[Cite as State v. Pennington,
2024-Ohio-5681.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA12
v. :
JUSTIN A. PENNINGTON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
William T. Cramer, Westerville, Ohio, for appellant1.
Keller J. Blackburn, Athens County Prosecuting Attorney, Athens,
Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-26-24
ABELE, J.
{¶1} This is an appeal from an Athens County Common Pleas
Court judgment of conviction and sentence. Justin Pennington,
defendant below and appellant herein, assigns six errors for
review:
FIRST ASSIGNMENT OF ERROR:
“APPELLANT’S RIGHTS TO A FAIR TRIAL UNDER
THE STATE AND FEDERAL CONSTITUTIONS WERE
VIOLATED BY THE IMPROPER ADMISSION OF A 911
1
Different counsel represented appellant during the trial
court proceedings.
ATHENS, 23CA12
2
CALL THAT WAS UNFAIRLY PREJUDICIAL IN
VIOLATION OF EVID.R. 403(A).”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT’S RIGHTS TO CROSS-EXAMINATION
UNDER THE STATE AND FEDERAL CONSTITUTIONS
WERE VIOLATED WHEN THE TRIAL COURT LIMITED
DEFENSE COUNSEL’S CROSS-EXAMINATION OF A
VICTIM WHO WAS PERMITTED TO REMAIN IN THE
COURTROOM DURING OTHER TESTIMONY PURSUANT TO
MARSY’S LAW.”
THIRD ASSIGNMENT OF ERROR:
“APPELLANT’S DUE PROCESS RIGHTS UNDER THE
STATE AND FEDERAL CONSTITUTIONS WERE
VIOLATED BY A CONVICTION FOR FELONY MURDER
THAT WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE ON THE ISSUE OF PROXIMATE CAUSE.”
FOURTH ASSIGNMENT OF ERROR:
“APPELLANT’S CONVICTION FOR MURDER WAS NOT
SUPPORTED BY THE WEIGHT OF THE EVIDENCE ON
THE ISSUE OF PROXIMATE CAUSE.”
FIFTH ASSIGNMENT OF ERROR:
“APPELLANT’S CONVICTION FOR MURDER WAS NOT
SUPPORTED BY THE WEIGHT OF THE EVIDENCE ON
THE ISSUE OF SELF-DEFENSE.”
SIXTH ASSIGNMENT OF ERROR:
“APPELLANT’S CONVICTION FOR FELONIOUS
ASSAULT IN COUNT FIVE IS NOT SUPPORTED BY
ATHENS, 23CA12
3
THE WEIGHT OF THE EVIDENCE.”
{¶2} On June 13, 2021, appellant assaulted Blaine Sharpe at
his home, then assaulted Nia Robinson and Heather Irwin at
Irwin’s home. Sharpe later died from his injuries.
{¶3} In June 2021, an Athens County Grand Jury returned an
indictment that charged appellant with (1) one count of murder
in violation of R.C. 2903.02(B), an unclassified felony, (2) one
count of involuntary manslaughter in violation of R.C.
2903.04(A), a first-degree felony, (3) one count of burglary in
violation of R.C. 2911.12(A)(2), a second-degree felony, (4) one
count of felonious assault in violation of R.C. 2903.11(A)(1), a
second-degree felony, (5) one count of felonious assault in
violation of R.C. 2903.11(A)(2), a second-degree felony, (6) one
count of felonious assault in violation of R.C. 2903.11(A)(2), a
second-degree felony, (7) one count of felonious assault in
violation of R.C. 2903.11(A)(1), a second-degree felony, and (8)
one count of breaking and entering in violation of R.C.
2911.13(B), a fifth-degree felony. Appellant entered not guilty
ATHENS, 23CA12
4
pleas. At appellee’s request, the trial court dismissed count
seven (felonious assault) and renumbered count eight of the
indictment to count seven.
{¶4} At trial, Courtney Brown, the only child of Blaine and
Cindy Sharpe, testified that on June 13, 2021, she lived a
quarter of a mile from her parents on the same road. Brown
assumed her father knocked on her door that day, but instead
appellant entered her home and wore shorts with “no shirt and
blood on his stomach.” Brown explained that she attended K-12
school with appellant, but did not expect him to visit her home.
Appellant told Brown, “he had just beat the pulp out of my Dad
and he was laying [sic.] on ... his front porch.” Appellant
told Brown that her father “called the law and got his kids
taken away.” Brown stated that appellant “seemed frantic. Kind
of panicky.”
{¶5} Brown quickly drove to her parents’ home and found her
father “laying [sic.] on the porch unresponsive, not breathing.”
Brown quickly returned to her house to call her mother to tell
her to check on her father. Brown then called 911 as she
ATHENS, 23CA12
5
returned to her parents’ home.
{¶6} Appellee played Brown’s 911 call for the jury. Brown
identified her voice and explained that she stayed on the phone
with 911 until emergency medical services (EMS) arrived. On the
911 call, Brown stated:
Somebody just stopped at my house and told me they beat
the hell out of my Dad. He’s laying on his front porch
right now and I don’t think he’s breathing . . . The guy
who just did it he just stopped at my house and told
me... and his name is Justin Pennington.
{¶7} Brown’s mother, Cindy, started cardiopulmonary
resuscitation (CPR) pursuant to the 911 operator’s instructions,
and Brown later performed CPR. They performed CPR for about 15-
20 minutes, but could not perform “the breath component” because
“his mouth was clear full of blood.” Once EMS arrived, Brown
returned to her home and noticed a fresh blood stain on her
front door.
{¶8} On cross-examination, Brown explained that appellant
dated her cousin, Nia Robinson. Brown acknowledged that she had
“known [her father] to fight,” and he had been a heavy drinker,
but she did not know whether he used methamphetamine.
ATHENS, 23CA12
6
{¶9} Cindy Sharpe, Blaine Sharpe’s widow after 30 years of
marriage, testified that on June 13, 2021, she lived with Blaine
on Sargent Road. Cindy swam in their pool while Blaine painted
her wooden Adirondack chairs. Afterward, Cindy spoke with
Blaine and went inside to change. Between 4 and 5 p.m., Blaine
entered the home to nap and Cindy went to her bedroom to watch
TV. In addition to the TV, other noise in her bedroom included
a fan, a window air conditioner, and central air conditioning.
Later, Cindy heard Blaine walk down the hallway, but did not
hear anything else. At around 7:00 p.m., Cindy received a call
from their daughter, Courtney Brown, who told her that she found
Blaine “on the porch and [he] wasn’t moving.”
{¶10} After Cindy found Blaine on the porch, wearing only
boxer underwear and with blood and swelling on his face, she
called 911. Appellee played the 20-minute 43-second 911 call
for the jury. Cindy identified her voice and her daughter’s
voice on the 911 call. In the call, Cindy is sobbing and
distraught, and says, “My daughter just called. Somebody beat
the hell out of my husband. He’s laying [sic.] on the porch and
ATHENS, 23CA12
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he’s not breathing . . . There’s blood everywhere . . . Oh my
God there’s blood coming from his head.” The 911 operator
assisted Cindy with performing CPR and instructed her to pinch
her husband’s nose and tilt his head. Cindy replied, “Oh honey,
his mouth is full of blood. There’s blood coming out of his
nose. There’s blood coming everywhere.” The operator advised
Cindy to return to chest compressions, and the operator asked if
she observed the perpetrator at the property. Cindy replied,
“It’s Justin Pennington. He’s walking up the road, my daughter
said. Walking towards Fossil Rock Road.” After Cindy’s
daughter took over the chest compressions, Cindy said, “Come on
Blaine. Fight, fight . . . I want this guy caught and I want
him prosecuted.” Cindy stated, “I was in my room watching TV .
. . and then my daughter called and said he was laying [sic.] on
the porch not breathing and that Justin Pennington just . . .
beat the sh*t out of him.” Cindy continued, “Blood is coming
out of his mouth and ears and nose.”
{¶11} Cindy testified that appellant did not visit their
home before that day and had no reason to be there. Cindy also
ATHENS, 23CA12
8
acknowledged that Blaine consumed whiskey. After EMS took
Blaine in the ambulance, Cindy drove to the hospital and learned
that Blaine died. Cindy testified that the cause of death on
the death certificate indicated “blunt force trauma of the head
with . . . cardiovascular disease and ethanol intoxication
contributing” and listed the manner of death as “homicide” with
“multiple strikes to the head.”
{¶12} On cross-examination, Cindy testified that Blaine
drank about two half-gallons of whiskey per week, had lost
weight, and sometimes drank because he grieved “over his parents
and that was how he dealt with it.” Cindy expressed surprise
when she learned of methamphetamine in Blaine’s system when he
died. Cindy acknowledged that Blaine had a reputation for
fighting in his youth, but had never been violent toward her or
her family. Cindy stated that “years before,” Blaine told
appellant to stay away from their property.
{¶13} Heather Irwin lives in a camper on Fossil Rock Road.
Irwin stated that, in the wintertime, her neighbor, Jim, stays
with her “because of the heat.” On June 13, 2021, she drove to
ATHENS, 23CA12
9
appellant’s parents’ house because Jim asked her to pick up
appellant and his girlfriend, Nia, and bring them to her camper
so appellant could help build a fence. Appellant worked on the
fence while Irwin and her friend Nia sat in the sun, had a few
drinks, and listened to music. Irwin stated that she, Nia, and
appellant drank “gas station vodka . . . forty-two proof vodka
that you find not at the liquor stores.” Irwin drank “not even
a fifth of gas station vodka,” and she and Nia did not leave the
property that day, but appellant did. “The first time that he
left he was talking to Nia and I couldn’t overhear, you know,
all of it because of the music. But he said something about
avenging her father. That he was going to go avenge her
father.” Irwin did not know what that meant.
{¶14} After appellant left, Irwin and Nia moved under the
awning. When appellant returned the first time, Irwin “kind of
made a joke to him and he apparently must have took it the wrong
way. And he pushed me over in the chair and I scrapped [sic.]
my elbow. Then he kind of picked me up because I was crying,
and was like I’m sorry, I’m sorry. And then he took off again.”
