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State v. Blanton

Court of Appeals of Ohio, Fourth District, Adams

March 27, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
DENNY W. BLANTON, JR., Defendant-Appellant.

          Dennis C. Belli, Columbus, Ohio, for Appellant.

          C. 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

          MCFARLAND, J.

         {¶1} 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         {¶2} 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's brief.

         {¶3} 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" for entertainment.

         {¶4} 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.

         {¶5} 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 first degree;
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 degree; and,
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.

         {¶6} 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 the motion.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.[1] The trial court ordered that Appellant's sentence to be served consecutively to the previously imposed sentences in the earlier case.

         {¶10} This timely appeal followed. Additional facts will be set forth, where pertinent.

         ASSIGNMENTS OF ERROR

         "I. 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.

         II. 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.

         III. 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 ASSAULT.

         IV. AN 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 CONVICTION.

         V. THE 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.

         VI. THE 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 CONSTITUTION.

         VII. 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.

         VIII. 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."

         ASSIGNMENT OF ERROR ONE

         {¶11} 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.

         STANDARD OF REVIEW

         {¶12} 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).

         {¶13} 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).

         LEGAL ANALYSIS

         {¶14} 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 exist."

         "Serious 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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 Appellant.[2]

         {¶18} 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.

         {¶19} 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 amusement.
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.

         {¶20} 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.

         {¶21} 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 violence.

         {¶22} 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.

         {¶23} 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."

         {¶24} 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."

         {¶25} 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.[3] (Emphasis added.) We reasoned:

"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."

         {¶26} 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."

         {¶27} 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.

         {¶28} 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 24.

         {¶29} 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 the right.

         {¶30} 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 suffered."

         {¶31} 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.

         {¶32} 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.

         {¶33} 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.

         {¶34} 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 observed:

"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.

         {¶35} 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.)

         {¶36} 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.

         {¶37} 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.

         {¶38} 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 ...


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