State v. Walton

[Cite as State v. Walton, 2023-Ohio-1101.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1159

Appellee Trial Court No. CR0202102643

v.

Kevondrae Walton DECISION AND JUDGMENT

Appellant Decided: March 31, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Laurel A. Kendall, for appellant.

*****

SULEK, J.

{¶ 1} Appellant, Kevondrae Walton, appeals the June 24, 2022 judgment of the

Lucas County Court of Common Pleas which, following a jury trial convicting him of

felonious assault and tampering with evidence, sentenced him to a total of 9.5 to 13 years

of imprisonment. For the reasons that follow, the trial court’s judgment is affirmed.
 I. Background

{¶ 2} On October 12, 2021, the state secured an indictment against Walton for

attempted murder, felonious assault, and tampering with evidence. All charges stem

from a hit and run accident involving a vehicle driven by Walton and the victim/bicyclist.

On June 21, 2022, the matter proceeded to a jury trial where the following relevant

evidence was presented.

{¶ 3} Three eyewitnesses testified. The first, L.S., testified that on September 17,

2021, she was traveling northbound on Suder Avenue in Toledo, Lucas County, Ohio,

when she observed a vehicle swerve and knock a man off his bicycle. The vehicle and

the bicyclist were both traveling southbound with the bicyclist close to the curb.

{¶ 4} The prosecutor asked L.S. whether she thought the collision was accidental.

Walton’s counsel objected stating that the question called for a legal conclusion. The

state countered that opinion testimony is admissible under Evid.R. 701 when based on the

perception of the witness. The trial court allowed the state to lay a foundation for the

testimony. L.S. then testified that she observed the victim traveling in the bike lane and

that the vehicle swerved into the lane and hit him. Over objection, she stated that it

appeared intentional. The court overruled the objection. L.S. explained that after hitting

the bicyclist, the vehicle crashed into a pole, swerved around, and advanced towards her

vehicle; she pulled into a driveway to avoid a collision. L.S. then called police. On

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cross-examination, L.S. acknowledged the possibility that the driver could have been

distracted by something in his vehicle and unintentionally struck the victim.

{¶ 5} M.B. then testified that she and her husband had been traveling on Suder

Avenue when a vehicle cut them off. It pulled into a driveway and backed out; the driver

then “gunned it,” swerved, and hit a bicyclist. M.B. and her husband exited their vehicle

and checked on the victim; others approached so they got back in their vehicle and

followed the driver. M.B. stated that the driver pulled in to nearby Ottawa Cove

Apartments. There they witnessed the driver, a black male, taking the license plate off

the car. During cross-examination, M.B. stated that the driver was alone in the vehicle.

She also stressed that the driver was not distracted when he hit the bicyclist.

{¶ 6} The third eyewitness, J.H., a resident on Suder Avenue, testified that she was

on a stepladder painting her front porch when she heard a crash. She observed the victim

fly from the bicycle and over the mailboxes where he landed on his back. The vehicle

spun around and hit a pole; it then fled the scene.

{¶ 7} Toledo Fire and Rescue Lieutenant James Martin testified that his crew

responded to the scene on Suder Avenue and found police applying pressure to a

substantial wound on the victim’s neck. The victim had multiple lacerations, abrasions,

and bruises, and he was noncompliant and combative. Lieutenant Martin stated that his

injuries appeared to be life threatening so he ordered an advanced life support ambulance.

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 {¶ 8} Toledo Police Officer Colin O’Rourke responded to the accident and

interviewed multiple witnesses. He secured the scene to allow the scientific investigation

unit to collect physical evidence and take photographs. By agreement of the parties,

O’Rourke’s body cam video was played to the jury with the audio muted to prevent

prejudice from the victim’s vocalizations. Officer O’Rourke narrated the video including

his examination of the victim’s fanny pack which contained a fully loaded .38 revolver.

{¶ 9} Toledo Police Detective Jeffrey Sharp also responded to the scene. He

learned that after fleeing the scene, the driver parked the vehicle involved at the Ottawa

Cove Apartments. A surveillance officer was stationed there. He stated that due to the

victim’s condition, the case was treated as a potential homicide investigation.

{¶ 10} Arriving at the apartment complex, Detective Sharp observed heavy

damage to the vehicle at issue— a Buick Rendezvous. The windshield, back window,

and other windows were broken out. The front and rear of the vehicle had also been

heavily damaged and the rear bumper was missing. A matching Buick Rendezvous rear

bumper was left at the accident scene. The vehicle’s registration tag and front license

plate, face up, were visible in the open trunk area. The vehicle was registered to Walton;

Detective Sharp identified him in court.

{¶ 11} Sharp testified that officers had already contacted management to obtain

video surveillance footage. The footage depicted Walton, who was carrying a license

plate, and his girlfriend walk into an apartment building and enter one of the units. Since

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under police surveillance, no one had left the building. Officer Sharp and his partner

knocked on the door of the unit that Walton and his girlfriend entered and were greeted

by two other individuals who stated they were residents. They indicated that two young

children were the only other occupants. Detective Sharp testified that he observed what

appeared to be blood and automotive glass on and near the front door.

{¶ 12} Upon questioning, one of the individuals recovered a license plate

matching the one found in the vehicle driven by Walton. At that point, Sharp informed

the individuals of the surveillance video showing Walton and his girlfriend enter the

apartment. Following the individuals’ consent to a search of the apartment, Walton and

his girlfriend presented themselves to the officers. They were separately transported to

the police department for questioning.

{¶ 13} Shortly thereafter, Detective Sharp learned that at 11:36 a.m., Walton’s

girlfriend called 911 from the Ottawa Cove Apartments and reported the vehicle stolen.

The 911 call reporting that a bicyclist had been struck was received at 11:12 a.m.

{¶ 14} During Sharp’s testimony, Walton’s interrogation video was played for the

jury. Walton did not admit his involvement, but he maintained that the crash was an

accident. Detective Sharp then testified about a recorded telephone call Walton made to

his mother while jailed on the charges. The call was played for the jury. Walton stated

that a white man was hit and that he knew him. The race of the bicyclist had not been

discussed during the prior interrogation. On cross-examination, Sharp agreed that the

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department receives false calls of stolen vehicles and that a variety of reasons can cause a

driver to leave the scene of an accident.

{¶ 15} The state rested and defense counsel then moved for acquittal under

Crim.R. 29; the motion was denied. The defense then rested and the renewed motion for

acquittal was denied. The jury returned a not guilty verdict as to attempted murder but

found Walton guilty of felonious assault and tampering with evidence. Following his

June 24, 2022 sentencing, Walton commenced this appeal.

II. Assignments of Error

I. The trial court abused its discretion by allowing a witness to opine

about Walton’s state of mind, pursuant to Evid.R. 701.

II. The trial court abused its discretion by denying appellant’s

motion for acquittal on the basis of insufficient evidence, as to the charge of

felonious assault, pursuant to Crim.R. 29, based on the disputed admission

of the opinion testimony.

III. In the alternative, the conviction was against the manifest

weight of the evidence.

III. Discussion

A. Evid.R. 701

{¶ 16} Walton’s first assignment of error challenges the admission of lay opinion

testimony, over objection, regarding whether Walton intentionally struck the victim.

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Walton challenges whether the lay opinion testimony at issue bears a “reasonable

relationship to the attainment of some legitimate governmental objective.”

{¶ 17} Evid.R. 701 provides a two-part requirement for the admission of lay

opinion testimony:

If the witness is not testifying as an expert, the witness’ testimony in

the form of opinions or inferences is limited to those opinions or inferences

which are (1) rationally based on the perception of the witness and (2)

helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.

Trial courts are granted broad discretion in the admission or exclusion of evidence under

Evid.R. 701. State v. Tuggle, 6th Dist. Lucas No. L-09-1317, 2010-Ohio-4162, ¶ 37,

citing City of Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109, 113, 539 N.E.2d 140

(1989).

{¶ 18} “When assessing lay opinion testimony, ‘the critical point is whether the

opinion of the lay witness will truly be helpful to the jury; i.e., if the basic facts are clear

and the jury is able to draw its own conclusions, the lay opinion is not admissible.’”

State v. Kamer, 6th Dist. Wood No. WD-20-084, 2022-Ohio-2070, ¶ 105, quoting State v.

O’Brien, 2013-Ohio-13, 986 N.E.2d 531, ¶ 45 (11th Dist.).

{¶ 19} In O’Brien, the defendant faced multiple charges relating to striking and

killing his ex-girlfriend with his vehicle. His general defense was that the incident was

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an accident. At trial, two lay eyewitnesses testified that their observations led them to

believe that defendant acted intentionally. Id. at ¶ 40. Concluding that the testimony was

admissible under Evid.R. 701, the court of appeals held:

In this case, the trial record readily demonstrates that the testimony

of the two lay witnesses was based upon their own perception of the fatal

event as it occurred before them. Furthermore, even though the testimony

of the two witnesses was relatively clear as to the events, the specific

factual issue of whether appellant acted purposefully was not so obvious.

In this regard, the evidence showed that the victim did not walk into the

road until a few seconds before appellant backed up the car. In addition,

there was evidence that appellant turned his head to look behind him at

essentially the same time he hit the accelerator to back up. Under such

circumstances, the opinion of each lay witness was admissible under

Evid.R. 701 because the disputed testimony assisted the jury in

understanding the facts as they related to the basic question of appellant’s

intent.

Id. at ¶ 46. See State v. Andre, 8th Dist. Cuyahoga No. 101023, 2015-Ohio-17, ¶ 25-26.

{¶ 20} Similar to O’Brien, L.S.’s and M.B.’s testimony was based on their

personal observations and was helpful to the jury in determining whether Walton had the

intent necessary to convict him under the attempted murder or felonious assault statutes.

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 {¶ 21} Walton also contends that the admission of such evidence resulted in

inconsistent verdicts. It is well-settled that “‘inconsistency in a verdict does not arise out

of inconsistent responses to different counts; it only arises out of inconsistent responses

to the same count.’” State v. Eldridge, 6th Dist. Lucas No. L-18-1084, 2019-Ohio-1265,

¶ 23, quoting State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph

one of the syllabus.

{¶ 22} Both charges against Walton stem from the same underlying conduct;

however, each count has a distinct mental state element. Felonious assault, in violation

of R.C. 2903.11(A)(1), provides that no person shall knowingly cause serious physical

harm to another or to another’s unborn. Knowingly is defined as acting 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. When knowledge of the existence of a particular fact is an element of

an offense, such knowledge is established if a person subjectively believes

that there is a high probability of its existence and fails to make inquiry or

acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B)

{¶ 23} Conversely, to find Walton guilty of attempted murder, R.C. 2903.02 and

R.C. 2923.02, the state was required to prove that, if successful, Walton would have

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“purposely cause[d] the death of another[.]” (Emphasis added.) “A person acts

purposely when it is the person’s specific intention to cause a certain result[.]” R.C.

2901.22(A).

{¶ 24} Therefore, Walton’s conviction for felonious assault and acquittal for

attempted murder demonstrates that the jury believed the state’s theory that Walton

knowingly hit the victim with his vehicle, but they were not convinced that the purpose of

his actions was to kill the victim. Such verdicts are not inconsistent. Walton’s first

assignment of error is not well-taken.

B. Sufficiency of the Evidence

{¶ 25} In his second assignment of error, Walton contends that his felonious

assault conviction was not supported by sufficient evidence. Whether there is sufficient

evidence to support a conviction is a question of law. State v. Bailey, 6th Dist. Huron No.

H-22-008, 2023-Ohio-657, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). In reviewing such a challenge, a court “must consider all evidence

admitted at trial, including the improperly admitted evidence * * *.” State v. Gideon, 165

Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 29. “‘The relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.’” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997),

quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

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syllabus. Accordingly, the appellate court will not weigh the evidence or assess the

credibility of the witnesses. State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182

N.E.3d 1161, ¶ 16, quoting State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84

N.E.3d 993, ¶ 13. “Rather, we decide whether, if believed, the evidence can sustain the

verdict as a matter of law.” Richardson at ¶ 13.

{¶ 26} As set forth above, felonious assault, R.C. 2903.11(A)(1) and (D), provides

that “[n]o person shall knowingly * * * cause or attempt to cause serious physical harm to

another.” Knowingly is statutorily defined as action “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.” R.C. 2901.22(B).

{¶ 27} Walton’s argument is that absent the improperly admitted opinion

testimony as to his intent, the jury’s verdict is not supported by sufficient evidence. As

set forth above, perceptions of a lay witness which aid the jury are admissible under

Evid.R. 701. Additionally, testimony regarding a driver’s swerving, accelerating, or

speed can independently provide sufficient evidence of intent. See State v. Stevens, 6th

Dist. Lucas No. L-19-1219, 2020-Ohio-6981, ¶ 33; State v. Brown, 8th Dist. Cuyahoga

No. 90398, 2008-Ohio-3668, ¶ 21.

{¶ 28} At trial, L.S. testified that Walton swerved to hit the victim, spun around

and hit a pole and then fled the scene. She stated that Walton’s actions appeared

intentional. M.W. stated that Walton cut off her vehicle and pulled into a driveway,

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turned around and, after accelerating, struck the victim. M.W. also testified that Walton’s

actions appeared intentional. Accordingly, Walton’s felonious assault conviction was

supported by sufficient evidence and his second assignment of error is not well-taken.

C. Weight of the Evidence

{¶ 29} In his third assignment of error, Walton alternatively argues that his

felonious assault conviction was against the manifest weight of the evidence. In

determining whether a conviction is against the manifest weight of the evidence, unlike a

sufficiency of the evidence analysis, appellate courts do not view the evidence in a light

most favorable to the state. Instead, the court sits as a “‘thirteenth juror’” and examines

“‘the factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist.

Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, quoting State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997). Thus, the court is tasked to review the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of 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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 30} Reviewing the entire proceeding, the jury did not lose its way in resolving

conflicting evidence. Such evidence included eyewitness L.S.’s acknowledgement that

Walton could have been distracted while driving and eyewitness M.B.’s inaccurate

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observation that Walton was alone in the car and that she could not deduce exactly how

fast Walton was going. The jury, however, was free to believe the critical portions in the

eyewitness testimony including that Walton cut off a driver, abruptly turned around,

accelerated, and swerved to hit the victim. After crashing his vehicle into a pole, he fled

the scene. Walton’s felonious assault conviction was not against the manifest weight of

the evidence, and his third assignment of error is not well-taken.

IV. Conclusion

{¶ 31} Upon due consideration, the June 24, 2022 judgment of the Lucas County

Court of Common Pleas is affirmed. Pursuant to App.R. 24, Walton is ordered to pay the

costs of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE

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 This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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