[Cite as State v. Lisius, 2016-Ohio-27.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
KARA J. LISIUS : Case No. 15-COA-015
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
20144091
JUDGMENT: Affirmed/Reversed in Part &
Remanded
DATE OF JUDGMENT: January 6, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EMILY M. BATES CHRISTINA I. REIHELD
110 Cottage Street P.O. Box 532
3rd Floor Danville, OH 43014
Ashland, OH 44805
Ashland County, Case No. 15-COA-015 2
Farmer, J.
{¶1} On August 26, 2014, a complaint was filed in the Juvenile Court, charging
appellant, Kara Lisius, with one count of domestic violence in violation of R.C.
2919.25(A), one count of endangering children in violation of R.C. 2919.22(A), and one
count of aggravated menacing in violation of R.C. 2903.21(A). Said charges arose from
an incident between appellant and her son, D.M., on July 17, 2014.
{¶2} A bench trial commenced on March 6, 2015. By judgment entry filed
same date, the trial court found appellant guilty of the domestic violence and
endangering children counts, and not guilty of the aggravated menacing count. By
judgment entry filed April 1, 2015, the trial court sentenced appellant to ninety days in
jail on each charge, to be served concurrently, suspended in lieu of probation.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "KARA'S CONVICTIONS FOR DOMESTIC VIOLENCE AND CHILD
ENDANGERING ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
II
{¶5} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
REFUSING TO ADMIT EVIDENCE OF PRIOR ACTS OF AGGRESSION BY THE
ALLEGED VICTIM TOWARD KARA, EVIDENCE OF THE ALLEGED VICTIM'S
REPUTATION FOR VIOLENCE BEHAVIOR, AND EVIDENCE OF PRIOR FALSE
CLAIMS MADE BY THE ALLEGED VICTIM."
Ashland County, Case No. 15-COA-015 3
III
{¶6} "KARA WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AS
COUNSEL FAILED TO PRESENT ANY EVIDENCE RELATED TO THE ALLEGED
VICTIM'S MENTAL HEALTH OR CORRECT MISCHARACTERIZATION OF MEDICAL
EVIDENCE AND COMMITTED VARIOUS OTHER DEFICIENCIES WHICH AFFECTED
THE OUTCOME OF THE TRIAL."
IV
{¶7} "THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE
ENDANGERING CHILDREN AND DOMESTIC VIOLENCE COUNTS FOR PURPOSES
OF SENTENCING."
I
{¶8} Appellant claims her convictions were against the manifest weight of the
evidence, as the only substantive evidence presented supports her defense that she
was merely attempting to restrain her son. We disagree.
{¶9} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "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 reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The
granting of a new trial "should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction." Martin at 175. We note the weight to
be given to the evidence and the credibility of the witnesses are issues for the trier of
Ashland County, Case No. 15-COA-015 4
fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best
opportunity to view the demeanor, attitude, and credibility of each witness, something
that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,
418, 1997-Ohio-260.
{¶10} Appellant was convicted of domestic violence in violation of R.C.
2919.25(A) which states: "No person shall knowingly cause or attempt to cause physical
harm to a family or household member," and endangering children in violation of R.C.
2919.22(A) which states: "No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a child under eighteen years of
age or a mentally or physically handicapped child under twenty-one years of age, shall
create a substantial risk to the health or safety of the child, by violating a duty of care,
protection, or support."
{¶11} Two versions of the events of July 17, 2014 were presented to the trial
court. Appellant claimed she was attempting to defuse the aggressive behavior of her
son, D.M., and any harm caused by her defensive actions was unintentional. T. at 105-
109, 116. She explained the following (T. at 107):
He was getting aggressive and so I did as I have been trained by
the counselors and the case manager at Appleseed, and I attempted to
restrain him without causing any harm to him or myself. In the position
that we were in facing each other, it wasn't really possible, so I tried to get
him by the shoulders and gain control of his upper arms and hug him to
Ashland County, Case No. 15-COA-015 5
me is what I was initially trying to do, is to get him with his back to my
chest and hug him so he could not harm myself or himself.
At which point he started kicking and punching and we both fell to
the ground, and he was screaming at me and I yelled back at him and that
was at the point where my - - when I was yelling I inadvertently - - saliva
came out of my mouth and onto him, which, you know, he was in my face,
I couldn't you know, it was not intentional, but accidental.
{¶12} The defensive actions were consistent with how she was instructed to
handle her son's outbursts. T. at 108-109. Unfortunately, it developed into a "scrabble
to get control of his trunk" and "it was kind of a mess." T. at 115, 116. D.M. testified
and substantiated his mother's testimony, that he was the aggressor, he tried to kick
her, and she attempted to hold him back. T. at 127-128. He denied that appellant
choked him or was trying to kill him. T. at 129. He claimed he told the police and his
neighbor, Judy Clark, that his mother tried to kill him to get his mother into trouble. T. at
47, 129-130, 132. Appellant's other son testified to D.M.'s violent acts toward their
mother when he did not get his way, and gave examples of other incidents. T. at 87-89.
Appellant's daughter testified she witnessed five to ten minutes of the incident and D.M.
was the attacker and appellant was attempting to restrain him. T. at 94-95. Appellant
held him so he would not hit her. Id. An intake investigator with the Ashland County
Department of Job and Family Services, Roland Flick, stated appellant told him D.M.
lunged at her and hit her in the face area. T. at 156.
