ohio App.3d at 175,
485 N.E.2d 717. The jury
neither lost its way nor created a miscarriage of justice in finding Garner guilty of assault.
C. The vandalism conviction
{¶ 30} Garner was convicted of vandalism for violating R.C. 2909.05(B)(2), which
provides that “[n]o person shall knowingly cause serious physical harm to property that is
owned, leased, or controlled by a governmental entity.” The definition of “serious physical
harm” in the vandalism statute is “physical harm to property that results in loss to the
value of the property of one thousand dollars or more.” R.C. 2909.05(F)(2). Garner says
that the State presented evidence of the cost of the cleanup but failed to present evidence
of loss to the value of the jail.
{¶ 31} The cost to restore property is evidence of loss to the value of the property,
and R.C. 2909.11(B) provides that “damages can be measured by the reasonable costs
of restoring the property.” State v. Baker, 2016-Ohio-315,
58 N.E.3d 498, ¶ 20 (2d Dist.).
R.C. 2909.11(A) provides that a jury need only find that the amount of damage was
greater than $1,000, as required by R.C. 2909.05. Here, the testimony of the county
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auditor as to the cost to decontaminate and clean the jail constituted sufficient evidence
from which a reasonable jury could have found, beyond a reasonable doubt, that Garner
caused damage in excess of $1,000, which was sufficient to convict him of vandalism.
See State v. Jonas, 4th Dist. Athens No. 99CA38, 2001 WL 803825, *8 (Mar. 6, 2001)
(concluding that cleanup costs should be included for purposes of determining serious
physical harm, where defendant jail inmate had spread excrement in his cell and jail
hallway, and that the county had to restore property to its original condition by cleaning
and sanitizing because the failure to do so would result in loss of value to the property);
Baker at ¶ 25 (the evidence of loss to property included “the indiscriminate splashing of
blue paint throughout the premises”).
{¶ 32} As to Garner’s manifest-weight challenge, this is not an “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d
at 387,
678 N.E.2d 541, quoting Martin,
20 Ohio App.3d at 175,
485 N.E.2d 717. We
conclude that the jury neither lost its way nor created a miscarriage of justice in finding
Garner guilty of vandalism.
III. Conclusion
{¶ 33} The first and second assignments of error are overruled. The trial court’s
judgment is affirmed.
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WELBAUM, J., concurs.
FROELICH, J., concurs in part and dissents in part:
{¶ 34} To sustain a conviction for felonious assault, the defendant must have
knowingly caused “serious physical harm to persons,” which in this case meant physical
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harm “that involve[d] some temporary, substantial incapacity.” R.C. 2901.01(A)(5)(c).
As the majority opinion recognizes, the degree of harm required “is not an exact science.”
Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996, at ¶ 37.
{¶ 35} I agree that Deputy Buchert sustained “serious physical harm.” She
became nauseated, experienced dizziness, vomited, collapsed, had to be helped to the
jail’s medical office, and was taken to the hospital.
{¶ 36} On the other hand, Captain Bruner and Corporal Nichols experienced a
tingling sensation, headache, and “increased blood pressure.” Bruner indicated that he
also experienced heat radiating from his chest and general weakness. Deputy Anglero
experienced “elevated blood pressure,” nausea, and lightheadedness. (The record does
not show the symptomology that, to the officers, indicated their blood pressure became
elevated or the degree of elevation.) The officers went to the hospital for examination,
and they were treated for exposure to methamphetamine. Their symptoms subsided
after a couple hours, and they were released from the hospital. Bruner and Nichols
experienced similar symptoms the next day; they returned to the hospital for treatment
and then went home.
{¶ 37} While this may be a matter of small degrees, I would conclude that the
symptoms experienced by Bruner, Nichols, and Anglero did not rise to the level of serious
physical harm, unlike Buchert, who collapsed and needed assistance to the jail’s medical
office. This does not minimize the harm caused to them, but more so acknowledges the
harm sustained by Buchert. The difference recognized by the statutes between causing
“serious physical harm” (a felony of the first or second degree) and “physical harm” (a
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fourth-degree felony if on an officer, but otherwise a misdemeanor) must be more than a
temporary inability to continue working.
{¶ 38} The record proves that Garner acted both recklessly and knowingly.
{¶ 39} I would sustain the felonious assault charge involving Deputy Buchert, but
would reverse the felonious assault convictions involving Captain Bruner and Deputy
Anglero and the assault conviction involving Corporal Nichols. Although this would have
no practical effect on his aggregate sentence, I would remand those counts.
Copies sent to:
James D. Bennett
Richard L. Kaplan
Hon. Jonathan P. Hein
