[Cite as State v. Kress, 2018-Ohio-4318.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
RICHARD KRESS : Case No. 2018CA00003
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2017
CR 1616
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 22, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO EUGENE CAZANTZES
Prosecuting Attorney 101 Central Plaza South, Ste. 1000
Canton, Ohio 44702
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Ste. 510
Canton, Ohio 44702-1413
Stark County, Case No. 2018CA00003 2
Baldwin, J.
{¶1} Appellant, Richard Kress, appeals the December 1, 2017 decision of the
Stark County Court of Common Pleas convicting him of felonious assault. Appellee is the
State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} On Friday, August 18, 2017, Appellant and the victim, Korie Ball, were at
Kendall Funk’s home on Garden Street in Alliance, Ohio with several other people. At
some time in the evening, appellant’s girlfriend, Misty, claimed that someone had stolen
her drugs. After an unsuccessful search, Appellant and Misty conducted individual strip
searches of everyone in the home.
{¶3} After Korie Ball was searched he sat in the living room and began talking
with appellant. Appellant and Misty went back into a bedroom, and, when they returned,
appellant approached Korie Ball, started pacing back and forth, and stabbed him in the
bicep.
{¶4} Korie Ball testified he “was sitting there and [appellant] was pacing back and
forth, looked at me and stabbed me.” Brittany Burns, Korie’s girlfriend, was in the
bathroom when she heard Korie Ball scream. She looked out and saw appellant stab
Korie Ball in the arm and the profuse bleeding caused by the wound. Kendall Funk
claimed appellant “act[ed] like he [was] going to stab” Korie Ball, but he did not believe
appellant intended to harm him, but only meant to scare him. Funk stated that Korie Ball
jumped when appellant acted like he was going to stab him, and Ball was impaled on the
knife as a result of his own movement and not appellant’s action. Aleecia Braham also
Stark County, Case No. 2018CA00003 3
witnessed the assault and testified that Korie Ball’s reaction to appellant’s threatening
motion caused the injury.
{¶5} Korie Ball was bleeding profusely as he left Kendall Funk’s house. Misty,
took Korie Ball to the hospital and while they were gone, appellant forced Brittany Burns
and Aleecia Braham to clean the blood and burn the bloody rags. When Misty returned
from the hospital, appellant left the house after he learned the police would be responding
to the scene to investigate the stabbing.
{¶6} Detective Rebecca Green of the Stark County Sheriff’s Office responded to
the scene but no one would answer the door. She did not notice any blood on the
premises, but did see a smoking “fire pit” in the yard. Detective Green spoke with Korie
Ball after he recovered from surgery, later talked with several witnesses, and used that
information to obtain a warrant for appellant’s arrest.
{¶7} On October 13, 2017, the appellant was indicted on one count of felonious
assault, a violation of R.C. 2903.11(A)(2) and felony of the second degree. The jury found
the appellant guilty and, on December, 5, 2017, the trial court sentenced him to a term of
six years. On January 3, 2018, the appellant filed a timely Notice of Appeal and submitted
one assignment of error:
{¶8} “I. THERE WAS INSUFFICIENT EVIDENCE TO FIND THE APPELLANT
GUILTY OF FELONIOUS ASSAULT AND HIS CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
STANDARD OF REVIEW
{¶9} On review for sufficiency, the reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Stark County, Case No. 2018CA00003 4
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991). “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.”
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, the reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the 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, 485 N.E.2d 717 (1st Dist.1983); see also State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial “should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction.”
Martin, supra at 175.
{¶10} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967). 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, 674 N.E.2d 1159.
ANALYSIS
{¶11} In his sole Assignment of Error, appellant argues that there was not
sufficient evidence to find him guilty of felonious assault and his conviction was against
the manifest weight of the evidence. We disagree.
Stark County, Case No. 2018CA00003 5
{¶12} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(2) which provides in part that “no person shall knowingly *** [c]ause or attempt
to cause physical harm to another *** by means of a deadly weapon.” “A person acts
knowingly, regardless of his purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.” R.C.
2901.22(B). A deadly weapon is “any instrument, device, or thing capable of inflicting
death, and designed or specifically adapted for use as a weapon, possessed, carried, or
used as a weapon. R.C. 2923.11(A). In State v. Hosier, 5th Dist. Morgan No. 2005-CA-
016, 2006-Ohio-5540, ¶ 26, this court explained that:
Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and
circumstances including the doing of the act itself. [Citation omitted.]
Thus, ‘[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria. [Citations
omitted.]’
{¶13} In the case at hand, Appellant concedes that Korie Ball “suffered a serious
injury” which was “caused by a knife, a deadly weapon.” Appellant’s Brief at 9. However,
appellant asserts that the evidence is insufficient for a conviction of felonious assault
because it does not support the conclusion that he knowingly stabbed Korie Ball. Id.
Appellant also contends that the conviction was against the manifest weight of the
evidence due to issues in witness credibility, a lack of motive or intent to harm Korie Ball,
and conflicting witness testimony presented by the State at trial.
Stark County, Case No. 2018CA00003 6
{¶14} We have reviewed the record in this matter and conclude the state
presented sufficient evidence to establish every element of felonious assault and that the
conviction was not against the manifest weight of the evidence. The surrounding facts
and circumstances support the jury’s conclusion that the appellant acted knowingly when
he caused serious physical harm to Korie Ball. Furthermore, the jury did not “lose its way”
in resolving conflicts in the evidence or weighing witness credibility.
{¶15} At trial, the State of Ohio called four witnesses to the assault: Brittany Burns,
Korie Ball, Kendall Funk, and Aleecia Braham. Brittany Burns and Korie Ball asserted that
appellant stabbed Korie Ball. Kendall Funk and Aleecia Braham stated that appellant
made a threatening motion toward Korie Ball with a knife, causing Korie Ball to jump and
impale himself.
{¶16} The witnesses, whether they embraced the theory that that Korie Ball was
directly stabbed by appellant or that Korie Ball “jumped up” into the blade, agreed that the
appellant brandished a knife and made some type of threatening motion toward Korie
Ball. When viewing the evidence presented in the light most favorable to the prosecution,
the jury was free to rely on the testimonies of Brittany Burns and Korie Ball to find that the
appellant knowingly stabbed a knife directly into Korie Ball’s arm.
{¶17} Alternatively, the testimonies of Kendall Funk and Aleecia Braham were
sufficient for the jury to find that the appellant satisfied the knowledge component of the
felonious assault. Funk and Braham stated that the appellant intended to scare Korie Ball
by lunging toward him with a knife to make him flinch. One who lunges with a knife toward
an unsuspecting individual is “aware that his conduct will probably cause a certain result”
such as a grievous stab wound.
Stark County, Case No. 2018CA00003 7
{¶18} Therefore, we hold the state presented sufficient evidence for a jury to find
that the appellant acted with the requisite intent for felonious assault.
{¶19} Appellant's manifest weight argument focuses on (1) the credibility of the
witnesses who admitted on the stand to a history of recreational drug use and (2) the
conflicting testimonies offered by the witnesses. However, the weight and credibility to be
given each witness’s testimony is primarily for the jury to determine. State v. DeHass 10
Ohio St.2d at paragraph one of syllabus. Furthermore, appellant claims that the state
needed to provide a motive for the stabbing to establish knowledge, but, as noted above,
the state carries no such burden because “a person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result.” R.C.
2901.22(B) (emphasis added).
{¶20} Based upon our review of the record, we do not find the jury clearly lost its
way in making credibility judgements or resolving testimonial conflicts regarding
appellant’s intent to stab Korie Ball with a knife in violation of R.C. 2903.11(A)(2).
Stark County, Case No. 2018CA00003 8
CONCLUSION
{¶21} Based on the foregoing, we find that viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found that appellant
committed the offense of felonious assault beyond a reasonable doubt. We further find
that the jury did not clearly lose its way in convicting appellant and the conviction did not
create such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered. Appellant’s sole assignment of error is accordingly overruled. The
decision of the Stark County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Delaney, J. concur.