State v. Holsinger
| Decision Date | 12 April 2017 |
| Docket Number | Case No. 16CA48 |
| Citation | 2017 Ohio 1378 |
| Parties | STATE OF OHIO Plaintiff-Appellant v. JERRY D. HOLSINGER, JR. Defendant-Appellee |
| Court | Ohio Court of Appeals |
OPINION
For Plaintiff-Appellee
DANIEL ROGERS
Richland County Prosecutor's Office
38 S. Park Street
Mansfield, OH 44902
For Defendant-Appellant
RANDALL FRY
10 West Newlon Place
Mansfield, OH 44902
{¶1} Defendant-appellant Jerry D. Holsinger, Jr. ["Holsinger"] appeals his convictions and sentences after a jury trial in the Richland County Court of Common Pleas.
{¶2} On January 22, 2014, R. B. obtained a Civil Protection Order ["CPO"] from the Richland County Domestic Relations Court against Holsinger, her ex-companion and father of R.B.'s two children. The CPO prohibited Holsinger from contacting R.B. in any way or going to R.B.'s residence for any reason, even with R.B.'s permission.
{¶3} Around 3:00 pm on April 10, 2015, R.B. had her children contact Holsinger and advise him that they would not be home. R.B. dropped her children off at their friends' houses and returned to her home to spend the evening with S.E., her boyfriend. S.E. arrived at R.B.'s home shortly thereafter and parked his car in the driveway next to R.B.'s vehicle. After speaking with S.E. for a few minutes, R.B. went to the bathroom to take a bath.
{¶4} As R.B. began her bath and S.E. stayed in the kitchen checking his email on his smartphone, Holsinger opened the backdoor and entered R.B.'s home. Upon entering the home, Holsinger stared at S.E. angrily. S.E., who had never met Holsinger, asked Holsinger twice "who are you?" After S.E. told Holsinger that R.B. was in the bathroom, Holsinger stormed down the hallway towards the bathroom, yelled R.B.'s name. Holsinger referred to R.B. as a "bitch" and a "cunt." (1T. at 165, 166). Holsinger pounded on the bathroom door and asked R.B. where their son was. R.B. told Holsinger he was not supposed to be there and that their son was not home.
{¶5} As Holsinger continued pounding on the door and yelling at R.B., S.E. grabbed Holsinger from behind, turned him around and pushed him down the hallway. (2T. at 219-220). S.E. "lined" Holsinger up and gave Holsinger "a quick left jab to the nose just to let him know that it's not going to go the way he thinks it's going to go down this time." (1T. at 169; 220).
{¶6} After being punched by S.E., Holsinger turned and ran towards the front door. Holsinger went around the corner into the living room and hid by the fireplace out of S.E.'s sight. As S.E. began walking towards the front door and turned the corner into the living room, Holsinger threw a ceramic potted plant towards S.E.'s head. S.E. put up his left arm to protect himself, but the pot deflected off his left forearm and struck S.E. near his left temple, before hitting the ground and breaking into pieces. S.E. suffered a cut, bruise, and knot on his head as a result of being struck by the ceramic potted plant thrown by Holsinger.
{¶7} After the ceramic potted plant struck S.E. it fell to the floor, and broke into pieces. Holsinger grabbed a shard from the broken pot and began slashing towards S.E.'s head and neck. As S.E. held up his hands to protect his head and neck, Holsinger cut S.E.'s right wrist with the shard, causing a deep four-inch laceration and resulting in a permanent scar.
{¶8} After cutting S.E.'s wrist, Holsinger reached for another shard, at which point S.E. grabbed onto Holsinger's shirt to prevent Holsinger from grabbing any more shards. After S.E. let go, Holsinger grabbed several more shards of the broken pot and gestured towards S.E. as though he intended to throw the shards at him.
{¶9} Around this time, R.B. exited the bathroom and repeatedly told Holsinger to leave. Holsinger left the residence. As Holsinger left, he threw one of the shards towards S.E.'s head, but missed and the shard struck the kitchen wall.
{¶10} Holsinger testified that he was acting in self-defense from an unprovoked attack from S.E.
{¶11} Upon deliberation, the jury returned guilty verdicts against Holsinger for Count I, Aggravated Burglary, in violation of R.C. 2911.11(A), Count II, Burglary, in violation of R.C. 2911.12(A)(2), Count III, Burglary, in violation of R.C. 2911.12(B), Count IV, Felonious Assault, serious physical harm, in violation of R.C. 2903.11(A), Count V, Felonious Assault, deadly weapon, in violation of R.C. 2903.11(A)(2) and Count VI, Violation of a Civil Protection Order, in violation of R.C. 2919.27(A)(1) and (B)(4).
{¶12} During the Sentencing Hearing on June 27, 2016, the trial court heard from Holsinger, his attorney, Holsinger's sister, and the state. The trial court determined that Counts I - Aggravated Burglary, II - Burglary and III - Burglary, were allied offenses subject to merger, as Counts II and III were lesser-included offenses to Count I. The trial court further held that Count VI - Violating a Protection Order was the underlying criminal offense for Count I - Aggravated Burglary and, thus, subject to merger. However, the trial court determined that Counts IV and V Felonious Assault were not allied offenses subject to merger with each other or with the other four counts, as they involved separate acts and resulted in separate and identifiable harms to S.E. The trial court sentenced Holsinger to five years on merged Count I, four years on Count IV and three years on Count V, with those sentences to be served consecutively for a cumulative term of twelve years. The trial court also imposed five years of mandatory post-release control.
{¶13} Holsinger raises four assignments of error,
{¶14} "I. THE EVIDENCE PRESENTED BY THE APPELLEE WAS INSUFFICIENT TO SUPPORT A FINDING OF GUILT ON COUNT V, FELONIOUS ASSAULT AS DEFINED IN O.R.C. 2903.11 (A) (2);
{¶15} "II. THE EVIDENCE PRESENTED BY THE APPELLEE WAS INSUFFICIENT TO SUPPORT A FINDING OF GUILT ON COUNT IV, FELONIOUS ASSAULT AS DEFINED BY O.R.C. 2903.11(A)(1);
{¶16} "III. THE TRIAL COURT ERRED IN NOT MERGING COUNT IV AND COUNT V OF THE INDICTMENT FOR PURPOSES OF SENTENCING.
{¶17}
I., II. and IV.
{¶18} In his first assignment of error, Holsinger argues that the sufficiency of the evidence did not support his conviction on Count 5-Felonious Assault pursuant to R.C. 2903.11(A) (2) ["deadly weapon"]. Similarly, in his second assignment of error, Holsinger argues that the sufficiency of the evidence did not support his conviction on Count 4-Felonious Assault pursuant to R.C. 2903.11(A) (1) ["serious physical harm"]. Lastly, in his fourth assignment of error, Holsinger argues that the trial court erred when it denied his Ohio Crim.R. 29 motion for acquittal on Count 1-Aggravated Burglary pursuant to R.C. 2911.11(A)(1).
{¶19} Holsinger's first, second and fourth assignments of errors raise common and interrelated issues; therefore, we will address the arguments together.
Standard of review.
{¶20} In determining whether a trial court erred in overruling an appellant's motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991), superseded by State constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997).
{¶21} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010-Ohio-1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010-Ohio-2720, ¶ 68.
{¶22} Weight of the evidence addresses the evidence's effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355. Weight of the evidence concerns (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶23} When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "'thirteenth juror'" and disagrees with the fact finder's resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its view for that of the jury, but must find that "'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.'" State v. Thompkins, supra, 78 Ohio St.3d at...
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