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State v. Thomas

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 19, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MAISHA L. THOMAS DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613189-A

          ATTORNEY FOR APPELLANT J. Charles Ruiz-Bueno

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Hannah Smith Assistant Prosecuting Attorney

          BEFORE: S. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, PRESIDING JUDGE

         {¶1} Appellant Maisha L. Thomas appeals her conviction for assault. Upon review, we affirm.

         {¶2} On January 24, 2017, appellant was charged with one count of assault in violation of R.C. 2903.13(A) with a furthermore clause that alleged "the offense was committed by defendant, a caretaker, against the victim, a functionally impaired person under the care of Maisha L. Thomas." Appellant entered a plea of not guilty, and the case proceeded to a jury trial.

         {¶3} The following facts were adduced at trial. The alleged assault occurred on November 20, 2016. On that date, appellant was employed by Our Lady of the Wayside as a caretaker at a group home for the developmentally disabled. She and another caretaker, Yasmeen Green, were working the same shift. The victim was under their care.

         {¶4} The victim is an adult male who suffers from physical and mental impairments. Specifically, he has cerebral palsy, has difficulty moving the left side of his body, and uses a wheelchair. He also suffers dementia and has mental impairments. He can become easily agitated; he can get very belligerent and demanding; and he can become "mouthy," curse and yell, and use name-calling and slurs. He has been known to sometimes flail his arms or smack himself on the side of his head and face.

         {¶5} Green testified that on the date of the incident, she and appellant were the only two working during the shift. She testified they were getting the Hoyer lift in place to move the victim out of bed and were prepping the victim for a shower. She stated that it is protocol to have two caretakers when utilizing the Hoyer lift.[1]

         {¶6} Green testified that the victim was "going into behavior," which she indicated means cursing, yelling, and being agitated. Green testified that appellant was "very much annoyed and agitated with [the victim]" and was telling the victim to "be quiet" and to "shut up" Green further testified that appellant "got pretty upset and she smacked [the victim]" on his face, near his mouth, and she said "Shut the f*** up. I'm not dealing with your sh** today." Green stated she observed appellant smack the victim three times, once while he was in the bed and two more times after they got him on the commode. She stated "the inside of his lip was busted" and there was blood. Green testified the victim was not hitting himself or flailing around. She stated she told appellant to go and Green took the victim to the shower. Green described the victim's demeanor as upset, sad, and crying. She testified that "he said he couldn't understand why she would hit him." Following the incident, Green called Tahara English, a coworker, and told her what happened.

         {¶7} Tahara English testified that on the date of the incident, she received a phone call from appellant who stated "I just had to beat [the victim's] ass" and that he had been "mouthing off." English also testified to receiving a call from Green about the incident. At a staff meeting the next day, English notified Candice Abrams, who is a supervisor, of the incident. English observed that the victim's "lip was busted." She did not notice any scratches.

         {¶8} Candice Abrams testified that after being notified of the incident, she called her supervisor. She then went to see the victim and observed an abrasion on the victim's inner lip. She did not observe any scratches or marks to the exterior of his face. Abrams testified that appellant and Green did not always get along, but she believed they had worked it out. She confirmed that two people are required to use the Hoyer lift, but that there have been times when one person starts the process. She also testified that "[the victim] is a two-person lift." She further testified that the victim was not able to remember everything that happened at first, but that he later was able to recall and that he remembered that he had been hit by appellant.

         {¶9} Michelle Gray conducted an internal investigation of the matter and determined the claim was substantiated. An incident report was prepared, and the police were notified of the incident. The trial court sustained an objection when Gray was asked if the victim remembered what happened and responded, "Yes. He said he was hit. He did not remember by whom."

         {¶10} Detective Dennis Bort investigated the incident. He took statements from the individuals involved and spoke to the victim. During direct examination, Detective Bort testified that he met with the victim and "[the victim] said he was assaulted. He mention[ed] nothing about kicking or pulling her hair."

         {¶11} Detective Bort further testified that appellant's account of the incident was not consistent with Green's account. He testified that appellant denied striking the victim; that she stated the victim had been flailing his arms and she was trying to prevent him from hitting himself and to prevent herself from being hit; and that she stated the victim had pulled her hair and kicked her in the midsection. There was some question as to whether the victim would be able to kick that high. The detective testified that appellant stated she called English, but appellant maintained that she informed English she had been frustrated and had "wanted to whoop [the victim's] ass." After conducting his investigation, taking statements, and preparing a report, Detective Bort determined there was enough evidence to charge appellant.

         {¶12} Officer Richard Butler testified that he had received a report of an assault and had responded to the location to begin an investigation. Officer Butler observed an injury to the inside of the victim's lower lip. He described the injury as consistent with being smacked across the face. He did not observe any redness or scratch marks on the victim's face.

         {¶13} During direct examination, the trial court sustained an objection and struck testimony from Officer Butler stating that "[the victim] explained he was hit in the face."

         {¶14} During cross-examination, Officer Butler testified that "it was apparent that * * * it was tough to keep [the victim] on task, so I figured that his impairments were going to make it challenging to ...


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