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State v. Love

Court of Appeals of Ohio, First District, Hamilton

December 13, 2017

STATE OF OHIO, Plaintiff-Appellee,
ANTHONY LOVE, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1505555A

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Arenstein & Gallagher, William R. Gallagher and Elizabeth Conklin, for Defendant-Appellant.


          MYERS, JUDGE.

         {¶1} Defendant-appellant Anthony Love appeals his convictions for felonious assault. In five assignments of error, he argues that the trial court's failure to give the jury instructions required by law resulted in plain error; that the trial court erred in admitting irrelevant evidence and prejudicial testimony about his motorcycle-club affiliation; that his convictions were not supported by sufficient evidence; that his convictions were against the manifest weight of the evidence; and that the cumulative effect of defense counsel's errors violated his right to the effective assistance of counsel.

         {¶2} Because the trial court failed to instruct the jury on how to apply any finding on Love's asserted affirmative defense of defense of others, we must reverse the trial court's judgment and remand the cause for a new trial.

         Factual Background

         {¶3} Love was involved in a street fight that took place in Mt. Adams, and was subsequently charged with six counts of felonious assault relating to three separate victims, Carlos Liranzo, Luke Thibodeaus, and Josea Hernandez. He was tried before a jury with his codefendant, Alexander Mazzaro. The following evidence was adduced at trial.

         {¶4} On the evening of September 25, 2015, Liranzo, Thibodeaus, and Hernandez had been out together in Mt. Adams. After leaving a bar around 2:15 a.m. on September 26, the group walked down a street to find a cab. Love, Mazzaro, and a third man, Michael Sansone, approached them on the street from the opposite direction. As the groups passed each other, Mazzaro brushed shoulders with Thibodeaus, causing Thibodeaus to be turned around. From there, a conflict ensued.

         {¶5} Sensing trouble, Liranzo told the entire group that everyone should relax. Mazzaro then punched Liranzo in the face. In response, Liranzo took Mazzaro to the ground and pinned him there. Liranzo and Mazzaro traded punches from that position. While straddling Mazzaro, Liranzo felt a blow to his back. In addition to that blow, he testified that someone tried to "fishhook" him while he had Mazzaro pinned down. He explained that an individual stuck a finger in his mouth, and that he bit down on the finger and took out a chunk of the person's skin. Liranzo remained on top of Mazzaro until police arrived to break up the fight and threatened to tase him if he did not stand up. Upon standing, he noticed blood running down his back and discovered that he had been stabbed.

         {¶6} While Liranzo and Mazzaro were fighting, Thibodeaus saw Love approach Hernandez as Hernandez attempted to back away. He then saw Love take a few steps back, put his hand in his pocket, and lunge at Liranzo. He did not see what Love had taken out of his pocket. Thibodeaus attempted to push Love off Liranzo, and he felt what he described as "a punch there in my chest." He later realized that he had been stabbed in the chest. He was bleeding and could see a gap in his chest where muscle was protruding.

         {¶7} Michael Sansone was called by the prosecution to testify and was declared a hostile witness. While testifying, Sansone admitted that he had told a detective that after the street fight had ended, Love had stated to him, "I stuck that guy because I thought he had you." Sansone testified that he had attempted to pull Liranzo off Mazzaro because Liranzo was out of control and it looked like Mazzaro was getting "his butt kicked." Sansone denied that he had deliberately put his finger in Liranzo's mouth to "fishhook" him, and explained that he had tried to grab Liranzo's head and Liranzo had bitten his finger.

         {¶8} Cincinnati Police Lieutenant Andrew Heyob had been working an off-duty uniformed detail in Mt. Adams on the evening of September 25, and had responded to the street fight. When he arrived on the scene, Lieutenant Heyob saw Love standing over two individuals grappling on the ground. Love was striking the person on top with his fists and kicking at him.

         {¶9} Liranzo and Thibodeaus were transported to the hospital. Liranzo suffered a stab wound to his back with complications. He remained hospitalized for three days and had to have a tube placed in his lung to drain ...

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