State v. Ford

[Cite as State v. Ford, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


  STATE OF OHIO                                  COURT OF APPEALS NO. {48}L-20-1054
                                                                      {48}L-20-1112
       APPELLEE
                                                 TRIAL COURT NO.      CR0201902995
  V.                                                                  CR0201902836

  STEVEN FORD, JR.                               DECISION AND JUDGMENT

       APPELLANT
                                                 Decided: September 3, 2021

                                              …

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Autumn D. Adams, for appellant.

                                              …

        MAYLE, J.

                                           I. Introduction

        {¶ 1} Following separate altercations with two former girlfriends—C.F. and

M.M.—the defendant-appellant, Steven Ford, Jr., was charged with multiple felonies in

two separate cases. Those cases were tried jointly before a jury in the Lucas County
Court of Common Pleas. The jury convicted him of aggravated burglary with respect to

C.F., and robbery and felonious assault with respect to M.M. For the following reasons,

we affirm.

                                    II. Background

      {¶ 2} The first victim, C.F., testified that she and Ford were in a relationship from

2014 until 2016 and have a four year-old daughter. By the summer of 2018, C.F. and

Ford had very little contact, and when they did speak, it was “rocky.” Ford was

reportedly living in Southern Ohio to be near another woman, M.M., who is the victim in

the second case.

      {¶ 3} At approximately 7:00 am on July 30, 2018, Ford went to C.F.’s apartment,

located on Airport Highway in Lucas County, to see their daughter. C.F. was “shocked”

to see him and told Ford “to come back later” because she and her daughter were

preparing to leave for work and school.   When Ford returned, he played with their

daughter and also “play[ed] his Play Station” and “just [hung] out.” During the visit,

C.F. and Ford “bicker[ed]” about parenting issues. C.F. told him that she did not

appreciate him “just popping up” and that he “couldn’t just be a dad when it is convenient

for [him].” Eventually, C.F. asked Ford to leave, but he refused. Ford told her that he

would leave when he was ready.

      {¶ 4} To hurry him along, C.F. turned off the wifi to the apartment and changed

the password because she assumed that “if he could not play his game he would leave.”

Ford became “pissed” and “finally left.” But, as soon as C.F. had closed and locked the

apartment door, Ford “kicked it back in.” As C.F. described it,

2.
              A piece of the door came flying at me and my daughter because we

       were standing there. He came in and [was] like, bitch, do you really want

       to do this right now? And he put both his hands around my neck. … It

       was really tight … on the back of my neck.

       {¶ 5} The assault lasted “a couple of seconds, maybe five seconds,” before C.F.

was able to get him off of her. By that time, the two were outside the apartment in the

hallway. C.F. reentered her apartment, but Ford followed her and “choked” her again.

The two drifted back into the hallway yet again, before Ford finally “took off.” C.F.

called 911.

       {¶ 6} Toledo Police Officer Dwight Daniel, Jr. was dispatched to C.F.’s

apartment, and he observed that C.F. was in distress. C.F. reported that Ford had choked

her, that she had fallen down on the floor, that he had “choked her again,” and then fled

the scene. Because the potential charges involved felonies, Officer Daniel contacted the

detective bureau, and a warrant was issued for Ford’s arrest.

       {¶ 7} Pictures taken of C.F.’s apartment door showed a mangled handle and

splintered wood. The door was so badly damaged that it could not be secured, and a new

door had to be installed that night.

       {¶ 8} After the July 30, 2018 assault, C.F had no contact with Ford until May of

2019 when he called to ask “what’s my kid been up to?” Over the coming weeks, C.F.

allowed Ford to visit with his daughter five or six times at a public place, but after that,

he “disappeared.”



3.
       {¶ 9} At trial, Ford testified in his own defense. Ford admitted that C.F. asked

him to leave the apartment that night, he kicked in her door, and he caused the damage

depicted in the photos. But, Ford denied strangling C.F.

