State v. King

[Cite as State v. King, 2021-Ohio-4229.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29137
:
v. : Trial Court Case No. 2020-CR-2807/1
:
RONICA KING : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 3rd day of December, 2021.

...........

MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road,
Fairborn, Ohio 45324
Attorney for Defendant-Appellant

.............

DONOVAN, J.
 -2-

{¶ 1} Defendant-appellant Ronica King appeals from her convictions for one count

of felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony

of the second degree, and one count of domestic violence, in violation of R.C. 2919.25(A),

a misdemeanor of the first degree. King filed a timely notice of appeal on May 24, 2021.

{¶ 2} On September 5, 2020, the victim, Kendall Jones, drove himself and King to

their place of employment at the Crocs distribution plant in Vandalia, Ohio. At the time,

Jones was King’s live-in boyfriend, and the vehicle they shared was registered to King’s

sister, Ronnae. During the course of Jones’s shift that day, he and King ended their

relationship, and his employment was terminated. Jones left the plant in the vehicle

registered to King’s sister, traveled to his sister’s residence in Dayton, Ohio, and played

basketball with his niece, Mikaja Robinson.

{¶ 3} While they were outside his sister’s house, Jones asked Robinson to take his

phone inside and charge it. After Robinson went inside, two cars arrived at Jones’s

sister’s residence. Jones testified that there were two people in the first car and three

people in the second car. Among the individuals who arrived in the two vehicles were

Ronica and Ronnae King, their cousin, Donnie Bateman, Shelton Bryant, and a woman

identified only as “Ashley.”

{¶ 4} King and her sister exited the vehicle, approached Jones, and demanded the

key to Ronnae’s vehicle. Jones testified that King attempted to take the key out of his

pocket and then grabbed his hair and pulled him to the ground. At this point, Robinson

began recording the assault with her cellphone from inside her residence. The first video

recorded by Robinson depicted Jones falling to the ground with King standing over him.
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Robinson testified that she observed King kicking Jones while he was on the ground.

The second video recorded by Robinson depicted King holding Jones by his neck up

against a beige vehicle while Bateman repeatedly punched Jones in the head. At that

point, the King sisters, Bateman, and the other two individuals got back in their vehicles

and left the scene. King had been able to retrieve the key to the vehicle registered to

her sister; however, they were unable to retrieve the vehicle and left it at Jones’s sister’s

house. Jones testified that at no point during the incident did he strike or attempt to strike

Ronica King, her sister, or Bateman.

{¶ 5} Shortly thereafter, Jones’s sister, Kenyetta, returned to her residence and

found Jones lying in the street. Kenyetta testified that Jones was bleeding from his face

and told her that he was having difficulty breathing. Based upon what she observed,

Kenyetta called 911.

{¶ 6} Dayton Police Officer Dalton Ishmael testified that he responded to the 911

call. Officer Ishmael observed that Jones was bleeding from his head and mouth and

appeared unable to stand. Jones was then transported by ambulance to Miami Valley

Hospital, where he was interviewed by Dayton Police Detective Dustin Daugherty.

Detective Daugherty also took photographs of Jones’s injuries. Among the injuries

suffered by Jones were multiple facial wounds, numbness in his right arm, a migraine

headache, and a bleeding wound to his shoulder. Jones testified that he had a knot on

his head the size of a golf ball. A wound to his forehead required stitches and left a scar.

Jones testified that before the assault, he had never had migraine headaches, but

subsequent to the incident, he had suffered migraines on a weekly basis for several

months.
 -4-

{¶ 7} Detective Daugherty testified that he interviewed King on September 10,

2020; she initially stated that she only removed the key from Jones’s pocket and that she

tried to stop Jones and Bateman from fighting. Daugherty testified that he then informed

King that the incident had been recorded on video. At that point, King admitted that she

had repeatedly punched Jones while he was lying on the ground, and she acknowledged

that she had had several rings on her fingers at the time of the assault.

{¶ 8} Ronnae King, testifying on her sister’s behalf, stated that Jones was the initial

aggressor. Specifically, Ronnae testified that it was only after Jones threatened her that

King and Bateman stepped in to protect her. Ronnae also testified that Jones was the

aggressor throughout the incident and that she and King were only trying to retrieve the

key to the vehicle registered in Ronnae’s name. Shelton Bryant also testified on King’s

behalf. Bryant’s testimony was similar to Ronnae’s testimony, asserting that Jones had

been the aggressor throughout the incident and that he had simply refused to turn over

the key to the vehicle. Bryant testified that they were only trying to reason with Jones

and that King and Bateman only resorted to violence in order to protect themselves from

Jones.

{¶ 9} On September 18, 2020, King was indicted for one count of felonious assault

(serious physical harm) and one count of domestic violence. At her arraignment on

September 22, 2020, King stood mute, and the trial court entered a plea of not guilty on

her behalf.

{¶ 10} King’s jury trial lasted two days, from April 20-21, 2021. She was found

guilty of the charged offenses. On May 13, 2021, the trial court sentenced King to a term

of community control and intensive supervision with a domestic violence specialist for a
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period not to exceed five years. The trial court also ordered King to serve 90 days in jail,

with 38 days of jail time credit.

{¶ 11} King appeals.

{¶ 12} Because they are interrelated, King’s first and second assignments of error

will be discussed together as follows:

APPELLANT’S CONVICTIONS FOR FELONIOUS ASSAULT AND

DOMESTIC VIOLENCE ARE BASED UPON INSUFFICIENT EVIDENCE.

APPELLANT’S CONVICTIONS FOR FELONIOUS ASSAULT AND

DOMESTIC VIOLENCE ARE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶ 13} In her first and second assignments, King contends that the State failed to

present sufficient evidence at trial to support her convictions for felonious assault and

domestic violence, and that her convictions were also against the manifest weight of the

evidence.

{¶ 14} “* * * [A] challenge to the sufficiency of the evidence differs from a challenge

to the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-

Ohio-6046, 837 N.E.2d 315, ¶ 69. In reviewing a claim of insufficient evidence, “[t]he

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.” Id. at ¶ 70, quoting State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. (Other citations omitted.)

“A claim that a jury verdict is against the manifest weight of the evidence involves a

different test. ‘The court, reviewing the entire record, weighs the evidence and all
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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 reversed and a new trial ordered. 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.’ ” (Citations omitted.) Id. at

¶ 71.

{¶ 15} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 16} This court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510, *4 (Oct. 24, 1997).

{¶ 17} King was convicted of felonious assault in violation of R.C. 2903.11(A)(1),

which provides that “[n]o person shall knowingly * * * cause serious physical harm to

another * * *. ” The Revised Code defines serious physical harm as “[a]ny physical harm

that involves some permanent incapacity, whether partial or total, or that involves some
 -7-

temporary, substantial incapacity, [a]ny physical harm that involves some permanent

disfigurement or that involves some temporary, serious disfigurement, [or a]ny physical

harm that involves acute pain of such duration as to result in substantial suffering or that

involves any degree of prolonged or intractable pain.” R.C. 2901.01(A)(5)(c)-(e).

{¶ 18} “A person acts knowingly, regardless of purpose, when the person is aware

that the person's conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B). “Additionally, a defendant acts

knowingly, when, although not intending the result, he or she is nevertheless aware that

the result will probably occur.” State v. Anderson, 10th Dist. Franklin No. 10AP-302, 2010-

Ohio-5561, ¶ 13, citing State v. Edwards, 83 Ohio App.3d 357, 361, 614 N.E.2d 1123

(10th Dist.1992). Thus, “felonious assault under R.C. 2903.11(A), combined with the

definition of ‘knowingly’ found in R.C. 2901.22(B), does not require that a defendant intend

to cause ‘serious physical harm,’ but that the defendant acts with an awareness that the

conduct probably will cause such harm.” Id.; State v. Gray, 2d Dist. Montgomery No.

26139, 2016-Ohio-1419, ¶ 41.

{¶ 19} King was also convicted of domestic violence in violation of R.C.

2919.25(A), which provides that “[n]o person shall knowingly cause or attempt to cause

physical harm to a family or household member.” It is undisputed that at the time the

attack on Jones occurred, he and King were residing together in an apartment.

{¶ 20} The record establishes that after Jones left his employment at the Crocs

plant, he traveled to his sister’s residence in Dayton in the vehicle registered to King’s

sister. When his niece was inside the residence but Jones was still outside, two cars
 -8-

arrived containing a total of five people, including Ronica and Ronnae King. King and

her sister exited the vehicle, approached Jones, and demanded the key to the vehicle

Jones had driven. According to Jones, King attempted to take the key out of his pocket

and then grabbed his hair and pulled him to the ground. Jones’s niece recorded the

assault with her cellphone from inside her residence on two videos: the first video depicted

Jones falling to ground with King standing over him, and the second video depicted King

holding Jones by his neck up against a beige vehicle while one of the other individuals,

Bateman, repeatedly punched Jones in the head. The niece, Robinson, also testified

that she observed King kicking Jones while he was on the ground. The King sisters and

the others then got back in their vehicles and left the scene. Jones’s sister found him in

the street a short time later, bleeding from his face and having difficulty breathing.

{¶ 21} Officer Ishmael testified that he responded to the subsequent 911 call; he

observed that Jones was bleeding from his head and mouth and appeared unable to

stand. Jones testified at trial about the nature of his injuries, which included multiple

facial wounds, numbness in his right arm, a migraine headache, a bleeding wound to his

shoulder, and stitches to his forehead that left a scar. The responding police officer

testified that Jones had been bleeding form his head and mouth, and photographs taken

by the police also documented some of his injuries.

{¶ 22} Finally, King admitted to Detective Daugherty that she had repeatedly

punched Jones while he was lying on the ground.

{¶ 23} Construing the evidence presented in a light most favorable to the State, as

we must, a rational trier of fact could have reasonably found all of the essential elements

of the crimes for which King was found guilty to have been proven beyond a reasonable
 -9-

doubt. King’s convictions for felonious assault (serious physical harm) and domestic

violence were therefore supported by legally sufficient evidence.

{¶ 24} Furthermore, having reviewed the record, we find no merit in King's

manifest-weight challenge. It is well-settled that evaluating witness credibility is primarily

for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080,

2012 WL 3871416, ¶ 7. Here, the jury quite reasonably credited the extensive testimony

provided by the State's witnesses, applied said evidence and all reasonable inferences

to the elements of the offenses, and found King guilty. The jury did not lose its way in

choosing to believe the eyewitness testimony of Jones and Robinson, who described

King’s attack on Jones, along with the video evidence of the crime. Additionally, the

jury’s decision to discount the testimony of Ronnae King and Bryant was clearly within its

discretion. Having reviewed the entire record, we cannot find that the evidence weighed

heavily against conviction or that a manifest miscarriage of justice occurred.

{¶ 25} King’s first and second assignments of error are overruled.

{¶ 26} King’s third assignment of error is as follows:

APPELLANT’S CONVICTIONS FOR FELONIOUS ASSAULT AND

DOMESTIC VIOLENCE MERGE PURSUANT TO R.C. 2941.25.

{¶ 27} In her final assignment, King argues that her convictions for felonious

assault and domestic violence were subject to merger pursuant to R.C. 2941.25.

{¶ 28} Initially, we note that King did not ask the trial court to merge the domestic

violence offense with the felonious assault offense. Accordingly, King has waived this

allied-offense argument, except for plain error. See State v. Wilson, 2d Dist. Clark No.

2018-CA-2, 2020-Ohio-2962, ¶ 119; see also State v. Rogers, 143 Ohio St.3d 385, 2015-
 -10-

Ohio-2459, 38 N.E.3d 860, ¶ 3; State v. Trigg, 2d Dist. Montgomery No. 26757, 2016-

Ohio-2752, ¶ 12 (allied offense argument is subject to plain error review). King's alleged

error is not reversible error unless it affected the outcome of the proceeding and reversal

is necessary to correct a manifest miscarriage of justice. Id. A trial court's failure to

merge allied offenses of similar import is plain error. E.g., State v. Shoecraft, 2d Dist.

Montgomery No. 27860, 2018-Ohio-3920, ¶ 56. Significantly, the State concedes that

the trial court committed plain error when it failed to merge King’s convictions for felonious

assault and domestic violence in light of our recent holding in State v. Wilson, 2d Dist.

Clark No. 2018-CA-2, 2020-Ohio-2962.

{¶ 29} R.C. 2941.25, Ohio's allied offense statute, provides that:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 30} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Ohio Supreme Court clarified the applicable standard with respect to the R.C. 2941.25

merger determination as follows:

Rather than compare the elements of two offenses to determine
 -11-

whether they are allied offenses of similar import, the analysis must focus

on the defendant's conduct to determine whether one or more convictions

may result, because an offense may be committed in a variety of ways and

the offenses committed may have different import. No bright-line rule can

govern every situation.

As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must

ask three questions when the defendant's conduct supports multiple

offenses: (1) Were the offenses dissimilar in import or significance? (2)

Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above

will permit separate convictions. The conduct, the animus, and the import

must all be considered.

Id. at ¶ 30-31.

{¶ 31} In State v. Wood, 2d Dist. Montgomery No. 26134, 2016-Ohio-143, we

stated:

[T]he Ohio Supreme Court addressed the allied-offense issue again

in State v. Earley, [145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266].

There the majority characterized the analysis in its earlier [State v.]

Johnson[, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061] lead

opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead

embraced Ruff, which, as noted above, considers a defendant's conduct,

his animus, and the import or significance of his offenses. Applying Ruff,
 -12-

the Earley court concluded that misdemeanor OVI and felony aggravated

vehicular assault “are offenses of dissimilar import and significance that are

to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis

here, we note that a defendant bears the burden of establishing entitlement

to merger, and we review a trial court's ruling on the issue de novo. State v.

LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.

***

We reach the same conclusion under the Ruff standard, which the

Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters

or undermines the foregoing analysis about [the defendant's] commission

of murder and aggravated robbery involving the same conduct committed

with the same animus. For the reasons set forth above, we conclude that

the two offenses were not committed separately and were not committed

with a separate animus or motivation. These findings remain pertinent

under Ruff, which, as noted above, provides that offenses do not merge if

“(1) the offenses are dissimilar in import or significance—in other words,

each offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate

animus or motivation.” Ruff at ¶ 25 [and] ¶ 30-31.

Wood at ¶ 54, quoting State v. McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 51, ¶ 60 (2d

Dist.).

{¶ 32} Recently, in State v. Wilson, 2d Dist. Clark No. 2018-CA-2, 2020-Ohio-

2962, we held that the trial court committed plain error when it failed to merge the
 -13-

defendant’s felonious assault and domestic violence convictions as allied offenses of

similar import. In Wilson, the defendant attacked a woman who was pregnant with his

child, held her captive for several days, poured hot grease on her back, and struck her

with a metal fence post. Id. at ¶ 2-4. Similar to the instant case, the defendant in Wilson

was convicted of felonious assault and domestic violence, and the trial court sentenced

him separately for each offense. Ultimately, we found that the trial court’s failure to

merge the offense amounted to plain error because “the State did not differentiate

between the conduct underlying the felonious assault and the conduct underlying the

domestic violence in the indictment, in the bill of particulars, or during the trial.” Id. at

¶ 127. We further stated as follows:

The trial court, having presided over Wilson's jury trial, was aware of

the factual circumstances giving rise to Wilson's guilty verdicts. The

conduct that formed the basis for the felonious assault charge also formed

the basis for the domestic violence offense. The offenses were committed

over the same period of time (January 27 to January 31) and with the same

animus. Under the facts of this case, the trial court's failure to merge the

felonious assault and domestic violence offenses constituted plain error.

Id. at ¶ 128.

{¶ 33} In the proceedings in King’s case, the State likewise did not differentiate

between the conduct underlying the felonious assault and the conduct underlying the

domestic violence in the indictment or during the trial. This is clearly evidenced by the

State’s comments in its initial closing argument:

Now, the first thing to know, the same acts, the same incident, the same
 -14-

injuries can satisfy both domestic violence and felonious assault. We do

not need to show two separate physical altercations. If it’s satisfactory for

felonious assault, it can be satisfactory for domestic violence.

Tr. 426.

{¶ 34} Accordingly, based upon our holding in Wilson as applied to the facts of this

case, the trial court's failure to merge the felonious assault and domestic violence

offenses constituted plain error.

{¶ 35} King’s third assignment of error is sustained.

{¶ 36} The trial court's judgment is affirmed in part, reversed in part, and

remanded for resentencing.

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TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
J. Joshua Rizzo
David R. Miles
Hon. Michael W. Krumholtz