ATHENS, 23CA12
10
{¶15} Irwin testified that later she and Nia went inside the
camper to make a salad. Nia ate chips and sat near the door
while Irwin stood at the kitchen bar when appellant “burst in
the door and started screaming and yelling at Nia. And saying,
you know, we’ve gotta go, we’ve gotta go and she was like why
and he starts grabbing a hold of her hair and dragging her and
punching her, you know, throwing stuff around.” Appellant
“beat” on Nia and ripped at her clothes. Irwin picked up a
baseball bat she kept for protection and pointed the bat at
appellant and screamed “get the hell out of my house.” However,
appellant “grabbed the baseball bat out of my hand and proceeded
to beat me in the head several times with it.”
{¶16} Irwin lost consciousness and later awoke when her
neighbor, Mary Robinson, called 911. Irwin got up and picked up
Nia, “because she’s out of it, you now, hurting and bleeding . .
. I help[ed] carry [her] down to my neighbor’s house across the
yard.” After EMS arrived, Irwin spoke with law enforcement and
received 5 stitches. Irwin identified the baseball bat with
blood on it.
ATHENS, 23CA12
11
{¶17} Nia Robinson testified that she and appellant had an
“off and on” relationship for about six years, and he is the
biological father of her youngest daughter. On June 13, 2021,
Nia and appellant lived with appellant’s parents and his
youngest son. Heather Irwin drove Nia and appellant to Irwin’s
camper to fix a fence. Nia testified that she, Irwin, and
appellant drank appellant’s gas station vodka.
{¶18} Nia and Irwin eventually went inside the camper and
Nia sat in a chair eating chips when appellant entered the
camper and “started to beat the shit out of me.” Nia explained
that appellant “had a hold of my hair because I could feel my
hair being ripped backwards,” and appellant hit Nia’s face and
arms with a bat. Nia sustained injuries to her face and arm and
received stitches. Nia described Blaine Sharpe as her uncle and
stated that appellant left once that day “on foot” to get
alcohol.
{¶19} Mary Robinson testified that on the evening of June
13, 2021, she observed two ambulances travel down Fossil Rock
Road, where she resides. Mary drove to Sargent Road to
ATHENS, 23CA12
12
investigate and observed EMS at the Sharpe home. After Blaine’s
daughter told Mary what happened, Mary returned to her property
and “went up to [Heather Irwin and Jim Bryant’s] to tell them
that I wanted Justin Pennington off the property.” Mary “found
Heather all bloody on the floor and Justin leaning over her
mopping her head up with paper towels. And Nia, she was in the
camper too but she wasn’t as near bloody as what Heather was.”
Mary “told Justin [she] was going to call the law.” Appellant
told her, “please don’t do that,” but Mary “went down home and
dialed 911.” Mary explained that Irwin and Nia “came down to my
house and I spent almost over a half an hour or so mopping blood
up from Heather’s head. And I didn’t think the bleeding was
ever going to stop.” Mary stayed with Irwin and Nia until the
ambulance arrived. Mary acknowledged that both women had been
drinking.
{¶20} Athens County Sheriff’s Office Lieutenant Jason Kline
testified that after the first 911 call at 7:13 p.m., he and
Deputy Jason White arrived at the Sharpe home at 7:42 p.m.
Kline stated that he observed EMS treat Blaine Sharpe and one
ATHENS, 23CA12
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medic told Kline that EMS “were not certain if Mr. Sharpe would
actually make it,” so Kline contacted his superior to notify him
that this could be a homicide.
{¶21} At 7:49 p.m., another 911 call notified dispatch that
“two females . . . had possibly been assaulted inside of a
camper.” Lieutenant Kline instructed Deputy Elson Rouse and
Ohio State Highway Patrol Troopers to respond to the other
assault on Fossil Rock Road. Kline also overheard a radio call
that summoned the coroner to the hospital. Detectives Bryce
Fick and John Deak arrived, and once officers secured the scene,
Kline drove to the Fossil Rock scene with Rouse.
{¶22} At the Fossil Rock scene, Lieutenant Kline instructed
Deputy Rouse to conduct video interviews of the female victims.
After Rouse completed the interviews and EMS treated the
victims, Kline traveled up Fossil Rock Road to the location
where officers “heard something or someone in the woods.”
Moments after Kline began to search the wood line, appellant
“walked out of the wood line and into the field.” Officers
ordered appellant to stop and walk toward them, but appellant
ATHENS, 23CA12
14
“laid down in the tall grass in the field.” Officers took
appellant into custody at 9:32 p.m. and found a “half drank
bottle of vodka” in the field.
{¶23} Athens County Sheriff’s Deputy Jason White testified
that on June 13, 2021, he patrolled the area near the Sharpe
residence and looked for the suspect. White could not find the
suspect, so he drove to the Sharpe home. When Lieutenant Kline
directed him to the Fossil Rock Road scene, there he “stood by”
with Deputy Rouse. Later, Kline dispatched White about a half
mile down Fossil Rock Road, where officers believed they located
appellant. By the time White arrived, two troopers had secured
appellant and White took appellant into his custody, patted him
down, and recovered a wallet and cell phone.
{¶24} Deputy White drove appellant to their office and
conducted an interview. Appellant told White that before his
arrest, “he was with his beautiful wife and kids and they were
making barbeque ribs.” Appellee played for the jury appellant’s
statement about (1) why he had been in the woods, (2) why he
felt anger toward Blaine Sharpe, and (3) what he did to Sharpe.
ATHENS, 23CA12
15
On the recording, appellant stated, “So I just went over to
Blaine Sharpe’s house and I beat the living f*ck out of that guy
and laid him . . . on his porch. Other than that I’ve not done
anything wrong. I’ve been working my ass off, dude.”
{¶25} Athens EMS Paramedic Kathleen Carrick responded to the
Sharpe residence, where she assisted with CPR and helped place
Sharpe on a back board. Carrick performed a halo test “to see
what kind of fluid is leaking from the head” because Sharpe “had
fluid coming from his ears.” Carrick identified the fluid as
cerebral spinal fluid, which meant “that there is more than
likely a severe skull fracture.” Carrick stated that EMS began
to administer life-saving drugs and “monitored his pulse and
respirations, which he did not have at that point. We tried to
incubate [sic.] but he had too many facial fractures.” En route
to the hospital, EMS “did get a pulse and a viable rhythm back
for about three minutes. But again the cardiac drugs can do
that. But we lost it pretty quickly.”
{¶26} Carrick and her crew also responded to the Fossil Rock
Road scene, where she received information that two women “had
ATHENS, 23CA12
16
been struck with a bat.” Carrick worked first with Nia
Robinson, who “was not super compliant . . . even admitted to me
that she had been drinking. And had a bunch to drink.” Nia
displayed slurred speech, had a laceration above her eye and an
abrasion above her other eye, “was very hysterical,” and told
Carrick that she had about eight shots and some beer. Nia told
Carrick that appellant “hit me with a bat.” Nia’s injuries
concerned Carrick because they could indicate a head injury.
{¶27} Athens County EMS Dillon Burson testified that he
treated Heather Irwin, who bled from her forehead. Burson
bandaged Irwin and started an IV, but Irwin declined a cervical
collar. Irwin informed Burson that appellant struck her with an
aluminum baseball bat.
{¶28} Athens County Sheriff’s Detective Bryce Fick testified
that he and Deputy John Deak arrived at the Sharpe residence at
8:00 p.m. After Deputy White briefed them, Fick photographed
the scene and collected potential evidence while Deak traveled
to the Fossil Rock Road scene. Later, after Fick advised
appellant of his Miranda rights, he interviewed appellant and
[Cite as State v. Pennington, 2024-Ohio-5681.]
noticed his right hand appeared “very swollen, potentially
broken,” also with a cut. Appellee played the interview for the
jury and appellant stated:
I went there and I hit him several times. Yes, I punched
him in the face three times . . . See my wrists. I
punched him. Then I went to the house right beside him
and I said Courtney, which is his daughter. I said
‘Courtney, your dad f*cked me out of a lot of money and
I hurt him on his porch.’
{¶29} Detective Fick returned to the Irwin residence the
following day to photograph and collect several items, including
a baseball bat, a broken bowl or plate on the floor, food strewn
about the kitchen, a bloody rag or paper towel, and DNA swabs.
Fick explained that no DNA or fingerprint results are available
because appellant confessed to the Sharpe assault and although
officers submitted the items to the lab, “there was ultimately
some type of policy issue that I’m not a hundred percent aware
of why they were not tested.” Fick further testified that,
while appellant awaited trial at the Southeast Ohio Regional
Jail, on June 7, 2022 the jail recorded a call between appellant
and his mother that appellee played for the jury.
{¶30} Detective Fick testified that when he contacted
appellant to inform him that Sharpe died and appellee intended
to charge appellant with homicide, appellant appeared “shocked”
and “very surprised.” On cross-examination, Fick acknowledged
[Cite as State v. Pennington, 2024-Ohio-5681.]
that deputies did not stay overnight at Irwin’s camper. Fick
also explained that officers did not find the baseball bat until
the following day, between a chair and the wall, but explained
that “we had to look around. I mean if you were doing the quick
cursory search you’d probably overlook that easily.”
{¶31} Emergency Physician Dr. Robert Holm, Jr. testified
that on June 13, 2021, Sharpe arrived with a breathing tube,
cervical collar, cardiac monitor, and defibrillator pads. After
an EMS briefing, hospital officials used a video laryngoscope (a
fiber optic video tool to examine a patient’s airway), and staff
found “significant blood and debris present within the airway.”
Staff continued chest compressions and ventilation and
administered medications such as Epinephrin to stimulate the
heart, “but they were unsuccessful.” Medical staff pronounced
Sharpe dead at 8:26 p.m. and notified the Coroner’s Office. Dr.
Holm testified regarding a medical record that indicated “a
massive head injury” that Dr. Holm believed to be “non-
survivable” between the head injury “and the cardiac arrest.”