       {¶ 10} The victim in the second case, M.M., did not testify. Without M.M.’s

testimony, the state relied upon other evidence to build its case against Ford. First, the

state played a 911 call, placed by M.M.’s neighbor at 7:21 p.m. on May 6, 2019. The

neighbor reported that M.M. had just called him, asking that he contact the police

because “she just got beat up by her boyfriend.” The neighbor was calling from outside

the apartment complex where he and M.M. each lived, on Collingwood Blvd. in Toledo.

Later in the call, the neighbor reported that M.M. and Ford were in the hallway of the

apartment complex, in full view, that the assault was continuing “right now,” and that the

police needed to “hurry.” M.M. was reportedly “half naked” and “look[ed] pretty bad.”

Finally, the neighbor reported that the boyfriend, identified as “Steve,” was leaving with

a “T.V. in his hand” and was walking down Collingwood Blvd.

       {¶ 11} Toledo Police Officer Michelle Sterling and her partner arrived at the scene

at 7:39 p.m. At trial, Officer Sterling described M.M. as “crying” and “very shaken up”

with “marks” on her neck and chest due to an “altercation in front of the child.” The

police interview of M.M. was recorded by a body camera attached to Officer Sterling’s

uniform, and the nearly eight-minute video was also played for the jury.

       {¶ 12} During the video, M.M. identified Ford as her former boyfriend and father

to her nine month-old daughter. M.M. told police that Ford was there to watch their



4.
daughter while she went to work. She reported that the two had argued “a lot lately”

because Ford accused her of “talking” to someone else at work and because Ford “kept

snooping around” for money. M.M. told police that she “want[ed] him to leave” but that

he would not.

       {¶ 13} The altercation turned violent when Ford began choking her. According to

M.M., Ford “wouldn’t let go” of her neck, to the point that she “couldn’t breathe” and

lost consciousness. M.M. thought she would die as her daughter watched from her

pack’n’play. As a result of the attack, M.M reported that her face had “turned brown,”

that her shoulder “popped” out of its socket—which took “forever” to get “back in” and

“hurt so bad.” M.M. also reported that she had carpet burns “everywhere,” from being

dragged.

       {¶ 14} At trial, Ford acknowledged he did not want to leave the apartment—even

though M.M. wanted him to go. Ford said that the two had gotten into a “heated

argument” that turned physical when M.M. hit him with a “little wrench … two or

three times,” and a “tussle” ensued, which led them to fall to the floor. Once they stood

up, the “arguing [continued] outside the house.” Ford testified that he then left the

apartment to “diffuse the situation.” Ford admitted that he took the television, but

claimed that they co-owned that item. He specifically denied strangling M.M. or causing

the marks on her neck, but acknowledged that what he “did” that day was “probably

serious.”




5.
                               1. The charges against Ford

       {¶ 15} With respect to C.F., Ford was indicted on a single count of aggravated

burglary, in violation of R.C. 2911.11(A)(1) and (B), a felony of the first degree, in case

No. CR2019-2836.

       {¶ 16} With respect to M.M., Ford was indicted for committing the offense of

robbery, in violation of R.C. 2911.02(A)(2) and (B), a felony in the first degree, and

felonious assault, in violation of R.C. 2903.11(A)(1) and (D), a felony of the second

degree, in case No. CR01902995.

       {¶ 17} Following a two-day jury trial and guilty verdicts, Ford was convicted on

all counts. As to the aggravated burglary conviction, the trial court sentenced Ford to

serve three years in prison. It sentenced him to two years as to the robbery offense and

an additional two years as to the felonious assault offense, to be served concurrently to

one another, and concurrently to the three-year sentence ordered in the other case, for a

total prison term of three years.

       {¶ 18} Ford appealed and raises two assignments of error with respect to the

aggravated burglary case, and five assignments of error with respect to the robbery and

felonious assault case. We consolidated the appeals and have renumbered the

assignments of error as follows:

              I. The evidence presented at trial was insufficient to support a

       conviction for aggravated burglary.

