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State v. Frazier

Court of Appeals of Ohio, Seventh District, Belmont

November 13, 2017


         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 16 CR 085

          For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Scott A. Lloyd Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Allen M. Vender Assistant State Public Defender.

          JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb.


          WAITE, J.

         {¶1} Appellant Cliff Alfred Cero Frazier appeals his conviction in Belmont County Common Pleas Court for felonious assault. Appellant raises two issues on appeal. The first is whether his trial counsel was ineffective for failing to request a jury instruction on aggravated assault, an inferior degree offense of felonious assault. The second is whether the verdict was against the manifest weight of the evidence. Based on the record, it is clear that trial counsel was not ineffective and the conviction was not against the manifest weight of the evidence. Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural Background

         {¶2} Kelli Mitchell ("Mitchell") had maintained romantic relationships with both Neal Bledsoe ("Bledsoe") and Appellant in the past. Mitchell was at one time engaged to Bledsoe but had broken the engagement and had begun a relationship with Appellant. At the time of the incident, Bledsoe was fifty-four years of age and had been employed as a construction worker and bouncer. He also had experience teaching self-defense and played two years of semiprofessional football. Appellant was forty-eight years of age and worked as an auto mechanic.

         {¶3} In early February of 2016, Mitchell decided to end her relationship with Appellant, who was living with her and her two minor daughters. Initially, Appellant refused to leave the premises but ultimately agreed to move out. Mitchell decided that in order to avoid conflict she would leave the house for a week and stay with Bledsoe, giving Appellant time to remove his belongings and vacate the premises. Mitchell's ten year old daughter went to stay with her grandmother during this time. Mitchell's sixteen year old daughter remained in the house with Appellant, but was only home to sleep. On February 8, 2016, Mitchell asked Bledsoe to take her back to the house and help replace the locks, as the older daughter told Mitchell that Appellant had moved out. On arriving at the home, Mitchell's dog got loose and Mitchell and her ten year old daughter went after the dog. Appellant was apparently driving past the residence and saw Mitchell and her daughter outside. Appellant offered to assist in getting the dog back. The dog was located and was taken back home with Mitchell's daughter, but Appellant and Mitchell remained outside in an alley behind the house to have a conversation. When her daughter and dog went into the house without Mitchell, Bledsoe asked the girl where her mother was. The daughter informed him that she was outside talking to Appellant. Bledsoe sent the older daughter out to ask Mitchell to return inside. The daughter returned, but said that her mother refused. Bledsoe called Mitchell's cell phone but Mitchell did not answer. The older daughter told Bledsoe to go outside and get her mother. Bledsoe testified that he was originally reluctant, but ultimately went outside looking for Mitchell.

         {¶4} Once in the alley, he noted that Mitchell was crying and that she and Appellant were engaged in an emotional conversation. Bledsoe approached Mitchell, took her by the arm, and told her to come back in the house with her daughters. Mitchell replied, "I'm talking to Cliff right now. I'm a grown woman. I can come when I'm done." (Tr., p. 186.) Appellant then told Bledsoe to respect Mitchell's wishes and told him to leave. Mitchell testified that the two men began arguing and were "getting louder and louder with arguments. [Bledsoe] was asking [Appellant] what do you want to do, what do you want to do about it. [Appellant] was calm." (Tr., p. 187.)

         {¶5} Bledsoe and Appellant gave differing versions of events about the escalation of the confrontation. Bledsoe testified that he was still holding Mitchell's arm when he felt a hand across his chest which he believed was Appellant's. Bledsoe got into a defensive stance preparing for an attack when he noticed that he was bleeding profusely from his neck. (Tr., p. 171.) Bledsoe said he turned to leave but Appellant followed him, repeating multiple times, "you're going to bleed out" to Bledsoe. Id. Bledsoe testified that he walked to the next block and flagged down a passer-by, who drove him to the hospital emergency room where he was treated for his wounds; a slice directly across his neck which lacerated both jugular veins.

         {¶6} Appellant testified that when Bledsoe came out into the alley, he was forceful with Mitchell about going into the house and would not let go of her arm. Appellant told the police in his initial interview that Bledsoe struck him first, but later testified at trial that Bledsoe's punch landed on Appellant simultaneously with his own stab to Bledsoe's neck. (Tr., p. 320.)

         {¶7} Appellant said that after the altercation, he went to his truck, left the razor blade he had used to cut Bledsoe in his work glove inside of his toolbox, and then put both into the covered bed of the truck. Appellant let himself inside Mitchell's house, where he informed Mitchell that Bledsoe punched him, but did not inform her that he had stabbed Bledsoe. While at the hospital, Bledsoe identified Appellant as his assailant. A short time later two police officers went to Mitchell's home and arrested Appellant. After being handcuffed, as he was being led to the police car, Appellant asked why he was being arrested. The officer informed him that he had been accused of stabbing Bledsoe. After Appellant was read his Miranda rights, he told police that Bledsoe struck him first and that he "hits like a bitch." He did not initially indicate that he was afraid of Bledsoe or that he was defending himself or Mitchell against Bledsoe. He also told the officers that he had dropped the weapon on the ground and did not immediately admit that he had hidden it in his truck. (Tr., pp. 217, 219, 239.) At trial, Appellant admitted that Bledsoe did not hit him first and that he never told the police he was acting in Mitchell's defense. (Tr., p. 319.)

         {¶8} Mitchell testified that both Appellant and Bledsoe had been mentally abusive but that she had never suffered physical violence from either man. She testified that she and Bledsoe were friends, and that she approached him with her request to stay with him while Appellant was packing and moving out of her home. She testified that on the day of this incident she voluntarily remained in the alley to speak with Appellant, describing herself as "[a]n emotional wreck" and stating that she "was crying, confused. I still felt love for him but being manipulated." (Tr., p. 186.) Mitchell testified that she did not see who ...

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