[Cite as State v. Hodge, 2013-Ohio-5879.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2013-T-0037
        - vs -                                 :

JOY DENISE HODGE,                              :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CR
584.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Joy Denise Hodge, appeals from the judgment of the Trumbull

County Court of Common Pleas, convicting appellant of murder, felonious assault, and

endangering children. For the reasons discussed in this opinion, we affirm.

        {¶2}     On September 5, 2011, various neighbors living on Transylvania Avenue

in Warren, Ohio convened to have a barbeque celebrating the Labor Day holiday.

Among the group was appellant, Amanda Clay, Vanity Wallace, and Tiffany Davenport.
The group ate, drank liquor as well as wine, and smoked marijuana throughout the day.

They ultimately convened at Vanity Wallace’s apartment and continued carousing late

into the evening.    At approximately 9:00 p.m., Chris Foster, another neighbor and

appellant’s ostensible boyfriend at the time, stopped by the apartment to socialize.

While there, Foster had a drink or two and smoked marijuana with the others. Foster

left around 10:30 p.m., and went back to his apartment and fell asleep.

       {¶3}   Appellant left Wallace’s apartment sometime after 11:00 p.m.           Near

midnight, appellant phoned David Brantley, the father of appellant’s 15-month-old

daughter, A.B., the victim herein. Appellant invited Brantley to visit her apartment, but

he declined the offer.

       {¶4}   Meanwhile, at Wallace’s apartment, the remaining partiers had recently

ran out of liquor. Recognizing all liquor stores were closed, they decided to go to a bar.

Amanda Clay went to retrieve appellant at her apartment, but discovered appellant’s

door was locked. She found this unusual because appellant generally left her door

unlocked when she was home. Clay, however, asked Foster, who was at his home, to

open appellant’s apartment with his spare key. Foster opened the door and apparently

returned to his home. After some discussion, appellant agreed to accompany Clay and

several others to the bar. The group met at the bar around 12:15 a.m. and 12:30 a.m.,

where they drank, danced, and sang Kareoke until approximately 2:30 a.m. The record

does not disclose who, if anyone, stayed with appellant’s children, A.B. and her other

two-year-old daughter, while appellant was out.

       {¶5}   At 2:28 a.m., appellant called Brantley again and told him their daughter,

A.B., was in the hospital with an ear infection. Brantley testified he heard loud music in




                                            2
the background and asked appellant why she was at a party if the victim was in the

hospital. Appellant became irritated with Brantley and “lashed out” with a volley of

vitriolic remarks. Given appellant’s truculence, Brantley hung up. Appellant continued

to phone Brantley, but he refused to take her calls. Appellant and the others returned to

their homes and did not see one another until the next day.

       {¶6}   The next morning, appellant went to a dentist’s appointment around 9:45

a.m. And, around 1:00 p.m., Antonia Rodgers encountered appellant, distressed and

crying, near her apartment. Appellant bluntly told Rodgers she had just discovered A.B.

dead in her crib. Appellant claimed she last checked on A.B. at 8:00 a.m., gave the

baby a “sippy cup,” and left her to rest. Rodgers called her sister, Lekeishia Blackburn,

another neighbor, and the two women accompanied appellant to her apartment. Upon

arrival, they observed the lifeless body of A.B. in her crib. Rodgers called 911 and

Blackburn unzipped the child’s nighty in an attempt to find a pulse. She immediately

noted the child was cold and stiff. She also noticed a mark on A.B.’s face and bruises

on her chest and ribs.    Although Blackburn attempted CPR, she stopped upon the

recognition the victim was too stiff to move. Blackburn, dubious of appellant’s earlier

contention, told appellant she did not believe she checked on the child at 8:00 a.m.

because the victim “was way too cold, like somebody had just pulled her out of a

freezer.”

       {¶7}   Within minutes, first responders Michael Nelson and Theodore Pettigrew,

both EMTs, arrived at the scene. They checked the baby and described her as “cold

and rigor’d stiff.” Both confirmed Blackburn’s observations of visible bruising on the




                                           3
child’s face and extremities. While surveying the scene, Pettigrew overheard appellant

on her cell phone exclaim: “Get your fucking ass here. Your baby is dead.”

       {¶8}   Certified forensic death examiner Rebecca Bluedorn was subsequently

called to the scene. Bluedorn assessed the condition of the body, noting bruising to the

child’s left cheek, right abdomen, belly, and thighs.      Appellant told the emergency

personnel and the investigator she had last seen A.B. alive at 8:00 a.m.