              II. The Jury’s finding of guilty for Aggravated Burglary was against

       the manifest weight of the evidence.

6.
              III. It was a violation of Appellant’s rights under the Confrontation

       Clause for the Trial Court to allow the body camera footage to be shown to

       the jury as [M.M.] was not present in Court and available for cross-

       examination.

              IV. The body camera footage was hearsay and no exception or

       exclusion applies that would permit its admission as [M.M.] failed to

       appear for trial.

              V. The Trial Court committed reversible error when it permitted the

       jail phone call to be played to the jury as the phone call was inadmissible

       hearsay due to [M.M.’s] failure to appear at trial and further committed

       reversible error in finding that [M.M.] failed to appear due to Appellant’s

       wrongdoing.

              VI. The evidence presented at trial was insufficient to support a

       conviction for Robbery and Felonious Assault.

              VII. The Jury’s finding of guilty for Robbery and Felonious Assault

       was against the manifest weight of the evidence. 1

                                  III. Law and Analysis

       {¶ 19} For ease of discussion, we address Ford’s assignments of error out of order.




1
 We remind appellate counsel of 6th Dist.Loc.App.R. 10(C), pertaining to appellate
briefs, which provides that “[v]ictims of criminal offenses shall be referred to by the
victim’s initials or generic term or abbreviation.” (Emphasis added).
7.
             1. The victim’s out-of-court statements were nontestimonial.

       {¶ 20} In his third assignment of error, Ford argues that the trial court erred in

allowing the jury to view Officer Sterling’s body camera video, which contained M.M.’s

statements to police after they responded to the 911 call. Ford argues that M.M.’s

recorded comments were testimonial in nature and, therefore, M.M.’s out-of-court

statements violated his Sixth Amendment right to confront the witness against him.

       {¶ 21} The Sixth Amendment to the United States Constitution provides, in

relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right … to

be confronted with the witnesses against him.” In Crawford v. Washington, 

,

, 

 (2004), the United States Supreme Court held that the

Confrontation Clause bars “admission of testimonial statements of a witness who did not

appear at trial unless [she] was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” 

. “[T]he proper analysis for determining

whether out-of-court statements violate the Confrontation Clause is … whether they

are testimonial in nature.” Toledo v. Sailes, 

, 

, 

 (6th Dist.), citing 

. We conduct a de novo review of

evidentiary rulings that implicate the Confrontation Clause. State v. McKelton, 

, 

, 

.

       {¶ 22} Statements are nontestimonial when made “in the course of police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency.” Davis v.



8.
Washington, 

, 

, 

 (2006). By contrast,

statements are testimonial when “the circumstances objectively indicate that there is no

such ongoing emergency, and that the primary purpose of the interrogation is to establish

or prove past events potentially relevant to later prosecution.” 

; Accord, State v.

Beasley, 

, 

, 

 (A statement will be said

to be “testimonial” if “it is made with a primary purpose of creating an out-of-court

substitute for trial testimony.”). Whether an emergency exists and is ongoing “is a highly

context-dependent inquiry.” Michigan v. Bryant, 

, 

, 

 (2011).

       {¶ 23} Ford argues that, based on the evidence in the case, there was no ongoing

emergency because he had already left the scene and therefore posed “no immediate[]

threat” to M.M. Ford likens his case to State v. Smith, 1st Dist. Hamilton No. C-180499,

, where the court found that the victim’s responses under police

questioning were testimonial and therefore subject to the protections of the Confrontation

Clause.

       {¶ 24} In Smith, police questioned the victim after the defendant was already in

custody and approximately two or more hours after the criminal offense had been

committed. Here, the police arrived on the scene just minutes after the assault had

occurred and while Ford’s whereabouts were unknown. Moreover, in White, the court

found that the police questioning did not focus on any “exigent threat or safety concern.”

