[Cite as State v. Wilson,
2023-Ohio-218.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111543
v. :
DAVID WILSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED; REMANDED FOR RESENTENCING
RELEASED AND JOURNALIZED: January 26, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-651076-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carla B. Neuhauser, Assistant Prosecuting
Attorney, for appellee.
P. Andrew Baker, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, David Wilson, appeals from the trial court’s
judgment finding him guilty of aggravated assault and domestic violence. We affirm
Wilson’s convictions but remand for resentencing to merge the convictions as allied
offenses.
I. Background
Wilson was charged in a two-count indictment. Count 1 charged
felonious assault in violation of R.C. 2903.11(A)(1); Count 2 charged domestic
violence in violation of R.C. 2919.25(A). Wilson pleaded not guilty and waived his
right to a jury trial, and the matter proceeded to trial before the bench.
Karima McCree-Wilson testified at trial that she is Wilson’s daughter.
She said that pursuant to a judicially ordered protective order, Wilson is not allowed
to be at her house. Nevertheless, on June 7, 2020, Wilson and his friend, Fred
Mobley, drove to her house, in a car that belonged to her, to retrieve a lawnmower.
Karima said that as Wilson and Mobley were putting the lawnmower in the trunk of
the car, she came out of the house and told Wilson he was not allowed to be there,
at which point he grabbed her. She testified that, in an effort to get away from
Wilson, she got in the car. She said that Mobley entered the car from the passenger
side and used his feet to prevent her from driving away, while Wilson tried to pull
her out of the car from the driver’s side. Karima testified that she bit Wilson in an
effort to defend herself and in response, Wilson punched her twice in her face.
Karima testified that she recorded parts of the encounter on her cell
phone; those recordings were played at trial. In addition, two 911 calls from
neighbors reporting that a man was assaulting a woman in the face were played at
trial.
Wilson testified that he knew he was not supposed to be at Karima’s
house when he went there on June 7, 2020. He testified further that he punched
Karima twice in her face after she bit him as he was trying to get her out of the car,
causing her lips to become, as he described it, “all fat and swollen.” (Tr. 112.) He
also testified that prior to this incident, he had sought a protective order against
Karima due to various incidents between them. (Tr. 109-110.)
Despite Wilson and Mobley’s interference, Karima managed to drive
the car to the middle of the street where she, Wilson, and Mobley waited for the
police to arrive. Karima testified that the police arrested Wilson, and she was
transported by ambulance to the hospital, where she was diagnosed with a nearly
one-quarter inch laceration to her upper lip, a small abrasion on her lower lip, two
small abrasions on her forehead, and a facial contusion. She underwent a CT scan,
which indicated there were no broken bones in her face or jaw, and received three
stitches for the upper lip laceration. Karima’s medical records were admitted into
evidence at trial.
The court denied Wilson’s Crim.R. 29 motions at the close of the
state’s case and the end of the trial. The court took the matter under advisement
and subsequently rendered a verdict finding Wilson guilty on Count 1 of the inferior
offense of aggravated assault and guilty on Count 2 as charged and sentenced him
to two years of community control on each count, to be served concurrently. This
appeal followed.
II. Law and Analysis
A. Aggravated Assault
When rendering its verdict, the court first found Wilson guilty of
Count 2, domestic violence, stating, “[t]he evidence supports the allegation the
Defendant did knowingly cause physical harm to the victim.” (Tr. 135.) Then, with
respect to Count 1, the court stated:
Given the totality of the circumstances, the Court rejects the allegations
contained in Count 1.
The Court does, however, find that the relationship between the two,
coupled with the fact the Defendant was bitten by the victim and then
punched by the Defendant, the Court is satisfied the elements of
aggravated assault have been met. And, therefore, finds the Defendant
guilty of the inferior offense of agg[ravated] assault.
(Tr. 136.)
In his first assignment of error, Wilson contends that, in light of the
trial court’s statement that it “rejects the allegations in Count 1,” the trial court erred
in convicting him of aggravated assault after finding him not guilty of felonious
assault.
