[Cite as State v. Ashe, 2016-Ohio-136.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :   Appellate Case No. 26528
         Plaintiff-Appellee                     :
                                                :   Trial Court Case No. 14-CRB-1530
 v.                                             :
                                                :   (Criminal Appeal from
 JORDAN I. ASHE                                 :    Dayton Municipal Court)
                                                :
         Defendant-Appellant                    :
                                                :

                                           ...........
                                          OPINION
                            Rendered on the 15th day of January, 2016.
                                           ...........

LYNN R. DONALDSON, Atty. Reg. No. 0041507, and STEPHANIE L. COOK, Atty. Reg.
No. 0067101, by MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Dayton City
Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellee

DAWN S. GARRETT, Atty. Reg. No. 0055565, Garrett Law Offices, 70 Birch Alley, Suite
240-24005, Beavercreek, Ohio 45440
      Attorney for Defendant-Appellant

                                          .............

FAIN, J.

        {¶ 1} Defendant-appellant Jordan Ashe appeals from his conviction and sentence

for Assault. He contends that the State should not have been permitted to introduce his
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admissions to the police absent proof of the corpus delicti of the offense. He further

contends that the trial court permitted the State to present improper and prejudicial

evidence at trial. Ashe claims that his conviction is not supported by sufficient evidence,

and that the conviction is against the manifest weight of the evidence. Finally, Ashe

contends that the trial court erred in sentencing.

       {¶ 2} We conclude that the State did satisfy the corpus delicti rule prior to

introducing Ashe’s statements to the police. We find that, although the trial court did err

in permitting the investigating detective to testify about the cause of death of the victim,

as stated in the autopsy, this error was harmless. We find no other evidentiary errors.

We further conclude that the State presented evidence sufficient to sustain the conviction,

and that the jury did not lose its way in convicting Ashe. We find no sentencing error.

Accordingly, the judgment of the trial court is Affirmed.



                                    I. The Altercation

       {¶ 3} In late November 2013, William Gunn was found lying on the ground at 157

West Norman Street. Gunn was wearing only underwear and socks. His clothes, which

were scattered around him, were covered with frost.         Gunn was transported to the

hospital, where he was later pronounced dead.

       {¶ 4} An investigation revealed that Gunn had attended a party at the home of

Ashe’s mother.     During the party, Gunn became intoxicated and was acting in a

disorderly manner. When asked to leave, Gunn refused. Thereafter, Ashe, his brother,

and another man escorted Gunn from the home. Once outside, Gunn attempted to fight

the men. Ashe’s brother hit Gunn, who fell to the ground. Gunn attempted to stand up,
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and as he did so, he grabbed the jacket of Ashe’s girlfriend in an attempt to steady himself.

Ashe then hit Gunn hard enough to render him unconscious. Gunn was then dragged

across the street, where he was left.



                             II. The Course of Proceedings

       {¶ 5} Ashe was charged with one count of Assault, in violation of R.C. 2903.13(A),

a first-degree misdemeanor. Ashe moved in limine to prohibit the State from introducing

his statements to the police absent proof of the corpus delicti of Assault. At trial, Ashe

presented the affirmative defense of defense of another.

       {¶ 6} Following trial, Ashe was found guilty. He was sentenced to 180 days in

jail. No fine was assessed, but Ashe was ordered to pay court costs. Ashe moved to

stay execution of sentence. The trial court imposed a $50,000 appellate bond, which

was later amended to $10,000 (cash/surety). Ashe also filed a motion for stay with this

court. We entered a decision and entry stating that Ashe could post the $10,000 bond,

and then execution would be stayed. Ashe did not pay the bond, and remained in jail.

His sentence was served during the pendency of this appeal. Ashe appeals from his

conviction and sentence.



                        III. The Corpus Delicti Rule Is Satisfied

       {¶ 7} Ashe’s First Assignment of Error states:

              THE    TRIAL     COURT      ERRED      TO    THE    PREJUDICE       OF

       DEFENDANT IN OVERRULING DEFENDANT’S CORPUS DELICTI

       MOTION TO PRECLUDE USE OF DEFENDANT’S ADMISSIONS
                                                                                             -4-


       WITHOUT FURTHER PROOF OF A CRIMINAL ACT.