Here, the questions the police asked M.M. indicate that their primary purpose was to



9.
enable the police to assess the extent of the emergency. As Officer Sterling testified at

trial, when police found “a very shaken up” and “crying” M.M. at the scene, they asked

M.M. if she had been “hit.” They also asked a series of questions about her attacker

including his name, his date of birth and social security number, where “would he go,”

whether he knew anyone in the area, whether he “had a key to get in here” and whether

M.M. “could lock the door” after police had gone. Moreover, this questioning occurred

at M.M.’s apartment, not police headquarters. Ohio v. Clark, 

, 

, 

 (2015) (“A formal station-house interrogation … is more likely

to provoke testimonial statements, while less formal questioning is less likely to reflect a

primary purpose aimed at obtaining testimonial evidence against the accused.”).

       {¶ 25} Although Ford claims that any “threat” posed by him subsided once he left,

there was no way for the police or M.M. to know whether he would return—a fact that

was made abundantly clear in the video when, after a sudden noise can be heard, Officer

Sterling asked, “[n]obody’s coming up the stairs are they?” and the camera pans to the

apartment staircase.

       {¶ 26} Finally, Ford complains that Officer Sterling’s questions “about a loss of

consciousness” were designed to assist the state in establishing a case of felonious

assault. But, the context of the questions indicate a different purpose. In the video, M.M.

declined medical attention because she needed to go to work. In response, Officer

Sterling instructed M.M. “to be careful” in light of the assault and asked, “[d]id you pass

out? Did you lose consciousness?” Thus, Officer Sterling was making sure that M.M. did

not forego any necessary medical attention.

10.
       {¶ 27} In sum, we find that the primary purpose of the dialogue between police

and M.M., as captured by Officer Sterling’s body cam video, was to assess the threat and

to meet an ongoing emergency. Accordingly, M.M.’s statements were nontestimonial in

nature and not subject to the Confrontation Clause. Accord, State v. Tomlinson, 8th Dist.

Cuyahoga No. 109614, 

 (Finding body-camera statements were not

testimonial because they were made to law enforcement in the course of responding to an

emergency situation and because the victims “had just been shot at and called the police

to seek protection and medical treatment.”).

       {¶ 28} Ford’s third assignment of error is found not well-taken.

                  2. M.M.’s out-of-court statements were admissible
                          pursuant to hearsay exceptions.

       {¶ 29} In his fourth assignment of error, Ford argues that even if M.M.’s out-of-

court statements were nontestimonial, they were inadmissible hearsay and therefore

should not have been admitted through the body camera video.

       {¶ 30} Given that M.M.’s out-of-court statements were nontestimonial, they were

admissible only if they were not hearsay or subject to “an applicable exception to the

normal hearsay rule.” State v. Reardon, 

, 

, 

, ¶ 15 (6th Dist.). “On appeal, challenged hearsay is subject to de novo review

under the applicable hearsay rule, rather than the more deferential review employed for

discretionary rulings” because “[w]hile there is discretion to admit or exclude relevant

evidence, there is no ‘discretion’ to admit hearsay.” State v. Richcreek, 

.
3d 505, 

, 

 (6th Dist.) quoting State v. Sutorius, 

, 

 (1st Dist.1997), and State v. Sorrels, 

, 

 (1st Dist.1991).

         {¶ 31} In this case, the trial court found that M.M.’s recorded statements to police

were admissible under two separate exceptions to the hearsay rule: forfeiture by

wrongdoing under Evid. R. 804(B)(6), and excited utterance under Evid. R. 803(2). We

agree.

         {¶ 32} Under Evid.R. 804(B)(6), a statement offered against a party is not

excluded by the hearsay rule “if the unavailability of the witness is due to the wrongdoing

of the party for the purpose of preventing the witness from attending or testifying.” To

qualify for this exception, the state must show by a preponderance of the evidence that

(1) the defendant’s wrongdoing resulted in the witness’s unavailability; and (2) “one

purpose was to cause the witness to be unavailable at trial.” State v. Hand, 

, 

, 

, ¶ 84.

