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State v. Loomis

Court of Appeals of Ohio, Tenth District

June 27, 2019

State of Ohio, Plaintiff-Appellee,
David J. Loomis, Defendant-Appellant.

          Appeal from the Franklin County Court of Common Pleas C.P.C. No. 17CR-337.

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Yavitch & Palmer, Co., L.PA., and Jeffery A. Linn, II, for appellant.


          PER CURIAM.

         {¶ 1} Defendant-appellant, David J. Loomis, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of one count of felonious assault, a felony of the second degree, and one count of assault, a misdemeanor of the first degree. For the reasons which follow, we affirm the judgment of the trial court.

         I. Facts and Procedural History

         {¶ 2} On January 18, 2017 plaintiff-appellee, State of Ohio, indicted appellant on one count of felonious assault, in violation of R.C. 2903.11, one count of assault, in violation of R.C. 2903.13, and one count of aggravated menacing, in violation of R.C. 2903.21. The state moved to dismiss the aggravated menacing charge at trial.

         {¶ 3} The events giving rise to the indictment occurred December 11, 2016 at Zuey's Roundback Bar ("Zuey's") in Columbus, Ohio. Sara Evans, the bartender at Zuey's, explained that shortly after her shift began that evening, she "noticed somebody trying to steal from the dart case." (Tr. Vol. I at 62.) Zuey's had a case containing dart equipment which patrons could purchase located on a small stage near a row of dart boards. Evans recognized the individual she saw stealing from the dart case as Tyler Loomis. Evans was familiar with Tyler because, on a previous occasion, he began using the darts from the case and Evans had "warned him that he has to pay for them." (Tr. Vol. I at 66.) Evans asked her boyfriend who was present in the bar, Matthew Decker, to go ask Tyler to leave. Decker went to speak to Tyler.

         {¶ 4} When Evans looked over at the two men it appeared "Tyler was taking offense and was more aggressive, and [Decker] literally put his hands up and was backing off." (Tr. Vol. I at 68.) Evans saw Tyler's friend and Tyler's "family, his dad and the brother," all jump "up and ran to the stage, as if they were all four of them going to jump [Decker]." Evans identified appellant in court, explaining he was "the dad." (Tr. Vol. I at 69, 89.) As Tyler's family and friend approached the stage a "couple of people from the bar jumped up," including bar regular Tracy Konkler. (Tr. Vol. I at 69.)

         {¶ 5} As Evans walked out from behind the bar and approached the stage area, Tyler's friend "pulled a knife out, [and] started threatening" Evans and Decker with it. Evans "looked over" and saw "just everyone fighting." Evans stated Konkler was "on the ground getting kicked" by the "brothers, the dad." (Tr. Vol. I at 70.) Evans explained three men were "stomping on [Konkler], they were jumping on him, they were kicking him, very violent." (Tr. Vol. I at 71.)

         {¶ 6} Evans saw Decker run "past the guy with the knife to go back to the bar," and saw Tyler run "to go chase him." Evans "got away" at that point and called 911. (Tr. Vol. I at 70.) Evans explained that, eventually, the brother and dad "gave up on beating up [Konkler] and came to help Tyler beat up [Decker]" behind the bar. (Tr. Vol. I at 90.) As Evans was on the phone with 911, the group "finally gave up * * * and left." (Tr. Vol. I at 72.)

         {¶ 7} A couple weeks after the incident, officers presented Evans with a photo array. Evans selected appellant's photo from the array because he was "the man [she] saw beating up [Konkler] and trying to attack [Decker]." (Tr. Vol. I at 99.) Reviewing the bar's surveillance video at trial, Evans explained that "the dad" could be seen "hitting [Decker]" behind the bar. (Tr. Vol. III at 370.)

         {¶ 8} Decker testified explaining that when he approached a young man standing near the dart case at Zuey's on the evening of December 11, 2016, the young man became aggressive. Decker stated that as Konkler and Evans approached the situation, the "older brother" of the young man and "their dad * * * came up out of nowhere." (Tr. Vol. II at 278.) A "fourth individual" also came up and "pulled out a little box cutter." (Tr. Vol. II at 274.) When the "guy lunge[d] at [Evans] with [the] knife" Decker "kind of took off and ran behind the bar. Decker saw Konkler on the ground in the "fetal position" as the "dad and the two brothers" were "[b]eating him about the __ everywhere, face, neck, kicking him and stomping on him." (Tr. Vol. II at 278, 284.)

         {¶ 9} When Decker ran behind the bar "the younger of the two brothers * * * jumped over the bar at [him]." Decker "hit" the young man "a couple of times," but then started to feel "punches in the back of [his] head." (Tr. Vol. II at 280, 293.) Decker explained the "same ones that were beating up [Konkler]" began "attacking [him] behind the bar." (Tr. Vol. II at 280.) Decker stated appellant "and both of his sons were throwing punches at [him]." (Tr. Vol. II at 321.) Decker identified appellant in court as the one "who beat __ was helping beat up [Konkler] along with the other two, [and] the one who attacked [him] behind the bar." Decker was "beat up" as a result of the incident, he "had lumps all over [his] head." (Tr. Vol. II at 294.)

         {¶ 10} Konkler was exiting the restroom at Zuey's on the evening of December 11, 2016 when he saw three men surrounding Decker. When Konkler approached the situation one man pushed him "[o]ne of them tried to throw a punch," and Konkler "threw one back." Konkler "got hit" and fell to the ground. Konkler "couldn't say" who hit him as the hit "came from the side." (Tr. Vol. II at 188.) As Konkler was on the ground "at least two to three people" began kicking him. By about "the fourth or fifth kick, [Konkler] knew at least one rib was broke." Konkler "screamed out," noting it was "the most intense pain [he had] ever felt." (Tr. Vol. II at 190, 192.) When the kicking stopped, Konkler "just laid there," he was "bleeding all over the place." (Tr. Vol. II at 193.)

         {¶ 11} Kathleen Eller, Konkler's girlfriend, was sitting at the bar waiting for Konkler to return from the restroom when the incident occurred. As Konkler exited the restroom and walked toward "Decker and the two gentlemen," Eller saw an "older gentleman" come up and "clock[] [Konkler] knocked him to the ground." (Tr. Vol. I at 121.) Eller stated that the two younger gentleman then ran over and "[a]ll three of them start[ed] kicking" Konkler in "his face, in his stomach, in his back." (Tr. Vol. I at 123.) Eller identified appellant in court as the individual she saw punch and kick Konkler.

         {¶ 12} After the melee, paramedics took Konkler to the hospital. Konkler suffered a black eye, three broken ribs, two fractured vertebrae, and a punctured spleen as a result of the incident. Konkler underwent surgery to have his spleen removed and remained in the hospital for ten days.

         {¶ 13} On January 9, 2017, Detective Charles Rosch questioned appellant regarding the events of December 11, 2016. Appellant admitted he had gone to Zuey's with his sons that evening and admitted his sons were involved in a fight with other bar patrons that night. Appellant, however, asserted that he did not participate in the fight.

         {¶ 14} At the close of the state's case-in-chief, appellant made a Crim.R. 29 motion for acquittal. The trial court denied the motion.

         {¶ 15} The jury found appellant guilty of felonious assault with respect to Konkler, and guilty of assault with respect to Decker. The trial court entered a nolle prosequi on the aggravated menacing charge. The court sentenced appellant to a prison term of five years on the felonious assault charge, to run concurrent with a prison term of 180 ...

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