[Cite as State v. Jones, 2013-Ohio-5231.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25723
Plaintiff-Appellee :
: Trial Court Case No. 12-CRB-9298
v. :
:
ERIC L. JONES : (Criminal Appeal from
: (Dayton Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of November, 2013.
...........
JOHN DANISH, Atty. Reg. #0046639, and STEPHANIE COOK, Atty. Reg. #0067101, by
SHAUNA HILL, Atty. Reg. #0074569, Dayton City Prosecutor’s Office, 335 West Third Street,
Room 372, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
MICHAEL H. HOLZ, Atty. Reg. #0031902, 507 Wilmington Avenue, Suite 2, Dayton, Ohio
45420
Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Eric Jones appeals his conviction for assault, under R.C. 2903.13(A). There are
no issues with arguable merit for review, so we affirm.
THE TRIAL
{¶ 2} The complaining witness, Gabrielle Reynolds, testified that the defendant was
her mother’s boyfriend. He had borrowed her mother’s car, and on November 11, 2012, she went
to the parking lot of the Wentworth Apartment building, where the defendant lived, in order to
retrieve the car. (Tr. 4). Reynolds was with Kenneth Oldham, her former boyfriend, and they
arrived in his truck. As she approached her mother’s parked car, the defendant got out. Reynolds
testified: “He ran around Kenneth’s truck. Arms out stretched. Grabbed me by my throat. Hit me
in the chest. And the impact knocked me backwards. He fell on top of me and proceeded to hit
me.” (Id. at 6). She also said: “My head was bleeding in three different spots. I had a scratch on
my neck and my chest was bruised.” (Id. at 8).
{¶ 3} Reynolds had arranged to meet her friend Sheena Robinson at the parking lot in
the event that Reynolds needed a ride home because the car had to be towed. Robinson testified
that when she arrived “Eric came running around the truck and grabbed Gabrielle and pushed her
back and then he started to hit her.” (Id. at 30). That night, Robinson saw “scratches on her
[Reynolds’s] neck. She had like a scratch here. It was bleeding right here. And she was talking
about how her ribs and chest was hurting.” (Id. at 34).
{¶ 4} A Dayton police officer took a report from Reynolds. He testified: “She had a
small laceration on the left side of her face and a small cut above her right eye. I also noticed
some scratches on her * * * right where her chest meets her neck.” (Id. at 41).
{¶ 5} The defense called Kenneth Oldham as a witness. He is the defendant’s cousin.
(Tr. 51). Oldham said, “I seen them collide. And they was on the ground. That’s the next thing I
know.” (Id. at 57). He did not see the defendant hitting Gabrielle, (id.), but he agreed that the
defendant was the one who approached her. (Id. at 60). The defendant did not testify.
[Cite as State v. Jones, 2013-Ohio-5231.]
{¶ 6} The trial court found the defendant guilty and imposed a 180 day suspended jail
sentence, placed him on probation, fined him $100, and assessed him $111 in court costs.
{¶ 7} The defendant appealed.
{¶ 8} Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous issues for our
review. Counsel identified three potential issues for consideration: the conviction is not
supported by sufficient evidence, the verdict is against the manifest weight of the evidence, and
Jones received ineffective assistance of trial counsel because trial counsel failed to make a
Crim.R. 29 motion at the close of the State’s case. Appellate counsel concluded, however, that
raising any of these issues would be wholly frivolous. We notified Jones of the Anders filing and
advised him of his right to file his own brief. He has not done so.
THE POTENTIAL ASSIGNMENTS OF ERROR
{¶ 9} When a defendant challenges the sufficiency of the evidence, he is arguing that
the State presented inadequate evidence on an element of the offense to sustain the verdict as a
matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist. 2000). “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.
The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus.
{¶ 10} Our analysis is different when reviewing a manifest-weight argument. When a
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conviction is challenged on appeal as being against the weight of the evidence, an appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider witness
credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact
“‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
A judgment should be reversed as being against the manifest weight of the evidence “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting
Martin at 175.
{¶ 11} With the foregoing standards in mind, we first determine that a
sufficiency-of-the-evidence argument lacks arguable merit. R.C. 2903.13(A) provides: “No
person shall knowingly cause or attempt to cause physical harm to another or to another’s
unborn.” Here the evidence is essentially uncontested. Although we observe minor
inconsistencies between witnesses, the essential facts from the testimony we quoted undoubtedly
are sufficient to constitute the offense of assault.
{¶ 12} We reach a similar conclusion with regard to the second potential assignment of
error, challenging the manifest weight of the evidence. The three witnesses who were present in
the parking lot all testified that there was a physical confrontation between the defendant and the
victim. Two of them testified to the victim’s injuries, as did the police officer who observed her
after the event. There is simply no contrary evidence to weigh against this testimony. The record
fails to persuade us of any reasonable argument that this is an exceptional case in which the trial
court lost its way. Accordingly, a weight-of-the-evidence argument does not have arguable merit
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either.
{¶ 13} The third potential assignment of error questions whether it was ineffective
assistance for trial counsel not to make a Crim.R. 29 motion for judgment of acquittal at the close
of the State’s case. “Failure to move for an acquittal under Crim.R. 29 is not ineffective
assistance of counsel where the evidence in the State’s case demonstrates that reasonable minds
can reach different conclusions as to whether the elements of the charged offense[s] have been
proved beyond a reasonable doubt, and that such a motion would have been fruitless.” State v.
Poindexter, 2d Dist. Montgomery No. 21036, 2007-Ohio-3461, ¶ 29. In this case not only is the
evidence sufficient for a conviction but it is also essentially undisputed. On a Crim.R. 29 motion
the trial court must view the evidence in a light most favorable to the State. On this record, it is
inconceivable that such a motion would have been successful. Therefore no reasonable argument
can be made that trial counsel was ineffective for not making the motion. The third potential
assignment of error lacks arguable merit.
ANDERS REVIEW
{¶ 14} We performed our independent duty, under Anders v. California, to review the
record and determine if there are any potential assignments of error with arguable merit. We
found none.
{¶ 15} The judgment of the trial court is affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
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John Danish
Stephanie Cook
Shauna Hill
Michael Holz
Hon. Christopher D. Roberts