Wilson was charged in Count 1 with felonious assault in violation of
R.C. 2903.11(A)(1), which provides that “no person shall knowingly cause serious
physical harm to another.” The offenses of aggravated assault and felonious assault
are comprised of the same elements, except aggravated assault contains the
mitigating element of “serious provocation.” Accordingly, aggravated assault is an
inferior offense of felonious assault. See State v. Williams, 8th Dist. Cuyahoga No.
98210, 2013-Ohio-573, ¶ 21.
As this court stated in State v. Martin, 8th Dist. Cuyahoga No.
106125, 2018-Ohio-1098,
To be found guilty of aggravated assault as an inferior offense of
felonious assault, the trier of fact must first find that the state proved
the elements of felonious assault beyond a reasonable doubt. Only then
does the trier of fact consider whether the defendant proved the
mitigating factor of serious provocation by a preponderance of the
evidence. If the trier of fact finds that the defendant proved the
mitigating circumstance, then the trier of fact can find a defendant
guilty of aggravated assault. See State v. Ruppart, 187 Ohio App.3d
192,
2010-Ohio-1574,
931 N.E.2d 627, ¶ 33-38 (8th Dist.), citing 2 Ohio
Jury Instructions, Section 503.11(A)(14) (2009).
Id. at ¶ 13.
In Martin, which involved a bench trial, the trial court expressly
stated when rendering its verdict regarding two counts of felonious assault that the
state had not presented evidence that rose to the level of guilty beyond a reasonable
doubt as to the felonious assault charges. Id. at ¶ 12. The court went on to find,
however, that the state had presented evidence that rose to the legal standard of
guilty beyond a reasonable doubt as to aggravated assault and, accordingly, the trial
court found the defendant guilty of two counts of aggravated assault. Id. This court
reversed the convictions on appeal, finding that the trial court at no point considered
the mitigating factor of provocation and further, that the trial court had effectively
found Martin not guilty of both felonious assault charges when it determined that
the state had not satisfied its burden of proof with respect to those charges. Id.
Wilson contends that this case is like Martin because the trial court’s
statement that it “rejects the allegations contained in Count 1” was “tantamount to
an acquittal,” and therefore, because the trial court found him not guilty of felonious
assault, it could not then find him guilty of the inferior degree offense of aggravated
assault. (Appellant’s Brief, p. 7).
We disagree with Wilson’s assertion that the court’s statement that it
rejected the allegations in Count 1 meant that it found him not guilty of felonious
assault. Rather, when considered in light of the court’s statement immediately prior
that Wilson was guilty of domestic violence because he knowingly caused physical
harm to Karima (tr. 135), and its statement immediately following that Wilson
punched Karima only after she bit him (tr. 136), we find the court’s statement that
it rejected the allegations in Count 1 to be merely an imprecise way of saying that
although Wilson knowingly caused serious physical harm to Karima (the elements
of felonious assault), he was provoked into doing so. Accordingly, despite its inartful
statement, we conclude that the trial court found Wilson guilty of felonious assault
beyond a reasonable doubt but then found that he had proved the mitigating factor
of provocation sufficient to find him guilty of the inferior offense of aggravated
assault.1 The first assignment of error is overruled.
B. Allied Offenses
In his second assignment of error, Wilson contends that the trial court
erred in not merging his convictions for aggravated assault and domestic violence as
allied offenses.
1Although the trial court stated that Wilson was guilty of “the inferior offense of
agg[ravated] assault,” the journal entries of conviction and sentencing incorrectly refer to
aggravated assault as a “lesser-included offense” of felonious assault.
The allied offenses statute, R.C. 2941.25, codifies Ohio’s double
jeopardy protections regarding when multiple punishments may be imposed. State
v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d 892, ¶ 12. Under the statute,
where the same conduct by a defendant can be construed to constitute two or more
allied offenses of similar import, the indictment may contain counts for all such
offenses, but the defendant may be convicted of only one offense. A defendant
charged with multiple offenses may be convicted of all the offenses, however, if (1)
the defendant’s conduct constitutes offenses of dissimilar import; i.e., each offense
caused separate, identifiable harm; (2) the offenses were committed separately; or
(3) the offenses were committed with separate animus or motivations. R.C.
