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State v. Mendoza

Court of Appeals of Ohio, Tenth District

December 12, 2017

State of Ohio, Plaintiff-Appellee,
Michael D. Mendoza, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-1482

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.


          Valerie Swanson.

         On brief:

          Carpenter Lipps & Leland LLP, Kort Gatterdam, Erik P. Henry, and David F. Hanson, for appellant.


          David F. Hanson.


          BROWN, J.

         {¶ 1} This is an appeal by defendant-appellant, Michael D. Mendoza, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of felonious assault.

         {¶ 2} On March 16, 2016, appellant was indicted on one count of felonious assault, in violation of R.C. 2903.11, and two counts of robbery, in violation of R.C. 2911.02. The matter came for trial before a jury beginning November 8, 2016.

         {¶ 3} Mark Walder, age 48, owns a carpet cleaning company, Hospitality Carpet Care, and the bulk of his business involves providing services to hotels, restaurants, and "hospitality-type" industries. (Tr. Vol. I at 57.) Walder's largest client, Indus Hotel Group, owns several hotels in the Columbus area, including the Hampton Inn, located in downtown Columbus at 501 North High Street.

         {¶ 4} Walder currently has two employees, and employs other workers on an as-needed basis. Walder first met appellant during summer 2015, after appellant's father, a friend of Walder, inquired as to whether Walder might have an employment opportunity for his son. Walder subsequently contacted appellant "from time to time" about performing work for his carpet cleaning business. (Tr. Vol. I at 64.)

         {¶ 5} On the morning of February 22, 2016, Walder woke up early and realized he might not have enough workers for a job site at the downtown Hampton Inn. Walder decided to reach out to appellant via Facebook Messenger. Walder and appellant "had a back and forth whether he would come to work that day" because of an issue involving money Walder owed appellant for 10 to 15 hours of work appellant had performed the previous week at a different hotel. (Tr. Vol. I at 67.) Walder had been in Florida that week, but had made arrangements for another employee, Anthony Miller, to pay appellant the money he was owed. Miller, however, had not yet provided the money to appellant.

         {¶ 6} Walder informed appellant, during the Facebook Messenger interaction, that if he came to work that morning "he could make some money as well as get paid for 15 or so hours that was still owed to him." (Tr. Vol. I at 70.) According to Walder, appellant "didn't seem too interested in coming to work, but he * * * started to be somewhat argumentative about why he didn't get paid." (Tr. Vol. I at 71.) Walder and appellant "couldn't really come to a conclusion as to whether he was coming to work or not." At one point during the Facebook Messenger interaction, appellant "threatened violence to * * * Miller for not paying him and threatened to * * * put his ass to sleep if he came to work." (Tr. Vol. I at 72.)

         {¶ 7} Walder, who was concerned about a confrontation at the job site, instructed appellant "not to come there with a bad attitude." Walder told appellant he would "provide him his check or pay him later that day." Walder viewed it as a "tossup" whether appellant would show up for work. (Tr. Vol. I at 73.)

         {¶ 8} Walder and Miller arrived at the hotel job site that morning and began cleaning carpets. Around noon, after they had been working approximately three hours, appellant "showed up on the fifth floor demanding his money." Walder explained to appellant he did not have his money, and he was unable to go to the bank at that time and leave Miller alone at the job site, "so he'd have to wait until after the job was over." (Tr. Vol. I at 76.)

         {¶ 9} Appellant "then began to be very argumentative" toward Miller "because he thought * * * Miller was holding back the money that I had given him for whatever reason." (Tr. Vol. I at 76.) Appellant "started to become belligerent, " and "[h]is voice became escalated." (Tr. Vol. I at 76-77.)

         {¶ 10} At that time, Walder asked appellant to leave the site out of concern that he was becoming "loud" and "would disturb the guests at the hotel." Appellant responded "he wanted his money." Walder told appellant he would "pay him that evening, " and asked him to "please leave" because he did not "want to have to call security." (Tr. Vol. I at 77.)

         {¶ 11} Walder and Miller "started to go back to work." (Tr. Vol. I at 77.) Miller left the immediate area to work in one of the guest rooms. Walder testified he was near a wall on one side of a room and appellant was standing beside a wall on the other side of the room. According to Walder, appellant was never closer than ten feet away, and they were never "in each other's face or anything like that." (Tr. Vol. I at 79.) Once appellant's voice "began to be raised and [he] started to be a little bit more irritated, " Walder "moved further away and * * * threatened to [call] security and turned [his] back." (Tr. Vol. I at 79-80.)

         {¶ 12} Walder then heard appellant state: "I have nothing to lose." Walder "turned back around, " at which time appellant struck him in the face, breaking his jaw. Walder estimated that appellant ran ten feet across the room before striking him. Walder "started gushing with blood." Miller "heard the impact" and looked into the room. (Tr. Vol. I at 77.) Walder testified that appellant then reached down and took his and Miller's jackets.

         {¶ 13} After the incident, Miller accompanied Walder to the work truck and drove Walder to Riverside Methodist Hospital. Walder's jaw was broken in two places, and an artery was severed in the back of his neck. Walder underwent four hours of surgery, and his jaw was wired shut for six weeks. While Walder was in the hospital, appellant phoned him "demanding payment for his hours." (Tr. Vol. I at 95.) At trial, Walder identified appellant as his assailant.

         {¶ 14} Walder denied ever threatening appellant or lunging toward him during the incident. Walder stated that he "retreated and tried to continue to go back to work." (Tr. Vol. I at 82-83.)

         {¶ 15} Miller, age 26, is a manager of a bar, and during winter months he has worked for Walder. In his employment with Walder, Miller worked on carpet cleaning jobs with appellant "two or three times." (Tr. Vol. I at 108.)

         {¶ 16} A week or two prior to the incident, Miller and appellant worked together cleaning carpets at a hotel while Walder was out of town. After work, Miller gave appellant a ride home, and Miller then drove to Walder's residence to return a work truck. Walder had also instructed Miller to pay appellant, and Miller was going to pick up the money at Walder's residence "to give to [appellant] for his work." (Tr. Vol. I at 122.) Miller testified that he was unsuccessful in reaching appellant by phone and, therefore, was "unable to get in contact with him" about the money. (Tr. Vol. I at 123.)

         {¶ 17} Miller gave the following testimony regarding the events on February 22, 2016. On that date, he and Walder were on the job site approximately four or five hours "cleaning all the hotel rooms on the fifth floor." (Tr. Vol. I at 125.) Miller was in a room cleaning carpets when he "heard loud voices in the hallway." He walked out to the hallway "to see what the confrontation was." The voices were getting louder, and Miller observed Walder "trying to calm the situation" and to "quiet [appellant] down." (Tr. Vol. I at 126.)

         {¶ 18} Miller testified that appellant was "frustrated, I'm not sure if this was the money situation or what, but just when he saw me he kind of turned toward me and started hollering towards me." At the time, Walder was "trying to get us both away and keep the area * * * quiet." (Tr. Vol. I at 128.) Walder asked Miller to return to the room where he had been working.

         {¶ 19} Miller "turned to head back into the room, " and he "took maybe a couple steps and heard probably the loudest pop [he had] ever heard." Miller looked over toward Walder, who was "bleeding all over his hands and his jaw was sitting on his tongue inside of his mouth." (Tr. Vol. I at 126.) Walder was "holding his jaw and turns towards me and said, he just broke my jaw." (Tr. Vol. I at 131.)

         {¶ 20} Miller observed appellant backing away. As Miller assisted Walder to the elevator, appellant was looking around; appellant then "bends down and grabs our jackets." Miller testified he asked appellant for his jacket: "I was like, come on, can we have our jackets back? And he looked at me and said come fight [me] for them." Miller told appellant he was "here to work, not to fight." (Tr. Vol. I at 132.) Miller and Walder entered the elevator and went downstairs to the work truck; Miller then drove Walder to the hospital.

         {¶ 21} On February 23, 2016, Columbus Police Officer Joseph Abdalla was dispatched to the hospital to respond to a report of an assault. Officer Abdalla spoke with Walder, who had been hospitalized for approximately 24 hours. Walder had "medical hardware in his mouth, " and he provided the officer with appellant's name. (Tr. Vol. I at 43.) Walder also informed the officer that a co-worker, Miller, had been present during the incident.

         {¶ 22} Appellant, age 26, testified on his own behalf. Appellant acknowledged previously serving a four-year sentence for a felony burglary offense committed in 2009; he also acknowledged a 2014 felony conviction for receiving stolen property.

         {¶ 23} Appellant began working for Walder after appellant's father introduced them. At the time of the incident, appellant had been cleaning carpets for Walder on a part-time basis. The week prior to the incident, while Walder was out of town, appellant had performed some work for which he had not yet received payment.

         {¶ 24} On February 22, 2016, Walder contacted appellant via Facebook Messenger about a carpet cleaning job. Appellant testified that when Walder "first contacted me * * * I was kind of trying to find a few things out and he became real * * * belligerent and disrespectful towards me. And at that point I just * * * pretty much told him * * * I would just like to be paid and go our separate ways." (Tr. Vol. I at 170.)

         {¶ 25} Appellant stated that his intention in going to the Hampton Inn that morning was "[s]imply to go get paid * * * and leave." (Tr. Vol. I at 171.) Appellant arrived at the hotel and observed Walder's work truck and hoses. He followed the hoses up to the fifth floor. When he arrived, appellant observed Walder in a room performing work; Miller was also cleaning rooms on the floor.

         {¶ 26} Appellant told Walder he did not come there to work, and that he was only there to receive his paycheck. Appellant acknowledged raising his voice and getting into an argument with Walder. Appellant "was under the impression that [Walder] had no intentions of paying me." (Tr. Vol. I at 173-74.) At one point, appellant went over "to talk to Miller because there was an issue about me using the phone all day the previous Friday that me and him worked, and * * * we didn't come to any type of conclusion on that." (Tr. Vol. I at 174.)

         {¶ 27} Appellant was "kind of upset" and "disappointed" with Walder. (Tr. Vol. I at 175.) Appellant also testified he was "kind of nervous, anxious I would say a little * * * confused" as to why Walder would call him to the site and not pay him. Appellant stated that Walder's "shoulder was facing me maybe roughly five feet away." According to appellant, Walder "turned and started walking, like, charging, not like - - kind of aggressively turned and charged towards me. I don't want [to] say like he lunged or tried to tackle me, but like in an aggressive manner and I swung and backed up and I just continued backing away from him." (Tr. Vol. I at 176.)

         {¶ 28} When asked what was going through his mind as Walder first approached, appellant responded: "I did not know what he was going to do. I was nervous about the situation. I mean, I was kind of scared, I wouldn't say I don't know how to defend myself, but I was kind of scared, like, just walking towards me." (Tr. Vol. I at 179.) Appellant testified that he threw ...

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