[Cite as State v. Herring, 2012-Ohio-4788.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Case No. 2012CA00045
JAMIE R. HERRING :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR1421
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 9, 2012
APPEARANCES:
For Appellant: For Appellee:
ADAM W. WILGUS JOHN D. FERRERO, JR.
401 Tuscarawas St. W., Suite 200 STARK COUNTY PROSECUTOR
Canton, OH 44702 RONALD MARK CALDWELL
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
[Cite as State v. Herring, 2012-Ohio-4788.]
Delaney, J.
{¶1} Appellant Jamie R. Herring appeals from the judgment entry of
conviction and sentence entered in the Stark County Court of Common Pleas on
February 22, 2012. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s trial by
jury.
{¶3} Candace Hughes has been diagnosed and treated for a number of
issues with her physical and mental health. She takes Coumadin for a blood clotting
disorder and sees a counselor regularly for mental health issues. Hughes and
appellant met at an AA meeting in November 2008 and began an on-and-off
relationship. They lived together briefly and broke up for good in July 2009.
According to Hughes, appellant would sometimes visit her and they stayed in touch by
telephone and other means.
{¶4} There was some evidence at trial, in the form of testimony by Hughes,
that at some point Hughes gave birth to a child fathered by appellant and placed the
child for adoption without appellant’s knowledge or consent.
{¶5} On August 16, 2011, Hughes was living with a roommate on Eighth
Street N.W. in Canton. At that point she had not seen appellant since November 2010
and she testified he had never visited her at the Eighth Street residence. Hughes took
her roommate’s dog outside and turned around to find appellant “in her face,” yelling
at her. Hughes said he grabbed her by her hair and slammed her face into the porch.
Stark County, Case No. 2012CA00045 3
{¶6} A friend of Hughes arrived at the house and appellant took off. Hughes
finished an errand involving her son and went to Affinity Hospital in Massillon where
her injuries were stitched. Hughes told hospital staff that she fell down.
{¶7} Hughes did not report the August 16 incident to police. She testified that
after the incident, she received text messages from appellant stating he would get to
her before the police could get to her. Hughes testified she did not report the August
16 assault to police because she was afraid appellant would find out.
{¶8} Several weeks later, Hughes told someone at church that the true source
of her injuries was an assault by appellant. Hughes also told her roommate and her
neighbor about the attack.
{¶9} In the meantime, the Canton Police Department received an anonymous
letter about the August 16 incident. The letter purported to be from a friend of Hughes
who was concerned because the friend suspected Hughes had been assaulted by
appellant but would not seek help on her own. The letter asked police to follow up
with Hughes.
{¶10} On September 16, 2011, Hughes was at home when a police officer
called and said he wanted to speak to her about a letter to the police. Hughes told
them to leave immediately. Eventually, police made contact with Hughes at the
Coleman Center where she had an appointment for mental health issues. Hughes
was extremely nervous and refused to talk to police at first. Eventually someone at
the Center encouraged her, and Hughes described the incident that occurred on
August 16. Police advised Hughes to follow up with the prosecutor’s office if she
Stark County, Case No. 2012CA00045 4
decided to pursue criminal charges because so much time had elapsed since the
incident they would not pursue a warrant against appellant on her behalf.
{¶11} Hughes returned home around 3:30 after her conversation with police
and a brief meeting with a psychiatrist. She let the dog out and turned the home
security system on when the dog came back in. She did not lock the doors.
{¶12} Hughes said appellant came in the side door of the residence and
assaulted her in the kitchen. They “had words” about a child Hughes put up for
adoption. Hughes stated appellant struck her several times in the face. When he
grabbed her, she grabbed a panic button nearby, setting off an alarm. Appellant ran
out the door.
{¶13} Hughes’ neighbor was in her upstairs bathroom when she heard the
house alarm go off. The window overlooks the backyard of Hughes’ house. She
looked out the window and observed an African-American man run out the side door
of Hughes’ house, run across the yard and out the back gate. Hughes called the
neighbor on the telephone and asked her to come over because “he just beat the heck
out of me.” The neighbor arrived at the house, knife in hand, at the same time as
police.
{¶14} Hughes called 911 and the police arrived to find Hughes’ lip split open
and blood throughout the house. Police noted the rear gate was open and took
photos of the injuries and the inside of the house. Hughes was transported to Aultman
Hospital for treatment of her injuries.
{¶15} Detective Fuelling of the Canton Police Department investigated the
September 16 incident and spoke with the witnesses involved. When he showed the
Stark County, Case No. 2012CA00045 5
neighbor a photo of appellant, she identified him as the man she saw running across
the yard on September 16. Fuelling sought a warrant for appellant’s arrest.