         {¶ 33} Before trial, the state filed its notice of intent to use M.M.’s out-of-court

statements under Evid.R. 804(B)(6). It claimed that Ford, while incarcerated and

awaiting trial, contacted M.M. by phone and instructed her not to testify. During the ten-

minute phone call between Ford and M.M., this brief exchange took place:

                Ford: Just don’t appear in court cuz they gonna be calling for you.

                M.M.: So, I can’t go?

                Ford: No man. Don’t appear in court when they call for you. …

         Cuz your case on my shit too. …

12.
The state further alleged that its efforts to reach M.M. before trial were unsuccessful, and

that it anticipated she would not appear at trial, despite being subpoenaed. The state

argued that M.M. was acting under Ford’s directive not to testify.

       {¶ 34} On appeal, Ford argues that the trial court erred in “casting [his]

comments” as a “threat, let alone a ‘subtle’ threat.” Ford argues that the “wrongdoing”

required by Evid.R. 804(B)(6) requires a showing of harm or a threat of physical harm.

To the contrary, Evid.R. 804(B)(6) “covers a variety of wrongdoing beyond the murder

or physical assault of the declarant.” State v. Harper, 6th Dist. Lucas No. L-15-1310,

. In Harper, we found that the state demonstrated that the victim’s

unavailability was due to appellant’s wrongdoing and was designed to prevent her from

testifying where there was evidence of the defendant “pleading with ‘C’ to convince the

victim not to appear at trial.” 

 The staff notes to Evid.R. 804(B)(6) also make clear

that, “the wrongdoing need not consist of a criminal act.” Thus, “[e]ncouraging a witness

to leave the state is wrongdoing … because no one has the legal right to refuse to

provide testimony in the absence of a privilege or other rule of evidence.” Id

       {¶ 35} Given the substance of the phone call between Ford and M.M., we find that

the state satisfied its burden to show by a preponderance of the evidence that M.M.’s

failure to appear in court was due to Ford’s wrongdoing, and that Ford’s conduct was

designed, at least in part, to prevent her from testifying. Accordingly, M.M.’s statements

were admissible under Evid.R. 804(B)(6).




13.
       {¶ 36} In addition, M.M.’s comments were excited utterances under Evid.R.

803(2). A statement which is otherwise considered hearsay may be admissible as an

excited utterance when the following four criteria are met: “(1) a startling event, (2) a

statement relating to that event, (3) a statement made by a declarant with firsthand

knowledge, and (4) a statement made while the declarant was under the stress of the

excitement caused by the event.” State v. Dean, 

, 2015-Ohio-

4347, 

. An excited utterance is not excluded by the hearsay rule

“regardless of whether the declarant is available as a witness.” Evid.R. 803.

       {¶ 37} Here, M.M. had experienced a startling event (i.e. being strangled, dragged

and robbed by Ford); her comments to the police related to that event; she had first-hand

knowledge of the startling event; and she remained under the stress of the excitement

throughout the entire interaction with the police, without time for thought or reflection.

Under such circumstances, the statements have the requisite degree of trustworthiness to

qualify as excited utterances. State v. Taylor, 

, 

(1993) (An excited utterance is considered “more trustworthy” than other hearsay

because the startling event “renders the declarant incapable of fabrication” and because

the impression on the declarant’s memory “is still fresh and intense.”).

       {¶ 38} For these reasons, we find that the trial court did not err in admitting the

body camera footage, and Ford’s fourth assignment of error is found not well-taken.

