[Cite as State v. Fife, 2021-Ohio-2000.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-470
v. : (C.P.C. No. 18CR-1691)
James D. Fife, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 15, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Jeremy A. Roth, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BROGAN, J.
{¶ 1} Defendant-appellant, James D. Fife ("appellant"), appeals a judgment of the
Franklin County Court of Common Pleas convicting him, pursuant to jury verdict, of two
counts of felonious assault. Finding no merit to the appeal, we affirm.
{¶ 2} By indictment filed April 9, 2018, plaintiff-appellee, State of Ohio, charged
Fife with two counts of felonious assault in violation of R.C. 2903.11, felonies of the second
degree, for knowingly causing serious physical harm to Chatos Obey ("Chatos") and Merrie
Obey ("Merrie"). Fife pleaded not guilty and requested a jury trial. Fife was tried jointly
No. 19AP-470 2
with co-defendant Jordan D. Moore, Sr. and they were represented by separate counsel.
This court addressed Moore's appeal in State v. Moore, 10th Dist. No. 19AP-464, 2021-
Ohio-1379, eliciting a statement of facts common to the present case, as follows.
{¶ 3} The state presented the following evidence in its case-in-chief. Chatos
testified that on December 31, 2017, he and his then-fiancé (now wife), Erin Palmer
("Erin"), his sister, Ashley Green ("Ashley"), his mother, Merrie, and Merrie's partner,
Michelle White ("Michelle"),1 celebrated New Year's Eve at Rosie O'Grady's, a
restaurant/bar located on Morse Road in Columbus. The group was there for several hours,
eating, drinking, and playing pool. Just after midnight on January 1, 2018, the family
walked outside to the patio area to smoke. Chatos saw Fife, and the two made eye contact.
According to Chatos, Fife said "what the F you looking at?" (Tr. at 405.) Chatos told Ashley
that he met Fife while the two were in jail together,2 and that Fife did not like him.
{¶ 4} Chatos and his family decided to leave the bar. Because there was no exit
from the patio to the parking lot, they had to walk back inside the bar in order to leave
through the front entrance. Chatos led his group through the walkway from the patio to the
bar. Once inside, Chatos was immediately "picked up * * * 10 feet off the ground [and]
slammed onto the ground" by the bouncer. Id. at 411. He was then "just getting wailed on.
I couldn't see. It was just blows * * * hitting me left and right." Id. Chatos identified his
assailants as "James Fife, his group, Jordan Moore, the [bouncer]." Id. at 412. He testified
that he "caught glimpses" of his assailants as he was "getting tossed around." Id. The
1 Where appropriate, we collectively refer to Chatos, Erin, Ashley, Merrie, and Michelle as "the Obey
family."
2 Jacob Stanley, a Corrections Officer with the Franklin County Sheriff's Office, confirmed that Chatos and
Fife were housed together in the Franklin County Jail for three days in April 2016 (State's Ex. 46(a) and
46(b)).
No. 19AP-470 3
assailants kicked him and hit him with their fists. Chatos and Erin were then pushed out
the front door into the parking lot. Because the rest of the family was still inside the bar,
Chatos and Erin remained in the parking lot. Chatos spoke to the bouncer, who apologized
about what had happened. Immediately thereafter, Fife, Moore, and a large, light-skinned
African American man with braids, later identified as Daquan Shropshire ("Shropshire"),3
"jumped" Chatos in the parking lot and beat him unconscious. Id. at 413. By the time he
regained consciousness, all three assailants had left the scene. Chatos and Erin sat inside
their vehicle and waited for his family members to emerge from the bar.
{¶ 5} Police soon arrived at the scene. Chatos had difficulty answering their
questions because his jaw was broken and he was in tremendous pain. He observed Merrie
being placed in an ambulance. Chatos sat in the ambulance with Merrie for a while but
refused medical treatment for himself. He eventually drove Erin home and then asked his
brother to drive him to the hospital. Hospital personnel confirmed his jaw was broken; he
had surgery the next morning to repair it, which involved wiring his jaw closed.
{¶ 6} Chatos identified State's Ex. 28, a DVD containing security footage of Rosie
O'Grady's during the relevant time period.4 The surveillance video was played during trial.
According to Chatos, it depicts the security guard picking him up and slamming him to the
floor as he re-entered the bar from the patio. While he was on the floor, he was punched
and kicked by four individuals. The security footage then shows Chatos and Erin being
pushed out the front door into the parking lot and Chatos being pushed to the ground, hit,
3 Shropshire passed away prior to trial.
4The parties stipulated that the security footage was "clarified" for purposes of trial presentation by Jeff
Brenner at the Bureau of Criminal Investigation. (Tr. at 429.)
No. 19AP-470 4
and kicked. Chatos identified Moore, Fife, and Shropshire as the men in the video walking
out the front door into the parking lot and then assaulting him.
{¶ 7} Chatos further testified that Ashley later found photographs of Moore, Fife,
and Shropshire on Facebook and showed them to him; he identified them as the individuals
who assaulted him. On January 4, 2018, he was interviewed by two Columbus Police
detectives. During that interview, Chatos was shown three photo arrays; he identified
Moore, Shropshire, and Fife as the three men who assaulted him at Rosie O'Grady's. At
trial, he expressly averred that his photo array identifications of Moore and Fife were not
based upon viewing their photographs on Facebook; rather, he identified them because
they were the individuals who assaulted him. He further testified that he was "100 percent"
certain of his identifications. Id. at 469, 479. In doing so, he reiterated that he previously
knew Fife from jail. Id. at 472.
{¶ 8} Chatos identified photographs taken by the detectives which depict the
injuries he sustained in the fight, including his wired broken jaw. (State's Ex. 7-11.) Chatos
testified that he believed his jaw was broken during the fight inside the bar; however, he
further averred "outside I think really helped it get broke." (Tr. at 477.) Chatos denied that
he provoked the fight or did anything to cause the bouncer to throw him to the floor. He
provided in-court identification of Fife as one of the individuals who assaulted him at the
bar. Id. at 477.
{¶ 9} Erin, Merrie, Michelle, and Ashley also testified about the incident. Much of
their testimony corroborated that provided by Chatos and each other, with some
exceptions, additions, and differences. According to Erin, while she and her family were
outside on the patio, Fife walked outside with some other men. Chatos told her that he
knew Fife from jail and "had a problem with him." Id. at 588. After Fife and Chatos said
No. 19AP-470 5
"what's up" to each other, Erin feared that "something's about to happen." Id. at 587-88.
Because she did not want her family to be involved in a fight, she pushed Chatos toward the
door leading into the bar. Once inside, the bouncer threw Chatos into the air. She "didn't
see anything" after Chatos was thrown into the air because she had dropped her
engagement ring and was searching for it on the floor. Id. at 589. After locating her ring,
she saw the bouncer push Chatos out the door into the parking lot. Erin followed Chatos
and chastised the bouncer for his actions. The bouncer apologized to her and Chatos.
{¶ 10} Shortly thereafter, Fife, Moore, and Shropshire walked into the parking lot.
Erin identified the three men on the security footage. (State's Ex. 28.) Moore and Fife
pushed her to the ground and started "beating [Chatos] crazy." (Tr. at 592.) The men were
"beating on him on the ground, kicking him, stomping him in his face, and he's just laying
there." Id. Erin walked inside the bar and saw Merrie with her face covered in blood. She
then walked back to the parking lot and saw Fife. She encouraged Chatos to fight Fife "one-
on-one," which he did. Id. at 594. Moments later, Moore joined Fife in fighting Chatos.
Erin walked to her vehicle and retrieved her gun from under the passenger seat. She
ultimately decided not to use the gun and placed it back under the seat. She walked back
into the bar and asked Merrie what had happened to her. At that point, the police arrived;
Erin told them what had happened to Chatos and took them to him. Erin encouraged
Chatos to report what had happened, but he told her he could not talk or move. He refused
transport to the hospital. Chatos and Erin then drove home. Erin passed out because she
was drunk; Chatos' brother drove him to the hospital.
{¶ 11} The next day, she and Ashley visited Chatos in the hospital. In an effort to
identify his assailants, Chatos stated that he thought the first name of the man with whom
No. 19AP-470 6
he had been in jail began with a "J." Id. at 604. They eventually found Fife's Facebook
page, which included several photographs of him and Moore.
{¶ 12} From photo arrays presented by the police on January 4, 2018, Erin
identified Moore, Shropshire, and Fife as the three men who assaulted Chatos at Rosie
O'Grady's. At trial, she expressly stated that her photo array identifications were not based
upon viewing their photographs on Facebook; rather, she identified them because they had
assaulted Chatos. Id. at 627-28. She provided in-court identifications of Moore and Fife as
Chatos' assailants.
{¶ 13} On cross-examination, Erin averred that Shropshire hit Chatos prior to the
bouncer slamming him to the floor. She surmised that the bouncer did so because he
believed Chatos was the "problem." Id. at 650.
{¶ 14} Merrie testified that she saw Fife while they were outside on the patio and
noticed that he had several tattoos. Fife approached her and asked why she was looking at
him. He then walked inside the bar. To avoid any potential problems, the family decided
to leave. Because there was no exit from the patio, they had to walk through the bar area to
exit through the front door. Once inside, three men, later identified as Fife, Moore, and
Shropshire, started "coming at" Chatos. Id. at 690. The bouncer and other bar patrons
blocked the family's exit. The bouncer picked up Chatos and threw him onto the floor. Fife,
Moore, and Shropshire then "swarmed from behind" and "started beating [Chatos] to
death." Id. at 693. In an effort to help Chatos, Merrie hit one of the men with a wine glass.
In retaliation, Shropshire choked Merrie and pinned her against the wall. Moore joined
Shropshire and the two men "proceeded to beat me and stomp me in the face and my head,"
rendering her unconscious. Id. at 696. According to Merrie, Fife "was there * * * but he did
not hit me." Id. at 696, 729. When she regained consciousness, she was in tremendous pain;
No. 19AP-470 7
indeed, she felt like she "was going to die." Id. at 697. She was transported to the hospital
by ambulance and diagnosed with a "brain bleed." Id. at 699. As a result of her injuries,
she has suffered cognitive disabilities and memory loss.
{¶ 15} On January 4, 2018, detectives interviewed her and took photographs of her
injuries. (State's Ex. 1-6.) From photo arrays, she identified Fife as one of the individuals
who blocked the family's exit. She knew Fife's name because Ashley had sent her
photographs of him she had discovered on Facebook. At trial, Merrie specifically stated
that her photo array identification of Fife was not based upon seeing his photograph on
Facebook; rather, she remembered him from the bar and she also identified Fife at trial.
She candidly admitted that she could not identify either Moore or Shropshire from the
photo arrays. However, at trial, she positively identified Moore as the man who assaulted
Chatos and then her.
{¶ 16} On cross-examination, Merrie blamed her failure to identify Moore from the
photo array on her medical condition. However, she acknowledged that she did not
indicate on the form accompanying the photo array that her medical condition precluded
her from identifying Moore. She further acknowledged that she was presented the photo
arrays closer in time to the incident, yet she could not identify Moore at that time.
{¶ 17} Michelle testified while she and her group were outside on the patio, Fife
asked them why they were looking at him. As they walked inside the bar, the men, later
identified as Fife, Moore, and Shropshire, surrounded them. The men grabbed Chatos by
the throat and threw him into a crowd of people; they then "started wailing on [Chatos]
badly." (Tr. at 739.) Chatos eventually got up and went outside with Erin. Meanwhile,
Michelle saw Merrie on the floor; her face was bleeding badly and she was unconscious.
She did not see how Merrie had been injured.
No. 19AP-470 8
{¶ 18} When presented with photo arrays on January 4, 2018, Michelle identified
Fife as "[t]he one that was like what are you looking at and started pushing" and Moore as
the person who "was on" Merrie. (Id. at 749-50; State's Ex. 35a, 35b, 36a, 36b.) At trial,
Michelle testified that she was "100 percent" sure of her identifications. (Tr. at 750.) She
also provided in-court identifications of Fife and Moore as Chatos' assailants.
{¶ 19} Ashley testified that prior to the fight, Erin told her that Chatos was a "little
upset" and might want to leave because he had seen Fife, whom he met in jail. Id. at at 792.
While on the patio, Chatos made eye contact with Fife, who said "What's your problem?
Why are you looking at me?" Id. at 796. Fife told Chatos that he knew him from jail and
asked him if he wanted to fight. At that point, Ashley and her group decided to leave and
walked into the bar. Fife followed them and then walked over to talk to his friends, later
identified as Moore and Shropshire. Ashley and Merrie asked them to leave them alone.
Immediately thereafter, Ashley saw the bouncer throw Chatos onto the floor. Fife, Moore,
Shropshire, the bouncer, and "random other people from the bar" began punching and
kicking Chatos. Id. at 800-01. Merrie attempted to pull the men off Chatos. To create a
distraction, Ashley grabbed a bottle from the bar and threw it to the floor. Shropshire then
accused Merrie of hitting him over the head with a bottle; he picked Merrie up by the neck,
slammed her to the floor, and kicked her in the face several times. Moore joined Shropshire
and kicked Merrie in the side of the head several times. By this time, Merrie was
unconscious. Fife stood nearby, cheering on Moore and Shropshire. After the assault, the
men left the bar through the front entrance. After the police arrived, Ashley recounted what
had happened to Chatos and Merrie.