{¶32} Montgomery County Coroner’s Office Forensic
Pathologist Dr. Susan Brown testified that she has performed
over four thousand autopsies. Brown photographed Sharpe’s body,
conducted an internal investigation, and evaluated his injuries
and medical problems. Brown observed bruises and two
[Cite as State v. Pennington, 2024-Ohio-5681.]
lacerations on Sharpe’s left ear lobe, two lacerations behind
Sharpe’s left ear “with multiple bruises and abrasions or
scrapes of skin at the top portion of the left ear,” a
laceration of Sharpe’s upper lip, and bruises around his left
eye and left cheek. Brown further documented bruises on
Sharpe’s right arm near his elbow, an abrasion to his right
forearm near his wrist, and multiple bruises and abrasions to
his left arm and both hands. Brown observed bruises on Sharpe’s
chin, “multiple bruises of the scalp on the back of his head,”
and “multiple large areas of bruising” on both sides of his
head, with the left side sustaining more injuries. Overall,
Brown observed at least nine distinct injuries to Sharpe’s head,
which means “[t]here are at least nine distinct blows,” and
testified that when Sharpe arrived, he “still had blood coming
from his, his face and, and ears.”
{¶33} Dr. Brown also testified that Sharpe’s toxicology
report indicated that his system contained “methamphetamine,
amphetamine, bubropionephrine, the metabolite for
bubropionephrine or the break down product of bubropionephrine,
and alcohol.” Brown further explained that although Sharpe had
a blood alcohol level of “.130 grams percent . . . it is not a
drug overdose.” Brown’s summary listed “blunt force trauma of
the head and neck,” “blunt force trauma of the torso,” and
[Cite as State v. Pennington, 2024-Ohio-5681.]
“blunt force trauma of the extremities.” Brown also found
“arteriosclerotic cardiovascular disease [coronary artery
disease],” “a couple of blockages,” and “an enlarged heart.”
Dr. Brown explained that it is possible that someone with this
condition may not know about it. Dr. Brown established blunt
force trauma as the “initiating event.” Brown explained that
some injuries to the head could have occurred with a fall, but
noted the “shear [sic.] number of them.”
{¶34} Dr. Brown characterized Sharpe’s cause of death as
“[b]lunt force trauma of the head with arteriosclerotic
cardiovascular disease and ethanol intoxication contributing.”
Brown explained that ethanol intoxication is “not his cause of
death. The initiating event of his death is his head trauma.
And that coupled with alcohol in his system can cause apnea or
it causes you to stop breathing. And that makes your heart more
susceptible if you already have coronary heart disease to have
cardiac arrest.” When asked if the second contributing factor
noted as the arteriosclerotic cardiovascular disease caused
Sharpe’s death, Dr. Brown stated, “[o]nly when it’s coupled with
the head trauma. So again the head trauma is the initiating
event. He is alive and well prior to having head trauma. It’s
only with the head trauma coupled with these other issues, his
heart disease and having alcohol in his system that he dies.”
[Cite as State v. Pennington, 2024-Ohio-5681.]
Appellee asked, “but for the blunt force trauma to the head
those contributing factors would not have led to the death of
Blaine Sharpe?” Dr. Brown replied, “[n]ot on that day.”
{¶35} At the close of appellee’s case, the trial court
denied appellant’s Crim.R. 29 motion for judgment of acquittal.
{¶36} Appellant testified that he has three children and
acknowledged his criminal history, which includes a 2014
misdemeanor petty theft conviction, a 2018 misdemeanor
impersonating an officer conviction, three 2018 receiving stolen
property convictions, and a 2019 misdemeanor receiving stolen
property conviction. Further, appellant stated that he served a
term of probation when this incident occurred.
{¶37} Appellant related that on June 13, 2021, Heather Irwin
picked up Nia Robinson and him at appellant’s parents’ home so
appellant could help build a fence around Irwin’s pool. During
the day, appellant “had a couple of beers” and Heather Irwin and
Nia Robinson consumed “gas station vodka.” Appellant testified
that he did not tell Nia that he planned to “go to Blaine’s to
avenge something.” Appellant stated that Sharpe “lived a couple
miles from our family farm” and near Irwin. Appellant stated
that he considered Sharpe an acquaintance, that he probably saw
Sharpe “two weekends before the incident” and probably visited
[Cite as State v. Pennington, 2024-Ohio-5681.]
Sharpe’s garage “a couple of months ago.”
{¶38} Appellant stated that “Heather Irwin . . . had carried
on all day about how a previous incident happened. And that
Blaine was going to come after my father and my son. And I
didn’t believe it. So after them two had went in the camper, me
and the dogs walked down the road to Blaine’s to ask him . . .
if this was just drunk drama or if this was true.” Appellant
stated that when no one answered the door at the Sharpe
residence, appellant turned to leave when, “Blaine came out of
it like a ball of fire. Grabbed me by the throat. I turned and
swatted two to three times to get him off of me. And Blaine
dropped on his porch.” Due to a prior motorcycle accident,
appellant’s neck is “very, very sensitive . . . for someone’s
hands to be wrapped around it I feared for it.” Appellant
stated that he feared bodily injury, and turned and “I guess
[used] like a hammer fist two or three times to get him off of
me.” Appellant stated that Sharpe fell on his back on the
porch.
{¶39} Appellant stated that he “didn’t know what to do next
and I didn’t have a phone. So I did the closest thing and went
to Courtney Sharpe’s, I mean Courtney Brown’s house.”
Appellant stated that he knew Courtney from school, but had not
recently been to her home. Appellant knocked on Courtney’s door
[Cite as State v. Pennington, 2024-Ohio-5681.]
and “let her know that her dad had come out after me and she
needed to go check on him.” Appellant stated that he talked to
Courtney’s husband in the front yard, and when Courtney returned
for her phone, appellant “was told” to leave.
{¶40} Appellant returned to Heather Irwin’s property via a
shortcut through the woods. Appellant stated, “I opened the
door to the camper to find Nia Robinson on the floor of the
camper.” While appellant checked on Nia, Heather Irwin “comes
out of the room with a ball bat screaming some dumb sh*t, I
don’t even know what she’s saying. Swinging the ball bat,
hitting the ball bat, everything else. And while I’m trying to
get Nia shaken up Heather cracks me several times in the back
and the back of the head with a ball bat.” Appellant stated
that he “asked her several times not to and after doing it again
I stood up and I punched Heather right in the face.” Appellant
did not know what happened with the bat, but “the first thing I
did was grab a roll of paper towels, try to calm her down and
put it to her head because it was bleeding.” At that point,
Mary Robinson “was standing in the doorway, and I asked her I
said would you please f*cking help me with these two. And she
said, no, f*ck that sh*t, I’m calling the cops on them. And
took off on me. And she told me to get the f*ck off the
property because Pat didn’t want me there. Pat’s the owner of
[Cite as State v. Pennington, 2024-Ohio-5681.]
the property.”
{¶41} Appellant stated that he “was stressed the f*ck out,
[and] grabbed a full bottle of vodka by the door, walked around
in the field behind the camper and set down at the edge of the
woods” and “drank about half of it.” After he observed law
enforcement looking for him, appellant “hollered for them to let
them know where I was at.” Appellant explained that law
enforcement told him to come towards them, “but being dark and
me not being as much of a drinker drinking a half a bottle of
vodka last f*cking thing I was going to do was walk toward a
bunch of Athens County Sheriff’s Officers with guns.” Appellant
“yelled to let them know I was walking in the field.” Appellant
then laid down in the field and waited for officers “to come to
me.”
{¶42} Appellant testified that officers handcuffed and
transported him to the Athens County Sheriff’s Department where
two detectives interviewed him, but he did not remember much
because “I was lit [impaired]. I was gone.” Appellant stated
that when officers told him Sharpe had died, “it was tough, it
was very tough . . . because it was a friend’s dad and I’ve
known him my whole f*cking life. I didn’t believe it.”
[Cite as State v. Pennington, 2024-Ohio-5681.]
{¶43} On cross-examination, appellee reviewed appellant’s
convictions, which included multiple identity fraud and
receiving stolen property convictions. Appellant also claimed
that he did not believe his previous employer fired him for
stealing a credit card. Appellant did acknowledge that Sharpe
did not get up from the porch after the incident.
{¶44} Appellee asked appellant if he recalled a June 7, 2022
jail phone call with his mother in which he stated, “if anything
it was just a punch in the f*cking mouth and tell me to leave my
family out of it. That’s all I had planned.” Appellant
testified that he assaulted Sharpe “to defend myself.” In the
call, appellant stated, “I lost it, no f*cking way, I don’t
know, inner demon, I’ll have to pay for it the rest of my life.”
Appellant also acknowledged that he stated that he wished that
Heather Irwin “had to get thirty stitches instead of twelve”
because he “had a lot of hate toward that direction . . . after
it had happened . . . because I’d seen, I’d heard what she’d
done to Nia.”
{¶45} Appellant conceded that, after he watched his
interview with Deputy White, he realized he told White, “I could
have f*cking killed him.” Appellant also claimed that when he
walked to Courtney’s house to tell her what happened, he
[Cite as State v. Pennington, 2024-Ohio-5681.]
informed her that “I went to her Dad’s to talk to him because my
mother was getting custody of my child and I didn’t need no
drama or cops at my house. That’s what I said.” Appellant also
acknowledged that in his statement to Deputy White, he said that
Blaine Sharpe had called police “up to [his] parent’s house,”
and his parents are his “ride or die” and “it’s effecting [sic.]
your kid’s custody.” Appellee asked appellant whether he stated
during the interview that Sharpe owed him $1,300 for
methamphetamine, and appellant replied that he had “no clue why”
he said that because he has “been clean for two months.”
Appellant also claimed that Sharpe “beat his ex-father-in-law
[Nia’s father] with a chunk of firewood.” Appellee also asked
appellant if he told law enforcement that he visited the Sharpe
home that day because “Blaine had disrespected [him]” his whole
life, but appellant replied, “Not to my knowledge.”
{¶46} Appellant testified that when Sharpe put his hands
around his throat from behind him, appellant “punched two to
three” times “like a hammer fist,” and described it as “two of
the gayest punches.” Appellant claimed that after Sharpe fell,
he did not continue to beat him, but instead walked to Sharpe’s
daughter’s house. When asked if he broke his hand when he
struck Sharpe, appellant claimed that the injury to his hand
[Cite as State v. Pennington, 2024-Ohio-5681.]
occurred when Heather Irwin struck him with a bat on his hand,
back, and several other places. Appellant also acknowledged
that he told the Sheriff’s Office that he “beat the living f*ck
out of [Sharpe].” Appellant maintained that law enforcement did
not interview him about the Irwin and Robinson assaults.