       {¶ 8} Ashe contends that the trial court erred in admitting his admission that he hit

Gunn, made during his interview with the police, because the corpus delicti rule had not

been satisfied. In support, he argues that the evidence before the jury, which consisted

of testimony that an unconscious, drunk man had abrasions to his face and knees that

could be consistent with either a fall or assault, was not sufficient to satisfy the rule.

       {¶ 9} “The corpus delicti of a crime is essentially the fact of the crime itself.” State

v. Barker, 10th Dist. Franklin No. 03AP-43, 2003-Ohio-5346, ¶ 4. The corpus delicti rule

is an evidentiary rule which requires “that before a defendant’s confession to an offense

may be admitted at trial, some evidence must already have been admitted, independent

of the confession, that tends to establish the corpus delicti of the offense.” State v.

Barker, 191 Ohio App.3d 293, 2010-Ohio-5744, 945 N.E.2d 1107, ¶ 9 (2d Dist.). In other

words, the State must provide independent evidence tending to establish the act, and the

criminal agency of that act. Id., ¶ 12. However, the threshold imposed by this rule is low.

State v. Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867 N.E.2d 474, ¶ 58 (2d Dist.),

reversed on other grounds, In re Criminal Sentencing Cases, 116 Ohio St.3d 31, 2007-

Ohio-5551, 876 N.E.2d 528. The evidence does not have to “equal proof beyond a

reasonable doubt nor even make a prima facie case.” State v. Black, 54 Ohio St.2d 304,

308, 376 N.E.2d 948 (1978). The evidence may also be circumstantial. Gabriel at ¶ 58.

“This rule does not require evidence, other than the confession, showing that the accused

committed the crime but, rather, requires some evidence that a crime was, in fact,

committed.” State v. Hopfer, 112 Ohio App.3d 521, 561, 679 N.E.2d 321 (2d Dist.1996).

       {¶ 10} In this case, Detective David House and Detective Rod Roberts testified
                                                                                           -5-


that Gunn had dried blood around his lips and abrasions to his legs at the time he was

discovered by a Dayton Police Officer. There was fresh blood in the grass near his head

and a “disturbed” patch of grass near Gunn’s body that, based upon House’s experience,

indicated a possible struggle. Both detectives testified that, based upon their experience

investigating assault cases, an open wound on Gunn’s cheek was consistent with an

assault injury.

       {¶ 11} We conclude that this evidence is sufficient to satisfy the corpus-delicti rule.

Accordingly, the First Assignment of Error is overruled.



     IV. Although Trial Court Erred in Admitting Hearsay Evidence of Victim’s

                           Autopsy, that Error Was Harmless

       {¶ 12} Ashe’s Second Assignment of Error states:

              THE       TRIAL        COURT          VIOLATED         DEFENDANT’S

       CONSTITUTIONAL RIGHTS (DUE PROCESS, CONFRONTATION OF

       WITNESSES AND FAIR TRIAL TO AN IMPARTIAL JURY) AND ERRED

       TO THE PREJUDICE OF DEFENDANT WHEN THE LOWER COURT

       OVERRULED DEFENDANT’S MOTION IN LIMINE TO EXCLUDE

       EVIDENCE FROM THE AUTOPSY OF THE ALLEGED VICTIM AND

       WHEN IT PERMITTED THE DETECTIVE TO TESTIFY AS HEARSAY TO

       THE FINDINGS OF SAID AUTOPSY.

       {¶ 13} Ashe contends that the trial court erroneously permitted the State to

introduce information on Gunn’s cause of death.         Specifically, Detective House was

permitted to testify that the autopsy report indicated that Gunn died from hypothermia.
                                                                                         -6-


Ashe contends that this information was improper and prejudicial, because it implied that

the death was the result of the assault.

         {¶ 14} We agree that it was error to permit Detective House to testify that the

autopsy indicated the cause of death as hypothermia. As noted by the State, the autopsy

report constitutes a business record, as well as a public record under Evid.R. 803(6) and

803(8). Thus, the State could have introduced the autopsy report into evidence, but, for

whatever reason, chose not to do so. Detective House is not a medical expert, and was

not qualified to provide testimony regarding the cause of death.