              3. The phone call between Ford and M.M. was admissible.

       {¶ 39} In his fifth assignment of error, Ford claims that the trial court erred in

admitting the recorded phone call because “the State failed to show that Appellant

14.
committed any wrongdoing in his conversation with [M.M.]” His argument is based

upon the incorrect assumption that the phone call was admitted under the forfeiture-by-

wrongdoing hearsay exception of Evid.R. 804(B)(6). Although M.M.’s recorded

statements to police were admitted under Evid. R. 804(B)(6), there was no discussion

regarding which evidentiary rule applied to Ford’s recorded statements to M.M. during

the jail-house phone call. This is likely because Ford did not object to the admission of

the phone call —in fact, Ford asked the trial court to play the entire phone call for the

jury (rather than just the excerpt relating to M.M.’s testimony in court).

       {¶ 40} Thus, to the extent there was any error here, it was invited error and Ford

“will not be permitted to take advantage of an error which he himself invited or

induced.’” State v. Bey, 

, 

 (1999). See, e.g., State

v. Roulette, 4th Dist. Scioto No. 10CA3364, 

 (Defendant precluded

from challenging admissibility of a photograph shown to the jury after trial court

consulted with him before allowing jury to see it). Regardless, Ford’s statements were

properly admissible under Evid.R. 801(D)(2)(a) as statements against interest. State v.

Pryor, 5th Dist. Stark No. No. 2013CA00016, 

.

       {¶ 41} For these reasons, Ford’s fifth assignment of error is found not well-taken.

         4. There was sufficient evidence to support the aggravated burglary
        conviction, and it was not against the manifest weight of the evidence.

       {¶ 42} Ford’s remaining assignments of error challenge the legal sufficiency and

weight of the evidence supporting his convictions for aggravated burglary, robbery, and




15.
felonious assault. We will begin by discussing his aggravated burglary conviction—in

the case involving C.F.—which is the subject of his first and second assignments of error.

       {¶ 43} When reviewing the sufficiency of the 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, 

, 

 (1981), paragraph

two of the syllabus.

       {¶ 44} R.C. 2911.11, the aggravated-burglary statute, provides as follows:

              (A) No person, by force, stealth, or deception, shall trespass in an

       occupied structure or in a separately secured or separately occupied portion

       of an occupied structure, when another person other than an accomplice of

       the offender is present, with purpose to commit in the structure or in the

       separately secured or separately occupied portion of the structure any

       criminal offense, if any of the following apply:

              (1) The offender inflicts, or attempts or threatens to inflict physical

       harm on another; …

              (B) Whoever violates this section is guilty of aggravated burglary, a

       felony of the first degree. R.C. 2911.11(A)(1) and (B).

       {¶ 45} In his first assignment of error, Ford argues that his aggravated

burglary conviction should be vacated because the state failed to produce sufficient

“proof of injuries to [C.F.].”



16.
       {¶ 46} To begin, R.C. 2911.11(A)(1) does not require actual physical harm—that

is, an attempt or threat to inflict physical harm is sufficient to sustain a conviction for

aggravated burglary. Accord, State v. Spears, 3d Dist. Crawford No. 3-07-32, 2008-

Ohio-2408, ¶ 19; State v. Dobbins, 8th Dist. Cuyahoga No. 84155, 

. Here, the state presented evidence that Ford “put both his hands … on the

back of [C.F.’s] neck” in a “really tight” manner that lasted “maybe five seconds,” and

then “choked” her a second time before fleeing. Based on this testimony, the jury could

infer that Ford attempted to physically harm C.F., which is sufficient to sustain his

conviction for aggravated burglary. Accord Spears at ¶ 20 (Jury could infer that

defendant attempted to physically harm victim where evidence established that he

“shoved or pushed [the victim] more than three different times.”).

       {¶ 47} Regardless, the record contains sufficient evidence that C.F. suffered actual

physical harm as well. “When there is no tangible, physical injury such as a bruise or cut,

it becomes the province of the [trier of fact] to determine whether, under the

circumstances, the victim was physically injured, after reviewing all of the evidence

surrounding the event.” (Quotation omitted.) State v. Collier, 9th Dist. Lorain No.

