C. Belli, Columbus, Ohio, for Appellant.
David Kelley, Adams County Prosecutor, and Kris D. Blanton
and Mark R. Weaver, Assistant Adams County Prosecutors, West
Union, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
Denny W. Blanton, Jr., appeals the judgment entry on sentence
filed November 9, 2016 in the Adams County Court of Common
Pleas. Blanton was convicted by a jury on three counts: (1)
kidnapping, in violation of R.C. 2905.01(B) (2); (2)
felonious assault, in violation of RC. 2903.11(A) (1); and
(3) assault, in violation of RC. 2903.13(A). On appeal,
Blanton asserts eight assignments of error. However, having
fully reviewed the record, we find no merit to the arguments
raised in the eight assignments of error. Accordingly, we
overrule Appellant's assignments of error and affirm the
judgment of the trial court.
AND PROCEDURAL BACKGROUND
Appellant's convictions arise subsequent to his
involvement in jail fights which occurred at the Adams County
Jail during the month of June 2016. Appellee has indicated in
its brief that Appellee agrees with the statement of the case
and statement of facts as set forth in Appellant's brief.
Therefore, we relate the facts as set forth in
Appellant, an 18-year-old male, was confined in cell block E4
of the Adams County Jail in June 2016, awaiting trial in
another matter, along with inmates Gary Lunsford, Robert
Long, Mark Mefford, Josh Gray, Zachary McKee, and Devon
Michaels. The security and surveillance system at the Adams
County Jail consists of a "catwalk, " a hallway
between the exterior wall of the building and the housing
units; a video camera at each end of the catwalk to capture
images of activities in the main area of the cell block; and
a "call box." The inmates engaged in
"rough-housing" and "horseplay, " which
Appellant attributes to a lack of supervision by jail
personnel. The inmates harassed each other with
"towel-snapping" and organized "fighting"
In mid-June, Lieutenant Micah Poe, the jail administrator,
began noticing that the inmates were coming out of the cell
with injuries. Inmates Gary Lunsford, Josh Gray, and Mark
Mefford were observed with bruising. Lunsford was noted to
have visible injuries to his head, stomach, and back, so he
was referred for treatment at Adams County Hospital, and an
investigation of the matter was initiated.
After taking statements from the inmates, Poe recommended the
filing of criminal charges against McKee, Michaels, and
Appellant. On July 8, 2016, an Adams County Grand Jury
indicted Appellant for several felony offenses allegedly
occurring during this period of time. The indictment
contained five counts which alleged as follows:
Count 1: On or about June 5 and June 17, 2016 in Adams County
Ohio Denny Blanton Jr. did by force, threat or deception
remove Gary Lunsford from the place where the other person
was found, or restrained the liberty of Gary Lunsford with
purpose to terrorize, or inflict serious physical harm on the
said Gary Lunsford, in violation of R.C. 2905.01(A) (3),
Kidnapping, a felony of the first degree;
Count 2: On or about and between June 18 and June 19, 2016 in
Adams County, Ohio Denny Blanton Jr. did by force, threat or
deception knowingly, under circumstances creating a
substantial risk of physical harm to Gary Lunsford, restrain
Lunsford of his liberty, in violation of R.C. 2905.01(B)(2),
Kidnapping, a felony of the first degree; Count 3: On or
about June 5 and June 18, 2016 in Adams County, Ohio Denny
Blanton Jr. did by force, threat or deception remove Josh
Gray from the place where the other person was found, or
restrain the liberty of Josh Gray with purpose to terrorize,
or inflict serious physical harm on the said Josh Gray, in
violation of R.C. 2905.01(A) (3), Kidnapping, a felony of the
Count 4: On or about and between June 17 and June 18, 2016 in
Adams County, Ohio Denny Blanton Jr. did knowingly cause
serious physical harm to Gary Lunsford, in violation of R.C.
2903.11(A)(1), Felonious Assault, a felony of the second
Count 5: On or about and between June 5 and June 18, 2016 in
Adams County, Ohio Denny Blanton Jr. did knowingly cause or
attempt to cause physical harm to Josh Gray, in violation of
R.C. 2903.13(A), Assault, a misdemeanor of the first degree.
Appellant was arraigned, entered pleas of not guilty, and the
matter was placed on the court's trial docket. On October
27, 2016, Appellant filed a motion to dismiss the indictment
due to the Adams County Sheriffs Office's failure to
preserve video footage from the jail surveillance system
between the dates of June 5, 2016 to June 18, 2016. The
matter came on for hearing on October 31, 2016. The trial
court did not actually receive testimony regarding the
circumstances surrounding the deletion of the video footage,
but made its ruling based upon the representations and
arguments of counsel. Appellant did not attend the hearing on
Appellant ultimately proceeded to a three-day jury trial
beginning on November 7, 2016. The State presented its
evidence, largely through the testimony of victim Gary
Lunsford, Lieutenant Micah Poe, other inmates Robert Long and
Mark Mefford, and Dr. Richard Durbin of the Adams County
Medical Center. The defense presented evidence via the
testimony of Deputy Chelsea Phelps.
At the close of trial, the trial court granted
Appellant's Crim.R. 29 motion for acquittal as to Count 3
which alleged the kidnapping of Josh Gray. The jury found
Appellant not guilty of Count 1, which alleged the kidnapping
of Gary Lunsford during the June 5 to June 17 time frame. The
jury found Appellant guilty of the three remaining counts.
Appellant was sentenced to consecutive 6-year prison terms on
the kidnapping and felonious assault counts, and a concurrent
6-month jail term on the misdemeanor assault count. Prior to
Appellant's trial in this case, he had been convicted in
Adams County of kidnapping and rape, both counts containing
violent sexual predator specifications. The trial court
ordered that Appellant's sentence to be served
consecutively to the previously imposed sentences in the
This timely appeal followed. Additional facts will be set
forth, where pertinent.
DEFENDANT-APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT IS
NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT-APPELLANT'S CONVICTION FOR KIDNAPPING IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
THE TRIAL COURT APPLIED AN INCORRECT LEGAL STANDARD AND/OR
ABUSED ITS DISCRETION, AND VIOLATED DEFENDANT-APPELLANT'S
FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A RELIABLE JURY
VERDICT, WHEN IT DENIED HIS REQUEST FOR A JURY INSTRUCTION ON
SIMPLE ASSAULT AS A LESSER-INCLUDED OFFENSE OF FELONIOUS
INCOMPLETE AND MISLEADING COMPLICITY INSTRUCTION VIOLATED THE
TRIAL COURT'S STATUTORY DUTY UNDER R.C. 2945.11 TO CHARGE
THE JURY AS TO ALL MATTERS NECESSARY TO RENDER A FAIR VERDICT
AND DEPRIVED DEFENDNAT-APPELLANT OF HIS FIFTH, SIXTH, AND
FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A RELIABLE JURY
DETERMINATION AS TO EACH ELEMENT OF THE OFFENSES OF
TRIAL COURT'S AJUDICATION OF DEFEENDANT-APPELLANTS MOTION
TO DISMISS (FOR FAILURE TO PRESERVE EVIDENCE) FOLLOWING A
HEARING CONDUCTED IN HIS ABSENCE AND WITHOUT FORMAL TESTIMONY
ON THE DISPUTED ISSUES OF FACT VIOLATED HIS RIGHTS UNDER
CRIM.R. 43, THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION.
TRIAL COURT'S REFUSAL TO PERMIT DEFENSE COUNSEL TO
CROSS-EXAMINE THE LEAD INVESTIGATOR ABOUT HIS FAILURE TO
PRESERVE THE JAIL VIDEO FOOTAGE VIOLATED
DEFENDANT-APPELLANT'S RIGHT OF CONFRONTATION UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO
DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, DUE
TO MULTIPLE INSTANCES OF DEFICIENT PERFORMANCE.
THE TRIAL COURT UNLAWFULLY ORDERED THAT THE PRISON TERM
IMPOSED IN THIS CASE BE SERVED CONSECUTIVELY TO THE PRISON
TERMS IMPOSED IN A PRIOR CASE IN ORDER TO PUNISH
DEFENDANT-APPELLANT FOR REFUSING A PLEA BARGAIN AND
EXERCISING HIS CONSTITUTIONAL RIGHT TO TRIAL."
OF ERROR ONE
Under the first assignment of error, Appellant challenges the
sufficiency of the evidence to support his conviction for
felonious assault. Appellant points out the crime of
felonious assault requires proof that he knowingly caused
serious physical harm to Gary Lunsford. Appellant argues his
conviction is not supported by sufficient evidence beyond a
reasonable doubt to prove he acted either as a principal
offender or as collective participant, given the video
evidence and testimony regarding the timing of Lunsford's
being "sucker punched" by one of the other inmates.
A claim of insufficient evidence invokes a due process
concern and raises the question of whether the evidence is
legally sufficient to support the verdict as a matter of law.
State v. Deckard, 4th Dist. Gallia No. 16CA14,
2017-Ohio-8469, ¶ 29. State v. Dunn, 4th Dist.
Jackson No. 15CA1, 2017-Ohio-518, ¶ 13; State v.
Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756,
¶ 22; State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of
the evidence, our inquiry focuses primarily upon the adequacy
of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a
reasonable doubt. Thompkins, syllabus. The standard
of review is whether, after viewing the probative evidence
and inferences reasonably drawn therefrom in the light most
favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks,
61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a
reviewing court is not to assess "whether the
state's evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a
conviction." Thompkins, 78 Ohio St.3d at 390
(Cook, J., concurring).
Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most
favorable to the prosecution. Deckard, supra, at
¶ 30; Dunn, supra, at ¶ 14;
Wickersham, supra, at ¶ 23; State
v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996);
State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d
50 (1993). A reviewing court will not overturn a conviction
on a sufficiency-of-the- evidence claim unless reasonable
minds could not reach the conclusion that the trier of fact
did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749
N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d
460, 484, 739 N.E.2d 749 (2001).
R.C. 2903.11(A) (1), felonious assault, provides that
"No person shall knowingly * * * cause serious physical
harm to another." R.C. 2901.22(B) defines
"knowingly" as follows:
"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
physical harm" is defined under R.C. 2901.01(A)(5)(c),
(d), and (e) as including harm that produces "temporary,
substantial incapacity", "temporary, serious
disfigurement", or "acute pain of such duration as
to result in substantial suffering or that involves any
degree of prolonged or intractable pain." State v.
Adams, 2016-Ohio-7772, 84 N.E.3d 155, (4th Dist.) at
¶ 25, quoting State v. Scott, 4th Dist.
Washington No. 15CA2, 2015-Ohio-4170, ¶ 23. Here, the
trial court instructed the jury as to the above definitions
in almost verbatim language.
At trial, the jury saw surveillance footage from the
jail's video system which showed the attack on Gary
Lunsford by Appellant and the two other inmates. Lunsford
identified his attackers as he testified and the tape was
shown. In support of his argument hereunder, Appellant points
to an approximate 2-4 minute interval between the time when
Lunsford sustained a "sucker punch" by another
inmate, Zach Mckee, and when Appellant "entered"
into the fray. Appellant argues this evidence eliminates him
as the principal offender of the infliction of the blow that
allegedly resulted in the serious physical harm to Lunsford.
Appellant also argues that the testimony is insufficient to
permit a rational trier of fact to find beyond a reasonable
doubt that he acted collectively to cause serious physical
harm to Lunsford.
Based upon our review of the videotape and the testimony,
however, we disagree. As the State played the videotape, Gary
Lunsford identified himself and several other inmates: Robert
Long, Mark Mefford, Zach McKee, Devon Michaels, and
Appellant. Mark Mefford testified that during the time frame
between June 5, 2016 and June 20, 2016, fights were organized
in the cell by Appellant. Specifically, Mefford testified:
"Blanton, he was the main spoke of it, he kept saying, I
want to see some wrestling, I want to see some action in
here, and it was for their amusement." Mefford testified
the fighting occurred "almost every night to every other
night." Specifically, Mefford testified:
Q: Okay, with regard to the organized fighting, would you
call that organized fighting that took place?
A: That's what it escalated to, yes.
Q: Who in the cell was responsible for that?
A: Most of it was Mr. Blanton.
Q: What was his role in that? A: Pretty much what they call
egging it on?
* * *
A: More or less that it was all his idea.
The Court: Who is he and his?
A: Mr. Blanton.
Gary Lunsford also testified these activities were going on
daily during the two weeks prior to his being injured. And,
Lunsford also identified Appellant as the instigator of the
wrestling and fights. Lunsford testified "if you
didn't fight, especially if you didn't do what they
said they was going to beat you up." He testified
"they" referred to Zack McKee, Devon Michaels, and
Regarding the June 18, 2016 altercation, Lunsford testified
that McKee, Michaels, and Appellant "made him
wrestle" Josh Gray. If he refused, his alternative was
to fight the others. On that day, when Lunsford and Gray
wrestled and one was pinned, Appellant would restart the
match. Lunsford testified that at one point, McKee
"sucker punched" him. While Lunsford was lying on
the ground, Appellant was hitting him. However, Lunsford
testified he did not recall Appellant hitting him because he
was unconscious. He was incapacitated and unable to move.
Inmate Mark Mefford's testimony also described the June
18, 2016 incident:
A: That night, Mr. Blanton got the idea that they were going
to throw, he said we were going to throw the mats on the
floor and see a wrestling match. And when he put the mats on
the floor he said that he, Mr. Blanton, said that he wanted
Zack McKee and Josh Gray to wrestle for them for their
Q: Was it Zack McKee or Gary Lunsford?
A: Gary Lunsford and Josh Gray.
* * *
Q: So how long did you observe that wrestling match?
A: Approximately about 20 to 30 minutes.
* * *
A: Josh and Gary Lunsford. They ended up stopping and Josh
Gray goes over to the sink to get himself a drink and he is
worn out and Gary he was about ready to get up, and then
before he initially gets up Mr. McKee upper cuts him in the
mouth knocking him back, and then he started repeatedly
hitting him several more times. * * * Gary Lunsford, when he
was still on the floor. Well, this lasted for approximately
maybe 2-3 minutes and Mr. McKee and Devon Michaels hitting
him. And Gary he unconscious for like a few minutes, two at
the most. At that time he was on the floor.
Q: Who is he?
A: Mr. Gary Lunsford and at the time he was on the floor Mr.
Blanton proceeded to come over and he started hitting him. *
Q: My question is, was he hitting him with his hands, was he
kicking him with his foot, what part of Mr. Blanton's
body was he using to?
A: Fists and feet.
Q: Okay. How did you know that Gary Lunsford was unconscious?
A: Because he wasn't moving.
Another inmate, Robert Long, also described the June 18, 2016
incident: "Zack McKee and Devon Michaels [was] beating
Gary Lunsford, and then after that Blanton went over and
started punching on Lunsford." Long also described
Lunsford's becoming unconscious: "I seen he was
wrapped up in a ball with his hands over his face and then he
was kicked in the back of his head and then his arms went
limp. He was out for a few seconds and then he come back
to." Regarding the brief cessation of fighting, long
testified, afterwards, he saw Appellant punch Lunsford but
did not observe Appellant kicking him.
The above testimony given by inmates Mefford, Long, and the
victim, Inmate Lunsford, demonstrates that Appellant set into
motion the sequence of events which resulted in serious
physical harm to Lunsford. We find the facts and
circumstances indicate Appellant's awareness of the
probability that his conduct would result in serious physical
harm to Lunsford. Appellant is responsible for the natural
and foreseeable consequences that follow in the ordinary
course of events unfolding as a result of Appellant's
actions as instigator of the June 18, 2016 altercation.
Furthermore, the facts and circumstances demonstrate
Appellant was an active participant in the actual physical
We find an earlier decision in our district, State v.
Johnson, 4th Dist. Scioto No. 13CA3580, 2014-Ohio-4443,
involving an altercation in a prison, to be instructive.
There, Johnson claimed that despite the fact that he hit his
victim in the face, the evidence was clear that the injuries
to his victim's shoulder and head were not from
Johnson's punch, but from a fall to the ground or
possibly from the unrest that ensued after prison guards
intervened in the prison fight. Johnson argued that the
evidence failed to demonstrate that he knowingly caused
serious physical harm to his victim, Officer Meier. Johnson
pointed out while he may have knowingly caused physical harm
to the officer in starting the incident by punching him in
the head, it was the officer who escalated the incident by
attempting to throw Johnson to the floor.
We were not convinced by this argument. Citing the trial
court's instructions as to the essential elements of
felonious assault, in Johnson we observed at ¶
14 that the court's instructions included
"knowledge, " "causation, " including:
"The Defendant's responsibility is not limited to
the immediate or most obvious result of the Defendant's
act. The Defendant is also responsible for the natural and
foreseeable consequences, or results, that follow in the
ordinary course of events from his actions. There may be more
than one cause of the victim's injury. However, if the
Defendant's act was one cause, the existence of other
causes is not a defense to this case. The test of
foreseeability is not whether the Defendant should have
foreseen the injury in its precise form or as to a specific
person. The test is whether a reasonably prudent person, in
light of all the circumstances, would have anticipated that
serious physical harm was likely to result to anyone from the
performance of the act."
Johnson argued that he could not have reasonably foreseen
that after he punched Meier in the head several times that
Meier would grab him and take him down to the ground. Thus,
Meier's actions constituted an unforeseen intervening act
that caused the serious physical harm suffered by Meier. The
appellate court reasoned, however: " 'it is a
fundamental principle that a person is presumed to intend the
natural, reasonable and probable consequences of his
voluntary acts.' " Johnson, supra, at
¶ 18, quoting State v. Conway, 108 Ohio St.3d
214, 2006-Ohio-791, 842 N.E.2d 966, ¶ 143. (Internal
citations omitted.) "[T]he jury, unable to enter the
mind of another, is required to consider common-sense, causal
probabilities in considering whether the defendant acted
'knowingly.' " State v. Kelly, 11th
Dist. Portage No.2010-P-0049, 2012-Ohio-523, ¶ 23."
We observed it was "unquestioned" that Johnson set
into motion the sequence of events which resulted in serious
physical harm to the officer. Furthermore, the jury could
have reasonably inferred from those punches
themselves that Johnson had caused serious physical harm
to Meier resulting in his closed-head injury and recurring,
debilitating headaches. Id. at 19. (Emphasis added.)
"More importantly, Johnson could have reasonably
foreseen that his unprovoked inmate attack on a prison guard
would result in the guard he assaulted and other guards
following prison protocol by attempting to restrain him by
taking him down to the ground. Meier's injuries were
consequently reasonably foreseeable to Johnson and they would
not have occurred if Johnson had not started the altercation
by punching Meier."
The Johnson court went on to explain at ¶ 21:
"For the causation element, we noted the following in
Smith at ¶ 24-26: Courts generally treat the issue of
legal causation in the criminal context similarly to that in
tort cases because the situations are closely analogous.