Appellant also acknowledged that he told officers he did not
return to the camper after the Sharpe incident. Appellant
stated, “[t]here’s no way I hit that man hard enough to do that.
There’s not.” Finally, appellant acknowledged that on June 13,
2021, his probation conditions did not permit him to consume
alcohol.
{¶47} After deliberation, the jury found appellant guilty of
(1) one count of murder in violation of R.C. 2903.02(B), an
unclassified felony, (2) one count of involuntary manslaughter
in violation of R.C. 2903.04(A), a first-degree felony, (3) one
count of felonious assault in violation of R.C. 2903.11(A)(1), a
second-degree felony (Blaine Sharpe), (4) one count of felonious
assault in violation of R.C. 2903.11(A)(2), a second-degree
felony (Heather Irwin), and (5) one count of breaking and
entering in violation of R.C. 2911.13(B), a fifth-degree felony.
The jury also found appellant not guilty of (1) one count of
burglary in violation of R.C. 2911.12(A)(2), a second-degree
felony (Count 3), and (2) one count of felonious assault in
[Cite as State v. Pennington, 2024-Ohio-5681.]
violation of R.C. 2903.11(A)(2), a second-degree felony (Count
6, Nia Robinson).
{¶48} After the trial court considered the pertinent
sentencing statutes and factors, the court sentenced appellant
to (1) serve a maximum term of 15-years to life on count one
murder, (2) serve an 8-12 year prison term for count five
felonious assault, consecutive with count one, (3) serve a 12-
month prison term for count seven, concurrently with count one
(merged) and count five, (4) serve an 18-month to 5-year
postrelease control term, (5) reimburse appellee for processing,
supervision, confinement, indigent attorney fees and prosecution
costs, (6) serve the term in this case consecutive to
appellant’s prison term in case numbers 18CR0370, 18CR0484 and
18CR0537, (7) register as a violent offender pursuant to R.C.
2930.41, and (8) pay costs. Thus, the trial court sentenced
appellant to serve a total aggregate prison term of 23 years to
life. The trial court also merged Counts 1, 2, and 4, and
appellee elected to sentence on Count 1. This appeal followed.
I.
{¶49} In his first assignment of error, appellant asserts
that the trial court violated his rights under the United States
and Ohio Constitutions when it improperly admitted a 911 call.
[Cite as State v. Pennington, 2024-Ohio-5681.]
Appellant contends that the danger of unfair prejudice
outweighed the limited probative value of Cindy Sharpe’s 911
call. Appellee, however, argues that the 911 call (1) is a
nearly contemporaneous recording of the lifesaving efforts
undertaken to reverse the damage appellant caused to the victim,
(2) shows the level of harm caused, (3) is probative of the
cause of death, and (4) shows that Courtney Brown and Cindy
Sharpe’s efforts to save the victim’s life undercut appellant’s
claims that something beyond appellant’s assault caused the
victim’s death.
{¶50} Generally, “ ‘[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.’
” State v. Dean, 2015-Ohio-4347, ¶ 91, quoting State v. Sage,
31
Ohio St.3d 173 (1987), paragraph two of the syllabus.
Consequently, “a reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that created
material prejudice.” State v. Morris,
2012-Ohio-2407, ¶ 14,
quoting State v. Diar,
2008-Ohio-6266, ¶ 66; accord State v.
Adams,
2015-Ohio-3954, ¶ 198, citing Sage,
31 Ohio St.3d at 182
(1987). “An abuse of discretion is more than a mere error of
law or judgment.” State v. Thompson,
2014-Ohio-4751, ¶ 91;
accord State v. Johnson,
2015-Ohio-4903, ¶ 75. Instead, “ ‘[a]
[Cite as State v. Pennington,
2024-Ohio-5681.]
trial court abuses its discretion when it makes a decision that
is unreasonable, unconscionable, or arbitrary.’ ” State v.
Keenan,
2015-Ohio-2484, ¶ 7, quoting State v. Darmond, 2013-
Ohio-966, ¶ 34. An abuse of discretion includes a situation in
which a trial court did not engage in a “ ‘sound reasoning
process.’ ”
Morris, supra, at ¶ 14, quoting AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d
157, 161 (1990). Moreover, “[a]buse of discretion review is
deferential and does not permit an appellate court to simply
substitute its judgment for that of the trial court.” Darmond
at ¶ 34; State v. Russell,
2022-Ohio-1746, ¶ 76 (4th Dist.).
{¶51} As a general rule, all relevant evidence is
admissible. Evid.R. 402. Evid.R. 401 defines relevant evidence
as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Evid.R. 401 and Evid.R. 402. However, a trial court
must exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” Evid.R.
403. A trial court has broad discretion to determine whether to
exclude evidence under Evid.R. 403(A), and “ ‘an appellate court
[Cite as State v. Pennington, 2024-Ohio-5681.]
should not interfere absent a clear abuse of that discretion.’ ”
State v. Yarbrough,
2002-Ohio-2126, ¶ 40; accord
Russell, supra,
at ¶ 77.
{¶52} Evid.R. 403(A) “manifests a definite bias in favor of
the admission of relevant evidence, as the dangers associated
with the potentially inflammatory nature of the evidence must
substantially outweigh its probative value before the court
should reject its admission.” State v. White, 2004-Ohio-6005, ¶
50 (4th Dist.). Thus, “[w]hen determining whether the relevance
of evidence is outweighed by its prejudicial effects, the
evidence is viewed in a light most favorable to the proponent,
maximizing its probative value and minimizing any prejudicial
effect to the party opposing admission.” State v. Lakes, 2007-
Ohio-325, ¶ 22 (2nd Dist.).
{¶53} In Russell, 2022-Ohio-1746, we recognized that, to
some degree, all relevant evidence may be prejudicial because it
“tends to disprove a party's rendition of the facts” and, thus,
“necessarily harms that party's case.”
Id., citing State v.
Crotts,
2004-Ohio-6550, ¶ 23. However, Evid.R. 403(A) does not
“attempt to bar all prejudicial evidence.”
Crotts at ¶ 23.
Instead, the rules provide that only unfairly prejudicial
[Cite as State v. Pennington,
2024-Ohio-5681.]
evidence is excludable.
Id. “ ‘Evid.R. 403(A) speaks in terms
of unfair prejudice. Logically, all evidence presented by a
prosecutor is prejudicial, but not all evidence unfairly
prejudices a defendant. It is only the latter that Evid.R. 403
prohibits.’ ” State v. Skatzes,
2004-Ohio-6391, ¶ 107, quoting
State v. Wright,
48 Ohio St.3d 5, 8 (1990).
{¶54} The Supreme Court of Ohio has held that “ ‘[u]nfair
prejudice’ does “not mean the damage to a defendant's case that
results from the legitimate probative force of the evidence;
rather it refers to evidence which tends to suggest decision on
an improper basis.” ’ ” State v. Lang, 2011-Ohio-4215, ¶ 89,
quoting United States v. Bonds,
12 F.3d 540 (6th Cir. 1993).
Unfairly prejudicial evidence is evidence that “might result in
an improper basis for a jury decision.” Oberlin v. Akron Gen.
Med. Ctr.,
91 Ohio St.3d 169, 172 (2001), quoting
Weissenberger's Ohio Evidence (2000) 85–87, Section 403.3. It
is evidence that arouses the jury's emotions, that “ ‘evokes a
sense of horror,’ ” or that “ ‘appeals to an instinct to
punish.’ ”
Id. “ ‘Usually, although not always, unfairly
prejudicial evidence appeals to the jury's emotions rather than
intellect.’ ”
Id. Thus, “[u]nfavorable evidence is not
equivalent to unfairly prejudicial evidence.” State v. Bowman,
[Cite as State v. Pennington,
2024-Ohio-5681.]
144 Ohio App.3d 179, 185 (12th Dist.2001).
{¶55} In the case sub judice, appellant contends that
“almost nothing” in the 911 call tended to prove any fact of
consequence, and characterizes the call as “extremely emotional
and entirely irrelevant.” The approximately 20-minute call from
Blaine Sharpe’s spouse portrayed an emotional wife distraught
over her husband’s condition, evidence of the extraordinary
lifesaving measures Sharpe and Brown took to attempt to save the
victim, and identified appellant as the perpetrator.
{¶56} Although appellant challenges the 911 call under the
Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution and Article I, Section 16 of the Ohio Constitution,
the Eighth District Court of Appeals recently discussed the
nature of a 911 call with respect to the Confrontation Clause
and noted:
Statements a caller makes during a 911 call are often
found to be non-testimonial and are admissible if the
statements satisfy a hearsay exception. State v.
Jacinto, 2020-Ohio-3722,
155 N.E.3d 1056, ¶ 61 (8th
Dist.). This is because a 911 caller is typically
“speaking about events as they [are] actually happening”
and “[a]lthough one might call 911 to provide a narrative
report of a crime absent any imminent danger,” 911
callers are usually facing ongoing emergencies.
(Emphasis deleted.) Davis at 827, 126 S.Ct. 2266 (“A
911 call … and at least the initial interrogation
conducted in connection with a 911 call, is ordinarily
not designed primarily to ‘establis[h] or prov[e]’ some
past fact, but to describe current circumstances
[Cite as State v. Pennington, 2024-Ohio-5681.]
requiring police assistance.”). Under such
circumstances, the 911 caller is not testifying, the 911
caller is not acting as a witness and the statements of
the 911 caller are not testimonial in nature. Id. at
827-828, 126 S.Ct. 2266.
{¶57} Moreover, in State v. Shine-Johnson, 2018-Ohio-3347
(10th Dist.), the prosecutor played for the jury a daughter’s
911 call, which contained the statement, “ ‘[o]h, my God’
multiple times, that she was scared, and that there was too much
blood, ‘[t]his is my dad’ and ‘this is my daddy,’ pleads for
medics to hurry, and crying.” Id. at ¶ 105. The defendant
argued that the State played the call only to appeal to the
jury's emotions. The Tenth District concluded that the
defendant did not show that the prosecutor improperly sought to
incite emotion or sympathy when it played the 911 call.
Instead, the court determined that its use “was reasonably
calculated to assist the jury in understanding the sequence of
events and in evaluating the evidence.” Id. at ¶ 107.