07CA009115, 

. As used in the relevant statute, “‘[p]hysical harm to

persons’ means any injury, illness, or other physiological impairment, regardless of its

gravity or duration.” R.C. 2901.01(A)(3). Here, C.F. testified that, as a result of the

assault, she experienced headaches, her neck was “sore to the touch,” and her nose was

bruised. See State v. Adams, 12th Dist. Butler No. CA2006-07-160, 

, ¶



17.
50 (Victim’s description of having a “sore face” and “kind of like a bruised feeling”

establishes “physical harm” under R.C. 2901.01(A)(3)); State v. Reese, 8th Dist.

Cuyahoga No. 85902, 

 (“Bruising constitutes ‘physical harm’”).

We find this is sufficient evidence of physical harm.

       {¶ 48} Accordingly, we find Ford’s first assignment of error not well taken.

       {¶ 49} In his second assignment of error, Ford claims that his aggravated burglary

conviction is against the manifest weight of the evidence.

       {¶ 50} When reviewing a claim that a verdict is against the manifest weight of the

evidence, we do not view the evidence in a light most favorable to the state. “Instead, we

sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder's resolution of the conflicting

testimony.’” State v. Robinson, 6th Dist. Lucas No. L–10–1369, 2012–Ohio–6068, ¶ 15

quoting State v. Thompkins, 

, 

 (1997). Reversal on

manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” 

, quoting State v. Martin, 

, 

 (1st Dist.1983).

       {¶ 51} Here, Ford argues that the aggravated burglary conviction is against the

manifest weight of the evidence because the record does not contain any photographs of

C.F.’s physical injuries. We find that the lack of photographic evidence of C.F.’s

physical injuries does not diminish or discredit C.F.’s testimony, and the totality of the

evidence does not weigh heavily against conviction.

       {¶ 52} Accordingly, we find Ford’s second assignment of error not well taken.



18.
      5. The robbery and felonious assault convictions are supported by sufficient
           evidence and are not against the manifest weight of the evidence.

        {¶ 53} Ford also challenges his robbery and felonious assault convictions in the

case involving the other victim, M.M. In his sixth assignment of error, he argues these

convictions are not supported by sufficient evidence. In his seventh assignment of error,

he argues that these convictions are against the manifest weight of the evidence.

        {¶ 54} We begin with the robbery conviction. R.C. 2911.02(A)(2) provides that,

“(A) No person, in attempting or committing a theft offense or in fleeing immediately

after the attempt or offense, shall do any of the following: … (2) Inflict, attempt to

inflict, or threaten to inflict physical harm on another.”

        {¶ 55} On the body camera video, M.M. tells police that “he took my T.V.” Ford

argues that if the body camera footage was inadmissible, then the record would contain

no admissible evidence that he committed a theft offense. A sufficiency review,

however, considers all of the evidence at trial—whether admissible or not. State v.

Brewer, 

, 

, 

, citing Lockhart v.

Nelson, 

, 

, 

 (1988). Regardless,

we have already concluded that the body camera video was properly admitted at trial.

M.M.’s statement that she owned the T.V. was sufficient to establish a theft offense.

        {¶ 56} Ford also claims that the state failed to show that Ford caused M.M.

physical harm “in order to help him commit a theft.” But, “[t]he [robbery] statute plainly

does not require that the force attendant to the theft offense be inflicted in furtherance of

a purpose to deprive another of property.” (Quotation omitted.) State v. Thomas, 106


19.
Ohio St.3d 133, 

, 

, ¶ 13. Thus, it was not necessary that

Ford have inflicted physical harm against M.M. in order to obtain possession of the T.V.

The state need only have shown that there was “no significant lapse of time or

intervening act or event that occurred between” Ford’s theft and his infliction of physical

harm. State v. Hoskins, 12th Dist. Warren No. 

. Here, the evidence

established that Ford fled from the apartment complex immediately after the assault, with

the T.V. in hand.

       {¶ 57} Viewing the foregoing evidence in a light most favorable to the

prosecution, we find sufficient evidence to support the robbery conviction.