         {¶ 15} However, we agree with the State that the error is harmless in view of the

other evidence against Ashe supporting his conviction, including his admission that he hit

the victim, and in view of the fact that he was not convicted of a homicide offense.

         {¶ 16} The Second Assignment of Error is overruled.



           V. Because the State Introduced Sufficient Evidence to Support a

                  Conviction, the Trial Court Did Not Err in Overruling

                       Ashe’s Motion for a Judgment of Acquittal

         {¶ 17} Ashe’s Third Assignment of Error states:

               THE     TRIAL    COURT      ERRED     TO    THE    PREJUDICE      OF

         DEFENDANT WHEN IT             DENIED     DEFENDANT’S       MOTION FOR

         ACQUITTAL.

         {¶ 18} At the close of the State's evidence, Ashe moved for a judgment of acquittal

pursuant to Crim.R. 29(A). The trial court overruled the motion. Ashe contends this was

error.
                                                                                       -7-


       {¶ 19} We note that the record before us does not indicate that Ashe renewed his

Crim.R. 29(A) motion at the close of all of the evidence. When a defendant in a jury trial

fails to renew his Crim.R. 29(A) motion at the close of all the evidence, the defendant

waives all but plain error. State v. Ford, 2d Dist. Montgomery No. 15374, 1996 WL

257442, * 2 (May 17, 1996).

       {¶ 20} A Crim.R. 29 motion for judgment of acquittal challenges the legal

sufficiency of the evidence. State v. Carter, 2d Dist. Montgomery No. 21145, 2006-Ohio-

2823, ¶ 40. As stated in Part VII, below, we find sufficient evidence to sustain the

conviction. Thus, we find no error, let alone plain error, in overruling the motion for

acquittal.

       {¶ 21} The Third Assignment of Error is overruled.



             VI. Trial Court Did Not Err in Allowing Police Officers to Testify

               Concerning Certain Conclusions They Drew Based Upon

                 their Own Perceptions and Experience; Trial Court Did

                 Not Err in Allowing Testimony Concerning a Statement

                  by a Minor Witness to the Police, to Explain Why the

                        Investigation Proceeded as it Did, with an

                              Appropriate Limiting Instruction

       {¶ 22} The Fourth Assignment of Error asserted by Ashe is as follows:

              THE TRIAL COURT ERRED AND DENIED DEFENDANT HIS

       CONSTITUTIONAL RIGHTS TO DUE PROCESS, CONFRONTATION OF

       WITNESSES AND TO A FAIR TRIAL BY AN IMPARTIAL JURY WHEN IT
                                                                                         -8-


       ADMITTED IMPROPER AND HIGHLY PREJUDICIAL EVIDENCE.

       {¶ 23} Ashe contends that the trial court made numerous erroneous evidentiary

rulings during trial.

       {¶ 24} Absent an error of law, the admission or exclusion of evidence is a matter

committed to the discretion of the trial court, and its decision regarding the admission and

exclusion of evidence will not be reversed absent a demonstration of an abuse of that

discretion. State v. Bell, 176 Ohio App.3d 378, 2008-Ohio-2578, 891 N.E.2d 1280, ¶ 40

(2d Dist.). An abuse of discretion occurs when the trial court’s decision is unreasonable,

arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).

       {¶ 25} Ashe first claims that the trial court erred by permitting the investigating

detectives to testify that the abrasions found on Gunn were consistent with an assault,

and that the ground near Gunn’s body appeared disturbed, as if a scuffle had occurred.

       {¶ 26} Detective Rod Roberts testified that during his twelve years in law

enforcement, he saw injuries caused by assaults almost daily, and that it was common to

see injuries to the facial area resulting from assaults. Likewise, Detective House testified

that he had more than twenty years in law enforcement.            He testified that in his

experience, the open wound on Gunn’s cheek bone was consistent with an assault. He

further testified that the grass in the area beside the body was “flattened and matted,” and

that some “loose powdery dirt” was covering the sidewalk in the same area, and that this

was consistent with a “scuffle.” Tr. p. 97.

       {¶ 27} Evid.R. 701 provides: “If the witness is not testifying as an expert, his

testimony in the form of opinions or inferences is limited to those opinions or inferences
                                                                                              -9-


which are (1) rationally based on the perception of the witness and (2) helpful to a clear

understanding of his testimony or the determination of a fact in issue.”

