[Cite as State v. Cousins, 2019-Ohio-2899.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JONATHON COUSINS : Case No. 18-CA-95
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 17 CR 743
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 16, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAWYERS KATHERINE L. WOLFE
20 South Second Street 1350 West 5th Avenue
Fourth Floor Suite 330
Newark, OH 43055 Columbus, OH 43212
Licking County, Case No. 18-CA-95 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jonathon Cousins, appeals his August 29, 2018
convictions in the Court of Common Pleas of Licking County, Ohio. Plaintiff-Appellee is
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 31, 2017, the Licking County Grand Jury indicted appellant on
one count of felonious assault in violation of R.C. 2903.11, two counts of domestic
violence in violation of R.C. 2919.25, and one count of improperly handling a firearm in a
motor vehicle in violation of R.C. 2923.16. Said charges arose from an incident involving
appellant and his wife's grandfather, Donald Rostofer.
{¶ 3} A jury trial commenced on August 28, 2018. The jury found appellant guilty
of the felonious assault count and the handling count, and not guilty of the domestic
violence counts. The trial court filed a judgment entry of conviction on August 29, 2018.
By judgment entry filed October 5, 2018, the trial court sentenced appellant to an
aggregate term of two years in prison.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 5} "THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF
EVIDENCE."
II
{¶ 6} "THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUPPORT THE CONVICTIONS."
Licking County, Case No. 18-CA-95 3
I, II
{¶ 7} In his two assignments of error, appellant claims his convictions are against
the sufficiency and manifest weight of the evidence. We disagree.
{¶ 8} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 9} On review for manifest weight, a reviewing court is to examine 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." State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). The granting of a new trial "should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction." Martin at 175.
{¶ 10} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d
180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
Licking County, Case No. 18-CA-95 4
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶ 11} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(1): "No person shall knowingly * * * [c]ause serious physical harm to another
or to another's unborn." R.C. 2901.22(B) defines "knowingly" as:
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. 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.
{¶ 12} R.C. 2901.01(A)(5) defines "serious physical harm to persons" as:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
Licking County, Case No. 18-CA-95 5
(d) Any physical harm that involves some permanent disfigurement
or that involves some temporary, serious disfigurement;
(e) Any 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.
{¶ 13} Appellant was also convicted of improperly handling a firearm in a motor
vehicle in violation of R.C. 2923.16(B): "No person shall knowingly transport or have a
loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the
operator or any passenger without leaving the vehicle."
{¶ 14} Eleven witnesses testified during the trial. The first witness, Newark City
Police Sergeant Clint Eskins, was the responding officer to a domestic situation call. T.
at 100. When he arrived on the scene, appellant pulled up in his pickup truck. T. at 101.
Appellant told Sergeant Eskins he and his wife Abby had been arguing when Abby's
grandfather Donald grabbed him by the neck. T. at 102. Appellant reacted and struck
Donald. Id. Sergeant Eskins testified appellant's hand was swollen and appeared to be
broken. Id. Sergeant Eskins observed injuries to Donald's face. T. at 106. Donald's eye
and nose area was red and swollen. T. at 107; State's Exhibit 4.
{¶ 15} When Sergeant Eskins asked appellant if he had any weapons in his
vehicle, appellant stated, "there was an old handgun in the vehicle in the glove box." T.
at 107. Sergeant Eskins testified he secured the firearm from the vehicle along with "a
loaded magazine with rounds inside the truck, as well." T. at 103; State's Exhibits 1 and
2. The loaded magazine was in the gun. T. at 104. Appellant did not have a permit to
Licking County, Case No. 18-CA-95 6
carry the firearm. T. at 105. Sergeant Eskins testified the firearm would be within
appellant's reach when he was driving the vehicle. T. at 106.
{¶ 16} Newark City Police Detective Timothy Elliget is a criminalist. T. at 116. He
performed an operability test on the firearm retrieved from appellant's vehicle. Detective
Elliget testified the firearm was operable and fully functional. T. at 118-119; State's Exhibit
3.
{¶ 17} Donald Rostofer, the grandfather, was seventy-two years old at the time of
trial. T. at 121. He testified appellant and Abby were living with his daughter Shelly and
her husband Roy. T. at 124. Donald was over most weekends to help with a kitchen
remodel. T. at 125. He was aware that prior to his arrival on the day in question, all of
the parties had been arguing. T. at 126. As he began working in the kitchen, appellant
and Abby were leaving the house. T. at 126-127, 141-142. On the way out, Abby stopped
to say something to her grandmother Lee. T. at 127. Donald testified he observed
appellant grab Abby's arm and say "come on" and Abby saying a couple times she did
not want to go and telling appellant he was hurting her. T. at 127, 143-144. Donald
grabbed Abby's arm and told appellant, " 'Just go calm down. She doesn't want to go.' "
Id. That was the last thing he remembers because appellant hit him on his right temple
and knocked him out. T. at 127-128. When he came to, he was bleeding from his
forehead, under his eye, and his nose. T. at 130; State's Exhibits 4 and 5. He sustained
bruising and abrasions, a concussion, facial fractures on his left side, headaches, and a
brain bleed. T. at 131, 133, 135, 147. He testified he did not put his hands on appellant
or try to pry his grip off of Abby's arm. T. at 144.
Licking County, Case No. 18-CA-95 7
{¶ 18} Dr. Steven Hazelcorn, an emergency room physician at Licking Memorial
Hospital, treated Donald following the incident. T. at 151. He testified to the injuries
sustained by Donald and the seriousness of those injuries. T. at 152-159. Donald "ended
up with a subdural hematoma." T. at 155. Dr. Hazelcorn testified a subdural hematoma
can cause death. T. at 157. The fractures to Donald's face were "serious, especially at
that age. It could also lead to entrapment of the eyeball." T. at 158. Dr. Hazelcorn opined
the subdural hematoma was "much more serious," and it was caused by the trauma to
the head during the incident with appellant. T. at 158, 160.
{¶ 19} Abigail "Abby" Athey, appellant's wife at the time of the incident, ex-wife at
the time of trial, testified to the argument she had with appellant prior to the incident with
her grandfather. T. at 170-172. As appellant and Abby were leaving the house, appellant
"aggressively" pulled on her arm and she asked him to let go because she did not "want
to go anymore." T. at 173. Abby testified her grandfather observed what was happening,
came over to try and calm down appellant, and pushed appellant's shoulder. T. at 173-
174. Appellant said, " 'Don't touch me' " and as her grandfather continued to attempt to
calm him down, appellant punched him. T. at 174-175. Donald stumbled out into the
sunroom and appellant punched him again, punched him a third time, and then Donald
blacked out and "fell flat on his face." T. at 175-176. Abby's father Roy attempted to
protect Donald and he also fell to the floor. T. at 176. Appellant punched Roy's back and
the back of his head until Abby's mother Shelly pulled appellant off. Id. Appellant ran out
and then came back, yelling to Abby "to get his stuff." Id. Abby collected his stuff, ran
out and gave it to appellant, and he ran away. T. at 176-177. Abby was cross-examined
with her statement to police which did not mention the argument prior to the incident or
Licking County, Case No. 18-CA-95 8
that appellant punched her grandfather multiple times. T. at 186-191, 195; Defendant's
Exhibit B. In the middle of her statement, Abby wrote, " 'I was mad and upset and basically
Jon was being a good husband that day.' " T. at 195. Abby explained she wrote that
because she was scared and nervous and "didn't really know what I wanted to write down.
My mind was everywhere." T. at 196. On redirect, Abby acknowledged that she wrote in
her statement that appellant threw "fists" at her grandfather, as in multiple attempts to hit
him. T. at 199.
{¶ 20} Roy Athey, Abby's father, testified to arguing with appellant and Abby prior
to the incident. T. at 205-206. He was working in the kitchen when he heard arguing in
the sunroom. T. at 206. Roy went out and observed appellant hit Donald in the face. T.
at 206-207. Roy attempted to break up the fight, but appellant punched Donald again.
T. at 207. Roy got in between the two and appellant struck Donald a third time, causing
him to stumble and fall down. Id. When Donald fell, Roy fell with him. Id. Appellant then
hit Roy in the back and the back of his head until his wife Shelly pulled appellant off. T.
at 208. Appellant left and then came back around and threatened to kill all of them. T. at
209. The comment made him feel "pretty scared" because he knew appellant had guns.
Id. Roy was cross-examined with his statement to police which did not mention that
appellant punched Donald multiple times. T. at 220-221; Defendant's Exhibit C. Roy
explained at the time of writing his statement, "everything happened so fast that I was
shaking and everything and I just wrote down. I started writing down stuff." T. at 222.
{¶ 21} Leota "Lee" Rostofer, Donald's wife, testified on the way out of the house,
Abby started arguing with her. T. at 232. After, Lee observed appellant pulling on Abby's
arm and telling her to "come on," Abby saying she did not want to go, her husband holding
Licking County, Case No. 18-CA-95 9
on to Abby's arm and trying to calm appellant down, and appellant hitting her husband in
the head and "continued on hitting him." T. at 232-233. She saw her husband on the
floor face down and Roy was on top of him trying to protect him. T. at 233. Appellant hit
Roy in the head until Shelly pulled him off. Id. Appellant left and then came back around
and threatened to kill all of them. T. at 234. The comment terrified her because she knew
appellant had guns. Id. She did not see any contact from her husband to appellant prior
to the punch. T. at 239. Lee was cross-examined with her statement to police which did
not mention that appellant punched Donald multiple times. T. at 243-244; Defendant's
Exhibit A. Lee explained at the time of writing her statement, she was "just so upset." T.
at 241.
{¶ 22} Michele "Shelly" Athey, Abby's mother, testified to arguing with appellant
and Abby prior to the incident. T. at 250-252. She did not observe the altercation between
appellant and her father, but she could hear them arguing. T. at 253. By the time she
got to the sunroom, her father was face down on the floor and Roy was on top of him. T.
at 254, 266. Appellant hit Roy in the back and the back of his head until she pulled him
off. T. at 254. Appellant left and then came back around and threatened to kill all of them.
T. at 255. The comment scared her because she knew appellant had guns. Id.
{¶ 23} Appellant testified on his own behalf. Appellant was twenty-four years old
at the time of trial. T. at 304. He had served in the Army and had received specialized
training such as hand-to-hand combat and attack and defend skills. T. at 304, 342-343.
Appellant testified prior to the incident, Abby's parents Roy and Shelly had been yelling
at him so he fled to his bedroom and locked the door. T. at 315. Abby was in the room
with him, and they were not arguing. Id. Roy and Shelly began "beating" on the bedroom
Licking County, Case No. 18-CA-95 10
door and telling them "to get out of there" before they retreated and went "back up front."
T. at 316. Appellant was "very upset" and ready to leave. Id. He and Abby walked
through the house to leave when Abby got into an argument with her family. T. at 317-
318. Appellant testified two times he grabbed Abby's arm and said "come on" and both
times she "jerked away and continued yelling at her family." T. at 318-319. He then
picked up Abby and moved her onto the sunporch and stood between her and her family.
T. at 319-320. Abby never stated she did not want to leave. T. at 319. Donald said
something derogatory to appellant and grabbed his shirt "and kind of did like a shove - -
shove kind of pull thing, and I stiff armed him off of me and I told him, 'We're leaving'." T.
at 321. Appellant testified Donald "proceeded to grab my shirt, and when he grabbed my
shirt for a demonstration, he put his fist up underneath my throat and attempted to lift me
off the ground to where my tippy toes were up." Id. As appellant attempted to get away
from Donald, Donald "grabbed the back of my head and pulled me into his chest." T. at
322. Appellant thought his life was in danger and he started suffocating so he "swung up
forward" with his right arm and made contact with the left side of Donald's face. T. at 322-
323. Donald let go, fell to the ground, and landed on the right side of his face. T. at 323.
Appellant stated he hit Donald only once. T. at 333. Appellant testified he was not trying
to hurt anyone, he just wanted to get away. T. at 325. He attempted to make sure Donald
was okay when he heard Roy yelling and charging him. T. at 324. They then had an
altercation. T. at 325-326. Shelly came in and shoved appellant. T. at 326. Appellant
rushed out of the house and then ran back in to retrieve his book bag. T. at 326. He then
went to his truck and returned to the house to have Abby hand him his keys and phone
and "stuff." T. at 326-327. Donald came out with a towel against his head and went after
Licking County, Case No. 18-CA-95 11
appellant, "shoving me up against the back of his truck." T. at 329. Appellant had his
hands up and told him he was going to hit him again. Id. Donald continued to shove him
and Roy had to hold him back. Id. Appellant left and then returned to the house to defend
himself and tell the police his side of the story. T. at 330. While he was gone, he took
his loaded firearm out of his book bag and placed it in his glove compartment. T. at 331,
339. He thought Ohio was an open carry state. T. at 331. Appellant testified he was
never trying to hurt anyone, he had an honest belief that he was in imminent danger of
bodily harm, and he did nothing to create the situation. T. at 333. Appellant stated he
never threatened to kill them. T. at 335. The entire time, he was "trying to alleviate the
hostility and just get away." T. at 335.
{¶ 24} The jury was instructed on the affirmative defense of self-defense. T. at
397-400. As explained by this court in State v. Lawyer, 5th Dist. Licking No. 2018 CA
00030, 2019-Ohio-597, ¶ 29:
To establish self-defense in the use of non-deadly force, the accused
must show: 1) he was not at fault in creating the situation giving rise to the
altercation; 2) the accused had reasonable grounds to believe and an
honest belief, even though mistaken, that some force was necessary to
defend himself against the imminent use of unlawful force; and 3) the force
used was not likely to cause death or great bodily harm. State v.
Hoopingarner, 5th Dist. Tuscarawas No. 2010AP 07 00022, 2010-Ohio-
6490, ¶ 31, citing State v. Vance, 5th Dist. Ashland No. 2007-COA-035,
2008-Ohio-4763, ¶ 77 (citations omitted). If any one of these elements is
Licking County, Case No. 18-CA-95 12
not proven by a preponderance of the evidence, the theory of self-defense
does not apply. State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279
(1990).
{¶ 25} Appellant argues the testimony was inconsistent regarding the felonious
assault conviction. As noted above, the jury is entrusted with determining the credibility
of the witnesses. It is undisputed appellant struck Donald. As a result, Donald required
medical attention and Dr. Hazelcorn testified to the seriousness of his injuries. "Ohio
courts have also determined that 'serious physical harm' exists where the injuries caused
the victim to seek medical treatment." State v. Nicholson, 5th Dist. Morgan No. 18 AP
0005, 2019-Ohio-1058, ¶ 22, citing State v. Scott, 4th Dist. Washington No. 15CA2, 2015-
Ohio-4170, ¶ 23. Further, "Ohio courts have held that it is a foreseeable consequence
for someone to fall to the ground after being punched in the head or pushed." Nicholson
at ¶ 23. It was up to the jury to accept appellant's self-defense claim. The jury heard
inconsistent testimony and it was within the jury's province to accept the version of the
incident as presented by appellee.
{¶ 26} As for the improperly handling a firearm in a motor vehicle conviction,
appellant argues there was no evidence as to whether the glove box was locked or not,
rendering the gun accessible. Sergeant Eskins did not testify to having any trouble
retrieving the firearm from the glove box. He testified the gun would be within appellant's
reach when he was driving the vehicle. Appellant did not testify to locking the glove box
after he placed the loaded gun inside.
Licking County, Case No. 18-CA-95 13
{¶ 27} Upon review, we find there is sufficient evidence, if believed, to support the
convictions beyond a reasonable doubt. In weighing the evidence presented, we do not
find the jury lost its way and created a manifest miscarriage of justice.
{¶ 28} Assignments of Error I and II are denied.
{¶ 29} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Hoffman, J. concur.
EEW/db 627
State v. Cousins
Combined Opinion