See, generally, LaFave Substantive Criminal Law
(2003), 2nd Ed., Section 6.4(c). When dealing with claims of
intervening causation, the proper analysis starts with a
determination of whether the intervening act was a mere
coincidence or alternatively, a response to the accused's
prior conduct. Id. at 6.4(f). * * * An intervening
act is a response to the prior acts of the defendant where it
involves reaction to the condition created by the defendant.*
* * [T]he law will impose a less exacting standard of legal
causation where the intervening cause is a response rather
than a coincidence. A coincidence will break the chain of
legal causation if it was unforeseeable."
Even if Meier's actions constituted intervening acts,
they were a reasonable, foreseeable response to the repeated
punches by Johnson to his head rather than a mere
coincidence. Because Meier's actions in attempting to
restrain and neutralize Johnson were neither abnormal nor
unforeseeable, they did not break the chain of causation so
as to relieve Johnson from criminal liability for felonious
assault related to the serious physical injuries incurred by
Meier. Id. at 22.
We held at ¶ 23, "Although Meier's injuries may
not have been the "immediate or most obvious
result" of Johnson's initial punches to Meier's
head, they were the "natural and foreseeable
consequences" of the actions that followed "in the
ordinary course of events." Therefore, we held after
viewing the evidence in a light most favorable to the
prosecution, there was sufficient evidence for a rational
trier of fact to find that the essential elements of
felonious assault had been proven beyond a reasonable doubt.
"The uncontroverted evidence was sufficient for the jury
to determine that Johnson knowingly caused serious physical
harm to Meier during his prison attack." Id. at
Likewise, we hold that after viewing the evidence in light
most favorable to the prosecution, there was sufficient
evidence for a rational trier of fact to find that the
essential elements of felonious assault had been proven
beyond a reasonable doubt. Given the testimony that Appellant
was the instigator, and "egged on" the fighting, it
is unquestioned that Appellant, like Johnson, set into motion
the sequence of events which resulted in serious physical
harm to Lunsford. Like Johnson, Appellant could have
reasonably foreseen that his creating the violent environment
in the days leading up to the 18th and insisting
that the men fight on the 18th, would result in
the other inmates punching and kicking Lunsford. The other
inmates' actions constituted reasonable and foreseeable
responses to Appellant's initial actions in instigating
Another instructive case is In re Miller, 11th Dist.
Ashtabula No. 2000-A-0014, 2002-Ohio-3360. Here, Miller, a
juvenile convicted of felonious assault at a party, stressed
the fact that the testimony establishes several other people
were kicking the victim in the head before he became involved
in the fight. The appellate court noted it was impossible to
sort out which blow to the victim's head caused what
amount of damage and observed at ¶ 31:
"[As to the persons kicking the victim] Those actions
caused serious physical harm. Assuming, for purposes of this
point, that they did, a party cannot then jump on top of the
victim bargaining only for a "regular" assault by
hitting the victim in a manner that may not, under normal
circumstances, cause serious physical harm. If, in fact,
appellant did not enter the melee until the victim had
already suffered serious physical harm, his actions are all
the more inculpatory. Harm heaped on top of serious physical
harm must itself be considered serious physical harm even if
under different circumstances it may not have risen to that
level. It is impossible to sort out which blow to the
victim's head caused what amount of damage. Those that
assaulted him all contributed jointly in the harm the victim
Here, Appellant's argument assumes that the only serious
physical harm Lunsford suffered was a "possible
concussion" after the sucker punch which rendered him,
via eyewitness and admittedly not expert opinion,
unconscious. We disagree. The surveillance footage
demonstrates Lunsford was obviously weakened and had fallen
down when Blanton administered repeated blows to
Lunsford's head. Mefford described Lunsford's
injuries as follows:
Q: After seeing Mr. Blanton, Mr. McKee and Mr. Michaels
strike Gary did Gary have any injuries?
A: Yes, Ma'am. * * *
A: I seen blood coming out of [Gary's] nose and stuff and
several lacerations around his face and head area.
Lunsford was the taken to the Adams County Hospital. At
trial, he identified State's exhibits 1, 2, 3, 4, 5, and
7, photographs of his injuries which depicted two black eyes;
bruising of his eyes, ear, neck, stomach, and back; a busted
lip; and a gash on his head. Dr. Richard Durbin, the
emergency room doctor who treated Lunsford at Adams County
Regional Medical Center on June 21, 2016, testified Lunsford
had "obvious" injuries to his face, and gave a
history of being "knocked unconscious." Based on
the subjective history, Dr. Durbin ordered a CT scan of the
head and x-rays of the left elbow and chest. He testified
there were no fractures seen.
On cross-examination, Dr. Durbin testified Appellant was
discharged in "fair" condition back to the jail
with a diagnosis of soft tissue injuries to the head, face,
left lateral chest wall and left elbow. He was advised to
follow up with the physician at the jail. On redirect, Dr.
Durbin testified he "believed" that Lunsford
sustained a concussion.
Even if Appellant was not responsible for the blow which may
or may not have rendered Lunsford unconscious and caused a
"possible concussion, " we find sufficient evidence
that Appellant caused serious physical harm. In State v.
Adams, 2016-Ohio-7772, 84 N.E.3d 1155, (4th Dist), we
"The degree of harm that rises to the level of
'serious' physical harm is not an exact science,
particularly when the definition includes such terms as
'substantial, ' 'temporary, ' 'acute,
' and 'prolonged.' " Id. at 26,
quoting State v. Mango, 8th Dist. Cuyahoga No.
103146, 2016-Ohio-2935, ¶ 33. (Internal citations
omitted.) The statute does not define "substantial
suffering"; instead, the trier-of-fact must determine
its existence from the facts of each particular case.
State v. Bell, 1989 WL 10372, (Feb. 7, 1989), *2.
(Internal citations omitted.) "Physical harm to
persons" means "any injury, illness, or other
physiological impairment, regardless of its gravity or
duration." R.C. 2901.01(A)(3)State v. Henry,
8th Dist. Cuyahoga No. 10002634, 2016-Ohio-692, ¶ 40.
The Henry court observed that serious physical harm
has been found where a victim sustains a bloody cut and/or
significant swelling to the face because this is sufficient
to establish serious physical harm in that it constitutes
"temporary, serious disfigurement." Id. at
¶ 42. Courts have also determined that "serious
physical harm" exists " 'where the injuries
caused the victim to seek medical treatment.' "
Adams, supra, at ¶ 30, quoting Scott,
supra, at ¶ 3. (Internal citations omitted.)
Within his sufficiency argument, Appellant is quick to
discredit the testimony of Lunsford and the other
"criminals." We are mindful, however, " 'A
jury, sitting as the trier of fact, is free to believe all,
part or none of the testimony of any witness who appears
before it.' " State v. Reyes-Rosales, 4th
Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting
State v. West, 4th Dist. Scioto No. 12CA3507,
2014-Ohio-1941, ¶ 23. "A sufficiency assignment of
error challenges the legal adequacy of the State's prima
facie case, not its rational persuasiveness." State
v. Oldaker, 4th Dist. Meigs No. 16CA3, 2017-Ohio-1201,
¶ 41, quoting State v. Koon, 4th Dist. Hocking
No. 15CA17, 2016-Ohio-416, ¶ 17. "That limited
review does not intrude on the jury's role 'to
resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.' " Musacchio v. United States, 84
U.S.L.W. 4077, 136 S.Ct. 709, 715 (2016), quoting
Jackson at 319, 443 U.S. 307, 99 S.Ct. 2781.
Any doubts one might have as to the credibility of the
witnesses' testimony is dispelled by the surveillance
footage which demonstrates Appellant restarting the wrestling
match between Lunsford and Gray, and then repeatedly and
viciously striking Lunsford's head later when he is lying
on the floor. The jury further had the photographic depiction
of Lunsford's serious, temporary disfigurement to his
face and body.
We find any rational trier of fact could have found proven
beyond reasonable doubt that Appellant acted knowingly and
created serious physical harm to Lunsford. For the foregoing
reasons, we find no merit to ...