       {¶ 28} At the time, both officers were merely testifying as to the course of their

investigation, and their observations. The testimony that the injury to the face was

consistent with an assault was based upon their experience with assault cases. The

detectives’ testimony that they were familiar with assaults, and wounds caused thereby,

was sufficient to establish that their conclusions were rationally based on their

perceptions. The testimony regarding the condition of the ground was likewise based

upon the detectives’ observations. We find no error in the admission of this testimony.

       {¶ 29} Ashe next complains that Detective Roberts was permitted to testify that the

police interviewed a minor child, who was neither identified nor called to testify, who

claimed to have observed the assault. He objected at the beginning of the testimony on

the basis that it was hearsay. The trial court overruled the objection, finding that the

Detective was merely testifying to the course of the investigation. Roberts then testified

that the child stated he observed three men, and that the child provided a description of

the assailants. Ashe objected thereto. The trial court sustained this objection, and

instructed the jury to disregard the statement.

       {¶ 30} Hearsay is “a statement, other than one made by the declarant while

testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Evid.R. 801(C). An out-of-court statement offered for reasons other than the truth are

not hearsay. State v. Lewis, 22 Ohio St.2d 125, 132–133, 258 N.E.2d 445 (1970). As a

general rule, a statement offered to explain a police officer's reasons for conduct while

investigating a crime does not constitute hearsay. State v. Thomas, 61 Ohio St.2d 223,
                                                                                          -10-


232, 400 N.E.2d 401 (1980).        However, “[t]he conduct to be explained should be

relevant, equivocal and contemporaneous with the statements[, and] such statements

must meet the standard of Evid.R. 403(A).” State v. Blevins, 36 Ohio App.3d 147, 149,

521 N.E.2d 1105 (10th Dist.1987).

       {¶ 31} Roberts’s testimony regarding the child was not objectionable from our

review of the transcript. The statement regarding what the child saw, and that the child

provided descriptions, was only admissible to explain why the investigation proceeded as

it did, and the trial court gave an appropriate limiting instruction, which we presume the

jury followed.

       {¶ 32} The Fourth Assignment of Error is overruled.



          VII. Ashe’s Conviction Is Supported by Sufficient Evidence, and Is not

                     Against the Manifest Weight of the Evidence

       {¶ 33} Ashe’s Fifth Assignment of Error provides:

                 THE VERDICT WAS BASED UPON INSUFFICIENT EVIDENCE

       AND/OR CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE

       AND THE JURY CLEARLY LOST ITS WAY.

       {¶ 34} Ashe contends that the State did not present evidence sufficient to sustain

the conviction. He also claims that the conviction is against the manifest weight of the

evidence. In support, he argues that there was reasonable doubt as to whether he

caused physical harm to Gunn. He relies on his claims that Gunn’s injuries could have

been the result of Gunn falling on concrete due to intoxication, the result of the fact that

another individual admitted to hitting Gunn, or both. He further claims that the jury clearly
                                                                                          -11-


lost its way due to the erroneous evidentiary rulings made by the trial court.

       {¶ 35} A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). The proper test to apply to such an inquiry is the one

set forth in paragraph two of the syllabus of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991): “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 fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

       {¶ 36} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” Thompkins, at 387. A judgment should be reversed as being against the

manifest weight of the evidence “only in the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist. 1983).

       {¶ 37} Ashe was convicted of misdemeanor Assault, in violation of R.C.

2903.13(A), which provides that “[n]o person shall knowingly cause or attempt to cause
                                                                                        -12-


physical harm to another or to another's unborn.”

       {¶ 38} In this case, there is evidence that Gunn was the victim of an assault, as

testified to by Detective House. Furthermore, Ashe admitted to hitting Gunn during his

interview with the police.   Ashe’s girlfriend testified that Ashe punched Gunn hard

enough to render him unconscious, and that Ashe then dragged Gunn across the street.

We conclude that this constitutes evidence sufficient to sustain a conviction for Assault.

