State v. McCabe

[Cite as State v. McCabe, 2016-Ohio-5892.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15CA73
CHRISTOPHER MCCABE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 2015-CR-0190 D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 19, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE CHRISTOPHER MCCABE, PRO SE
Prosecuting Attorney Inmate No. 672219
Richland County, Ohio Mansfield Correctional Institution
P.O. Box 788
By: DANIEL M. ROGERS 1150 North Main Street
Assistant Prosecuting Attorney Mansfield, Ohio 44901
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA73 2

Hoffman, J.

{¶1} Defendant-appellant Christopher A. McCabe appeals his conviction and

sentence entered by the Richland County Court of Common Pleas, on one count of

kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the first degree; and one count

of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree,

following a jury trial. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} Appellant failed to provide this Court with a Statement of the Case or a

Statement of the Facts as required by App. R. 16(A)(5) and (6). Accordingly, we accept

the state's recitation.

{¶3} On March 10, 2015, the Richland County Grand Jury indicted Appellant on

one count of kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the first degree;

one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of the first

degree; and one count of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of

the second degree. The charges stemmed from the February 1, 2015 attack of Mario

Jester in Jester's home at 101 West 4th Street, Mansfield, Richland County, Ohio.

Appellant entered a plea of not guilty to the Indictment at his arraignment on March 24,

2015. The trial court appointed Attorney George Keyser as trial counsel for Appellant.

{¶4} On April 3, 2015, the trial court scheduled a final pretrial for April 13, 2015,

and a jury trial for April 30, 2015. Appellant filed a motion to continue the April 13, 2015

final pretrial, which the trial court granted. On April 27, 2015, Appellant filed a motion to

continue the trial as well as a motion for a transcript at the state's expense. The trial court

granted both motions, and continued the jury trial to June 4, 2015. Appellant filed a
Richland County, Case No. 15CA73 3

precipe for subpoena, requesting Angela Riley and Jeff Partin be subpoenaed to testify

on Appellant's behalf. The subpoenas were returned and filed on May 29, 2015.

{¶5} The trial court continued the jury trial to July 9, 2015. Appellant filed a

second precipe for subpoena for Riley and Partin. Those subpoenas were returned and

filed on June 22, 2015. The state filed a Bill of Particulars and Notice of Intent to Use

Evidence and Jail Calls on July 6, 2015. Appellant filed a precipe for subpoena for Rene

Tucker on July 7, 2015. Appellant indicated Attorney Keyser would serve the subpoena

on Tucker. Appellant filed a motion in limine, seeking a ruling on the admissibility of a

recorded telephone call between Appellant and his mother on February 16, 2015.

Appellant also filed a notice of intent to use evidence and precipe for subpoena for Lt.

James Myers.

{¶6} The jury trial commenced on July 10, 2015. Prior to jury selection, Appellant

advised the trial court he wished to represent himself and participate in voir dire. The trial

court told Appellant Attorney Kesyser would participate in voir dire on Appellant's behalf

in order to avoid jury intimidation and due to fact the trial court had no notice of Appellant's

desire to represent himself.

{¶7} During voir dire, the trial court learned eight of the potential jurors had

served in cases before the court in the previous few weeks. All eight of the jurors

indicated their prior jury service would not affect their ability to be fair and impartial in

Appellant's case. All eight of the jurors were passed for cause. Appellant exercised three

of his preemptory challenges, but did not utilize his preemptory challenges on any of those

eight jurors. Three of the eight jurors who had previously served were selected to serve

on Appellant's jury.
Richland County, Case No. 15CA73 4

{¶8} The following evidence was adduced at trial. At approximately 9:00 a.m. on

February 1, 2015, Mario Jester encountered Appellant at Richland Bank located on the

intersection of Park and Marion Avenues in Mansfield, Ohio. Later that evening, Jester

again encountered Appellant while he (Jester) was walking to his residence at 101 W. 4th

Street. Jester, who had met Appellant a year earlier and who had welcomed Appellant

into his home on one or two prior occasions, invited Appellant to join him at a Super Bowl

party at the home of his friend, Robert Ware, located at 96 South Mulberry Street.

Appellant accepted Jester's invitation. The two men arrived at Ware's home shortly

before the 6:30 p.m. kickoff. While watching the game, Appellant, who had been drinking

alcohol, stated he wanted to score some drugs and became aggressive with one of the

other guests at the party.

