State v. Davis, 2008 Ohio 2418 (Ohio App. 5/16/2008)
| Decision Date | 16 May 2008 |
| Docket Number | No. 2007-CA-00104.,2007-CA-00104. |
| Citation | 2008 Ohio 2418 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Michael R. Davis, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Earl L. Frost, Assistant Prosecuting Attorney, 20 S. Second St., 4th Floor, Newark, OH 43055, for Plaintiff-Appellee.
Christopher M. Cooper, 3055 Cleveland Ave., Columbus, OH 43224, for Defendant-Appellant.
Before: Hon. William B. Hoffman, P.J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.
{¶1} Defendant-appellant, Michael R. Davis, appeals from his conviction and sentence in the Licking County Court of Common Pleas on one count of Felonious Assault, a felony of the second degree, in violation of Ohio Revised Code Section 2903.11(A)(1), with a firearm specification in violation of R.C. 2941.145; one count of Escape, a felony of the second degree in violation of Ohio Revised Code Section 2921.34(A)(1); one count of Having Weapons While Under Disability, a felony of the third degree in violation of Ohio Revised Code Section 2923.13(A)(2); and one count of Unlawful Possession of a Dangerous Ordnance, a felony of the fifth degree in violation of Ohio Revised Code Section 2923.17(A). The plaintiff appellee is the State of Ohio.
{¶2} The Court will rely substantially on the pertinent procedural facts as presented by the appellant in his Brief, which the State, as stated in its response, generally accepts.
{¶3} On April 13, 2007, appellant was at the home of Christina Hartrum, where he sometimes resided, located in Licking County, Newark, Ohio. Present in the home were appellant, Christina Hartrum and Daniel Castle. On that day, Cathy Coleman came to visit Christina Hartrum from her home in Muskingum County, Ohio.
{¶4} Upon entering the home, Ms. Coleman noticed that the appellant and Christina were having an intense argument. According to Ms. Coleman, Christina was visibly upset and crying. Upon stating that they were going to leave, appellant became upset. Ms. Coleman testified that appellant told Christina that she was not allowed to leave the house. He informed Ms. Coleman that she was "nothing but a fucking bitch." He then told her to "get the fuck out of his house." (1T. at 138). As the women were attempting to leave the home, appellant retrieved a shotgun from underneath the couch. Appellant pointed the gun in Ms. Coleman's face and told her that he "was going to blow my fucking head off." (1T. at 141). Ms. Coleman ran to the front door; however, Christina, who has limited mobility, impeded her progress. While at the top of the porch steps, Ms. Coleman testified that she was pushed, "a full force slam into [her] back..." (1T. at 145). The push was with both hands. (Id.). She further testified that the appellant was right behind her as she was trying to get out of the door of the residence. (Id. at 144). After hitting the ground, Ms. Coleman looked back to see appellant "standing in the doorway." (Id. at 146).
{¶5} As a result of the fall, Ms. Coleman sustained an injury to her left leg and ankle. The fall resulted in fifteen fractures to the bone. (Id. at 156). Ms. Coleman testified that she underwent surgery to insert "plates, pins, rods and screws." (1T. at 155). Ms. Coleman was scheduled for a second surgery the day following her testimony in court. (Id. at 156-157). Further, she has a permanent scar. (Id.).
{¶6} Ms. Coleman testified that she observed appellant with two different weapons during the incident. Ms. Coleman testified that appellant threatened her with each of the weapons. (1T. at 151). She notified the 911 operator that there were guns in the house. (Id.). She further told the operator that appellant had a small one and a bigger one. (Id. at 151). Ms. Coleman testified that appellant had threatened her with the shotgun, which he had retrieved from underneath the couch. (Id. at 140). After falling to the ground, Ms. Coleman looked back to see appellant holding the smaller shotgun. (Id. at 152). Appellant held that weapon in Ms. Coleman's face. (Id. at 153).
{¶7} Ms. Coleman's 911 call was played during the trial. During the call a male voice, identified as appellant's, can be heard screaming that no guns were in the house and threatening the caller.
{¶8} Christina Hartum testified that appellant did not possess any firearms nor did he threaten anyone with a firearm during the events of April 13, 2007. However, in her written statement to the police given at the time of the incident, Ms. Hartum informed the police that appellant had assaulted both women as they attempted to flee the residence. At trial, Cristina Hartum testified that the police forged her written statement. (1T. at 239).
{¶9} Daniel Castle testified that the appellant did not possess a firearm that day nor did he threaten anybody with a firearm. Mr. Castle testified that he was present when Ms. Coleman arrived and that she never left the living room during her visit.
{¶10} Mr. Castle also testified that he was aware Ms. Coleman had called the police that day, the police were on their way, and that he was a witness to a crime. However, he chose to leave the residence before the police arrived. When asked what pressing matter caused him to leave the scene of the crime before the police had arrived, Mr. Castle testified that he had to till the dirt in his yard.
{¶11} The police responded to a domestic violence call to the residence of Christina Hartrum. Medical personnel were called to assist in treating Cathy Coleman, but she refused treatment.
{¶12} Christina Hartrum gave the police permission to search the residence. Inside the officers located a larger shotgun underneath the couch and a second smaller shotgun "pistol" was found under the kitchen sink. Both of the shotguns had been altered in such a manner as to meet the definition of a dangerous ordinance. (1T. at 186-187).
{¶13} Upon discovery of the weapons appellant was placed under arrest. Patrolman David Arndt testified that while the appellant was under detention, he was transported to the hospital due to complaints of chest pains. (1T. at 101-102). He also testified that while at the hospital the appellant ripped the EKG leads off his chest and ran out of the examination room in an attempt to escape from that detention. (1T. at 103-105). Patrolman Arndt explained that while attempting to escape, the appellant turned towards the officer, balled up his fist and pulled back as if to strike him. (1T. at 106). Patrolman Arndt testified that he deployed his taser device, which subdued the appellant. (T. at 106-107).
{¶14} The jury returned a verdict finding appellant guilty on all counts. The appellant was sentenced as follows: Count 1: two (2) years; Firearm Specification: mandatory three (3) years; Count 2: three (3) years; Count 3: three (3) years; and Count 4: one (1) year. The firearm specification of three (3) years is to run consecutive with the three-year sentence imposed in Count 2. Counts 1,2,3,4 are to run concurrently. Appellant was ordered to pay all costs of prosecution, court costs, court-appointed counsel costs, and any fees permitted. Appellant was also ordered to pay restitution for medical expenses of the victim, Ms. Coleman. No fine was imposed.
{¶15} This Court granted appellant's motion to file a delayed appeal finding that counsel had not been assigned to represent appellant until after the time for filing the notice of appeal had expired. Appellant submits the following four assignments of error for our consideration:
{¶16} "I. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
{¶17} "II. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE CONVICTION WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶18} "III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶19}
{¶20} In his First Assignment of Error, appellant maintains that the State failed to produce sufficient evidence to sustain his conviction for felonious assault.1 Specifically, appellant maintains that the State failed to prove that he knowingly caused serious physical harm to Cathy Coleman. We disagree.
{¶21} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. "While the test for sufficiency requires a determination of whether the State has met its burden of production at trial, a manifest weight challenges questions whether the State has met its burden of persuasion." State v. Thompkins, supra at 78 Ohio St.3d 390.
{¶22} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259 superseded by State constitutional amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St. 3d 89.
{¶23} Specifically, an appellate court's function, when reviewing the sufficiency of the evidence to support a criminal conviction, is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, supra. This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App. 3d 172, 175. The relevant inquiry is whether, after...
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