2941.25(B); Ruff at ¶ 14. Thus, to determine whether offenses are allied, courts must
consider the defendant’s conduct, the animus, and the import. Id. at paragraph one
of the syllabus.
Where a defendant fails to raise the issue of allied offenses in the trial
court, he forfeits all but plain error on appeal. State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459,
38 N.E.3d 860, ¶ 3. Applying the plain error standard to an allied
offenses argument, the “accused has the burden to demonstrate a reasonable
probability that the convictions are allied offenses of similar import committed with
the same conduct and without a separate animus” or import.
Id.
Wilson concedes that he did not raise the issue of allied offenses in
the trial court, and our review is therefore for plain error. He contends, and we
agree, that his convictions were allied offenses because his offenses involved the
same victim, were committed with a single animus, and the injuries caused by each
offense were the same. The state concedes the error. Accordingly, we sustain the
second assignment of error and remand for resentencing to merge the offenses with
the state electing the count upon which Wilson should be sentenced.
C. Sufficiency of the Evidence
In his third assignment of error, Wilson contends there was
insufficient evidence to support his conviction for aggravated assault because the
state failed to present evidence of “serious physical harm,” an element of the offense.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Williams, 8th Dist.
Cuyahoga No. 98210, 2013-Ohio-573, ¶ 16. 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. State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991),
paragraph two of the syllabus.
As relevant to this appeal, R.C. 2901.01(A)(5)(d) defines serious
physical harm to persons as any physical harm that involves some temporary,
serious disfigurement.
This court has recognized that although serious physical harm is
defined in the statute, “[t]he degree of harm that rises to the level of ‘serious’ physical
harm is not an exact science” given that the definition includes such terms as
“substantial,” “temporary,” “acute,” and “prolonged.” State v. Miller, 8th Dist.
Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18. Nevertheless, “this court has
‘historically applie[d] a liberal interpretation of “serious physical harm” to persons.’”
State v. Henry, 8th Dist. Cuyahoga No. 102634,
2016-Ohio-692, ¶ 41, quoting State
v. Davis, 8th Dist. Cuyahoga No. 81170,
2002-Ohio-7068, ¶ 20.
In support of his argument that Karima’s injuries did not amount to
serious physical harm, Wilson directs us to State v. Enovitch, 8th Dist. Cuyahoga
No. 72827, 1998 Ohio App. LEXIS 3833 (Aug. 20, 1998), wherein this court found
that the victim’s injuries did not constitute serious physical harm because even
though the cut over the victim’s eye required 11 stitches, there was no evidence that
the scar from the laceration was permanent and the hospital records characterized
the injury as “minor.” Id. at 6. Wilson contends that Karima’s injuries were only
superficial and less severe than those in Enovitch and accordingly, any finding of
serious physical harm was not supported by sufficient evidence.
As this court noted in State v. Finley, 8th Dist. Cuyahoga No. 108062,
2019-Ohio-3891, however, this court has distinguished Enovitch several times since
it was decided. In State v. Whittsette, 8th Dist. Cuyahoga No. 85478, 2005-Ohio-
4824, for example, this court upheld the defendant’s conviction for felonious
assault, even though the victim did not seek any medical attention, where the
defendant struck the victim in the head with a gun, causing gashes on the victim’s
head. Finley at ¶ 26, citing Whittsette at ¶ 20. This court also distinguished
Enovitch in State v. Norman, 8th Dist. Cuyahoga No. 85938,
2005-Ohio-6018,
concluding that even if the victim’s facial and neck lacerations did not leave a
permanent scar, they constituted serious physical harm because they were a
temporary, serious disfigurement under R.C. 2901.01(A)(5)(d). In Finley, this court
likewise declined to follow Evonitch, concluding that because the state presented
evidence of the victim’s loss of blood and that she sought medical treatment and
received butterfly stitches for the wounds on her neck and ear lobe, there was
sufficient evidence of serious physical harm. Id. at ¶ 30.
