{¶ 25} I respectfully disagree with the majority opinion's disposition of this appeal for two reasons.
{¶ 26} First, I do not believe the state has met its burden to prove appellant's violation of R.C. 2903.11 beyond a reasonable doubt.
{¶ 27} The majority opinion analyzes the facts of this case and decides that the state proved that appellant caused serious physical harm to the victim. If this were a matter of simply reading the words of the statute, that decision might be supportable, since R.C. 2901.01(A)(5) states that "[s]erious physical harm" is defined in part as "[a]ny physical harm * * * that involves any degree of prolonged or intractable pain." (Emphasis added.) A year of back pain and therapy may be considered prolonged.
{¶ 28} This court, however, previously has been cognizant that the burden of proof for the state on each element of a crime is "beyond a reasonable doubt"; therefore, the seriousness of the victim's injury must adequately be proved. For example, serious injury was sufficiently proved in a case where the defendant pulled out 70 percent of the victim's hair, she fell into unconsciousness about three times during the assault, and she was still missing a good portion of her hair at trial. State v.Ivory, Cuyahoga App. No. 84223, 2004-Ohio-5875, 2004 WL 2495657.
{¶ 29} On the other hand, serious injury was not sufficiently proved by the state in a case in which, other than the victim's testimony that a scar above his eye was permanent, no medical testimony or medical evidence was presented. State v. Enovitch (Aug. 20, 1998), Cuyahoga App. No. 72827, 1998 WL 518163.
{¶ 30} The facts of this case are more similar to Enovitch than to Ivory. Indeed, the trial court acknowledged that the issue of whether the state presented sufficient evidence of serious harm was a close call. Ordinarily, when the evidence is close, the defendant gets the benefit of the doubt. However, despite this acknowledgment that the state's evidence was equivocal at best, the court overruled appellant's motion for acquittal, suggesting that the victim's testimony was credible. *Page 392
{¶ 31} The medical evidence, however, did not corroborate the victim's testimony. The victim had suffered only contusions and scrapes; no medical evidence was offered to show any ongoing need for treatment. Under similar circumstances, this court previously has held that evidence of the element of serious physical harm was insufficient. Enovitch, supra. Either the trial court or this court sua sponte may find the evidence sufficient to support only a lesser included offense.
{¶ 32} Accordingly, I would sustain appellant's assignment of error.
{¶ 33} Since appellant's offense thus constituted a simple assault, and the maximum penalty therefore is a six-month jail term, this court should reverse appellant's conviction and order him discharged, as it did with another defendant in Enovitch.
{¶ 34} Second, even if its analysis of the evidence to support appellant's conviction is correct, I believe the majority opinion neglects an important issue. The transcript of the sentencing hearing reflects that the trial court failed to inform appellant of postrelease control, but the journal entry of sentence states that appellant is subject to its requirements. Pursuant to Statev. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph two of the syllabus, the trial court's failure constitutes error, and the case should be remanded at the very least for resentencing.