{¶9} At approximately 9:30 p.m., Appellant asked Jester if they could leave the

party and return to Jester's residence. Jester agreed and the two men proceeded to

Jester's home. During the walk, Appellant stopped at an ATM machine. Appellant told

Jester he had no money, and needed to wait until after midnight until his check cleared.

Jester agreed to let Appellant stay at his residence until Appellant's check cleared and he

had access to money in order to pay for a cab ride back to his home in Tiffin, Ohio.

{¶10} While at Jester's residence, Jester and Appellant continued to drink alcohol

and watch the Super Bowl. Appellant began to pressure Jester to obtain drugs, but Jester

refused. Jester fell asleep in his recliner at approximately 11:00 p.m.

{¶11} After Jester fell asleep, Appellant struck Jester with a wooden butcher block

he took from the kitchen. The blow caused a six inch gash on the back of Jester's head.

Jester woke up with blood gushing from his head. Appellant tied Jester's hands behind
Richland County, Case No. 15CA73 5

his back with a bed sheet, laid Jester on the floor, and searched Jester's pockets.

Appellant then ordered Jester into the bedroom and onto the bed, face down. Appellant

went into the bathroom, placed the butcher block on the side of the vanity and washed

his hands. At some point, Jester's pit bull charged Appellant and started barking.

Appellant fled the residence.

{¶12} Several minutes later, Jester got off the bed and walked to a neighbor's

house to get help. Jester's neighbor called 911. Mansfield Police Officer Jared

Kingsborough responded to Jester's home at 11:30 p.m. Paramedics arrived minutes

later and transported Jester to Mansfield MedCentral.

{¶13} After Officer Kingsborough obtained a key from Jester's landlord, he and

Officers Soehnlen and Telquist searched Jester's residence. The officers observed blood

on the side of the recliner, blood on the floor next to the recliner, a shard of wood from

the butcher block on the floor next to the recliner, a kitchen knife on a table next to the

recliner, the butcher block on the bathroom vanity, and several ounces of blood on a

pillowcase. The officers did not find any firearms or signs of struggle. The officers

photographed the scene as well as the evidence. They collected the butcher block, shard

of wood, bloody pillowcase, and kitchen knife which were submitted to the crime lab.

{¶14} Thereafter, Officers Soehlen and Telquist proceeded to MedCentral to

speak with Jester. The officers photographed Jester, whose t-shirt was soaked in blood

and who still had a piece of bed sheet wrapped around his right wrist. The officers

collected the t-shirt and a piece of the bed sheet. Due to the severity of Jester's injuries,

Officers Soehlen and Telquist did not take a statement from him. The gash on the back
Richland County, Case No. 15CA73 6

of Jester's head required fourteen staples, and damage to his right ear required three

staples.

{¶15} After fleeing Jester's residence, Appellant proceeded to Harmony House in

Mansfield, where he spent the night. Appellant advised the staff of Harmony House he

had been stranded by friends.

{¶16} On February 5, 2015, Detective William Bushong of the Mansfield Police

Department obtained a tape statement from Jester. Jester, who fully cooperated with the

detective, recounted the assault, identified his attacker as "Chris", and provided a physical

description of his attacker which matched Appellant. Jester's girlfriend provided the

Mansfield Police Department with Appellant's identification card which was recovered

from Jester's residence. After receiving Appellant's identification card, Detective Bushong

contacted Appellant's probation officer in Tiffin, Ohio, who advised the detective Appellant

was in the Seneca County Jail.

{¶17} On February 9, 2015, Officer Telquist traveled to the Seneca County Jail to

pick up Appellant and transport him to the Richland County Jail. During the transport to

the Richland County Jail, Appellant claimed he had no idea why he had a warrant from

Richland County and never mentioned interacting with Jester. When he arrived at the

Richland County Jail, Appellant had no visible injuries and did not report any injuries.

During a February 16, 2015 telephone conversation with his mother while he was in the

Richland County Jail, Appellant admitted he assaulted Jester, but claimed he acted in

self-defense.
Richland County, Case No. 15CA73 7

{¶18} After hearing all the evidence and deliberating, the jury found Appellant not

guilty of aggravated robbery, but guilty of kidnapping and felonious assault. The trial court

scheduled a sentencing hearing for July 14, 2015.

{¶19} The trial court sentenced Appellant to eight years on the kidnapping count

and eight years on the felonious assault count. The trial court ordered the sentences to

run concurrently with each other and consecutively to two years of post-release control in

a 2013 case, for a cumulative prison term of ten years. The trial court also imposed five

years of mandatory post-release control, and ordered Appellant to pay $40 in restitution.