       {¶9}   An autopsy was conducted on September 7, 2011 by Trumbull County

Coroner, Dr. Humphrey Germaniuk. He noted various areas of bruising on A.B.’s face,

back of the head, both thighs and redness to her chest. The child’s liver was lacerated,

indicating blunt force trauma. The doctor also noted hemorrhaging to the abdomen and

swelling to the brain. As a result of his examination, Dr. Germaniuk concluded the

cause of death was homicide due to multiple blunt force injuries. The injuries, in his

medical opinion, were a result of an assault. Death, in his opinion, occurred within

minutes of when the injuries were inflicted.

       {¶10} Due to the condition of the body when it was discovered, Dr. Germaniuk

opined A.B. died between 1:30 a.m. and 5:30 a.m. on September 6, 2011.              When

asked how he drew this conclusion, the doctor observed that A.B.’s body was in full

rigor at the time she was discovered.          And, physiologically, rigor mortis plateaus

between eight and 12 hours after death. Because the EMT report indicated an arrival

time of 1:30 p.m. September 6, the doctor stated a “low ball” time of 5:30 a.m. on that

date, and a “high ball” time of 1:30 a.m. When asked whether the baby could have

been alive at 8:00 a.m., Dr. Germaniuk stated, “probably not.”




                                               4
       {¶11} Appellant provided police with two statements, one on September 6, 2011

and one on September 8, 2011. In her initial statement, appellant denied harming A.B.,

asserting the child woke up with bruises but she could not account for their origin. She

claimed she checked on A.B. at 8:00 a.m., kissed her, and gave her a sippy cup. In her

second statement, appellant claimed her friend, Precious Stephenson babysat A.B.

when she went out. In an apparent attempt to corroborate this statement, appellant

asked Stephenson to give police a statement confirming that she was watching A.B. on

Labor Day evening. Stephenson obliged and told police she sat with A.B. on Monday

night and saw the child on Tuesday morning. Two weeks later, however, Stephenson

visited police and corrected her story. She explained to police that appellant had asked

her to lie for her; Stephenson then told police she neither watched A.B. on Labor Day

night nor saw A.B. on Tuesday morning. Indeed, Stephenson stated the last time she

saw A.B. was Saturday, September 3, 2011 and the child had no bruising on her face at

that time.

       {¶12} On September 15, 2011, appellant was interviewed by William Evans,

owner of Investigative Safety. During this interview, appellant claimed Stephenson and

her boyfriend, Chris Foster, who had a key to her apartment, were with A.B. from 9:30

p.m. September 5, until 3:00 a.m. September 6.        During that interview, appellant

suggested that, although Foster left around 3:00 a.m. and A.B. was fine at 8:00 a.m., he

could have re-entered her apartment with his key and assaulted the child.        Foster

confirmed he had a key and told police he gave the key to Antonia Rodgers on

Tuesday, the day A.B. was discovered dead. Foster claimed, however, he was not in

appellant’s apartment on either Monday or Tuesday. He further asserted he never




                                           5
entered appellant’s apartment unless appellant was with him. Foster further stated he

had never physically harmed or disciplined A.B.

       {¶13} On November 16, 2011, appellant was indicted on one count of murder, in

violation of R.C. 2903.02(B) and (D); felonious assault, in violation of R.C.

2903.11(A)(1) and (D)(1)(a); and one count of endangering children, in violation of R.C.

2919.22(B)(1) and (E)(1). Appellant entered pleas of not guilty. The matter proceeded

to jury trial on December 10, 2012, after which appellant was found guilty on all counts.

At sentencing, the trial court merged the felonious assault and endangering children

counts with the murder count. Appellant was then sentenced to 15 years to life in

prison. This appeal follows.

       {¶14} Appellant assigns two errors for this court’s consideration.           Her first

assignment of error provides:

       {¶15} “The trial court erred by permitting appellee to dismiss prospective black

jurors through preemeptory [sic] challenges without satisfying the mandates of Batson v.

Kentucky.”

       {¶16} Under her first assignment of error, appellant contends her right to equal

protection was violated when the trial court permitted the state to exercise two

peremptory challenges excusing two black jurors without race-neutral reasons for the

prospective jurors’ dismissal. We do not agree.

       {¶17} In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court of the

United States held that the use of peremptory challenges to strike African-Americans

from a jury venire may raise an inference of discrimination compelling the prosecutor to

set forth a racially neutral explanation for his or her actions. Id. at 97. In order to invoke




                                              6
judicial scrutiny, however, a defendant must establish a prima facie case of

discrimination. Once the defendant establishes a prima facie case of discrimination, the

burden shifts to the state to come forward with a race-neutral explanation for the strike.

Id. at 97. Next, the trial court must decide, based on all the circumstances, whether the

defendant has established purposeful racial discrimination. Id. at 98. “A trial court’s

finding of no discriminatory intent will not be reversed on appeal unless clearly

erroneous.”   State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶106, following

Hernandez v. New York, 500 U.S. 352 (1991).