       {¶ 58} Ford also argues that the robbery conviction was against the manifest

weight of the evidence because the jury should have deemed his testimony—that the T.V.

belonged to “both of [them]”— credible. Although under a manifest weight standard we

consider the credibility of witnesses, we extend special deference to the jury’s credibility

determinations given that it is the jury that has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L–10–1162, 2012–Ohio–616, ¶ 14. Here, the jury found M.M.’s excited

utterance to the police (“he took my T.V.”) to be more credible than Ford’s testimony at

trial, and we see no reason to undo the jury’s credibility determination.

       {¶ 59} Accordingly, we find that Ford’s robbery conviction is not against the

manifest weight of the evidence.



20.
      {¶ 60} Ford also argues that his conviction for felonious assault against M.M. was

not supported by sufficient evidence and was against the manifest weight of the evidence.

We disagree.

      {¶ 61} Under the felonious-assault statute, R.C. 2903.11(A)(1), “[n]o person shall

knowingly … cause serious physical harm to another ….” Here, Ford argues that

the state met its burden of proving “serious” harm to M.M. through the body camera

video, which should have been excluded. According to Ford, without the body camera

video, there was no admissible evidence that Ford caused serious physical harm to M.M.

Again, we consider all the evidence—not just properly-admitted evidence—in a

sufficiency review. Brewer, 

, 

, 

. Regardless, as discussed, the body camera video was properly admissible. On

that video, M.M. told police that Ford choked her to the point of unconsciousness—

which is “serious physical harm” under the statute. State v. Thomas, 6th Dist. Lucas No.

L-17-1266, 

, appeal not allowed, 

, 2019-Ohio-

3331, 

, and appeal not allowed, 

, ¶ 58-59, 

, 

 (Citing cases).

      {¶ 62} Accordingly, we find that the Ford’s conviction for felonious assault is

supported by sufficient evidence.

      {¶ 63} Finally, Ford argues that his conviction for felonious assault is against the

manifest weight of the evidence because Ford “testified there was mutual combat, which

started when M.M. hit him with a tool” and he “attempted to defend himself.” We reject



21.
Ford’s attempt to argue self-defense for the first time on appeal. Ford did not request a

self-defense jury instruction at trial. Instead, Ford requested and was granted an

instruction for aggravated assault, which is appropriate where the defendant presents

sufficient evidence of serious provocation. State v. Deem, 

, 

 (1988). An aggravated-assault instruction and a self-defense instruction are

considered inconsistent defenses, and courts are reluctant to give both in a prosecution for

felonious assault. State v. Smith, 

, 

, 

 (1st Dist.).

         {¶ 64} The jury rejected Ford’s testimony that M.M. provoked him—by hitting

him with a wrench—into acting in a sudden passion or fit of rage. Once again, we see no

reason to overturn the jury’s credibility determinations. Like the jury, we find M.M.’s

statements to police to be more credible than Ford’s testimony at trial. Accordingly, we

find the felonious assault conviction was not against the weight of the evidence.

         {¶ 65} In sum, because Ford’s convictions for robbery and felonious assault are

supported by legally sufficient evidence, we find his sixth assignment of error not well-

taken. And, because Ford’s convictions for robbery and felonious assault are not against

the manifest weight of the evidence, we find his seventh assignment of error not well-

taken.

                                      III. Conclusion

         {¶ 66} For all the foregoing reasons, we find Ford’s assignments of error not well-

taken. The February 10, 2020 judgments of the trial court, in case No. CR2019-2836 and



22.
case No. CR2019-2995, are affirmed. Ford is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                      Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.


 Thomas J. Osowik, J.                                     [[Applied Signature]]
                                                                JUDGE

 Christine E. Mayle, J.                                  [[Applied Signature 2]]
                                                                JUDGE

 Myron C. Duhart, J.                                     [[Applied Signature 3]]
 CONCUR                                                         JUDGE




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