{¶16} Appellant was charged by indictment as follows: Count I, aggravated
burglary pursuant to R.C. 2911.11(A)(1); Count II, felonious assault pursuant to R.C.
2903.11(A)(1); Count III, felonious assault pursuant to R.C. 2903.11(A)(1); and Count
IV, intimidation of a victim in a criminal case pursuant to R.C. 2921.04(B). Appellant
entered pleas of not guilty and the case proceeded to jury trial; appellant moved for
judgment of acquittal at the close of the state’s evidence and at the close of all the
evidence and the motions were overruled. On Counts II and III (felonious assault), the
trial court also instructed the jury on the lesser-included offense of assault pursuant to
2903.13(A).
{¶17} Appellant was found guilty of one count of the lesser-included offense of
assault in Count II, referring to the September 16 incident. He was found not guilty of
the remainder of the charges. The trial court sentenced appellant to a term of six
months in jail and ordered him to have no contact with Hughes.
{¶18} Appellant appeals from the judgment entry of conviction and sentence.
{¶19} Appellant raises one Assignment of Error:
{¶20} “I. THE DEFENDANT’S CONVICTION FOR ONE COUNT OF
ASSAULT IN VIOLATION OF R.C. 2903.13 WAS AGAINST THE MANIFEST WEIGHT
AND SUFFICIENCY OF THE EVIDENCE.”
I.
{¶21} Hughes argues his conviction for one count of assault is against the
manifest weight and sufficiency of the evidence. We disagree.
Stark County, Case No. 2012CA00045 6
{¶22} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “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.”
{¶23} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, at
387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of
the evidence and ordering a new trial should be reserved for only the “exceptional
case in which the evidence weighs heavily against the conviction.” Id.
Stark County, Case No. 2012CA00045 7
{¶24} Appellant was convicted of one count of assault pursuant to R.C.
2903.13(A) which states, “No person shall knowingly cause or attempt to cause
physical harm to another or to another’s unborn.”
{¶25} Appellant argues the evidence was insufficient to establish his guilt
because the state’s witnesses were not credible. First, we note the weight of the
evidence and the credibility of the witnesses are determined by the trier of fact. State
v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216. We find
appellee presented sufficient evidence to prove appellant assaulted Hughes.
{¶26} Appellant’s manifest weight argument is also premised upon his
argument the witnesses lacked credibility. An appellant is not entitled to a reversal on
manifest weight grounds merely because inconsistent evidence was presented at trial.
State v. Raver, 10th Dist. No. 02AP–604, 2003–Ohio–958, ¶ 21. Neither is a
conviction against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the appellant's version. State v. Gale, 10th
Dist. No. 05AP–708, 2006–Ohio–1523, ¶ 19; State v. Williams, 10th Dist. No.
08AP719, 2009–Ohio–3237, ¶ 17. The trier of fact is free to believe or disbelieve all
or any of the testimony. State v. Jackson, 10th Dist. No. 01AP–973, 2002 WL 416994
(Mar. 19, 2002); State v. Sheppard, 1st Dist. No. C–000553, 2001 WL 1219765 (Oct.
12, 2001). The trier of fact is in the best position to take into account inconsistencies,
along with the witnesses' manner and demeanor, and determine whether the
witnesses' testimony is credible. State v. Williams, 10th Dist. No. 02AP–35, 2002–
Ohio–4503, ¶ 58; State v. Clarke, 10th Dist. No. 01AP–194, 2001 WL 1117575 (Sept.
25, 2001). Consequently, an appellate court must ordinarily give great deference to
Stark County, Case No. 2012CA00045 8
the fact finder's determination of the witnesses' credibility. State v. Covington, 10th
Dist. No. 02AP245, 2002–Ohio–7037, ¶ 28; State v. Hairston, 10th Dist. No. 01AP–
1393, 2002–Ohio–4491, ¶ 74.
{¶27} Appellant asserts the witnesses and the investigation were flawed, but
the jury was in the best position to weigh the evidence. The jury did not lose its way in
resolving conflicts in the evidence and was clearly able to give greater weight to some
evidence because appellant was convicted of one lesser charge relative to the
September 16 incident, but was found not guilty of felonious assault and the charges
related to the August 16 incident.
{¶28} Appellant does not point to any evidence in the record the jury lost its
way. Appellant’s sole assignment of error is overruled and the judgment of the Stark
County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
PAD:kgb
[Cite as State v. Herring, 2012-Ohio-4788.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JAMIE R. HERRING :
:
: Case No. 2012CA00045
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS