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State of Ohio v. Shane D. Fetty

December 24, 2012


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR 0795.

The opinion of the court was delivered by: Mary Jane Trapp, J.

Cite as

State v. Fetty,


Judgment: Affirmed in part, reversed in part, and remanded.

{¶1} Shane D. Fetty appeals from a judgment of the Portage County Court of Common Pleas, which convicted him of felonious assault after a jury trial and sentenced him to three years in prison. The court also ordered him to pay restitution to the victim and imposed court costs. We affirm his conviction, but reverse the portion of the judgment regarding restitution and court costs, and remand the matter to the trial court for further proceedings consistent with this opinion.

Substantive Facts and Procedural History

{¶2} This case involved a celebratory bonfire gone awry. A punch led to a melee, and one of the party-goers ended up in the hospital with a neck injury. After investigation, the state charged Shane Fetty with felonious assault.

{¶3} At trial, the state presented the testimony of six eyewitnesses, the victim, two police officers, and the victim's treating physician. The following facts are gleaned from the witnesses' testimony.

{¶4} On April 16, 2010, Silas Welker, recently discharged from military service in Iraq, invited friends to a bonfire at his family home in Deerfield, Ohio, where he and his sister, Purdie, resided. The Welker residence had a long driveway that continued through the back of the property. The backyard, where the bonfire was held, was well lit by a large mercury vapor light from a light pole, near which a shallow 18-inch-deep ditch is located. The bonfire was built on the other side of the ditch, and a pickup truck was parked in the driveway about 15 to 20 feet from the bonfire. A picnic table was directly behind the truck.

{¶5} Mr. Fetty and the victim, Terry Butcher, came to the party with others who had been invited by Silas Welker. As the party went on, a large quantity of beer was consumed and a verbal altercation occurred among two groups of guests. It eventually led to a punch being thrown by Mr. Fetty at Mr. Butcher, and a melee ensued. Both Mr. Fetty and Mr. Butcher fell into the ditch, where many party-goers joined in a group scuffle. Mr. Butcher ended up in the hospital with a neck injury. The eyewitnesses gave various accounts of the events leading to Mr. Butcher's injury.

Eyewitnesses' Accounts of the Events Leading to the Victim's Injury

{¶6} Silas Welker's sister, Purdie, who resided at the Welker home at the time, arrived home from work at 11:00 p.m. and joined the party. She heard there was an argument among the guests, and saw Silas going around "smoothing the ruffled feathers over." At one point, she saw Mr. Butcher walking toward the house and stumbling around the light pole. As he was walking on the left side of the pickup truck, Mr. Fetty "came flying around the right side of the pick-up * * * and, like, hit him with his shoulder, kind of like a tackle, but it wasn't, and his fist came flying down into the side of his head." "[Mr. Fetty's] shoulder went into [Mr. Butcher] and [Mr. Fetty's] hand came down on [Mr. Butcher's] head." Mr. Butcher turned to face Mr. Fetty, and they started throwing punches, with Mr. Butcher moving backward towards the ditch. Both then fell into the ditch, with Mr. Butcher on the bottom. Some guests joined the fight in the ditch, while others attempted to break it up. Her other sibling, Ryan Welker, who also attended the party, went into the ditch in an attempt to stop Mr. Fetty from continuing to fight Mr. Butcher. She heard Ryan yelling at Mr. Fetty: "Let go of his neck. Let go of his neck. If you don't let go of his neck, I'm going to break yours. Let go of his neck." After the fight was over, Ms. Welker, who had some first-aid training, went to check on Mr. Butcher. She did not see any bruising, but his face was a bloody mess and he complained his shoulders hurt.

{¶7} Ms. Welker identified Mr. Fetty in the courtroom as the attacker, who she had met on one occasion prior to the party. Ms. Welker testified that she was able to see the events clearly, as they took place under the light pole.

{¶8} On cross examination, she elaborated more about the initial punch thrown by Mr. Fetty. Mr. Fetty used his shoulder to tackle Mr. Butcher, which lifted Mr. Butcher up off the ground, and, as he started to come back down, Mr. Fetty threw his arm and nailed him in the face. They then traded "blow for blow," until both fell into the ditch.

{¶9} Theresa Rufener, Mr. Fetty's ex-girlfriend, attended the party with Mr. Fetty. She testified there was a verbal altercation among the party guests. At one point, Mr. Fetty said to her: "this guy's running his mouth, and, you know, something could happen" and "this guy is * * * picking a fight." An individual, referred to by Ms. Rufener as "the guy who got beat up later," kept "making comments and stuff," and she was worried that he was provoking a fight. The comments were directed toward a guest, Fred Deng, a friend of Mr. Fetty's. Worried that a fight may happen, Ms. Rufener went to the host, Silas, and asked him to stop the individual who was "mouthing off." She also started to gather her friends, among them Mr. Fetty, to then leave. She headed toward her vehicle, but went back to the bonfire to get Mr. Fetty. The next thing she knew, "Shane hits the guy in the face and then there's just a bum rush of people."

{¶10} Although Ms. Welker testified she did not hear any verbal exchange before Mr. Fetty hit Mr. Butcher, Ms. Rufener testified differently regarding the moments before the attack. She heard Mr. Fetty say "if you have a problem with Fred [Deng], you should say it to his face." Mr. Deng then walked up, and Mr. Fetty looked at Mr. Butcher and said, "do you have a problem with Fred; why don't you say something to him." Mr. Butcher said nothing, and Mr. Fetty "busted him in the face."

{¶11} Ms. Rufener also testified about Ryan Welker's attempt to break the fight. Ryan stood behind Mr. Fetty and put his arms around his neck in a headlock. She yelled at Mr. Fetty to relax and not to fight back, telling him Ryan just wanted to break up the fight. When she heard Ryan said to Mr. Fetty, "I'll snap your neck," she became concerned and rushed in herself to push Ryan off Mr. Fetty. Mr. Butcher's friends then carried Mr. Butcher to a truck, and she left with Mr. Fetty. They did not realize Mr. Butcher was badly injured until the next morning, when a friend of Silas Welker informed them. Mr. Fetty asked her to say that he "got jumped on" and Mr. Butcher "picked a fight with [him]," if questioned by the police. She also testified that she told Investigator McGonigal that Mr. Fetty had told her to lie about the case. Upon cross examination, she testified that Mr. Butcher made inappropriate remarks at Freddy Deng's girlfriend and was looking for a fight with Freddy Deng. Contrary to Ms. Welker's testimony, Ms. Rufener insisted that the two were standing face-to-face when Mr. Fetty threw the first punch on the jaw of Mr. Butcher.

{¶12} Silas Welker's older brother, Ryan, who did not know either Mr. Fetty or Mr. Butcher, testified that there was a "beer pong" game at the party and people were drinking. At one point, a verbal altercation started by the bonfire between Mr. Fetty and another individual. Ryan went to inform Silas of the verbal fight, and Silas asked the people to leave. Mr. Fetty was walking down the driveway to leave, but then returned, "came up and just hit [Mr. Butcher]," which caught everyone by surprise. Mr. Fetty "blindsided [Mr. Butcher], more or less * * *" and "[h]is hand hit his face." Mr. Fetty then "tackled [Mr. Butcher] to the ground and wasn't letting up on him and was just pounding on him." Ryan went over to try to pull Mr. Fetty off Mr. Butcher. He managed to grab Mr. Fetty and yelled at him to stop, but he would not. "I was like, Dude, if you don't let up on him - I had my legs around his head. I was, like, I'm going to snap your neck. You know? And then he stopped. Apparently he heard that. He understood what that meant. He didn't understand what stop was."

{¶13} Ryan described Mr. Fetty's punch as a "straight out sucker punch," and an "ambush." He stated that, after being hit by surprise, Mr. Butcher "just about went down after" and appeared no to know what was going on. After the fight was over, Mr. Butcher's face was bleeding, and standing "kind of weird" and complaining his back hurt. On cross examination, Ryan testified that he was sitting at the picnic table and Mr. Butcher was walking in his direction when Mr. Fetty threw the first punch at him. He also explained he did not call the police to report the incident because "[he was] a country boy and sometimes it happens around a bonfire."

{¶14} The host of the party, Silas Welker, testified that Freddy Deng became upset because of the manner in which Mr. Butcher was talking to a lady. Mr. Fetty, a friend of Mr. Deng, approached Silas about wanting to fight Mr. Butcher. Silas would not allow it. When Mr. Fetty approached him again later, Silas told him he should leave. When Mr. Butcher was walking around in front of Silas's truck, facing the bonfire, Silas saw Mr. Fetty run around the side of the truck and "clocked [Mr. Butcher] in the side of the head." No words were exchanged prior to the punch. Mr. Butcher started stumbling, and Mr. Fetty kept punching him. Mr. Butcher fell into the ditch and Mr. Fetty fell on top of him, continuing to hit him. To break up the fighting, his brother Ryan had his arm around Mr. Fetty's neck, threatening to break his neck. When Ryan finally pulled Mr. Fetty off Mr. Butcher, Mr. Fetty kicked Mr. Butcher in the face. On cross examination, Silas admitted that he never told the detective who interviewed him that Mr. Fetty had approached him about wanting to fight Mr. Butcher.

{¶15} Anthony Miller, a friend of Mr. Butcher, testified that he was sitting with Mr. Butcher on the picnic table, while the latter was talking to a woman. When she was leaving, Mr. Butcher stood up to take his phone out, so he could put her phone number in his phone. Suddenly, Mr. Fetty came up and "coldcocked" Mr. Butcher in the side of his face. Mr. Butcher stumbled and fell backwards, and they both fell into the ditch. Others joined the fight in the ditch. Mr. Miller testified he did not drink and had a clear mind that night.

{¶16} John Eisenbarth, also a friend of Mr. Butcher, testified that he picked up Mr. Butcher about six or seven p.m. and went to the party. Mr. Butcher got into a verbal altercation with Freddy Deng. At one point, Mr. Butcher was sitting at the picnic table talking to a woman, and Mr. Eisenbarth was standing to the side of the pickup truck, parked about 15 feet from the bonfire, and the picnic table, which was directly behind the truck. He saw out of the corner of his eye someone coming from the driver's side of the truck and hit Mr. Butcher. From where he sat, it looked like Mr. Butcher was hit in the back. Mr. Butcher stumbled and fell over, and a melee broke out. Everyone then congregated in the ditch.

{¶17} Mr. Butcher testified that he had previously served a six-month prison term for vehicular assault. Before he went to the party with John Eisenbarth, he had consumed a couple of beers, and continued to consume alcohol throughout the evening and became intoxicated. When introduced to Mr. Fetty, he remarked that his name sounded like "fettuccine." Mr. Fetty later overheard him talking to a female about being in prison, and "had a problem with that," because Mr. Fetty himself had served time in prison. Mr. Butcher said, "Big deal; we're free; look around; we're in the middle of nowhere," which angered Mr. Fetty. Mr. Butcher continued to talk to the female while sitting on the picnic table. Mr. Fetty came around the truck. Mr. Butcher glanced behind him and saw Mr. Fetty coming at him and hit him with an object. Mr. Butcher fell on his front side and continued to be punched. Several people then ran up to them. On cross examination, Mr. Butcher admitted his memory of the event was blurry, but insisted he remembered he was sitting on the picnic table when assaulted, and was hit with a pipe or similar object.

{¶18} According to the witnesses' testimony, after the fight was over, Mr. Butcher complained he was in a lot of pain. Mr. Miller and Mr. Eisenbarth took him to the hospital. Not wanting the police involved, Mr. Eisenbarth told the admitting desk that Mr. Butcher had fallen down the stairs. Mr. Butcher also initially told the medical staff he fell down the stairs, worried that his insurance may not cover the injury. He underwent a surgery to repair a fractured bone, and was released from the hospital on April 21, 2010. He filed a police report on April 26, 2010. Mr. Butcher testified that, after the surgery, he had sharp pains in his shoulder and tingling in his fingers.

{¶19} At the close of the state's case, Mr. Fetty did not present his own witnesses, but moved for acquittal pursuant to Crim.R. 29. The court denied the motion, and the jury found him guilty of felonious assault. The court sentenced him to three years in prison, and ordered him to pay $6,000 in restitution to the victim and court costs.

{¶20} Mr. Fetty now appeals, assigning the follow error for our review:

{ΒΆ21} "[1.] The trial court committed reversible error and plain error when it permitted the victim's doctor to testify and offer medical explanations and ...

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