{¶58} Further, appellee highlights a recent Supreme Court of
Ohio case in which an officer’s body camera video showed his
arrival at the scene, approach to the victim’s house,
confirmation of the defendant’s location, initial communication
with the victim, safety check of the backyard, and participation
in moving two victim’s bodies to the front yard. State v.
[Cite as State v. Pennington, 2024-Ohio-5681.]
Nicholson,
2024-Ohio-604, ¶ 127. The footage also showed the
officer trying to speak to one victim and his attempts to
perform cardiopulmonary resuscitation (CPR) for about five
minutes. The video showed the second victim “twisting and
moaning in pain,” and jurors could hear an officer in the
background state that Nicholson “was beating [a third victim] up
and her kids came home,” that “he opened fire on them,” and that
victim had “marks all over her.” Id. at ¶ 128. Later, the
officer stated that Nicholson said he would shoot any officer
who responded to the scene. Id. The court noted that the video
“shows part of M.L.’s torso up close, including the exit wounds
in his chest. Combined with the audio, the footage of the CPR
efforts is emotionally taxing to watch because Polanco is
audibly distraught in the background.” Id. at ¶ 129.
{¶59} The Nicholson court described the body-camera video as
relevant and highly probative of the nature and circumstances of
the murders. The court noted that the footage “depicted the
scene as it was found by the earliest responding officers,
including the vital statuses and location of the murder
victims.” Id. at ¶ 131. Thus, the court affirmed the trial
court’s decision to admit the video footage.
[Cite as State v. Pennington, 2024-Ohio-5681.]
{¶60} In the case sub judice, the distraught wife’s sobs
could characterize the 911 call as “emotionally taxing.”
However, unlike Nicholson, this case involved no video.
Moreover, as appellee notes, appellant cites no authority to
support this argument in similar circumstances. At trial,
appellee asserted that, because appellant challenged the cause
of death, the 911 call is “the best evidence as to what was
going on at the Sargent Road address from the time that they
discovered him until the time that EMS arrived.” The trial
court overruled appellant’s objection and allowed appellee to
play Sharpe’s entire 911 call. As the Nicholson court recently
held, “[t]he state is entitled to offer evidence showing the
cause of death, even if the cause of death is uncontested, to
give the jury an ‘appreciation of the nature and circumstances
of the crimes.’ ” Id. at ¶ 130, quoting State v. Evans, 63 Ohio
St.3d 231, 251 (1992).
{¶61} In addition, appellant asserts that the 911 call is
not harmless beyond a reasonable doubt when the other evidence
of guilt is “less than overwhelming.” As appellee argues,
however, appellant cited no authority to indicate that any court
reversed a conviction based on an erroneous admissibility
decision similar to that now before this court. Moreover, in
[Cite as State v. Pennington, 2024-Ohio-5681.]
the case sub judice the evidence of guilt is hardly “less than
overwhelming.” Here, multiple witnesses identified appellant as
the person who assaulted Blaine Sharpe. Appellant, himself,
told Sharpe’s daughter that he “had just beat the pulp out of
[her] Dad.” Further, appellant stated in various law
enforcement interviews that he “went over to Blaine Sharpe’s
house and I beat the living f*ck out of that guy,” “I went there
and I hit him several times. Yes, I punched him in the face
three times . . . See my wrists. I punched him. Then I went to
the house right beside him and I said Courtney, which is his
daughter. I said, ‘Courtney, your dad f*cked me out of a lot of
money and I hurt him on his porch.” In addition, in recorded
jail calls to his mother, appellant stated, “I lost it, no
f*cking way, I don’t know, inner demon, I’ll have to pay for it
the rest of my life.” Further, appellant had blood on his
stomach upon his arrest.
{¶62} Therefore, after our review, we find no abuse of
discretion when the trial court admitted into evidence Cindy
Sharpe’s 911 call, and we overrule appellant’s first assignment
of error.
II.
{¶63} In his second assignment of error, appellant asserts
[Cite as State v. Pennington, 2024-Ohio-5681.]
that the trial court violated his cross-examination rights when
it limited counsel’s cross-examination of a victim that the
court permitted to remain in the courtroom during other
testimony pursuant to Marsy’s Law.
{¶64} Evid.R. 615(A) provides that “at the request of a
party the court shall order witnesses excluded so that they
cannot hear the testimony of other witnesses . . .” However,
Evid.R. 605(B)(4) states that “an alleged victim of a charged
offense” may not be excluded “to the extent that the alleged
victim’s presence is authorized” by statute or the Ohio
Constitution.
{¶65} Article I, Section 10a of the Ohio Constitution,
commonly referred to as Marsy's Law, expanded the rights
afforded to victims of crime. Marsy's Law is intended “[t]o
secure for victims justice and due process throughout the
criminal and juvenile justice systems.” It affords crime
victims certain rights that are to be “protected in a manner no
less vigorous than the rights afforded to the accused .....”
Ohio Constitution, Article I, Section 10a (A). These rights
include, but are not limited to, the right “to be treated with
fairness and respect for the victim's safety, dignity and
privacy,” as well as the right “to be heard in any public
[Cite as State v. Pennington, 2024-Ohio-5681.]
proceeding involving release, plea, sentencing, disposition, or
parole, or in any public proceeding in which a right of the
victim is implicated ....”
Id., Ohio Constitution, Article I,
Section 10a (A)(3); State v. Norvell,
2024-Ohio-4443, ¶ 28 (12th
Dist.), and “reasonable and timely notice of all public
proceedings involving the criminal offense or delinquent act
against the victim, and to be present at all such proceedings.”
Id., Ohio Constitution, Article I, Section 10a (A)(2) and (3).
{¶66} In pertinent part, Marsy's Law provides victims the
right, “upon request, to reasonable and timely notice of all
public proceedings involving the criminal offense … and to
be present at all such proceedings.” Ohio Constitution, Article
I, Section 10a(A)(2). “While Marsy's Law incorporates the
victim's right to be present at trial into the Ohio
Constitution, ‘the notion that a victim may remain present
during the trial proceedings is not new.’ ” Grandview Hts. v.
B.S.H., 2023-Ohio-940, ¶ 9 (10th Dist.), quoting Cleveland v.
Alrefaei,
2020-Ohio-5009, ¶ 57 (8th Dist.); State v. Davis,
2023-Ohio-3012, ¶ 7 (3d Dist.). R.C. 2930.09, as effective at
the time of the trial, states that “[a] victim . . . in a case .
. . have the right to be present, during any public proceeding,
other than a grand jury proceeding.”
[Cite as State v. Pennington,
2024-Ohio-5681.]
{¶67} Generally, a decision to allow a victim to remain in
the courtroom during a trial is left to the trial court’s
discretion. The burden is on the defendant to show that the
alleged victim’s presence compromised the defendant’s right to a
fair trial. Alrefaei, supra, at ¶ 60; State v. McConnaughey,
2021-Ohio-3320, ¶ 26 (1st Dist.).
{¶68} In the case sub judice, at the start of appellant’s
trial, appellant requested a separation of witnesses. The trial
court, however, denied the motion as to three of the four
witnesses because Marsy’s Law entitled them to be present.
During Nia Robinson’s cross-examination, counsel told Robinson
to “speak up.” After Robinson agreed, counsel asked, “Do you
remember me telling Heather [Irwin] that?” Robinson replied, “I
do.” Counsel then said, “Ok and that’s because you’ve been in
the room the entire time and seen all the testimony?” Appellee
objected and noted during the bench conference that Robinson
“has a Constitutional right to be present. And it’s not right
that Cross Examination of the fact that she’s aloud [sic.] to be
in a room.” Appellee suggested that the court inform the jury
that the victim “has a Constitutional right to be in the room
like the Defendant does.” In response, counsel stated, “We
needed the statement since we opened the door on this line of
[Cite as State v. Pennington, 2024-Ohio-5681.]
questioning by allowing that they have been in the Courtroom.”
The trial court sustained the objection, and counsel continued
his thorough cross-examination of Robinson, which continued for
23 pages of the transcript.
{¶69} Appellant claims that this action violated his right
to cross-examination under the Sixth Amendment to the United
States Constitution through the Fourteenth Amendment and Article
I, Section 10 of the Ohio Constitution. Appellant contends that
although Marsy’s Law grants victims a state constitutional right
to be present during all proceedings, “that does not trump a
defendant’s federal constitutional rights.” Appellant contends
that, without respect to Marsy’s Law, trial courts are required
to exclude the victim if the victim’s presence would deprive the
defendant of a fair trial. Appellant cites R.C. 2930.09,
Alrefai, and McConnaughey. Appellant contends that a victim’s
right to be present under Marsy’s Law does not insulate them
from cross-examination on what they heard and how they may be
tailoring their testimony to fit the other evidence.
{¶70} In the case sub judice, we find nothing in the record
to show that the trial court failed to consider appellant’s
right to a fair trial. Moreover, even if we accept for purposes
of argument that the trial court may have erred, we believe that
[Cite as State v. Pennington, 2024-Ohio-5681.]
under the circumstances present here that it is harmless because
appellant failed to demonstrate prejudice. Courts have held
that “for a defendant to show that a victim’s presence would
result in an unfair trial, [the defendant] must present
particularized evidence that the victim’s testimony will be so
affected by the victim’s presence during the testimony of the
other witnesses that [the defendant’s] right to a fair trial
would be violated. General assertions that it is possible are
insufficient.”
McConnaughey at ¶ 29, quoting State v. Maley,
2013-Ohio-3452, ¶7; accord
Alrefaei at ¶ 63.
{¶71} In McConnaughey, the court held that, because the
victims’ testimony did not dramatically differ from their
statements to police, the defendant received a fair trial.
Moreover, defense counsel cross-examined both victims to
determine the veracity of each victim’s testimony. Id. at ¶ 30.
