[Cite as State v. Hurley, 2012-Ohio-310.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-11-01

        v.

JESSE I. HURLEY,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2010 CR 75

                                      Judgment Affirmed

                            Date of Decision: January 30, 2012




APPEARANCES:

        Nicole M. Winget for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-11-01



ROGERS, J.

       {¶1} Defendant-Appellant, Jesse Hurley (“Hurley”) appeals the judgment

of the Court of Common Pleas of Putnam County convicting him of felonious

assault. On appeal, Hurley argues that the trial court abused its discretion when it

denied his request for expert fees, that the trial court erred in failing to grant his

Crim.R. 29 motion for acquittal, that the jury verdict of guilty was not supported

by sufficient evidence, and that the trial court erred by imposing the maximum

sentence. For the following reasons we affirm the judgment of the trial court.

       {¶2} In October 2010, the Putnam County Grand Jury indicted Hurley on

count I: felonious assault in violation of R.C. 2903.11(A)(2), a felony of the

second degree. The complaint arose from an incident whereby Hurley was in the

victim’s sister’s trailer, the victim arrived, told Hurley and his friends to leave, and

before leaving the residence, Hurley attacked the victim with a kitchen knife.

Subsequently, Hurley entered a not guilty plea to the charge.

       {¶3} On December 15, 2010, the trial court denied Hurley’s motion for

expert fees. The case proceeded to a jury trial on December 28 and 29, 2010. At

trial, the State presented the testimony of the victim, Nicole Kirk, Sergeant Brian

Siefker, Deputy Mark Doster, Brent Hostettler, Sarah Tice, Joseph Kirk, and

Victoria Kirk during its case in chief. Hurley moved for a Crim.R. 29 motion for



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acquittal at the close of the State’s evidence. The trial court denied this motion.

The defense then presented Wesley Hostettler, Sarah Tice, and Jesse Hurley.

       {¶4} Nicole Kirk (“Nicole” or “Victim”) testified that she knows Hurley

because he has been dating her sister, Sarah Tice (“Sarah”), sporadically for the

past five or six years and is the father of Sarah’s daughter. On October 3, 2010, at

approximately 8:00 p.m., Nicole took her dog to visit Sarah’s children. When she

arrived at Sarah’s trailer, an unfamiliar man was in the living room with Hurley,

Sarah’s three children were also there, although one was asleep on the couch; food

and empty food boxes were spread all over the living room, and the living room

was filled with cigarette and marijuana smoke. Nicole took the children to their

rooms to put them to bed. When she came back into the living room, a third man

was there “with a joint in his hand.” Trial Tr., p. 30. Nicole testified that she took

the “joint” from his hand and threw it out the door. She told the men to leave and

that she was going to call the police. As the Defendant stood up to leave, the other

two men walked out the door, and instead of leaving, the Defendant shut the door,

pushed her down onto the couch, said that she was not going to get him in any

trouble, and cut and scraped her stomach with a knife. She described the knife as

having a black handle and a serrated edge. Nicole testified that Hurley made six

or seven cuts on her stomach. Nicole screamed and her dog came out of the

bedroom and started barking, showed her teeth, and snapped towards him so that

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Hurley got up and ran out the door. When he ran out the door, she locked it and

called the police.

       {¶5} The State played the recording from Nicole’s 911 telephone call.

When the police officer arrived at the trailer, Nicole showed him the cuts on her

stomach. The police officer took photos of the cuts, interviewed Nicole, and took

her home.

       {¶6} Sergeant Brian Siefker of the Putnam County Sheriff’s Office testified

that on October 3, 2010 he responded to a call reporting an incident with a knife.

When he arrived at the trailer, he noticed that Nicole was upset, crying, and

holding onto her side. Nicole showed him her wounds, which he photographed.

He testified that the wounds were fresh and that blood was coming to the surface.

He also testified that he retrieved marijuana from the trailer, close to where the

men had been sitting. Sergeant Siefker attempted to locate the knife, but was

unsuccessful.

