Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Trial Court Case No.
CHRISTINE L. BURK, Attorney for Plaintiff-Appellee
M. CONNORS, Attorney for Defendant-Appellant
1} Robert M. Dillon appeals from his conviction and
sentence on one count of misdemeanor assault.
2} In his sole assignment of error, Dillon
challenges the legal sufficiency of the evidence to support
3} The record reflects that Dillon was charged with
assault for allegedly hitting his next-door neighbor. The
matter proceeded to a bench trial in municipal court. The
only prosecution witness was appellant's neighbor, the
victim. He testified that he looked out his window and saw
Dillon throwing leaves over a fence and into his, the
neighbor's, back yard. The neighbor reported the incident
to police. An officer responded and knocked on Dillon's
door but got no response. Later that day, the neighbor was
doing yard work when Dillon suddenly ran toward him and
punched him in the face. The neighbor testified that he fell
to the ground and that Dillon kicked him in the face. (Trial
Tr. at 8-12).
4} On cross examination, the neighbor testified that
the assault left red marks on his face. (Id. at 20).
Defense counsel then questioned the neighbor about a
statement he gave to police after the incident. In the
statement, the neighbor had claimed Dillon had punched him in
the face and had "tried" to kick him. (Id.
at 23-24). The neighbor acknowledged the discrepancy,
insisting that he was under duress when he gave the statement
and that Dillon actually did kick him. (Id. at
23-26). On redirect examination, the neighbor testified that
the red marks he saw on his face after the assault had
subsided by the time police arrived. (Id. at 28).
5} Defense counsel then made a Crim.R. 29 motion for
judgment of acquittal, citing the discrepancy about whether
Dillon kicked the neighbor or had only tried to do so.
(Id. at 29). The trial court overruled the motion,
noting that the victim's trial testimony and his police
statement both alleged that Dillon had punched him.
(Id.). Defense counsel proceeded to call James Duff,
the investigating officer, to testify. Duff acknowledged that
his police report said Dillon had attempted to kick the
victim in the face. (Id. at 37). Duff also testified
that he did not observe any injuries to the neighbor.
(Id. at 37). He further testified that he had
reviewed a video from the neighbor's cell phone showing
Dillon walking away from the victim with his middle finger in
the air. (Id. at 36). According to the victim, the
video inadvertently had been deleted before trial.
(Id. at 13).
6} Defense counsel then called Dillon testify on his
own behalf. Dillon denied punching his neighbor in the face
or attempting to kick him. (Id. at 41). He testified
that he was seventy-one years old at the time of the incident
and that he had "mobility issues," including knee
surgery that made it difficult for him to walk.
(Id.). He stated that he used a motorized cart or a
cane for assistance and that he could not run. (Id.
at 42). Dillon denied having any interaction at all with the
neighbor on the day in question. (Id. at 43). On
cross examination, Dillon denied being able to kick or strike
the neighbor and claimed that all of the neighbor's
testimony was false. (Id. at 47). Dillon testified
that the two men are friends and that he had no idea why his
neighbor was lying. (Id. at 47-48).
7} The prosecutor called Officer Duff as a rebuttal
witness. Duff testified that he previously had observed
Dillon in court walking, standing, and sitting without the
use of a cane or a motorized scooter. (Id. at 53).
8} After hearing the evidence, the trial court found
Dillon guilty of assault. (Id. at 58). The trial
court filed a judgment entry memorializing the finding of
guilt and imposing a sentence that included a suspended jail
term, one year of reporting probation, an anger- management
class, a no-contact order, and a fine and court costs
totaling $515. (Doc. # 15). This appeal
9} In his assignment of error, Dillon contends the
trial court erred in overruling his Crim.R. 29 motion. He
asserts that the State presented legally insufficient
evidence to sustain his conviction because no reasonable
trier of fact could have found him guilty based on the
neighbor's testimony. In support, he notes the
discrepancy about whether he kicked his neighbor or tried to
do so. Dillon also cites Officer Duffs failure to observe any
injury to the neighbor and his own testimony that he had
mobility issues due to knee surgery.
10} When a defendant challenges the sufficiency of
the evidence, he is arguing that the State presented
inadequate evidence on an element of the offense to sustain
the verdict as a matter of law. State v. Hawn, 138
Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist. 2000).
"An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction
is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable
doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any
rational trier of ...