Thus, the court held that McConnaughey did not demonstrate the
necessity to exclude victims and it could not find the trial
court’s decision to allow the victims to remain in the courtroom
to be so arbitrary, unreasonable or unconscionable as to
constitute an abuse of discretion. Id. Similarly, we conclude
that the trial court’s decision in the instant case to allow Nia
Robinson to remain present in the courtroom during the trial and
[Cite as State v. Pennington, 2024-Ohio-5681.]
then testify is not so arbitrary, unreasonable or unconscionable
as to constitute an abuse of discretion.2
{¶72} In addition, appellant questions victim Heather
Irwin’s presence throughout the trial and the lack of cross-
examination regarding what she may have heard from other
witnesses. Appellant argues that this error is not harmless
beyond a reasonable doubt because (1) the evidence of guilt
relating to Irwin’s assault “was not overwhelming” because the
sole evidence came from Irwin, who had been drinking that day,
2
In State v. Montgomery, 2022-Ohio-2211, the Ohio Supreme
Court held that the designation of an alleged rape victim as the
state’s representative, and permitting the victim to sit at
counsel table throughout the trial, undermines the fairness of
the fact-finding process and erodes a defendant’s presumption of
innocence. However, the situation in the case sub judice
differs from Montgomery. Here, the witnesses remained in the
courtroom, but did not sit at counsel table. Nevertheless,
concerns certainly arise regarding the tension between the
rights of victims of crime and the rights of criminal defendants
to receive a fair trial. The long-standing practice of
separating witnesses, to prevent both the prosecution and
defense witnesses from hearing other witness testimony, and then
possibly adjusting or tailoring their testimony to conform the
testimony of other witnesses, does create a condition that could
undermine the fairness of a criminal trial. Consequently, the
practice of separating witnesses during a trial should not
necessarily be considered an affront to the rights of victims to
be involved in the criminal process. Moreover, witnesses who
have already testified will generally be permitted to remain in
the courtroom if they so choose. In the case sub judice,
however, the evidence adduced at trial is so overwhelming that
the jury’s verdict and the outcome of the trial would not
change.
[Cite as State v. Pennington,
2024-Ohio-5681.]
(2) officers found the baseball bat the following day and failed
to preserve any fingerprints or DNA to tie appellant, Irwin, or
Nia to the bat, (3) Irwin’s “story was contradicted by other
witnesses,” and (4) Nia’s testimony “was broadly supportive” of
Irwin and “echoed Heather’s claims” of appellant’s violence.
{¶73} First, we note that a detailed cross-examination of
Heather Irwin about what she may have heard during her presence
at trial seems pointless given that the jury could presume that
Irwin heard the same testimony they heard during the trial.
Moreover, appellee notes that appellant (1) did not object to
Irwin or Robinson’s presence during trial, (2) fails to
demonstrate how either victim’s testimony would have been
different had they been excluded from the courtroom during other
witness testimony, and (3) fails to establish how Marsy’s Law
limited cross-examination in a prejudicial manner.
{¶74} The Ohio Constitution allows victims to be present
during all stages of the proceeding and here we believe that
appellant failed to establish that he suffered any prejudice.
As for gauging inconsistencies between witnesses, “because a
trier of fact sees and hears the witnesses, appellate courts
court will also afford substantial deference to a trier of
fact's credibility determinations.” State v. Schroeder, 2019-
[Cite as State v. Pennington, 2024-Ohio-5681.]
Ohio-4136, ¶ 61 (4th Dist.); State v. Colonel,
2023-Ohio-3945, ¶
50-54 (4th Dist.); State v. Shepard,
2024-Ohio-1408, ¶ 37.
{¶75} In the case sub judice, appellant does not point to
any particularized evidence in the record to demonstrate that
the trial court’s action affected the jury or tainted their
verdict when it permitted Irwin and Robinson to be present and
testify at trial. Thus, we conclude that the trial court’s
decision to allow the victims to be present and testify is not
so arbitrary, unreasonable or unconscionable as to constitute an
abuse of discretion.
{¶76} Therefore, based on the foregoing reasons we overrule
appellant’s second assignment of error.
III.
{¶77} In his third assignment of error, appellant asserts
that appellee failed to present sufficient evidence to prove
beyond a reasonable doubt that appellant’s actions proximately
caused the victim’s death. In particular, appellant argues that
Blaine Sharpe’s death “was not a reasonably foreseeable
consequence” of the assault because of Blaine’s “severe heart
condition and intoxication.” Appellee, however, contends that
Sharpe “was not fragile, frail, elderly, or suffering a heart
attack,” nor did he “die of alcohol poisoning or a drug
[Cite as State v. Pennington, 2024-Ohio-5681.]
overdose,” and his clogged arteries did not bring about his
death.
{¶78} In general, a claim of insufficient evidence invokes a
due process concern and raises the question of whether the
evidence is legally sufficient to support the verdict as a
matter of law. State v. Schroeder, 2019-Ohio-4136, ¶ 59 (4th
Dist.), citing State v. Blanton,
2018-Ohio-1278, ¶ 13 (4th
Dist.); State v. Wickersham,
2015-Ohio-2756, ¶ 22 (4th Dist.);
State v. Thompkins,
78 Ohio St.3d 380 (1997). When reviewing
the sufficiency of the evidence, adequacy is the focus; that is,
whether the evidence, if believed, could reasonably support a
finding of guilt beyond a reasonable doubt. Thompkins,
syllabus.
{¶79} The standard of review for an appellate court in an
evidence sufficiency inquiry is whether, after viewing the
probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier
of fact could have found all the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); State v. Jenks,
61 Ohio St.3d 259, 273
(1991); State v. Beasley,
2018-Ohio-493, ¶ 207. Further, an
assignment of error based on sufficiency of the evidence
[Cite as State v. Pennington,
2024-Ohio-5681.]
challenges the state's prima facie case's legal adequacy, not
its rational persuasiveness. State v. Anderson,
2019-Ohio-395,
¶ 13 (4th Dist.). Therefore, when an appellate court reviews a
sufficiency of the evidence claim, the court must construe the
evidence in a light most favorable to the prosecution. State v.
Dunn,
2017-Ohio-518, ¶ 13 (4th Dist.); Wickersham, supra, ¶ 23;
State v. Hill,
75 Ohio St.3d 195, 205 (1996). Consequently, a
reviewing court will not overturn a conviction on a sufficiency
of the evidence claim unless reasonable minds cannot reach the
conclusion that the trier of fact did. State v. Tibbetts,
92
Ohio St.3d 146, 162 (2001).
{¶80} In the case sub judice, in addition to one count of
involuntary manslaughter, two counts of felonious assault, and
one count of breaking and entering, the jury found appellant
guilty of felony murder in violation of R.C. 2903.02(B), which
provides: “No person shall cause the death of another as a
proximate result of the offender's committing or attempting to
commit an offense of violence that is a felony of the first or
second degree and that is not [voluntary or involuntary
manslaughter].” Felonious assault, R.C. 2903.11, can serve as a
predicate offense for a felony-murder charge. A person commits
felonious assault when one “knowingly” causes “serious physical
[Cite as State v. Pennington, 2024-Ohio-5681.]
harm to another. . .” R.C. 2903.11(A)(1). “[T]aken together, a
person commits felony murder with a felonious-assault predicate
when he or she knowingly causes serious physical harm to another
and that conduct is the proximate cause of another's death.”
State v. Owens,
2020-Ohio-4616, ¶ 9.
{¶81} Appellant contends that appellee failed to present
sufficient evidence to show that appellant’s actions proximately
caused Sharpe’s death. In particular, appellant argues that no
evidence established that appellant knew about Sharpe’s severe
heart condition and intoxication and, from appellant’s
viewpoint, “Blaine was a perfectly healthy person who should not
have died from a punch to the head.” Appellant cites State v.
Smith, 2007-Ohio-1884 (4th Dist) in support of his argument. In
Smith, the victim, a person with diabetes, died after Smith
struck him once in the head, and the victim stopped taking his
medication. Id. at ¶ 1. We held:
Prior to death, his blood sugar levels were extremely
elevated and his bowels had become necrotic. Thus, Smith
contends unforeseeable intervening events caused Biser's
death. However, based on the testimony from the State's
two expert witnesses, a reasonable juror could conclude
that Smith's punch and Biser's resulting fall damaged
the frontal lobes of Biser's brain. As a normal result
of these injuries, Biser became apathetic and
disinterested, which in turn, led to his failure to take
required medication, and ultimately his death. Biser's
lapse in attending to his own care was a response to
Smith's assault. Because it was neither unforeseeable
[Cite as State v. Pennington, 2024-Ohio-5681.]
nor abnormal, it cannot be an intervening cause that
broke the chain of legal causation stemming from the
assault.
Id.
In our view, Smith tends to support appellee’s position that
Sharpe’s death was a foreseeable, normal consequence of
appellant’s assault. In State v. Pinkerman,
2024-Ohio-1150 (4th
Dist.), we recently addressed causation as it relates to
involuntary manslaughter. We wrote:
In criminal cases, Ohio law generally defines “cause”
identically to the definition of “proximate cause” in
civil cases. See, e.g., State v. Emerson, 2016-Ohio-
8509, 78 N.E.3d 1199, ¶ 24 (2d Dist.). See also State
v. Jacobs, 8th Dist. Cuyahoga No. 51693, 1987 WL 10047,
*2 (Apr. 23, 1987)(“It is merely a matter of semantics
that criminal cases are ‘cause’ and ‘result’ and civil
cases use ‘proximate cause’ and ‘proximate result.’ They
mean the same thing. In fact, R.C. 2903.04 (Involuntary
Manslaughter) uses ‘proximate result’ to state the
offenses.”); State v. Tschuor, 3d Dist. Auglaize No. 2-
77-31, 1978 WL 215783, *2 (Oct. 17, 1978)(proximatecause theory of criminal liability is applicable
standard under Ohio's involuntary-manslaughter
statute); State v. Carpenter, 2019-Ohio-58,
128 N.E.3d
857, ¶ 51 (3d Dist.).
“ ‘The term “proximate result” in the involuntary
manslaughter statute involves two concepts: causation
and foreseeability.’ ” Potee, 2017-Ohio-2926,
90 N.E.3d
58, at ¶ 33, quoting State v. Hall, 12th Dist. No.
CA2015-11-022, 2017-Ohio-879, ¶ 71. In Brown, 3d Dist.
Hancock No. 5-17-19, 2018-Ohio-899, the court considered
the argument that sufficient evidence did not support an
involuntary manslaughter conviction based on a predicate
offense of corrupting another with drugs. The appellate
court concluded: “Since we have found Brown's arguments
[Cite as State v. Pennington, 2024-Ohio-5681.]
against his conviction for corrupting another with drugs
are without merit, his conviction for involuntary
manslaughter has a properly supported predicate
conviction and withstands the sufficiency of the
evidence analysis.” Id. at ¶ 30.
Pinkerman, supra, at ¶ 37-38.
{¶82} In Pinkerman, we cited the Third District’s analysis
in Carpenter:
There are several tests for actual causation, the most
common of which is the “but for” test; however, there
are circumstances under which the “but for” test is
inapplicable and an act or omission can be considered a
cause in fact if it was a “substantial” or “contributing”
factor in producing the result. See Hall at ¶ 72-73;
Emerson at ¶ 24; Burrage at 215, 134 S.Ct. 881;
Christman
at 755, 249 P.3d 680. See also State v. Wilson, 10th
Dist. Franklin No. 03AP-592, 2004-Ohio-2838,
2004 WL
1221748, ¶ 18 (“The injuries inflicted by the defendant
need not be the sole cause of death, as long as they
constitute a substantial factor in the death.”), citing
State v. Johnson, 60 Ohio App.2d 45, 52,
395 N.E.2d 368
(1st Dist.1977) (“In homicide cases involving the effect
of expert medical testimony as to the cause of death,
the general principle is that the injury need not be
proved to be the direct or sole cause of death, as long
as it started a chain of causation which resulted in or
substantially contributed to the death.”), aff'd, 56
Ohio St.2d 35, 40-41,
381 N.E.2d 637; Johnson, Cause-In-Fact After Burrage v. United States, 68 Fla.L.Rev.
1727, 1747 (2016) (highlighting Ohio as one of the
jurisdictions that does not follow the “but-for” test to
establish cause-in-fact causation), citing State v.
Phillips, 74 Ohio St.3d 72,
656 N.E.2d 643 (1995). “In
other words, a defendant can still be held criminally
responsible where the defendant's conduct combined with
other occurrences to jointly result in a legal injury.”
Hall at ¶ 72. See also Emerson at ¶ 24 (noting that “an
offender's criminal act does not have to be the sole
cause of harm”); State v. Dunham, 5th Dist. Richland No.
13CA26, 2014-Ohio-1042,
2014 WL 1340627, ¶ 48 (asserting
[Cite as State v. Pennington,
2024-Ohio-5681.]
that “there may be more than one proximate cause of an
injury” and, to satisfy the causal requirement, cause in
fact may be established by proof “that the conduct is a
substantial factor in bringing about the injury”).
The second component of causation—the legal or
“proximate” cause—refers to the foreseeability of the
result. See Katz, Martin, & Macke, Baldwin's Ohio
Practice, Criminal Law, Section 96:4 (3d Ed.2018). See
also Hall at ¶ 71; State v. Bacon, 6th Dist. Lucas No.
L-14-1112, 2016-Ohio-618,
2016 WL 698033, ¶ 83
(“Proximate cause has been defined as ‘ “a direct,
natural, reasonably foreseeable consequence, as opposed
to an extraordinary or surprising consequence, when
viewed in the light of ordinary experience.” ’ ”),
quoting State v. Burt, 8th Dist. Cuyahoga No. 99097,
2013-Ohio-3525,
2013 WL 4137378, ¶ 23, quoting State v.
Muntaser, 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809,
2003 WL 22455703, ¶¶ 26-27; Nere, 425 Ill.Dec. at 652,
115 N.E.3d 205,
2018 WL 4501039, at *7 (proximate cause
“means that the result that actually occurs ‘must be
enough similar to, and occur in a manner enough similar
to, the result or manner which the defendant intended
(in the case of crimes of intention), or the result or
manner which his reckless or negligent conduct created
a risk of happening (in the case of crimes of
recklessness and negligence) that the defendant may
fairly be held responsible for the actual result.’ ”),
quoting 1 LaFave at 630-31. A “ ‘defendant will be held
responsible for those foreseeable consequences which are
known to be, or should be known to be, within the scope
of risk created by his conduct.’ ” State v. Sabo, 3d
Dist. Union No. 14-09-33, 2010-Ohio-1261,
2010 WL
1173088, ¶ 25, quoting State v. Losey,
23 Ohio App.3d
93, 95,
491 N.E.2d 379 (10th Dist.1985). “ ‘[T]hat means
that death [or serious physical harm] reasonably could
be anticipated by an ordinarily prudent person as likely
to result under these or similar circumstances.’ ” Id.,
quoting Losey at 95, 491 N.E.2d 379.
Id. at ¶ 52-53.
{¶83} Morever, in State v. Johnson, 2014-Ohio-4443 (4th
[Cite as State v. Pennington,
2024-Ohio-5681.]
Dist.), we discussed the element of causation in the context of
independent intervening events. A jury found Johnson guilty of
felonious assault of a corrections officer, Meier. After being
transported for treatment, doctors diagnosed Meier with a head
injury, headaches, and sprains, and he required shoulder
surgery. At trial, Meier testified he had not been back to
work, could not sleep, and suffered debilitating headaches. On
appeal, Johnson argued that, although he hit the officer in the
face, “the injuries to the shoulder and head were not from the
punch but from the melee which ensued when other prison officers
got involved.”
{¶84} In Johnson, we observed that the defendant
unquestionably set the sequence of events into motion when he
punched the victim in the head. “The jury could have reasonably
inferred from those punches themselves that Johnson had caused
serious physical harm to Meier resulting in his closed head
injury and recurring debilitating headaches.” Johnson at ¶ 19.
Thus, we concluded that (1) Johnson “could have reasonably
foreseen that his unprovoked inmate attack on a prison guard
would result in the guard he assaulted and other guards
following prison protocol by attempting to restrain him by
[Cite as State v. Pennington, 2024-Ohio-5681.]
taking him down to the ground,” and (2) that the victim’s
injuries “were consequently reasonably foreseeable to Johnson
and they would not have occurred if Johnson had not started the
altercation by punching Meier.” Johnson at ¶ 20.
{¶85} “ ‘It is a fundamental principle that a person is
presumed to intend the natural, reasonable and probable
consequences of his voluntary acts.’ ” Johnson at ¶ 18, quoting
State v. Conway, 2006-Ohio-791, ¶ 143, quoting State v. Johnson,
56 Ohio St.3d 35, 39 (1978); State v. Champlin,
2014-Ohio-1345,
¶ 22 (11th Dist.); State v. Mynes,
2013-Ohio-4811, ¶ 17 (4th
Dist.). “[T]he jury, unable to enter the mind of another, is
required to consider common sense, causal probabilities in
considering whether the defendant acted ‘knowingly.’ ” State v.
Kelly,
2012-Ohio-523, ¶ 23 (11th Dist.). See also Underwood,
2024-Ohio-2273, ¶ 91 (4th Dist.) (although pathologist observed
effects of aspiration pneumonia in the victim’s lungs,
pathologist opined that blunt force injury to victim’s head
caused his death because “there were no independent intervening
causes of death after the traumatic brain injury.”); State v.
Jennings,
2009-Ohio-6840, ¶ 51 (10th Dist.)(victim’s death
reasonably foreseeable consequence of defendant's aggravated
robbery offense).
[Cite as State v. Pennington,
2024-Ohio-5681.]
{¶86} In the case sub judice, Forensic Pathologist Dr. Susan
Brown testified that the victim’s cause of death “was blunt
force trauma of the head with arteriosclerotic cardiovascular
disease and ethanol intoxication contributing.” Dr. Brown
explained, “[t]he initiating event of his death is his head
trauma. And that coupled with alcohol in his system can cause
apnea or it causes you to stop breathing. And that makes your
heart more susceptible if you all ready have coronary heart
disease to have cardiac arrest.” Brown emphasized, however,
that appellant’s “death is not due to a drug overdose.”
Further, Brown clarified that the arteriosclerotic
cardiovascular disease contributed to Sharpe’s death “only when
it’s coupled with the head trauma. So again the head trauma is
the initiating event. He is alive and well prior to having head
trauma. It’s only with the head trauma coupled with these other
issues, his heart disease and having alcohol in his system that
he dies.” When asked, “so but for the blunt force trauma to the
head those contributing factors would not have led to the death
of Blaine Sharpe?,” Brown replied, “Not on that day.”
{¶87} Appellant contends that some case authority requires a
defendant to have prior “actual notice” of the underlying
conditions that ultimately contribute to the victim’s death, and
[Cite as State v. Pennington, 2024-Ohio-5681.]
cites State v. Nosis,
22 Ohio App.2d 16 (9th Dist. 1969).
However, in Nosis the defendant approached the victim’s window
during a road rage incident and “wanted him to fight.” The
victim’s wife told the defendant to leave her husband alone
because he “had a bad heart.” After the defendant followed the
couple several miles to their home and approached and cursed at
the victim a second time, the victim also told the defendant
that he had a bad heart. While the victim’s wife ran inside to
call for help, she looked out and saw her husband lying in the
driveway after he suffered a heart attack.
Id. at 17-18. The
victim’s doctor testified that the victim suffered from
arteriosclerotic heart disease and he advised him to retire.
Further, the doctor testified that these events “with reasonable
certainty were responsible for” the victim’s death.”
Id. at 19-
20. The court upheld the manslaughter conviction.
Id. In our
view, Nosis focused on proximate cause, not whether the
defendant had prior notice of the victim’s health, and held that
sufficient evidence supported the conclusion that the defendant
“assaulted the deceased, in violation of Section 2901.25,
Revised Code, and that such assault proximately caused the death
of the deceased.”
Id. at 20.
{¶88} In the case sub judice, the statute contemplates a
[Cite as State v. Pennington, 2024-Ohio-5681.]
proximate cause theory and the trial court correctly instructed
the jury on causation as follows: “Cause is an essential element
of the offense of felonious assault. Cause is an act which
directly produces the serious physical harm and without which it
would not have occurred,” and the jury characterized Sharpe’s
death as a reasonably foreseeable consequence of the events
appellant set into motion on June 13, 2021.
{¶89} After our review of the probative evidence, along with
the inferences reasonably drawn therefrom in a light most
favorable to the prosecution, we believe that appellee adduced
sufficient evidence, if believed, to prove each element of the
offense and support appellant's felony murder conviction.
Consequently, we overrule appellant’s third assignment of error.
IV.
{¶90} In his fourth assignment of error, appellant asserts
that the weight of the evidence did not support beyond a
reasonable doubt that appellant’s assault proximately caused the
victim’s felony murder. Specifically, appellant contends that
because appellee failed to prove that appellant knew about the
victim’s severe heart condition and intoxication, the weight of
the evidence did not support his felony murder conviction.
Appellee asserts that the beating appellant gave the victim is
[Cite as State v. Pennington, 2024-Ohio-5681.]
not required to be the exclusive cause of death, only that the
victim dies as a “proximate result” of the beating.
{¶91} After a court of appeals determines that sufficient
evidence supports a trial court's judgment, that court may
nevertheless conclude that a judgment is against the weight of
the evidence. Dunn, supra,2017-Ohio-518 at ¶ 15; Wickersham,
supra,
2015-Ohio-2756 at ¶ 24;
Thompkins, supra,78 Ohio St.3d
387. “ ‘Weight of the evidence concerns “the inclination of the
greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden
of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of
credible evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” ’ ”
Wickersham at ¶
24, quoting Eastley v. Volkman,
2012-Ohio-2179, ¶ 12, quoting
Thompkins at 387, quoting Black's Law Dictionary 1594 (6th
Ed.1990).
{¶92} When an appellate court considers a claim that a
conviction is against the manifest weight of the evidence, the
court must dutifully examine the entire record, weigh the
[Cite as State v. Pennington, 2024-Ohio-5681.]
evidence, and consider witness credibility. State v. Martin,
20
Ohio App.3d 172, 175 (1st Dist.1983). However, the reviewing
court must remember that credibility generally is an issue for
the trier of fact to resolve. State v. Schroeder, 2019-Ohio-
4136, ¶ 61 (4th Dist.;
Dunn at ¶ 16;
Wickersham at ¶ 25.
Because the trier of fact sees and hears the witnesses, an
appellate court will afford substantial deference to a trier of
fact's credibility determinations.
Schroeder at ¶ 62. The jury
has the benefit of seeing witnesses testify, observing facial
expressions and body language, hearing voice inflections, and
discerning qualities such as hesitancy, equivocation, and
candor. State v. Fell,
2012-Ohio-616, ¶ 14 (6th Dist.). An
appellate court may reverse a conviction if the trier of fact
clearly lost its way in resolving conflicts in the evidence and
created a manifest miscarriage of justice. State v. Benge,
2021-Ohio-152, ¶ 28 (4th Dist.).
{¶93} Again, murder is defined in this particular case as:
“No person shall cause the death of another as a proximate
result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second
degree and that is not a violation of section 2903.03 or 2903.04
of the Revised Code.” R.C. 2903.02(B). Appellant contends
[Cite as State v. Pennington, 2024-Ohio-5681.]
that, because appellee failed to prove that he knew about the
victim’s severe heart condition and intoxication, his murder
conviction is against the manifest weight of the evidence.
However, as appellee points out, the forensic pathologist
testified that (1) the victim received nine distinct injuries to
his head, (2) the cause of death was blunt force trauma to the
head, and (3) but for the blunt force trauma, the contributing
factors would not have led to the victim’s death that day.
Moreover, appellee adduced testimony from the victim’s daughter
that, after appellant beat the victim, he stopped at the
victim’s daughter’s home and told her, “he just beat the pulp
out of [her] Dad,” appellee told Detective Fick, “So I just went
over to Blaine Sharpe’s house and I beat the living f*ck out of
that guy,” and “I went there and I hit him several times...
punched him in the face three times... went to the house right
beside him and I said Courtney, which is his daughter. I said
Courtney, your dad f*cked me out of a lot of money and I hurt
him on his porch.” Finally, appellant stated in a recorded jail
call to his mother, “I lost it, no f*cking way, I don’t know,
inner demon, I’ll have to pay for it the rest of my life.”
{¶94} After we consider all the evidence adduced at trial,
we believe that a rational jury could have considered this
[Cite as State v. Pennington, 2024-Ohio-5681.]
evidence and found, beyond a reasonable doubt, that appellant’s
felonious assault proximately caused Sharpe’s death,
notwithstanding other medical conditions or factors.
Consequently, we conclude that the jury did not clearly lose its
way and create a manifest miscarriage of justice. Thus, in the
case sub judice we conclude that appellee presented ample,
competent credible evidence that appellant caused the victim’s
death as a proximate result of his assault.
{¶95} Therefore, we conclude that appellant’s murder
conviction is not against the manifest weight of the evidence
and we overrule appellant’s fourth assignment of error.
V.
{¶96} In his fifth assignment of error, appellant asserts
that the weight of the evidence did not support his murder
conviction on the issue of self-defense. In particular,
appellant argues that, although the trial court properly
instructed the jury that appellee has the burden to disprove
self-defense beyond a reasonable doubt, the jury lost its way in
rejecting self-defense. Appellant claims that his testimony
“covered every element of self defense,” and asserts that he
testified that he went to the victim’s home to merely “talk with
him,” but Sharpe “came out and grabbed him around the neck,” and
[Cite as State v. Pennington, 2024-Ohio-5681.]
appellant “punched him a couple of times to get him off.”
Appellant contends that he was not at fault in creating the
situation “because Blaine jumped him,” and that “no evidence
undermined [his] testimony.”
{¶97} However, as appellee observes, appellant is the only
witness who supported the self-defense claim. Further, appellee
asserts that a “reviewing court is not required to accept as
true the incredible; whether the evidence is uncontradicted;
whether a witness was impeached; what was not proved; the
certainty of the evidence; the reliability of the evidence;
whether a witness’ testimony is self-serving; whether the
evidence is vague, uncertain, conflicting or fragmentary.”
State v. Mattison, 23 Ohio App.3d 10 (1985).
{¶98} In the case at bar, the jury chose to disbelieve
appellant’s testimony that he did not intend to harm the 59-
year-old victim and that he acted only in self-defense.
However, as appellee points out, appellant’s statements on
recorded jail calls contradict appellant’s own testimony and his
theory of self-defense. Appellant stated on one call to his
mother, “I was just going there to punch him in the . . .
mouth.” He also described his actions to law enforcement as
“hammer fist” blows to the victim’s head.
[Cite as State v. Pennington, 2024-Ohio-5681.]
{¶99} Thus, after we consider all the evidence adduced at
trial, we believe that a rational jury could have rejected
appellant’s self-defense theory. As noted above, appellee
presented ample, competent credible evidence that appellant
caused the victim’s death as a proximate result of his assault.
{¶100} Consequently, based upon the foregoing reasons we
conclude that the jury did not clearly lose its way and create a
manifest miscarriage of justice. Thus, we overrule appellant’s
fifth assignment of error.
VI.
{¶101} In his final assignment of error, appellant asserts
that the weight of the evidence did not support his felonious
assault of Heather Irwin. Specifically, appellant contends that
regardless of the statutory element, (1) the only evidence
appellee adduced to support this felonious assault count
included Irwin’s testimony, (2) Irwin “had been drinking vodka
and smoking marijuana,” and (3) other witness testimony
contradicted Irwin’s story.
{¶102} As noted above, in light of the evidence analysis this
court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses,
and determine whether, in resolving conflicts in the evidence,
[Cite as State v. Pennington, 2024-Ohio-5681.]
the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
Benge, supra, at ¶ 28.
{¶103} In the case sub judice, while appellant attempted to
minimize his actions towards Heather Irwin, Irwin testified that
(1) she overheard appellant say “something about avenging
[Nia’s] father,” (2) appellant returned to her camper, grabbed
Nia’s hair, “drag[ged] her and punch[ed]her,” (3) appellant beat
Nia and ripped at her clothes, and (4) when Irwin attempted to
protect Nia, appellant beat Irwin in the head several times with
her baseball bat. In addition, witness Mary Robinson testified
about the condition in which she found Irwin and Nia, and
Robinson testified that she required five stitches after the
attack.
{¶104} Generally, the trier of fact is best able “to view the
witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the
credibility of the proffered testimony.” State v. Wilson, 2007-
Ohio-2202, ¶ 24. The jury may note inconsistencies and resolve
them accordingly, “believ[ing] all, part, or none of a witness's
testimony.” State v. Raver, 2003-Ohio-958, ¶ 21 (10th Dist.),
citing State v. Antill,
176 Ohio St. 61, 67 (1964); State v.
[Cite as State v. Pennington,
2024-Ohio-5681.]
Nicholson,
2022-Ohio-374, ¶ 47 (8th Dist.); State v. Helton,
2019-Ohio-4399, ¶ 22 (12th Dist.) (“[t]he jury was free to
believe or disbelieve all, part, or none of the testimony
elicited from the state's witnesses in support of each
offense”); State v. Harner,
2020-Ohio-1184, ¶ 23 (12th
Dist.)(“[t]he jury, as the trier of fact, was free to believe
all, part, or none of [the] testimony of each witness”).
{¶105} By virtue of its verdict, the jury apparently chose to
believe Irwin’s testimony and discredit appellant’s testimony.
This determination is well within the jury's purview as the
trier of fact and ultimate fact finder. See State v. Graffius,
2019-Ohio-4961, ¶ 11 (7th Dist.) (“[t]he jury was free to
believe either version of the facts and, based on [a]ppellant's
conviction, apparently believed the victim”).
{¶106} Consequently, after we consider all the evidence, we
believe that a rational jury could have rejected appellant’s
testimony and believed the testimony concerning Heather Irwin’s
injury. As noted above, appellee presented ample, competent
credible evidence that appellant feloniously assaulted Irwin.
Consequently, we conclude that the jury did not clearly lose its
way and create a manifest miscarriage of justice.
{¶107} Accordingly, for all of the foregoing reasons, we
[Cite as State v. Pennington, 2024-Ohio-5681.]
overrule appellant’s final assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Pennington, 2024-Ohio-5681.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee
shall recover of appellant 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 Athens County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted by the trial court or this court, it
is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is
to allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period,
or the failure of the appellant to file a notice of appeal with
the Supreme Court of Ohio in the 45-day appeal period pursuant
to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of 60 days, the stay will
terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
[Cite as State v. Pennington, 2024-Ohio-5681.]
commences from the date of filing with the clerk.