{¶ 20} Following the incident, Ashley searched social media sites to find the men
who assaulted them. Ashley found several Facebook profiles attributed to Fife, one of which
No. 19AP-470 9
was under the name "James Jwhiite." Id. at 819-20, 826. She subsequently found Fife's
list of Facebook friends, one of whom was Moore. She scrolled through Moore's
photographs and found several he had posted of him, Fife, and Shropshire together at Rosie
O'Grady's. Ashley recognized the men in the photographs as those who had assaulted
Chatos and Merrie.
{¶ 21} Ashley also found a montage of three photographs Moore posted on
January 1, 2018 at 8:21 p.m. The montage captioned "My current situation," included a
close-up photograph of Moore, a photograph of Moore wearing a walking boot on his right
foot, and a close-up photograph of a plate of food. (State's Ex. 17.) According to Ashley,
Fife, through his "James Jwhiite" profile, commented on Moore's post, stating "You mean
to tell me his face harder than your foot," followed by two smiley faces and one strong arm
emojis. (Tr. at 826, State's Ex. 18.) Immediately following that comment, Moore replied,
"Him and his momma." (State's Ex. 18.) Ashley took a screenshot of the posts and sent
them to Merrie.
{¶ 22} Ashley was interviewed by detectives on January 11, 2018. From photo
arrays, she identified Shropshire as the person "who attacked [Merrie], kicking her on the
ground and holding her neck against the wall." (Tr. at 844-45, State's Ex. 38a, 38b). She
identified Moore as the person who "assisted [Shropshire] in kicking [Merrie]" and "first to
jump [Chatos]." (Tr. at 845; State's Ex. 39a, 39b.) Finally, she identified Fife as "leader of
the pack, started fight, jumped [Chatos]." (Tr. at 846; State's Ex. 40a, 40b.) At trial, Ashley
reiterated her identifications of Moore and Fife.
{¶ 23} On cross-examination, Ashley acknowledged that by the time she was
interviewed on January 11, 2018, she had already completed her Facebook investigation
and had sent her family screenshots of photographs and posts from Moore's Facebook page.
No. 19AP-470 10
She further conceded that the Facebook photographs of Moore at Rosie O'Grady's depict
him wearing a dark-colored shirt, while the security footage does not depict any of Chatos'
attackers wearing a dark-colored shirt.
{¶ 24} Dr. Victor Nguyen, the emergency room physician who treated Merrie at the
hospital, testified that Merrie sustained multiple facial fractures as well as a subarachnoid
hemorrhage, commonly known as a "brain bleed." (Tr. at 367.) Dr. Nguyen opined that
Merrie's injuries would have caused serious physical pain and that her subsequent memory
loss and cognitive and speech difficulties were consistent with having suffered a traumatic
brain injury.
{¶ 25} Dr. Monte E. Masonbrink, the oral and maxillofacial surgeon who treated
Chatos at the hospital, testified that Chatos suffered a bilateral jaw break which required
surgery to wire his jaw closed. Dr. Masonbrink opined that Chatos' injuries would have
been very painful, resulting in immediate speech difficulties. He further opined that
Chatos' injuries were consistent with having been struck multiple times on both sides of his
face or having been slammed to the ground. Dr. Masonbrink also testified that Chatos'
toxicology screen revealed a blood-alcohol concentration of .142.
{¶ 26} Columbus Police Officers Adam Dague and Brandon Fleming testified as first
responders at Rosie O'Grady's on January 1, 2018. Fleming described Merrie as a
"concussed" woman with bloody facial injuries, who reported that two African American
men, one "really heavyset," and one with a medium build, assaulted her. Id. at 905, 910.
Medics arrived at the scene and transported Merrie to the hospital; Chatos, who had
sustained injuries to his jaw, was "uncooperative" and refused to go to the hospital. Id. at
at 909. Body cameras worn by Dague and Fleming captured both visual images and audio
from the scene, which were copied onto a DVD and played during trial. (State's Ex. 45.)
No. 19AP-470 11
{¶ 27} On cross-examination, Dague acknowledged that State's Ex. 45 depicts Erin
stating that Chatos fought with only one man and that Chatos said he would "deal with it
himself." (Tr. at 901.) Fleming acknowledged that State's Ex. 45 depicts Merrie describing
the man with the medium build as bald and wearing a white shirt. He further acknowledged
that State's Ex. 45 depicts the bouncer telling Ashley that Chatos had "start[ed] trouble."
Id. at 920.
{¶ 28} Detective Anthony Richardson testified that he interviewed Moore at the
Franklin County Jail on March 9, 2018. The audio portion of the interview was copied to a
CD and played at trial. (State's Ex. 24.)5 During that interview, Moore stated that he had
turned himself into the police after becoming aware that Shropshire had already done so.
He admitted that he was at Rosie O'Grady's with Shropshire and Fife and that Fife was
involved in an altercation which ultimately involved bar security as well as several patrons.
Moore acknowledged that he was involved in the fight inside the bar and punched several
people; however, he did so only in self-defense. He stated that an unknown person hit him
in the back of the head and the face with a glass bottle, which ultimately required him to
have surgery to remove glass from his eye. He also stated that outside the bar, "somebody
with dreads * * * was * * * trying to fight with me, but he was coming at me and I still was
trying to protect myself." (Tr. at 945; State's Ex. 24.) He further averred that his face was
bloody, that he had "multiple people jumping on me," and that he was "in defense mode."
(Tr. at 950; State's Ex. 24.)
{¶ 29} Richardson informed Moore that security footage from the bar showed him,
Fife, and Shropshire fighting with a man outside the bar and that "one of you, looked like
5 Over the state's objection, the trial court did not allow the jury to listen to the interview during
deliberations. However, the interview was transcribed and made part of the appellate record.
No. 19AP-470 12
you, did the old Charlie Brown football kick right in his face when he was laying on the
ground. Looked like he was trying to get up, boom, and then he was down and didn't move."
(Tr. at 949; State's Ex. 24.) Moore averred that he did not remember kicking the man.
{¶ 30} Moore acknowledged during the interview that he sprained his right ankle
when he fell during the fight and that he was wearing a "boot" as a result. (Tr. at 953; State's
Ex. 24.) He also conceded that he posted pictures of his ankle injury on Facebook. When
asked about the comment he posted about "Him and his momma," he said "I'm not going
to lie to you, I was super drunk. But after the fact, everybody told me what was going on.
And I'm not going to put no names on it, but I know * * * what happened with the mom * * *.
I guess she was fighting too. This is what the security guard was telling me. She was fighting
too." (Tr. at 955; State's Ex. 24.) Moore denied that he kicked the woman; indeed, he stated
that he did not even know she was in the bar.
{¶ 31} Richardson interviewed Fife on March 29, 2018. The audio portion of the
interview was copied to a CD and played at trial. (State's Ex. 44.)6 During the interview,
Fife stated that he and his wife saw Moore and Shropshire at the bar, but they were not
"with them." (Tr. at 979; State's Ex. 44.) He acknowledged that there was a bar fight during
which he was hit in the head with a bottle. As he and his wife were trying to leave, a man
"chased me, grabbed me, threw me to the ground" in the parking lot. (Tr. at 982; State's
Ex. 44.) He thought the man's wife had a gun. Richardson told Fife that security footage
from the bar showed him and others beating and kicking Chatos. Fife did not recall being
jailed with Chatos or fighting with him at the bar. He also did not remember Moore's foot
being hurt during the fight or posting a comment about it on Facebook.
6 Over the state's objection, the trial court did not allow the jury to listen to the interview during
deliberations. However, the interview was transcribed and made part of the appellate record.
No. 19AP-470 13
{¶ 32} On cross-examination, Richardson acknowledged that the Columbus Police
Department employs social media forensic analysts; however, he did not know whether an
analyst had examined Moore's Facebook account. He admitted that the Facebook comment
he questioned Fife about was actually posted by a person identified as "James Jwhiite" (Tr.
at 998; State's Ex. 18), and that the photographs Moore posted on Facebook on January 1,
2018 at 8:21 p.m. (State's Ex. 13), show Fife's Facebook profile as "James Fife." (Tr. at 998.)
{¶ 33} Richardson further acknowledged that the security footage from the bar
depicts a person alleged to be Moore wearing a light-colored shirt, while State's Ex. 13
depicts Moore wearing a dark-colored shirt. In addition, he acknowledged that State's Ex.
13 demonstrates that Moore had close-cropped hair but was not bald.
{¶ 34} Detective Ronald Lemmon testified that Erin called him on January 3, 2018
to inquire about a police report that had been filed about the incident; the report listed
Moore, Fife, and Shropshire as suspects. From this information, Lemmon generated photo
arrays of the suspects, which were shown to the Obey family on January 4, 2018.
{¶ 35} Lemmon further testified that on January 6, 2018, he and Richardson
interviewed George Buzhowski, the owner of Rosie O'Grady's, and the bouncer, Quentin
Edwards. The detectives obtained security footage and submitted it to the Bureau of
Criminal Investigation for enhancement. Lemmon viewed the security footage and
acknowledged that the clothing colors in the security video appear to be different than those
in the still photographs found on Moore's Facebook page. However, he testified that in his
more than two-decade experience as a police officer, he had viewed footage from thousands
of security videos and had observed the same phenomenon regarding color differences in
clothing.
No. 19AP-470 14
{¶ 36} Lemmon also testified that Merrie sent him screenshots taken from Moore's
Facebook page depicting Moore, Shropshire, and Fife at Rosie O'Grady's. Lemmon then
independently accessed Moore's Facebook page and printed those and other posted
photographs; he also independently accessed the comments posted on Moore's Facebook
page, including the post referencing his injured ankle. Lemmon testified that he was
"satisfied" that the Facebook page he accessed was that of Moore. (Tr. at 1055.) Lemmon
acknowledged that the Columbus Police Department employs social media forensic
analysts. However, he did not engage them in the investigation because Moore had
admitted in his March 9, 2018 interview that he had posted the photographs on his
Facebook page and did not deny that his Facebook friends commented on them.
{¶ 37} Following the state's presentation of its case, Fife moved for judgment of
acquittal pursuant to Crim.R. 29(A). The trial court denied the motion.
{¶ 38} Edwards then testified that approximately 250 people were in the bar on
January 1, 2018. At some point, Moore was struck in the face with a bottle. Moore
sustained a cut over his eye, and Buzhowski told Edwards to accompany Moore to the
kitchen so he could tend to his injury.
{¶ 39} On cross-examination, Edwards testified that he was interviewed by a
detective on January 5, 2018. In that interview, Edwards stated that the person who struck
Moore with a bottle was a light-skinned African American man who was later injured in a
fight. He acknowledged that he did not tell the detective that he took Moore to the kitchen
during the fight. After viewing the security footage, Edwards conceded that the dark
clothing he was wearing appeared to look white in the video. He denied that he threw
Chatos to the floor inside the bar or later apologized to him outside. He also testified that
he did not witness Chatos being beaten up in the parking lot.
No. 19AP-470 15
{¶ 40} Moore testified that he met Shropshire and Fife at Rosie O'Grady's. At some
point, Chatos approached the group and said "This ain't got shit to do with you all. I want
[the] white boy."7 Shropshire responded "[h]e's with me" and then punched Chatos. (Tr.
at 1257.) Thereafter, several fights broke out, during which Chatos was thrown into the air.
Moore testified he was not involved in any of the fights; he said he did not punch, kick, or
hurt anyone. Moore said he was struck in the head with a bottle and in the face with a glass
object which injured his eye. At some point, he fell down and twisted his ankle. Edwards
then walked him, Shropshire, and Fife to the walkway between the bar and the patio. A
man he did not know wearing "dreads" and a little wrap over his head "square[d] up" with
him in the walkway. Id. at 1242. Edwards then took Moore to the kitchen and provided
first aid for his eye injury; thereafter, Moore left the bar and went home. Moore testified
he went to the hospital later that morning to obtain treatment for his ankle injury.
{¶ 41} Later that evening, Moore said he posted pictures of food and his injured
ankle on Facebook, which generated comments from some of his Facebook friends.
According to Moore, the comment he posted about "Him and his momma" was in response
to comments posted by Shropshire that had been deleted. Id. at 1245. Although he could
not remember Shropshire's precise comments, he recalled that it was "something to the
effect that they got beat up," to which Moore replied "Him and his momma." Id. at 1246.
He further averred that "I didn't know. * * * [P]eople was calling me and telling me what
was going on, but I didn't know. Id. Moore denied assaulting either Chatos or Merrie;
indeed, he denied even seeing Merrie in the bar.
7 Fife is Caucasian.
No. 19AP-470 16
{¶ 42} On cross-examination, Moore was questioned about medical records
generated from his hospital visit stating that "[t]he mechanism of injury was kicking
someone during an altercation last night." (Tr. at 1304; State's Ex. 51.)8 Moore denied
telling hospital personnel that he kicked someone; rather, he said only that he was in a bar
fight. Noting the March 9, 2018 interview during which he told Richardson that he
sustained an eye injury requiring surgery to remove glass from his eye, the prosecutor
questioned Moore about medical records indicating that he had suffered no injuries to his
head.
{¶ 43} Regarding the Facebook posts and comments, Moore acknowledged that
"James Jwhiite" is one of his Facebook friends. (Tr. at 1313.) He did not know the context
of the comment "You mean to tell me his face harder than your foot." Id. at 1313. He
reiterated his direct examination testimony that the "Him and his momma" comment was
not made in reply to that comment; rather, it was made to deleted comments made by
Shropshire. Id. at 1314. He also testified that Shropshire hit Merrie; although he did not
witness the act, Shropshire later told him about it.
{¶ 44} Kaadijah Travis, Fife's wife, testified on Fife's behalf. She and Fife met their
friends Moore and Shropshire at Rosie O'Grady's. Soon after arriving, Chatos started giving
Fife "dirty looks" and "rolling his eyes" at him. (Tr. at 1332.) Fife told Kaadijah he had
never seen Chatos before. They later saw Chatos on the patio; he again gave them "dirty
looks." Id. at 1333. When Kaadijah confronted Chatos about his behavior, he "got mad"
and walked toward Fife like he wanted to fight him. Id. at 1333. Sensing that things might
"go bad," she pulled Fife toward the bar so he would be closer to his friends. Id. at 1334.
8 State's Ex. 51 was identified at trial but was not admitted into evidence.
No. 19AP-470 17
{¶ 45} Soon thereafter, a fight broke out inside the bar. Kaadijah was injured during
the fight and went to the bathroom to clean up. She remained there for several minutes;
consequently, she did not see what happened inside the bar. After she returned to the bar,
she and Fife walked toward their car. They encountered Chatos and Erin in the parking lot;
Erin pointed a gun at them. At Fife's direction, Kaadijah got into their car. She then saw
Fife fall to the ground; although she did not see who did so, she deduced that someone hit
him.
{¶ 46} The case was submitted to the jury and, following deliberations, the jury
returned verdicts finding Fife guilty as charged in the indictment.9 The trial court
subsequently sentenced Fife to four years' incarceration for the felonious assault of Chatos
and four years' incarceration for the felonious assault of Merrie. The court ordered the
sentences to be served consecutively, resulting in an aggregate prison term of eight years.
The trial court memorialized the conviction and sentence in a judgment entry filed June 24,
2019.
{¶ 47} In a timely appeal, Fife sets forth four assignments of error for review:
1. THE TRIAL COURT ABUSED ITS DICREATION [sic]
WHEN IT DENIED THE APPELLANT'S MOTION FOR A
MISTRIAL.
2. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT DENIED THE REQUESTED LESSER INCLUDED
OFFENSES PROPOSED BY APPELLANT IN THE JURY
INSTRUCTIONS.
3. APPELLANT DID NOT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF HIS
RIGHTS UNDER THE OHIO CONSTITUTION AND THE
14TH AND 6TH AMENDMENTS TO THE UNITED
STATES CONSTITUTION[.]
9 The jury also returned verdicts finding Moore guilty as charged in the indictment.
No. 19AP-470 18
4. THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST APPELLANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
CONVICTIONS AND THE CONVICTIONS WERE
AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 48} In his first assignment of error, Fife contends that the trial court erred in
refusing to grant his motion for a mistrial when the trial court excused "Juror H" when she
informed the trial court she had a scheduling conflict at the end of the day and the jury had
not reached a verdict. Fife's co-defendant Jordan Moore raised a similar assignment in his
appeal and this court overruled that assignment of error in State v. Moore, 2021-Ohio-1379,
rendered on April 20, 2021.
{¶ 49} The facts concerning the excusal of Juror H are set forth in paragraphs 87
through 103 of the Moore decision. They are as follows:
At 11:52 a.m., the jury began its deliberations. At 1:42 p.m., the
jury requested an electronic device in order to review the video
evidence; with agreement of counsel, the court provided the
requested device. At 3:39 p.m., the trial court addressed one of
the regular jurors in open court: "[Juror H], it's my
understanding you have work commitments and can no longer
serve." Juror H responded, "Correct." Id. at 1562. The court
asked the prosecutor and both defense counsel if there was any
objection to releasing Juror H and substituting one of the
alternate jurors [Juror J]. No objection was lodged. The court
then excused Juror H and swore in Juror J as a regular juror.
Thereafter, the court advised the jury, "You guys get to start
anew. All over from the scratch. [Juror J] hasn't had the
benefit of your wisdom. Okay? So with that, you're excused to
go back." Id. at 1563. At 3:40 p.m., the jury resumed
deliberations.
At 3:45 p.m., the court met with the excused juror, Juror H,
outside the presence of the defendants, counsel, and jury.
Juror H averred that during the jury's discussions concerning
the timetable for deliberations, she reported that she had to
leave by 4:30 p.m. She further averred that at this point, the
jury was "not in agreement" and that she was the one "holding
up the agreement." Id. at 1565-66. Juror H further asserted
No. 19AP-470 19
that the jury concluded that it would have to reach a verdict by
3:30 p.m. in order to accommodate Juror H's 4:30 p.m.
departure time. According to Juror H, the jury foreperson
indicated that she wanted to "push through" with the
deliberations because she had to catch a flight at 7:30 p.m.;
accordingly, the foreperson suggested replacing Juror H with
an alternate juror. When the court asked Juror H if she was
"bullied," she responded "possibly." Id. at 1566. She reiterated
that she was the only juror voting for acquittal. The court
averred that she should have addressed her concerns to the
court during the previous discussion about excusing her.
At 3:51 p.m., the trial court informed counsel of the
conversation with Juror H. Both defense counsel moved for a
mistrial, arguing that given Juror H's allegations about
coercion, the alternate juror might be similarly coerced into
voting to convict. The prosecutor opposed the motion, arguing
that Juror H asked to be excused, the parties accepted her
proffered excuse, and an alternate juror had been substituted.
The trial court then placed Juror H under oath and permitted
her to explain what had occurred. To that end, Juror H averred
that prior to deliberations, she informed the jury she had to
leave by 4:30 p.m. During deliberations, she was the only juror
who was voting for acquittal. At 3:10 p.m., the foreperson
informed the bailiff that because the jury likely would be
deliberating past Juror H's stated departure time and the jury
wanted to reach a verdict that day, an alternate juror might be
needed. Id. at 1575. The jury agreed with this course of action.
Upon questioning by the prosecutor, Juror H indicated that
had the jury been unable to reach a verdict by 4:30 p.m., she
would have suggested resuming deliberations the next day.
However, other jurors indicated that they had conflicts the next
day and would like to resolve the matter that day. Juror H
averred that she did not ask to be excused from the jury. When
asked why she did not disclose this information when the court
originally questioned her, she stated "I feel like I'm
outnumbered up here." Id. at 1579. She also stated that she
would not have felt comfortable rejoining the jury because "I'm
the only one who's holding up their progress." Id. Appellant's
counsel asked Juror H if she believed the foreperson's request
that she no longer serve on the jury "was a way of freezing you
out of the deliberations." Id. at 1580. Juror H replied, "I think
it's possible." Id. The trial court stated that it would investigate
the matter and excused Juror H from the courtroom.
No. 19AP-470 20
Shortly thereafter, the trial court informed counsel that the jury
had in the last five minutes indicated that it had reached a
verdict. The prosecutor suggested that the court voir dire the
remaining 11 jurors prior to ruling on the motion for mistrial.
Counsel for appellant renewed the motion for mistrial, arguing
that "it seems suspect that the new juror who came up was
there for less than 50 minutes, and there's no way that they
could have reviewed the things that they even asked for earlier
with her in that time frame." Id. at 1583. Counsel further
contended that he was never informed that Juror H had
suggested that the jury cease deliberations only for the evening
and reconvene the next day. Counsel also argued against voir
dire of the remaining jurors.
The trial court determined that it would voir dire the remaining
11 jurors individually. Prior to questioning each juror, the court
explained that Juror H had reported that she felt she was
coerced and had been forced off the jury because she was the
sole vote for acquittal.
The first juror questioned, Juror E, stated that"[t]here was no
coercion or anything like that. We deliberated, and it looked
like it was going to go on and on." Id. at 1588. Because other
jurors had indicated that they could not come back the next
day, the jury concluded that it would be better to "push this
through and stay late." Id. Juror E acknowledged that Juror H
was the sole juror voting for acquittal and that the other 11
jurors were convinced of guilt beyond a reasonable doubt;
however, those 11 jurors did not try to force Juror H to adopt a
different position. He denied that Juror H was told she was
being replaced by an alternate juror; rather, the jury "hashed it
out." Id. at 1589. Juror E indicated that the reconstituted jury
had reached a unanimous verdict.
Juror S averred that after Juror H indicated that she had to
leave by 4:30 p.m., the foreperson asked the bailiff how much
time would be involved in the post-verdict process, i.e.,
assembling in the courtroom, reading the verdict, de-briefing
the jury, etc. The bailiff's response prompted the realization
that Juror H's 4:30 p.m. departure time left only 10 to 15
minutes to deliberate that day. The jury, including Juror H,
concluded that it could not reach a verdict within that
timeframe. Because other jurors had conflicts the next day, it
was decided an alternate juror was required. Juror S further
indicated that although Juror H did not expressly state as
much, it was assumed that she could return the next day and
continue deliberations.
No. 19AP-470 21
Juror B, the foreperson, denied that Juror H was coerced and
forced off the jury. Juror B averred that the jury contemplated
an "alternate juror situation" as soon as Juror H announced her
4:30 p.m. departure deadline because there were other jurors
who had conflicts with resuming deliberations the next day.
Juror B stated that the jury had begun deliberations and had
taken a preliminary vote; however, that vote was "by no means
* * * anything final." Id. at 1599. At approximately 3:00 p.m.,
the jury discussed the timeline of the deliberations and post-
verdict process and determined that to accommodate Juror H's
4:30 p.m. departure time, it would need to reach a verdict in
the next 10 to 20 minutes. The jury, including Juror H, "took a
vote and said that we would like to actually push on so that we
could get either further deliberations done today with the
alternate juror, that we knew we were going to have to bring in
regardless, and the rest of us wanted to * * * stay and continue
to kind of talk through it. We didn't have the same * * *
stopping time as what her constraints were for the day." Id. at
1600. The trial court confirmed with Juror B that "this was an
open vote in the room * * * and Juror H agreed." Juror B
replied, "Absolutely, yeah. This was not anything of coercion."
Id.
When questioned by counsel for appellant as to what Juror H
"agree[d] to," Juror B averred that "[s]he agreed that she had
her conflict and * * * so we talked about what the different
scenarios would be in bringing in an alternate this evening and
restarting the deliberation process. * * * She kind of stated
again that she had that conflict. She wasn't going to be able to
move that or make any changes to that, and that the rest of us
* * * said we wanted to push on." Id. at 1600-01. Juror B
acknowledged that Juror H stated only that she could not
continue deliberations that day; she did not aver that she could
not deliberate the next day.
Following Juror B's testimony, the trial court stated, "I have a
real problem if they voted amongst themselves to do it and then
[Juror H] cries sour grapes afterwards. * * * [Juror B] indicated
in her testimony that they voted inside that this is what they
were going to do as a group. * * * [I]f [Juror H] wanted to go
and they were going to bring in an alternate and everybody
voted on that back there." (Tr. at 1604-05.) The court then
continued its voir dire of the individual jurors.
Juror N testified that the jury as a whole voted to replace Juror
H with an alternate. When the trial court asked if Juror H
No. 19AP-470 22
"voted positively" and was "okay with the decision," Juror N
replied "[y]es." Id. at 1606. Juror N denied that the jury
discussed time constraints involving the verdict and post-
verdict process.
Following Juror N's testimony, the trial court asserted, "Quite
frankly, I've think I've heard enough. I think I want to take the
verdict, [take the] motion * * * under advisement, and argue it
* * * in the morning." Id. at 1608. The court then asked defense
counsel if more voir dire was necessary; both counsel answered
in the negative. However, counsel for [Moore] averred, "I just
don't believe that we're going to get around this group-think
mentality. * * * I highly doubt that any juror is going to come in
here and potentially say, Yeah, we forced her to get off of here.
* * * [A]nd * * * if [the bailiff] would have come to me and said
they want to bring up an alternate because [Juror H] wants to
leave and go to work at 4:30 but she wants to keep deliberating,
there's no way I would have agreed to bringing up an alternate."
Id. at 1609.
Thereafter, the court averred, "I am satisfied with the following
facts that I hear: I hear that it was a mutual vote inside from
two of the jurors. It wasn't mentioned by the other two. But I
thought that the third one was probably the most trustworthy
of all. * * * [Juror B] indicated there was a vote taken [and]
everybody was in agreement that [Juror H] was going to step
off. Where [Juror H] gave the opposite indication where she
was forced out. * * * And I have a real problem with that. * * * I
still have the dilemma of an allegation of being forced out. * * *
And that's why I wanted to hold * * * the motion for mistrial in
abeyance until tomorrow * * * when we * * * all have some time
to do a little research and have an argument and make a
decision. I may still well mistry this case." Id. at 1611-12.
Thereafter, at 5:06 p.m., the jury announced its verdicts. The
jury found both appellant and Fife guilty of felonious assault as
charged in the indictments. At defense counsel's request, the
jury was polled; all 12 jurors confirmed the verdicts.
The next day, the prosecutor filed a written memorandum
opposing the motion for mistrial. The trial court held a hearing
on the matter during which the parties argued their respective
positions. The court took the matter under advisement and
issued a written decision the next day. Therein, the court set
forth a detailed recitation of the proceedings related to the
removal of Juror H. The court concluded that the
No. 19AP-470 23
circumstances surrounding the replacement of Juror H with an
alternate juror did not warrant a mistrial. The court stated:
The facts presented to the Judge at the time of the removal
convinced this Judge that [Juror H] would no longer be able to
perform her duty as a juror. [Juror H] consistently indicated
that she had a scheduling conflict which prevented her from
continuing deliberations beyond 4:00 p.m. on May 6, 2019. At
approximately 3:00 p.m., the remainder of the jury wished to
proceed with deliberations beyond 4:00 p.m.
Thus, an alternate juror was put in place with instructions to
start deliberations anew, and there is no evidence before the
Court that they did not do so. With that directive, the Court
finds that Defendants received the fair trial to which they were
entitled.
The fact that [Juror H] came forward after her removal with
allegations of misconduct does not change this result.
(May 8, 2019 Entry denying Def's. Mot. for Mistrial at 3.)
Moore at ¶ 87-103.
{¶ 50} Upon a review of the trial record, this court in Moore, with this judge
participating, found no abuse of discretion in the trial court's decision to replace Juror H
with Juror J or in the denial of Moore's and Fife's motion for a mistrial. See Moore at ¶ 106.
Fife's first assignment of error is overruled for the same reasons given in that opinion.
{¶ 51} In his second assignment of error, Fife contends that the trial court erred
when it refused to grant his request that the jury be instructed on the lesser included
offenses of aggravated assault and simple assault in regard to the felonious assault charges.
{¶ 52} The offense of aggravated assault states that "No person, while under the
influence of sudden passion or in a sudden fit of rage, either of which is brought on by
serious provocation occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force, shall knowingly * * * cause serious physical harm to another.
R.C. 2903.12.
No. 19AP-470 24
{¶ 53} "[A] defendant charged with felonious assault is entitled to an instruction on
aggravated assault when the evidence presented at trial reasonably would support both an
acquittal on the charged crime of felonious assault and a conviction for aggravated assault."
State v. Glass, 10th Dist. No. 04AP-140, 2004-Ohio-5843, ¶ 3. "[A] jury instruction must
be given on a lesser included or offense of inferior-degree 'when sufficient evidence is
presented which would allow a jury to reasonably reject the greater offense and find the
defendant guilty on a lesser included [or inferior-degree] offense[.]' " Id., quoting State v.
Shane, 63 Ohio St.3d 630, 632 (1992). As provided in Glass:
To ascertain whether the requisite provocation exists, "an
objective standard must be applied to determine whether the
alleged provocation is reasonably sufficient to bring on a
sudden passion or fit of rage. That is, the provocation must be
'sufficient to arouse the passions of an ordinary person beyond
the power of his or her control.' If this objective standard is met,
the inquiry shifts to a subjective standard, to determine
whether the defendant in the particular case 'actually was
under the influence of sudden passion or in a sudden fit of
rage.' " [State v. Mack, 82 Ohio St.3d 198, 201 (1998)], quoting
Shane, at 634-635.
Id. at ¶ 5.
{¶ 54} Concerning Count 1, the felonious assault charge related to Chatos, Fife notes
that he was in the parking lot when he saw Chatos come toward him to fight and that he
saw Obey's wife had obtained a firearm from her car. He also argues there was testimony
that he struck Mr. Obey during this outside confrontation. Fife notes that his own wife
testified she and Fife saw Ms. Obey with the gun before he was taken to the ground.
{¶ 55} As to Count 2, relating to the felonious assault of Merrie, Fife noted there was
testimony that he and his group had been hit by flying glass bottles while inside the bar and
Ashley admitted she had thrown the bottles. He admitted there was testimony that he
No. 19AP-470 25
cheered Shropshire on while he struck Merrie in response to being hit with champagne
bottles.
{¶ 56} Fife also argues there was evidence of the mitigating element of serious
provocation presented by him and his witnesses. Fife argues, "[h]aving a gun pulled on you
and your wife, and being smashed over the head with champagne bottles * * * more than
qualifies as adequate provocation [for him to have responded] with hands and feet."
(Appellant's Brief at 49.) Acknowledging there were inconsistencies in the version of events
presented by many different witnesses, he argues "these inconsistencies should have been
left for a jury to resolve." Id. at 49.
{¶ 57} Fife submits that the trial court also erred in denying his request for an
instruction on the lesser included offense of simple assault. Simple assault requires that
"[n]o person shall recklessly cause serious physical harm to another." R.C. 2903.13(B). In
the context of the infliction of serious physical harm, felonious assault differs from simple
assault in its lower mens rea element: simple assault requires a mens rea of "recklessly" and
felonious assault required a mens rea of "knowingly." Compare R.C. 2903.13(B) with
2903.11(A) ("No person shall knowingly * * * [c]ause serious physical harm to another[.]")
{¶ 58} Fife argues that there was evidence presented which would support a finding
by the jury that he did not knowingly cause serious physical harm but did so recklessly. He
argues that a reasonable jury could have found that he did not intend to knowingly inflict
the level of harm which occurred, but that his actions were only reckless in that regard. Fife
argues that there was significant evidence presented that showed most of the parties
involved in the melee that evening were intoxicated and all used questionable judgment
and control of their behavior. According to Fife, there was also significant evidence that
No. 19AP-470 26
showed that he was being antagonized by Chatos, and that any alleged harm inflicted upon
Chatos was not intended to be serious.
{¶ 59} The state argues that there was no evidence that supported an instruction on
aggravated assault. The state argues that the facts conclusively show that Fife was the
aggressor and there was zero evidence of provocation by either victim. The state argues that
Fife's statement to police weighed against his request for these jury instructions as he never
indicated that he was in a sudden rage or passion or provoked into participating in the fight.
In his statement, Fife denied knowing Chatos, and he denied being involved in the fight
until he was showed surveillance video. It was only after seeing those images that Fife
admitted he had been involved.
{¶ 60} The state argues that there was no evidence presented that either Chatos or
Merrie did anything to provoke the attack by Fife and his companions. Also, the state notes
that Fife never described any provocation by the victims when discussing the incident with
the police. Rather, Fife sought to minimize the altercation as a mere "bar fight." (Appellee's
Brief at 25.) The state argues that the conduct of three men attacking the two defenseless
victims was far more than a bar fight because they ambushed and severely beat Chatos
inside the bar and then turned on Chatos' mother and kicked her until she lost
consciousness.
{¶ 61} The state notes that Fife and his associates then regrouped outside the bar
and again assaulted Chatos. While Chatos was unconscious on the ground, co-defendant
Moore kicked Chatos' head so hard he injured his own ankle.
{¶ 62} The state admits Merrie threw an empty wine glass at the man who was on
top of her son. (Tr. at 695.) Also, Ashley testified she threw a bottle on the floor to distract
the men who were violently assaulting Chatos. Id. at 801. The state argues that the actions
No. 19AP-470 27
of Merrie came after Fife and his friends initiated the fight and started beating Chatos. The
state argues that Merrie's actions in defense of her son cannot be reasonably considered
provocation.
{¶ 63} A criminal defendant is entitled to an inferior offense instruction when the
evidence presented at trial would reasonably support both an acquittal on the charged
offense and a conviction for the inferior degree offense. State v. Shane, 63 Ohio St.3d 630,
632 (1992). Fife contends he was severely provoked into engaging in the bar fight which led
to the serious injuries of the victim.
{¶ 64} A defendant is not entitled to an instruction on the lesser-included offense of
aggravated assault if he instigated the confrontation or was the initial aggressor during the
encounters with the victim. State v. Moore, 4th Dist. No. 15CA3717, 2016-Ohio-8274, ¶ 23.
{¶ 65} Determining whether sufficient evidence of serious provocation exists
involves an objective and subjective inquiry. State v. Mack, 82 Ohio St.3d 198, 201 (1998).
Under the objective part of the inquiry, provocation is reasonably sufficient to bring on a
sudden passion or fit of rage if it would "arouse the passions of an ordinary person beyond
the power of his or her control." Shane, 63 Ohio St.3d at 635. "If insufficient evidence of
provocation is presented, so that no reasonable jury would decide that an actor was
reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give"
an aggravated assault instruction. Id. at 634.
{¶ 66} A trial court has discretion to determine whether the record contains
sufficient evidence to support an aggravated assault instruction. State v. Mitts, 81 Ohio St.
3d 223, 228 (1998). Although there was some evidence that some words were exchanged
outside the bar in the patio, no reasonable jury member could conclude Chatos' words were
sufficient provocation for the beating he took from Fife and his companions which followed.
No. 19AP-470 28
The trial court did not abuse its discretion in refusing to give the instruction on aggravated
assault.
{¶ 67} The trial court also did not abuse its discretion in refusing to give the
defendant's requested instruction on simple assault. Viewing the defendant's evidence in
its best light, Fife had to know that his conduct and that of his companions was likely to
cause serious physical harm to Chatos and Merrie. R.C. 2901.22(B) provides that 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. No reasonable juror could not
have found that Fife acted knowingly rather than recklessly. Fife's second assignment of
error is overruled.
{¶ 68} In his third assignment of error, Fife contends he was denied the effective
assistance of counsel when his trial counsel failed to ask "Juror H" questions when she
requested that she be excused due to a work complaint. Fife notes there was "zero
questioning" about the juror's ability to return the following day or whether she was the
only one who had time commitments that day, by either counsel or judge. (Appellant's Brief
at 54.) He notes that it came to light in the following 30 minutes that many others had time
constraints and issues, who did not ask to be replaced, only Juror H—the lone holdout for
a not guilty verdict.
{¶ 69} Fife submits that after a lengthy trial, not questioning a juror who is seeking
removal falls below the level of adequate representation and deprived him of effective
assistance of counsel. Appellant also submits that it obviously prejudices his case based on
the information later received, and that the result would have been different had he not
acted in a deficient manner and expose the misconduct of the jury which was unknown at
the time the juror was excused.
No. 19AP-470 29
{¶ 70} We addressed a similar claim in Moore. Judge Klatt addressed this issue as
follows:
Appellant also argues that his trial counsel was deficient for
failing to question Juror H before he agreed to her removal as
a juror. In support of his argument, appellant cites counsel's
assertion at the hearing on the motion for mistrial that he
would have questioned Juror H had he been properly apprised
of the circumstances precipitating the removal. To be sure,
defense counsel advanced this argument, albeit in hindsight, in
conjunction with the motion for mistrial. However, at the time
of the removal, Juror H represented to the parties and the court
only that she had a scheduling conflict which precluded her
continued jury service; she provided no other information.
Given the reason asserted by Juror H, no further inquiry was
necessary. Under these circumstances, counsel was not
deficient in failing to further question Juror H.
Moreover, even if appellant could establish deficient
performance, he still must demonstrate that but for counsel's
unprofessional error, there is a reasonable probability that the
outcome of the trial would have been different. Such a finding
would require this court to assume that further inquiry by
counsel would have altered the trial court's decision to remove
Juror H and that Juror H's presence on the jury would have
resulted in, at the very least, a hung jury. We decline to engage
in such rank speculation.
Id. at 116-17.
{¶ 71} For the foregoing reasons, this court then concluded that Moore had failed to
demonstrate that he was denied his constitutional right to the effective assistance of counsel
and overruled the associated assignment of error. Fife's third assignment of error is
overruled.
{¶ 72} In his fourth assignment of error, Fife argues his conviction is not supported
by sufficient evidence and is against the manifest weight of the evidence.
{¶ 73} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, the Supreme
Court of Ohio reiterated that State v. Thompkins, 78 Ohio St.3d 380 (1997) is still good law.
No. 19AP-470 30
That court stated that sufficiency and manifest weight are concepts that are different.
Sufficiency is a legal standard which determines whether a case may go to the jury or legally
sufficient to support a jury verdict as a matter of law. It is a question of law. In a manifest
weight review, the appellate court reviews the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of the witnesses, and determines whether
the jury in resolving the conflicts in the evidence lost its way and created a manifest
miscarriage of justice. The discretionary power to grant a new trial should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction. Id. at
387.
{¶ 74} Our review of the evidence convinces us the judgment of the trial court is
neither based on insufficient evidence nor is against the manifest weight of the evidence.
Fife's fourth assignment of error is overruled.
{¶ 75} Having overruled appellant's first, second, third, and fourth assignments of
error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J. and MENTEL, J., concur.
BROGAN, J., retired, of the Second Appellate District, assigned
to active duty under authority of Ohio Constitution, Article IV,
Section 6(C).