Ashland County, Case No. 15-COA-015 6
{¶13} In sharp contrast to the above testimony, Ashland Police Officer Kim
Mager testified to the demeanor and visible marks on D.M. consistent with choking. T.
at 29-30. She noticed his voice was hoarse which is "indicative of strangulation." T. at
29. Photographs of the injuries were marked into evidence and were described in detail
by Officer Mager. T. at 31-36; State's Exhibits 1-6.
{¶14} Donald Ballard, a physician's assistant who treated D.M. at the hospital,
testified to the injuries and found them to be consistent with choking. T. at 54-55. He
opined the injuries were fresh. T. at 56-58.
{¶15} It is not our position to second guess the trier of fact who has the ability to
observe the demeanor and believability of the various witnesses. With two dramatically
different views of the events, the issue becomes "Whom Do You Trust?" It is obvious
appellant's children, including her son, circled the wagon to protect their mother.
{¶16} Upon review, given the choice of who to trust versus D.M.'s recanted
testimony, we find the trial court did not err in finding the responding officer, the
unbiased neighbor, and the medical professional to be more credible. We find the trial
court did not lose its way.
{¶17} Assignment of Error I is denied.
II
{¶18} Appellant claims the trial court erred in denying the admission of the
victim's reputation for violent behavior and false claims which was necessary to
establish her claim of self-defense. We disagree.
{¶19} First, although the state objected to evidence concerning D.M.'s violent
behavior, the trial court permitted testimony on the issue. T. at 81-87. D.M.'s brother
Ashland County, Case No. 15-COA-015 7
testified to numerous incidents of D.M.'s violent behavior when denied something and
then acting out against appellant. T. at 87-89. Appellant also testified to D.M.'s violent
history and the training she received to protect her son and herself. T. at 107, 108-109.
Appellant testified to D.M. having a counselor, a case manager, a psychiatrist, and a
school counselor. T. at 109. There is no other proffer or argument as to any other
testimony that appellant wished to present but was denied.
{¶20} An error not raised in the trial court must be plain error for an appellate
court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to
prevail under a plain error analysis, appellant bears the burden of demonstrating that
the outcome of the trial clearly would have been different but for the error. Long. Notice
of plain error "is to be taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the
syllabus.
{¶21} Appellant testified to being afraid of being harmed by D.M., as he had
been violent with her for many years. T. at 106. The last time prior to the incident sub
judice was two days. T. at 106-107. Within the record is the physical size difference of
appellant and D.M. D.M. was taller and stronger than his mother. T. at 109.
{¶22} Upon review, we find no actual denial of any relevant testimony by the trial
court.
{¶23} Assignment of Error II is denied.
III
{¶24} Appellant claims she was denied effective assistance of trial counsel by
counsel's failure to introduce evidence of D.M.'s mental health, to object and correct
Ashland County, Case No. 15-COA-015 8
mischaracterized evidence, to properly prepare her claim of self-defense, to inform her
of the consequences of a conviction to her state license, to present evidence contra to
the state's witnesses, and to argue Evid.R. 404 in a self-defense case. We disagree.
{¶25} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶26} As to evidence of D.M.'s mental health status, the record discloses that
D.M. saw numerous mental health professionals and had recurrent incidents of
violence. T. at 89, 109.
{¶27} Appellant argues her trial counsel failed to effectively cross-examine the
physician's assistant, Donald Ballard. Mr. Ballard's testimony was cumulative to Officer
Ashland County, Case No. 15-COA-015 9
Mager's testimony and the photographs of D.M. immediately after the incident. There
were no determinative findings, only Mr. Ballard's observations of redness and swelling.
T. at 54-57.
{¶28} Appellant also argues her trial counsel failed to properly prepare her, to
inform her of the consequences of a conviction, and to present further evidence on her
defense. None of these claims are supported by the record. Appellant testified and
defended herself on the issue of self-defense. T. at 107-109. There is no proof of any
other evidence. At the time of the incident, only three persons were present, appellant,
D.M., and his sister.
{¶29} Upon review, we do not find any ineffective assistance of counsel.
{¶30} Assignment of Error III is denied.
IV
{¶31} Appellant claims the trial court erred in not following R.C. 2941.25(B) and
not merging the offenses of domestic violence and endangering children. We agree.
{¶32} R.C. 2941.25 governs multiple counts and states the following:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
Ashland County, Case No. 15-COA-015 10
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all of
them.
{¶33} The Supreme Court of Ohio once again redefined "separate animus"
in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph two of the syllabus and
¶ 30-31, respectively:
Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense
is separate and identifiable.
***
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must focus
on the defendant's conduct to determine whether one or more convictions
may result because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
govern every situation.
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when defendant's conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were they
Ashland County, Case No. 15-COA-015 11
committed separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be
considered.
{¶34} In reviewing the evidence, there is but one single act of conduct of which
appellant was convicted. Appellant knowingly caused physical harm to D.M. No other
separate conduct was alleged. Further, there was no separate identifiable harm, nor
was there a separate animus.
{¶35} Therefore, the state must elect which of the two offenses it wishes to
pursue in sentencing.
{¶36} Assignment of Error IV is granted.
Ashland County, Case No. 15-COA-015 12
{¶37} The judgment of the Court of Common Pleas of Ashland County, Ohio,
Juvenile Division is hereby affirmed in part and reversed in part, and the matter is
remanded to said court for further proceedings consistent with this opinion.
By Farmer, J.
Gwin, P.J. and
Wise, J. concur.
SGF/sg