State v. Cooper, 2021 CA 0024

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWISE, J.
Citation2022 Ohio 4167
PartiesSTATE OF OHIO Plaintiff-Appellee v. K'MARR M. COOPER Defendant-Appellant
Docket Number2021 CA 0024
Decision Date22 November 2022

2022-Ohio-4167

STATE OF OHIO Plaintiff-Appellee
v.

K'MARR M. COOPER Defendant-Appellant

No. 2021 CA 0024

Court of Appeals of Ohio, Fifth District, Coshocton

November 22, 2022


Criminal Appeal from the Court of Common Pleas, Case No. 2020 CR 0096

JUDGMENT: Affirmed

For Plaintiff-Appellee JASON W. GIVEN PROSECUTING ATTORNEY BENJAMIN E. HALL

For Defendant-Appellant GEORGE URBAN

JUDGES: Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.

OPINION

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WISE, J.

{¶1} Appellant K'Marr Cooper appeals his conviction and sentence by the Coshocton County Court of Common Pleas. Appellee is State of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 21, 2020, Appellant was indicted on one count of Felonious Assault in violation of R.C. §2903.11(A)(1) and (D)(1) and one count of Kidnapping in violation of R.C. §2905.01 (A)(3) and (C)(1).

{¶3} Appellant was tried by a jury on August 24, 2021.

{¶4} At trial, Deputy Landis testified officers were dispatched on July 26, 2020, for a break-in and assault in response to a 9-1-1 call by C.C. at 3:00 a.m. Landis arrived on scene at about 3:30 a.m. Once on scene, Landis said C.C.'s injuries made it difficult to understand her. C.C. was living at the residence with Appellant and four children. One relative of the children was also present.

{¶5} Upon arrival, Deputy Landis observed C.C. to be severely injured. She was laying down on a couch on the back porch. Her face was swollen with dried blood on it. C.C. believed there were five children at the house when Deputy Landis arrived, but there were only two located by officers. Landis learned Appellant fled the scene with the other three children. The EMS then transported C.C. via Med-Flight to the trauma center.

{¶6} Deputy Landis was then advised that C.C.'s mother had the three missing children. They were dropped off at approximately 4:10 a.m. It is approximately a ten-minute drive from C.C.'s residence to her mother's residence, which left at least thirty minutes unaccounted for when Appellant had the children.

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{¶7} Next, C.C. testified that she had four children and one relative of the children staying at the residence. In the days leading up to the incident, Appellant and C.C. had been fighting, Appellant was constantly on edge and angry and accused C.C. of infidelity, drug use, and prostitution. Earlier that evening, Appellant, C.C, and the children had dinner at a park. After dinner, they returned to C.C.'s residence. At the residence Appellant told C.C. they need to talk and tried to get her to go to the bedroom. C.C. did not want to go to the bedroom out of fear, and insisted on going outside to smoke. Appellant followed her out. Outside, Appellant threw C.C. to the ground, got on top of her, and shoved a picture on his phone in her face. C.C. denied knowing the man in the picture, so Appellant slapped her in the face and hit her. Appellant told C.C. to go inside to the bedroom so her kids do not find her body outside.

{¶8} Appellant then guided her by the arm to the bedroom. Once in the bedroom, Appellant shut the door and slammed her on the bed by her throat. Appellant got on top of C.C. and kept hitting, choking, and slapping her asking her questions about a man she did not know. Appellant threatened to kill C.C. if she got off the bed.

{¶9} Appellant allowed her to use the bathroom but insisted the door stay open so he could monitor her. Appellant walked her past the living room where the children were to the bathroom. C.C. could not tell if the children were asleep or awake. C.C. then grabbed a hammer to defend herself, but Appellant sent her flying backward into the kitchen then repeatedly hit her.

{¶10} C.C. next remembers waking up in the bed and seeing nothing but red on her hands. C.C. told Appellant to call 911 because she felt like she was dying. She

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promised only to say what he wanted her to say. Appellant told her to say someone broke into the house.

{¶11} C.C. blacked out again and when she came to, the room was dark and the door was closed. C.C. had to crawl to a different bedroom to use a phone to call 911. She said on the 911 call she did not say what Appellant did because she did not know if he was still in the house or not.

{¶12} C.C. testified Captain Bryant was the first officer she spoke with after leaving the scene. At this point, she told Bryant, Appellant had assaulted her. C.C. had a concussion, swelling, and bruising from the assault. She had to undergo speech therapy, physical therapy, and concussion therapy.

{¶13} A.K., C.C.'s mother testified she was awakened at 4:01 a.m. by pounding at her door. It was her grandkids who entered her home talking over each other, and no adult was accompanying them. One child said, James King had a gun at C.C.'s home. The children then told her that Appellant had dropped them off.

{¶14} When A.K. tried to head to the crime scene, Appellant approached the car and yelled that James King did everything.

{¶15} James King testified he has known Appellant for about ten years. On July 24, 2020, Mr. King met Appellant at a park. Appellant accused Mr. King of having a relationship with C.C, and the conversation got heated. After Appellant calmed down, the two parted.

{¶16} On the evening of the incident, Appellant texted Mr. King attempting to get him to come over to C.C.'s house. Mr. King refused. The texts continued until 2:00 a.m. on July 26, 2020. Mr. King then denied having any type of relationship with C.C.

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{¶17} In July of 2021, Mr. King received a letter from Appellant apologizing for blaming Mr. King for the attack. In the letter Appellant admitted to striking C.C.

{¶18} Captain Bryant then testified he arrived at the residence at 4:00 a.m. He entered the residence, and photographed the scene. He observed a table covered in Chinese food in front of the doorway to the basement. There was significant blood in C.C.'s bed on the sheets, bedspread, mattress, and pillows. He noted blood between the kitchen and living room. The physical evidence corroborated C.C.'s statement of events.

{¶19} Appellant was arrested the following day, July 27, 2020. He claimed someone else came through the basement, which was blocked by the table and Chinese food, and then assaulted C.C. Appellant then changed his story saying it was self-defense. Appellant eventually admitted to Captain Bryant he punched C.C. and choked her out because he thought she was cheating on him. Appellant also said Mr. King was waiting at the house to kill him, and "that he could feel it in his spirit." Appellant admitted to driving around with the children while C.C. was on the floor bleeding. Appellant's story kept changing from Mr. King did this, to an unidentified black male did this, to self-defense, to C.C. was in on a conspiracy to harm Appellant.

{¶20} Finally, N.C., one of the children, testified that Appellant shoved C.C. into the garage, then N.C. heard banging and shouting in C.C.'s bedroom.

{¶21} Appellant was found guilty of Counts 1 and 2.

{¶22} Appellant was sentenced to a term of seven to ten and a half years for Felonious Assault and ten to fifteen years for Kidnapping to be served consecutively.

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ASSIGNMENT OF ERROR

{¶23} Appellant filed a timely notice of appeal. He herein raises the following three Assignments of Error:

{¶24} "I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST THE APPELLANT AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY VIOLATED [sic] APPELLANT'S GUARANTEES OF DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION, AND THE CONVICTION MUST BE REVERSED.

{¶25} "II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6th AND 1 4th AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

{¶26} "III. THE APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE U.S. AND OHIO STATE CONSTITUTIONS WAS VIOLATED WHEN THE TRIAL COURT IMPOSED AN INDEFINITE SENTENCE PURSUANT TO THE REGAN TOKES ACT, THAT DOES NOT ALLOW FOR JUDICIAL DECISION MAKING AT THE TIME OF THE SENTENCE AND AT TIMES IN THE FUTURE."

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I.

{¶27} In Appellant's first Assignment of Error, Appellant argues his conviction is against the manifest weight of the evidence and is not supported by sufficient evidence. We disagree.

{¶28} Sufficiency of the evidence and manifest weight of the evidence are separate and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. Essentially, sufficiency is a test of adequacy. Id. A sufficiency of the evidence standard requires the appellate court to examine the evidence admitted at trial, in the light most favorable to the prosecution, to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259.

{¶29} In contrast to the sufficiency of the evidence analysis, when reviewing a weight of the evidence argument, the appellate court reviews the entire record, weighing the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts of evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387.

{¶30} R.C. §2903.11, in pertinent part, states:

(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another[.]
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(D)(1)(a) Whoever violates this section is guilty of felonious assault. Except as otherwise provided in this division or division (D)(1)(b) of this section,
...

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