As in Finley, Whittsette, and Norman, we find Enovitch
distinguishable from this case. As noted in Finley, “‘[t]his court has consistently
held that the need for stitches constitutes serious physical harm for purposes of a
felonious assault conviction.’” Finley at ¶ 28, quoting State v. Studgions, 8th Dist.
Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10, citing State v. Churchwell, 8th Dist.
Cuyahoga No. 88171,
2007-Ohio-1600, ¶ 28. This court has also “‘repeatedly held
that the element of serious physical harm is satisfied when the evidence shows that
the victim sustained injuries requiring medical treatment, including stitches.’”
Finley at
id., quoting State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-
573, ¶ 19. Furthermore, this court has found serious physical harm even where no
stitches were required but the victim sustained a bloody cut and significant swelling
to the eye. See State v. Payne, 8th Dist. Cuyahoga No. 76539,
2000 Ohio App.
LEXIS 3274, 9 (July 20, 2000) (even where no stitches were required, a bloody cut
and swollen eye was sufficient to establish serious physical harm under R.C.
2901.01(A)(5) because the injury was a temporary, serious disfigurement).
Accordingly, in light of the foregoing precedent and the facts of this
case — the contusion on Karima’s face, the abrasions to her forehead, her “fat and
swollen” lips, the lacerations on her upper and lower lips, and her transport to the
hospital by ambulance, where she underwent a CT scan to determine whether any
bones in her jaw were broken and received three stitches to close the laceration on
her upper lip — we find that the state presented sufficient evidence to establish that
Karima sustained a serious physical injury that involved some temporary, serious
disfigurement pursuant to R.C. 2901.01(A)(5)(d). After reviewing the evidence in a
light most favorable to the prosecution, as we are required to do, we find that the
state produced sufficient evidence to prove the element of serious physical harm
beyond a reasonable doubt. The third assignment of error is overruled.
D. Manifest Weight of the Evidence
In his fourth assignment of error, Wilson contends that his
convictions are against the manifest weight of the evidence because the evidence
demonstrated that he acted in self-defense.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion. State v. Armstrong, 8th
Dist. Cuyahoga No. 109709, 2021-Ohio-1087, ¶ 24. A reviewing court examines 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 [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that the convictions must be reversed and a new trial ordered.”
State v. Thompkins,
78 Ohio St.3d 380, 388,
678 N.E.2d 541 (1997). A conviction
should be reversed as against the manifest weight of the evidence only in the most
“exceptional case in which the evidence weighs heavily against the conviction.”
Id.
Wilson testified that he knew he was not allowed to be at Karima’s
home but went there anyway on June 7, 2021. He testified further that Karima
owned the car that he was driving that day and that when Karima bit him as he was
trying to pull her out of her car as she was trying to drive away, he punched her twice
in the face.
“Ohio courts have long recognized that a person may not provoke an
assault or voluntarily enter an encounter and then claim the right of self-defense.”
State v. Vines, 8th Dist. Cuyahoga No. 33871, 1975 Ohio App. LEXIS 6280, *8
(May 29, 1975); see also State v. Gaston, 8th Dist. Cuyahoga No. 98904, 2013-Ohio-
2331, ¶ 16, quoting State v. Nichols, 4th Dist. Scioto No. 01CA2775,
2002-Ohio-415
(same); State v. Sekic, 8th Dist. Cuyahoga No. 95633,
2011-Ohio-3987, ¶ 15
(defendant could not claim self-defense where he created the situation and failed to
avoid the danger that led to the altercation). Because Wilson’s own testimony
demonstrates that he was at fault in creating the situation that gave rise to the
altercation by going to Karima’s house and then trying to prevent her from leaving
the scene in the car she owned, he cannot claim self-defense.
After reviewing the record, weighing the evidence, and considering
the credibility of the witnesses, we find no indication that the trier of fact lost its way
and created such a manifest miscarriage of justice that Wilson’s convictions for
aggravated assault and domestic violence should be reversed and a new trial
ordered. The fourth assignment of error is therefore overruled.
Judgment affirmed; remanded for resentencing.
It is ordered that the parties share equally the 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. Case
remanded to the trial court for resentencing and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, A.J., and
SEAN C. GALLAGHER, J., CONCUR
