Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas, Case No. 2018 CR 0048.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
Grabman, Law Offices of Michelle M. French, LLC, (For
Plaintiff-appellant, the State of Ohio, appeals the
"ruling" of the Ashtabula County Court of Common
Pleas, acquitting defendant, Santo Sanabria, Jr., of
Felonious Assault pursuant to Criminal Rule 29. For the
following reasons, the State's assignment of error has
merit although this court is without authority to alter the
fact of Sanabria's acquittal and, therefore, we affirm
the judgment of the court below.
On January 24, 2018, the Ashtabula County Grand Jury indicted
Sanabria of the following: Felonious Assault (Count One), a
felony of the second degree in violation of R.C.
2903.11(A)(1); Felonious Assault (Count Two), a felony of the
second degree in violation of R.C. 2903.11(A)(2); Abduction
(Count Three), a felony of the third degree in violation of
R.C. 2905.02(A)(2); Disrupting Public Services (Count Four),
a felony of the fourth degree in violation of R.C.
2909.04(A)(1); Aggravated Possession of Drugs (Count Five), a
felony of the fifth degree in violation of R.C. 2925.11(A)
and (C)(1)(a); and Domestic Violence (Count Six), a
misdemeanor of the first degree in violation of R.C.
On January 31, 2018, Sanabria appeared for arraignment and
entered a plea of not guilty to all charges.
The case was tried before a jury from June 11-12, 2018. Count
Five (Aggravated Possession of Drugs) of the Indictment was
dismissed on the State's Motion. Counts One (Felonious
Assault), Two (Felonious Assault), and Four (Disrupting
Public Services) were dismissed on Sanabria's motion for
acquittal. The jury returned a verdict of guilty as to Counts
Three (Abduction) and Six (Domestic Violence).
On September 26, 2018, a sentencing hearing was held at which
the trial court ordered Sanabria to serve twenty-four months
in prison for Abduction and six months in prison for Domestic
Violence, each sentence to be served concurrently with the
other. The court's sentence was memorialized in a
September 28, 2018 Judgment Entry of Sentence.
On October 4, 2018, the State filed a Motion for Leave to
Appeal pursuant to Appellate Rule 5(C), on the grounds that
"the trial court failed to apply the appropriate case
law when it determined that the victim's broken nose was
not serious physical harm." This court granted leave on
November 21, 2018, recognizing that this issue is
"capable of repetition." State ex rel.
Ramirez-Ortiz v. Twelfth Dist Court of Appeals, 151 Ohio
St.3d 46, 2017-Ohio-7816, 85 N.E.3d 725, ¶ 11 ("the
state can appeal a discrete legal issue when the question is
capable of repetition yet evading review (by virtue of the
On appeal the State raises the following assignment of error:
"The trial court [erred] in granting appellee's
Criminal Rule 29 motion for the Felonious Assault charge on
the basis that the victim did not sustain serious physical
"The court on motion of a defendant * * * shall order
the entry of a judgment of acquittal of one or more offenses
charged in the indictment * * * if the evidence is
insufficient to sustain a conviction of such offense or
offenses." Crim.R. 29(A). Sufficiency is a test of the
adequacy of the evidence either to "determine whether
the case may go to the jury or whether the evidence is
legally sufficient to support the jury verdict as a matter of
law." (Citation omitted.) State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "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,"
i.e., "whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt." State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
In the present case, Sanabria moved for acquittal at the
close of the State's evidence. The trial court granted
the motion with respect to the first count of Felonious
Assault. In order to convict Sanabria of Felonious Assault,
the State was required to prove beyond a reasonable doubt
that he "knowingly * * * [c]ause[d] serious physical
harm to another." R.C. 2903.11(A)(1).
The court ...