      {¶18} In this case, appellant’s alleged Batson violation is premised upon the

state’s decision to use peremptory strikes on prospective jurors Angellete Crosby and

Carla Bradley-King. During voir dire, Ms. Crosby stated she knew defense witness

Amanda Clay. According to Ms. Crosby, Clay is a member of her church and Ms.

Crosby is close with Clay’s mother. Ms. Crosby further stated she had a similarly close

relationship with state’s witness Vanity Wallace’s mother. Ms. Crosby also stated her

18-year-old son had been convicted of a felony firearms violation.

      {¶19} With respect to Ms. Bradley-King, she stated she was familiar with the

court’s witness Chris Foster. In particular, she went to school with Foster’s mother and

aunt. Ms. Bradley-King further stated she was still good friends with Foster’s aunt.

Moreover, Ms. Bradley-King stated her husband was killed in Detroit, Michigan in 2004.

Although no one was arrested for the ostensible crime, Ms. Bradley-King “guessed” it

was investigated. When asked whether, as a consequence of this experience, she had

any animosity toward law enforcement or prosecutors, she answered in the negative.

Ms. Bradley-King also stated many of her family members had been in trouble with the




                                            7
law. To wit, her cousin, Gary Smith, was in prison for murder; her mother was arrested

for drug paraphernalia; her step-father had been arrested numerous times on drug-

related offenses. And, Ms. Bradley-King stated, certain other, deceased relatives were

“in and out of jail for different reasons.”

       {¶20} The state used peremptory challenges on each of the prospective jurors to

which defense counsel objected. The parties stipulated that each prospective juror was

an African-American female. The state subsequently waived the requirement that the

defense establish a prima facie case for discrimination in interest of providing race-

neutral reasons for the strikes. With respect to Ms. Crosby, the prosecutor argued, “she

knows mothers of witnesses on both sides, she knows the mother of Amanda Clay, and

I believe she also said she knows the mother of Vanity Wallace. She goes to church

with them. I am not comfortable, nor am I comfortable with the fact that her son in fact

has been prosecuted for a felony firearms offense within the last five years.” Defense

counsel had no specific response to the state’s justification. The court subsequently

found the state asserted an adequate race-neutral basis for the strike.

       {¶21} Regarding Ms. Bradley-King, the state argued the prospective juror

“indicated that she is close friends and keeps in touch with one of the witnesses, Chris

Foster’s aunt * * *. Also she has indicated that she, her husband was murdered in

Detroit in 2004 and when asked how she felt about that her response was, well, she

guesses it was investigated. And when we came back here in chambers because she

had several people in her family that had been prosecuted I think the list was up to four

four that she named, including her mother who had been arrested. There was another

family member, Gary Smith, who had been convicted of murder. And there were a




                                              8
couple other relatives who had been convicted of some felonies. And I think that I am

not comfortable with her as a juror for those reasons.”

          {¶22} Defense counsel had no response to the state’s race-neutral reasons for

striking Ms. Bradley-King and the court subsequently allowed the peremptory challenge.

          {¶23} As the voir dire process continued, two African-American jurors were

seated on the panel; neither of these jurors were challenged by the state.

          {¶24} The facts and surrounding circumstances of the voir dire support the trial

court’s decision that the peremptory strikes were not motivated by a discriminatory

intent.     There was no pattern of strikes against minorities and the strikes exercised

were premised upon reasonable concerns that were entirely racially neutral. Despite

her claim that the concerns prompting the exercise of the challenges were “beyond

weak,” appellant has offered no evidence of discriminatory intent. And the seating of

two African-American jurors serves to refute any tacit inference that the state acted with

a discriminatory purpose in exercising their strikes. We therefore hold the trial court’s

decision did not violate Batson.

          {¶25} Appellant’s first assignment of error lacks merit.

          {¶26} For her second assignment of error, appellant asserts:

          {¶27} “The appellant’s convictions are against the manifest weight of the

evidence.”

          {¶28} A manifest weight challenge requires an appellate court to consider the

entire record, including the credibility of witnesses and potential conflicts in the

evidence, and determine whether the jury clearly lost its way such that the verdict of

guilty resulted in a manifest miscarriage of justice requiring a new trial. See e.g. State v.




                                               9
Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23,

1994). A judgment of a trial court should be reversed as being against the manifest

weight of the evidence “only in the exceptional case where the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

      {¶29} Appellant’s conviction was premised upon circumstantial evidence. It is

well-settled that “[c]ircumstantial evidence and direct evidence inherently possess the

same probative value.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the

syllabus. “Circumstantial evidence has been defined as testimony not grounded on

actual personal knowledge or observation of the facts in controversy, but of other facts

from which inferences are drawn, showing indirectly the facts sought to be established.”

State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶34, citing State v.

Nicely, (1988), 39 Ohio St.3d 147, 150 (1988). An inference is “a conclusion which, by

means of data founded upon common experience, natural reason draws from facts

which are proven.” State v. Nevius, 147 Ohio St. 263 (1947). It consequently follows

that when circumstantial evidence forms the basis of a conviction, that evidence must

prove collateral facts and circumstances, from which the existence of a primary fact may

be rationally inferred according to common experience. Windle, supra.

      {¶30} Appellant was convicted of murder, which required the jury to find, beyond

a reasonable doubt, that appellant caused the death of the victim as a proximate result

of either felonious assault and/or endangering children.      The state theorized that

appellant was angry and frustrated by Brantley rebuffing her invitation for, what it

characterized, a “booty call.” It further claimed that appellant’s irritation grew when

Brantley questioned why she was at a party, rather than with their child who appellant




                                          10
falsely claimed was in the hospital. Drunk and highly agitated, the state postulated

appellant returned home and, in the course of addressing a possibly upset baby,

appellant beat A.B. with sufficient severity to kill her.

       {¶31} To prove its theory, the state presented evidence that appellant and

various neighbors picnicked, drank, and smoked marijuana throughout the day on

September 5, 2011.          According to appellant’s friend and neighbor, Precious

Stephenson, appellant admitted she was “sloppy” drunk by the end of the night.

Appellant went home after leaving the bar and there was no specific evidence submitted

that anyone other than her and her children were in her apartment between 3:00 a.m.

and the time A.B.’s body was discovered.

       {¶32} In conjunction with the foregoing, the jury heard appellant requested

Precious Stephenson to lie to police about watching A.B. on Monday night and seeing

the child on Tuesday morning. And, although appellant stated she checked on the child

at 8:00 a.m. and she was fine, Dr. Germaniuk testified that, given the significant rigor

mortis of the body, A.B. had died between 1:30 a.m. and 5:30 a.m.

       {¶33} Appellant argues the conviction should be reversed due to the lack of

direct evidence linking her to the murder as well as the inferential possibility that Chris

Foster actually committed the crime. She points out that Chris Foster possessed a key

to her apartment prior to the murder. Foster testified he had relinquished the key to

Antonia Rodgers at some point on Labor Day, September 5, 2011. He had previously

told police, however, he gave the key to Rodgers on September 6, 2011. And Amanda

Clay testified that, at between 10:00 p.m. and 11:00 p.m. on Labor Day, Foster let her

into appellant’s apartment with the key. Appellant contends this evidence was sufficient




                                              11
to establish reasonable doubt as to her guilt and, as a result, the jury lost its way in

convicting her of the crimes.

       {¶34} We recognize that Foster’s possession of a key on the night the murder

created a possibility that he committed the crime; there was no other evidence,

however, that would implicate him in the murder. Foster testified that he and appellant

were in a relationship at the time of the crime and that he did have a key to her

apartment. The evidence further demonstrated that both Foster and appellant were on

good terms at the time the crime was committed. Foster testified that, even though he

had a key to appellant’s apartment, he never entered appellant’s apartment by himself

or when she was not home. And, Foster testified, he never disciplined, harmed, or

otherwise laid his hands on the victim during the course of his relationship with

appellant.

       {¶35} Even assuming Foster possessed the keys on the night of the murder, so

did Antonia Rodgers. Without some additional evidence indicating he was somehow

involved in the crime, we fail to see how his possession of the key would undermine the

jury’s verdict in this case.

       {¶36} The evidence demonstrated appellant was drunk and she was, at 2:30

a.m. on September 6, significantly irritated due to an argument she had with Brantley. It

is undisputed appellant returned home immediately after this argument and there was

no evidence that any other adult was in the apartment from 3:00 a.m. until the body was

discovered. Dr. Germaniuk surmised A.B. died between 1:30 a.m. and 5:30 a.m. These

direct facts, provide a basis for the rational inference that appellant was the individual




                                           12
who assaulted A.B., causing serious physical injury, and that assault was the proximate

result of her death.

       {¶37} A conviction is not against the manifest weight of the evidence because

the jury believes the state’s version of events over a defendant’s theory or defense.

State v. Gale, 10th Dist. Franklin No. 05AP-708, 2006-Ohio-1523, ¶19. In this case, the

jury found the state proved its theory of the crime beyond a reasonable doubt and we

cannot say the jury so lost its way or created a manifest miscarriage of justice to require

a new trial. We therefore hold appellant’s conviction is supported by the manifest weight

of the evidence.

       {¶38} Appellant’s second assignment of error is without merit.

       {¶39} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is hereby affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




                                            13