       {¶7} Deputy Mark Doster of the Putnam County Sheriff’s Office testified

that he was on duty and reported to the trailer court on October 3, 2010. Upon

arriving at the trailer court, he went to lot 29, where the two men who were at

Sarah’s trailer that night, Brent Hostettler and Wesley Hostettler, live. Deputy

Doster also located Hurley at that trailer and interviewed him. Hurley told him

that he had been babysitting the children at Sarah’s trailer when Nicole came over,

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and they argued because of the marijuana smoke. He stated that Hurley did not

have his jacket or his shoes on during the interview as they were still at Sarah’s

trailer.

           {¶8} Brent Hostettler (“Brent”), one of the two other men at Sarah’s trailer,

testified that he, his brother Wesley, and Hurley voluntarily left the trailer together

that night to smoke a cigarette. When they were outside smoking, Nicole locked

the door and made a phone call saying that she was in need of assistance. Brent

also testified that he and Hurley were smoking marijuana that night before Nicole

came over.

           {¶9} Sarah testified that she met Hurley in February, 2006, and that he is

the father of her daughter. She testified that she is the victim’s sister. She and

Hurley have had a troubled relationship and went through two significant events

that caused them to separate. One of the events occurred two weeks prior to the

incident at issue, which caused her not to speak with Hurley for a couple of weeks.

During this time, Hurley had expressed that he wanted Sarah to live with him, but

she told him he first needed to earn her trust and be a responsible person. She

testified that Hurley had “two strikes against him” at this point. Trial Tr., p. 140.

As Sarah was scheduled to work on the evening of October 3, 2010, she let Hurley

stay with the children. She stated that Hurley and the Hostettler brothers are



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friends. Lastly, she testified that the knives she has in her home have black

handles and serrated edges.

       {¶10} Wesley Hostettler (“Wes”) then testified on direct examination for

the defense. Wes stated that he is friends with the Defendant. He stated that on

October 3, 2010, his mother sent him to Sarah’s trailer to tell Brent to come home.

Brent was outside of Sarah’s trailer smoking a cigarette and the two went into the

trailer to talk to Hurley. Once they were in the living room, Nicole came out of

the back bedroom, asked Wes his name, and he, Brent, and Hurley left the trailer

together.

       {¶11} Hurley testified that he was babysitting Sarah’s children at her trailer

on October 3, 2010, when Brent came over. The two were smoking marijuana

when Nicole arrived. Nicole put the children to bed and came back out to the

living room and told them that they had to smoke outside. When the three went

outside to smoke, Nicole locked the door. Hurley then went to the Hostettler’s

trailer and called Sarah to ask her if he could kick in the door. He said he never

stabbed or slashed Nicole with a knife. He also testified that he never argued with

Nicole that evening. He testified that, since 2001, he has had three convictions for

obstructing official business, one felony burglary conviction, one falsification

conviction, and one attempted domestic violence conviction.



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      {¶12} The jury found Hurley guilty of felonious assault, and the trial court

imposed an eight-year prison term. It is from this judgment Hurley appeals,

presenting the following assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
      DENIED THE DEFENDANT-APPELLANT’S REQUEST FOR
      EXPERT FEES WHEN SUCH AN EXPERT WOULD BE
      USED TO CONTRADICT THE STATE’S THEORY OF THE
      CASE.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED IN FAILING TO GRANT
      APPELLANT’S CRIMINAL RULE 29 MOTION TO DISMISS
      ALL OF THE CHARGES AT THE CONCLUSION OF THE
      STATE’S CASE IN CHIEF.

                          Assignment of Error No. III

      THE JURY ERRED TO THE PREJUDICE OF THE
      DEFENDANT APPELLANT BY FINDING HIM GUILTY OF
      FELONIOUS ASSAULT.

                           Assignment of Error No. IV

      THE TRIAL COURT ERRED AS A MATTER OF LAW
      WHEN IT IMPOSED THE MAXIMUM SENTENCES (sic)
      FOR HIS OFFENSES (sic) IN VIOLATION OF THE
      GUIDELINES SET FORTH IN ORC 2929.12.

                         Assignment of Error No. I

      {¶13} In his first assignment of error, Hurley alleges that the trial court

erred in denying his request for expert fees. Hurley requested $1,500 in funds to

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be used in obtaining an expert to determine whether the wounds the victim

suffered were consistent with the knife in question. He argues that essential to his

defense was the implication that the wounds were self-inflicted in an effort by the

victim to separate the defendant and the victim’s sister, and absent the expert

evidence, this is a “he-said, she-said case with very little, if any physical

evidence.” Appellant’s Brief, p. 8.

       {¶14} The State contends that the defense has failed to establish that expert

fees were warranted in this case as Hurley failed to establish that the expert

assistance is reasonably necessary. The State argues that the Defendant did not

show that there is a reasonable probability that an expert would aid in his defense,

and that the denial of the expert assistance would result in an unfair trial as

required by State v. Broom, 40 Ohio St.3d 277 (1988).

       {¶15} The statutory authority allowing the state to provide the funds for an

indigent defendant’s expert is R.C. 2929.024 which states that, in aggravated

murder cases, the trial court shall authorize defendant’s counsel to obtain the

necessary services at the state’s expense if the trial court finds that the services of

experts are reasonably necessary for the defendant’s representation.              R.C.

2929.024; Broom; State v. Jenkins, 15 Ohio St.3d 164 (1984), paragraph four of

the syllabus; State v. Weeks, 64 Ohio App.3d 595 (12th Dist. 1989). In noncapital

cases, however, there is no authority mandating the payment of an indigent

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defendant’s expert fees. State v. Mathias, 3d Dist. Nos. 13-97-35, 13-97-36, 13-

97-37, *2 (May 6, 1998), citing Weeks. Ohio courts have nonetheless applied the

factors used by the Ohio Supreme Court in resolving requests for state-funded

experts pursuant to R.C. 2929.024 in non-capital cases. The relevant factors in

resolving the appointment of a state-funded expert are: (1) the value of the expert

assistance to the defendant’s proper representation at trial; and (2) the availability

of alternative devices that fulfill the same functions as the expert assistance

sought.    Id., citing Broom at 283, quoting Jenkins at paragraph four of the

syllabus. The burden is on the defendant to demonstrate the reasonableness of the

request. State v. Cooper, 3d Dist. No. 03-02-02, 2003-Ohio-4236, ¶ 13, rev’d on

other grounds, citing Weeks. “At a minimum, the indigent defendant must present

the trial judge with sufficient facts with which the court can base a decision.”

Weeks at 598-99. Undeveloped assertions that the proposed assistance would be

useful to the defense are patently inadequate. Broom at 283.

       {¶16} The appropriate standard of review is an abuse of discretion.

Mathias.    A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18,

citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

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that of the trial court. State v. Nagle, 11th Dist. No. 99-L-089 (June 16, 2000),

citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

        {¶17} At the hearing on the matter of expert fees, the Defendant’s attorney

explained that the expert would look at the Victim’s statement, the facts alleged,

the knife in question, and the Victim’s wounds in order to determine first, whether

the knife could have inflicted these wounds, and second whether the wounds are

consistent with the alleged events that gave rise to the Victim’s wounds.1

        {¶18} An application of the factors set forth above reveals that the trial

court did not abuse its discretion in denying the request for a forensic scientist.

Specifically, Appellant has failed to demonstrate the value and necessity of such

testimony. Without the knife in question, the expert opinion would not be any

more accurate or certain than that of a lay person. Bare assertions as to what the

Defense hopes the expert opinion will show are insufficient to establish the value

of the requested expert. Further, alternative methods are available to determine

the accuracy of the State’s theory. By thoroughly cross-examining the witnesses

and the timing of the events, the defense could have explored whether the victim’s

wounds were self-inflicted as well as possible motives for such behavior. Where

Defendant fails to show such need, we cannot find an abuse of discretion by the



1
  As Hurley’s motion requesting expert fees is absent from the record, we are unable to address any
arguments contained therein.

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trial court in denying the appointment of an expert. Accordingly, Appellant’s first

assignment of error is overruled.

                                 Assignment of Error Nos. II and III

           {¶19} Due to the nature of Hurley’s second and third assignments of error,

we elect to address them together.

           {¶20} Hurley argues that the trial court erred by denying his Crim.R. 29

motion to dismiss the charges at the close of the State’s case-in-chief.2 He also

argues that the jury erred by finding him guilty as there was insufficient evidence

to support such a finding. Specifically, Hurley asserts that the evidence was

insufficient as there was no evidence that Hurley knowingly caused injury to the

Victim, the alleged weapon was never found, the clothing had not been preserved

from the night of the incident, and the only evidence of the attack was introduced

through the Victim who had a motive to lie.

           {¶21} Under Crim.R. 29(A), a court shall not order a judgment of acquittal

if the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proven beyond a reasonable

doubt. State v. Bridgeman, 55 Ohio St.2d 261 (1978). A motion for acquittal tests

the sufficiency of the evidence. State v. Miley, 114 Ohio App.3d 738, 742 (4th

Dist. 1996).

2
    A Crim.R. 29 motion is one for acquittal.

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       {¶22} When an appellate court reviews a record for sufficiency, the

relevant inquiry is 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. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1991),

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89 (1997). Sufficiency is a test of adequacy, State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997), and the question of whether evidence

is sufficient to sustain a verdict is one of law. State v. Robinson, 162 Ohio St. 486

(1955), superseded by state constitutional amendment on other grounds as stated

in Smith.

       {¶23} We hold that the evidence was sufficient to establish Hurley’s guilt

of felonious assault. Hurley was convicted of felonious assault in violation of

R.C. 2903.11(A)(2), which provides:

       (A) No person shall knowingly do either of the following:

       ***

       (2) Cause or attempt to cause physical harm to another or to
       another's unborn by means of a deadly weapon or dangerous
       ordnance.

       {¶24} A deadly weapon is defined in R.C. 2923.11(A) as “any instrument,

device, or thing capable of inflicting death, and designed or specially adapted for

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use as a weapon, or possessed, carried, or used as a weapon.” Hurley does not

claim that a knife is not a deadly weapon.         Rather, he claims that there is

insufficient evidence that a knife was used as it was never found. Although it

would have been beneficial for the State to introduce the knife, the failure to do so

is not fatal. The testimony at trial established that a knife was used as a weapon.

The Victim’s testimony that Hurley used a knife to slice her stomach was

supported by the injuries she sustained as evidenced in the photographs. The

recording of the 911 phone call was consistent with the Victim’s story. The

Victim’s description of the weapon matched Sarah’s description of her kitchen

knives. The officers’ testimony at trial established the difficulty of locating such a

weapon in a trailer court.

       {¶25} The State also presented sufficient evidence to establish that Hurley

did knowingly cause the victim’s wounds. The victim’s testimony as well as

Sarah’s testimony was that Hurley was compelled to prevent Nicole from calling

the police. Sarah’s testimony established that Hurley knew this may have been

one of his last chances to prove to Sarah that he was reliable and trustworthy.

When Nicole threatened to call the police on Hurley due to the drug activity taking

place in front of the children, Hurley needed to prevent police intervention if he

was going to succeed in earning Sarah’s trust. In an attempt to prevent Nicole

from calling the police, he attacked her.

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       {¶26} Further, we note that the lack of the Victim’s shirt does not prevent a

finding of sufficiency as the shirt is not necessary to establish any of the elements

of felonious assault.

       {¶27} We find that the State presented sufficient evidence such that

reasonable minds can reach different conclusions as to whether each material

element of a crime has been proven. Viewing the evidence in the light most

favorable to the prosecution, we hold that the evidence was sufficient to sustain

the verdict. Accordingly, Hurley’s second and third assignments of error are

overruled.

                            Assignment of Error No. IV

       {¶28} In his fourth assignment of error, Hurley argues that the trial court

erred by imposing the maximum statutory prison term. Specifically, he contends

that the factors set forth in R.C. 2929.12 are not present. Hurley asserts that there

is no indication that his conduct was more serious than similar offenses as there

was minimal injury to the victim who did not require professional medical

treatment, and the weapon was a kitchen knife. Hurley asserts that since this was

not the worst form of the offense, the maximum prison sentence should not have

been imposed.

       {¶29} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

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Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-

1181. A meaningful review means “that an appellate court hearing an appeal of a

felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.”3 Daughenbaugh, citing Carter at ¶ 44; R.C. 2953.08(G).

        {¶30} The trial court has full discretion to sentence an offender to any term

of imprisonment within the statutory range without a requirement that it make

findings or give reasons for imposing the maximum sentence, more than the

minimum sentence, or ordering sentences to be served consecutively. State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus.

        {¶31} When sentencing an offender, the trial court must consider the

factors set forth under R.C. 2929.12 (D) and (E) relating to the seriousness of the

offender’s conduct and the likelihood of the offender’s recidivism.                                  R.C.

2929.12(A); see also State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767, ¶ 25.

However, the trial court is not required to make specific findings of its

consideration of the factors. State v. Kincade, 3d Dist. No. 16-09-20, 2010-Ohio-

1497, ¶ 8, citing State v. Arnett, 88 Ohio St.3d 208 (2000). Nor is the trial court
3
  We note that the Supreme Court of Ohio's plurality opinion in State v. Kalish, 120 Ohio St. 3d 23, 2008-
Ohio-4912, established a two-part test utilizing an abuse of discretion standard for appellate review of
felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court's precedential clear and
convincing review standard adopted by three dissenting Justices in Kalish, we note that our decision in this
case would be identical under the Kalish plurality's two-part test.

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 Case No. 12-11-01



 required to state on the record that it has considered the statutory criteria or even

 discussed them. State v. Foust, 3d Dist. No. 3-07-11, 2007-Ohio-5767, ¶ 27.

        {¶32} Contrary to Hurley’s assertions, the trial court’s imposition of the

 maximum sentence was not based on the seriousness of his offense, but rather was

 based on Hurley’s “significant likelihood of recidivism, . . . prior criminal

 adjudications, . . . pattern of criminal activity and criminal violent activity, and

 that [he] has shown no remorse for his actions.” Judgment Entry, Docket No. 78.

 In light of the nature of the instant offense, Hurley’s prior criminal convictions,

 and likelihood of recidivism, we find that the trial court’s imposition of the

 maximum term of imprisonment was not clearly and convincingly contrary to law.

        {¶33} Accordingly, we overrule Hurley’s fourth assignment of error.

        {¶34} Having found no error prejudicial to the Appellant herein, in the

 particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed
PRESTON, J., concurs.

/jlr



 WILLAMOWSKI, J., Concurring Separately.

        {¶35} I concur fully with the majority opinion as to assignments of error

 one, two, and three. However I write separately as to the fourth assignment of

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error to emphasize the appropriate standard of review. The standard of review for

sentences was set forth in the plurality opinion of Kalish, supra. In Kalish, four

panel members noted that R.C. 2953.08(G) requires that appellants must meet a

clearly and convincingly contrary to law standard of review when reviewing a

sentence.4 For example, if the sentencing court failed to consider R.C. 2929.12,

the standard of review would be whether appellant has shown that the sentence

was clearly and convincingly contrary to law. However, if the appeal is based

upon alleged improper application of the factors in R.C. 2929.12, four panel

members in Kalish would require review using an abuse of discretion standard as

specifically set forth in R.C 2929.12.5

        {¶36} I would find that Hurley has not clearly and convincingly

demonstrated that the sentence is contrary to law. In other words, Hurley did not

show that the trial court did not consider the factors set forth in R.C. 2929.12. I

would further find that Hurley did not show that the trial court abused its

discretion in how it applied the factors in R.C. 2929.12. In light of the nature of

the instant offense, Hurley’s prior criminal conviction, and the likelihood of

recidivism, I find that the trial court’s imposition of the maximum term of

imprisonment was not an abuse of discretion. The trial court’s judgment was not

4
   Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
5
   Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.

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clearly and convincingly contrary to law in that it did consider the factors set forth

in R.C. 2929.12.




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