       {¶ 39} We next turn to the weight-of-the-evidence argument. Ashe contends that

the jury lost its way in finding him guilty. Again, there was evidence in the record upon

which the jury could rely in finding that Ashe punched Gunn hard enough to cause Gunn

to lose consciousness. Furthermore, Ashe presented the affirmative defense of defense

of another, which necessarily involves the admission of the conduct constituting Assault.

State v. D.H., 169 Ohio App.3d 798, 2006-Ohio-6953, 865 N.E.2d 90, ¶ 39 (10th Dist.).

Thus, we cannot say that the jury clearly lost its way in convicting Ashe of Assault.

       {¶ 40} The Fifth Assignment of Error is overruled.



    VIII. The Record Does Not Support Ashe’s Claim of an Error in Sentencing

       {¶ 41} Ashe’s Sixth Assignment of Error is as follows:

              THE COURT ERRED WHEN IT IMPOSED THE MAXIMUM

       SENTENCE OF 180 DAYS ON THE DEFENDANT’S FIRST CRIMINAL

       OFFENSE AND WAS IMPROPERLY INFLUENCED BY THE DEATH OF

       THE ALLEGED VICTIM WITH WHICH THE DEFENDANT WAS NOT

       ACTUALLY CHARGED OR CONVICTED.

       {¶ 42} Ashe contends that the trial court erred in sentencing.       In support, he
                                                                                      -13-


argues that the trial court was improperly influenced by the death of Gunn. He also

argues that the trial court did not properly consider the purposes and principles of

sentencing because it did not state its reasons for the sentence.

       {¶ 43} In discussing sentencing in misdemeanor cases, this court, in State v.

Jackson, 2d Dist. Montgomery No. 20819, 2005-Ohio-4521, has stated:

               Misdemeanor sentencing is governed by R.C. § 2929.22, which sets

       forth various considerations to guide a trial court in the exercise of its

       discretion. We repeatedly have recognized that “Ohio courts will presume

       that the trial court considered the factors set forth in R.C. § 2929.22 when

       the sentence is within the statutory limits in the absence of an affirmative

       showing to the contrary.” State v. Kelly, Greene App. No. 2004 CA 122,

       2005–Ohio–3058, at ¶ 25; see also State v. Hendricks, Montgomery App.

       No. 18947, 2002–Ohio–1201; State v. Orleck, Montgomery App. No. 18745,

       2001–Ohio–1929; State v. Mitchell (June 29, 2001), Montgomery App. No.

       17816; State v. Gilreath (July 7, 2000), Greene App. No. 2000–CA–01;

       State v. Hilt (Dec. 31, 1998), Montgomery App. No. 17126. In light of the

       foregoing presumption, a trial court is not required to discuss the R.C. §

       2929.22 considerations on the record or make explicit findings to support

       its misdemeanor sentence. See, e.g., Kelly, supra, at ¶ 25–26; Orleck,

       supra; Mitchell, supra; Gilreath, supra.

Id. at ¶ 13.

       {¶ 44} In the case before us, Ashe was convicted of a first-degree misdemeanor

in violation of R.C. 2903.13(A). A pre-sentence investigation report was ordered, and
                                                                                       -14-


Ashe was referred for a drug and alcohol evaluation. Thereafter, he was sentenced to

serve a 180-day sentence. This is within the limits set by R.C. 2929.24(A)(1) for first-

degree misdemeanors. There is no indication in the record that the trial court failed to

consider the appropriate factors in sentencing; therefore we presume that the trial court

followed the appropriate guidelines for sentencing.

       {¶ 45} At the sentencing hearing, the trial court noted that Ashe indicated that he

did not want to discontinue his use of marijuana. The trial court further noted that Ashe

showed no remorse for the offense, and indeed denied any fault on his part.          This

suggests that the trial court did consider relevant factors.

       {¶ 46} Although Ashe argues that the trial court improperly punished him because

Gunn subsequently died, we find no support for this contention.

       {¶ 47} The record supports Ashe's sentence. Accordingly, the Sixth Assignment

of Error is overruled.



                                        I.     Conclusion

       {¶ 48} All of Ashe’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                      .............


FROELICH, P.J., and HALL, J., concur.

Copies mailed to:

Lynn R. Donaldson / Stephanie L. Cook
Matthew Kortjohn
Dawn Garrett
Hon. Daniel G. Gehres