{¶20} The trial court appointed Attorney Dale Musilli as appellate counsel.

Appellant filed a timely Notice of Appeal to this Court.

{¶21} Appellant requested an extension of time with the trial court, requesting

additional time to transmit the record. The trial court granted Appellant until November 9,

2015, to transmit the record. Attorney Musilli filed a motion to withdraw as counsel on

October 10, 2015, which the trial court granted. The trial court appointed Attorney William

Cramer.

{¶22} On November 9, 2015, Appellant filed a motion for extension of time to

transmit the record with this Court. This Court granted Appellant until December 9, 2015,

to transmit the record. On December 7, 2015, this Court issued a Notice of Filing

Transcript.

{¶23} Appellant filed a motion for extension of time to file his brief on December

28, 2015. The Court granted the motion, ordering Appellant to file his brief no later than

January 19, 2016. On January 15, 2016, Attorney Cramer filled a motion to withdraw

based upon Appellant's desire to proceed pro se. This Court denied Attorney Cramer's
Richland County, Case No. 15CA73 8

motion as he failed to comply with Loc. R. 3. On February 1, 2016, Attorney Cramer filed

a second motion to withdraw as well as a motion to enlarge time in which to file Appellant's

brief. This Court granted both motions, and ordered Appellant to file his pro se brief no

later than March 18, 2016.

{¶24} On February 29, 2016, Appellant filed a request for copy of transcript with

this Court and a motion for preparation of complete transcript of proceedings at state's

expense with the trial court. The trial court overruled Appellant's motion, but ordered

Attorney Cramer to turn over to Appellant the copy of the transcript which he had

previously been provided. Appellant filed a request for an extension of time to file his brief

with this Court on March 8, 2016. On March 14, 2016, Attorney Cramer filed a notification

the transcript had been transmitted to Appellant. This Court granted Appellant's motion

for extension of time, and ordered Appellant to file his brief no later than April 18, 2016.

Appellant filed a second motion for extension of time, which this Court granted, ordering

Appellant to file his brief no later than May 18, 2016.

{¶25} Appellant filed a motion to provide audio recordings of trial proceedings with

this Court on April 26, 2016. In his motion, Appellant claimed there were discrepancies

in the trial transcript he had received from Attorney Cramer. Appellant filed his brief with

this Court on May 17, 2016, but failed to provide the required number of copies and failed

to serve the state. This Court subsequently overruled Appellant's motion to provide audio

recordings of trial proceedings.

{¶26} Appellant assigns the following as error:

{¶27} “I. ERROR OF LAW IN JURY SELECTION:
Richland County, Case No. 15CA73 9

{¶28} “(A) JURORS SERVING ON MULTIPLE JURIES, ASSUMING AN

UNPROFESSIONAL RELATIONSHIP WITH THE TRIAL COURT.

{¶29} “(B) DENYING PRO SE DEFENDANT HIS RIGHT TO PARTICIPATE IN

JURY SELECTION, LIMITING VOIR DIRE.

{¶30} “II. PROSECUTORIAL MISCONDUCT:

{¶31} “PROSECUTING ATTORNEY KNOWINGLY WITHHELD EVIDENCE AND

TAMPERED WITH THE EVIDENCE.

{¶32} “III. SUFFICIENCY OF THE EVIDENCE:

{¶33} “APPELLANT MCCABE'S CONVICTION VIOLATES THE UNITED STATE

CONSTITUTION BECAUSE THE EVIDENCE AT TRIAL IS INSUFFICIENT TO

PROPERLY SUPPORT THE CONVICTION.

{¶34} “IV. MANIFEST WEIGHT OF THE EVIDENCE:

{¶35} “APPELLANT MCCABE'S CONVICTION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.

{¶36} “V. DENIAL OF COMPULSION:

{¶37} “APPELLANT MCCABE'S CONVICTION IS UNCONSTITUTIONAL

BECAUSE HE WAS DENIED HIS RIGHT TO CALL FORTH WITNESSES IN FAVOR OF

HIS DEFENSE.”

{¶38} We begin by noting Appellant has failed to comply with App. R. 16.

{¶39} App. R. 16(A) provides:

The appellant shall include in its brief, under the headings and in the

order indicated, all of the following:

(1) A table of contents, with page references.
Richland County, Case No. 15CA73 10

(2) A table of cases alphabetically arranged, statutes, and other

authorities cited, with references to the pages of the brief where cited.

(3) A statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected.

(4) A statement of the issues presented for review, with references

to the assignments of error to which each issue relates.

(5) A statement of the case briefly describing the nature of the case,

the course of proceedings, and the disposition in the court below.

(6) A statement of the facts relevant to the assignments of error

presented for review, with appropriate references to the record * * *

(7) An argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons

in support of the contentions, with citations to the authorities, statutes, and

parts of the record on which appellant relies. The argument may be

preceded by a summary.

(8) A conclusion briefly stating the precise relief sought.

{¶40} Appellant's brief does not satisfy the requirements of App. 16(A); therefore,

is noncompliant. Absent minimal compliance with App. R. 16(A), this Court cannot

reasonably respond to Appellant's claims, and may, in its discretion, disregard those

claims. See, Foster v. Board of Elections (1977), 53 Ohio App. 2d 213, 228. Such

deficiencies are tantamount to failure to file a brief. Although this Court has the authority

under App. R. 18(C) to dismiss an appeal for failure to file a brief, we elect not to do so in

this case.
Richland County, Case No. 15CA73 11

{¶41} Furthermore, Appellant's brief does not contain an acknowledgment of

service or a proof of service upon the state as required by App. R. 13. Pursuant to App.

R. 13(D), this Court cannot consider any pleading which does not contain “an

acknowledgment of service by the person served or proof of service in the form of a

statement of the date and manner of service and of the names of the persons served,

certified by the person who made service.” Despite Appellant’s failure, we elect to

proceed to address his assignments of error.

I

{¶42} In his first assignment of error, Appellant contends the trial court erred by

permitting three jurors who had previously served on juries in the same court to serve on

the jury in his case. Appellant also asserts the trial court improperly prohibited him from

participating in voir dire.

{¶43} With respect to the Appellant's first claim, we find the trial court did not err

in permitting three jurors who had previously served on juries to serve on Appellant's jury.

R.C. 2313.17(B) and Crim. R. 24(C) set forth the bases for challenging prospective jurors

for cause. R.C. 2313.17(B) specifically provides:

(B) The following are good causes for challenge to any person called

as a juror:

(1) That the person has been convicted of a crime that by law renders

the person disqualified to serve on a jury;

(2) That the person has an interest in the cause;

(3) That the person has an action pending between the person and

either party;
Richland County, Case No. 15CA73 12

(4) That the person formerly was a juror in the same cause;

(5) That the person is the employer, the employee, or the spouse,

parent, son, or daughter of the employer or employee, counselor, agent,

steward, or attorney of either party;

(6) That the person is subpoenaed in good faith as a witness in the

cause;

(7) That the person is akin by consanguinity or affinity within the

fourth degree to either party or to the attorney of either party;

(8) That the person or the person's spouse, parent, son, or daughter

is a party to another action then pending in any court in which an attorney

in the cause then on trial is an attorney, either for or against any such party

to another such action;

(9) That the person discloses by the person's answers that the

person cannot be a fair and impartial juror or will not follow the law as given

to the person by the court.

{¶44} Likewise, Crim. R. 24(C) provides:

(C) Challenge for Cause. A person called as a juror may be

challenged for the following causes:

(1) That the juror has been convicted of a crime which by law renders

the juror disqualified to serve on a jury.

(2) That the juror is a chronic alcoholic, or drug dependent person.

(3) That the juror was a member of the grand jury that found the

indictment in the case.
Richland County, Case No. 15CA73 13

(4) That the juror served on a petit jury drawn in the same cause

against the same defendant, and the petit jury was discharged after hearing

the evidence or rendering a verdict on the evidence that was set aside.

(5) That the juror served as a juror in a civil case brought against the

defendant for the same act.

(6) That the juror has an action pending between him or her and the

State of Ohio or the defendant.

(7) That the juror or the juror's spouse is a party to another action

then pending in any court in which an attorney in the cause then on trial is

an attorney, either for or against the juror.

(8) That the juror has been subpoenaed in good faith as a witness in

the case.

(9) That the juror is possessed of a state of mind evincing enmity or

bias toward the defendant or the state; but no person summoned as a juror

shall be disqualified by reason of a previously formed or expressed opinion

with reference to the guilt or innocence of the accused, if the court is

satisfied, from the examination of the juror or from other evidence, that the

juror will render an impartial verdict according to the law and the evidence

submitted to the jury at the trial.

(10) That the juror is related by consanguinity or affinity within the

fifth degree to the person alleged to be injured or attempted to be injured by

the offense charged, or to the person on whose complaint the prosecution

was instituted; or to the defendant.
Richland County, Case No. 15CA73 14

(11) That the juror is the person alleged to be injured or attempted to

be injured by the offense charged, or the person on whose complaint the

prosecution was instituted, or the defendant.

(12) That the juror is the employer or employee, or the spouse,

parent, son, or daughter of the employer or employee, or the counselor,

agent, or attorney, of any person included in division (C)(11) of this rule.

(13) That English is not the juror's native language, and the juror's

knowledge of English is insufficient to permit the juror to understand the

facts and the law in the case.

(14) That the juror is otherwise unsuitable for any other cause to

serve as a juror.

{¶45} Neither R.C. 2313.17(B) nor Crim. R. 24(C) include prior service as a basis

for challenging a juror for cause. Further, R.C. 2313.21, which sets forth the basis for

discharging a juror, only provides for the discharge of a juror if "[a] person who is

summoned as a juror * * * has actually served as a juror in any county of the state under

Chapter 2313. of the Revised Code for two consecutive calendar weeks". R.C.

2313.21(A). There is no record demonstration any of the juror who had previously served

had served for two consecutive calendar weeks.

{¶46} In addition, Appellant had the opportunity to remove up to four of the

prospective jurors, using his preemptory challenges. Appellant chose not to do so.

Appellant applied three of his preemptory challenges to prospective jurors who had not

previously served, and waived his fourth challenge.
Richland County, Case No. 15CA73 15

{¶47} We now turn to the Appellant's second claim the trial court erred in

prohibiting from participating in jury selection and limiting voir dire. It is well established

that although a defendant has the right to counsel or the right to act pro se, a defendant

does not have any right to “hybrid representation.” State v. Martin, 1-103 Ohio St.ed 385,

2004-Ohio-5471, paragraph one of the syllabus; State v. Thompson (1987), 33 Ohio St.

3d 1, 6-7. The right to counsel and the right to act pro se “are independent of each other

and may not be asserted simultaneously.” Martin at paragraph one of the syllabus.

{¶48} Prior to the start of voir dire, Attorney Keyser advised the trial court

Appellant wished to "take the lead" in his case and conduct voir dire himself. The trial

court, having no prior notice of Appellant's desire to proceed pro se, expressed concern

over jury intimidation by Appellant. The trial court ultimately ruled it would not permit

Appellant to personally conduct the voir dire, but would allow Appellant to provide

Attorney Keyser with the questions he wanted the prospective jurors to be asked.

Appellant did not provide Attorney Keyser with any questions during voir dire. Appellant

has failed to demonstrate he was prejudiced by not being permitted to personally conduct

voir dire.

{¶49} We find the trial court did not err in prohibiting Appellant from conducting

voir dire himself.

{¶50} Appellant's first assignment of error is overruled.

II

{¶51} In his second assignment of error, Appellant asserts prosecutorial

misconduct. Specifically, Appellant asserts the state withheld evidence and tampered

with evidence.
Richland County, Case No. 15CA73 16

{¶52} The test for prosecutorial misconduct is whether the conduct was improper

and, if so, whether the rights of the accused were materially prejudiced.” State v. Smith,

97 Ohio St. 3d 367, 2002-Ohio-6659, para. 45. “The ‘conduct of a prosecuting attorney

during trial cannot be grounds for error unless the conduct deprives the defendant of a

fair trial'." Id. (Citations omitted). “Prosecutorial misconduct constitutes reversible error

only in rare instances.” State v. Keenan (1993), 66 Ohio St.3d 402, 405. “The touchstone

of analysis * * * is the fairness of the trial, not the culpability of the prosecutor." Smith v.

Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78. The Constitution

does not guarantee an “error free, perfect trial * * *.” United States v. Hastings (1983),

461 U.S. 499, 508, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96.

{¶53} Appellant claims the state improperly withheld the statement Jester gave to

Detective Bushog on February 5, 2015.

{¶54} Det. Bushog testified he took a taped statement from Jester on February 5,

2015. Jester had not given police a statement prior to this date. Det. Bushog stated

Jester did not say anything during his trial testimony which was materially different from

his February 5, 2015 statement. Appellant did not cross-examine Det. Bushog about

Jester’s statement.

{¶55} During Appellant’s cross-examination of Det. Bushog, Appellant asked the

detective who wrote a certain report on the night of the incident. Det. Bushog responded

he could provide an answer if he looked at the report. Appellant showed Det. Bushog a

document which listed the officers who assisted at the crime scene on the night of the

incident. Det. Bushog indicated he did not write the report, and could not tell who did as

Appellant had only shown him a portion of the document. Appellant did not question Det.
Richland County, Case No. 15CA73 17

Bushog about Jester’s February 5, 2015 statement. Appellant also did not advise the trial

court he did not receive the statement Jester gave Det. Bushog on February 5, 2015.

{¶56} Assuming, arguendo, the state failed to provide Appellant with Jester’s

February 5, 2015 statement, we find Appellant is unable to establish he was materially

prejudiced by the prosecutor’s failure to do so. There is nothing in the record to establish

the statement was exculpatory. In fact, based upon Det. Bushog’s testimony there were

no material differences between Jester’s trial testimony and his original statement, it

appears the statement would have been inculpatory.

{¶57} Appellant further submits the state withheld exculpatory photographs of the

crime scene.

{¶58} Appellant testified on his own behalf. During Appellant's testimony,

Attorney Keyser showed him a photograph of the bathroom in Jester's residence.

Appellant commented, "I just got this yesterday. This was not in my motion to discovery,

I was entitled to every bit of it." Transcript of Trial, Vol. II at 315. The state objected,

advising the trial court Appellant had been provided discovery months earlier. Id.

Appellant responded, "And I didn't receive this." Id. The trial court admonished Attorney

Keyser, "this kind of stuff can't go on. If there was a problem with discovery it should have

been raised before trial. You know that's the case. So if you didn't give that to him, that's

not the prosecutor's problem." Id.

{¶59} Appellant claims these photographs clearly suggest Jester's version of the

events were false. However, Appellant has failed to demonstrate how these photographs

would exculpate him or prove Jester's account was not credible. Appellant has not

demonstrated prejudice.
Richland County, Case No. 15CA73 18

{¶60} Within this assignment of error, Appellant also argues the state tampered

with the recording of the telephone conversations he had with his mother while in the

Richland County Jail. The state acknowledged it edited the recording of the telephone

conversations to include only Appellant's incriminating statements. The trial court ruled

the state had gone too far with its editing, and held the portions of the recording referring

to the events of February 2, 2015, would either be played in their entirety or not played at

all. The trial court found the remaining portions of the conversations were irrelevant;

therefore, inadmissible. The state played the recording of the conversations. The trial

court stopped the recording when the state played portions not relevant to the charges.

{¶61} Assuming, arguendo, the prosecutor's conduct of which Appellant

complains was improper, we cannot find such conduct had any prejudicial impact on the

trial itself.

{¶62} Appellant's second assignment of error is overruled.

III, IV

{¶63} We choose to address Appellant's third and fourth assignments of error

together. In his third assignment of error, Appellant raises an insufficiency of the evidence

claim. In his fourth assignment of error, Appellant raises a manifest weight of the

evidence claim.

{¶64} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus, in

which the Ohio Supreme Court held, “[a]n 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
Richland County, Case No. 15CA73 19

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. Dowdle, 5th Dist. Stark No. 2015CA00119, 2016-Ohio-485,

para. 16.

{¶65} 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 (1997), 78 Ohio St.3d 380,

387. 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.

{¶66} Appellant was convicted of one count of kidnapping, in violation of R.C.

2905.01(A)(2), which provides:

(A) No person, by force, threat, or deception, or, in the case of a

victim under the age of thirteen or mentally incompetent, by any means,

shall remove another from the place where the other person is found or

restrain the liberty of the other person, for any of the following purposes: *

* * (2) To facilitate the commission of any felony or flight thereafter.

{¶67} As set forth in the Statement of the Case and Facts, supra, Appellant used

force to restrain Jester's liberty. Appellant admitted he tied Jester's hands behind his
Richland County, Case No. 15CA73 20

back and ordered him into the bedroom. Accordingly, the only element in dispute is

whether Appellant's actions were done "[t]o facilitate the commission of a felony or flight

thereafter."

{¶68} Jester testified Appellant tied him up with a bed sheet, ordered him to the

ground, and then reached into his pockets. This testimony, when viewed in the light most

favorable to the state, supports a finding beyond a reasonable doubt Appellant restrained

Jester's liberty to facilitate robbing him. Jester also testified after Appellant struck him in

the head with the butcher block and tied him up, Appellant ordered him to lay on the bed,

face down. Appellant threatened to kill him, and then fled shortly thereafter. This

testimony, when viewed in the light most favorable to the state, supports a finding beyond

a reasonable doubt Appellant restrained Jester's liberty to facilitate fleeing the scene after

the assault.

{¶69} Appellant further contends because the jury acquitted him of the aggravated

robbery charge, his conviction for kidnapping was based upon insufficient evidence and

against the manifest weight of the evidence. We disagree.

{¶70} “Consistency between verdicts on several counts of an indictment is

unnecessary where the defendant is convicted on one or some counts and acquitted on

others; the conviction generally will be upheld irrespective of its rational incompatibility

with the acquittal.” State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, citing State

v. Adams (1978), 53 Ohio St.2d 223, vacated in part on other grounds in Adams v. Ohio,

439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. Every count of a multiple-count indictment is

considered to be distinct and independent of all the other counts; therefore, inconsistent

verdicts on different counts do not justify overturning a verdict of guilt. Id. (Citations
Richland County, Case No. 15CA73 21

omitted). As the Ohio Supreme Court has stated, “the sanctity of the jury verdict should

be preserved and could not be upset by speculation or inquiry into such matters to resolve

the inconsistency.” State v. Lovejoy (1997), 79 Ohio St.3d 440, 444.

{¶71} Appellant was also convicted of felonious assault, in violation of

R.C.2903.11(A)(1), which reads, "(A) No person shall knowingly * * * (1) Cause serious

physical harm to another or to another's unborn."

{¶72} “Serious physical harm” is defined as "(a) Any mental illness or condition of

such gravity as would normally require hospitalization or prolonged psychiatric treatment;

* * * (d) Any physical harm that involves some permanent disfigurement or that involves

some temporary, serious disfigurement". R.C. 2901.01(A)(5).

{¶73} Jester testified, as the result of the assault by Appellant, he received a six

inch gash on the back of his head, and an injury to his ear which required seventeen

staples to repair. Jester stated he has a permanent scar on the back of his head. Jester

further testified he continues to seek treatment for the mental trauma caused by the

assault. He also suffers physical effects such as lightheadedness and headaches.

{¶74} Appellant claims he acted in self-defense; therefore, his conviction for

felonious assault should not stand. Pursuant to R.C. 2901.05(A), Appellant bore the

burden of proving self-defense by a preponderance of the evidence. The only testimony

in support of Appellant's claim of self-defense was his own self-serving testimony.

{¶75} The evidence presented by the state included not only physical evidence,

such as the blood on the recliner, the knife recovered from the table next to the recliner,

the butcher block, and the blood stained bed pillow, but also Jester's testimony and the

testimony of law enforcement officers.
Richland County, Case No. 15CA73 22

{¶76} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness's credibility. “While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. Craig (March 23, 2000), Franklin App. No. 99AP-739 (Citation

omitted). Indeed, the jurors need not believe all of a witness' testimony, but may accept

only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958,

at para. 21 (Citation omitted).

{¶77} The jury obviously chose to believe Jester's account of the assault.

{¶78} We find Appellant's convictions were neither based upon insufficient

evidence nor against the weight of the evidence.

{¶79} Appellant's third and fourth assignments of error are overruled.

V.

{¶80} In his final assignment of error, Appellant maintains his conviction is

unconstitutional because he was denied his right to call forth witnesses in favor of his

defense. Specifically, Appellant claims the trial court failed to issue subpoenas for

witnesses as requested. Appellant asserts these witnesses could have enabled him to

disprove Jester's claims.

{¶81} A review of the record reveals Appellant filed precipes for subpoenas for

Jeff Partin, Renee Tucker, and Angela Riley. The trial court issued the subpoenas, the

witnesses were served and appeared at trial. There is no record demonstration Appellant

filed precipes for subpoenas which the trial court did not issue. In his brief to this Court,

Appellant references a portion of the trial transcript which reveals Appellant's frustration
Richland County, Case No. 15CA73 23

with the state for not calling certain witnesses. There is no obligation upon the state to

call every potential witness. Appellant was not prevented from calling any witnesses.

{¶82} Appellant's fifth assignment of error is overruled.

{¶83} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur